UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Universal Seismic Associates, Inc.
(Name of Issuer)
Common Stock, Par Value $.0001 Per Share
(Title of Class of Securities)
913828 109
(CUSIP Number)
Paul E. McCollam
c/o Resource Investors Management Company
600 Travis, Suite 6875
Houston, Texas 77002
(713) 229-8800
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
May 31, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Check the following box if a fee is being paid with the statement |_|. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of less than five percent of such class.
See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D/A
CUSIP No. 913828 109 Page 2 of 21 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Resource Investors Management Company Limited Partnership 06-1148341
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) |_|
(b) |x|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Connecticut
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
NUMBER OF _______________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 1,384,333
EACH _______________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 0
_______________________________________________
10 SHARED DISPOSITIVE POWER
1,384,333
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,384,333 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.69%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
PN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D/A
CUSIP No. 913828 109 Page 3 of 21 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
RIMCO Associates, Inc. 06-1144208
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) |_|
(b) |x|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Connecticut
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
NUMBER OF _______________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 1,384,333
EACH _______________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 0
_______________________________________________
10 SHARED DISPOSITIVE POWER
1,384,333
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,384,333 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.69%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
CO
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D/A
CUSIP No. 913828 109 Page 4 of 21 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
RIMCO Partners, L.P. 06-1208375
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) |_|
(b) |x|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
________________________________________________
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 284,025
EACH ________________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 0
________________________________________________
10 SHARED DISPOSITIVE POWER
284,025
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
284,025 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.07%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
PN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D/A
CUSIP No. 913828 109 Page 5 of 21 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
RIMCO Partners, L.P. II 06-1264592
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) |_|
(b) |x|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES _______________________________________________
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 577,906
REPORTING _______________________________________________
PERSON 9 SOLE DISPOSITIVE POWER
WITH
0
_______________________________________________
10 SHARED DISPOSITIVE POWER
577,906
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- --------------------------------------------------------------------------------
577,906 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.31%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
PN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D/A
CUSIP No. 913828 109 Page 6 of 21 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
RIMCO Partners, L.P. III 06-1291935
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) |_|
(b) |x|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
NUMBER OF _______________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 68,100
EACH _______________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 0
_______________________________________________
10 SHARED DISPOSITIVE POWER
68,100
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
68,100 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.21%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
PN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D/A
CUSIP No. 913828 109 Page 7 of 21 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
RIMCO Partners, L.P. IV 06-1327489
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) |_|
(b) |x|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
NUMBER OF _______________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 454,302
EACH _______________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 0
_______________________________________________
10 SHARED DISPOSITIVE POWER
454,302
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
454,302 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.10%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
PN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D/A
CUSIP No. 913828 109 Page 8 of 21 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Roy V. Hood
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) |_|
(b) |_|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
NUMBER OF _______________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 1,384,333
EACH _______________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 0
_______________________________________________
10 SHARED DISPOSITIVE POWER
1,384,333
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,384,333 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.69%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D/A
CUSIP No. 913828 109 Page 9 of 21 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Paul E. McCollam
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) |_|
(b) |x|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
NUMBER OF _______________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 1,384,333
EACH _______________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 0
_______________________________________________
10 SHARED DISPOSITIVE POWER
1,384,333
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,384,333 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.69%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D/A
CUSIP No. 913828 109 Page 10 of 21 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Stephen F. Oakes
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) |_|
(b) |x|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
NUMBER OF _______________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 1,384,333
EACH _______________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 0
_______________________________________________
10 SHARED DISPOSITIVE POWER
1,384,333
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,384,333 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.69%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D/A
CUSIP No. 913828 109 Page 11 of 21 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
David R. Whitney
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) |_|
(b) |x|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
NUMBER OF _______________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 1,384,333
EACH _______________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 0
_______________________________________________
10 SHARED DISPOSITIVE POWER
1,384,333
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,384,333 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.69%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
IN
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D/A
CUSIP No. 913828 109 Page 12 of 21 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John B. Parsons
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions) (a) |_|
(b) |x|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions)
AF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
0
NUMBER OF _______________________________________________
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 1,384,333
EACH _______________________________________________
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 0
_______________________________________________
10 SHARED DISPOSITIVE POWER
1,384,333
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,384,333 shares
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) |_|
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.69%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
IN
- --------------------------------------------------------------------------------
<PAGE>
Page 13 of 21 Pages
Item 1. Security and Issuer
The class of equity securities to which this statement relates is Common
Stock, par value $.0001 per share (the "Common Stock"), of Universal Seismic
Associates, Inc., a Delaware corporation (the "Company"), whose principal
executive office is located at 16420 Park Ten Place, Suite 300, Houston, Texas
77084.
Item 2. Identity and Background
The following table provides certain information about each of the
reporting persons.
Citizenship or
State of Incorporation/ Principal Occupation
Name and Business Address Organization or Employment
------------------------- ------------ -------------
Resource Investors Management CT Investment Management
Company Limited Partnership
("RIMCO")
22 Waterville Road
Avon, CT 06001
RIMCO Associates, Inc. CT General Partner of RIMCO
("Associates")
22 Waterville Road
Avon, CT 06001
RIMCO Partners, L.P. DEL Investment Partnership
("RIMCO I") (Energy sector securities)
600 Travis, Suite 6875
Houston, TX 77002
RIMCO Partners, L.P. II DEL Investment Partnership
("RIMCO II") (Energy sector securities)
600 Travis, Suite 6875
Houston, TX 77002
RIMCO Partners, L.P. III DEL Investment Partnership
("RIMCO III") (Energy sector securities)
600 Travis, Suite 6875
Houston, TX 77002
RIMCO Partners, L.P. IV DEL Investment Partnership
("RIMCO IV") (Energy sector securities)
600 Travis, Suite 6875
Houston, TX 77002
Roy V. Hood USA Managing Director of RIMCO;
22 Waterville Road President and director
Avon, CT 06001 of Associates
Paul E. McCollam USA Managing Director of RIMCO;
600 Travis, Suite 6875 Vice President and director
Houston, TX 77002 of Associates
Stephen F. Oakes USA Managing Director of RIMCO;
22 Waterville Road Vice President of Associates
Avon, CT 06001
<PAGE>
Page 14 of 21 Pages
David R. Whitney USA Managing Director of RIMCO;
22 Waterville Road Vice President and director
Avon, CT 06001 of Associates
John B. Parsons USA Director of Associates
22 Waterville Road
Avon, CT 06001
None of the reported persons has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors).
None of the reporting persons has been during the last five years a party
to a civil proceeding of a judicial or an administrative body of competent
jurisdiction and, as a result of such proceeding, was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activity subject to, federal or state securities laws or finding
any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
On January 19, 1996, RIMCO I, RIMCO II, RIMCO III and RIMCO IV (the
"Limited Partnerships"), purchased $3,500,000 of 10% Senior Secured General
Obligation Notes (the "Notes") of the Company with 165,000 warrants to purchase
common stock exercisable until January 19, 2003 at an exercise price of $3.14
per share (the "Warrants"). The Warrants are in substantially the form filed as
Exhibit B to the Schedule 13D dated January 19, 1996 filed with the Securities
and Exchange Commission on January 29, 1996 (the "Schedule 13D") and are
incorporated herein by reference. No additional consideration, beyond the amount
paid for the purchase of the Notes, was paid for the warrants. The following
table sets forth the consideration paid for the Notes and the number of warrants
received:
Purchaser Note Purchase Amount Warrants Received
- --------- -------------------- -----------------
RIMCO I $1,225,000 57,750
RIMCO II 1,225,000 57,750
RIMCO III 140,000 6,600
RIMCO IV 910,000 42,900
---------- -------
$3,500,000 165,000
The funds for such purchase were provided out of the working capital of the
Limited Partnerships. If the warrants are exercised by any of the Limited
Partnerships, the funds which will be used to pay the exercise price thereof
will be provided from the working capital of the Limited Partnerships.
Additionally, on January 19, 1996, the Limited Partnerships purchased
$500,000 of 5% Convertible Notes of the Company (the "Convertible Notes"). The
Convertible Notes are convertible at any time prior to maturity at a conversion
price of $3.45 per share. The Convertible Notes are in substantially the form
filed as Exhibit C to the Schedule 13D and are incorporated herein by reference.
The following table sets forth the consideration paid for the Convertible Notes
and the maximum number of shares to be received if one hundred percent of the
principal balances of the Notes were to be converted.
<PAGE>
Page 15 of 21 Pages
Purchaser Note Purchase Amount Shares Received
- --------- -------------------- ---------------
RIMCO I $175,000 50,725
RIMCO II 175,000 50,725
RIMCO III 20,000 5,797
RIMCO IV 130,000 37,681
-------- -------
$500,000 144,928
The funds for the purchase of the Notes and the Convertible Notes were
provided out of the working capital of the Limited Partnerships.
RIMCO II, RIMCO III and RIMCO IV entered into an agreement on January 19,
1996, amended as of May 28, 1996, with UNEXCO, Inc., a Delaware corporation and
wholly owned subsidiary of the Company, to acquire up to $3,000,000 of 10%
Senior Secured Exchangeable General Obligation Notes ("Exchangeable Notes") the
form of which is filed as Exhibit F hereto and incorporated herein by reference.
Pursuant to the Guaranty and Exchange Agreement dated as of January 19, 1996, as
amended by the First Amendment to Guaranty and Exchange Agreement dated as of
May 28, 1996 (which agreements are attached hereto as Exhibits G and G-1 and
incorporated herein by reference), upon funding of the Exchangeable Notes, each
of RIMCO II, RIMCO III and RIMCO IV will have the right to exchange the
outstanding principal balance of its Exchangeable Note, at an exchange price of
$3.77, subject to adjustment, for shares of Common Stock of the Company. The
following table sets forth the consideration for the Exchangeable Notes and the
number of shares exchangeable therefor, assuming that the full aggregate
principal amount of the Exchangeable Notes is then outstanding:
Purchaser Exchangeable Note Purchase Amount Shares to be Received
- --------- --------------------------------- ---------------------
RIMCO II $1,650,000 437,665
RIMCO III 210,000 55,703
RIMCO IV 1,140,000 302,387
---------- -------
$3,000,000 795,755
Effective as of May 30, 1996, RIMCO I, RIMCO II, and RIMCO IV, purchased
$6,500,000 of 10% Senior Secured General Obligation Notes (the "New Notes") of
the Company and acquired 278,650 warrants to purchase common stock exercisable
until January 19, 2003 at an exercise price of $5.00 per share (the "New
Warrants"). The New Warrants are in substantially the form filed as Exhibit E
hereto and incorporated herein by reference. No additional consideration, beyond
the amount paid for the purchase of the New Notes, was paid for the New
Warrants. The following table sets forth the consideration paid for the New
Notes and the number of New Warrants received:
Purchaser New Note Purchase Amount New Warrants Received
- --------- ------------------------ ---------------------
RIMCO I $4,095,000 175,550
RIMCO II 741,000 31,766
RIMCO IV 1,664,000 71,334
---------- -------
$6,500,000 278,650
The funds for such purchase were provided on May 31, 1996 out of the
working capital of RIMCO I, RIMCO II, and RIMCO IV. If the New Warrants are
exercised by any of RIMCO I, RIMCO II, or RIMCO IV, the funds which will be used
to pay the exercise price thereof will be provided from the working capital of
such limited partnerships.
<PAGE>
Page 16 of 21 Pages
Item 4. Purpose of Transaction
The Notes, New Notes, Warrants, New Warrants, Exchangeable Notes and
Convertible Notes were acquired for purposes of investment for the accounts of
the respective limited partnerships. The Warrants and the New Warrants are
exercisable at any time on or after January 19, 1996 and May 28, 1996,
respectively, and before the close of business on January 19, 2003; the
Exchangeable Notes are exchangeable at any time on or after January 19, 1996 and
before the close of business on February 1, 2002; and the outstanding principal
amounts of the Convertible Notes are convertible at any time prior to the close
of business on February 1, 1998. Based on an ongoing evaluation of the business,
prospects and financial condition of the Company, the market for and price of
the Common Stock, other investment opportunities available to the reporting
persons, offers for shares of Common Stock, general economic conditions and
other future developments, the reporting persons may decide to exercise the
Warrants or the New Warrants, convert the Convertible Notes, exchange the
Exchangeable Notes, or sell or seek the sale of all or part of the Notes, New
Notes, Warrants, New Warrants, Convertible Notes or Exchangeable Notes or the
beneficial holdings of the Common Stock held by the respective Limited
Partnerships. Other than as described in this Item 4, as of the date hereof,
none of the reporting persons has any plans or proposals that relate to or would
result in any of the actions listed in subparagraphs (a)-(j) of the instructions
to Item 4 of Schedule 13D with respect to the Company as the issuer.
The Company increased its Board of Directors by one director, such vacancy
having been filled by the designee of RIMCO pursuant to the January 19, 1996
transaction, and has agreed to use its best efforts, subject to applicable law,
to increase the size of its Board of Directors by one additional director and to
cause the election of an additional designee of RIMCO to serve as director to
fill the resulting vacancy on the Company's Board. As long as any of the Notes,
the New Notes, the Warrants, the New Warrants or the Convertible Notes (or any
securities exchanged therefor or distributed, issued or issuable with respect
thereto) are outstanding or the Limited Partnerships own an aggregate of 2.5% or
more of the Common Stock, the Limited Partnerships or their designees are
entitled to designate a total of two persons for election to the Board of
Directors of the Company.
The foregoing descriptions of the Warrants and the Convertible Notes are
qualified in their entirety by reference to the Warrant Agreement and the form
of Convertible Note, attached to the Schedul 13D as Exhibits B and C,
respectively, and incorporated herein by reference; the foregoing descriptions
of the Exchangeable Notes, the Guaranty and Exchange Agreement and the First
Amendment to Guaranty and Exchange Agreement are qualified in their entirety by
reference to the form of Exchangeable Note, the Guaranty and Exchange Agreement
and the First Amendment to Guaranty and Exchange Agreement attached hereto as
Exhibits F, G and G-1, respectively; and the foregoing description of the New
Warrants is qualified in its entirety by reference to the New Warrant Agreement
attached hereto as Exhibit E.
Item 5. Interest in Securities of the Issuer
(a) - (b)
Number of Shared Sole
Shares Shared Invest- Sole Invest-
Beneficially Voting ment Voting ment
Name Owned * Power* Power* Power* Power* Percent*
---- ------- ------ ------ ------- ------ --------
Associates 1,384,333 1,384,333 1,384,333 0 0 24.69%
RIMCO 1,384,333 1,384,333 1,384,333 0 0 24.69%
RIMCO I 284,025 284,025 284,025 0 0 5.07%
RIMCO II 577,906 577,906 577,906 0 0 10.31%
RIMCO III 68,100 68,100 68,100 0 0 1.21%
RIMCO IV 454,302 454,302 454,302 0 0 8.10%
<PAGE>
Page 17 of 21 Pages
Number of Shared Sole
Shares Shared Invest- Sole Invest-
Beneficially Voting ment Voting ment
Name Owned * Power* Power* Power* Power* Percent*
---- ------- ------ ------ ------- ------ --------
Roy V. Hood 1,384,333 1,384,333 1,384,333 0 0 24.69%
Paul E. McCollam 1,384,333 1,384,333 1,384,333 0 0 24.69%
David R. Whitney 1,384,333 1,384,333 1,384,333 0 0 24.69%
John B. Parsons 1,384,333 1,384,333 1,384,333 0 0 24.69%
Stephen F. Oakes 1,384,333 1,384,333 1,384,333 0 0 24.69%
- ----------
* As of May 31, 1996
(c) No transactions by any of the reporting persons other than those
transactions identified in Item 3 have taken place in the last 60 days.
(d) - (e)Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer
RIMCO is the managing general partner of RIMCO I, RIMCO II, RIMCO III and
RIMCO IV, which own Warrants (and, in the case of RIMCO I, RIMCO II and RIMCO
IV, New Warrants) to purchase an aggregate of 233,300, 89,516, 6,600 and
114,234 shares of Common Stock, respectively. RIMCO has a 1.00% interest (on a
profit basis) in the portfolio securities held by RIMCO I, RIMCO II, RIMCO III
and RIMCO IV.
Associates is the managing general partner of RIMCO, which is the managing
general partner of RIMCO I, RIMCO II, RIMCO III and RIMCO IV. Associates has a
55% interest (on a profit basis) in RIMCO, which, as indicated above, has a
1.00% interest (on a profit basis) in the portfolio securities held by RIMCO I,
RIMCO II, RIMCO III and RIMCO IV.
Roy V. Hood, Paul E. McCollam, David R. Whitney and Stephen F. Oakes are
managing directors of RIMCO. Each of Roy V. Hood, Paul E. McCollam and David R.
Whitney is a shareholder of Associates. Mr. Hood is a 34.5% shareholder and
President and a director of Associates. Mr. McCollam is a 23.0% shareholder and
Vice President, Secretary and Treasurer and a director of Associates. Mr.
Whitney is a 23.0% shareholder and a Vice President and a director of
Associates. Mr. Parsons is a 19.5% shareholder and a director of Associates.
RIMCO I is a Delaware limited partnership engaged in the business of making
investments in the energy sector of the natural resource industry. RIMCO I is
the record owner of a Warrant to purchase 57,750 shares of Common Stock plus a
Convertible Note convertible into an additional 50,725 shares of Common Stock,
and a New Warrant to purchase 175,550 shares of Common Stock. RIMCO I has a
combined interest in 284,025 shares of Common Stock or 5.07% of the outstanding
Common Stock as of May 30, 1996.
RIMCO II is a Delaware limited partnership engaged in the business of
making investments in the energy sector of the natural resource industry.
RIMCO II is the record owner of a Warrant to purchase 57,750 shares of Common
Stock, a Convertible Note convertible into an additional 50,725 shares of Common
Stock, an Exchangeable Note exchangeable for 437,665 shares of Common Stock and
a New Warrant to purchase 31,766 shares of Common Stock. RIMCO II has a combined
interest in 577,906 shares of Common Stock or 10.31% of the outstanding Common
Stock as of May 30, 1996.
RIMCO III is a Delaware limited partnership engaged in the business of
making investments in the energy sector of the natural resource industry.
RIMCO III is the record owner of a Warrant to purchase 6,600 shares of
<PAGE>
Page 18 of 21 Pages
Common Stock, a Convertible Note convertible into an additional 5,797 shares of
Common Stock and an Exchangeable Note exchangeable for 55,703 shares of Common
Stock. RIMCO III has a combined interest in 68,100 shares of Common Stock or
1.21% of the outstanding Common Stock as of May 30, 1996.
RIMCO IV is a Delaware limited partnership engaged in the business of
making investments in the energy sector of the natural resource industry.
RIMCO IV is the record owner of a Warrant to purchase 42,900 shares of Common
Stock, a Convertible Note convertible into an additional 37,681 shares of Common
Stock, an Exchangeable Note exchangeable for 302,387 shares of Common Stock, and
a New Warrant to purchase 71,334 shares of Common Stock. RIMCO IV has a combined
interest in 454,302 shares of Common Stock or 8.10% of the outstanding Common
Stock as of May 30, 1996.
Under a Stock Ownership and Registration Rights Agreement entered into as
of January 19, 1996 and filed as Exhibit D to the Schedule 13D and incorporated
herein by reference, amended by the First Amendment to Stock Ownership and
Registration Rights Agreement, filed as Exhibit D-1 hereto and incorporated
herein by reference, the Company has granted the Limited Partnerships certain
demand and "piggy back" registration rights, commencing one year from
January 19, 1996, to register any offer of Common Stock held by the Limited
Partnerships, as well as securities (if any) issued with respect thereto, under
the Securities Act of 1933. The Stock Ownership and Registration Rights
Agreement, as amended, provides for indemnification of the Limited Partnerships
by the Company and indemnification of the Company by the Limited Partnerships
under certain circumstances related to such registration rights.
RIMCO II, RIMCO III and RIMCO IV entered into an agreement on January 19,
1996, amended as of May 28, 1996, with UNEXCO, Inc., a Delaware corporation and
wholly owned subsidiary of the Company, to acquire $3,000,000 of Exchangeable
Notes the form of which is filed as Exhibit F hereto and incorporated herein by
reference. Upon funding of the Exchangeable Notes, Such limited partnerships
will have the right to exchange the outstanding principal balance of the
Exchangeable Notes, at an exchange price of $3.77, subject to adjustment, for
shares of Common Stock of the Company.
The exercise price and number of shares of Common Stock issuable upon
exercise of the Warrants and the New Warrants, the Conversion Price and the
number of shares of Common Stock issuable upon conversion of the Convertible
Notes, and the exchange price and number of shares of Common Stock issuable upon
exchange of the Exchangeable Notes are subject to adjustment upon certain events
such as a reverse stock split or reclassification, merger of the Company or
issuances of Common Stock at a price less than the exercise price, conversion
price, or exchange price, as the case may be.
Item 7. Material to be Filed as Exhibits
A. Agreement for Joint Filing on Behalf of Each Reporting Person
B. Warrant Agreement, including form of Warrant (filed as Exhibit B
to the Schedule 13D and incorporated herein by reference)
C. Form of Convertible Note (filed as Exhibit C to the
Schedule 13D and incorporated herein by reference)
D. Stock Ownership and Registration Rights Agreement among the
the Company, UNEXCO, Inc., a wholly owned subsidiary of
Company, and the Limited Partnerships (filed as Exhibit D
to the Schedule 13D and incorporated herein by reference)
<PAGE>
Page 19 of 21 Pages
D-1 First Amendment to Stock Ownership and Registration Rights
Agreement among the Company, UNEXCO, Inc., a wholly owned
subsidiary of the Company, and the Limited Partnerships
E. New Warrant Agreement, including form of New Warrant
F. Form of Exchangeable Note
G. Guaranty and Exchange Agreement
G-1. First Amendment to Guaranty and Exchange Agreement
<PAGE>
Page 20 of 21 Pages
SIGNATURES
After reasonable inquiry and to the best of the knowledge and belief of
each of the following reporting persons, each reporting person certifies that
the information set forth in this statement is true, complete and correct.
Date: June 11, 1996
Signature: Resource Investors Management Company
Limited Partnership
By: RIMCO Associates, Inc.,
Its General Partner
By: /s/ Paul E. McCollam
__________________________________
Name: Paul E. McCollam
Title:Vice President
Date: June 11, 1996
Signature: RIMCO Associates, Inc.
By: /s/ Paul E. McCollam
__________________________________
Name: Paul E. McCollam
Title: Vice President
Date:June 11, 1996
Signature: RIMCO Partners, L.P.
By: Resource Investors Management Company
Limited Partnership,
Its General Partner
By: RIMCO Associates, Inc.,
Its General Partner
By: /s/ Paul E. McCollam
__________________________________
Name: Paul E. McCollam
Title: Vice President
Date: June 11, 1996
Signature: RIMCO Partners, L.P. II
By: Resource Investors Management Company
Limited Partnership,
Its General Partner
By: RIMCO Associates, Inc.,
Its General Partner
By: /s/ Paul E. McCollam
__________________________________
Name: Paul E. McCollam
Title: Vice President
<PAGE>
Page 21 of 21 Pages
Date: June 11, 1996
Signature: RIMCO Partners, L.P. III
By: Resource Investors Management Company
Limited Partnership,
Its General Partner
By: RIMCO Associates, Inc.,
Its General Partner
By: /s/ Paul E. McCollam
__________________________________
Name: Paul E. McCollam
Title: Vice President
Date: June 11, 1996
Signature: RIMCO Partners, L.P. IV
By: Resource Investors Management Company
Limited Partnership,
Its General Partner
By: RIMCO Associates, Inc.,
Its General Partner
By: /s/ Paul E. McCollam
__________________________________
Name: Paul E. McCollam
Title: Vice President
Date: June 11, 1996
Signature: /s/ Roy V. Hood
__________________________________
Roy V. Hood
Date: June 11, 1996
Signature: /s/ Paul E. McCollam
__________________________________
Paul E. McCollam
Date: June 11, 1996
Signature: /s/ David R. Whitney
__________________________________
David R. Whitney
Date: June 11, 1996
Signature: /s/ Stephen F. Oakes
__________________________________
Stephen F. Oakes
Date: June 11, 1996
Signature: /s/ John B. Parsons
__________________________________
John B. Parsons
Exhibit A
AGREEMENT
Pursuant to Rule 13d-1(f) under the Securities Exchange Act of 1934, each
of the undersigned hereby agrees to the filing of this Statement on
Schedule 13D/A on its behalf.
This agreement may be signed in one or more counterparts.
Resource Investors Management
Company Limited Partnership,
Its General Partner
By: RIMCO Associates, Inc.,
Its General Partner
Date: June 11, 1996 By: /s/ Paul E. McCollam
__________________________________
Name: Paul E. McCollam
Title: Vice President
RIMCO Associates, Inc.
Date: June 11, 1996 By: /s/ Paul E. McCollam
__________________________________
Name: Paul E. McCollam
Title: Vice President
RIMCO Partners, L.P.
By: Resource Investors Management Company
Limited Partnership,
Its General Partner
By: RIMCO Associates, Inc.,
Its General Partner
Date: June 11, 1996 By: /s/ Paul E. McCollam
__________________________________
Name: Paul E. McCollam
Title: Vice President
RIMCO Partners, L.P. II
By: Resource Investors Management Company
Limited Partnership,
Its General Partner
By: RIMCO Associates, Inc.,
Its General Partner
Date: June 11, 1996 By: /s/ Paul E. McCollam
__________________________________
Name: Paul E. McCollam
Title: Vice President
<PAGE>
RIMCO Partners, L.P. III
By: Resource Investors Management Company
Limited Partnership,
Its General Partner
By: RIMCO Associates, Inc.,
Its General Partner
Date: June 11, 1996 By: /s/ Paul E. McCollam
__________________________________
Name: Paul E. McCollam
Title: Vice President
RIMCO Partners, L.P. IV
By: Resource Investors Management Company
Limited Partnership,
Its General Partner
By: RIMCO Associates, Inc.,
Its General Partner
Date: June 11, 1996 By: /s/ Paul E. McCollam
__________________________________
Name: Paul E. McCollam
Title: Vice President
Date: June 11, 1996 /s/ Roy V. Hood
__________________________________
Roy V. Hood
Date: June 11, 1996 /s/ Paul E. McCollam
__________________________________
Paul E. McCollam
Date: June 11, 1996 /s/ David R. Whitney
__________________________________
David R. Whitney
Date: June 11, 1996 /s/ Stephen F. Oakes
__________________________________
Stephen F. Oakes
Date: June 11, 1996 /s/ John B. Parsons
__________________________________
John B. Parsons
EXHIBIT D-1
FIRST AMENDMENT TO
STOCK OWNERSHIP AND REGISTRATION RIGHTS AGREEMENT
This First Amendment to Stock Ownership and Registration Rights Agreement
(this "First Amendment") dated as of May 28, 1996 is between Universal Seismic
Associates, Inc., a Delaware corporation ("USA" or the "Company"), UNEXCO, Inc.,
a Delaware corporation and wholly owned subsidiary of USA ("UNEXCO"), and RIMCO
Partners, L.P. ("RIMCO I"), RIMCO Partners, L.P. II ("RIMCO II"), RIMCO
Partners, L.P. III, and RIMCO Partners, L.P. IV ("RIMCO IV"), each a Delaware
limited partnership (collectively, the "RIMCO Holders," and together with their
distributees, successors and assigns, the "Holders"). RIMCO I, RIMCO II and
RIMCO IV are referred to in this First Amendment as the "Additional RIMCO
Holders."
PRELIMINARY STATEMENTS
A. The Company and the Additional RIMCO Holders have entered into that
certain Warrant Agreement, dated May 28, 1996 (as amended from time to time, the
"Second Warrant Agreement"), which provides for the issuance of warrants (the
"Warrants") to purchase an aggregate of 278,650 shares of common stock (the
"Additional Shares"), par value $.0001 per share, of USA (the "Common Stock"),
subject to adjustment as set forth therein.
B. USA, UNEXCO and the RIMCO Holders have heretofore entered into that
certain Stock Ownership and Registration Rights Agreement, dated January 19,
1996 (the "Registration Rights Agreement"), whereby, among other things, USA
agreed to effect the registration of the offering and sale of the Registrable
Securities (as defined in the Registration Rights Agreement).
C. USA, UNEXCO and the RIMCO Holders now desire to amend the Registration
Rights Agreement with respect to the matters set forth herein and to include in
the Registrable Securities subject to the Registration Rights Agreement the
Additional Shares and the Related Securities provided for in the Second Warrant
Agreement.
D. Capitalized terms used herein shall have the respective meanings
described thereto in the Second Warrant Agreement unless herein defined or the
context shall otherwise require.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, USA, UNEXCO and the RIMCO Holders agree as follows:
SECTION 1. AMENDMENTS.
1.1 The definition of "Related Securities" in Section 1.01 of the
Registration Rights Agreement is hereby amended in its entirety to read as
follows:
-1-
<PAGE>
"Related Securities" means, collectively, other than the Shares,
(i) any and all securities issued or issuable as a result of
adjustments made under the Note Purchase Agreements or the Warrant
Agreement or the Second Warrant Agreement, and in each case any and
all securities otherwise exchanged therefor or distributed, issued or
issuable with respect thereto and (ii) any and all securities of the
Company or any successor thereto or assignee thereof that are
hereafter transferred, distributed, issued or issuable to the Holders.
1.2 Section 1.01 of the Registration Rights Agreement is hereby amended to
include, in alphabetical order, the following definition:
"Second Warrant Agreement" means that certain Warrant Agreement
dated as of May 28, 1996, by and among Universal Seismic Associates,
Inc., RIMCO Partners, L.P., RIMCO Partners, L.P. II, and RIMCO
Partners, L.P. IV.
1.3 In the Registration Rights Agreement, all references to the Warrant
Agreement are hereby amended to be references to the Warrant Agreement and the
Second Warrant Agreement, and all references to the Warrants are hereby amended
to include the Warrants issued pursuant to the Second Warrant Agreement.
1.4 Section 1.01 of the Registration Rights Agreement is hereby amended to
include, in alphabetical order, the following definition:
"Additional Transaction Documents" means the Second Warrant
Agreement and the transaction documents executed and delivered
concurrently with the Second Warrant Agreement.
1.5 Section 1.01 of the Registration Rights Agreement is hereby amended to
include, in alphabetical order, the following definition:
"10% Notes" means the 10% Senior Secured General Obligation Notes
issued by the Company pursuant to the Note Purchase Agreement dated as
of even date herewith among the Company and the Additional RIMCO
Holders, as the same may from time to time be amended, modified,
restated or supplemented.
1.6 Section 1.03 of the Registration Rights Agreement is hereby amended in
its entirety to read as follows:
Subject to compliance with applicable law, immediately following
the effective date of the Second Warrant Agreement, the RIMCO Holders
holding not less than a majority (in then market value) of the then
outstanding Registrable Securities held by the RIMCO Holders, or any
designee thereof, shall be entitled to designate a total of
-2-
<PAGE>
two persons to be members of the Company's Board of Directors.
Immediately following the effective date of the Second Warrant
Agreement, the Company shall take such action as is required under its
charter and bylaws to increase the size of the Company's Board of
Directors by one and will use its best efforts, subject to compliance
with applicable law, to elect or cause to be elected to fill the
vacancy so created one additional person designated by the RIMCO
Holders or their designee, which person shall be in addition to the
person previously designated by the RIMCO Holders or their designee.
So long as (i) any of the USA Senior Notes, the USA Convertible Notes,
the UNEXCO Notes, the 10% Notes or the Warrants (or any securities
exchanged therefor or distributed, issued or issuable with respect
thereto and held by or issuable to the Holders) are outstanding or
(ii) the RIMCO Holders, together with their affiliates, own an
aggregate of 2.5% or more of the USA Common Stock, however acquired
(or a then comparable proportion of the equity securities of the
Company entitled to vote for the election of directors), the RIMCO
Holders or their designee shall be entitled to the benefits of this
Section 1.03, which shall be applicable to each of the two directors
provided for herein (a total of two directors). In the event of any
resignation, removal, death or other termination of any director so
designated by the RIMCO Holders or their designee, or the failure of
the stockholders of the Company for any reason to elect such designee
or to reelect such director, the RIMCO Holders holding not less than a
majority (in then market value) of the then outstanding Registrable
Securities held by the RIMCO Holders, or any designee thereof, shall
be entitled to designate one person to serve on the Company's Board of
Directors in place of each such previously designated person, and the
Company will use its best efforts, subject to compliance with
applicable law, to elect or cause to be elected to the Board of
Directors each such person so designated by the RIMCO Holders or their
designee (a total of two directors). The RIMCO Holders hereby
undertake and agree that, not later than 15 days following written
request from the Company, the RIMCO Holders or their designee shall
furnish to the Company's Board of Directors such information with
respect to each such director designee as is required to comply with
applicable law, rule or regulation, and with Items 401 and 404 of
Regulation S-K or Regulation S-B or any successor regulation under the
1933 Act, if then applicable to the Company.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF USA AND THE COMPANY.
2.1 USA and UNEXCO represent and warrant to the RIMCO Holders that:
(a) this First Amendment has been duly authorized, executed and
delivered by them and this First Amendment constitutes the legal, valid and
binding obligation of USA and UNEXCO enforceable against them in accordance
with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors' rights generally;
-3-
<PAGE>
(b) The Registration Rights Agreement, as amended by this First
Amendment, constitutes the legal, valid and binding obligation of USA and
UNEXCO enforceable against them in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or limiting
creditors' rights generally;
(c) the execution, delivery and performance by USA and UNEXCO of this
First Amendment (i) has been duly authorized by all requisite corporate
action and, if required, shareholder action, (ii) does not require the
consent or approval of any governmental or regulatory body or agency, and
(iii) will not (A) violate (1) any provision of law, statute, rule or
regulation or its certificate of incorporation or bylaws, (2) any order of
any court or any rule, regulation or order of any other agency or
government binding upon it, or (3) any provision of any material indenture,
agreement or other instrument to which it is a party or by which its
properties or assets are or may be bound, or (B) result in a breach or
constitute (alone or with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument;
(d) all representations and warranties contained in the Registration
Rights Agreement and in the Additional Transaction Documents are true and
correct in all material respects with the same force and effect as if made
by USA or the Company, as applicable, on and as of the date hereof.
(e) the Company hereby represents and warrants that the Board of
Directors of USA has taken all actions necessary under Delaware law,
including, without limitation, the approval of the Additional Transaction
Documents and the consummation of the transactions contemplated thereby, to
render the provisions of Section 203 of the Delaware General Corporation
Law inapplicable to the RIMCO Holders and their affiliates and to the
transactions contemplated in the Additional Transaction Documents,
including, without limitation, the acquisition of shares of USA Common
Stock by the RIMCO Holders pursuant to the transactions contemplated by the
Second Warrant Agreement, as may be amended from time to time.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT.
3.1 This First Amendment shall not become effective until, and shall become
effective when, each of the following conditions shall have been satisfied:
(a) executed counterparts of this First Amendment, duly executed by
USA, UNEXCO and the RIMCO Holders, shall have been delivered to the RIMCO
Holders;
(b) the RIMCO Holders shall have received a copy of the resolutions of
the Board of Directors of USA and UNEXCO authorizing the execution,
delivery and performance by
-4-
<PAGE>
USA and UNEXCO of this First Amendment, certified by their respective
Secretary or Assistant Secretary;
(c) the representations and warranties of USA and UNEXCO set forth in
Section 2 hereof are true and correct on and as of the date hereof; and
(d) the RIMCO Holders shall have received the favorable opinion of
counsel to USA and UNEXCO as to the matters set forth in Sections 2.1(a),
2.1(b) and 2.1(c) hereof, which opinion shall be in form and substance
satisfactory to the RIMCO Holders.
SECTION 4. PAYMENT OF RIMCO HOLDERS' COUNSEL FEES AND EXPENSES.
4.1 USA and UNEXCO agree to pay, upon demand, the reasonable fees and
expenses of Andrews & Kurth L.L.P., counsel to the RIMCO Holders, in connection
with the negotiation, preparation, approval, execution and delivery of this
First Amendment.
SECTION 5. MISCELLANEOUS.
5.1 This First Amendment shall be construed in connection with and as part
of the Registration Rights Agreement, and except as modified and expressly
amended by this First Amendment, all terms, conditions, and covenants contained
in the Registration Rights Agreement are hereby ratified and shall be and remain
in full force and effect.
5.2 Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this First Amendment
may refer to the Registration Rights Agreement without making specific reference
to this First Amendment but nevertheless all such references shall include this
First Amendment unless the context otherwise requires.
5.3 The descriptive headings of the various Sections or parts of this First
Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
5.4 This First Amendment shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the laws of the State
of New York, excluding choice-of-law principles of the law of such State that
would require the application of the laws of a jurisdiction other than such
State.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective representatives thereunto duly authorized,
effective as of the date first above written.
UNIVERSAL SEISMIC ASSOCIATES, INC.
By: /s/ Michael J. Pawelek
-----------------------------
Name: Michael J. Pawelek
Title: President
UNEXCO, INC.
By: /s/ Michael J. Pawelek
-----------------------------
Name: Michael J. Pawelek
Title: President
RIMCO PARTNERS, L.P.
RIMCO PARTNERS, L.P. II,
RIMCO PARTNERS, L.P. III, and
RIMCO PARTNERS, L.P. IV
By: Resource Investors Management
Company Limited Partnership,
their general partner
By: RIMCO Associates, Inc.,
its general partner
By: /s/ Gary Milavec
-----------------------------
Name: Gary Milavec
Title: Vice President
-6-
EXHIBIT E
WARRANT AGREEMENT
WARRANT AGREEMENT (this "Agreement") dated as of May 28, 1996, by and
between the persons or entities listed on Exhibit A hereto (which Exhibit and
all other exhibits to which reference is herein made shall be incorporated
herein for all purposes by such reference) (sometimes individually as a
"Subscriber" and collectively as "Subscribers") and UNIVERSAL SEISMIC
ASSOCIATES, INC., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, at the date hereof, the authorized capital of the Company consists
of 20,000,000 shares of Common Stock, par value $.0001 per share, of which
4,221,420 shares are issued and outstanding; and
WHEREAS, the Company proposes to issue the Notes pursuant to the Note
Purchase Agreement executed as of even date herewith; and
WHEREAS, in order to induce the Subscribers to purchase the Notes pursuant
to the Note Purchase Agreement, the Company desires to issue, and Subscribers
desire to acquire, warrants (each a "Warrant"), in substantially the form of the
Warrant attached hereto as Exhibit B, to purchase an aggregate of 278,650 shares
of Common Stock exercisable at the Initial Purchase Price; both the Initial
Purchase Price and the number of shares of Common Stock issuable upon exercise
of a Warrant (the "Warrant Amount") being subject to possible adjustment as
provided in the form of Warrant, on the terms and conditions more fully
hereinafter set forth;
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement,
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities and Exchange Act of 1934, as amended.
"Annual Report" means the Company's annual report on Form 10-KSB filed with
the Commission for the Company's fiscal year ended June 30, 1995.
"Certificate of Incorporation" means the Certificate of Incorporation, as
amended, of the Company in effect on the date hereof and as filed with the
Secretary of State of Delaware.
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<PAGE>
"Closing" and "Closing Date" mean, respectively, the consummation of the
transaction contemplated in this Agreement and the date thereof.
"Commission" means the Securities and Exchange Commission of the United
States of America.
"Common Stock" has the meaning specified in the Warrant attached as Exhibit
B.
"Initial Purchase Price" means $5.00 per share of Common Stock, subject to
possible adjustment as provided in this Agreement.
"Material Adverse Effect" has the meaning specified in Annex A to the Note
Purchase Agreement.
"Note Purchase Agreement" means that certain Note Purchase Agreement dated
as of even date herewith between the Company and the Subscribers, as the same
may from time to time be amended, modified, restated or supplemented.
"Notes" means the 10% Senior Secured General Obligation Notes issued by the
Company pursuant to the Note Purchase Agreement.
"Person" has the meaning specified in Annex A to the Note Purchase
Agreement.
"Registration Rights Agreement" means the Stock Ownership and Registration
Rights Agreement dated as of January 19, 1996, as amended by the First Amendment
thereto dated as of the date hereof, among the Company and the other parties
named therein, including the Subscribers.
"Shares" has the meaning specified in the Warrant attached as Exhibit B.
"Subscriber" means those Persons listed on Exhibit A hereto, and any
successor or assignee of such Person.
"Transaction Documents" has the meaning specified in the Note Purchase
Agreement.
"Warrant Securities" means the shares of Common Stock or other securities
distributed, issued or issuable to any Subscriber (or any holder of the Warrant)
upon exercise of a Warrant issued pursuant to the terms of this Agreement and
the Warrant.
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ARTICLE II
ISSUANCE OF WARRANTS
Section 2.01. Issuance of Warrants. On the basis of the representations and
warranties of the Company and Subscribers set forth in this Agreement, and
subject to the conditions to Closing hereinafter provided, each Subscriber
severally subscribes for and agrees to acquire, and the Company agrees to issue
and deliver to such Subscriber, for consideration hereby acknowledged, Warrants
exercisable at any time on or after the Closing Date to purchase the number of
shares of Common Stock set forth opposite such Subscriber's name on Exhibit A.
Section 2.02. Closing. Consummation of the transactions contemplated in
this Agreement shall be effected at the offices of Andrews & Kurth L.L.P. in
Houston, Texas, on May 28, 1996, or at such other time or place as the parties
may mutually agree. At the Closing, the Company will issue to each Subscriber,
for consideration hereby acknowledged, Warrants to purchase the number of shares
of Common Stock set forth opposite such Subscriber's name on Exhibit A, each
such Warrant to be in substantially the form attached hereto as Exhibit B with
the blanks appropriately filled in.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to and agrees with each Subscriber as
follows:
Section 3.01. Organization and Qualification. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power to carry on its business
as now conducted, and the Company has the corporate power to enter into and
perform this Agreement and to issue and deliver the Warrants as herein provided.
The Company and each of its Subsidiaries are duly qualified to do business and
are in good standing as foreign corporations in all foreign jurisdictions where
their ownership or leasing of properties for the conduct of their respective
business requires such qualification, except where failure to be so qualified
would not have a Material Adverse Effect. True and correct copies of the
Company's Amended and Restated Bylaws and Certificate of Incorporation have been
certified by the Company and delivered at the Closing. Neither the Certificate
of Incorporation nor the Amended and Restated Bylaws, as so certified, have
otherwise been modified or amended.
Section 3.02. Capitalization. The authorized capital stock of the Company
consists of 20,000,000 shares of Common Stock, par value $.0001 per share, of
which 4,221,420 shares are issued and outstanding on the date hereof. No other
shares of capital stock of the Company are issued or outstanding on the date
hereof. The shares of Common Stock issued and outstanding at the date hereof are
validly issued, fully paid and nonassessable. The shares of Common Stock issued
and outstanding at the date hereof have been issued in accordance with Delaware
law and with all applicable federal and Texas securities laws. The shares of
Common Stock (and, if applicable, other Warrant Securities), upon issuance and
payment therefor as provided in the Warrant, will be validly issued, fully paid
and nonassessable. There are no outstanding convertible securities,
subscriptions,
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options, calls or other agreements, equities, claims or commitments relating to
the acquisition from the Company of shares of its capital stock except as
disclosed in the Annual Report or on Exhibit C hereto.
Section 3.03. Reaffirmation of Representations and Warranties. All of the
representations and warranties of the Company set forth in this Agreement and
the Note Purchase Agreement, and in any and all other instruments, agreements
and certificates executed by Company in connection with consummation of the
transactions contemplated in this Agreement and the Note Purchase Agreement, are
true and correct.
Section 3.04. Authority. The Board of Directors of the Company has taken
all action required by law, its Certificate of Incorporation, its Amended and
Restated Bylaws and otherwise, to authorize the execution, delivery and
performance of this Agreement, and the sale and issuance of the Warrants and the
reservation for issuance of the Common Stock issuable upon the exercise of the
Warrants; and this Agreement is the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as
otherwise limited by bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights, and principles of equity and except
insofar as the enforceability of the indemnification provisions of Section 7.09
of this Agreement may be limited by applicable law. The execution and delivery
of this Agreement does not and the performance of this Agreement by the Company
will not:
(i) violate any provision of the Certificate of Incorporation or the
Amended and Restated Bylaws of the Company or constitute a default under
any material loan or credit agreement, indenture, mortgage, deed of trust
or other contract or agreement to which the Company is a party or by which
it is bound; or
(ii) violate any order, writ, injunction or decree of any court,
administrative agency or governmental body that is applicable to the
Company.
Section 3.05. Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state, local or provincial governmental authority on
the part of the Company is required in connection with the consummation of the
transactions contemplated by this Agreement or the Warrant.
Section 3.06. Commission Filings. The Company is a public company with
Common Stock duly registered under Section 12(g) of the 1934 Act. The Company is
current in all of the filing requirements applicable to it under the 1934 Act,
and the regulations promulgated thereunder, on the appropriate forms required
therefor. All such filings contain substantially all information required to be
disclosed therein under the 1934 Act and the regulations promulgated thereunder,
and none of such information contains any untrue statement of a material fact or
omits any material fact necessary to make the statements made under the
circumstances which they were made not misleading.
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Section 3.07. Disclosure. The representations and warranties of the Company
made herein and in any other statements or certificates made or delivered in
connection herewith contain no untrue statement of a material fact and omit no
material fact necessary to make the statements herein or therein not misleading.
Section 3.08. Registration Rights. The Company has not entered into or
proposed to enter into, and does not currently intend to enter into, any oral or
written agreement with any person or entity (other than the Registration Rights
Agreement) to register for sale or public distribution any of the Company's
capital stock or other securities under the 1933 Act or any state securities
act, other than the registration rights granted pursuant to the Registration
Rights Agreement and those described on Exhibit D hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SUBSCRIBERS
Each Subscriber represents and warrants to and agrees with the Company as
follows:
Section 4.01. Organization. Each of RIMCO Partners, L.P., RIMCO Partners,
L.P. II and Rimco Partners, L.P. IV is a limited partnership duly organized and
existing under the laws of the State of Delaware, and each Subscriber has all
partnership power and authority to carry on its respective business as currently
conducted and to enter into and perform this Agreement.
Section 4.02. Investment Purpose. The Warrants to be acquired by each
Subscriber pursuant to this Agreement, and the Warrant Securities, are being, or
will be, acquired for investment for such Subscriber's own account and not with
a view to, or for resale in connection with, any distribution of such securities
within the meaning of the 1933 Act, and such securities will not be sold or
otherwise disposed of without registration or other compliance under the 1933
Act or exemption therefrom. Each Subscriber agrees that the Warrants and the
certificate or certificates (or other instrument or instruments) representing
the Warrant Securities may be inscribed with a legend substantially as follows:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "1933
Act"), or the securities laws of any state. Such securities may not be
sold or otherwise disposed of unless pursuant to a registered offering
or by transfer exempt from registration or unless sold pursuant to
Rule 144 under the 1933 Act."
Each Subscriber agrees that the Company may place a stop transfer order
with its transfer agent, if any, with respect to the Warrants and Warrant
Securities. Each Subscriber represents that it was not organized for the
specific purpose of acquiring the Warrants or Warrant Securities and that it is
an "accredited investor" within the meaning of Regulation D under the 1933 Act.
Each Subscriber acknowledges that neither the Warrants nor the Warrant
Securities have been registered by the Company pursuant to the registration
provisions of the 1933 Act or the securities laws of any
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state in reliance upon the availability of exemptions from such registration
that depend in part on each Subscriber's representations contained herein.
The above legend shall be removed from the certificates or instruments
evidencing the Warrant Securities, and the Company shall issue a certificate or
instrument without such legend to the holder of such security (i) if such
security is registered under the 1933 Act or (ii) in the case of any holder who
is not an affiliate of the Company within the meaning of Rule 144, upon the
occurrence of the date on which such holder satisfies the requisite holding
period requirement contained in Rule 144(k) under the 1933 Act, provided that
Rule 144 or any other rule or regulation promulgated under or pursuant to the
1933 Act does not, in the opinion of the Company's counsel, impose, at such
time, any restrictions on the transfer of such securities, other than
satisfaction of the holding period requirement contained therein.
Section 4.03. Non-Registration. Each Subscriber has been advised that the
Warrant Securities to be acquired by such Subscriber pursuant to this Agreement
must be held indefinitely by such Subscriber unless such Warrant Securities are
subsequently registered under or sold in compliance with the 1933 Act or an
exemption from such registration is available. The Company has the obligations
set forth in the Registration Rights Agreement to register the Warrant
Securities for resale.
Section 4.04. Authority. Each Subscriber represents that all action
required by law, its partnership agreement or other similar document governing
the internal affairs of Subscriber or otherwise, has been taken to authorize the
execution, delivery and performance of this Agreement and the acquisition of the
Warrants and Warrant Securities to be acquired by such Subscriber pursuant
hereto. This Agreement is the valid and binding obligation of each Subscriber
enforceable against such Subscriber in accordance with its terms, except as
otherwise limited by bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights, and principles of equity, and except
insofar as the enforceability of the indemnification provisions of Section 7.09
of this Agreement may be limited by applicable laws. The execution and delivery
of this Agreement by each Subscriber does not, and the performance of this
Agreement by such Subscriber will not, (i) violate any provision of the
partnership agreement or other similar document governing the internal affairs
of such Subscriber or constitute a default under any material loan or credit
agreement, indenture, mortgage, deed of trust or other material contract or
agreement to which such Subscriber is a party or by which such Subscriber is
bound, or (ii) violate any order, writ, injunction or decree of any court,
administrative agency or governmental body.
Section 4.05. Reaffirmation of Representations and Warranties. All of the
representations and warranties of the Subscribers set forth in this Agreement
and the Note Purchase Agreement, and in any and all other instruments,
agreements and certificates executed by the Subscribers in connection with the
consummation of the transactions contemplated in this Agreement and the Note
Purchase Agreement, are true and correct.
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ARTICLE V
CONDITIONS TO CLOSING
Section 5.01. Conditions to Subscribers' Obligations. The obligations of
the Subscribers hereunder shall be subject to the fulfillment prior to or
contemporaneously with the Closing of each of the following conditions, any one
or more of which can be waived only with the written consent of all of the
Subscribers:
(i) Each of the representations and warranties pertaining to the
Company contained herein or in the Warrants or in any certificate,
instrument or other document delivered by or on behalf of the Company in
connection herewith shall be true and correct in all material respects on
and as of the Closing Date with the same force and effect as if such
representation and warranty had then been made, and the Subscribers shall
have received a certificate to that effect, satisfactory in form and
substance to the Subscribers, dated the Closing Date and executed by the
Chief Executive Officer of the Company.
(ii) The Company shall have performed and complied with all covenants,
obligations, agreements and conditions required by this Agreement to be
performed or complied with by the Company on or prior to the Closing Date,
and the Subscribers shall have received a certificate to that effect,
satisfactory in form and substance to the Subscribers, dated the Closing
Date and executed by the Chief Executive Officer of the Company.
(iii) There shall not have occurred, in the good faith and reasonable
opinion of the Subscribers, any material adverse changes in the assets,
liabilities, financial condition, business, operations, affairs or
circumstances of the Company.
(iv) The Subscribers shall have received the First Amendment to the
Registration Rights Agreement dated the Closing Date and duly authorized,
executed and delivered by the Company and its wholly owned subsidiary party
thereto.
(v) At the time of Closing, all legal matters incident to the
transactions herein contemplated shall be satisfactory in form and
substance to Andrews & Kurth L.L.P., counsel for the Subscribers.
(vi) The Company shall have caused Boyer, Ewing & Harris Incorporated,
counsel to the Company, to deliver to Subscribers an opinion dated the
Closing Date substantially in the form attached to the Note Purchase
Agreement.
Section 5.02. Conditions to Obligations of the Company. The obligations of
the Company hereunder shall be subject to the fulfillment, prior to or
contemporaneously with the Closing, of each of the following conditions, any one
or more of which may be waived by the Company:
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(i) Each of the representations and warranties of each Subscriber
contained herein or in any certificate, instrument or other document
delivered by or on behalf of any such Subscriber in connection herewith
shall be true and correct in all material respects on and as of the Closing
Date with the same force and effect as if such representation and warranty
had been made on such date, and the Company shall have received a
certificate to that effect, satisfactory in form and substance to the
Company, dated the Closing Date and executed by a duly authorized officer
or agent of such Subscriber.
(ii) Each Subscriber shall have performed and complied with all
covenants, obligations, agreements and conditions required by (1) this
Agreement to be performed or complied with by such Subscriber on or prior
to the Closing Date and (2) the Note Purchase Agreement to be performed or
complied with by such Subscriber on or prior to the closing date thereof,
and the Company shall receive a certificate to that effect, satisfactory in
form and substance to the Company, dated the Closing Date and executed by a
duly authorized officer or agent of such Subscriber.
(iii) At the time of Closing, all legal matters incident to the
transactions herein contemplated shall be satisfactory in form and
substance to Boyer, Ewing & Harris Incorporated, counsel for the Company.
ARTICLE VI
COVENANTS OF THE COMPANY
The Company covenants and agrees with Subscribers as follows:
Section 6.01. Reporting Requirements. The Company will furnish to each
Subscriber copies of all public filings made by or on behalf of the Company with
the Commission, and all press releases prepared or released by the Company or
its employees or agents.
Section 6.02. Inspection. The Company shall permit each Subscriber and any
subsequent holder of a Warrant, at such person's expense, to visit and inspect
the Company's properties, to examine its books of account and records and to
discuss the Company's affairs, finances and accounts with its officers, all at
such reasonable times as may be requested by such person, provided that any
holder of a Warrant shall have the same inspection rights as a stockholder of
the Company under Delaware law.
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ARTICLE VII
MISCELLANEOUS
Section 7.01. Amendment. This Agreement may be amended only upon the
written approval of the Company and each Subscriber whose obligations or
benefits under this Agreement are affected by such amendment.
Section 7.02. Assignability. This Agreement and all rights and remedies of
Subscribers hereunder may be assigned by the Subscribers in whole or in part.
Section 7.03. Notices. All notices and other communications provided for
hereunder shall be in writing and sent (i) by telecopy if the sender on the same
day sends a confirming copy of such notice by a recognized overnight delivery
service (charges prepaid) or (ii) by registered or certified mail with return
receipt requested (postage prepaid) or (iii) by a recognized overnight delivery
service (with charges prepaid).
(i) if to the Company, at Universal Seismic Associates, Inc., 16420
Park Ten Place, Suite 300, Houston, Texas 77084-5051, Telecopy No.:
713-578-7091, or such other address as it shall have specified to the
Subscribers in writing; or
(ii) if to a Subscriber, at each of its addresses set forth below, or
such other address as it shall have specified to the Company in writing.
Notices given under this Section 7.03 shall be deemed given only when actually
received.
Section 7.04. Parties in Interest; Binding Effect. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective heirs, legal representatives, successors and assigns of the parties
hereto. Nothing in this Agreement, expressly or impliedly, is intended to confer
upon any party, other than the parties hereto and their respective heirs, legal
representatives, successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
Section 7.05. Section and Other Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
Section 7.06. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such
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prohibition or unenforceability in any jurisdiction shall (to the full extent
permitted by law) not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 7.07. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the laws
of the State of New York, excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
Section 7.08. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. Each counterpart may consist of a number of
copies hereof, each signed by less than all, but together signed by all, of the
parties hereto.
Section 7.09. Finders' Fees. Each party hereto represents that it neither
is nor will be obligated for any finders' fees or commission in connection with
the transactions referenced herein. Each Subscriber agrees to indemnify and to
hold harmless the Company from any liability for any commission or compensation
in the nature of finders' fees (and the costs and expenses of defending against
such liability or asserted liability) for which such Subscriber or any of its
officers, partners, employees, or representatives is responsible.
The Company agrees to indemnify and hold harmless each Subscriber from any
liability for any commission or compensation in the nature of finders' fees (and
the costs and expenses of defending against such liability or asserted
liability) for which the Company or any of its officers, employees or
representatives is responsible.
Section 7.10. Attorney's Fees. The Company agrees to pay all reasonable
fees and expenses of Andrews & Kurth L.L.P. in connection with the negotiation
and execution of this Agreement.
Section 7.11. Survival. The representations, warranties, covenants and
agreements made herein by the Company shall survive (i) any investigation made
by any Subscriber and (ii) the Closing.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective representatives thereunto duly authorized,
effective as of the date first above written.
UNIVERSAL SEISMIC ASSOCIATES, INC.
By: /s/ Michael J. Pawelek
-------------------------
Name: Michael J. Pawelek
Title: President
"SUBSCRIBERS"
RIMCO Partners, L.P.
RIMCO Partners, L.P. II
RIMCO Partners, L.P. IV
By: Resources Investors Management
Company Limited Partnership,
their general partner
By: RIMCO Associates, Inc.,
its general partner
By: /s/ Gary Milavec
-------------------------
Name: Gary Milavec
Title: Vice President
Addresses for Notices:
22 Waterville Road
Avon, Connecticut 06001
Telecopy No.: 213-678-9382
600 Travis Street - Suite 6875
Houston, Texas 77002
Telecopy No.: 713-247-0730
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EXHIBIT A TO
WARRANT AGREEMENT
SUBSCRIBER NUMBER
NAME AND ADDRESS OF SHARES
---------------- ---------
RIMCO Partners, L.P. 175,550
RIMCO Partners, L.P. II 31,766
RIMCO Partners, L.P. IV 71,334
-------
278,650
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EXHIBIT B TO WARRANT AGREEMENT
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE
SECURITIES LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE SOLD OR OTHERWISE
DISPOSED OF UNLESS PURSUANT TO A REGISTERED OFFERING OR BY TRANSFER EXEMPT FROM
REGISTRATION OR UNLESS SOLD PURSUANT TO RULE 144 UNDER THE 1933 ACT. CERTAIN
CAPITALIZED TERMS USED HEREIN WITHOUT DEFINITION HAVE THE MEANINGS SPECIFIED IN
THE WARRANT AGREEMENT DATED AS OF MAY 28, 1996 (THE "WARRANT AGREEMENT").
UNIVERSAL SEISMIC ASSOCIATES, INC.
Common Stock Purchase Warrant
This is to Certify that, for value received, ___________________ (the
"holder"), upon due exercise of this Warrant, is entitled to purchase from
Universal Seismic Associates, Inc., a Delaware corporation (the "Company"), at
any time on or after the Closing Date of the Warrant Agreement, and before the
close of business on January 19, 2003, or if not a trading date on the New York
Stock Exchange, the next following trading date (the "Expiration Date"), all or
any part of ________________________ shares of fully paid and nonassessable
Common Stock, $.0001 par value per share, of the Company (the "Common Stock"),
at a purchase price of $5.00 per share (the "Initial Purchase Price"), both the
Initial Purchase Price and the number of shares of Common Stock issuable upon
exercise of this Warrant being subject to possible adjustment as provided below.
This Warrant is hereinafter called the "Warrant." The holder hereof and all
subsequent holders of this Warrant, to the extent provided herein and in the
Warrant Agreement, shall be entitled to all rights and benefits provided to the
holder or holders hereof pursuant to the terms of that certain Warrant Agreement
and that certain Registration Rights Agreement, each as defined in the Warrant
Agreement.
Section 1. Exercise of Warrant. The holder of this Warrant may, at any time
on or after the Closing Date of the Warrant Agreement, and on or before the
Expiration Date, exercise this Warrant in whole at any time or in part from time
to time for the purchase of the shares of Common Stock or other Warrant
Securities which such holder is then entitled to purchase hereunder at the
Purchase Price (as hereinafter defined). In order to exercise this Warrant in
whole or in part, the holder hereof shall deliver to the Company (i) a written
notice of such holder's election to exercise this Warrant, which notice shall
specify the number of shares of Common Stock to be purchased, (ii) payment of
the aggregate purchase price of the shares of Common Stock being purchased by
certified or bank cashier's check, and (iii) this Warrant, provided that, if
such Warrant Securities have not then been registered under the 1933 Act, the
Company may require that such holder furnish to the Company a written statement
that such holder is purchasing such Warrant Securities for such holder's own
account for investment and not with a view to the distribution thereof, and that
none of such shares will be offered or sold in violation of the provisions of
the 1933 Act. Upon receipt thereof,
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the Company shall, as promptly as practicable, execute or cause to be executed
and deliver to such holder a certificate or certificates representing the
aggregate number of shares of Common Stock (or if applicable, other Warrant
Securities) specified in said notice. The stock certificate or certificates so
delivered shall be in the denomination of 100 shares each or such other
denominations as may be specified in said notice and shall be registered in the
name of such holder or such other name as shall be designated in said notice.
No fractional shares of Common Stock are to be issued upon the exercise of
this Warrant, but the Company shall pay a cash adjustment in respect of any
fraction of a share which would otherwise be issuable in an amount equal to the
same fraction of the market price per share of the Common Stock on the day of
exercise, as reasonably determined by the Company. If this Warrant shall have
been exercised only in part, the Company shall, at the time of delivery of said
certificate or certificates, deliver to such holder a new Warrant evidencing the
rights of such holder to purchase the remaining shares of Common Stock called
for by this Warrant, which new Warrant shall in all other respects be identical
with this Warrant, or, at the request of such holder, appropriate notation may
be made on this Warrant and same returned to such holder. The Company shall pay
all expenses, taxes and other charges payable in connection with the
preparation, execution and delivery of stock certificates under this Section,
except that, if such stock certificates are requested to be registered in a name
or names other than the name of the holder of this Warrant, funds sufficient to
pay all stock transfer taxes which shall be payable upon the execution and
delivery of such stock certificates shall be paid by the holder hereof at the
time of delivering the notice of exercise mentioned above.
The Company represents, warrants and agrees that all shares of Common Stock
issuable upon any exercise of this Warrant in accordance herewith shall be
validly authorized and issued, fully paid and nonassessable.
This Warrant shall not entitle the holder hereof to any of the rights of a
stockholder of the Company prior to exercise in the manner herein provided.
Section 2. Transfer, Division and Combination. Subject to the provisions of
Section 3, this Warrant is transferable in the same manner and with the same
effect as in the case of a negotiable instrument payable to a specified person.
The Company, however, may treat the registered holder hereof as the owner hereof
for all purposes until this Warrant shall have been surrendered for transfer as
hereinafter provided.
Section 3. Compliance with 1933 Act. (i) Each certificate for Common Stock
(or other Warrant Securities) initially issued upon the exercise of this Warrant
and each certificate for Common Stock (or other Warrant Securities) issued to
subsequent transferees of any such certificate shall (unless otherwise permitted
by this Section 3) be stamped or otherwise imprinted with legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
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(THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES
MAY NOT BE SOLD OR OTHERWISE DISPOSED OF UNLESS PURSUANT TO A
REGISTERED OFFERING OR BY TRANSFER EXEMPT FROM REGISTRATION OR UNLESS
SOLD PURSUANT TO RULE 144 UNDER THE 1933 ACT."
(ii) The holder understands that it may be entitled to certain registration
rights pursuant to the Registration Rights Agreement aforementioned which are
applicable to its shares of Common Stock (and, if applicable, other Warrant
Securities).
Section 4. Adjustment of Purchase Price. (i) As used herein:
(1) "Purchase Price" at any time shall mean the price per share of
Common Stock of the Company at which this Warrant shall then be exercisable
(including the Initial Purchase Price) in accordance with the provisions
hereof.
(2) The term "Shares" means, collectively, shares of Common Stock (i)
issued or issuable upon exercise of the Warrants and (ii) exchanged for, or
distributed, issued or issuable with respect to, the shares included in
clause (i) of this definition. In case by reason of the operation of this
Section 4 this Warrant shall be exercisable for any other shares of stock
or other securities or property of the Company or of any other corporation,
any reference herein to the exercise of this Warrant shall be deemed to
refer to and include the exercise of this Warrant for such other shares of
stock or other securities or property.
The Purchase Price and the number of shares of Common Stock and the number or
amount of any other securities and property as hereinafter provided for which
this Warrant may be exercisable shall be subject to adjustment from time to time
effective upon each occurrence of any of the following events.
(ii) If the Company shall declare or pay any dividend with respect to its
Common Stock payable in Common Stock, subdivide the outstanding shares of Common
Stock into a greater number of shares of Common Stock, or reduce the number of
shares of Common Stock outstanding (by stock split, reverse stock split,
reclassification or otherwise than by repurchase of its Common Stock) (any of
such events being hereinafter called a "Stock Split"), the Purchase Price and
number of shares of Common Stock issuable upon exercise of this Warrant shall be
appropriately adjusted so as to entitle the holder hereof to receive upon
exercise of this Warrant, for the same aggregate consideration provided herein,
the same number of shares of Common Stock (plus cash in lieu of fractional
shares) as the holder would have received as a result of such Stock Split had
such holder exercised this Warrant in full immediately prior to such Stock
Split.
(iii) If the Company shall merge or consolidate with or into one or more
corporations or partnerships and the Company is the sole surviving corporation,
or the Company shall adopt a plan of recapitalization or reorganization in which
shares of Common Stock are exchanged for or changed
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<PAGE>
into another class of stock or other security or property of the Company, the
holder of this Warrant shall, for the same aggregate consideration provided
herein, be entitled upon exercise of this Warrant to receive in lieu of the
number of shares of Common Stock as to which this Warrant would otherwise be
exercisable, the number of shares of Common Stock or other securities (plus cash
in lieu of fractional shares) or property to which such holder would have been
entitled pursuant to the terms of the agreement or plan of merger,
consolidation, recapitalization or reorganization had such holder exercised this
Warrant in full immediately prior to such merger, consolidation,
recapitalization or reorganization.
(iv) If the Company is merged or consolidated with or into one or more
corporations or partnerships under circumstances in which the Company is not the
sole surviving corporation, or if the Company sells or otherwise disposes of
substantially all its assets, and in connection with any such merger,
consolidation or sale the holders of Common Stock receive stock or other
securities convertible into equity of the surviving or acquiring corporations or
entities, or other securities or property after the effective date of such
merger, consolidation or sale, as the case may be, the holder of this Warrant
shall, for the same aggregate consideration provided herein, be entitled upon
exercise of this Warrant to receive, in lieu of shares of Common Stock as to
which this Warrant would otherwise be exercisable, shares of such stock or other
securities (plus cash in lieu of fractional shares) or property as the holder of
this Warrant would have received pursuant to the terms of the merger,
consolidation or sale had such holder exercised this Warrant in full immediately
prior to such merger, consolidation or sale. In the event of any consolidation,
merger or sale as described in this Section 4(iv), provision shall be made in
connection therewith for the surviving or acquiring corporations or partnerships
to assume all obligations and duties of the Company hereunder or to issue
substitute warrants in lieu of this Warrant with all such changes and
adjustments in the number or kind of shares of stock or securities or property
thereafter subject to this Warrant or in the Purchase Price as shall be required
in connection with this Section 4(iv).
(v) If the Company shall declare or pay any dividend, or make any
distribution, with respect to its Common Stock that is payable in preferred
stock or other securities, cash, assets or rights to subscribe for or purchase
any security of the Company other than Common Stock, or that is payable in debt
securities of the Company convertible into Common Stock, preferred stock or
other equity securities of the Company, the holder hereof shall, for the same
aggregate consideration provided herein, be entitled to receive upon exercise of
this Warrant in lieu of the shares of Common Stock as to which this Warrant
would otherwise be exercisable, the same amount of Common Stock, preferred stock
and other securities, cash, assets or rights to subscribe for or purchase any
security (plus cash in lieu of fractional shares) as the holder would have
received had the holder exercised this Warrant in full immediately prior to any
such dividend or distribution.
(vi) If the Company (other than in connection with a sale described in
Section 4(iv)) proposes to liquidate and dissolve, the Company shall give notice
thereof as provided in Section 5(iii) hereof and shall permit the holder of this
Warrant to exercise any unexercised portion hereof at any time, if such holder
should elect to do so, and participate as a stockholder of the Company in
connection with such dissolution.
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<PAGE>
(vii) If the Purchase Price shall fall below the par value of the Common
Stock, the Company agrees to use its best efforts to appropriately adjust the
par value of the Common Stock to an amount less than or equal to the Purchase
Price.
(viii) In order to protect each Subscriber against the dilution of its
interest in the Company, if and whenever on or after the date hereof the Company
issues or sells any Common Stock (except any Permitted Issuance or any issuance
pursuant to Section 4(ii)) for a consideration per share which is less than the
then Purchase Price (a "Special Issuance"), then forthwith upon such issuance or
sale the number of Shares (as defined in Section 4(i)(2)), as determined
immediately prior to such Special Issuance, will be increased to equal the New
Warrant Shares (as defined below), and the Purchase Price will be equal to the
New Purchase Price, each as determined pursuant to the following formulas:
NWS = S x ((OS + SI) divided by (OS + X))
NPP = (OPP x S) divided by NWS
where:
S = the Shares (as defined in Section 4(i)(2)), as determined
immediately prior to such Special Issuance
OS = the number of shares of Common Stock outstanding immediately
prior to such Special Issuance on a fully diluted basis without
giving effect to such Special Issuance
NWS = the number of Shares(as defined in Section 4(i)(2)),as determined
immediately following the adjustment made by reason of this
Section 4(viii)("New Warrant Shares")
SI = the aggregate number of shares of Common Stock issued or sold
(or deemed issued or sold) in such Special Issuance
X = the number of shares of Common Stock that the aggregate
cash consideration actually received by the Company for SI would
purchase at OPP
NPP = the "New Purchase Price"
OPP = the Purchase Price in effect immediately prior to such Special
Issuance
"Permitted Issuances" means any and all issuances of shares of Common Stock
pursuant to (x) any stock option, stock purchase or other employee or director
benefit plan of the Company and (y) any warrant or other right to purchase
Common Stock, in each case existing as of the date hereof and
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specifically disclosed in the Company's Form 10-KSB for the fiscal year ended
June 30, 1995 or on Exhibit C to the Warrant Agreement.
(ix) Whenever any adjustment is made as provided in any provision of this
Section 4:
(a) the Company shall compute the adjustments in accordance with this
Section 4 and shall prepare a certificate signed by the Senior Financial
Officer of the Company setting forth the adjusted number of shares or other
securities or property and Purchase Price, as applicable, and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Company or its designee; and
(b) a notice setting forth the adjusted number of shares or other
securities or property and the Purchase Price, as applicable, shall
forthwith be required, and as soon as practicable after it is prepared,
such notice shall be mailed by the Company to the holder of record of each
Warrant at such holder's address specified pursuant to the Warrant
Agreement.
(x) If at any time, as a result of any adjustment made pursuant to this
Section 4, the holder of this Warrant shall become entitled, upon exercise
hereof, to receive any shares other than shares of Common Stock or to receive
any other securities, the number of such other shares or securities so
receivable upon exercise of this Warrant shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the
provisions contained in this Section 4 with respect to the Common Stock.
(xi) All of the events requiring adjustments pursuant to this Warrant
Agreement are subject to such prohibitions, limitations, restrictions and other
provisions as set forth in the Transaction Documents, as may be amended from
time to time.
(xii) The Company may make such increases in the Shares and decreases in
the Purchase Price, in addition to those required or allowed by this Section 4,
as shall be determined by it, as evidenced by a resolution of the Company's
Board of Directors, to be advisable in order to avoid or diminish any income tax
to holders of Common Stock resulting from any dividend or distribution of stock
or issuance of rights or warrants to purchase or subscribe for stock or from any
event treated as such for income tax purposes.
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<PAGE>
Section 5. Special Agreements of the Company.
(i) The Company covenants and agrees that it will reserve and set apart and
have at all times a number of shares of authorized but unissued Common Stock
(and, if applicable, other Warrant Securities) then deliverable upon the
exercise of the Warrants or any other rights or privileges provided for therein
sufficient to enable it at any time to fulfill all its obligations thereunder;
and if at any time the number of authorized but unissued shares of Common Stock
shall not be sufficient to effect the exercise of this Warrant at the Purchase
Price then in effect, the Company will take such corporate action as may, in the
reasonable opinion of its counsel, be necessary to increase its authorized
shares but unissued shares of Common Stock (and, if applicable, other Warrant
Securities) to such number of shares as shall be sufficient for such purposes.
(ii) Whenever the number of shares purchasable under this Warrant or the
Purchase Price shall be adjusted as required by the provisions of Section 4
hereof, the Company shall forthwith mail a notice setting forth the adjusted
Purchase Price and the adjusted number of Shares (and, if applicable, other
securities) for which this Warrant is exercisable to the registered holder of
this Warrant at his last address as it shall appear on the registration books,
but failure to give or receive such notice shall not adversely affect the rights
of any holder of a Warrant.
(iii) In case the Company proposes, to the extent then permitted by the
Transaction Documents,
(a) to pay any stock dividend upon the Common Stock or make any
distribution (other than ordinary cash dividends payable out of earnings)
or offer any subscription or other rights to the holders of Common Stock,
or
(b) to effect any capital reorganization or reclassification of
capital stock of the Company, or
(c) to effect the consolidation, merger, sale of all or substantially
all of the assets, liquidation, dissolution or winding up of the Company,
or
(d) to take any other action that would result in any adjustment
pursuant to Section 4 in the number of Shares or the Purchase Price,
then the Company shall cause notice of any such intended action to be given to
each holder of the Warrants not less than 30 nor more than 60 days prior to the
date on which the transfer books of the Company shall close or a record be taken
for such dividend or distribution, or the date when such capital reorganization,
reclassification, consolidation, merger, sale, liquidation, dissolution or
winding up shall be effected, or the date of such other event, as the case may
be.
Section 6. Notices. Any notice or other document required or permitted to
be given or delivered to holders of Warrants and holders of Common Stock (or
other Warrant Securities) shall
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be in writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by registered or certified mail with return receipt
requested (postage prepaid) or (c) by a recognized overnight delivery service
(with charges prepaid).
(i) if to the Company, at Universal Seismic Associates, Inc., 16420
Park Ten Place, Suite 300, Houston, Texas 77084-5051, Telecopy No.:
713-578-7091, or such other address as it shall have specified to the
Subscribers in writing; or
(ii) if to a Subscriber, at each of its addresses set forth below, or
such other address as it shall have specified to the Company in writing.
Notices given under this Section 6 shall be deemed given only when actually
received.
Section 7. Limitation of Liability. No provision hereof, in the absence of
affirmative action by the holder to purchase shares of Common Stock, and no mere
enumeration herein of the rights or privileges of the holder hereof, shall give
rise to any liability of such holder for the Purchase Price or as a stockholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in its
name by its duly authorized officers and accepted by the holder of this Warrant
this 28th day of May, 1996.
UNIVERSAL SEISMIC ASSOCIATES, INC.
By:
-------------------------
Name: Michael J. Pawelek
Title: President
Subscriber Name:
- ---------------------------
By: Resources Investors Management
Company Limited Partnership,
its general partner
By: RIMCO Associates, Inc.,
its general partner
By:
------------------------
Name: Gary Milavec
Title: Vice President
Addresses for Notices:
22 Waterville Road
Avon, Connecticut 06001
Telecopy No.: 213-678-9382
600 Travis Street - Suite 6875
Houston, Texas 77002
Telecopy No.: 713-247-0730
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<PAGE>
ASSIGNMENT
TO BE EXECUTED BY THE REGISTERED HOLDER IF IT
DESIRES TO TRANSFER THE WARRANT
FOR VALUE RECEIVED, ______________________ hereby sells, assigns and
transfers unto _______________________________ the right to purchase
______________________ shares of ______________________ stock, evidenced by the
within Warrant, and does hereby irrevocably constitute and appoint
______________________ Attorney to transfer the said Warrant on the books of the
Company, with full power and substitution.
------------------------
Signature
------------------------
------------------------
Address
Dated: ______________________, 19____.
In the presence of:
_________________________________________________
NOTICE
The signature of the foregoing Assignment must correspond to the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
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<PAGE>
SUBSCRIPTION FORM
TO BE EXECUTED BY THE REGISTERED HOLDER IF IT
DESIRES TO EXERCISE THE WARRANT
The undersigned hereby exercises the right to purchase __________________
shares of stock covered by this Warrant according to the conditions thereof and
herewith makes payment of the Purchase Price of such shares in full.
------------------------
Signature
------------------------
Name
------------------------
------------------------
Address
Dated: ____________________, 19_____.
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EXHIBIT F
[FORM OF NOTE]
UNEXCO, INC.
10% SENIOR SECURED EXCHANGEABLE GENERAL OBLIGATION NOTE
No. EN-_____ January 19, 1996
$[___________________]
FOR VALUE RECEIVED, the undersigned, UNEXCO, INC., a Texas corporation (the
"Company"), hereby promises to pay to _________________________________________,
or registered assigns, the principal sum of
_______________________________________ and ____/100 DOLLARS ($____________),
together with interest (computed on the basis of a 360-day year of twelve 30-day
months) (a) on the unpaid principal balance hereof at the rate of ten percent
(10%) per annum from the date hereof, until the principal hereof shall have
become due and payable, and (b) on any overdue payment of principal or interest,
at a rate per annum from time to time equal to fifteen percent (15%); provided,
however, in no event shall such rate of interest ever exceed the Highest Lawful
Rate (as defined in the Note Purchase Agreement referred to below).
This Note shall be due and payable as follows:
(a) commencing on March 1, 1996, on the first day of each month, a
payment equal to all accrued, but unpaid interest hereon shall be due and
payable; and
(b) on February 1, 2002, the unpaid principal balance hereof ,
together with all accrued, but unpaid interest hereon, shall be fully and
finally due and payable.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to the Note Purchase Agreement dated as of January 19, 1996 (as
from time to time amended, the "Note Purchase Agreement") between the Company
and the Noteholders named therein and is entitled to the benefits, and otherwise
subject to the provisions, thereof, including, without limitation, the
limitations on interest set forth in Section 13.05 thereof. This Note is secured
by the Security Documents referred to in the Note Purchase Agreement.
This Note is exchangeable for shares of common stock of Universal Seismic
Associates, Inc. ("USA"), the parent of the Company, upon the terms and
conditions of the certain Guaranty and Exchange Agreement dated of even date
herewith among USA, the Company and the Noteholders named therein.
All payments made by the Company on this Note shall be applied first, to
the accrued, but unpaid interest hereon, and the remainder, if any, shall be
applied to the principal balance hereof. The Company does not have the right to
prepay this Note, in whole or in part, prior to maturity.
Payments of principal of and interest on this Note are to be made in lawful
money of the United States of America at places designated in the Note Purchase
Agreement.
<PAGE>
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
If an Event of Default, as defined in the Note Purchase Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price and with the effect provided
in the Note Purchase Agreement.
This Note shall be governed by and construed in accordance with the laws of
the State of New York, excluding the choice of law rules thereof.
UNEXCO, INC.
By:
_________________________
Name: Ronald L. England
Title: Chief Financial Officer
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<PAGE>
EXHIBIT G
GUARANTY AND EXCHANGE AGREEMENT
GUARANTY AND EXCHANGE AGREEMENT dated as of January 19, 1996 among
UNIVERSAL SEISMIC ASSOCIATES, INC., a Delaware corporation ("USA"), UNEXCO,
INC., a Delaware corporation (the "Company" and RIMCO PARTNERS, L.P. II, a
Delaware limited partnership, RIMCO PARTNERS, L.P. III, a Delaware limited
partnership, and RIMCO PARTNERS, L.P. IV, a Delaware limited partnership
(collectively, the "Noteholders").
PRELIMINARY STATEMENT
The Noteholders have entered into a Note Purchase Agreement dated as of
January 19, 1996 (said Agreement, as it may hereafter be amended or otherwise
modified from time to time, being the "Note Agreement") with the Company, a
wholly-owned subsidiary of USA. It is a condition precedent to the obligation of
the Noteholders to make advances under the Note Agreement that the Guarantor
shall have executed and delivered this Agreement. USA has determined that it
will receive a substantial benefit if advances are made to the Company under the
Note Agreement.
In consideration of the mutual covenants herein contained, USA, the Company
and the Noteholders agree as follows:
ARTICLE I
DEFINITIONS, ETC.
Section 1.01. Certain Defined Terms. Capitalized terms used in this
Agreement and not otherwise defined herein shall have the respective meanings
set forth in the Note Agreement and the Annex A attached thereto (such meanings
to be equally applicable to both singular and plural forms of the terms
defined).
Section 1.02. Covenant Construction. Each covenant contained herein shall
be construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
Section 1.03. Other Rules of Construction. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement. All references herein to articles, sections, annexes, exhibits and
schedules shall, unless the context requires a different construction, be deemed
to be references to the articles and sections of this Agreement and the annexes,
exhibits
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<PAGE>
and schedules attached hereto and made a part hereof. In this Agreement, unless
a clear contrary intention appears, the word "including" (and with correlative
meaning "include") means including, without limiting the generality of any
description preceding such term. The headings of the various articles and
sections of this Agreement are for convenience only and shall not affect the
meaning of the terms and conditions of this Agreement. No provision of this
Agreement shall be interpreted or construed against any party solely because
that party or its legal representative drafted such provision.
ARTICLE II
GUARANTY
Section 2.01. Guaranty. USA hereby unconditionally and irrevocably
guarantees the full and punctual payment when due, whether at stated maturity or
earlier by acceleration or otherwise, of any and all debts, liabilities and
obligations of the Company now or hereafter existing under the Note Agreement,
the Notes or any of the other Transaction Documents whether for principal,
interest (including, without limitation, all interest that accrues after the
commencement of any proceeding by or against the Company under any bankruptcy,
insolvency, liquidation, moratorium, receivership, reorganization or other
similar debtor relief law), fees, expenses or otherwise (such obligations being
the "Obligations"), and agrees to pay any and all reasonable costs and expenses
(including counsel fees and legal expenses) incurred by the Noteholders in
connection with the protection, defense or enforcement of any rights under this
Agreement and any of the other Transaction Documents.
Section 2.02. Guaranty Absolute. USA unconditionally guarantees that the
Obligations will be paid strictly in accordance with the terms of the Note
Agreement, the Notes and the other Transaction Documents, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Noteholders with respect thereto. The
liability of USA under this Agreement shall be absolute and unconditional
irrespective of: (a) any lack of validity or enforceability of the Note
Agreement, the Notes, the other Transaction Documents or any other agreement or
instrument relating thereto; (b) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to departure from the Note Agreement, the
Notes or the other Transaction Documents; (c) any taking, exchange, release or
non-perfection of any collateral, or any release or amendment or waiver of or
consent to departure from any other guaranty, for all or any of the Obligations;
(d) any manner of application of collateral, or proceeds thereof, to all or any
of the Obligations, or any manner of sale or other disposition of any collateral
for all or any of the Obligations or any other assets of the Company; (e) any
change, restructuring or termination of the corporate structure or existence of
the Company; or (f) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, the Company or a guarantor.
The obligations of USA under this Agreement shall not be subject to
reduction, termination or other impairment by reason of any setoff, recoupment,
counterclaim or defense or for any other reason. This Agreement is to be in
addition to and is not to prejudice or be prejudiced by
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<PAGE>
any other securities or guaranties (including any guaranty signed by USA) which
the Noteholders may now or hereafter hold from or on account of the Company and
is to be binding on USA as a continuing security notwithstanding any payments
from time to time made to the Noteholders or any settlement of account or
disability or incapacity affecting USA or any other thing whatsoever. This
Agreement is a continuing guaranty and shall remain in full force and effect
until payment in full of the Obligations and all other amounts payable under
this Agreement.
Section 2.03. Waiver. USA hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Obligations and this
Agreement and any liability to which this Agreement applies or may apply, and
waives presentment, demand of payment, notice of intent to accelerate, notice of
acceleration, notice of dishonor or nonpayment, and any requirement that the
Noteholders institute suit, collection proceedings or take any other action to
collect the Obligations including any requirement that the Noteholders protect,
secure, perfect or insure any security interest or lien or any property subject
thereto or exhaust any right or take any action against the Company or any other
person or entity or any collateral (it being the intention of the Noteholders
and USA that this Agreement is to be a guaranty of payment and not of
collection) or that the Company or any other person be joined in any action
hereunder. Notwithstanding the provisions of Section 8.13, USA hereby expressly
waives each and every right to which it may be entitled by virtue of the
suretyship laws of the State of Texas, including, without limitation, any and
all rights it may have pursuant to Rule 31 or Rule 32, Texas Rules of Civil
Procedure, Section 17.001 of the Texas Civil Practice and Remedies Code and
Chapter 34 of the Texas Business and Commerce Code. USA hereby waives
marshalling of assets and liabilities, sale in inverse order of alienation,
notice by the Noteholders of any indebtedness or liability to which it applies
or may apply any amounts received by the Noteholders, and of the creation,
advancement, increase, existence, extension, renewal, rearrangement and/or
modification of the Obligations.
Section 2.04. Waiver of Subrogation; Etc. USA will not have any rights of
subrogation under this Agreement, by any payment made hereunder or otherwise,
until such time as the Noteholders have received full payment of the
Obligations, and all such rights are hereby waived. If, notwithstanding the
preceding sentence, any amount shall be paid to USA on account of subrogation
rights at any time when all the Obligations shall not have been paid in full,
such amount shall be held in trust for the benefit of the Noteholders and shall
forthwith be paid to the Noteholders to be credited and applied upon the
Obligations in accordance with the terms of the Note Agreement.
USA hereby subordinates all indebtedness owing to it from the Company to
all indebtedness of the Company to the Noteholders, and agrees that upon the
occurrence and continuance of an Event of Default or any event which with the
giving of notice or lapse of time could become an Event of Default, it shall not
accept any payment on the same until payment in full of the Obligations, and
shall in no circumstance whatsoever attempt to set off or reduce any Obligations
hereunder because of such indebtedness. USA further subordinates any lien or
security interest that it has or may have on any collateral or security securing
payment of the Obligations to the liens and security interest on said collateral
and security in favor of the Noteholders, but the
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<PAGE>
foregoing shall in no event imply or be construed to imply the Noteholders'
agreement or consent to the existence of any such security interests in favor of
USA.
Section 2.05. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default the Noteholders are hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by the
Noteholders to or for the credit or the account of USA against any and all of
the obligations of USA now or hereafter existing under this Agreement,
irrespective of whether or not the Noteholders shall have made any demand under
this Agreement and although such obligations may be contingent and unmatured.
The Noteholders agrees promptly to notify USA after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Noteholders under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Noteholders may have.
Section 2.06. Transaction Documents. USA acknowledges that it has full and
complete access to the Note Agreement, the Notes and all other instruments and
documents executed by the Company, or any other Person in connection with the
Note Agreement, has fully reviewed same and is fully aware of their contents.
Section 2.07. Effect of Bankruptcy Proceeding, Etc. This Agreement shall
continue to be effective, or be automatically reinstated, as the case may be, if
at any time payment, in whole or in part, of any of the sums due any Noteholders
pursuant to the terms of the Note Agreement or hereunder is rescinded or must
otherwise be restored or returned by the Noteholders upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company or USA, or
upon or as a result of the appointment of a custodian, receiver, trustee or
other officer with similar powers with respect to the Company or USA or any
substantial part of their property, or otherwise, all as though such payments
had not been made. If an Event of Default shall at any time have occurred and be
continuing and declaration of such Event of Default shall at such time be
prevented by reason of the pendency against the Company of a case or proceeding
under a bankruptcy or insolvency law, USA agrees that, for purposes of this
Agreement and its obligations hereunder, the Note Agreement shall be deemed to
have been declared in default with the same effect as if the Note Agreement had
been declared in default in accordance with the terms thereof, and USA shall
forthwith pay the amounts specified by the Noteholders to be paid thereunder,
any interest thereon and any other amounts guaranteed hereunder without further
notice or demand.
Section 2.08. No Waiver; Remedies. No failure on the part of the
Noteholders to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
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<PAGE>
Section 2.09. Further Assurances. USA hereby agrees to execute and deliver
all such instruments and take all such action as the Noteholders may from time
to time reasonably request in order to fully effectuate the purpose of this
Agreement.
ARTICLE III
EXCHANGE AGREEMENT
Section 3.01. Exchange. (a) Each Noteholder shall have the right, at the
option of such holder at any time up to and including the maturity date of the
Notes, to exchange the outstanding principal balance of any Note (or any portion
thereof that is $1,000 or an integral multiple thereof), plus accrued and unpaid
interest due thereon to the effective date of the exchange, into fully paid and
non-assessable shares of common stock, par value $.0001 per share, of USA (the
"USA Common Stock"), subject to possible adjustment as provided below. The
number of shares of USA Common Stock issuable in exchange for a Note shall be
equal to the quotient of the principal amount of such Note (or the portion
thereof) submitted for exchange plus accrued and unpaid interest due thereon to
the effective date of the exchange, divided by the "Exchange Price" (as defined
below). As used herein, the term "Exchange Price" shall mean the price of $3.77
per share, or, in case an adjustment of such price has taken place pursuant to
the provisions hereof, then at the price as last adjusted.
(b) If at any time following the issuance of the Notes, the average closing
price per share of USA Common Stock (as reported by the principal securities
exchange or trading market, as the case may be, on which the USA Common Stock is
then traded) during a period of 20 consecutive trading days (such 20-day average
being referred to herein as the "Average Price") equals or exceeds 150% of the
Exchange Price (a "Special Exchange Event"), the Company may, at its option
exercisable in its sole discretion at any time during the 30-day period
following such Special Exchange Event, exchange all (but not less than all)
outstanding Notes, plus accrued and unpaid interest due thereon to the effective
date of such exchange, into fully paid and non-assessable shares of USA Common
Stock at the Exchange Price then in effect. Such exchange shall be deemed to
have been effected immediately upon the mailing of the notice referred to in
Section 3.02(b) hereof, which notice to be effective must be deposited in the
mail on or prior to the close of business on the thirtieth day following the
Special Exchange Event, whereupon the person or persons entitled to receive the
USA Common Stock deliverable upon such exchange shall thereupon be treated for
all purposes as the record holder or holders of such USA Common Stock, and the
Notes shall be deemed to represent only the right to receive certificates
representing the number of shares of USA Common Stock, plus cash in lieu of
fractional shares in accordance with Section 3.04, for which each such Note has
been so exchanged. If the Company does not exchange the Notes in accordance with
this Section 3.01(b) within the 30-day period following any Special Exchange
Event, then a new period of trading days shall begin for purposes of determining
whether the Company may exchange the Notes pursuant to this Section 3.01(b).
Section 3.02. Exchange Procedure. (a) If any Noteholder desires to exchange
any Note for USA Common Stock pursuant to Section 3.01(a) hereof or if any Note
has been exchanged
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pursuant to Section 3.01(b) hereof, the holder of such Note shall surrender such
Note at the office of the Company, duly endorsed to the Company or in blank, or
accompanied by proper instruments of transfer to the Company or in blank,
accompanied, in the case of a voluntary exchange pursuant to Section 3.01(a)
hereof, by an irrevocable written notice to the Company that the holder elects
so to exchange such Note in accordance with the terms hereof, and specifying the
name or names (with address) in which a certificate or certificates for USA
Common Stock are to be issued.
(b) If the Company elects pursuant to Section 3.01(b) hereof to exchange
the issued and outstanding Notes for USA Common Stock, the Company shall, within
30 days after the Special Exchange Event with respect to which such election is
made, send notice (or cause notice to be sent) by first class mail, postage
prepaid, to each holder of record of the Notes at such holder's address as
specified pursuant to the Note Agreement. Each such notice of exchange shall
specify the date such exchange was effected, the Exchange Price, the Exchange
Rate (as defined in Section 3.03), the place or places that the certificates
representing the Notes shall be surrendered and that on and after such exchange
date, interest will cease to accrue on such Notes.
(c) The Company will, as soon as practicable after such surrender of a Note
accompanied, in the case of a voluntary exchange pursuant to Section 3.01(a)
hereof, by the written notice specified in Section 3.02(a) hereof and compliance
with any other conditions herein contained, deliver or cause to be delivered, to
the Person for whose account such Note was so surrendered, certificates for the
number of full shares of USA Common Stock to which such Person shall be entitled
upon exchange as aforesaid and a cash adjustment for any fraction of a share of
USA Common Stock as provided in Section 3.04. In the case of an exchange of a
Note pursuant to Section 3.01(a) hereof, such exchange shall be deemed to have
been made as of the date of such surrender of such Note, and the Person entitled
to receive the USA Common Stock deliverable upon exchange of such Note shall be
treated for all purposes as the record holder of such USA Common Stock on such
date of surrender.
Section 3.03. Adjustments. The Exchange Price and the number of shares of
USA Common Stock and the number or amount of any other securities and property
as hereinafter provided into which a Note is exchangeable (the "Exchange Rate")
shall be subject to adjustment from time to time effective upon each occurrence
of any of the following events. As used in this Section 3.03 the term "Shares"
means, collectively, shares of USA Common Stock (i) issued or issuable upon
exchange of the Notes and (ii) exchanged for, or distributed, issued or issuable
with respect to, the shares included in clause (i) of this definition. In case
by reason of the operation of this Section 3.03 the Notes shall be exchangeable
for any other shares of stock or other securities or property of USA or of any
other corporation, any reference herein to the exchange of the Notes shall be
deemed to refer to and include the exchange of the Notes for such other shares
of stock or other securities or property.
(a) If USA shall declare or pay any dividend with respect to USA Common
Stock payable in USA Common Stock, subdivide the outstanding shares of USA
Common Stock into a greater number of shares of USA Common Stock, or reduce the
number of shares of USA Common
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Stock outstanding (by stock split, reverse stock split, reclassification or
otherwise than by repurchase of its USA Common Stock) (any of such events being
hereinafter called a "Stock Split"), the Exchange Price and number of shares of
USA Common Stock issuable upon exchange of any Note shall be appropriately
adjusted so as to entitle the holder thereof to receive upon exchange of its
Note, for the same aggregate consideration provided herein, the same number of
shares of USA Common Stock (plus cash in lieu of fractional shares) as the
holder would have received as a result of such Stock Split had such holder
exchanged such Note in full immediately prior to such Stock Split.
(b) If USA shall merge or consolidate with or into one or more corporations
or partnerships and USA is the sole surviving corporation, or USA shall adopt a
plan of recapitalization or reorganization in which shares of USA Common Stock
are exchanged for or changed into another class of stock or other security or
property of USA, the holder of a Note, for the same aggregate consideration
provided herein, shall be entitled upon exchange of such Note to receive in lieu
of the number of shares of USA Common Stock for which such Note would otherwise
be exchangeable, the number of shares of USA Common Stock or other securities
(plus cash in lieu of fractional shares) or property to which such holder would
have been entitled pursuant to the terms of the agreement or plan of merger,
consolidation, recapitalization or reorganization had such holder exchanged such
Note in full immediately prior to such merger, consolidation, recapitalization
or reorganization.
(c) If USA is merged or consolidated with or into one or more corporations
or partnerships under circumstances in which USA is not the sole surviving
corporation, or if USA sells or otherwise disposes of substantially all its
assets, and in connection with any such merger, consolidation or sale the
holders of USA Common Stock receive stock or other securities convertible into
equity of the surviving or acquiring corporations or entities, or other
securities or property, after the effective date of such merger, consolidation
or sale, as the case may be, the holder of a Note shall, for the same aggregate
consideration provided herein, be entitled upon exchange of the Note to receive,
in lieu of shares of USA Common Stock for which such Note would otherwise be
exchangeable, shares of such stock or other securities (plus cash in lieu of
fractional shares) or property as the holder of such Note would have received
pursuant to the terms of the merger, consolidation or sale had such holder
exchanged such Note in full immediately prior to such merger, consolidation or
sale. In the event of any consolidation, merger or sale as described in this
Section 3.03(c), provision shall be made in connection therewith for the
surviving or acquiring corporations or partnerships to assume all obligations
and duties of USA hereunder.
(d) If USA shall declare or pay any dividend, or make any distribution,
with respect to its USA Common Stock that is payable in preferred stock or other
securities, cash, assets or rights to subscribe for or purchase any security of
USA other than USA Common Stock, or that is payable in debt securities of USA
convertible into USA Common Stock, preferred stock or other equity securities of
USA, the holder of a Note shall, for the same aggregate consideration provided
herein, be entitled to receive upon exchange of such Note in lieu of the shares
of USA Common Stock for which such Note would otherwise be exchangeable, the
same amount of USA Common
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Stock, preferred stock and other securities, cash, assets or rights to subscribe
for or purchase any security (plus cash in lieu of fractional shares) as the
holder would have received had the holder exchanged such Note in full
immediately prior to any such dividend or distribution.
(e) If USA (other than in connection with a sale described in
Section 3.03(c)) proposes to liquidate and dissolve, USA shall give notice
thereof as provided in Section 3.05(e) hereof and shall permit the holder of a
Note to exchange any unexchanged portion thereof at any time, if such holder
should elect to do so, and participate as a stockholder of USA in connection
with such dissolution.
(f) If the Exchange Price shall fall below the par value of the USA Common
Stock, USA agrees to use its best efforts to appropriately adjust the par value
of the USA Common Stock to an amount less than or equal to the Exchange Price.
(g) In order to protect each holder of a Note against the dilution of its
interest in USA, if and whenever on or after the date hereof USA issues or sells
any USA Common Stock (except any Permitted Issuance or any issuance pursuant to
Section 3.03(a)) for a consideration per share which is less than the then
Exchange Price (a "Special Issuance"), then forthwith upon such issuance or sale
the number of Shares (as defined in Section 3.03), as determined immediately
prior to such Special Issuance, will be increased to equal the New Exchange
Shares (as defined below), and the Exchange Price will be equal to the New
Exchange Price, each as determined pursuant to the following formulas:
NES = S x ((OS + SI) divided by (OS + X))
NEP = (OEP x S) divided by NES
where
S = the Shares (as defined in Section 3.03), as determined immediately
prior to such Special Issuance
OS = the number of shares of USA Common Stock outstanding immediately
prior to such Special Issuance on a fully diluted basis without
giving effect to such Special Issuance
NES = the number of Shares (as defined in Section 3.03) as determined
immediately following the aggregate adjustment made by reason of
this Section 3.03(g)("New Exchange Shares")
SI = the number of shares of USA Common Stock issued or sold (or deemed
issued or sold) in such Special Issuance
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X = the number of shares of USA Common Stock that the aggregate cash
consideration actually received by USA for SI would purchase at
OEP
NEP = the "New Exchange Price"
OEP = the Exchange Price in effect immediately prior to such Special
Issuance
"Permitted Issuances" means any and all issuances of shares of USA Common Stock
pursuant to (x) any stock option, stock purchase or other employee or director
benefit plan of USA and (y) any warrant or other right to purchase USA Common
Stock, in each case existing as of the date hereof and specifically disclosed in
USA's Form 10-KSB for the fiscal year ended June 30, 1995 or on Exhibit C to the
Warrant Agreement.
(h) Whenever the Exchange Rate or the Exchange Price is adjusted as
provided in any provision of this Section 3.03:
(i) the Company shall compute the adjusted Exchange Rate and Exchange
Price, as applicable, in accordance with this Section 3.03 and shall prepare a
certificate signed by the Senior Financial Officer of the Company setting forth
the adjusted Exchange Rate and Exchange Price, as applicable, and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Company or its designee; and
(ii) a notice stating that the Exchange Rate and the Exchange Price, as
applicable, has been adjusted and setting forth the adjusted Exchange Rate and
the Exchange Price, as applicable, shall forthwith be required, and as soon as
practicable after it is prepared, such notice shall be mailed by the Company to
the holder of record of each Note at such holder's address specified pursuant to
the Note Agreement.
(i) If at any time, as a result of any adjustment to the Exchange Rate made
pursuant to this Section 3.03, the holder of any Note thereafter surrendered for
exchange shall become entitled to receive any shares of USA other than shares of
USA Common Stock or to receive any other securities, the number of such other
shares or securities so receivable upon exchange of such Note shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions contained in this Section 3.03 with respect to the
USA Common Stock.
(j) All of the events requiring adjustments pursuant to this Section 3.03
are subject to such prohibitions, limitations, restrictions and other provisions
as set forth in the Transaction Documents, as may be amended from time to time.
Section 3.04. Cash in Lieu of Fractional Shares. No fractional shares or
scrip representing fractional shares of USA Common Stock shall be issued upon
the exchange of any
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Note. Instead of any fractional share of USA Common Stock that would otherwise
be issuable upon exchange of a Note, the Company will pay a cash adjustment in
respect of such fractional interest in an amount equal to the same fraction of
the market price per share of USA Common Stock (as determined by the Board of
Directors of the Company or in any manner prescribed by the Board of Directors
of the Company, which shall be the last reported sale price of the USA Common
Stock on the principal securities exchange or trading market on which the USA
Common Stock is then traded) at the close of business on the business day prior
to the day of surrender of shares for exchange or, in the case of an exchange
effected pursuant to Section 3.01(b) hereof, the business day prior to the
effective date of such exchange.
Section 3.05. Additional USA Obligations. (a) USA shall at all times
reserve and keep available, out of its authorized and unissued stock, solely for
the purpose of effecting the exchange of the Notes, such number of shares of USA
Common Stock free of preemptive rights as shall from time to time be sufficient
to effect the exchange of all Notes from time to time outstanding. USA shall
from time to time, in accordance with the laws of the State of Delaware,
increase the authorized number of shares of USA Common Stock if at any time the
number of shares of USA Common Stock authorized but unissued shall not be
sufficient to permit the exchange of all the then outstanding Notes into USA
Common Stock at the Exchange Rate then in effect.
(b) If any shares of USA Common Stock required to be reserved for purposes
of exchange of the Notes require registration with or approval of any
governmental authority under any federal or state law before such shares may be
issued upon exchange, USA will in good faith and as expeditiously as possible
endeavor to cause such shares to be duly registered or approved, as the case may
be. If the USA Common Stock is then traded on any national securities exchange
or trading market, USA will, if permitted by the rules of such exchange or
trading market, list and keep listed on such exchange or approved for trading on
such trading market, subject to official notice of issuance, all shares of USA
Common Stock issuable upon exchange of the Notes.
(c) The Company will pay any and all issue or other taxes that may be
payable in respect of any issue or delivery of shares of USA Common Stock on
exchange of a Note. The Company shall not, however, be required to pay any tax
that may be payable in respect of any transfer involved in the issue or delivery
of USA Common Stock (or other securities or assets) in any name or names other
than that in which such Note was registered, and no such issue or delivery shall
be made unless and until the Person requesting such issue has paid to the
Company or its designee the amount of such tax or has represented, to the
reasonable satisfaction of the Company, that such tax has been paid.
(d) Before taking any action that would cause an adjustment increasing the
Exchange Rate, such that the effective Exchange Price would be below the then
par or stated value of the USA Common Stock, the Company and USA will take such
corporate action as may, in the opinion of counsel to the Company and counsel to
USA, be necessary in order that USA may validly and legally issue fully paid and
non-assessable shares of USA Common Stock at the Exchange Rate as so adjusted.
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(e) In case USA proposes, to the extent then permitted by the Transaction
Documents,
(i) to pay any stock dividend upon the USA Common Stock or make any
distribution (other than ordinary cash dividends payable out of earnings)
or offer any subscription or other rights to the holders of USA Common
Stock, or
(ii) to effect any capital reorganization or reclassification of
capital stock of USA, or
(iii) to effect the consolidation, merger, sale of all or
substantially all of the assets, liquidation, dissolution or winding up of
USA, or
(iv) to take any other action that would result in any adjustment
pursuant to Section 3.03 in the number of Shares or the Exchange Price,
then the Company shall cause notice of any such intended action to be given to
each holder of the Notes not less than 30 nor more than 60 days prior to the
date on which the transfer books of USA shall close or a record be taken for
such dividend or distribution, or the date when such capital reorganization,
reclassification, consolidation, merger, sale, liquidation, dissolution or
winding up shall be effected, or the date of such other event, as the case may
be.
Section 3.06. Exchange Rate Increase. (a) The Company from time to time may
increase the Exchange Rate by any amount for any period of time if the period is
at least 20 days and if the increase is irrevocable during the period. Whenever
the Exchange Rate is so increased, the Company shall mail to holders of record
of the Notes a notice of the increase at least 15 days before the date the
increased Exchange Rate takes effect, and such notice shall state the increased
Exchange Rate and the period it will be in effect.
(b) The Company may make such increases in the Exchange Rate, in addition
to those required or allowed by this Article III, as shall be determined by it,
as evidenced by a resolution of the Company's Board of Directors, to be
advisable in order to avoid or diminish any income tax to holders of USA Common
Stock resulting from any dividend or distribution of stock or issuance of rights
or warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF USA
USA represents and warrants to the Noteholders that:
Section 4.01. Organization; Power and Authority. USA is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and is duly
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qualified as a foreign corporation and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. USA has the corporate power and authority to own or hold under
lease the properties it purports to own or hold under lease, to transact the
business it transacts and proposes to transact, to execute and deliver this
Agreement and the other Transaction Documents and to perform the provisions
hereof and thereof.
Section 4.02. Authorization, etc. This Agreement and the other Transaction
Documents have been duly authorized by all necessary corporate action on the
part of USA, and this Agreement constitutes, and upon execution and delivery
thereof each other Transaction Document will constitute, a legal, valid and
binding obligation of USA enforceable against USA in accordance with its terms,
except as such enforceability may be limited by (a) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (b) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 4.03. Compliance with Laws, Other Instruments, etc. The execution,
delivery and performance by USA of this Agreement and the other Transaction
Documents will not (a) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any property
of USA or any Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or any other
agreement or instrument to which USA or any Subsidiary is bound or by which USA
or any Subsidiary or any of their respective properties may be bound or
affected, (b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to USA or any Subsidiary or (c)
violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to USA or any Subsidiary.
Section 4.04. Governmental Authorizations, etc. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or performance
by USA of this Agreement or the other Transaction Documents.
Section 4.05. Subsidiaries. Schedule 4.05 contains complete and correct
lists of USA's Subsidiaries, showing, as to each Subsidiary, the correct name
thereof, the jurisdiction of its organization, and the percentage of shares of
each class of its capital stock or similar equity interests outstanding owned by
USA and each other Subsidiary. No Subsidiary is a party to, or otherwise subject
to any legal restriction or any agreement (other than this Agreement and
customary limitations imposed by corporate law statutes) restricting the ability
of such Subsidiary to pay dividends out of profits or make any other similar
distributions of profits to USA or any of its Subsidiaries that owns outstanding
shares of capital stock or similar equity interests of such Subsidiary.
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Section 4.06. Financial Statements. The consolidated balance sheet of USA
and its Subsidiaries as at June 30, 1995, and the related consolidated
statements of income, retained earnings and cash flows for the 12-month period
then ended, copies of which USA has delivered to each Noteholder, fairly present
in all material respects the consolidated financial position of USA and its
Subsidiaries as of such date and the consolidated results of their operations
and cash flows for such period and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set forth in the
notes thereto (subject, in the case of any interim financial statements, to
normal year-end adjustments).
Section 4.07. Disclosure. This Agreement, the documents, certificates or
other writings delivered to the Noteholders by or on behalf of USA in connection
with the transactions contemplated hereby and the financial statements referred
to in Section 4.06, taken as a whole, do not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading. Except as disclosed in the financial
statements referred to in Section 4.06, since June 30, 1995, there has been no
change in the financial condition, operations, business, properties or prospects
of USA or any Subsidiary except changes that individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect. There is no
fact known to USA that could reasonably be expected to have a Material Adverse
Effect that has not been set forth herein or in the other documents,
certificates and other writings (including the financial statements referred to
in Section 4.06) delivered to the Noteholders by or on behalf of USA
specifically for use in connection with the transactions contemplated hereby.
Section 4.08. Litigation. Except as disclosed in Schedule 4.08, there are
no actions, suits or proceedings pending or, to the knowledge of USA, threatened
against or affecting USA or any Subsidiary or any property of USA or any
Subsidiary in any court or before any arbitrator of any kind or before or by any
Governmental Authority that, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
Section 4.09. Observance of Agreements, Statutes and Orders. Neither USA
nor any Subsidiary is in default under any term of any agreement or instrument
to which it is a party or by which it is bound, or any order, judgment, decree
or ruling of any court, arbitrator or Governmental Authority or is in violation
of any applicable law, ordinance, rule or regulation (including without
limitation Environmental Laws) of any Governmental Authority, which default or
violation, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
Section 4.10. Taxes. USA and its Subsidiaries have filed all tax returns
that are required to have been filed in any jurisdiction, and have paid all
taxes shown to be due and payable on such returns and all other taxes and
assessments levied upon them or their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and assessments (i) the amount
of which is not individually or in the aggregate Material or (ii) the amount,
applicability or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which USA
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or a Subsidiary, as the case may be, has established adequate reserves in
accordance with GAAP. USA knows of no basis for any other tax or assessment
that, if imposed, could reasonably be expected to have a Material Adverse
Effect. The charges, accruals and reserves on the books of USA and its
Subsidiaries in respect of Federal, state or other taxes for all fiscal periods
are adequate in all respects. The Federal income tax liabilities of USA and its
Subsidiaries have been determined by the Internal Revenue Service and paid for
all fiscal years up to and including the fiscal year ended June 30, 1995.
Section 4.11. Title to Property. USA and its Subsidiaries have good and
sufficient title to their respective properties that individually or in the
aggregate are Material, including all such properties reflected in the most
recent audited balance sheet referred to in Section 4.06 or purported to have
been acquired by USA or any Subsidiary after said date, in each case free and
clear of Liens other than those permitted by this Agreement. All leases that
individually or in the aggregate are Material are valid and subsisting and are
in full force and effect in all material respects.
Section 4.12. Licenses, Permits, etc. USA and its Subsidiaries own or
possess all licenses, permits, franchises, authorizations, patents, copyrights,
service marks, trademarks and trade names, or rights thereto, that individually
or in the aggregate are Material, without known conflict with the rights of
others. To the best knowledge of USA, (a) no product of USA infringes in any
material respect any license, permit, franchise, authorization, patent,
copyright, service mark, trademark, trade name or other right owned by any other
Person; and (b) there is no Material violation by any Person of any right of USA
or any of its Subsidiaries with respect to any patent, copyright, service mark,
trademark, trade name or other right owned or used by USA or any of its
Subsidiaries.
Section 4.13. Compliance with ERISA.
(a) USA and each ERISA Affiliate have operated and administered each Plan
in compliance with all applicable laws except for such instances of
noncompliance as have not resulted in and could not reasonably be expected to
result in a Material Adverse Effect. Neither USA nor any ERISA Affiliate has
incurred any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit plans (as defined
in section 3 of ERISA), and no event, transaction or condition has occurred or
exists that could reasonably be expected to result in the incurrence of any such
liability by USA or any ERISA Affiliate, or in the imposition of any Lien on any
of the rights, properties or assets of USA or any ERISA Affiliate, in either
case pursuant to Title I or IV of ERISA or to such penalty or excise tax
provisions or to Section 401(a)(29) or 412 of the Code, other than such
liabilities or Liens as would not be individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under each of
the Plans (other than Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial valuation
report, did not exceed the aggregate current value of the assets of such Plan
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allocable to such benefit liabilities. The term "benefit liabilities" has the
meaning specified in section 4001 of ERISA and the terms "current value" and
"present value" have the meaning specified in section 3 of ERISA.
(c) USA and its ERISA Affiliates have not incurred withdrawal liabilities
(and are not subject to contingent withdrawal liabilities) under section 4201 or
4204 of ERISA in respect of Multiemployer Plans that individually or in the
aggregate are Material.
(d) The expected post-retirement benefit obligation (determined as of the
last day of USA's most recently ended fiscal year in accordance with Financial
Accounting Standards Board Statement No. 106, without regard to liabilities
attributable to continuation coverage mandated by section 4980B or the Code) of
USA and its Subsidiaries is not Material.
Section 4.14. Status under Certain Statutes. Neither USA nor any Subsidiary
is subject to regulation under the Investment Company Act of 1940, as amended,
the Public Utility Holding Company Act of 1935, as amended, the Interstate
Commerce Act, as amended, or the Federal Power Act, as amended.
Section 4.15. Capitalization. The authorized capital stock of USA consists
solely of 20,000,000 shares of $.0001 par common stock, of which 4,202,498
shares are issued and outstanding.
Section 4.16. Environmental Matters. Neither USA nor any Subsidiary has
knowledge of any claim or has received any notice of any claim, and no
proceeding has been instituted raising any claim against USA or any of its
Subsidiaries or any of their respective real properties now or formerly owned,
leased or operated by any of them or other assets, alleging any damage to the
environment or violation of any Environmental Laws, except, in each case, such
as could not reasonably be expected to result in a Material Adverse Effect.
Except as otherwise disclosed to the Noteholders in writing, (a) neither USA nor
any Subsidiary has knowledge of any facts which would give rise to any claim,
public or private, of violation of Environmental Laws or damage to the
environment emanating from, occurring on or in any way related to real
properties now or formerly owned, leased or operated by any of them or to other
assets or their use, except, in each case, such as could not reasonably be
expected to result in a Material Adverse Effect; (b) neither USA nor any of its
Subsidiaries has stored any Hazardous Materials on real properties now or
formerly owned, leased or operated by any of them and has not disposed of any
Hazardous Materials in a manner contrary to any Environmental Laws in each case
in any manner that could reasonably be expected to result in a Material Adverse
Effect; and (c) all buildings on all real properties now owned, leased or
operated by USA or any of its Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply could not reasonably be
expected to result in a Material Adverse Effect.
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ARTICLE V
INFORMATION AS TO COMPANY
Section 5.01. Financial and Business Information. USA shall deliver to each
of the Noteholders:
(a) Within 45 days after the end of each quarterly fiscal period in each
fiscal year of USA, copies of (i) a consolidated balance sheet of USA and its
Subsidiaries as at the end of such quarter, and (ii) consolidated statements of
income, changes in shareholders' equity and cash flows of USA and its
Subsidiaries, for such quarter and for the portion of the fiscal year ending
with such quarter, setting forth in each case in comparative form the figures
for the corresponding periods in the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP applicable to quarterly financial
statements generally, and certified by a Senior Financial Officer of USA as
fairly presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and cash flows,
subject to changes resulting from year-end adjustments.
(b) Within 90 days after the end of each fiscal year of USA, copies of
(i) a consolidated balance sheet of USA and its Subsidiaries, as at the end of
such year, and (ii) consolidated statements of income, changes in shareholders'
equity and cash flows of USA and its Subsidiaries, for such year, setting forth
in each case in comparative form the figures for the previous fiscal year, all
in reasonable detail, prepared in accordance with GAAP, and accompanied (A) by
an opinion thereon of independent certified public accountants of recognized
national standing, which opinion shall state that such financial statements
present fairly, in all material respects, the financial position of the
companies being reported upon and their results of operations and cash flows and
have been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the circumstances, and (B) a
certificate of such accountants stating that they have reviewed this Agreement
and stating further whether, in making their audit, they have become aware of
any condition or event that then constitutes a Default or an Event of Default,
and, if they are aware that any such condition or event then exists, specifying
the nature and period of the existence thereof.
(c) Within 25 days after the end of each calendar month, copies of (i) a
consolidated balance sheet of USA and its Subsidiaries as at the end of such
month, and (ii) consolidated statements of income, changes in shareholders'
equity and cash flows of USA and its Subsidiaries, for such month and for the
portion of the fiscal year ending with such month, setting forth in each case in
comparative form the figures for the corresponding periods in the previous
fiscal year, all in reasonable detail, prepared in accordance with GAAP
applicable to monthly financial statements generally, and certified by a Senior
Financial Officer of USA as fairly presenting, in all material respects, the
financial position of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from year-end
adjustments.
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(d) Promptly upon their becoming available, one copy of (i) each financial
statement, report, notice or proxy statement sent by USA or any Subsidiary to
public securities holders generally, and (ii) each regular or periodic report,
each registration statement (without exhibits except as expressly requested by
such holder), and each prospectus and all amendments thereto filed by USA or any
Subsidiary with the Securities and Exchange Commission and of all press releases
and other statements made available generally by USA or any Subsidiary to the
public concerning developments that are Material.
(e) Promptly, and in any event within five days after a Responsible Officer
of USA becoming aware of any of the following, a written notice setting forth
the nature thereof and the action, if any, that USA or an ERISA Affiliate
proposes to take with respect thereto: (i) with respect to any Plan, any
reportable event, as defined in section 4043(b) of ERISA and the regulations
thereunder, for which notice thereof has not been waived pursuant to such
regulations as in effect on the date hereof; or (ii) the taking by the PBGC of
steps to institute, or the threatening by the PBGC of the institution of,
proceedings under section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the receipt by USA or any
ERISA Affiliate of a notice from a Multiemployer Plan that such action has been
taken by the PBGC with respect to such Multiemployer Plan; or (iii) any event,
transaction or condition that could result in the incurrence of any liability by
USA or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit plans, or in the
imposition of any Lien on any of the rights, properties or assets of USA or any
ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax
provisions, if such liability or Lien, taken together with any other such
liabilities or Liens then existing, could reasonably be expected to be Material.
(f) Promptly, and in any event within 30 days of receipt thereof, copies of
any notice to USA or any Subsidiary from any Federal or state Governmental
Authority relating to any order, ruling, statute or other law or regulation that
could reasonably be expected to have a Material Adverse Effect; and
(g) With reasonable promptness, such other data and information relating to
the business, operations, affairs, financial condition, assets or properties of
USA or any of its Subsidiaries or relating to the ability of USA to perform its
obligations hereunder and under the Notes as from time to time may be reasonably
requested by any of Noteholder.
Section 5.02. Officer's Certificate. Each set of financial statements
delivered to a holder of Notes pursuant to Section 5.01(a), Section 5.01(b) or
Section 5.01(c) shall be accompanied by a certificate of a Senior Financial
Officer of USA setting forth: (a) the information (including detailed
calculations) required in order to establish whether USA was in compliance with
the requirements of Section 7.03 hereof during the monthly, quarterly or annual
period covered by the statements then being furnished (including with respect to
each such Section, where applicable, the calculations of the maximum or minimum
amount, ratio or percentage, as the case may be, permissible under the terms of
such Sections, and the calculation of the amount, ratio or percentage then in
existence); and (b) a statement that such officer has reviewed the relevant
terms hereof and
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has made, or caused to be made, under his or her supervision, a review of the
transactions and conditions of USA and its Subsidiaries from the beginning of
the monthly, quarterly or annual period covered by the statements then being
furnished to the date of the certificate and that such review shall not have
disclosed the existence during such period of any condition or event that
constitutes a Default or an Event of Default or, if any such condition or event
existed or exists (including, without limitation, any such event or condition
resulting from the failure of USA or any Subsidiary to comply with any
Environmental Law), specifying the nature and period of existence thereof and
what action USA shall have taken or proposes to take with respect thereto.
Section 5.03. Inspection. USA shall permit the representatives of each
Noteholder, at the expense of USA and upon reasonable prior notice to USA, to
visit and inspect any of the offices or properties of USA or any Subsidiary, to
examine all their respective books of account, records, reports and other
papers, to make copies and extracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective officers and independent
public accountants (and by this provision USA authorizes said accountants to
discuss the affairs, finances and accounts of USA and its Subsidiaries), all at
such times and as often as may be requested.
ARTICLE VI
AFFIRMATIVE COVENANTS
USA covenants that so long as any of the Commitments remain in effect or
any of the Notes are outstanding:
Section 6.01. Compliance with Law; Contracts. USA will, and will cause each
of its Subsidiaries to, comply with all laws, ordinances or governmental rules
or regulations to which each of them is subject, including, without limitation,
Environmental Laws, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental authorizations
necessary to the ownership of their respective properties or to the conduct of
their respective businesses, in each case to the extent necessary to ensure that
non-compliance with such laws, ordinances or governmental rules or regulations
or failures to obtain or maintain in effect such licenses, certificates,
permits, franchises and other governmental authorizations could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. USA will, and will cause each of its Subsidiaries to, comply
with, and perform their respective obligations under, each contract or agreement
to which each is a party, unless, in the good faith judgment of USA, the failure
to so comply or perform could not reasonably be expected to have a Material
Adverse Effect.
Section 6.02. Insurance. USA will, and will cause each of its Subsidiaries
to, maintain, with financially sound and reputable insurers, insurance with
respect to their respective properties and businesses against such casualties
and contingencies, of such types, on such terms and in such amounts (including
deductibles, co-insurance and self-insurance, if adequate reserves are
maintained with respect thereto) as is customary in the case of entities of
established reputations
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engaged in the same or a similar business and similarly situated, including the
insurance described in Schedule 6.02.
Section 6.03. Maintenance of Properties. USA will, and will cause each of
its Subsidiaries to, maintain and keep, or cause to be maintained and kept,
their respective properties in good repair, working order and condition (other
than ordinary wear and tear), so that the business carried on in connection
therewith may be properly conducted at all times, provided that this Section
shall not prevent USA or any Subsidiary from discontinuing the operation and the
maintenance of any of its properties if such discontinuance is desirable in the
conduct of its business and USA has concluded that such discontinuance could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section 6.04. Payment of Taxes and Claims. USA will, and will cause each of
its Subsidiaries to, file all tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be due and payable on
such returns and all other taxes, assessments, governmental charges, or levies
imposed on them or any of their properties, assets, income or franchises, to the
extent such taxes and assessments have become due and payable and before they
have become delinquent and all claims for which sums have become due and payable
that have or might become a Lien on properties or assets of USA or any
Subsidiary, provided that neither USA nor any Subsidiary need pay any such tax
or assessment or claims if (i) the amount, applicability or validity thereof is
contested by USA or such Subsidiary on a timely basis in good faith and in
appropriate proceedings, and USA or a Subsidiary has established adequate
reserves therefor in accordance with GAAP on the books of USA or such Subsidiary
or (ii) the nonpayment of all such taxes and assessments in the aggregate could
not reasonably be expected to have a Material Adverse Effect.
Section 6.05. Corporate Existence, etc. USA will at all times preserve and
keep in full force and effect its corporate existence. USA will at all times
preserve and keep in full force and effect the corporate existence of each of
its Subsidiaries and all rights and franchises of USA and its Subsidiaries
unless, in the good faith judgment of USA, the termination of or failure to
preserve and keep in full force and effect such corporate existence, right or
franchise could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
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ARTICLE VII
NEGATIVE COVENANTS
USA covenants that so long as any of the Commitments remain in effect or
any of the Notes are outstanding:
Section 7.01. Restrictions on Indebtedness. USA will not, and will not
permit any Subsidiary to, create, incur, assume, Guaranty or permit to exist any
Indebtedness, except:
(a) the Notes;
(b) the USA Notes;
(c) Indebtedness outstanding under the Fidelity Funding Agreement;
(d) Indebtedness in the amount of $134,635.55 owing to GeoCenter, Inc.
and Indebtedness in the amount of $160,978.25 owing to Sentry Financial
Corporation.
Section 7.02. Restrictions on Liens. USA will not, and will not permit any
Subsidiary to, create, incur, assume, or permit to exist any Lien with respect
to any asset now owned or hereafter acquired, except:
(a) Liens in favor of the Noteholders;
(b) Liens existing on the date hereof and described on Schedule 7.02;
(c) Liens in favor of the Noteholders under the USA Note Agreement;
(d) encumbrances consisting of easements of ingress or egress over
real property, where the same do not materially detract from the use or
enjoyment of such property by, or the value of such property to, USA;
(e) Liens for taxes or assessments or governmental charges or levies,
if payment shall not at the time be required to be made in accordance with
the provisions of Section 6.04;
(f) any judgment lien, unless the judgment it secures shall not,
within 30 days after the entry thereof, have been discharged or execution
thereof stayed pending appeal, or shall not have been discharged within 30
days after the expiration of any such stay;
(g) statutory liens of landlords and liens of carriers, warehousemen,
mechanics, laborers and materialmen incurred in the ordinary course of
business for sums not yet due or being contested in good faith; and
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(h) Liens (other than liens created by section 4068 of ERISA) incurred
on pledges or deposits made in the ordinary course of business in
connection with workmen's compensation, unemployment insurance, social
security laws or similar legislation.
Section 7.03. Financial Covenants. USA will not permit:
(a) its Current Assets at any time prior to September 30, 1996 to be
less than 75% of the sum of (i) its Current Liabilities as at such date,
minus (ii) any portion of such Current Liabilities consisting of amounts
outstanding under the Fidelity Funding Agreement that are not due within
one year of such date;
(b) its Current Assets at any time on or after September 30 1996 to be
less than the sum of (i) its Current Liabilities as at such date, minus
(ii) any portion of such Current Liabilities consisting of amounts under
the Fidelity Funding Agreement that are not due within one year of such
date;
(c) its Tangible Net Worth at any time prior to September 30, 1996 to
be less than $6,000,000 and at any time on or after September 30, 1996 to
be less than $7,000,000;
(d) the sum, determined as of the last day of each calendar month
prior to September, 1996, of (i) its Net Income for the twelve month period
then ended, plus (ii) any interest expense deducted in the calculation of
Net Income for such twelve month period, plus (iii) any depreciation and
amortization expense deducted in the calculation of Net Income for such
twelve month period, plus (iv) any Federal income taxes deducted in the
calculation of Net Income for such twelve month period, to be less than
$2,000,000;
(e) the sum, determined as of the last day of each calendar month
prior to September, 1996, of (i) its Net Income for the twelve month period
then ended, plus (ii) any interest expense deducted in the calculation of
Net Income for such twelve month period, plus (iii) any depreciation and
amortization expense deducted in the calculation of Net Income for such
twelve month period, plus (iv) any Federal income taxes deducted in the
calculation of Net Income for such twelve month period, to be less than
$2,500,000; and
(f) the ratio of (i) the Collateral Liquidation Value to (ii) the
outstanding principal balance of the Senior Notes, to be less than 1.75 to
1.0 at any time.
Section 7.04. Restricted Payments. Except as contemplated by the
Transaction Documents, the USA Note Agreement and the documents and agreements
contemplated thereby, USA will not, and will not permit any Subsidiary, directly
or indirectly, to make or pay (a) any dividend or other distribution on any
shares of USA's capital stock (including any dividends payable in shares of
capital stock), (b) any payment on account of the purchase, redemption,
retirement or acquisition of any shares of USA's capital stock or any option,
warrant or other right to acquire such shares, or (c) any payments or other
distributions to Sierra Management, Inc.
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Section 7.05. Merger, Consolidation, etc. USA shall not consolidate with or
merge with any other Person or convey, transfer or lease all or substantially
all of its assets in a single transaction or series of transactions to any
Person.
Section 7.06. Restrictions on Asset Sales. USA will not, and will not
permit any Subsidiary to, sell, transfer, assign, convey or otherwise dispose of
an interest in any asset now owned or hereafter acquired.
Section 7.07. Transactions with Affiliates. USA will not, and will not
permit any Subsidiary to, enter into directly or indirectly any Material
transaction or Material group of related transactions (including without
limitation the purchase, lease, sale or exchange of properties of any kind or
the rendering of any service) with any Affiliate (other than USA or another
Subsidiary), except in the ordinary course and pursuant to the reasonable
requirements of USA's or such Subsidiary's business and upon fair and reasonable
terms no less favorable to USA or such Subsidiary than would be obtainable in a
comparable arm's-length transaction with a Person not an Affiliate.
Section 7.08. Change in Business. Except for oil and gas exploration and
production operations to be conducted by the Company, USA will not, and will not
permit any of its Subsidiaries to, directly or indirectly engage to a material
extent in any business other than those in which it is presently engaged or that
are directly related thereto, or discontinue any of its existing lines of
business or substantially alter its method of doing business. Without limiting
the generality of the foregoing, USA and its Subsidiaries (other than the
Company) shall not engage in any oil and gas exploration and production
operations or business.
Section 7.09. Fidelity Funding Agreement. Without the prior written consent
of the Noteholders, USA will not, and will not permit any of its Subsidiaries
to, amend, modify or extend the Fidelity Funding Agreement.
Section 7.10. Restriction on Investment. Other than (a) the common stock of
the Company owned by USA on the date hereof, (b) Oil and Gas Properties
transferred to the Company prior to the date hereof and (c) capital
contributions to the Company that are applied directly by the Company to pay the
Indebtedness owing on the Notes, USA will not, and will not permit any of its
Subsidiaries to, make any Investment in the Company without the Noteholders'
prior written consent.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Transaction Expenses. Whether or not the transactions
contemplated hereby are consummated, USA will pay all reasonable costs and
expenses (including reasonable attorneys' fees of a special counsel and any
local or other counsel) incurred by the Noteholders or holder of a Note in
connection with such transactions and in connection with any amendments,
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waivers or consents under or in respect of this Agreement or the other
Transaction Documents (whether or not such amendment, waiver or consent becomes
effective), including, without limitation: (a) the reasonable costs and expenses
incurred in enforcing or defending (or determining whether or how to enforce or
defend) any rights under this Agreement or the other Transaction Documents or in
responding to any subpoena or other legal process or informal investigative
demand issued in connection with this Agreement or the other Transaction
Documents, or by reason of being a holder of any Note, (b) the reasonable costs
and expenses of negotiation, preparation and execution of this Agreement and the
other Transaction Documents, and (c) the reasonable costs and expenses,
including reasonable financial advisors' fees, incurred in connection with the
insolvency or bankruptcy of USA or any Subsidiary or in connection with any
work-out or restructuring of the transactions contemplated hereby and by the
Notes. USA will pay, and will save the Noteholders and each other holder of a
Note harmless from, all claims in respect of any fees, costs or expenses if any,
of brokers and finders (other than those retained by the Noteholders). The
obligations of USA under this Section 8.01 will survive the payment or transfer
of any Note, the enforcement, amendment or waiver of any provision of this
Agreement or the other Transaction Documents, and the termination of this
Agreement.
Section 8.02. Survival of Representations and Warranties. All
representations and warranties contained herein shall survive the execution and
delivery of this Agreement and the Notes, the purchase or transfer by the
Noteholders of any Note or portion thereof or interest therein and the payment
of any Note, and may be relied upon by any subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf of the
Noteholders or any other holder of a Note. All statements contained in any
certificate or other instrument delivered by or on behalf of USA pursuant to
this Agreement shall be deemed representations and warranties of USA under this
Agreement.
Section 8.03. Amendment and Waiver. This Agreement may be amended, and the
observance of any term hereof may be waived (either retroactively or
prospectively), with (and only with) the written consent of the Required
Holders, except that no amendment or waiver may, without the written consent of
the holder of each Note at the time outstanding affected thereby, release USA
from its obligations hereunder. Any amendment or waiver consented to as provided
in this Section 8.03 applies equally to all holders of Notes and is binding upon
them and upon each future holder of any Note and upon USA without regard to
whether such Note has been marked to indicate such amendment or waiver. No such
amendment or waiver will extend to or affect any obligation, covenant or
agreement not expressly amended or waived or impair any right consequent
thereon. No course of dealing between USA and the holder of any Note nor any
delay in exercising any rights hereunder or under any Note shall operate as a
waiver of any rights of any holder of such Note.
Section 8.04. Notices. All notices and communications provided for
hereunder shall be in writing and sent (a) by telecopy if the sender on the same
day sends a confirming copy of such notice by a recognized overnight delivery
service (charges prepaid), or (b) by registered or certified mail with return
receipt requested (postage prepaid), or (c) by a recognized overnight delivery
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service (with charges prepaid). Any such notice must be sent: (i) if to a
Noteholder, to its address specified for such communications in Schedule A to
the Note Agreement, or at such other address as it shall have specified to USA
in writing, (ii) if to USA, to USA at 16420 Park Ten Place, Suite 300, Houston,
Texas 77084, Telecopy No.: 713-578-7091, or at such other address as USA shall
have specified to the holder of each Note in writing. Notices under this Section
8.04 will be deemed given only when actually received.
Section 8.05. Limitation on Interest. Each provision in this Agreement and
each other Transaction Document is expressly limited so that in no event
whatsoever shall the amount paid, or otherwise agreed to be paid, by USA for the
use, forbearance or detention of the money to be loaned under this Agreement or
any other Transaction Document or otherwise (including any sums paid as required
by any covenant or obligation contained herein or in any other Transaction
Document which is for the use, forbearance or detention of such money), exceed
that amount of money which would cause the effective rate of interest thereon to
exceed the Highest Lawful Rate, and all amounts owed under this Agreement and
each other Transaction Document shall be held to be subject to reduction to the
effect that such amounts so paid or agreed to be paid which are for the use,
forbearance or detention of money under this Agreement or such Transaction
Document shall in no event exceed that amount of money which would cause the
effective rate of interest thereon to exceed the Highest Lawful Rate.
Section 8.06. Successors and Assigns. All covenants and other agreements
contained in this Agreement by or on behalf of any of the parties hereto bind
and inure to the benefit of their respective successors and assigns (including,
without limitation, any subsequent holder of a Note) whether so expressed or
not.
Section 8.07. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 8.08. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto.
Section 8.09. Confidentiality. In connection with the negotiation and
administration of this Agreement and the other Transaction Documents, USA has
furnished and will from time to time furnish the Noteholders (such information,
other than any such information which (i) was publicly available, or otherwise
known to the Noteholders, at the time of disclosure, (ii) subsequently becomes
publicly available other than through any act or omission by the Noteholders or
(iii) otherwise subsequently becomes known to the Noteholders, being hereinafter
referred to as "Confidential Information"). The Noteholders will maintain the
confidentiality of any
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Confidential Information in accordance with such procedures as the Noteholders
apply generally to information of that nature. It is understood, however, that
the foregoing will not restrict the Noteholders' ability to freely exchange such
Confidential Information with current or prospective investors, assignees and
advisors. Subject to the prohibitions and restrictions imposed on the
Noteholders with respect to the Confidential Information under applicable
securities laws, it is further understood that the foregoing will not prohibit
the disclosure of any or all Confidential Information if and to the extent that
such disclosure may be required or requested (w) by a Governmental Authority,
(x) pursuant to court order, subpoena or other legal process or in connection
with any pending or threatened litigation hereunder, (y) otherwise as required
by law, or (z) in order to protect its interests or its rights or remedies
hereunder or under the other Transaction Documents; in the event of any required
disclosure under clause (w), (x), or (y) above, the Noteholders agree to use
reasonable efforts to inform USA as promptly as practicable.
Section 8.10. Final Agreement of the Parties. THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
Section 8.11. Jury Waiver. USA, THE COMPANY AND THE NOTEHOLDERS HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 8.12. Choice of Forum. USA, THE COMPANY AND THE NOTEHOLDERS AGREE
THAT ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN THE FEDERAL OR STATE COURTS
OF HARRIS COUNTY, TEXAS, OTHER THAN LEGAL PROCEEDINGS INSTITUTED BY THE
NOTEHOLDERS WITH RESPECT TO THEIR RIGHTS AND REMEDIES UNDER THE SECURITY
DOCUMENTS, WHICH PROCEEDINGS MAY BE BROUGHT IN THE FEDERAL OR STATE COURTS OF
HARRIS COUNTY, TEXAS OR THE COURTS OF ANY OTHER JURISDICTION DEEMED APPROPRIATE
BY THE NOTEHOLDERS TO ENFORCE THEIR RIGHTS AND REMEDIES UNDER THE SECURITY
DOCUMENTS.
Section 8.13. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the law
of the State of New York excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
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IN WITNESS WHEREOF, USA, the Company and the Noteholders have caused this
Agreement to be executed by their respective representatives thereunto duly
authorized effective as of the date first above written.
UNIVERSAL SEISMIC ASSOCIATES, INC.
By: /s/ Michael J. Pawelek
---------------------------
Name: Michael J. Pawelek
Title: President
UNEXCO, INC.
By: /s/ Michael J. Pawelek
---------------------------
Name: Michael J. Pawelek
Title: President
RIMCO PARTNERS, L.P. II,
RIMCO PARTNERS, L.P. III, and
RIMCO PARTNERS, L.P. IV
By: Resource Investors Management
Company Limited Partnership,
their general partner
By: RIMCO Associates, Inc.,
its general partner
By: /s/ Gary Milavec
---------------------------
Name: Gary Milavec
Title: Vice President
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SCHEDULES OMITTED
<PAGE>
EXHIBIT G-1
FIRST AMENDMENT TO
GUARANTY AND EXCHANGE AGREEMENT
This First Amendment to Guaranty and Exchange Agreement (this "First
Amendment") dated as of May 28, 1996 is between UNEXCO, Inc., a Delaware
corporation (the "Company"), Universal Seismic Associates, Inc., a Delaware
corporation ("USA"), and RIMCO Partners, L.P. II, a Delaware limited
partnership, RIMCO Partners, L.P. III, a Delaware limited partnership, and RIMCO
Partners, L.P. IV, a Delaware limited partnership (collectively, the
"Noteholders").
PRELIMINARY STATEMENTS
A. The Company and the Noteholders have heretofore entered into that
certain Note Purchase Agreement, dated January 19, 1996 (as amended from time to
time, the "Note Agreement").
B. USA, the Company and the Noteholders have heretofore entered into that
certain Guaranty and Exchange Agreement, dated January 19, 1996 (the "Guaranty
and Exchange Agreement"), whereby, among other things, USA guaranteed the
payment of the Company's obligation under the Note Agreement, the Notes and the
other Transaction Documents.
C. USA, the Company and the Noteholders now desire to amend the Guaranty
and Exchange Agreement with respect to the matters set forth herein.
D. Capitalized terms used herein shall have the respective meanings
described thereto in the Note Agreement unless herein defined or the context
shall otherwise require.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, USA, the Company and the Noteholders agree as follows:
Section 1. Amendments.
1.1 Section 4.15 of the Guaranty and Exchange Agreement is amended in its
entirety to read as follows:
"Section 4.15. Capitalization. The authorized capital stock of
USA consists solely of 20,000,000 shares of $.0001 par common stock,
of which 4,221,420 shares are issued and outstanding."
1.2 Section 7.01 of the Guaranty and Exchange Agreement is amended in its
entirety to read as follows:
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"Section 7.01. Restrictions on Indebtedness. USA will not, and
will not permit any Subsidiary to, create, incur, assume, Guaranty or
permit to exist any Indebtedness, except:
(a) the Notes;
(b) the USA Notes;
(c) the New USA Notes;
(d) Indebtedness outstanding under the Fidelity Funding
Agreement; and
(e) Indebtedness in the amount of $81,675.47 owing to Sentry
Financial Corporation."
1.3 Section 7.02(c) of the Guaranty and Exchange Agreement is amended in
its entirety to read as follows:
"(c) Liens under the USA Note Agreement and the New USA Note
Agreement."
1.4 Section 7.03(f) of the Guaranty and Exchange Agreement is deleted in
its entirety.
1.5 Section 7.04 of the Guaranty and Exchange Agreement is amended in its
entirety to read as follows:
"Section 7.04. Restricted Payments. Except as contemplated by the
Transaction Documents, the New Transaction Documents, the USA Note
Agreement and the documents and agreements contemplated thereby, USA
will not, and will not permit any Subsidiary, directly or indirectly,
to make or pay (a) any dividend or other distribution on any shares of
the USA's capital stock (including any dividends payable in shares of
capital stock), (b) any payment on account of the purchase,
redemption, retirement or acquisition of any shares of the USA's
capital stock or any option, warrant or other right to acquire such
shares, or (c) any payments or other distributions to Sierra
Management, Inc."
Section 2. Representations and Warranties of USA and the Company.
2.1 USA and the Company represent and warrant to the Noteholders that:
(a) this First Amendment has been duly authorized, executed and
delivered by them and this First Amendment constitutes the legal, valid and
binding obligation of USA and the Company enforceable against them in
accordance with its terms, except as enforcement
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may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or limiting creditors'
rights generally;
(b) The Guaranty and Exchange Agreement, as amended by this First
Amendment, constitutes the legal, valid and binding obligation of USA and
the Company enforceable against them in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or limiting
creditors' rights generally;
(c) the execution, delivery and performance by USA and the Company of
this First Amendment (i) has been duly authorized by all requisite
corporate action and, if required, shareholder action, (ii) does not
require the consent or approval of any governmental or regulatory body or
agency, and (iii) will not (A) violate (1) any provision of law, statute,
rule or regulation or its certificate of incorporation or bylaws, (2) any
order of any court or any rule, regulation or order of any other agency or
government binding upon it, or (3) any provision of any material indenture,
agreement or other instrument to which it is a party or by which its
properties or assets are or may be bound, or (B) result in a breach or
constitute (alone or with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument;
(d) as of the date hereof and after giving effect to this First
Amendment, no Default or Event of Default has occurred which is continuing;
and
(e) all representations and warranties contained in Article IV of the
Guaranty and Exchange Agreement and in the other Transaction Documents are
true and correct in all material respects with the same force and effect as
if made by USA or the Company, as applicable, on and as of the date hereof.
Section 3. Conditions to Effectiveness of This First Amendment.
3.1 This First Amendment shall not become effective until, and shall become
effective when, each of the following conditions shall have been satisfied:
(a) executed counterparts of this First Amendment, duly executed by
USA and the Company and the Noteholders, shall have been delivered to the
Noteholders;
(b) the Noteholders shall have received a copy of the resolutions of
the Board of Directors of USA and the Company authorizing the execution,
delivery and performance by USA and the Company of this First Amendment,
certified by their respective Secretary or an Assistant Secretary;
(c) the representations and warranties of USA and the Company set
forth in Section 2 hereof are true and correct on and as of the date
hereof; and
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(d) the Noteholders shall have received the favorable opinion of
counsel to USA and the Company as to the matters set forth in Sections
2.1(a), 2.1(b) and 2.1(c) hereof, which opinion shall be in form and
substance satisfactory to the Noteholders.
Section 4. Payment of Noteholders' Counsel Fees and Expenses.
4.1 USA and the Company agree to pay upon demand, the reasonable fees and
expenses of Andrews & Kurth L.L.P., counsel to the Noteholders, in connection
with the negotiation, preparation, approval, execution and delivery of this
First Amendment.
Section 5. Miscellaneous.
5.1 This First Amendment shall be construed in connection with and as part
of the Guaranty and Exchange Agreement, and except as modified and expressly
amended by this First Amendment, all terms, conditions, and covenants contained
in the Guaranty and Exchange Agreement are hereby ratified and shall be and
remain in full force and effect.
5.2 Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this First Amendment
may refer to the Guaranty and Exchange Agreement without making specific
reference to this First Amendment but nevertheless all such references shall
include this First Amendment unless the context otherwise requires.
5.3 The descriptive headings of the various Sections or parts of this First
Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
5.4 This First Amendment shall be governed by and construed in accordance
with New York law.
UNIVERSAL SEISMIC ASSOCIATES, INC.
By: /s/ Michael J. Pawelek
___________________________
Name: Michael J. Pawelek
Title: President
UNEXCO, INC.
By: /s/ Michael J. Pawelek
___________________________
Name: Michael J. Pawelek
Title: President
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RIMCO PARTNERS, L.P. II,
RIMCO PARTNERS, L.P. III, and
RIMCO PARTNERS, L.P. IV
By: Resource Investors Management
Company Limited Partnership,
their general partner
By: RIMCO Associates, Inc.,
its general partner
By: /s/ Gary Milavec
___________________________
Name: Gary Milavec
Title: Vice President
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