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McCULLAGH 10.7.1
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(GE) A Unit of GE Capital Fleet Services
MASTER LEASE AGREEMENT CUSTOMER # 61824
(NATIONAL)
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This Lease Agreement (herein the "Agreement") is made and entered into by and
between Gelco Corporation, a Minnesota corporation with its administrative
offices in Eden Prairie, Minnesota, doing business as MCCULLAGH LEASING (herein
the "LESSOR"), and Seitel Geophysical, Inc., a/an Delaware corporation (herein
the "LESSEE").
(1) LEASE OF VEHICLES:
(a) LEASE. LESSOR hereby agrees to lease to LESSEE and
LESSEE hereby agrees to lease from LESSOR certain automobiles, trucks, trailers
and/or equipment (herein "Vehicle(s)") from time to time during the term of
this Agreement.
(b) NEW VEHICLE ORDER. LESSEE shall evidence its
agreement to lease a Vehicle hereunder by executing a written or electronic New
Vehicle Order for such Vehicle on the form from time to time established by
LESSOR. The New Vehicle Order shall set forth complete specifications as to
each Vehicle including all equipment necessary to its lawful operation, and the
place and desired date of delivery, and the lease term of the Vehicle (herein
"Lease Term"). In the event any New Vehicle Order is canceled by LESSEE,
LESSEE agrees to reimburse LESSOR for any expenses or losses incurred as a
result of such cancellation.
(c) ACCEPTANCE AND DELIVERY. LESSEE's execution of a New
Vehicle Order shall obligate LESSEE to lease the Vehicle specified therein
effective upon its delivery to LESSEE. At the time of delivery of such
Vehicle, such New Vehicle Order, together with the Delivery Receipt for such
Vehicle, if any, shall become a part of this Agreement. The Delivery Receipt
shall be on the form from time to time established by LESSOR. LESSEE's
acceptance of a Vehicle shall constitute a warranty by LESSEE that the party
accepting such Vehicle has the authority to do so on behalf of LESSEE, and that
the Vehicle conforms to the New Vehicle Order. Upon acceptance of each
Vehicle, LESSEE agrees that LESSEE's obligation to pay rent and other amounts
hereunder with respect to such Vehicle shall be unconditional; and LESSEE shall
not be entitled to any reduction of, or setoff against, such amounts (provided,
however, that any payment by LESSEE shall not prejudice LESSEE's right to claim
adjustment or reimbursement), nor shall this Agreement terminate or the
obligations of LESSEE be affected by reason of any defect in, damage to or loss
of possession, use or destruction of any Vehicle from any cause, unless such
obligations have been terminated pursuant to the express terms hereof. When a
Vehicle is available for delivery, LESSEE shall take delivery within five (5)
business days of notice.
(2) TERM:
(a) TERM OF AGREEMENT. The term of this Agreement shall
be indefinite commencing on the date hereof, and continuing until canceled in
the manner set forth in this Agreement, or until either party hereto terminates
the same upon thirty (30) days' written notice to the other. Even after the
cancellation or termination of this Agreement, all Vehicles then leased by
LESSEE shall continue to be subject to the terms, conditions and covenants
contained in this Agreement, until each of such terms, conditions and covenants
has been fulfilled and no such cancellation or termination shall affect any
rights or obligations in existence prior to the effective date of such
cancellation or termination. Vehicles for which New Vehicle Orders have been
signed by LESSEE but which Vehicles have not been delivered to LESSEE
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as of the effective date of such cancellation or termination, at the option of
LESSOR, shall be deemed leased hereunder.
(b) VEHICLE LEASE TERM. The Lease Term for each Vehicle
shall be as specified in the respective New Vehicle Order. With respect to any
Vehicle leased pursuant t this Agreement, the minimum non-cancelable term of
lease for such Vehicle shall be twelve (12) months, commencing on the date of
delivery of such Vehicle to LESSEE, and thereafter the term of the lease shall
be on a month-to-month basis. Unless a different Lease Term is set forth in
the New Vehicle Order, the term of lease for each Vehicle shall not extend
beyond a maximum of fifty (50) months for automobiles, seventy-two (72) months
for light trucks and ninety-six (96) months for medium and heavy duty trucks.
In no event shall LESSEE keep any Vehicle beyond the Lease Term of the Vehicle
set forth in the New Vehicle Order for such Vehicle; or, if a Lease Term is,
for any reason, not so specified beyond the maximum term of lease provided
herein.
(3) LESSEE'S OPERATION OF VEHICLES: LESSEE shall use the Vehicles
in the United States for business purposes and in a safe and lawful manner, and
shall comply with all federal, state, county and municipal statutes, ordinances
and regulations which may be applicable to the leasing, use or operation of the
Vehicles. In addition, LESSEE shall prepare and furnish to LESSOR all
documents, returns or forms legally required to be prepared by LESSEE. LESSEE
shall be solely responsible for any fines or penalties assessed for violations
of any statute, ordinance, bylaw or regulation of any governmental authority,
as a result of the use or operation of the Vehicles by any of LESSEE's
employees, agents, sublessees, subcontractors, or any third party, and shall
keep the Vehicles free from any liens and encumbrances. LESSEE agrees to
operate only those Vehicles which have adequate insurance coverage and to
comply with all conditions of insurance related to the Vehicles, to maintain
the Vehicles and all accessories and equipment thereon in safe and good
mechanical condition and running order at all times and to furnish all
supplies, accessories, and other essentials required for the use or operation
of the Vehicles. LESSEE shall comply and shall cause all persons operating the
Vehicles to comply with such instructions covering the operation and
maintenance of the Vehicles as LESSOR may furnish from time to time, and with
the manufacturer's operating procedures and warranty requirements. LESSEE
shall not make any addition, alteration, or improvement to a Vehicle without
the prior written consent of LESSOR, which shall not be unreasonably withheld.
All repairs, replacement parts, additions, alterations, or improvements made to
a Vehicle become the property of LESSOR and shall be surrendered with the
Vehicle at the termination or cancellation of that Vehicle's Lease Term. In no
event will the Vehicles be used to transport any hazardous substances or for
the transportation of persons for hire.
(4) WARRANTIES:
(a) Assignment of Manufacturer's Warranties. LESSOR
hereby assigns to LESSEE, for and during the Lease Term of a Vehicle, any
warranty of the manufacturer, express or implied, issued on such Vehicle, and
hereby authorizes LESSEE to obtain the customary service furnished by the
manufacturer in connection therewith, at LESSEE's expense. LESSEE ACKNOWLEDGES
AND AGREES LESSOR IS NOT THE MANUFACTURER, DESIGNED OR A DISTRIBUTOR OF THE
VEHICLES, AND THAT EACH VEHICLE IS OF A SIZE, DESIGN, CAPACITY AND MANUFACTURE
SELECTED BY LESSEE AND SUITABLE FOR ITS PURPOSES.
(b) LESSOR DISCLAIMER. THERE ARE NO WARRANTIES OR OTHER
RIGHTS PROVIDED BY LESSOR OR THE MANUFACTURER OTHER THAN THE MANUFACTURER'S
WARRANTIES ASSIGNED TO LESSEE, COPIES OF WHICH LESSEE ACKNOWLEDGES HAVING
PREVIOUSLY RECEIVED. LESSOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY VEHICLE, INCLUDING, BUT NOT LIMITED TO:
THE MERCHANTABILITY OF A VEHICLE OR ITS FITNESS FOR A PARTICULAR PURPOSE; THE
DESIGN,
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QUALITY OR CAPACITY OF A VEHICLE; COMPLIANCE OF A VEHICLE WITH THE REQUIREMENTS
OF ANY LAW, RULE, SPECIFICATION OR CONTRACT PERTAINING THERETO; IT BEING AGREED
THAT THE VEHICLES ARE LEASED "AS IS." WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, LESSOR SHALL NOT BE LIABLE TO LESSEE, ITS CUSTOMERS, OR THIRD
PARTIES FOR ANY DEFECTS, EITHER LATENT OR PATENT, IN ANY VEHICLE, OR FOR ANY
DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE
DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY VEHICLE, OR FOR ANY
DAMAGES BASED ON STRICT OR ABSOLUTE TORT LIABILITY OR NEGLIGENCE, OR FOR ANY
LOSS OF USE OF ANY VEHICLE, OR FOR ANY INTERRUPTION IN LESSEE'S BUSINESS BY ITS
INABILITY TO USE ANY VEHICLE FOR ANY REASON. LESSOR SHALL HAVE NO LIABILITY
FOR ANY FAILURE OF OR DELAY IN DELIVERY OF THE VEHICLES OR FOR THE BREACH OF
ANY REPRESENTATION OR WARRANTY MADE BY THE MANUFACTURER. LESSOR MAKES NO
REPRESENTATION AS TO THE TREATMENT BY LESSEE OF THIS LEASE FOR FINANCIAL
STATEMENT OR TAX PURPOSES.
(5) COSTS, EXPENSES, FEES AND CHARGES: LESSEE covenants that it
will pay all costs, expenses, fees, charges and taxes (other than federal
income or state income taxes of LESSOR) incurred in connection with the
titling, registration, delivery, purchase, sale, rental, installation, use or
operation of the Vehicles during the term of this Agreement in addition to the
rental herein provided. If LESSOR incurs or is compelled to pay any of such
costs, LESSEE shall, upon demand from LESSOR, promptly reimburse LESSOR for the
same. If LESSOR pays any fines, tickets, penalties or other charges related to
a violation by LESSEE of any local, state or federal law or regulation, or if
LESSOR is served with any legal process, LESSEE shall, upon demand, promptly
reimburse LESSOR for the same and pay the then current administrative charge
assessed by LESSOR for processing each fine, ticket, penalty or other such
charge on behalf of LESSEE.
(6) REGISTRATION PLATES, ETC.: LESSEE shall at its own expense,
obtain in the name of LESSOR all registration plates and other plates, permits
or licenses required to be obtained in connection with the Vehicles, or related
to their operation or use except for the initial registration plates which
LESSOR shall obtain at LESSEE'S expense. LESSOR shall issue to LESSEE for such
purpose, appropriate limited powers of attorney and/or such authority as may be
necessary or required. Both LESSOR and LESSEE covenant and agree to cooperate
and to furnish any and all information or documentation which may be reasonably
necessary to enable compliance with the provisions of this Section or any
local, state or federal law or regulation. LESSEE shall not, without LESSOR's
written consent, permit any Vehicle to be located in a state other than the
state in which such Vehicle is then titled for any continuous period of time
that would require such Vehicle to become subject to the titling and/or
registration laws of such other state.
(7) RENTAL CHARGES:
(a) MONTHLY RENTAL. LESSEE will pay LESSOR and LESSOR
will accept as payment from LESSEE, as rental for each Vehicle, the Monthly
Rental set forth in the Lease Schedule hereto, as such Lease Schedule may be
amended from time to time, plus all other rental charges provided for in this
Agreement. Monthly Rental shall be paid as follows:
(i) The payment of Monthly Rentals for each Vehicle shall
begin on the first (1st) day of the calendar month in which the
Vehicle is delivered to LESSEE, if delivered on or before the
fifteenth (15th) day of the month, or on the first (1) day of the next
succeeding calendar month, if delivered on or after the sixteen (16th)
day of the month.
(ii) The payment of Monthly Rentals for each Vehicle shall
begin on the first (1st) day of the calendar month in which the
Vehicle is delivered to LESSEE, if delivered on or before the
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fifteenth (15th) day of the month, or on the first day of the next
succeeding calendar month, if delivered on or after the sixteenth
(16th) day of the month.
(iii) Monthly Rentals shall be paid on the first (1st) day
of each calendar month during the rental payment period with respect
to each Vehicle. If a Vehicle is delivered to Lessee on or before the
fifteenth (15th) day of a month, the first month's rental shall be
paid on the first (1st) day of the next succeeding calendar month,
together with the rental payment for such next succeeding calendar
month.
Monthly Rentals shall be paid without abatement, setoff, counterclaim or
defense for any reason whatsoever, regardless of the actual use of the Vehicles
by LESSEE.
LESSEE acknowledges that the Monthly Rental has been established based
on a presumed after-tax return to LESSOR. If any changes in federal or state
tax laws or regulations cause LESSOR's after-tax return to be reduced, LESSOR
may, in compensation, prospectively adjust the Monthly Rental.
(b) INVOICES. LESSOR shall render to LESSEE each month
an invoice for Monthly Rentals due that month for all Vehicles, together with a
statement of all miscellaneous fees, taxes, costs, expenses, and charges due to
LESSOR from LESSEE. Time is of the essence. All charges are due and payable
upon receipt of an invoice. LESSEE shall pay to LESSOR a late payment penalty
in the amount of one and one-half percent (1 1/2%) or the highest legal
interest rate, whichever is less, per month or fraction thereof on any invoice
the payment of which is not in the possession of LESSOR on or before the tenth
(10th) day from the date of such invoice (or if such 10th day falls on a
weekend or holiday, then the immediately preceding business day). LESSEE
agrees to carefully review each invoice or other statement provided by LESSOR.
All invoices and statements rendered by LESSOR shall be presumed correct and
accurate and constitute an account stated between LESSOR and LESSEE unless,
within thirty (30) days after receipt thereof, LESSEE shall deliver written
objection thereto specifying any errors in the invoice or statement. In such
event, LESSOR's sole liability and LESSEE's exclusive remedy shall be to make
appropriate adjustments in LESSEE's account. All charges are based upon
LESSOR's standard operating routines, computer systems capabilities, and
existing business policy and are subject to change upon notice. Additional
services and special handling required by LESSEE will be subject to
negotiation. Nothing contained in this Agreement shall prevent LESSOR from
obtaining compensation from manufacturers, suppliers or other vendors.
(8) SURRENDER AND DISPOSITION OF VEHICLES:
(a) EARLY TERMINATION. So long as LESSEE is not in
default, LESSEE may, at any time after the minimum non-cancelable term of lease
of twelve (12) months, terminate the Lease Term of any Vehicle by giving LESSOR
written notice of surrender as provided below. If LESSEE surrenders a Vehicle
prior to the end of the minimum Lease Term, LESSEE shall pay the Interest
Adjustment Charge provided for in the Lease Schedule, if any.
(b) NOTICE OF SURRENDER. At the end of the Lease Term or
in the event of an early termination as provided above, LESSEE shall provide
LESSOR with written notice of its desire to surrender a Vehicle. LESSOR shall
use its best efforts to pick up or to cause a Vehicle to be picked up within
thirty (30) days of the date of such notice. In such notice, LESSEE may
designate the date upon which it desires a Vehicle to be picked up, and LESSOR
shall endeavor to accommodate such request. Vehicles shall continue to be
subject to the terms and conditions of this Agreement through the date of
surrender, which shall be the date LESSOR takes actual possession of the
respective Vehicle.
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(c) SURRENDER. Any Vehicle that LESSOR advises LESSEE is
outside of its custom pickup area shall be surrendered to LESSOR at such place
as LESSOR and LESSEE may agree upon in writing. Each vehicle, whether picked
up by LESSOR or dropped off by LESSEE, shall be surrendered in good and safe
operating condition. At the time of surrender, LESSEE shall complete, sign and
deliver to LESSOR, a Used Vehicle Condition Report on a form supplied by LESSOR
with respect to such Vehicle. Such surrender shall include all license plates,
registration certificates, documents of title and odometer certifications and
other documentation necessary to effect the sale or other disposition of the
Vehicle. LESSEE shall remove any personal property prior to surrender. Any
personal property left in a Vehicle after surrender shall be deemed abandoned
and may be disposed of by LESSOR without liability. LESSOR shall sell each
Vehicle within a reasonable time after the date of surrender.
(d) DISPOSITION OF VEHICLES. LESSOR shall, and LESSEE
may, solicit from prospective purchasers in the wholesale vehicle market cash
bids for surrendered Vehicles on an AS IS, WHERE IS BASIS, WITHOUT RECOURSE OR
WARRANTY. Such Vehicles shall be sold in a commercially reasonable manner for
cash payable in full upon delivery. If repairs to a Vehicle surrendered by
LESSEE shall be deemed advisable by LESSOR before sale, LESSOR shall so notify
LESSEE and LESSEE shall pay all costs for such repairs. Without limiting the
generality of the foregoing, LESSOR shall have the right to sell Vehicles to
any dealer or broker or any other party, including to or through companies
affiliated with LESSOR.
(e) TERMINAL RENTAL ADJUSTMENT. From the proceeds
realized from any sale of a Vehicle, there shall first be deducted all direct
expenses paid or incurred by LESSOR in connection with such Vehicle and its
sale from time of surrender through date of sale, the balance remaining to
constitute the net proceeds (herein the "Net Proceeds"). The Net Proceeds from
the sale of any such Vehicle shall be payable to LESSOR.
(i) If the Net Proceeds exceed the Capitalized
Cost (as defined in the Lease Schedule) of such Vehicle
reduced by an amount equal to the aggregate of the
amortization (calculated using the amortization rate set forth
in the Lease Schedule) paid on such Vehicle (herein the
"Unamortized Book Value"), LESSOR shall retain an amount equal
to the Unamortized Book Value on the Vehicle sold, and LESSEE
shall receive the remaining excess as a refund of rental;
provided, however, if LESSEE is in default hereunder, such
remaining excess, if any, shall be applied to reduce the
amount of default.
(ii) If the Net Proceeds are less than the
Unamortized Book Value of the Vehicle sold, LESSEE shall pay
LESSOR, in cash, as a rental charge adjustment, the amount of
such deficiency.
(9) INSURANCE:
(a) COVERAGES. LESSEE shall, at LESSEE's expense,
procure from a responsible insurance company acceptable to LESSOR, prior to
delivery of each Vehicle, and shall maintain during the time that any Vehicles
are leased by LESSEE from LESSOR, the following insurance coverage:
(i) Public liability and property damage
insurance (comprehensive automobile liability) insuring
LESSOR, and its assigns, if any, LESSEE and any person having
possession of or using a Vehicle, against liability for death,
bodily injury, and property damage resulting from ownership,
maintenance, use or operation of a Vehicle with limits of
coverage as LESSOR may require but in no event less than one
million dollars
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($1,000,000.00) combined single limit per occurrence (five
million dollars ($5,000,000.00) for multi- passenger or I.C.C.
regulated vehicles).
(ii) Comprehensive and collision insurance
insuring LESSOR, and its assigns, if any, against loss and/or
damage to each Vehicle arising out of any risk covered by such
insurance (including without limitation, fire, theft,
casualty, malicious mischief, falling objects, missiles, glass
breakage, smoke, riot or civil commotion) with limits of
coverage as LESSOR may require but in no event less than the
actual cash value of each Vehicle subject to a five hundred
dollar ($500.00) deductible. In the event of loss or damage
to the Vehicle, LESSEE agrees to immediately reimburse LESSOR
the amount of the deductible hereunder, without regard to who
is responsible.
The above insurance shall also include the following, in amounts not less than
the applicable minimum legal requirements: (i) uninsured/underinsured motorist
coverage, and (ii) no fault protection. LESSEE shall in addition provide
general liability insurance covering LESSEE's indemnification responsibilities
hereunder.
(b) CONDITIONS. LESSOR shall be named as an Additional
Insured on the required liability and property damage insurance, and as the
Loss Payee on the required collision and comprehensive damage insurance. All
insurance policies required hereunder shall provide for thirty (30) days' prior
written notice to LESSOR and its assigns, if any, of any cancellation or
reduction in coverage. LESSEE shall deliver to LESSOR, prior to the delivery
of any Vehicle to LESSEE, or prior to the effective date of any cancellation or
expiration of such insurance as the case may be, the insurance policy, a
certificate or other satisfactory evidence of the maintenance of the insurance
required hereunder. LESSOR shall be under no duty to examine such policies,
certificates, or other evidence of insurance, or to advise LESSEE in the event
that its insurance is not in compliance with this Agreement. LESSEE, in the
event of default, hereby appoints LESSOR as LESSEE's attorney-in-fact to
receive payment of and endorse all checks and other documents and to take nay
other actions necessary to pursue insurance claims and recover payments if
LESSEE fails to do so. Any expense of LESSOR in adjusting or collecting
insurance shall be borne by LESSEE.
(c) COOPERATION. LESSEE, its drivers, employees and
agents shall cooperate fully with LESSOR and the insurance carriers insuring
the hazards enumerated herein in the investigation, defense and prosecution of
any and all claims or suits arising from the operation of the Vehicles. If any
claim is made or action commenced for death, personal injury or property damage
resulting from the ownership, maintenance, use or operation of any Vehicle,
LESSEE shall promptly notify LESSOR thereof and forward to LESSOR a copy of
every demand, notice, summons or other process received in connection
therewith. LESSEE shall furnish to LESSOR a report of any accident involving a
Vehicle (on the form furnished by the insurer) within three (3) days of such
accident. LESSEE shall make all filings or reports required by state, local or
municipal law or regulations as a result of any accident involving a Vehicle.
(10) INDEMNIFICATION BY LESSEE: LESSEE COVENANTS AND AGREES TO
INDEMNIFY, SAVE HARMLESS AND DEFEND LESSOR, ANY EMPLOYEE OF LESSOR, AND ANY
PARENT, SUBSIDIARY OR AFFILIATE OF LESSOR, AGAINST ANY AND ALL LIABILITY,
CLAIMS FOR LOSS, DAMAGE, OR INJURY AND FROM AND AGAINST ANY SUITS, ACTIONS, OR
LEGAL PROCEEDINGS OF ANY KIND BROUGHT AGAINST LESSOR FOR OR ON ACCOUNT OF ANY
PERSON(S) OR LEGAL ENTITY, OR ON ACCOUNT OF ANY INJURIES RECEIVED OR SUSTAINED
BY ANY PERSON(S) OR LEGAL ENTITY IN ANY MANNER, DIRECTLY OR INDIRECTLY CAUSED
BY, INCIDENT TO, OR SUSTAINED BY ANY PERSON(S) OR LEGAL ENTITY IN ANY MANNER,
DIRECTLY OR INDIRECTLY CAUSED BY, INCIDENT TO, OR GROWING OUT OF WHOLLY OR IN
PART, THE LEASING,
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MAINTENANCE, USE, CONDITION (INCLUDING, BUT NOT LIMITED TO, PATENT OR LATENT
DEFECTS WHETHER OR NOT DISCOVERABLE BY LESSOR OR LESSEE, PRODUCT LIABILITY
CLAIMS, AND THE CONDITION OF ANY VEHICLE UPON SALE OR OTHER DISPOSITION),
OPERATION, RETURN, SURRENDER, SALE OR OTHER DISPOSITION OF ANY VEHICLE, OR THE
PREACH BY LESSEE OF ANY COVENANT OR CONDITION OF THIS AGREEMENT. IN THE EVENT
LESSOR SELLS ANY VEHICLE TO LESSEE, TO ANY EMPLOYEE OF LESSEE OR TO ANY
PURCHASER FROM WHOM LESSEE OBTAINS AN OFFER, LESSEE'S COVENANTS OF INDEMNITY
SHALL CONTINUE. LESSEE FURTHER AGREES TO TAKE UPON ITSELF THE SETTLEMENT OF
ALL SUCH CLAIMS AND THE DEFENSE OF ANY SUIT OR SUITS, OR LEGAL PROCEEDINGS OF
ANY KIND BROUGHT TO ENFORCE SUCH CLAIM OR CLAIMS, AND TO PAY ALL JUDGMENTS
ENTERED IN SUCH SUIT OR SUITS AND ALL COSTS, ATTORNEYS' FEES OR OTHER EXPENSES.
IN ANY INSTANCE WHERE SAID CLAIMS IN ANY WAY AFFECT LESSOR'S INTERESTS UNDER
THIS AGREEMENT, LESSEE SHALL NOT CONSUMMATE ANY SETTLEMENT WITHOUT LESSOR'S
PRIOR WRITTEN CONSENT.
THE FOREGOING LESSEE'S COVENANTS OF INDEMNITY DO NOT ENCOMPASS ANY
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY LESSOR, BUT ARE OTHERWISE ABSOLUTE
AND UNCONDITIONAL AND SHALL CONTINUE IN FULL FORCE AND EFFECT REGARDLESS OF
WHERE, HOW OR BY WHOM ANY VEHICLE IS OPERATED, AND NOTWITHSTANDING ANY
INSURANCE COVERAGE THAT LESSEE MAY CARRY OR THE TERMINATION OR CANCELLATION OF
THIS AGREEMENT.
THE PROVISIONS OF THIS SECTION COMPREHEND, BUT WITHOUT LIMITATION,
LIABILITY AND CLAIMS, HOWSOEVER ARISING, WHETHER BY REASON OF NEGLIGENCE,
BREACH OF WARRANTY, DEFECT IN MANUFACTURE OR MAINTENANCE OR OTHERWISE, AND EVEN
THOUGH STRICT LIABILITY BE CLAIMED.
(11) LESSOR-LESSEE RELATIONSHIP: THE PARTIES INTEND THAT THIS
AGREEMENT BE A TRUE LEASE. The parties agree that this is not an agreement of
partnership or employment of LESSOR or of any of LESSOR's employees by LESSEE
and that LESSOR is an independent contractor. Except as may be specifically
provided in an executed Power of Attorney, neither LESSEE nor any employee of
LESSEE shall have any authority to act on behalf of LESSOR or be deemed to be
the agent, servant or employee of LESSOR. Nothing herein contained shall give
or convey to LESSEE any right, title or interest in and to any Vehicle leased
hereunder except as LESSEE, and LESSEE shall have no option to purchase any
Vehicle. LESSOR shall have the right at any time to xxxx the Vehicle stating
its interest as owner and LESSEE will execute such statements as LESSOR may
request confirming LESSOR's ownership. In the event that, contrary to the
intention of the parties hereto, this Agreement is deemed to be other than a
lease, LESSEE hereby grants LESSOR a security interest in the Vehicles and all
proceeds, accessions, chattel paper, equipment and general intangibles related
thereto to secure all of LESSEE's obligations hereunder. At LESSOR's request,
LESSEE agrees to execute any financing statements or other instruments
necessary or expedient for filing, recording or perfecting the interest and
title of LESSOR. A photostatic copy or other reproduction of this Agreement
shall be sufficient as a financing statement.
(12) STATEMENTS AND RIGHTS OF INSPECTION: LESSOR shall have the
right to inspect any Vehicle and the records of LESSEE pertaining to the
Vehicles at any reasonable time upon reasonable notice. The creditworthiness
of LESSEE and any guarantor is a material condition to this Agreement. LESSEE
shall provide LESSOR with LESSEE's financial statements and any other
information LESSOR may require from time to time during the term of this
Agreement.
(13) DEFAULT:
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(a) EVENT OF DEFAULT. In the event LESSEE shall fail to
make the payments as herein provided or, after ten (10) days' written notice,
shall fail to perform any of its covenants under this Agreement, or in the
event LESSEE or any guarantor shall (i) make an assignment for the benefit of
creditors, or suffer a receiver or trustee to be appointed, or file or suffer
to be filed any petition under any bankruptcy or insolvency law of any
jurisdiction, or (ii) suspend business or commit any act amounting to a
business failure; or (iii) suffer an attachment or tax lien against any of its
property; or (iv) make a voluntary assignment or transfer of any Vehicle or of
any or all of its interest hereunder (in a manner or to a person not permitted
by the terms hereof), or of all or substantially all of its property; or (v)
die (if an individual), or its corporate or partnership existence (as the case
may be) shall cease or terminate; or (vi) commit or omit any act which LESSOR
reasonably determines impairs LESSEE's prospect of making payments or
performing any of the other covenants required by LESSEE hereunder; or (vii) be
in default under any other Agreement it may have with LESSOR or any parent,
subsidiary or affiliate of LESSOR; or (viii) suffer a material adverse change
in operating or financial condition which impairs LESSEE's ability to perform
its obligations hereunder or LESSOR's title or rights to the Vehicles; or (ix)
deliver or make any representation or warranty herein, or in any document
delivered to LESSOR in connection herewith, which shall prove to be false or
misleading in any material respect; or (x) fail to complete an odometer
disclosure form or make a false statement on an odometer disclosure form; then
in such event LESSEE shall be in default under this Agreement, and LESSOR shall
have the rights and remedies hereinafter specified together with all other
remedies available at law or in equity.
(b) REMEDIES. Upon an event of default, LESSOR may, at
its option:
(i) Cancel this agreement with respect to any or
all of the Vehicles hereunder, in which event LESSEE shall
immediately deliver, at its sole cost and expense, any and all
such Vehicles to a location or locations specified by LESSOR,
and collect from LESSEE damages as provided below; or
(ii) Repossess any and all Vehicles hereunder
wherever they may be found (and for that purpose LESSOR or its
agents may enter upon any premises of or under the control of
LESSEE or any other person) without canceling this Agreement
and collect damages as provided below.
LESSOR's rights and remedies are cumulative and not exclusive and the
exercise of one remedy shall not preclude any other remedy.
(c) DAMAGES. Notwithstanding repossession and sale made
by LESSOR of any Vehicle, LESSOR shall have the right to recover from LESSEE
all damages that LESSOR sustains by reason of LESSEE's default. Such damages
shall include but not be limited to:
(i) The full amount of Monthly Rentals then due
and unpaid, if any;
(ii) Any and all expenses of repossession of the
Vehicle(s);
(iii) All other amounts of any nature due under
this Agreement including, without limitation, any applicable
interest Adjustment Charge and any amount due as a Terminal
Rental Adjustment; and
(iv) A sum representing fifteen percent (15%) of
the total of the above, in the event that LESSOR is required
to refer collection of any balance to its attorney, not a
salaried employee of LESSOR.
1991 Gelco Corporation 8 of 11
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Nothing contained in this Agreement shall effect LESSOR's right to
claim against any receiver or trustee or representative of debtor in bankruptcy
or reorganization, or against any of the assets of the LESSEE, for sums due for
any Vehicles used during the period of such bankruptcy or reorganization.
(d) COMPLIANCE. In case of failure by LESSEE to comply
with any provision of this agreement, LESSOR shall have the right, but not the
obligation, at its option, to effect such compliance as in LESSOR's sole
discretion is appropriate, in whole or in part, and all expenses of LESSOR
incurred in effecting such compliance plus LESSOR's then standard handling fee
shall be immediately due and payable. LESSOR's effecting such compliance shall
not in any way be deemed to constitute a waiver of any default by LESSEE.
(14) FORCE MAJEURE AND NO CONSEQUENTIAL DAMAGES: LESSOR shall not
be liable for any failure or delay in delivering any Vehicle for any reason, or
for any failure to perform any provisions hereof, resulting from fire or other
casualty, riot, strike, or other labor difficulty, governmental regulation or
restriction or any cause beyond LESSOR's control. In no event shall LESSOR be
liable for any loss of profits or other consequential damages or any
inconveniences resulting from any theft, damage to, loss of, defect in or
failure of any Vehicle or the time consumed in recovering, repairing,
adjusting, servicing or replacing the same and there shall be no abatement or
apportionment of rental during such time. LESSEE AGREES THAT LESSEE'S SOLE AND
EXCLUSIVE REMEDY FOR ANY MATTER OR CAUSE OF ACTION RELATED DIRECTLY OR
INDIRECTLY TO ANY BREACH BY LESSOR OF THIS AGREEMENT OR ANY OTHER AGREEMENT
BETWEEN LESSEE AND LESSOR SHALL BE A CAUSE OF ACTION SOUNDING IN CONTRACT AND
WITH DAMAGES LIMITED TO ACTUAL AND DIRECT DAMAGES INCURRED.
(15) ASSIGNMENTS: LESSOR may from time to time assign all or any
part of its right, title and interest in this Agreement, including all moneys
and claims for moneys due and to become due hereunder; provided, however, that
LESSEE may remain in possession of any Vehicle until expiration of its
respective Lease Term as long as LESSEE shall not be in default.
LESSEE SHALL NOT ASSIGN, SUBLET, LIEN, ENCUMBER OR TRANSFER ANY
INTEREST IN ANY OF THE VEHICLES OR ANY INTEREST IN THIS AGREEMENT TO ANY PARTY
WITHOUT THE WRITTEN CONSENT OF LESSOR. ANY SUCH CONSENT BY LESSOR SHALL NOT
RELIEVE LESSEE OF ITS OBLIGATIONS AND LIABILITIES HEREUNDER.
(16) SUBSIDIARIES, PARENTS AND AFFILIATES: Any Vehicles leased by
LESSOR to, or operated or used by, present or future subsidiaries, parents or
affiliates of LESSEE shall be within the terms and conditions of this
Agreement, unless covered by a separate lease agreement with such subsidiary,
parent or affiliate, and LESSEE agrees that, in the event such subsidiary,
parent or affiliate does not perform according to the terms and conditions of
the Agreement, LESSEE will, upon fifteen (15) days' notice of any default,
perform according to the tenor of this Agreement regarding the Vehicles on
lease to such subsidiary, parent or affiliate. Such performance shall be
absolute and unconditional and, with respect to amounts owing, constitute a
guaranty of payment.
(17) EXECUTION AND GOVERNING LAW: THIS AGREEMENT SHALL NOT BECOME
EFFECTIVE UNTIL EXECUTED BY AN AUTHORIZED REPRESENTATIVE OF LESSOR IN EDEN
PRAIRIE, MINNESOTA. THE LAWS OF THE STATE OF MINNESOTA SHALL GOVERN ALL
QUESTIONS OR DISPUTES, WHETHER SOUNDING IN TORT OR CONTRACT, RELATING TO THE
INTERPRETATION, PERFORMANCE, VALIDITY, ENFORCEMENT, OR EFFECT OF THIS
AGREEMENT, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES THEREOF. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, ALL VEHICLES LEASED HEREUNDER SHALL
BE SUBJECT TO MINNESOTA STATUTES SECTION 168A.17 SUBD. 1A.
1991 Gelco Corporation 9 of 11
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(18) SEVERABILITY: If any portion of this Agreement shall be found
to be illegal, invalid or contrary to public policy, the same may be modified
or stricken by a Court of competent jurisdiction to the extent necessary to
allow the Court to enforce such provision in a manner which is as consistent
with the original intent of the provision as possible. the striking or
modification by the Court of any provision shall not have the effect of
invalidating the Agreement as a whole.
(19) WAIVER OF JURY TRIAL: BOTH PARTIES TO THIS AGREEMENT HEREBY
WAIVE ANY AND ALL RIGHT TO ANY TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING DIRECTLY OR INDIRECTLY HEREUNDER.
(20) MISCELLANEOUS: This Agreement is for the benefit of and may
be enforced by the respective parties and their successors and permitted
assignees and is not for the benefit of and may not be enforced by any third
party. This Agreement is the product of negotiations between the parties.
Each provision hereof shall be read and interpreted in accordance with its
common and ordinary meaning and no ambiguity in language shall be read or
interpreted in favor of or against either party.
(21) ODOMETER DISCLOSURE STATEMENT: Federal law (and state law, if
applicable) requires that LESSEE disclose, and LESSEE shall disclose, the
mileage of each Vehicle to LESSOR in connection with the transfer of ownership
of the Vehicle. Failure to complete an odometer disclosure form or making a
false statement may result in fines and/or imprisonment.
(22) LOSS OF OR DAMAGES TO VEHICLES:
(a) RISK OF LOSS. LESSEE shall bear all risk of los,
damage or destruction to the Vehicle, however caused and included without
limitation, collision, fire, theft, flood, or conversion, abandonment, or
unauthorized sale or concealment by agents or employees of LESSEE, or any other
cause or combination of causes which may occur after the moment of delivery of
the Vehicle to the moment of surrender to or repossession by LESSOR or its
agent. LESSEE shall advise LESSOR of any loss, destruction or damage to the
Vehicle, within three (3) days from the occurrence thereof.
(b) DAMAGES. In the event the Vehicle
suffers total loss, destruction or irreparable damage, LESSEE
shall pay to LESSOR the Unamortized Book Value for such Vehicle
upon receipt of an invoice for the same. If such total loss,
destruction or irreparable damage shall occur during the period Initials
when LESSEE would be required by the respective Vehicle Order
to pay an Early Termination Charge, then LESSEE shall /s/ J.S.
additionally pay the Early Termination Charge. LESSEE's
obligation to pay rental and other expenses shall continue during --------
any period of repairs, and in the case of total loss or irreparable
damage, until LESSOR's receipt of payment thereof. LESSEE
understands that such Unamortized Book Value plus Interest
Adjustment Charge, if any, xxx exceed the actual cash value of
he Vehicle as determined by the insurer of the Vehicle
and that LESSEE shall be required to pay such excess to LESSOR
(23) MODIFICATIONS: This Agreement, all Exhibits
and addenda, and each respective New Vehicle Order and Initials
Delivery Receipt contain the entire understanding of the parties
and merge all oral understandings. Any modifications, changes, /s/ J.S.
or amendments may be made only in writing subscribed by LESSEE
and LESSOR. Failure of either party to enforce any right granted --------
herein shall not be deemed a waiver of such right.
1991 Gelco Corporation 10 of 11
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by duly authorized representatives.
Effective as of the 2nd of February, 1994.
MCCULLAGH LEASING (LESSOR) Seitel Geophysical, Inc. (LESSEE)
Address: 00000 Xxxxxx Xxxx Xxxxxx Principal Place of Business and
Xxxxxxxxx, XX 00000-0000 Mailing Address 00 Xxxxx Xxxxxx Xxxx Xxxx
--------------------------
Regional Office Representative: Xxxxxxx, Xxxxx 00000
-----------------------------------------
By: /s/ [illegible signature] By: /s/ Xxx X. Xxxxxxxxx
Title: Regional V.P. Title: President
Date: 2-22-94 Date: 2-16-94
ACCEPTED AT:
Eden Prairie, MN Representative:
By: /s/ [illegible signature]
Date: 2/24/94
1991 Gelco Corporation 11 of 11
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EXHIBIT O Customer #61824
This Exhibit amends and modifies that certain Lease Agreement (hereinafter
"Agreement") by and between the undersigned.
1. For the purposes of this Exhibit, the following definitions shall
apply:
Contingent Rentals Costs incurred or assessed by LESSOR to repair or
recondition Vehicles that are surrendered for sale with excessive wear
and tear.
Guaranteed Residual Sixteen percent (16%) of the Capitalized Cost for
Vehicles sold at or prior to twelve (12) months from the date of
delivery of the Vehicle to LESSEE, and thirteen percent (13%) of the
Unamortized Book Value for Vehicles sold thereafter.
2. Section 8(e)(ii) of the Agreement is amended in its entirety to read as
follows:
If the Net Proceeds are less than the Unamortized Book Value of
the Vehicle sold, but equal to or greater than the Guaranteed Residual,
then LESSEE shall pay LESSOR, as a rental charge adjustment, the
difference between the Net Proceeds and the Unamortized Book Value,
plus Contingent Rentals, if any. If the Net Proceeds are less than the
Guaranteed Residual of the Vehicle sold, then LESSEE shall pay LESSOR,
as a rental charge adjustment, the difference between the Guaranteed
Residual and the Unamortized Book Value, plus Contingent Rentals, if
any.
3. This Amendment is effective as of 2-16-94 for all Vehicles on lease at
that date and all Vehicles placed in service thereafter. Except as
amended by this Exhibit, all other terms and conditions of the
Agreement are ratified and confirmed and remain in full force and
effect.
McCULLAGH LEASING (LESSOR) Seitel Geophysical, Inc. (LESSEE)
By: /s/ [illegible signature] By: /s/ Xxx X. Xxxxxxxxx
Title: Regional V.P. Title: President
Date: 2-22-94 Date: 2-16-94
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