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EXHIBIT 10.40
NYNEX CREDIT COMPANY
MASTER LEASE AGREEMENT
This MASTER LEASE AGREEMENT ("Agreement") dated as of October 2, 1995 is
between NYNEX Credit Company, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, a
Delaware corporation ("Lessor") and Universal Seismic Associates, Inc., a
Delaware corporation ("Parent") and Universal Seismic Acquisition, Inc., a
Texas corporation ("Subsidiary"), each having an address at 00000 Xxxx Xxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, (each and collectively, the "Lessee").
TABLE OF CONTENTS
PARAGRAPH PAGE NUMBER
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1. LEASE OF EQUIPMENT 1
2. TERM; ACCEPTANCE 1
3. RENT; TAXES; LATE CHARGES 2
4. CHARACTERISTICS OF LEASE 3
5. OPERATION AND MAINTENANCE 4
6. INSURANCE 5
7. RISK OF LOSS OR DAMAGE 5
8. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY 6
9. REPRESENTATIONS AND WARRANTIES OF LESSEE 7
10. FINANCIAL INFORMATION; OFFICER'S CERTIFICATE 8
11. GENERAL INDEMNITY 8
12. TAX INDEMNITY 9
13. DEFAULT 10
14. REMEDIES 11
15. END-OF-TERM OPTIONS 13
16. GENERAL 13
1. LEASE OF EQUIPMENT. The Agreement establishes the general terms and
conditions for Lessee to lease equipment from Lessor. The Agreement will
be incorporated into each individual lease ("Lease") executed by Lessor
and Lessee. A Lease lists the equipment to be leased ("Equipment") and
includes other information particular to that Lease. If a provision of a
Lease conflicts with a provision of the Agreement, the Lease prevails.
2. TERM; ACCEPTANCE.
(a) The term of the Lease ("Lease Term"), unless terminated earlier,
consists of an Interim Lease Term, a Base Lease Term, and any Renewal
Term, all as specified in the Lease.
(b) Lessee -- not Lessor -- is responsible for selecting the Equipment
and assuring that it is delivered and properly installed. The Equipment
is considered irrevocably accepted by Lessee on the date the
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Lease Term begins. "Acceptance" means that the Lessee represents and
warrants that the Equipment: (i) has been delivered to and is in the
possession of Lessee; (ii) has been fully inspected by Lessee or its
qualified agent; (iii) is suitable for the purpose intended by Lessee;
(iv) is in good order, operating condition, and repair and has been
properly installed (subject to minor undischarged obligations of
suppliers, manufacturers, or installers under their agreements and
warranties); (v) meets all recommended or applicable safety and
environmental laws, regulations, and standards; (vi) is clear of Lessee
Liens (as defined in Paragraph 4); and (vii) has been insured as required
by Paragraph 6.
(c) Lessor is not obligated to purchase the Equipment and enter into a
Lease unless, as of the beginning of the Lease Term: (i) there are no
Lessee Liens (as defined in Paragraph 4) on the Equipment; (ii) all
Lessee's Representations and Warranties in Paragraph 9 are true and
correct; (iii) no Event of Default (as defined in Paragraph 13) would
exist upon signing the Lease, and no Event of Default exists as to other
Leases under the Agreement; (iv) there has been no material adverse change
in Parent's financial condition since June 30, 1995; (v) Lessor's due
diligence has been completed to its satisfaction; and (vi) all documents
attached to the Lease are satisfactory in form and substance to Lessor.
The Total Equipment Cost (as specified in the Lease) may not exceed
$4,300,000, and Acceptance of all Equipment must occur before December 31,
1995.
3. RENT; TAXES; LATE CHARGES.
(a) Rent. Lessee promises to pay Lessor, throughout the Lease Term, the
rental payments ("Rent") in the amounts and on the dates specified in the
Lease. Rent is due and payable whether or not Lessee receives written
notice from Lessor. Lessor intends to send monthly Rent invoices to
Lessee, but Lessee's obligation to pay Rent on time does not depend on its
receipt of monthly invoices. If an individual Rent payment or other amount
due under the Lease is greater than $50,000, Lessee will make the payment
by bank transfer of immediately available funds.
(b) Taxes. Lessor will pay, and Lessee promises to reimburse Lessor, for
all taxes, fees, duties, imposts, assessments, or other charges ("Taxes")
that are imposed on Lessor or its affiliates, now or in the future, in
connection with the Equipment (including its purchase by Lessor and,
during the Lease Term, its ownership, leasing, use, and possession), and
Lessor will make the necessary filings for Taxes. Taxes include interest,
penalties, and fines (unless caused solely by the act or omission of
Lessor), but Taxes exclude taxes on or measured by Lessor's net income or
gross receipts. Taxes include those imposed by federal, state, local, and
foreign authorities, whether imposed directly on Lessor, on Lessee, on the
Equipment, or on a Lease. For purposes of the Agreement, Taxes are
included within the meaning of the term "Rent."
(c) Late Charges. If Lessee is late in paying Rent or any other amount
under the Lease, Lessee will pay Lessor, as additional Rent, a late charge
at a rate of 1.5 percent of the unpaid sum for each full or partial month
that the sum remains unpaid. Payments will be applied first to late
charges, then to Rent or other amounts owed by Lessee.
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4. CHARACTERISTICS OF LEASE.
(a) Non-Terminable Net Lease. The Lease is a net lease and cannot be
terminated by Lessee. Lessee's obligation to pay Rent and other amounts
due under the Lease is ABSOLUTE AND UNCONDITIONAL, not subject to set-off,
counterclaim, delay, or modification for any reason, including failure of
the Equipment to perform as specified by a supplier or manufacturer.
(b) Title; UCC Article 2A. The Equipment is separately identifiable
personal property and is not considered a fixture or affixed to real
estate. Title to the Equipment remains with Lessor. The Lease is a true
lease for tax purposes and is a "finance lease" as defined in Article 2-A
- Leases of the Uniform Commercial Code ("UCC Article 2A"); this is not a
sale. If Lessor provides tags or labels indicating Lessor's ownership of
the Equipment, Lessee will affix and maintain the tags or labels on the
Equipment.
(c) Liens. Lessee at its expense will take actions Lessor deems reasonably
necessary to prevent third persons from acquiring or maintaining a right
or interest in the Equipment. Lessee will not place, or allow to be
placed, a mortgage, pledge, lien, security interest, or encumbrance of any
kind on the Equipment (a "Lessee Lien"). Lessee is not responsible for a
Lessor Lien, which arises out of a transaction unrelated to the Agreement,
to which Lessor is a party and to which Lessee is not a party. If a Lessee
Lien is placed on the Equipment, Lessee will promptly notify Lessor and at
Lessee's expense clear the Lessee Lien within 30 days after learning of it
or sooner if necessary to prevent losing possession of the Equipment or to
prevent a diminution or change of Lessor's rights in the Equipment;
provided however, so long as no Event of Default is continuing, if Lessee
within such 30 day period initiates and at all times diligently pursues
the appropriate court or administrative action seeking to clear the Lessee
Lien, Lessee will have an additional 90 days from the end of such 30 day
period to clear it.
(d) Lessor's Rights; UCC Financing Statements. Lessee at its expense will
promptly take action as Lessor reasonably requests to protect Lessor's
rights under the Agreement, including without limitation the signing of
UCC financing statements in jurisdictions Lessor considers necessary.
Lessor will prepare the UCC financing statements and present them to
Lessee for its signature. Return of the executed statements to Lessor is a
condition prior to closing, and Lessee agrees to sign continuing
statements, as necessary. Lessor may choose to file the UCC financing
statements, and Lessee will reimburse Lessor for the filing fees and the
outside service and administration fees. The execution and filing of such
statements is precautionary (except where the Equipment is considered a
fixture for UCC purposes) and does not affect the true lease character of
the Lease for tax purposes or the "finance lease" character of the Lease
under UCC Article 2A.
(e) Quiet Possession. So long as no Event of Default is continuing,
neither Lessor nor a third person claiming through Lessor will interfere
with Lessee's right of quiet possession of the Equipment.
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5. OPERATION AND MAINTENANCE.
(a) Use. Lessee will maintain sole possession and control of the
Equipment. Lessee will use the Equipment solely in the normal conduct of
its business in a careful manner according to the supplier's and
manufacturer's instructions and in compliance with laws, regulations, and
insurance requirements. Lessee will pay all costs, claims, damages, fees,
and other amounts arising out of the possession, use, or maintenance of
the Equipment. Lessee has the right and the obligation to assert directly
against the supplier or manufacturer of the Equipment all claims regarding
the Equipment, and Lessee will give Lessor prompt written notice of the
terms of any settlement. Lessee at its expense will maintain the Equipment
in good working order and repair to maintain the utility, operating
efficiency, value, and remaining useful life of the Equipment, reasonable
wear and tear resulting solely from proper use excepted; the Equipment
must remain capable of performing its intended function efficiently and
according to the supplier's and manufacturer's specifications. All
replacement parts must meet the specifications of the supplier or
manufacturer and have at least the utility and value of those replaced.
Lessee will maintain accurate maintenance and inspection records on the
Equipment and provide copies of such records to Lessor upon request. After
the supplier's or manufacturer's warranty ends, Lessee at its expense
will, unless waived by Lessor, enter into a maintenance agreement with the
supplier or manufacturer (or another maintenance contractor approved by
Lessor) for maintenance of the Equipment during the remainder of the Lease
Term.
(b) Modifications. Upon Lessor's prior written consent which will not be
unreasonably withheld, Lessee at its expense has the right to make
modifications, alterations, renovations, or improvements to the Equipment
("Modifications"), so long as such Modifications (i) do not damage or
impair the utility, operating efficiency, value, or remaining useful life
of the Equipment and (ii) may be removed without damaging the Equipment.
Lessee at its expense will make Modifications during the Lease Term that
are required by law, regulation, or insurance policy. A Modification that
is not a Severable Modification (as defined below) becomes the property of
Lessor and constitutes Equipment for all purposes under the Lease. A
Severable Modification is a Modification that is readily removable and
severable, is not a replacement or substitution for part of the Equipment,
and is not required by law, regulation, or insurance policy. Lessee may
remove a Severable Modification during or at the end of the Lease Term. A
Severable Modification that is not removed at the end of the Lease Term
becomes the property of Lessor, except that upon Lessor's request Lessee
at its expense will remove a Severable Modification and return the
Equipment to the condition required by the Lease.
(c) Inspection. Upon two business days advance notice and during
reasonable business hours but without disruption to Lessee's business,
Lessee will allow Lessor or its representative to inspect the Equipment,
to observe its operation with the assistance of Lessee's personnel, and to
examine and copy maintenance and inspection records.
(d) Movement of Equipment. Lessee may move all items of Equipment within
the continental United States by giving Lessor 30 days prior notice. On
January 31 of each year throughout the Lease Term, Lessee will provide
Lessor with a written, monthly report detailing the number of days
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in the month that the Equipment spent at any location (by county and
state).
6. INSURANCE.
(a) Property. Throughout the Lease Term, Lessee will purchase and maintain
an all risk physical damage policy insuring the Equipment against loss and
damage in an amount not less than the greater of full replacement value of
the Equipment or the Stipulated Loss Value as calculated under Paragraph
7(b). The deductible or self-insurance retention applicable to the policy
may not exceed the amount specified in the Lease. Lessor will be named as
loss payee.
(b) Liability. Throughout the Lease Term, Lessee will purchase and
maintain a commercial general liability insurance policy relating to the
Equipment protecting against claims alleging bodily injury (including
personal injury) and property damage with a combined single limit per
occurrence not less than the amount specified in the Lease. The deductible
or self-insurance retention applicable to the policy may not exceed the
amount specified in the Lease. The policy will be on an occurrence form,
and Lessor will be named as additional insured.
(c) Policies and Premiums. Lessee will deliver proof of insurance coverage
to Lessor before the beginning of the Lease Term and at least 30 days
before expiration of insurance coverage during the Lease Term. Proof of
insurance coverage consists of a certificate of insurance and, at Lessor's
option, the complete insurance policy. The insurance company selected by
Lessee must be reasonably acceptable to Lessor, and the insurance policy
must be in form and substance reasonably satisfactory to Lessor. Insurance
policies will provide that (i) Lessor will be given 30 days prior written
notice of any alteration or cancellation of the coverage, and (ii)
Lessor's status as loss payee and additional insured will not be
invalidated by action or inaction by Lessee. Regarding all insurance,
Lessee will pay the premiums. Lessee agrees that Lessor may obtain a
security interest in the proceeds of all insurance policies directly
relating to the Equipment.
7. RISK OF LOSS OR DAMAGE.
(a) Loss. Lessee assumes all risk of loss, theft, and damage to the
Equipment from any cause ("Loss"). A Loss does not relieve Lessee of its
obligation to pay Rent or to perform other obligations under the Lease.
Lessor incurs no liability to Lessee or third persons for loss of
business, loss of profits, or other direct or consequential damages
relating to a Loss. Lessee will immediately give Lessor notice of a Loss
(except that no notice is required for cosmetic damage that does not
affect the operating performance of the Equipment); if notice is given
orally, it will be confirmed in writing within 15 days. If less than a
Total Loss (as defined below) occurs, Lessee will promptly restore the
Equipment to the condition required by Paragraph 5.
(b) Total Loss. After receiving Lessee's notice of a Loss or upon Lessor's
inspection, if Lessor determines that all or substantially all the
Equipment is damaged beyond repair, lost, stolen, condemned, or
confiscated ("Total Loss"), Lessor will notify Lessee in writing that a
Total Loss has occurred and that Lessee is obligated to continue paying
Rent until Lessee pays to Lessor a
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Total Loss Payment. The Total Loss Payment will be due on the next Rent
payment date following the earlier of (i) receipt of insurance proceeds
relating to the Total Loss or (ii) 90 days from the date of the Total
Loss. The Total Loss Payment will equal the Rent and other amounts due
Lessor up to and including such next Rent payment date plus the Stipulated
Loss Value. The Stipulated Loss Value, which represents liquidated damages
for loss of a bargain, consists of: (i) the Total Equipment Cost specified
in the Lease for the Equipment subject to the Total Loss, multiplied by
(ii) the percentage factor for the next Rent payment date shown on the
Table of Stipulated Loss Values attached to the Lease, plus (iii) Taxes
imposed on Lessor relating to the Total Loss, if any.
After Lessor receives the Total Loss Payment, the Lease on the Equipment
subject to the Total Loss will terminate, and Lessor will transfer the
Equipment to Lessee on an "as is, where is" basis without recourse and
without representation or warranty (express or implied), except that the
Equipment will be clear of Lessor Liens.
(c) Insurance Proceeds. Proceeds received at any time by Lessor or Lessee
from Lessee's insurer on a Total Loss or Loss will be distributed promptly
as follows.
(i) Proceeds on a Total Loss will be distributed to Lessor, and Lessee
irrevocably appoints Lessor as Lessee's attorney-in-fact to endorse
checks directly relating to such proceeds. Such proceeds will reduce
or discharge Lessee's obligation to pay the Total Loss Payment, and
any excess of such proceeds over the Total Loss Payment will be
retained by Lessor.
(ii) Proceeds on a Loss other than a Total Loss will be distributed
to Lessee to reimburse it for the expense it actually incurs to
restore the Equipment (Lessee will provide Lessor with satisfactory
documentation of the actual restoration costs); provided however if
an Event of Default is continuing, the proceeds will be distributed
to Lessor, and Lessee irrevocably appoints Lessor as Lessee's
attorney-in-fact to endorse checks directly relating to such proceeds,
which will be applied against the Default Payment, if any, under
Paragraph 14.
8. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY.
(a) LESSOR LEASES THE EQUIPMENT TO LESSEE "AS IS". LESSEE SELECTED THE
EQUIPMENT USING ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS RELIANCE UPON ANY
STATEMENTS, REPRESENTATIONS, OR WARRANTIES MADE BY OR ON BEHALF OF LESSOR.
EXCEPT FOR LESSEE'S RIGHT OF QUIET POSSESSION, LESSOR MAKES NO WARRANTY OR
REPRESENTATION (EXPRESS OR IMPLIED) RELATING TO, WITHOUT LIMITATION: THE
DESIGN, QUALITY, OR CONDITION OF THE EQUIPMENT; MERCHANTABILITY OR FITNESS
OF THE EQUIPMENT FOR ANY PARTICULAR PURPOSE; TITLE TO THE EQUIPMENT;
INFRINGEMENT OR INTERFERENCE WITH INTELLECTUAL PROPERTY RIGHTS;
ACCOUNTING, FINANCIAL, OR TAX TREATMENT OR THE LIKE RELATING TO THE
EQUIPMENT OR THE LEASE; OR ANY OTHER WARRANTY OR REPRESENTATION ARISING
FROM
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COURSE OF DEALING OR USAGE OF TRADE LESSEE EXPRESSLY WAIVES ANY RIGHT TO
MAKE CLAIMS AGAINST LESSOR BASED ON BREACH OF WARRANTY OR BASED ON
MISREPRESENTATION.
(b) LESSOR IS NOT LIABLE FOR ANY LOSS OR DAMAGE DIRECTLY OR INDIRECTLY
ARISING FROM LESSEE'S POSSESSION, OPERATION, MAINTENANCE, OR REPAIR OF THE
EQUIPMENT. IN ANY EVENT, LESSOR IS NOT LIABLE FOR CONSEQUENTIAL, SPECIAL,
OR INCIDENTAL DAMAGES.
(c) Lessor assigns to Lessee (to the extent assignable) rights Lessor has
under warranties of a supplier or manufacturer of the Equipment, and such
rights will be automatically reassigned to Lessor upon return of the
Equipment to Lessor or upon repossession of the Equipment by Lessor.
(d) If more than one Lessee is named in a Lease, the liability of each is
joint and several.
9. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee represents and warrants
the following to Lessor.
(a) Legal Corporation. Lessee is a duly organized corporation under the
laws of its state of incorporation and is in good standing under the laws
of each jurisdiction in which it conducts business. Lessee has taken all
corporate actions and has obtained all necessary corporate approvals to
execute the Agreement, the Lease, and related documents.
(b) Legal Agreement. The Agreement and the Lease are legal, binding
obligations of Lessee and are enforceable against Lessee for the benefit
of Lessor and its successors and assigns. Lessee's performance of its
obligations do not and will not contravene (i) any law, regulation, or the
like or (ii) the provisions of, or constitute a default under, any other
agreement of Lessee.
(c) Legal Actions and Defaults. On the dates Lessee executes the Agreement
and the Lease, Lessee
(i) is not a party to pending actions (and knows of no threatened
actions) before a court, arbitrator, or government agency,
(ii) is not in default under an obligation of borrowed money, for the
deferred purchase price of property, or for the payment of rent under
any lease agreement, and
(iii) complies with all environmental laws, regulations, and standards
that either individually or in the aggregate would adversely and
materially affect Lessee's financial condition or its ability to perform
its obligations under the Agreement and the Lease.
(d) Financial Information. The financial information that Parent provided
and will provide to
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Lessor was and will be materially true and complete. As of the beginning
of the Lease Term, there has been no material adverse change in Parent's
financial condition since Lessor reviewed Parent's financial information
prior to execution of the Agreement. In the two preceding sentences, the
concept of "material" is defined under Generally Accepted Accounting
Principles ("GAAP").
10. FINANCIAL INFORMATION; OFFICER'S CERTIFICATE.
(a) Parent will provide Lessor the following financial information during
the Lease Term:
(i) within 120 days of the end of Parent's fiscal year, a consolidated
balance sheet of Parent (and its subsidiaries) and related statements
of income and cash flow, prepared under GAAP, and certified by Parent's
independent certified public accountant (or Form 10K if filed with the
Securities and Exchange Commission ("SEC"));
(ii) within 60 days of the end of each of Parent's first three fiscal
quarters, a consolidated balance sheet of Parent (and its subsidiaries)
and related statements of income and cash flow, prepared under GAAP,
and certified by, Parent's comptroller, chief financial officer, or
president (or Form 10Q if filed with the SEC);
(iii) within 30 days after filing, all reports, forms, and other
filings, if any, Parent makes to the SEC (or comparable government
agency in a foreign country); and
(iv) other financial information regarding the creditworthiness of
Parent as Lessor may reasonably request.
(b) Within 60 days of the end of each of Lessee's first three fiscal
quarters and within 120 days of the end of Lessee's fiscal year, Lessee
will provide a certificate of an authorized officer of Lessee stating: (i)
there exists no Event of Default under Paragraph 13; and (ii) there exists
no event with the lapse of time or the giving of notice or both would
constitute an Event of Default under Paragraph 13.
11. GENERAL INDEMNITY. Lessee agrees to defend, indemnify on an after-tax
basis, and hold harmless Lessor (including its officers, directors,
employees, agents, successors, and assigns) against claims and losses
(including reasonable legal expenses) related in any way to the Agreement,
the Lease, or the Equipment unless such claims or losses are directly
caused by the gross negligence or willful misconduct of Lessor. Lessor
will give Lessee prompt notice of a claim or action brought against Lessor
related to an indemnifiable event. Lessee at its expense will control the
defense of the claim or action, provided that: (i) no Event of Default is
continuing; (ii) Lessor must reasonably approve defense counsel selected
by Lessee (unless counsel is appointed by Lessee's insurer or
underwriter); (iii) Lessor must approve of any settlement, which approval
will not be unreasonably delayed or withheld; and (iv) Lessor at its
expense may elect to participate with Lessee in the defense.
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12. TAX INDEMNITY.
(a) Definitions for this Paragraph.
(i) "Lessor" includes Lessor's consolidated federal taxpayer group.
(ii) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, or its successor.
(iii) "MACRS Deductions" means the deductions under Section 168 of the
Code determined by the modified Accelerated Cost Recovery System on the
total invoice cost of any item of Equipment for its property class,
using the accelerated method in Section 168(b)(1) of the Code.
(iv) "Tax Loss" means, regarding the computation of Lessor's federal,
state, local, or foreign taxes:
(1) the benefits of MACRS Deductions are lost, delayed, disallowed,
or recaptured;
(2) Lessor becomes liable for additional tax because of a
prepayment of Rent or because a Modification is made to the
Equipment; or
(3) the statutory full-year marginal federal tax rate (including
any surcharge) for corporations increases above 35 percent (if such
tax rate decreases from 35 percent, Lessor will adjust accordingly
the Rent and Stipulated Loss Value).
(v) "Lessor's Net Return" means the originally contemplated after-tax
net return assumed in Lessor's economics with the same periodicity.
(vi) "Tax Indemnification Payment" means the tax adjustment (taking
into account applicable interest, penalties, additions, and taxes)
discounted at a rate necessary to maintain Lessor's Net Return
following a Tax Loss throughout the Lease Term.
(b) Representations and Warranties. Lessee represents and warrants that:
(i) the reasonably estimated useful life of the Equipment at the beginning
of the Lease Term exceeds the sum of the Interim and Base Lease Terms (and
any Renewal Term with fixed rent) by the greater of one year or 20 percent
of the estimated useful life; (ii) the reasonably estimated fair market
value of the Equipment at the end of the Base Lease Term (or at the end of
any Renewal Term with fixed rent) is at least 20 percent of the Total
Equipment Cost (as specified in the Lease), without considering any
increase or decrease for inflation or deflation during the Lease Term;
(iii) the Equipment will be used only in the United States as part of
Lessee's normal business operations; and (iv) the Equipment is, and will
be used by Lessee so as to remain during the Lease Term, property eligible
for MACRS Deductions, for so long as MACRS deductions are available under
the Code.
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(c) Tax Indemnification Payment. If a Tax Loss occurs, Lessor will notify
Lessee in writing, and Lessee will pay Lessor the required Tax
Indemnification Payment within 30 days of the notice. A Tax Loss occurs
upon the earliest of: (i) the occurrence of an event (such as a
disposition or change in use of the Equipment) that causes the Tax Loss;
(ii) Lessor's payment of the tax increase resulting from the Tax Loss;
(iii) the date on which the Tax Loss is realized by Lessor; or (iv) the
adjustment of Lessor's tax return to reflect the Tax Loss. Lessee has no
obligation to make a Tax Indemnification Payment on a Tax Loss arising
solely as a direct result of: (i) Lessor's failure to timely and properly
claim Tax Benefits in its tax return other than as a result of a change in
the Code or applicable regulations, unless in the opinion of Lessor's tax
counsel there is no reasonable basis for such claim; or (ii) Lessor's
failure to have sufficient taxable income before application of MACRS
Deductions to offset the full amount of such deductions, other than as a
result of a change in the Code or applicable regulations.
13. DEFAULT. An Event of Default means any of the following:
(a) Failure to Pay, Lessee fails to pay Rent or any other amount as it
becomes due under any Lease or under any other agreement between Lessor
and Lessee, and full payment is not received by Lessor within 5 days of
Lessor's written notice to Lessee.
(b) Liens; Insurance. Lessee fails to perform under Paragraphs 4(c)
[Lessee Liens], or Lessee fails to obtain and maintain throughout the
Lease Term the insurance required by Paragraph 6.
(c) Misrepresentation. Lessee's representations and warranties in
Paragraphs 2(b), 9, or 12(b) were materially inaccurate or misleading when
made.
(d) Assignments; Transfer. Lessee makes an unauthorized assignment of the
Agreement or the Lease, or Lessee makes an unauthorized transfer,
sublease, pledge, or the like of the Equipment.
(e) Corporate Existence. Lessee ceases to be an ongoing concern; Lessee
ceases to be in good standing under the laws of each jurisdiction in which
it conducts business, and such lack of good standing is not cured within
15 days of written notice from Lessor; Lessee terminates its corporate
existence or enters into a merger or consolidation in which it is not the
surviving entity; or Lessee transfers all or substantially all of its
assets (unless the entity acquiring the assets assumes all duties and
obligations of Lessee under the Lease, and Lessor is satisfied in its sole
discretion with the creditworthiness of the new entity).
(f) Insolvency; Bankruptcy. Lessee becomes insolvent; Lessee consents to
the appointment of a receiver, trustee, or the like for a substantial part
of its property; Lessee makes a general assignment for the benefit of
creditors; Lessee admits in writing its general inability to pay its debts
when due; Lessee takes action seeking relief under bankruptcy or any
insolvency law; or an action under bankruptcy or any insolvency law is
begun against Lessee, and the action is not dismissed within 30 days.
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(g) Cross Default. Lessee does not cure within 30 days a default with
respect to third persons under an obligation in excess of $500,000 for
borrowed money, for the deferred purchase price of property, or for the
payment of rent under any lease agreement.
(h) Financial Covenants.
1) Parent's leverage ratio exceeds 2:1 during the Lease Term.
Leverage means Total Liabilities to Total Shareholders' Equity, as
such terms are defined by GAAP.
2) Parent makes a payment of dividends,
3) Xxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx fail to directly or
indirectly maintain an aggregate of at least 25% ownership of
Parent during the Lease Term.
(i) Compliance Certificate. Lessee fails to provide the officer's
certificate required under Paragraph 10(b) within ten days of written
notice from Lessor.
(j) Other Failure. Lessee fails to perform or observe any other
obligation, condition, or requirement under the Lease or under any other
agreement between Lessor and Lessee, and the failure is not cured within
30 days after the earlier of (i) the date on which Lessee learns of the
failure or (ii) the date of notice by Lessor to Lessee.
14. REMEDIES. If an Event of Default occurs, Lessor may declare a default
("Default") by written notice to Lessee. Lessor may declare a Default on
all Leases under the Agreement or, alternatively, on some or all of the
Equipment or Leases. If Lessor declares a Default, Lessor may pursue one
or more of the following remedies.
(a) Default Payment. Without seeking return of the Equipment and upon
written notice to Lessee specifying a payment date not earlier than 10
days, Lessor may demand that Lessee pay a Default Payment to Lessor.
Lessee acknowledges that the Default Payment represents liquidated damages
necessary to compensate Lessor for the loss of a bargain caused by
Lessee's Default and does not constitute a penalty. The Default Payment is
an amount equal to the Rent and other amounts due Lessor up to and
including the next Rent payment date plus the higher of:
(i) the Stipulated Loss Value defined in Paragraph 7(b); or
(ii) the present value of future Rents to the end of the Base Lease
Term (or, as applicable, a Renewal Term) plus Lessor's reasonable then
current assessment of the Fair Market Value of the Equipment at the end
of the Base Lease Term (or, as applicable, a Renewal Term), both
discounted at six percent. Fair Market Value means the price that a
willing, knowledgeable buyer would pay for the Equipment in an arm's
length transaction to a willing, knowledgeable seller under no
compulsion to sell, assuming that the Equipment is installed and in use
and is in the condition required by Paragraph 5 of the Agreement.
12
12
If Lessee fails to make the Default Payment by the specified payment date,
Lessee will pay to Lessor late charges as calculated in Paragraph 3(c).
After Lessor receives the full amount of the Default Payment (including
any late charges and any Taxes imposed on Lessor related to the transfer
of the Equipment to Lessee), the Lease (or part of it) subject to the
Default will terminate, and Lessor will transfer the applicable Equipment
to Lessee on an "as is, where is" basis without recourse and without
representation or warranty (express or implied), except that the Equipment
will be clear of Lessor Liens.
(b) Return or Repossession of Equipment.
(1) Upon written notice to Lessee, Lessor may require Lessee at
Lessee's expense to promptly return the Equipment according to the
return provisions of the Lease. Alternatively, Lessor may require
Lessee at its expense to place the Equipment in the condition
required by the return provisions of the Lease and to gather the
Equipment at the location or locations where the Equipment was
originally delivered (or at a location or locations designated by
Lessor in reasonable proximity to the original delivery points);
Lessor may then take immediate possession of the Equipment by
summary proceedings or otherwise and may remove it from Lessee's
location, with no liability to Lessor.
(2) Upon return or repossession of the Equipment, Lessor may sell
or re-lease the Equipment in a commercially reasonable manner at a
public or private sale. Lessor will use commercially reasonably
efforts in good faith to mitigate the damages caused by Lessee's
Default. Lessor's entire obligation to attempt to mitigate damages
is stated in this subparagraph, and Lessee waives whatever
additional rights it might have under laws or regulations to
require mitigation.
(3) If after making commercially reasonable efforts Lessor is not
able to sell or re-lease the Equipment, Lessee will pay to Lessor,
upon 10 days written notice, the Default Payment defined in
Paragraph 14(a), and the Equipment will be transferred to Lessee
according to Paragraph 14(a).
(4) If Lessor is able to sell or re-lease the Equipment, Lessee
will pay Lessor, upon 10 days written notice, the Default Payment
defined in Paragraph 14(a) minus the Net Proceeds. The Net Proceeds
of a sale are: (i) the total consideration received by Lessor on
the sale; (ii) minus Lessor's incidental damages associated
directly or indirectly with the sale (including reasonable charges
and expenses for repair and restoration of the Equipment and of the
landlord's premises, storage, freight, advertising, legal services,
appraisal services, financing, sales commissions, and rent or other
fees paid to a landlord). The Net Proceeds of a re-lease are: (i)
the present value of aggregate rents on the re-leased equipment
throughout the remainder of the Lease Term under this Agreement
(discounted at six percent); (ii) minus Lessor's incidental damages
associated directly or indirectly with the re-lease (including
reasonable charges and expenses of the type described in the
previous sentence). In no event will Lessor be required to make a
payment to Lessee under this subparagraph (b)(4).
Lessor /s/
----------
Lessee /s/
----------
13
13
(c) Cure By Lessor. Lessor may cure a Default or Event of Default (without
relieving Lessee of its other obligations under the Agreement or the
Lease), and Lessee will reimburse Lessor for all expenses incurred
(including reasonable attorney fees).
(d) Other Remedies. Lessor may pursue remedies available to it at law or
in equity, including those under UCC Article 2A and suits for damages and
for specific performance.
(e) Election of Remedies. Lessor's remedies are cumulative. Lessor may
pursue one or more remedies separately or concurrently. Lessor may pursue
the same or different remedies with respect to individual items of
Equipment within a Lease and with respect to individual Leases under the
Agreement. Lessor's election of one remedy does not bar its pursuit of
other remedies, provided that Lessor is not entitled to place itself in a
better position than it would have been in had Lessee fully performed
under the Lease.
(f) Expenses; Agency. Lessee will pay Lessor's commercially reasonable
charges, expenses, commissions, and the like (including reasonable
attorney fees and any resulting Taxes) to pursue remedies under this
paragraph. Lessee irrevocably appoints Lessor as Lessee's agent to execute
and file documents necessary for Lessor to pursue remedies under this
paragraph, except for those documents relating to actions at law or in
equity.
(g) Continuing Obligations. While Lessor is pursuing its remedies under
this paragraph, Lessee remains liable under the Agreement and all Leases
for all obligations that are not subject to the Default.
15. END-OF-TERM OPTIONS.
Provisions, if any, for renewal of a Lease, purchase of the Equipment, and
return of the Equipment are specified in the Lease.
16. GENERAL.
(a) Assignment. Without Lessor's prior written consent, Lessee may not
assign a Lease in whole or in part, nor may Lessee transfer, sublease, or
pledge the Equipment in whole or in part; except that with 30 days prior
notice to Lessor, Lessee may assign a Lease to a wholly-owned subsidiary
of Lessee. In all cases of Lessee's assignment, transfer, sublease, and
pledge (including an assignment to a wholly-owned subsidiary), Lessee will
remain obligated under the Lease unless specifically released by Lessor.
Lessor may assign a Lease in whole or in part without the consent of, or
prior notice to, Lessee.
(b) Timeliness. Time is of the essence regarding the Agreement and the
Lease.
(c) Non-Waiver. No course of dealing or failure to strictly enforce a
provision of the Agreement or any Lease constitutes a waiver of the future
performance of that provision.
Lessor /s/
-----------
Lessee /s/
-----------
14
14
(d) Severability. If a provision of the Agreement or the Lease is held
unenforceable, all other provisions remain in force.
(e) Governing Law; Venue; Jury Trial. The Agreement and the Lease are
being delivered in and will be performed in the State of New York, and the
Agreement and the Lease are governed by New York State law, without giving
effect to principles of conflicts of law. Lessor and Lessee consent to the
exclusive jurisdiction of the New York State courts in New York County and
the United States courts for the Southern District of New York. Lessor and
Lessee waive any right to a jury trial.
(f) Waiver of Certain Sections of UCC Article 2A. Lessee waives all
rights and remedies conferred upon it under Sections 303 and 508 through
522 of UCC Article 2A.
(g) Survival of Obligations. After termination of the Lease, the
obligations in the Agreement of Paragraphs 3 (b)[Taxes], 11 [General
Indemnity], and 12[Tax Indemnity] remain in effect for Taxes, claims,
losses, and Tax Losses that arise during or relate to the Lease Term.
(h) Notices. Notices will be in writing and addressed to the person
indicated on the Lease, and the parties may change the names and addresses
from time to time by prior written notice. A notice may be delivered by
one of the following methods and will be considered given on the date
indicated: (i) by personal delivery, on the date delivered; (ii) by
overnight courier, on the date shown on the delivery receipt; (iii) by
fax, on the date receipt is confirmed by return fax; or (iv) by certified
or registered mail, on the date shown on the return receipt.
(i) Execution. The Agreement and the Lease may be executed in
counterparts. If executed in counterparts, all counterparts constitute one
and the same instrument. The Agreement and the Lease are not effective
unless and until accepted and executed by Lessor.
15
15
(j) Entire Agreement. The Agreement and the Lease contain the entire
understanding of Lessor and Lessee and supersede all prior or
contemporaneous negotiations and representations (written or oral) between
Lessor and Lessee and any broker, supplier, salesman, or the like. Lessor
and Lessee may amend the Agreement or the Lease only in writing signed by
authorized persons.
NYNEX CREDIT COMPANY UNIVERSAL SEISMIC ASSOCIATES, INC.
/s/ XXXX X. XXXXXXXXX /s/ XXXXXX X. XXXXXXX
----------------------------------- --------------------------------------
(Signature) (Signature)
Xxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxx
----------------------------------- --------------------------------------
(Typed Name) (Typed Name)
Vice President - Marketing Chief Financial Officer
----------------------------------- --------------------------------------
(Title) (Title)
November 8, 1995 October, 19, 1995
----------------------------------- --------------------------------------
(Date) (Date)
UNIVERSAL SEISMIC ACQUISITION, INC.
/s/ XXXXXX X. XXXXXXX
--------------------------------------
(Signature)
Xxxxxx X. Xxxxxxx
--------------------------------------
(Typed Name)
Chief Financial Officer
--------------------------------------
(Title)
October 19, 1995
--------------------------------------
(Date)
Lessor /s/
-----
Lessee /s/
-----
16
LEASE #95-15a
This Lease dated October 2, 1995 is made under the Master Lease Agreement
("Agreement") dated October 2, 1995 between NYNEX Credit Company ("Lessor") and
the Lessee identified below.
I. LESSEE
Name, Address Lessee Contact:
------------- ---------------
Universal Seismic Associates, Inc. Name: Xx. Xxx Xxxxxxx
Universal Seismic Acquisition, Inc. Title: Chief Financial Officer
00000 Xxxx Xxx Xxxxx, Xxxxx 000 Tel#: (000) 000-0000
Xxxxxxx, Xxxxx 00000 Fax#: (000) 000-0000
Federal I.D. #'s:
-----------------
Universal Sisnmic Associates, Inc.: 00-0000000
Universal Seismic Acquisition, Inc.: 00-0000000
II. NOTICES (Agreement, Paragraph 16(g))
Lessor Lessee
------ ------
NYNEX Credit Company Universal Seismic Associates, Inc.
000 Xxxx Xxxxxx Universal Seismic Acquisition, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00000 Xxxx Xxx Xxxxx, Xxxxx 000
Attn: Asset Administrator Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxx Xxxxxxxx
III. EQUIPMENT (Agreement, Paragraph 1)
SUPPLIER: Input/Output, Inc.
--------- 00000 Xxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxx 00000
LOCATION: Within the continental United States
---------
Lessor /s/
-----
Lessee /s/
-----
17
2
EQUIPMENT DESCRIPTION:
Serial Make,
Quantity No. Manufacturer Model No. Cost
--------------------------------------------------------------------------------
See attached Detailed Equipment List
Total Equipment Cost $4,279,874.00
IV. LEASE TERM (Agreement, Paragraph 2)
Interim Lease Term Base Lease Term
begins: November 2, 1995 begins: December 1, 1995
ends: December 1, 1995 ends: December 1, 1999
V. RENT (Agreement, Paragraph 3)
During Interim Lease Term:
Per Diem Rent Factor: 0.072044%
Rent per day: $3,083.40
Sales Tax per day: $*
During Base Lease Term:
Monthly Rent Factor: 2.16323%
Rent ( X monthly; quarterly): $92,501.90
Sales Tax ( X monthly; quarterly): $*
Payable in X advance; in arrears
VI. INSURANCE
Property Insurance (Agreement, Paragraph 6(a))
Amount: (see Paragraph 6(a))
Maximum Deductible/Self-Insurance: $100,000
General Liability Insurance (Agreement Paragraph 6(b))
Amount: $5,000,000
Maximum Deductible/Self-Insurance: $100,000
* Sales tax to be calculated at time of billing.
/s/ Lessor
-----
/s/ Lessee
-----
18
3
VII. ACCEPTANCE: REPRESENTATIONS AND WARRANTIES
(a) Lessee irrevocably accepts the Equipment described above according to
Paragraph 2(b) of the Agreement.
(b) Lessee confirms, as of the execution date of this Lease, its
representations and warranties in Paragraphs 9 and 12 of the Agreement.
VIII. END-OF-TERM OPTIONS
(a) At the end of the Base Lease Term, so long as no Event of Default is
continuing, Lessee must elect one of the following options:
(i) purchase all the Equipment; or
(ii) renew the Lease for one or more terms, after which time either
purchase or return all the Equipment.
(b) If Lessee fails to give timely notice (as specified below) of its election
of the purchase or return option, Lessee will be deemed to have elected the
renewal option.
(c) Lessor and Lessee anticipate that they will execute additional Leases
(Lease # 95-15b, Lease # 95-15c, and so forth) for multiple takedowns of
Equipment. Lessee's election of an end-of-term option for this Lease # 95-15a
will govern the end-of-term options for all Leases under Lease # 95-15. That
is, the end-of-term option for Lease # 95-15b, Lease # 95-15c, and so forth
will be the same end-of-term option that Lessee elects for this Lease # 95-15a.
1. RENEWAL OPTION.
(a) To exercise its renewal option, Lessee must give Lessor irrevocable written
notice at least 180 days before the end of the Base Lease Term or, if
applicable, a Renewal Term.
(b) Lessee's first renewal option is for a period of one year ("First Renewal
Term") at a monthly Rent equal to 1.720005 percent of the Total Equipment Cost
specified in the Lease. At the end of the First Renewal Term, so long as no
Event of Default is continuing, Lessee has the option to renew the Lease for
successive periods of one year (each a "Successive Renewal Term") at the then
Fair Market Rent. "Fair Market Rent" means the rent that the Equipment would
command on the open market, assuming the Equipment is installed and in use and
is in the condition required by Paragraph 5 of the Agreement. Fair Market Rent
will be determined by mutual agreement between Lessor and Lessee. If Lessor and
Lessee are unable to reach agreement, Lessor will select an appraiser
reasonably acceptable to Lessee.
/s/ Lessor
----------
/s/ Lessee
----------
19
4
The valuation of the appraiser will become the binding Fair Market Rent. Lessee
will pay the appraiser's fees and expenses.
2. PURCHASE OPTION.
(a) To exercise its option to purchase all Equipment listed on a Lease, Lessee
must give Lessor irrevocable written notice at least 180 days before the end of
the Base Lease Term or, if applicable, a Renewal Term.
(b) The purchase price at the end of the Base, Lease Term will be the greater
of: (i) 20 percent of the Total Equipment Cost (as specified in the Lease); or
(ii) the then Fair Market Value of the Equipment. The purchase price at the end
of a Renewal Term will be the then Fair Market Value. In addition to this
purchase price, Lessee will reimburse Lessor for all Taxes imposed on Lessor
(excluding taxes on any gain on the sale), plus all costs and expenses
(including reasonable attorney fees) payable by Lessor on the sale. Fair Market
Value means the price that a willing, knowledgeable buyer would pay for the
Equipment in an arm's length transaction to a willing, knowledgeable seller
under no compulsion to sell, assuming that the Equipment is installed and in
use and is in the condition required by Paragraph 5 of the Agreement. Fair
Market Value will be determined by mutual agreement between Lessor and Lessee.
If Lessor and Lessee are unable to reach agreement, Lessor will select an
appraiser reasonably acceptable to Lessee. The valuation of the appraiser will
become the binding Fair Market Value. Lessee will pay the appraiser's fees and
expenses.
(c) Upon receipt of the full purchase price and all other amounts then due
under the Lease, Lessor will transfer title to the Equipment to Lessee on an
"as is, where is" basis, without recourse and without representation or
warranty (express or implied), except Lessor warrants that the Equipment is
clear of Lessor Liens.
3. RETURN OF THE EQUIPMENT.
(a) To exercise its option to return all Equipment listed on a Lease at the end
of a Renewal Term, Lessee must give Lessor irrevocable written notice at least
180 days before the end of a Renewal Term.
(b) Show Rights. Upon receiving reasonable notice from Lessor in the period 180
days before expiration or earlier termination of the Lease and without
disruption to Lessee's business, Lessee will make the Equipment available for
on-site operational inspections by potential purchasers, and Lessee will
provide personnel, power, and other operational requirements necessary to
demonstrate the electrical, mechanical, and operating systems of each item of
the Equipment.
(c) Restoration of the Equipment. By the end of the Lease Term, Lessee will at
its expense:
/s/ Lessee
-----
/s/ Lessee
-----
20
5
(i) remove all markings placed by Lessee on the Equipment that are not
necessary for the future installation, use, maintenance, or repair of the
Equipment; (ii) ensure that the Equipment meets legal and regulatory
requirements necessary for the sale and continued commercial use of the
Equipment; (iii) ensure that the Equipment is clear of all Lessee Liens; and
(iv) restore the Equipment to its original condition as of the beginning of the
Lease Term (reasonable wear and tear resulting solely from proper use excepted)
in accordance with Paragraph 5(a) of the Agreement, including but not limited
to the following:
- ensure that the Equipment is clean, cosmetically
acceptable, and structurally sound with no noticeable
cracks, scratches or other visual, electrical or
mechanical damage. The Equipment must be in good
operating order, repair and condition free of any
hazardous waste material, and free from all rust and
corrosion, with no missing or damaged parts;
- ensure that all of the Equipment's systems, including
its electrical and telemetry systems, are able to
operate as designed in accordance with manufacturer's
specifications and within designed tolerances.
(d) Return. Lessee at its expense will:
(1) At least 120 days before end of the Lease Term, provide to Lessor
a detailed inventory of all components of the Equipment. The
inventory should include, but not be limited to, a listing of model
and serial numbers for all components.
(2) At least 90 days before the end of the Lease Term, provide (or
cause the suppliers or manufacturers to provide) to Lessor the
following documents: (i) one set of service, operating, and software
manuals including replacements and additions, such that all
documentation is completely up-to-date; and (ii) one set of documents
detailing configuration, operating requirements, maintenance and
inspection records, and other technical data concerning the set-up
and operation of the Equipment, including replacements and additions,
such that all documentation is completely up-to-date.
(3) At least 90 days before the end of the Lease Term, cause the
manufacturer's representative or a qualified equipment maintenance
provider acceptable to Lessor to perform a comprehensive physical
inspection to test all material and workmanship of the Equipment and
provide an in-depth field report to Lessor; if during the inspection,
the authorized inspector finds that any of the Equipment is defective
(reasonable wear and tear resulting solely from proper use excepted)
or does not operate within the supplier's or manufacturer's
specifications, Lessee will make repairs or replace all defects with
supplier or manufacturer approved parts; and after corrective
measures are completed, Lessee will arrange for a follow-up
inspection of the Equipment by the same inspector, with a copy of the
follow-up inspection report provided to Lessor.
/s/ Lessor
-----
/s/ Lessee
-----
21
6
(4) At least 30 days before the end of the Lease Term, provide for an
inspection and Fair Market Value appraisal to be performed by an
appraiser selected by Lessor (and, if no Event of Default is
continuing, reasonably acceptable to Lessee) and send the results of
the inspection and appraisal to Lessor.
(5) Return each item of Equipment with an in-depth field service
report detailing the inspection outlined in subparagraph 3 above. The
report will certify that the Equipment has been properly inspected,
examined, and tested and that it operates within the supplier's and
manufacturer's specifications.
(6) Return the equipment with a certificate from the manufacturer that
the Equipment (including any software): i) has been tested and is
functioning properly; has an operating system at the current level;
and ii) is qualified for manufacturer maintenance at standard rates
without any reconditioning, initial set-up, or license charges. If
Lessee does not provide the certificate, Lessor has the right to have
the Equipment tested, and Lessee will promptly pay for the cost of:
i) such testing; ii) any parts, shipping materials, or repairs
necessary to bring the Equipment to its original performance
condition (ordinary wear and tear resulting solely from proper use
excepted); and iii) any updates necessary to bring the operating
system to current level.
(7) Ensure that all inspections, overhauls, rebuilding, or
certifications known to be or expected to be due within 12 months are
completed prior to return.
(8) Disassemble and pack the Equipment according to the supplier's
and manufacturer's specifications and recommendations, to include the
following: (i) remove all process fluids from the Equipment and
dispose of them in accordance with then-current waste disposal laws
and regulations (at no time are materials which could be considered
hazardous waste by any regulatory authority to be shipped with the
Equipment); and (ii) fill all internal fluids (such as lube oil and
hydraulic fluid) to operating levels and secure filler caps and seal
all disconnect hoses to avoid spillage.
(9) Within 10 days of the end of the Lease Term, transport the
Equipment to not more than ten individual locations in the
continental United States selected by Lessor, and provide the
insurance required by Paragraph 6 of the Agreement prior to and
during transport of the Equipment.
(10) If requested by Lessor, provide insurance and safe, secure
storage for the Equipment for 90 days after the end of the Lease
Term.
(e) Failure to Return. In addition to Lessor's other remedies in Paragraph 14 of
the Agreement, if Lessee fails to return the Equipment within the required time
period or fails to restore the Equipment to the proper condition specified in
subparagraph (b) above, Lessee will
/s/ Lessor
-----
/s/ Lessee
-----
22
7
continue to pay Rent at the last prevailing rate for the period of delay in
returning the Equipment or for the period of time reasonably necessary for
Lessor (at Lessee's expense) to restore the Equipment to its proper condition.
Lessor's acceptance of this continuing Rent does not constitute a renewal of
the Lease or a waiver of Lessor's right to prompt return of the Equipment in
proper condition.
IX. ATTACHMENTS
Attached to and included in this Lease are the following:
-- Detailed Equipment List
-- Table of Stipulated Loss Values
-- Assignment of Purchase Agreement and Consent
-- Opinion of Lessees' Counsel
-- Secretary's Certificates
-- Guaranty
-- Opinion of Guarantor's Counsel
-- UCC Financing Statements
NYNEX CREDIT COMPANY UNIVERSAL SEISMIC ASSOCIATES, INC.
/s/ XXXX X. XXXXXXXXX /s/ XXXXXX X. XXXXXXX
------------------------------------- ------------------------------------
(Signature) (Signature)
Xxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxx
------------------------------------- ------------------------------------
(Typed Name) (Typed Name)
Vice President - Marketing Chief Financial Officer
------------------------------------- ------------------------------------
(Title) (Title)
November 8. 1995 October 19, 1995
------------------------------------- ------------------------------------
(Date) (Date)
UNIVERSAL SEISMIC ACQUISITION, INC.
/s/ XXXXXX X. XXXXXXX
------------------------------------
(Signature)
Xxxxxx X. Xxxxxxx
------------------------------------
(Typed Name)
Chief Financial Officer
------------------------------------
(Title)
October 19, 1995
------------------------------------
(Date)
23
page l of l
LEASE #95-15a
LESSOR: NYNEX CREDIT COMPANY
LESSEE: UNIVERSAL SEISMIC ASSOCIATES, INC.
DETAILED EQUIPMENT LISTING
Vendor:
Input / Output, Inc.
00000 Xxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Serial
Item# Quantity Description Number
================================================================================
1 1 Data Transcriber Unit (DTU) See attached SIN Listing
for all Equipment
2 1 Tape Transport Module (TTM)
3 1 Sentry Workstation & Software
4 1 OSO GS612 Plotter & Rasterizing Software
5 2 Truck Mount Power Supply Module
6 2 Truck Mount Power Inverter Module
7 1 Central Transmitter Receiver (CTR)
8 300 Remote Seismic Recorder (RSR) RSR-24
9 400 Solar Battery Pack (SBP)
10 6 Remote Deployment Terminal (RDT)
11 6 Battery Charger (BCM)
12 14 Data Collector Unit (DCU)
Lessor: /s/
------
Lessee: /s/
------
24
EQUIPMENT LISTING SERIAL NUMBERS
----------------- --------------
1 Data Transcriber Unit N/A
1 Tape Transport Module 62
1 Sentry Workstation S7012 2682939
& Software 26-R2863, 103841
1 OTO GS612 Plotter 101300/374
& Raterizing Software
2 Truck Mount Power Supply 95290S6747 9S30056759
2 Truck Mount Power Inverter Module F0405 F0435
1 Central Transmitter Receiver 1
300 RSR-24's See attached Exhibit A
400 Solar Battery Packs See attached Exhibit a
6 Battery Chargers 54 83 112 116 153
162
14 Data Collector Units 5 6 7 8 9
12 13 14 15 16
20 21 17 19
3 Remote Deployment Terminals (RDT)
3 Laptop Deployment Terminals (ROT) 23740 23742
1 Spectrum Analyzer
25
EXHIBIT A
300 RSR SERIAL NUMBERS
0001 0024 0046 0069 0090 0113 0133 0153 0173 0193
0002 0025 0047 0070 0091 0114 0134 0154 0174 0194
0003 0026 0048 0071 0093 0115 0135 0155 0175 0195
0004 0027 0049 0072 0094 0116 0136 0156 0176 0196
0006 0028 0050 0073 0095 0117 0137 0157 0177 0197
0007 0029 0051 0075 0096 0118 0138 0158 0178 0198
0008 0030 0052 0076 0097 0119 0139 0159 0179 0199
0009 0031 0053 0077 0098 0120 0104 0160 0180 0200
0011 0032 0054 0078 0101 0121 0141 0161 0181 0201
0013 0034 0055 0079 0102 0122 0142 0162 0182 0202
0014 0035 0057 0080 0103 0123 0143 0163 0183 0203
0015 0036 0058 0081 0104 0124 0144 0164 0184 0204
0016 0037 0059 0082 0105 0125 0145 0165 0185 0205
0017 0038 0061 0083 0106 0126 0146 0166 0186 0206
0018 0040 0062 0084 0107 0127 0147 0167 0187 0207
0019 0041 0063 0085 0108 0128 0148 0168 0188 0208
0020 0042 0064 0086 0109 0129 0149 0169 0189 0209
0021 0043 0065 0087 0110 0130 0150 0170 0190 0210
0022 0044 0067 0088 0111 0131 0151 0171 0191 0211
0023 0045 0068 0089 0112 0132 0152 0172 0192 0212
16134 16160 16186 16211
16135 16161 16187 16212
16136 16162 16188 16213
16137 16163 16189 16214
16138 16164 16190 16215
16139 16165 16191 16216
16140 16166 16192 16217
16141 16167 16193 16218
16142 16168 16194 16220
16143 16169 16195 16221
16144 16170 16196 16222
16145 16171 16197 16223
16146 16172 16198 16224
16147 16173 16199 16225
16148 16175 16200 16226
16149 16176 16201 16227
16150 16177 16202 16228
16151 16178 16203 16229
16152 16179 16204 16230
16153 16180 16205 16231
16154 16182 16206 16232
16155 16183 16207 16233
16156 16184 16208 16234
16157 16185 16209 16235
16158 16210 16236
16159
26
Exhibit B
400 Solar Battery Packs Serial Numbers
22404 22406 22412 22417 22443
22409 22415 22408 24162 24163
24153 24161 24144 24152 24160
24136 24151 24154 24138 24145
24139 24141 24133 24137 24140
24150 24132 24155 24129 24127
24128 24135 24125 24131 24126
24159 24149 24148 24156 24157
24158 24164 24165 22432 22451
22453 22457 22452 22433 22430
22431 22428 22411 22405 22403
22410 22416 22407 22402 22397
22448 22361 23998 23999 23989
23997 23980 23988 23990 23996
23981 23987 23979 23991 23995
24000 23978 23986 23969 23970
23994 24001 23992 23993 22429
23985 22426 22438 22425 22437
22434 22455 22414 22456 22388
22413 24147 24146 24142 24143
24130 24134 23951 23952 23968
23971 23977 23976 23983 23984
23965 23975 23966 23982 23963
23972 23964 23957 23974 23973
23980 23959 23953 23954 23952
23951 23958 23957 23945 23936
23955 23956 23953 23948 23950
24375 24376 23857 24385 24393
24374 24411 23929 24402 24394
24377 24383 24384 24392 24395
24382 24373 24403 24404 24401
24391 24396 24386 24372 24378
24400 24397 24410 24387 24381
24406 24409 24405 24379 24380
24407 24399 24390 24389 24388
24408 22790 24371 22575 22749
22506 23214 24398 23213 22482
23222 22781 22767 22743 23215
22476 22751 22795 22481 22762
23227 22768 22748 22752 22789
22472 22759 23223 22761 22487
22760 22483 22769 22485 22501
22798 22786 22788 22468 22787
22754 18320 22758 26726 26743
26767 26753 22477 26740 26744
26748 26746 26717 26745 26731
26749 26755 26756 26764 26739
26724 26763 26725 26757 26742
26735 26760 26752 26736 26733
26785 26751 26773 26758 26732
26759 26788 26762 26738 26761
26765 26727 26734 23912 23911
26750 23892 26754 23901 23902
23884 23918 23919 23910 23903
23883 23885 23893 23894 23900
23882 23904 23913 23890 23881
23909 23905 23891 23914 23917
23899 23887 23895 23880 23916
23895 23898 23908 23907 23915
22897 23888 23886 24490 24489
23889 24468 23906 24480 24481
24455 24457 23879 24488 24482
24458 24465 24474 24475 24479
24459 24487 24491 Z4469 24460
24456 24483 24467 24492 24455
24477 24471 24478 24461 24453
24473 24476 24486 24485 24493
24472 24463 24464 24454 24416
24470 24434 24484 24425 24417
24435 24445 24462 24419 24418
24444 24438 24426 24427 24424
24443 24452 24451 24423 24432
24446 24419 24433 24442 24437
24422 24431 24414 24441 24448
24428 24421 24413 24412 24450
26876 26905 24438 24430 24439
26879 24429 24420 24447 24440
26908 26909 26872 26898 26890
26907 26871 24449 26881 26889
26906 26884 26899 26900 26882
26880
26923
27
ASSIGNMENT OF PURCHASE AGREEMENT
AND
CONSENT
1. DEFINITIONS.
(a) Assignment Agreement: this Assignment of Purchase Agreement and Consent.
(b) Lessor: NYNEX Credit Company, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, a
Delaware corporation, and its successors and assigns.
(c) Lessee: Universal Seismic Associates, Inc. and Universal Seismic
Acquisition, Inc., 00000 Xxxx Xxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000.
(d) Lease: Lease #95-15a under the Master Lease Agreement between Lessor and
Lessee, dated as of October 2, 1995.
(e) Vendor: Input/Output, Inc., 00000 Xxxx Xxxxx Xxxxx, Xxxxxxxx, XX 00000.
(f) Purchase Agreement: Letter Agreement dated August 29, 1995 between Global
Charter Corporation and Lessee and attached Quotation Number 5212-C dated July
21, 1995 between Vendor and Lessee.
(g) Equipment: as identified in the Purchase Agreement.
(h) Acceptance of the Equipment: means that the Lessee represents and warrants
that the Equipment: (i) has been delivered to and is in the possession of
Lessee; (ii) has been fully inspected by Lessee or its qualified agent; (iii)
is suitable for the purpose intended by Lessee; (iv) is in good order,
operating condition, and repair and has been properly installed (subject to
minor undischarged obligations of suppliers, manufacturers, or installers under
their agreements and warranties); (v) meets all recommended or applicable
safety and environmental laws, regulations, and standards; (vi) is clear of
Lessee Liens (as defined in Paragraph 4 of the Master Lease Agreement); and
(vii) has been insured as required by Paragraph 6 of the Master Lease
Agreement.
2. ASSIGNMENT.
(a) Lessee assigns to Lessor all Lessee's right, title, and interest in
the Purchase Agreement (including any warranties and guarantees), and Lessor
accepts the assignment; provided that, other than Lessor's obligation to pay
the purchase price for the Equipment in accordance with Paragraph 3 below,
Lessee agrees that none of the duties or obligations of Lessee under the
Purchase Agreement (or other agreements of any nature between Vendor and
Lessee) have been assigned to or assumed by Lessor. Lessee remains liable to
the Vendor to
28
- 2 -
perform all duties of the "purchaser" under the Purchase Agreement as if this
Assignment Agreement had not been executed.
(b) Lessee will promptly execute and deliver further documents and take
further actions that Lessor reasonably requests to obtain the full benefits of
this Assignment Agreement.
(c) Lessee will not enter into an agreement with the Vendor that would
amend or terminate in any way the Purchase Agreement without the prior written
consent of Lessor.
(d) During the Lease Term under the Lease, so long as no Event of Default
continues under the Lease, Lessee at its expense is authorized in Lessor's
name to demand and accept the service on the Equipment that the Vendor is
obligated to provide under the Purchase Agreement.
3. ACCEPTANCE OF EQUIPMENT; PAYMENT; TITLE.
(a) Lessee will immediately inspect the Equipment upon delivery to ensure
conformance with Vendor's obligations under the Purchase Agreement. According
to the Lease, title to the Equipment will vest in Lessor upon Lessee's
Acceptance of the Equipment, and at that time Lessor will pay Vendor the
purchase price specified in the Purchase Agreement. (If Lessee has made partial
payments of the purchase price to Vendor, Lessor will reimburse Lessee for the
partial payments and pay to Vendor the balance of the purchase price, up to the
Total Equipment Cost specified in the Lease.)
(b) Lessor's obligation to purchase and pay for the Equipment is
conditioned on Lessee's compliance with the Lease. If Lessee does not comply to
Lessor's satisfaction, Lessor's obligation to purchase the Equipment will
terminate without further action and without liability of Lessor to Lessee or
to Vendor, and Lessee will defend, indemnify, and hold harmless Lessor against
all claims and losses (including reasonable legal expenses) arising out of
Lessor's execution of this Assignment Agreement.
4. LESSEE'S REPRESENTATIONS AND WARRANTIES.
Lessee represents and warrants that: (i) the Purchase Agreement is now
fully in effect and is enforceable in accordance with its terms, a true and
complete execution copy of which Lessee has delivered to Lessor; (ii) the
Purchase Agreement constitutes the entire understanding between Lessee and
Vendor regarding the purchase of the Equipment; (iii) neither Lessee nor Vendor
is in default under the Purchase Agreement; (iv) Lessee has the legal right and
has obtained all necessary corporate approvals to assign the Purchase Agreement
to Lessor; and (v) it will defend Lessor's title to the Equipment against any
person (except title claims arising as a direct result of Lessor's actions).
29
- 3 -
5. LESSEE'S INDEMNITY.
Lessee agrees to defend, indemnify, and hold harmless Lessor (its agents,
successors and assigns) against all claims and losses (including reasonable
legal expenses) arising out of or relating to Lessee's obligations under this
Assignment Agreement.
6. VENDOR'S CONSENT.
(a) Vendor consents to the assignment by Lessee to Lessor of all of the
Lessee's right, title, and interest in the Purchase Agreement.
(b) Other than Lessor's obligation to pay the purchase price for the
Equipment in accordance with Paragraph 3 above, Vendor agrees that none of the
duties or obligations of Lessee under the Purchase Agreement (or other
agreements of any nature between Vendor and Lessee) have been assigned to or in
any manner assumed by Lessor.
(c) Vendor agrees that, on Acceptance of the Equipment and payment of the
full purchase price, title to the Equipment vests in Lessor, and at that time
Vendor will deliver to Lessor the following documents:
(i) an original xxxx of sale signed by Vendor in the form of
Attachment A to this Assignment Agreement for each item of
Equipment, warranting good title clear of all liens, claims, and
encumbrances;
(ii) a certificate of origin for each item of Equipment (if
transportation equipment or if the Equipment is not "U.S.
made"); and
(iii) an invoice for each item of Equipment, reflecting Lessor
as purchaser, in an amount equal to the purchase price of the
Equipment.
7. VENDOR'S INDEMNITY.
Vendor agrees to defend, indemnify, and hold harmless Lessor and Lessee
(their agents, successors and assigns) against all claims and losses (including
reasonable legal expenses) relating to patent, copyright, or trade secret
infringement on the Equipment.
8. GENERAL.
(a) Assignment. Without Lessor's prior written consent, Lessee may not
assign this Assignment Agreement in whole or in part; except that with 30 days
prior notice to Lessor,
30
- 4 -
Lessee may assign this Assignment Agreement to a wholly-owned subsidiary of
Lessee. In all cases of Lessee's assignment (including an assignment to a
wholly-owned subsidiary), Lessee will remain obligated under this Assignment
Agreement unless specifically released by Lessor. Lessor may assign this
Assignment Agreement in whole or in part without the consent of, or prior
notice to, Lessee.
(b) Non-Waiver. No course of dealing by Lessor nor Lessor's failure to
strictly enforce a provision of this Assignment Agreement constitutes a waiver
of the future performance of that provision.
(c) Severability. If a provision of this Assignment Agreement is held
unenforceable, all other provisions remain in force.
(d) Governing Law; Venue; Jury Trial. This Assignment Agreement is being
delivered in and will be performed in the State of New York, and this
Assignment Agreement is governed by New York State law. Lessor and Lessee
consent to the exclusive jurisdiction of the New York State courts in New York
County and the United States courts for the Southern District of New York.
Lessor and Lessee waive any right to a jury trial.
(e) Amendment. This Assignment Agreement cannot be amended orally, but
only in writing executed by authorized representatives of the parties.
(f) Execution. This Assignment Agreement is being executed in conjunction
with the Lease, and it may be signed in counterparts.
Lessor: Lessee:
NYNEX CREDIT COMPANY UNIVERSAL SEISMIC ASSOCIATES, INC.
By: /s/ XXXX X. XXXXXXXXX By: /s/ XXXXXX X. XXXXXXX
------------------------------ --------------------------------
Printed Name: Xxxx X. Xxxxxxxxx Printed Name: Xxxxxx X. Xxxxxxx
-------------------- ----------------------
Title: Vice President - Marketing Title: Chief Financial Officer
--------------------------- -----------------------------
Date: November 8, 1995 Date: October 19, 1995
---------------------------- ------------------------------
Vendor: Lessee:
INPUT/OUTPUT, INC. UNIVERSAL SEISMIC ACQUISITION, INC.
By: By: /s/ XXXXXX X. XXXXXXX
------------------------------ --------------------------------
Printed Name: Printed Name: Xxxxxx X. Xxxxxxx
-------------------- ----------------------
Title: Title: Chief Financial Officer
--------------------------- -----------------------------
Date: Date: October 19, 1995
---------------------------- ------------------------------
31
- 4 -
Lessee may assign this Assignment Agreement to a wholly-owned subsidiary of
Lessee. In all cases of Lessee's assignment (including an assignment to a
wholly-owned subsidiary), Lessee will remain obligated under this Assignment
Agreement unless specifically released by Lessor. Lessor may assign this
Assignment Agreement in whole or in part without the consent of, or prior
notice to, Lessee.
(b) Non-Waiver. No course of dealing by Lessor nor Lessor's failure to
strictly enforce a provision of this Assignment Agreement constitutes a waiver
of the future performance of that provision.
(c) Severability. If a provision of this Assignment Agreement is held
unenforceable, all other provisions remain in force.
(d) Governing Law; Venue; Jury Trial. This Assignment Agreement is being
delivered in and will be performed in the State of New York, and this
Assignment Agreement is governed by New York State law. Lessor and Lessee
consent to the exclusive jurisdiction of the New York State courts in New York
County and the United States courts for the Southern District of New York.
Lessor and Lessee waive any right to a jury trial.
(e) Amendment. This Assignment Agreement cannot be amended orally, but
only in writing executed by authorized representatives of the parties.
(f) Execution. This Assignment Agreement is being executed in conjunction
with the Lease, and it may be signed in counterparts.
Lessor: Lessee:
NYNEX CREDIT COMPANY UNIVERSAL SEISMIC ASSOCIATES, INC.
By: /s/ XXXX X. XXXXXXXXX By:
------------------------------ -------------------------------
Printed Name: Printed Name:
-------------------- ---------------------
Title: Title:
--------------------------- ----------------------------
Date: Date:
---------------------------- -----------------------------
Vendor: Lessee:
INPUT/OUTPUT, INC. UNIVERSAL SEISMIC ACQUISITION, INC.
By: /s/ XXXXXX X. XXXXXXXX By:
------------------------------ -------------------------------
Printed Name: Xxxxxx X. Xxxxxxxx Printed Name:
-------------------- ---------------------
Title: Sr. VP., CFO, and Secretary Title:
--------------------------- ----------------------------
Date: 10/23/95 Date:
---------------------------- -----------------------------
32
Attachment A
Assignment of Purchase Agreement and Consent
XXXX OF SALE
1. DEFINITIONS.
(a) Vendor: Input/Output, Inc., 00000 Xxxx Xxxxx Xxxxx, Xxxxxxxx, XX
00000.
(b) Buyer: NYNEX Credit Company, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, a
Delaware corporation, and its successors and assigns.
(c) Equipment: as specified on the attached Detailed Equipment List.
(d) Sale date: October 25, 1995.
----------------
2. SALE.
On the Sale Date, Vendor for sufficient consideration (the receipt of
which is acknowledged) sells and delivers to Buyer all of Vendor's right,
title, and interest in and to the Equipment and assigns to Buyer any and all
licenses in software associated with the Equipment.
3. VENDOR'S WARRANTY.
Vendor warrants to Buyer that: (i) Vendor is conveying good and marketable
title to the Equipment, clear of liens, claims, and encumbrances; and (ii)
Vendor is selling the Equipment by its sole act and has taken all corporate
action required and advisable to complete the sale.
INPUT/OUTPUT, INC.
(Vendor)
By: /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Typed Name: Xxxxxx X. Xxxxxxxx
---------------------------
Title: Senior Vice President, Chief
--------------------------------
Financial officer and Secretary
--------------------------------
Date: 10/23/95
33
CERTIFICATE OF SECRETARY
The undersigned hereby certifies that she is the duly elected and
qualified Secretary of UNIVERSAL SEISMIC ASSOCIATES, INC., a Delaware
corporation (the "Corporation"). The undersigned further certifies that:
A. As Secretary of the Corporation, she is authorized to execute
this Certificate on behalf of the Corporation.
B. The Corporation is duly incorporated, validly existing, and is
in good standing under the laws of the State of Delaware.
C. The Corporation has the power and authority to enter into the
Master Least Agreement, dated as of October 2, 1995, all Leases
#95-15, and related documents (the "Documents") between the
Corporation and NYNEX Credit Company. This corporate power and
authority is shown by the resolutions of the Board of Directors
of the Corporation, attached hereto as Attachment A, which
resolutions were adopted in a unanimous written consent dated
October 19, 1995 and have not been amended or revoked in any
manner and remain in full force, and effect.
D. The individuals whose names appear below are the duly elected,
qualified and acting officers of the Corporation as noted below,
and that the signatures appearing opposite their names below are
their respective true and genuine signatures:
Name Office Signature
---- ------ ---------
Xxxx X. Xxxxx Chairman of the Board /s/ XXXX X. XXXXX
----------------------
Xxxxxxx X. Xxxxxxx President and Chief /s/ XXXXXXX X. XXXXXXX
Executive Officer ----------------------
Xxxxxx X. Xxxxxxx Chief Financial Officer /s/ XXXXXX X. XXXXXXX
and Treasurer ----------------------
IN WITNESS WHEREOF, the undersigned has hereunto set her hand this 19
day of October, 1995.
/s/ XXXXX X. XXXXXXXX
-----------------------------
XXXXX X. XXXXXXXX, Secretary
-3-
34
ATTACHMENT A
WHEREAS, the Corporation desires to lease a I/O SYSTEM TWO RSR System
(the "System");
WHEREAS, each of the directors of the Corporation has reviewed the
most recent draft of the Master Lease Agreement, dated as of October 2, 1995
(the "Master Lease Agreement"), by and between the Corporation and Universal
Seismic Associates, Inc., as Lessee, and NYNEX Credit Company, as Lessor
("NYNEX"), the most recent draft of the Lease #95-15a with NYNEX, dated as of
October 2, 1995, setting forth the terms and conditions of the lease of the
System from NYNEX under the Master Lease Agreement (the "Lease"), and the most
recent draft of the Assignment of Purchase Agreement and Consent, assigning
to NYNEX all of the Corporation's right, title, and interest in the letter
agreement, dated August 29, 1995, between Universal Seismic Associates, Inc.
and Global Charter Corporation regarding the purchase of the System (the
"Assignment"), and believe that the execution of the Master Lease Agreement,
the Lease, the Assignment and all other documents contemplated thereby, is in
the best interests of the Corporation;
NOW, THEREFORE, BE IT RESOLVED, that the form, terms and
provisions of the proposed Master Lease Agreement, the Lease and
the Assignment are hereby in all respects ratified, confirmed
and approved, and the President of the Corporation shall be and
is hereby authorized, empowered and directed to enter into,
execute and deliver the Master Lease Agreement, the Lease, the
Assignment and all other documents contemplated therein in the
name and on behalf of the Corporation, with such changes in the
terms thereof as such officer shall, in his sole discretion,
deem necessary or desirable and in the best interest of the
Corporation; and
RESOLVED FURTHER, that the President or the Chief Financial
Officer is hereby authorized, empowered and directed to do and
perform such acts and things, to sign such documents and
certificates and to take all such other action, including the
securing of all necessary and advisable waivers, consents and
permits, as such officer shall deem necessary, advisable or
proper to carry out the intents and purposes of the foregoing
resolutions and to perform all obligations of the Corporation
under the terms of the Master Lease Agreement, the Lease and all
other documents entered into thereunder, and all actions
heretofore taken, and all instruments and documents heretofore
executed, by any officer of the Corporation in connection with
or relating to any of the matters which are the subject of the
foregoing resolutions are hereby in all respects authorized,
adopted, ratified, confirmed and approved.
- 4 -
35
CERTIFICATE OF SECRETARY
The undersigned hereby certifies that she is the duly elected and
qualified Secretary of UNIVERSAL SEISMIC ACQUISITION, INC., a Texas corporation
(the "Corporation"). The undersigned further certifies that:
A. As Secretary of the Corporation, she is authorized to execute
this Certificate on behalf of the Corporation.
B. The Corporation is duly incorporated, validly existing, and is
in good standing under the laws of the State of Texas,
C. The Corporation has the power and authority to enter into the
Master Lease Agreement, dated as of October 2, 1995, all Leases
#95-15, and related documents (the "Documents") between the
Corporation and NYNEX Credit Company. This corporate power and
authority is shown by the resolutions of the Board of Directors
of the Corporation, attached hereto as Attachment A, which
resolutions were adopted in a unanimous written consent dated
October 19, 1995 and have not been amended or revoked in any
manner and remain in full force and effect.
D. The individuals whose names appear below are the duly elected,
qualified and acting officers of the Corporation as noted below,
and that the signatures appearing opposite their names below are
their respective true and genuine signatures:
Name Office Signature
---- ------ ---------
Xxxx X. Xxxxx Chairman of the Board /s/ XXXX X. XXXXX
----------------------
Xxxxxxx X. Xxxxxxx President and /s/ XXXXXXX X. XXXXXXX
Treasurer ----------------------
Xxxxxx X. Xxxxxxx Chief Financial Officer /s/ XXXXXX X. XXXXXXX
----------------------
IN WITNESS WHEREOF, the undersigned has hereunto set her hand this
19 day of October, 1995.
/s/ XXXXX X. XXXXXXXX
-----------------------------
XXXXX X. XXXXXXXX, Secretary
36
ATTACHMENT A
WHEREAS, the Board of Directors of the Corporation has previously
approved the purchase or lease of a I/O SYSTEM TWO RSR System (the "System");
WHEREAS, each of the directors of the Corporation has reviewed the
most recent draft of the Master Lease Agreement, dated as of October 2, 1995
(the "Master Lease Agreement"), by and between the Corporation and Universal
Seismic Acquisition, Inc., as Lessee, and NYNEX Credit Company, as Lessor
("NYNEX"), the most recent draft of the Lease #95-15a with NYNEX, dated as of
October 2, 1995, setting forth the terms and conditions of the lease of the
System from NYNEX under the Master Lease Agreement (the "Lease"), and the most
recent draft of the Assignment of Purchase Agreement and Consent, assigning to
NYNEX all of the Corporation's right, title, and interest in the letter
agreement, dated August 29, 1995, between the Corporation and Global Charter
Corporation regarding the purchase of the System (the "Assignment"), and
believe that the execution of the Master Lease Agreement, the Lease, the
Assignment and all other documents contemplated thereby, is in the best
interests of the Corporation;
NOW, THEREFORE, BE IT RESOLVED, that the form, terms and provisions
of the proposed Master Lease Agreement, the Lease and the Assignment
are hereby in all respects ratified, confirmed and approved, and the
President or the Chief Financial Officer of the Corporation shall be
and is hereby authorized, empowered and directed to enter into,
execute and deliver the Master Lease Agreement, the Lease, the
Assignment and all other documents contemplated therein in the name
and on behalf of the Corporation, with such changes in the terms
thereof as such officer shall, in his sole discretion, deem necessary
or desirable and in the best interest of the Corporation; and
RESOLVED FURTHER, that the President or the Chief Financial Officer
is hereby authorized, empowered and directed to do and perform such
acts and things, to sign such documents and certificates and to take
all such other action, including the securing of all necessary and
advisable waivers, consents and permits, as such officer shall deem
necessary, advisable or proper to carry out the intents and purposes
of the foregoing resolutions and to perform all obligations of the
Corporation under the terms of the Master Lease Agreement, the Lease
and all other documents entered into thereunder, and all actions
heretofore taken, and all instruments and documents heretofore
executed, by any officer of the Corporation in connection with or
relating to any of the matters which are the subject of the foregoing
resolutions are hereby in all respects authorized, adopted, ratified,
confirmed and approved.
37
UNIVERSAL SEISMIC ASSOCIATES, INC.
UNANIMOUS WRITTEN CONSENT OF THE BOARD OF DIRECTORS
IN LIEU OF SPECIAL MEETING
October 19, 1995
We, the undersigned, being all of the directors of UNIVERSAL SEISMIC
ASSOCIATES, INC., a Delaware corporation (herein the "Corporation"), do hereby
unanimously consent to the following action of this Corporation with the same
force and effect as though the following resolutions were adopted at a Special
Meeting of the Board of Directors duly called and held:
WHEREAS, the Board of Directors of the Corporation has previously
approved the purchase or lease of a I/O SYSTEM TWO RSR System (the "System");
WHEREAS, each of the directors of the Corporation has reviewed the
most recent draft of the Master Lease Agreement, dated as of October 2, 1995
(the "Master Lease Agreement"), by and between the Corporation and Universal
Seismic Acquisition, Inc., as Lessee, and NYNEX Credit Company, as Lessor
("NYNEX"), the most recent draft of the Lease #95-15a with NYNEX, dated as of
October 2, 1995, setting forth the terms and conditions of the lease of the
System from NYNEX under the Master Lease Agreement (the "Lease"), and the most
recent draft of the Assignment of Purchase Agreement and Consent, assigning to
NYNEX all of the Corporation's right, title, and interest in the letter
agreement, dated August 29, 1995, between the Corporation and Global Charter
Corporation regarding the purchase of the System (the "Assignment"), and
believe that the execution of the Master Lease Agreement, the Lease, the
Assignment and all other documents contemplated thereby, is in the best
interests of the Corporation;
NOW, THEREFORE, BE IT RESOLVED, that the form, terms and provisions
of the proposed Master Lease Agreement, the Lease and the Assignment
are hereby in all respects ratified, confirmed and approved, and the
President or the Chief Financial Officer of the Corporation shall be
and is hereby authorized, empowered and directed to enter into,
execute and deliver the Master Lease Agreement, the Lease, the
Assignment and all other documents contemplated therein in the name
and on behalf of the Corporation, with such changes in the terms
thereof as such officer shall, in his sole discretion, deem necessary
or desirable and in the best interest of the Corporation; and
RESOLVED FURTHER, that the President or the Chief Financial Officer
is hereby authorized, empowered and directed to do and perform such
acts and things, to sign such documents and
38
certificates and to take all such other action, including the
securing of all necessary and advisable waivers, consents and
permits, as such officer shall deem necessary, advisable or proper to
carry out the intents and purposes of the foregoing resolutions and
to perform all obligations of the Corporation under the terms of the,
Master Lease Agreement, the Lease and all other documents entered
into thereunder, and all actions heretofore taken, and all
instruments and documents heretofore executed, by any officer of the
Corporation in connection with or relating to any of the matters
which are the subject of the foregoing resolutions are hereby in all
respects authorized, adopted, ratified, confirmed and approved.
IN WITNESS WHEREOF, the undersigned have executed this Consent
effective as of the date first above written.
DIRECTORS OF
UNIVERSAL SEISMIC ASSOCIATES, INC.
/s/ XXXX X. XXXXX /s/ XXXXXXX X. XXXXXXX
--------------------------------- ----------------------------------
XXXX X. XXXXX XXXXXXX X. XXXXXXX
/s/ XXXXXX X. XXXXXXX /s/ XXXXXX X. XXXX
--------------------------------- ----------------------------------
XXXXXX X. XXXXXXX XXXXXX X. XXXX
/s/ XXXXXXX X. XXX
---------------------------------
XXXXXXX X. XXX
