EXHIBIT 10.36
LEASE AGREEMENT
AMPLICON FINANCIAL
ORDER NO. _____
LESSEE: International Environmental Corporation
STREET: 5000 I 00 Xxxx
XXXX: Xxxxxxxx Xxxx
XXXXX: Oklahoma
COUNTY: Oklahoma
ZIP: 73128
NAME AND
TITLE: Xxxxx X. Xxxxxx / Chief Executive Officer
TERMS AND CONDITIONS OF LEASE
1. LEASED PROPERTY: Subject to the following terms and conditions,
Amplicon Inc., ("Lessor") hereby leases to and/or grants to Lessee the right to
use certain Hardware and Software as described on the attached Lease Schedule(s)
annexed hereto and made a part hereof (hereafter "Leased Property"). Lessee
agrees to hire and take and agrees to accept the right to use that certain
Leased Property, and such other Leased Property described on supplemental
Schedule(s) that the parties from time to time may annex to this Lease.
2. TERM: This Lease, with respect to any Schedule, shall become
effective upon acceptance by Lessor and the term for any Schedule(s) shall
commence on the day that the Manufacturer/Vendor/Licensor certifies that the
Leased Property has been delivered 10 and is usable by Lessee ("Commencement
Date"). Lessee agrees that its remedies, should it find fault with any of the
Leased Property, shall be and are solely against the
Manufacturer/Vendor/Licensor. This Lease shall give Lessee the right to use the
Hardware at the location(s) and Software on the serial number specific Central
Processing Unit ("CPU"), or replacement CPU, or site specific location,
delineated on the Schedule(s). The initial base term of the Lease, with respect
to any Schedule(s), shall be as indicated on the respective Schedule(s) and
shall be calculated from the first day of the calendar quarter following the
Commencement Date ("Initial Base Lease Term"). A calendar quarter means a three-
month period commencing on January 1, April 1, July 1, or October 1, of any
calendar year. The Initial Base Lease Term shall be extended for an additional
one-year period at the rate delineated on the respective Schedule(s) unless
Lessee provides to Lessor written notice of Lessee's election not to extend the
Initial Base Lease Term at least one hundred eighty (180) days prior to its
expiration. Notwithstanding the provisions of Section 20 below, such written
notice may be delivered to Lessor by hand or by mail and shall not be effective
unless it is actually received by Lessor 21 least one hundred eighty (180) days
prior to expiration of the Initial Base
Lease Term. At the expiration of the Initial Base Lease Tenn (or, if extended,
at the expiration of the extended Term), Lessee shall do one of the following:
(A) purchase all of the Leased Property for a mutually agreeable purchase price;
(B) extend the Schedule(s) for a period of one (1) additional year at the rate
delineated on the respective Schedule(s); or (C) enter into a new lease with
Lessor to lease property which replaces the Leased Property and which has a cost
greater than or equal to the original cost of the Leased Property. With respect
to options (A) and (C); Lessor and Lessee shall each have absolute discretion
regarding their agreement or lack of agreement to the terms of either such
arrangement. If the parties have not agreed to either option (A) or option (C)
by the expiration of the initial or extended Base Lease Term, then option (B)
shall prevail. At the end of the extension provided by option (B), this Lease
shall continue subject to termination by either Lessor or Lessee at the end of
any calendar month, provided at least one hundred twenty (120) days' prior
written notice of such termination is delivered to the other party. Each
Schedule shall be deemed to incorporate therein these specific terms and
conditions and shall have an independent Initial Base Lease Term and extension
period(s).
3. RENTALS: The quarterly rent payable shall be the amount shown on each
Schedule(s). Lessee shall pay to Lessor the quarterly rent, in advance, for each
quarter of any part thereof that this Lease. with respect to said Schedule(s),
is in effect. The first such payment shall be made on the first day of the
calendar quarter following the Commencement Date. A pro-rata portion of the
quarterly rental charges based on a daily rental of one-ninetieth (1/90th) of
the quarterly rental calculated from the Commencement Date to the end of the
calendar quarter, shall be due and payable at the Commencement Date.
Installments of rent which are not paid within ten (10) days of their due date
shall bear interest at a "Delinquency Rate" equal to five percent (5%) of each
installment of rent. For delinquent installments of rent which remain unpaid at
the end of each month, interest shall continue to accrue and compound at a
delinquency rate equal to five percent (5%) of the cumulative unpaid balance.
All rent shall be paid at the place of business of Lessor shown above or such
other place as Lessor may designate by written notice to Lessee. Except as
otherwise provided in this Lease, Lessee's obligation to pay rent shall be
absolute and unconditional under all circumstances, notwithstanding: (i) any
setoff, counterclaim, recoupment, defense or other right which Lessee may have
against Lessor for any reason whatsoever, (ii) any defect in the tide, right to
use, condition, operation, fitness for use, damage or destruction of or to the
Leased Property or any interruptions or cessations in use or possession thereof
for any reason whatsoever, (iii) any insolvency, bankruptcy, reorganization or
similar proceedings instituted by or against Lessee. Unless otherwise delineated
on the Lease Schedule, any Deposit shall be returned to Lessee if Lessor does
not accept the transaction.
2
Otherwise, upon acceptance by Lessor, any Deposit shall be treated as a
transaction fee to be retained by Lessor and is not to be applied to rental or
other payments due and owing under the Lease. Lessee hereby waives, to the
extent permitted by applicable law, any and all right which it may now, or at
any time hereafter, have to cancel, terminate, or surrender this. lease except
in accordance with the express terms hereof.
4. ADDITIONS AND MODIFICATIONS: Without the prior consent of Lessor,
which consent shall be conditioned upon delivery of documentation of a form and
substance required by Lessor, Lessee shall make no addition, modification,
alteration or attachment with respect to any of the Leased Property. All
additions, modifications, alterations and attachments placed upon the Leased
Property shall become part of the Leased Property and shall be the property of
Lessor. If not purchased, leased or financed by Lessor, Lessee shall, upon
written consent of Lessor and at Lessee's sole expense, have the Hardware
Manufacturer remove said items and restore the hardware to its original
condition. Software, as described on any Schedule(s); shall also include all
updates, revisions, new versions, enhancements, modifications, derivative works,
maintenance fixes, translations, adaptations, and copies of the foregoing or of
the original version of the Software, and references to the Software shall also
be interpreted as references to any portion or pans thereof. Lessor, at its sole
option, may provide financing for any Additions and Modifications to Leased
Property required by Lessee during the Lease term subject to the then prevailing
interest rates and the Lessee's credit standing. Lessee shall not move the
Leased Property from the location set forth in the Schedule(s) without Lessor's
prior written approval and then only to another location within the continental
United States and upon such terms and conditions as Lessor may then stipulate.
5. NO WARRANTIES: LESSOR NOT BEING THE MANUFACTURER, DEVELOPER,
PUBLISHER, DISTRIBUTOR, OR LICENSOR OF THE LEASED PROPERTY, MAKES NO WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, QUALITY, DESIGN,
CONDITION, CAPACITY, SUITABILITY, MERCHANTABILITY OR PERFORMANCE OF THE LEASED
PROPERTY OR OF THE MATERIAL OR WORKMANSHIP THEREOF, IT BEING AGREED THAT THE
LEASED PROPERTY IS LEASED "AS IS" AND THAT ALL SUCH RISKS, AS BETWEEN LESSOR AND
LESSEE ARE TO BE BORNE BY LESSEE AT ITS SOLE RISK AND EXPENSE. LESSEE REPRESENTS
THAT ALL OF THE LEASED PROPERTY ARE OF A XXX, DESIGN, AND CAPACITY SELECTED BY
IT, AND THAT IT IS SATISFIED THAT THE SAME IS SUITABLE FOR LESSEE'S PURPOSES.
THIS PROVISION SHALL SURVIVE TERMINATION OF THE RESPECTIVE LEASE TERM AND OF
THIS LEASE. LESSOR, AT ITS SOLE OPTION, MAY SUPPLY ITEMS OF
3
LEASED PROPERTY, EITHER NEW OR USED, THAT MEET THE SPECIFICATION OF ITEMS OF
LEASED PROPERTY DELINEATED ON THE SCHEDULE(S).
6. USE, OPERATION AND MAINTENANCE: Lessee, at its expense will provide a
suitable place for the installation, operation and maintenance of all Leased
Property with all such facilities fully complying with the installation and
operational specifications outlined in pertinent
Manufacturer's/Vendor's/Licensor's manuals. Lessee, without expense to Lessor,
will enter into and keep in force during the entire term of this Lease the best
standard Manufacturer's/Vendor's/Licensor's Maintenance Agreement in form and
substance approved by Lessor which will cause
Manufacturer(s)/Vendor(s)/Licensor(s) to make all the necessary repairs,
adjustments, and replacements in accordance with such Agreement and entitle
Lessee (through Lessor, if necessary) to obtain enhancements, updates, and
changes available under the License or Maintenance Agreement. Lessee will
provide full free access to the Leased Property for maintenance purposes. Lessee
shall not do anything, or fad to do anything, to impair the
Manufacturer's/Vendor's/Licensor's warranty with respect to any Leased Property
such as (but not limited to) using a version of software, other than the version
specified by the License to be used, making unauthorized modifications of the
Leased Property, failing to follow Manufacturer's/Vendor's/Licensor's operations
or maintenance instructions, or abusing, misusing or allowing negligent acts to
be caused by Lessee or those to whom Lessee gives access to the Leased Property.
Lessee will comply with all laws, rules, regulations or orders of any
governmental agency with respect to the Leased Property or to the use,
operation, maintenance or storage thereof.
7. RISK OF LOSS: During the period the Leased Property is in transit or
in the possession of Lessee, Lessee shall assume all responsibility for loss or
damage and shall hold Lessor harmless against the same. In the event that,
during the term of the Lease or until the Leased Property shall have been
returned, if any of the Leased Property shall be confiscated, taken,
requisitioned. lost, stolen. destroyed or irreparably damaged for any cause
whatsoever (such occurrences hereinafter called "Casualty Occurrences"), Lessee
shall immediately and fully inform Lessor. In the case of Software, the erasure,
inoperability or other incapacity of the Software triggered by a preprogrammed
termination or limiting design or routine embedded in the Software shall also be
deemed a "Casualty Occurrence". Following a Casualty Occurrence, on the next
succeeding rent payment date, Lessee shall pay to Lessor, in addition to all
past due rentals and other amounts then late and outstanding, an amount equal to
the Casualty Value as determined by the attached Casualty Schedule as of the
date of the Casualty Occurrence. Upon the making of such payment by Lessee, the
rental for such Schedule(s) shall cease to accrue as of the date of such payment
and the term of the Lease as to such Schedule(s) shall
4
terminate. Insurance proceeds received by Lessor as the result of a Casualty
Occurrence with respect to any Schedule(s) shall be applied in reduction of
Lessee's obligation to pay the Casualty Value. The Casualty Value as of any rent
payment date (or as of any other date on which Casualty Value is payable) shall
be an amount equal to that percentage of the Purchase Price or License Fee as is
set forth in the Casualty Schedule attached hereto, opposite the number of such
rent payment date or such other date. Except as hereinabove in this paragraph
provided, Lessee shall not be released from its obligations hereunder in the
event of, and shall bear the risk of, any Casualty Occurrence to any of the
Leased Property. The Purchase Price or License Fee of any Leased Property shall
be the invoice price/fee therefor, including any applicable sales, use or other
taxes then payable, and normal delivery charges.
8. INDEMNITY AND INSURANCE: Lessor shall have no responsibility or
liability to Lessee, its successors or assigns, or to any other person, with
respect to any or all liabilities, and Lessee hereby assumes liability for, and
hereby agrees, at its own cost and expense, to indemnify, protect, defend, save
and keep harmless Lessor, its agents, employees, officers, directors, successors
and assigns, from and against, any and all liabilities, obligations, losses,
damages, injuries, claims (including without limitation, claims based upon
strict liability); demands, penalties, actions, costs and expenses, including
legal expenses, of every kind or nature arising out of the use, condition
(including but not limited to, latent and other defects, whether or not
discoverable by Lessee or Lessor), operation, ownership, selection, delivery,
leasing or return of any item of Leased Property (including without limitation,
any claim for patent, trademark or copyright infringement), regardless of where,
how and by whom operated, or any failure on the part of Lessee to perform or
comply with any conditions of this Lease or for any interruption of service,
loss of business or consequent damages. The indemnities and assumptions of
liabilities and obligations herein provided for shall continue in full force and
effect notwithstanding the expiration or other termination of this Lease.
Lessee, at its expense shall procure and maintain in full force and effect at
all times that this Lease is in force and effect such public liability
(including, without limitation, contractual liability insurance), property
damage liability, fire with extended coverage, theft, and other insurance in
such form and amounts and with such companies as shall be satisfactory to
Lessor. Lessor shall be named as an additional insured and loss payee on all
policies which shall provide that no cancellation thereof shall be effective
without thirty (30) days prior written notice to Lessor and shall not be
invalidated as to Lessor by any act, omission or neglect of Lessee.
5
THIS LEASE CAN ONLY BE MODIFIED BY WRITTEN ADDENDUM DULY SIGNED BY PERSONS
AUTHORIZED TO SIGN AGREEMENTS ON BEHALF OF LESSEE AND BY A DULY AUTHORIZED
OFFICER OF AMPLICON, INC.
LESSEE ________________________ LESSOR ________________________
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
THIS LEASE IS SUBJECT TO APPROVAL AND ACCEPTANCE BY AMPLICON, INC.'S FINANCE
COMMITTEE.
BY EXECUTION HEREOF, THE SIGNER HEREBY CERTIFIES THAT HE HAS READ THIS LEASE,
INCLUDING THE REVERSE SIDE HEREOF, AND THAT HE IS DULY AUTHORIZED TO EXECUTE
THIS LEASE ON BEHALF OF LESSEE. UNTIL THIS DOCUMENT (OR AN IDENTICAL COUNTERPART
THEREOF) HAS BEEN SIGNED BY A DULY AUTHORIZED OFFICER OF AMPLICON, INC. IT SHALL
CONSTITUTE AN OFFER BY LESSEE TO ENTER INTO THIS LEASE AGREEMENT ON THE TERMS
STATED HEREIN WITH LESSOR.
OFFER ACCEPTANCE
LESSEE International Environmental AMPLICON, INC.
------------------------------
Corporation
------------------------------
By/Title Vice President By ____________________
------------------------------
Name Xxxx Xxxxxx Date __________________
----------------------------------
Date 4-3-96
----------------------------------
9. _____________________________ _________________________________
________________________________________________________________________________
________________________________________________ authorized), possession or use
of the Leased Property, excepting only those based on Lessor's income, and shall
keep the Leased Property free and clear of all levies, liens or encumbrances
arising therefrom. ALL REQUIRED PERSONAL PROPERTY TAX RETURNS RELATING TO THE
LEASED PROPERTY SHALL BE FILED BY LESSEE UNLESS OTHERWISE PROVIDED IN WRITING.
Lessor skull not be responsible for contesting any valuation of or tax imposed
on the Leased Property, but may do so strictly as in accommodation to Lessee and
shall not be liable or accountable to Lessee therefor.
10. OWNERSHIP: Title to any Hardware shall at all times remain in Lessor.
To the extent that any Software License allows tide to Software to pass to
Licensee, such title shall vest and
6
remain in Lessor. To she extent that such vesting requires a specific written
conveyance, Lessee hereby conveys to Lessor any tide it has or may hereafter
acquire in the Software and relinquishes any subsequent claim of title in the
Software, including any rights to purchase the Software and/or to retain rights
to use the same beyond this Lease. If any provision of this paragraph requires
for its effectiveness Licensor's prior written consent because the License
limits transfers. encumbrance, or assignment of the Software, then Lessee shall
assist Lessor, if so requested, In obtaining such consent. Lessee will at all
times protect and defend, at its own cost and expense, the tide and/or License
rights of Lessor from And against all claims, liens and legal processes and keep
all Leased Property free and clear from all such claims, liens and processes.
The Leased Property is and shall remain personal property of Lessor. Upon the
expiration or termination of this Lease with respect to a particular
Schedule(s), the Lessee at its expense shall return said items of Leased
Property unencumbered to Lessor at such place within the continental limits of
the United States as Lessor shall designate.
11. EFFECTS OF TERMINATION OR EXPIRATION OF LEASE TERM: Immediately upon
expiration or termination of each and every Lease Term as defined under this
Lease, Lessee shall discontinue its use of the Leased Property. In the case of
Software, Lessee shall destroy all intangible items constituting such Software,
and shall deliver to Lessor all tangible items constituting such Software. At
Lessor's request, Lessee shall also certify in a form acceptable to Lessor that:
(i) all such tangible Software has been delivered; (ii) that all intangible
records thereof have been destroyed; (iii) that Lessee has not retained such
Software in any form; (iv) that Lessee will not use such Software after
termination, and (v) that Lessee grants Lessor the right (which shall survive
termination) to inspect all of Lessee's locations to insure compliance with the
provisions of this paragraph. TERMINATION OF ANY LEASE TERM (FOR WHATEVER CAUSE)
SHALL NOT ABSOLVE USER FROM PAYMENT OF ACCRUED PERIODIC PAYMENTS OR FROM
COMPLIANCE WITH THE USE AND DISCLOSURE RESTRICTIONS OF THIS LEASE, OR FROM ITS
OBLIGATIONS TO INDEMNIFY LESSOR. All representations and warranties contained in
this Lease, or in any document or certificate delivered pursuant hereto or in
connection herewith, shall survive the expiration or other termination of the
respective Lease Term and of this Lease,
12. PERFORMANCE OF LESSEE'S OBLIGATIONS BY LESSOR: If Lessee fails to
perform any of its obligations under this Lease, Lessor may, at its option,
perform the same for the account of Lessee without thereby waiving Lessee's
default and any amount paid, expense (including reasonable attorney's fees),
penalty or other liability incurred by Lessor in such performance shall be
payable by Lessee to Lessor upon demand, with Interest thereon at the
delinquency rate set forth in Paragraph 3, above.
7
13. RIGHT OF INSPECTION: In addition to its rights of entry and
inspection stated elsewhere in this Lease, Lessor may from time to time during
reasonable business hours enter upon any premises where any of the Leased
Property may be located for the purpose of confirming the existence, condition,
and proper maintenance of the Leased Property.
14. DEFAULT: An Event of Default shall occur if: (a) Lessee fails to pay
within ten (10) days after the due date, any installment of rent; (b) Lessee
fads to perform or observe any covenant, condition, or obligation to be
performed or observed by it under this Lease, and such failure continues uncured
for fifteen (15) days after written notice thereof to Lessee by Lessor; (c)
Lessee ceases doing business as a going concern. makes an assignment for the
benefit of creditors, admits in writing its insolvency, files a voluntary
petition in bankruptcy, I!, adjudicated bankrupt or insolvent, files a petition
seeking for Itself any reorganization, liquidation, dissolution, or similar
arrangement under any present or future statute; law, regulation, or files an
answer admitting die material allegations of a petition filed against it in any
such proceeding, consents to or acquiesces in the appointment of a trustee,
receiver, or liquidator of it or of all or a substantial pan of its assets, or
if its principals take any action looking to its dissolution or liquidation; (d)
within sixty (60) days after the commencement of proceedings against Lessee
seeking reorganization, liquidation, dissolution, or similar relief under any
present or future statute, law or regulation, such proceeding shall not have
been dismissed, or if within sixty (60) days after the appointment without
Lessee's consent or acquiescence of any trustee, receiver, or liquidator of it
or of all or any substantial pan of its assets, such appointment shaft not be
vacated, or (e) Lessee attempts to remove, transfer, sell, sublicense, encumber,
part with possession. or sublet the Leased Property; or W Lessee attempts to
assign or transfer this Lease or its interest hereunder without Lessor's express
prior written consent, or Lessee's credit worthiness materially deteriorates as
judged solely by Lessor, whether through sale, assignment, buyout, bankruptcy or
change of ownership of any type, form or manner, or undergoes a Change-in-
Control. A Change-In-Control shall be deemed an assignment for purposes of this
section. A Change-In-Control means a transaction or a series of related
transactions which, after giving effect thereto, causes the holders of ownership
interests in the Lessee prior to such transaction or transactions to
beneficially own less than 75% of Lessee after such transaction or transactions
have been consummated.
15. REMEDIES: If an event of default shall occur, Lessor may exercise at
its sole option, but not specifically limited thereto, anyone or more of the
following remedies: (a) terminate this Lease and Lessee's rights hereunder, (b)
proceed, by appropriate court action to enforce performance by Lessee of the
applicable covenants
8
of this Lease or to recover damages for the breach thereof, (c) by notice in
writing to Lessee, recover all amounts due on or before the date Lessor declared
this Leak to be in default, plus, as liquidated damages for loss of a bargain
and not as a penalty, accelerate, and declare to be immediately due and payable,
all rentals and other sums payable hereunder, without any presentment, demand,
protest or further notice (all of which hereby are expressly waived by Lessee),
whereupon the same shall be and become immediately due and payable, and (d)
personally, or by its agents, take immediate possession of the Leased Property,
or any part thereof, from Lessee and for such purpose, enter upon Lessee's
premises where any of the Leased Property is located with or without notice or
process of law and free from ad claims by Lessee. In the case of Software, it is
acknowledged and agreed that the unauthorized use, disclosure, or transfer of
the Software could cause Lessor incalculable, irreparable, and serious harm.
Therefore, if Lessee is found to be using (in whatever manner) any portion of
the Software after the applicable Lease Term, or after an event of default
hereunder, or if Licensor terminates a License or Lessee's right to use the
Software thereunder for an alleged breach of the License's use, disclosure, or
transfer restrictions, then liquidated damages shall be payable immediately to
Lessor in an amount three (3) times the license fee(s) paid to the Licensor with
respect to the Software being used. The exercise of any of the foregoing
remedies by Lessor shall not constitute a termination of this Lease unless
Lessor so notifies Lessee in writing. In the event Lessor repossesses the
Hardware, Lessor may lease the Hardware or sell the Hardware, in such manner,
and at such times and upon such terms as Lesser may determine. In the event that
Lessor leases the Hardware, any rentals received by Lessor for the remaining
lease term (as defined in this Lease) shall be applied to the payment of: (i)
all costs and expenses (including reasonable attorney's fees) incurred by
Lessor, and (ii) the rentals for the remainder of the term and all other sums
then remaining unpaid under the Lease. The remaining balance of such rentals, if
any, shall be applied to reimburse Lessee for any sums previously paid by Lessee
as liquidated damages. Ali rentals received by Lessor for the period commencing
after the remaining Lease Term shall be retained by Lessor. Lessee shall remain
liable to Lessor to the extent that the aggregate amount of die sum referred to
in clauses (i) and (ii) above shall exceed the aggregate rentals received by
Lessor under such leases for the respective remaining lease term applicable to
the Hardware covered by such leases. In the event that Lessor shall sell the
Hardware, the proceeds thereof shall be applied to the sum of (i) all costs and
expenses (including reasonable attorney's fees) incurred by Lessor in disposing
of such Hardware, (ii) the rentals accrued under this Lease, but unpaid up to
the time of such disposition, (iii) any and all other sums (other than rentals)
then owing to Lessor by Lessee hereunder. and (iv) the Casualty Value of such
Hardware determined as of the date of such disposition in accordance with the
Casualty Schedule, attached hereto. The remaining balance of such proceeds, if
any,
9
shall be applied first to reimburse Lessee for any sums previously paid by
Lessee as liquidated damages, and any remaining amounts shall be retained by
Lessor. Lessee shall remain liable to Lessor to the extent that the aggregate
amount of the sums referred to in clauses (i) through (iv) above shall exceed
the aggregate proceeds received by Lessor in connection with the disposition of
the Leased Property. Lessor's remedies, as discussed in this Lease, shall not be
deemed exclusive. Waiver of any defaults or breach of this Lease shall not be
construed as a waiver of subsequent or continuing defaults or breaches.
16. QUIET ENJOYMENT: The Lessor convenants that if, and so long as, the
Lessee keeps and perform each and every convenant, condition and agreement to be
performed or observed by it hereunder, the Lessee shall quietly enjoy the Leased
Property hereunder without hindrance or molestation by the Lessor or any other
person lawfully claiming the same.
17. ATTORNEY`S FEES AND VENUE OF LITIGATION: If any party to this Lease
brings any action to enforce any of the terms of this Lease or to recover for a
breach of this Lease, then the prevailing party shall be entitled to recover all
attorneys' fees and costs of suit from the other party. The Lessee agrees that
all litigation arising out of this Lease or any breach thereof shall be filed
and conducted in the California Superior Court for the County of Orange, unless
the Lessor or its Assignee selects an alternative venue of litigation.
18. TRANSPORTATION; INSTALLATION/DEINSTALLATION: All transportation,
rigging and drayage charges on delivery or redelivery of the Leased Property to
and from Lessee shall be paid by Lessee. All installation and deinstallation
charges including packing materials and any fees and charges for maintenance
certification or recertification by the Manufacturer/Vendor/ Licensor shall be
paid by Lessee.
19. FURTHER ASSURANCES; OFFER AND ACCEPTANCE: LESSEE'S FINANCIAL
INFORMATION: Lessee's signing of this document shall constitute an offer to
Lessor to enter into the Lease. In consideration of Lessor's time and effort in
reviewing and acting on the offer, Lessee agrees that its offer shall be
irrevocable for a period of twenty (20) business days after the date it is
submitted to Lessor. Lessor's signing of this Lease shall constitute acceptance
of Lessee's offer to enter into the Lease. Upon acceptance by Lessor, Lessee
shall execute and deliver such instruments and assurances as Lessor deems
necessary or desirable for confirmation, assignment and assurance of performance
by Lessee of its obligation hereunder or for perfection of this Lease, including
but not limited to the filing of this Lease or the filing of Uniform Commercial
Code Financing Statements (which Lessee agrees may be executed by Lessor on
Lessee's behalf). Lessee
10
further authorizes Lessor to insert in each Lease Schedule and in other
appropriate documentation the serial number(s) and other identifying data of the
Leased Property, and to insert applicable lease dates and assignment dates as
necessary to complete such supplemental documentation. Lessee shall also provide
Lessor with all credit information reasonably requested by Lessor, including but
not limited to comparative audited financial statements for the most current
year and interim reporting period. Lessee's failure to provide such information
to Lessor shall be an event of default under Section 14 of this Lease. Lessor
shall have the right at its sole discretion for any reason whatsoever for a
reasonable period of time as solely determined by Lessor, after such financial
information has been submitted to Lessor, to terminate this Lease by giving
written notice of such termination to Lessee. In the event of such termination,
all obligations of Lessor set forth herein shall be cancelled, otherwise, Lessor
shall confirm its acceptance in writing to Lessee.
20. NOTICES: Unless otherwise specifically provided herein, all notices
to Lessor shall be delivered in person to an officer of the Lessor, or shall be
sent certified mail return receipt requested to Lessor at its address shown
above or at any later address last known to the sender; all notices to Lessee
shall be in writing and shall be delivered by mail at its address shown herein
or at any later address last known to the sender.
21. AGREEMENTS: This is the complete agreement by and between the parties
hereto. NO ORAL OR WRITTEN AGREEMENT, GUARANTY, PROMISE, CONDITION,
REPRESENTATION, OR WARRANTY SHALL BE BINDING UNLESS MADE A PART OF THIS LEASE BY
DULY EXECUTED ADDENDUM. All agreements, representations and warranties contained
in this Lease, or in any document or certificate delivered pursuant hereto or in
connection herewith, shall survive the expiration or other termination of this
Lease. Any provision of this Lease which may be determined by competent
authority to be 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 not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, Lessee hereby waives any provision of law which
renders any provision hereof prohibited or unenforceable in any respect. THIS
LEASE SHALL BE CONSTRUED IN ACCORDANCE WITH AND SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF CALIFORNIA. Time is of the essence of this Lease.
22. ASSIGNMENT: WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, LESSEE SHALL
NOT ASSIGN THIS LEASE OR ITS INTEREST HEREUNDER IN ANY FORM OR MANNER INCLUDING,
BUT NOT LIMITED TO, AN ASSIGNMENT DUE TO
11
A SALE, MERGER, LIQUIDATION, SUB-LEASE, LEVERAGED BUYOUT, CHANGE OF OWNERSHIP OR
CHANGE-IN-CONTROL. THE LESSEE MAY SELL AND ASSIGN ITS RIGHT, TITLE, INTEREST, OR
ANY OTHER RIGHTS IT MAY HAVE AS AN OWNER AND LESSOR OF THE LEASED PROPERTY TO AN
ASSIGNEE ("ASSIGNEE"). LESSEE HEREBY CONSENTS TO SUCH ASSIGNMENT AND FURTHER
AGREES AS FOLLOWS: (1) THAT ASSIGNEE DOES NOT ASSUME ANY OF THE OBLIGATIONS OF
LESSOR HEREUNDER; (2) TO PAY ALL MONIES UNDER THE LEASE DIRECTLY TO ASSIGNEE
UNCONDITIONALLY WITHOUT OFFSET AND LESSEE FURTHER AGREES THAT SUCH MONIES SHALL
BE PAYABLE NOTWITHSTANDING ANY DEFENSE OR COUNTERCLAIM WHATSOEVER, WHETHER BY
REASON OF BREACH OF THE LEASE, THE EXERCISE OF ANY RIGHT HEREUNDER, OR
OTHERWISE, WHICH IT MAY OR MIGHT NOW OR HEREAFTER HAVE AS AGAINST THE LESSOR
(THE LESSEE RESERVING ITS RIGHT TO HAVE RECOURSE DIRECTLY AGAINST LESSOR ON
ACCOUNT OF ANY SUCH DEFENSE OR COUNTERCLAIM); AND (3) THAT SUBJECT TO AND
WITHOUT IMPAIRMENT OF THE LESSEE'S LEASEHOLD RIGHTS IN AND TO THE LEASED
PROPERTY COVERED HEREUNDER, LESSEE SHALL HOLD SAID LEASED PROPERTY AND THE
POSSESSION THEREOF FOR THE ASSIGNEE TO THE EXTENT OF THE ASSIGNEE'S RIGHTS
THEREIN.
12
AMPLICON FINANCIAL LEASE SCHEDULE 01
ANNEXED TO AND MADE A PART
OF THE LEASE AGREEMENT
ORDER NO. OL-09083 DATED
4-26-96 BETWEEN AMPLICON,
INC., LESSOR, AND LESSEE
INDICATED HEREIN.
LESSEE LOCATION OF LEASED PROPERTY
INTERNATIONAL ENVIRONMENTAL SAME
CORPORATION
STREET STREET
5000 1-40 WEST
CITY STATE COUNTY ZIP CITY STATE COUNTY ZIP
XXXXXXXX XXXX, XX, XXXXXXXX, 00000
ATTENTION ATTENTION
XXXXX X. XXXXXX
TITLE PHONE NO. TITLE PHONE NO.
CHIEF EXECUTIVE (000)000-0000 X000
OFFICER
ITEM QUANTITY DESCRIPTION RENT
LEASED PROPERTY MORE FULLY
DESCRIBED ON EXHIBIT "A"
ATTACHED HERETO AND MADE A
PART HEREOF.
LEASED PROPERTY COST TO BE:
$930,000.00 10% (INCLUDES
$50,000.00 IN SOFT COSTS)
LEASE RATE FACTOR (I.R.F.):
0.018354
INSTALLATION PERIOD: APRIL,
1996 THROUGH SEPTEMBER, 1996
LESSEE AGREES TO PROVIDE A
CORPORATE GUARANTEE FROM LSB
INDUSTRIES, INC. IN A FORM
ACCEPTABLE TO AMPLICON, INC.
ITEM QUANTITY DESCRIPTION RENT
THE MONTHLY LEASE RATE
FACTOR MAY BE ADJUSTED
(.000045) FOR EVERY 10 BASIS
POINT ADJUSTMENT IN THE
CORRESPONDING AVERAGE YIELD
OF EQUALLY MATURING U.S.
TREASURY NOTES. THE FINAL
LEASE RATE FACTOR FOR LEASE
SCHEDULE XX. 00 XXXXX XX
FIXED AT THE COMMENCEMENT
DATE AND SHALL REMAIN
CONSTANT THROUGHOUT THE BASE
LEASE TERM OF THE LEASE
SCHEDULE. THE INITIAL INDEX
RATE SHALL BE (5.74).
This Schedule is issued pursuant to the Lease Agreement Order No. OL-09083. All
--------
of the terms and conditions of the Lease Agreement are hereby incorporated
herein and made a part hereof as if such terms and conditions were set forth in
this Schedule as a separate lease with independent Initial Base Lease Term and
written addenda. By their execution and delivery of this Schedule, the parties
hereby reaffirm all of the terms and conditions of the Lease Agreement.
Lessee hereunder has indicated that the Leased Property may be delivered in
several installments over a ____ to ____-day period and, as such, Lessee has
requested and Lessor has agreed to provide a billing arrangement to accommodate
Lessee's desired deliveries. Lessor shall xxxx Lessee each quarter a daily
rental charge based on one-ninetieth (1/90th) of the applicable net quarterly
rental for each Item of installed Leased Property, plus applicable sales/use
taxes, if any. Lessor shall provide this billing accommodation to Lessee until
the final Item of Leased Property is delivered and installed. The date by which
the final Item of Leased Property is delivered and installed shall serve as the
Commencement Date for this Lease Schedule as defined in Section 2. TERM and
Section 3. RENTALS.
INITIAL $ 17,069.00 QUARTERLY
BASE TERM DEPOSIT/TRANSACTION FEE OF $___________ RENT
IN QUARTERS TO BE RETURNED IN FULL IF AMPLICON DOES
NOT ACCEPT THE TRANSACTION. $51,207.00
TWENTY (20) BILLED QUARTERLY.
2
LESSEE: INTERNATIONAL ENVIRONMENTAL CORPORATION
----------------------------------------------------
BY: /s/ Xxxx X. Xxxxxx, VP
----------------------------------------------------
TITLE: XXXX X. XXXXXX, VICE PRESIDENT
----------------------------------------------------
DATE: 4/3/96
----------------------------------------------------
ACCEPTED BY: AMPLICON, INC.
BY: _____________________________________________________
TITLE: XXXXXXX X. XXXXXXXXX, VICE PRESIDENT
-----------------------------------------------------
DATE: _____________________________________________________
3
EXHIBIT "A" (SCHEDULE NO. 01 TO LEASE AGREEMENT ORDER NO. OL-09083) TO LEASE
--
SCHEDULE WHEREIN
INTERNATIONAL ENVIRONMENTAL CORPORATION IS THE LESSEE; AND AMPLICON INC. IS THE
----------------------------------------
LESSOR
LESSEE ADDRESS: 0000 0-00 XXXX, XXXXXXXX XXXX, XX 00000
LEASED PROPERTY LOCATION: SAME
QTY DESCRIPTION
--- -----------
VENDOR: INTEGRATED FABRICATION TECHNOLOGIES, INC.
(03) RAS 74 SERIES SERVO-HYDRAULIC FOLDING SYSTEMS
VENDOR: XXXXXXXXX ASSOCIATES
(02) PULLMAX OPTIMA 110 10 CNC HYDRAULIC PRESS BRAKES
PLUS ALL REPLACEMENT PARTS, SUBSTITUTIONS, ADDITIONS, ATTACHMENTS,
MODIFICATIONS, UPDATES, UPGRADES, REVISIONS, NEW VERSIONS, ENHANCEMENTS,
ACCESSORIES AND THE PROCEEDS THEREOF.
LESSEE: LESSOR:
INTERNATIONAL ENVIRONMENTAL
CORPORATION AMPLICON, INC.
------------------------------------- ------------------------------------
BY: /s/ Xxxx X. Xxxxxx BY: ____________________________
----------------------------
NAME: XXXX X. XXXXXX NAME: XXXXXXX X. XXXXXXXXX
---------------------------- ----------------------------
TITLE: VICE PRESIDENT TITLE: VICE PRESIDENT
---------------------------- ----------------------------
DATE: 5-7-96 DATE: ____________________________
----------------------------
ADDENDUM "A"
TO
LEASE AGREEMENT ORDER NO. OL-09083
--------
WITH RESPECT TO LEASE SCHEDULE NO. 01
--
This Addendum is supplemental to and made a part of this Lease Agreement No. OL-
--
09083, dated 4/26/96 (the "Lease"), Lease Schedule No. 01, dated May 7, 1996 and
----- ------- -----------
other related documents under the Lease and Schedule (together forming the
"Agreement"). The parties to the Agreement include INTERNATIONAL ENVIRONMENTAL
---------------------------
CORPORATION ("Lessee") and AMPLICON, INC. ("Lessor").
-----------
Capitalized terms used In this Addendum without definition shall have the
meanings set forth in the Lease, unless the context hereof specifically requires
otherwise. This Addendum is to be construed as supplemental to, and a part of,
the Lease.
Lessee and Lessor acknowledge and agree that the Lease is hereby amended with
respect to Lease Schedule No. 01, as follows:
SECTION 2 TERM:
Option (A) shall be modified to the limited extent as follows:
--------------------------------------------------------------
In line twelve, delete the phrase: "(A) purchase all of the Leased Property
for a mutually agreeable purchase price;" and replace it with: "(A)
purchase all of the Leased Property for a mutually agreeable purchase price
of ten percent (10%) of Lessor's original cost of the Leased Property, plus
applicable sales tax;".
In line seventeen (17), delete "one hundred twenty (120) days" and replace
with: "ninety (90)".
SECTION 3. RENTALS:
In line five (5) and seven (7), delete "five percent (5%)" and replace
with: "two percent (2%)".
In all other respects, the terms and conditions of the Agreement, as originally
written, shall remain in full force and effect. The Agreement, as amended
herein, sets forth the entire and final understanding between the parties with
respect hereto. The terms of this Addendum have been negotiated and jointly
drafted by Lessor and Lessee and, therefore, the language of the Addendum shall
not be construed in favor or against either party. The undersigned represent
that they have the authority to enter into this Agreement, and that the same
shall be legally binding and enforceable on the respective principals.
IN WITNESS WHEREOF the parties hereto, by their authorized signatories, have
executed this Addendum at the date set forth below their respective signatures.
LESSEE: INTERNATIONAL ENVIRONMENTAL CORPORATION
---------------------------------------------
BY: /s/ Xxxx X. Xxxxxx
---------------------------------------------
NAME: XXXX X. XXXXXX
---------------------------------------------
TITLE: VICE PRESIDENT
---------------------------------------------
DATE: 4/3/96
---------------------------------------------
LESSOR: AMPLICON, INC.
---------------------------------------------
BY: _____________________________________________
NAME: XXXXXXX X. XXXXXXXXX
---------------------------------------------
TITLE: VICE PRESIDENT
---------------------------------------------
DATE: _____________________________________________
2
AMPLICON FINANCIAL
May 3, 1996
INTERNATIONAL ENVIRONMENTAL CORPORATION
0000 0-00 XXXX
XXXXXXXX XXXX, XX 00000
[RE:] REQUEST FOR PAYMENT TO VENDOR(S) IN ADVANCE OF LEASE COMMENCEMENT
Ladies/Gentlemen:
Reference is made to that Lease Agreement No. OL-09083 dated 4/26/96 by and
-------- -------
between INTERNATIONAL ENVIRONMENTAL CORPORATION as Lessee, and Amplicon, Inc.,
---------------------------------------
as Lessor, (the "Lease") and to Lease Schedule No. 01 and all related subsidiary
--
documents under the Lease (collectively, the "Agreement"). Notwithstanding
anything to the contrary contained therein, and to the limited extent hereof,
this Letter Agreement amends and supersedes the Agreement and is hereby
incorporated by reference herein.
Amplicon, Inc. (Lessor) has received a request from INTERNATIONAL ENVIRONMENTAL
---------------------------
CORPORATION (Lessee) to advance funds to vendor(s) prior to Lessee's acceptance
-----------
of all items of Leased Property under the Agreement and as required to make
progress payments to such vendors. As adequate and valuable consideration for
Lessor advancing funds to vendor(s) on behalf of Lessee prior to Lessee's
acceptance of all of the subject Leased Property (hereinafter referred to as the
"Installation Period"), Lessee agrees to make the following terms and conditions
mutually binding under the Agreement:
Lessee will pay to Lessor a daily pro-rata rental fee from the date each
item of Leased property is delivered and installed through the
"Commencement Date". The Commencement Date as further defined in Section 2.
TERM of the Lease, shall be the date that the final item of Leased Property
is installed and accepted by Lessee. If Lessor has advanced funds on items
of Leased Property not yet delivered and accepted, the daily pro-rata
rental fee will be calculated from the date of Lessors disbursement. The
daily pro-rata rental fee will be calculated as follows: (0.018354 X (the
--------
cost of each item of installed Leased Property + amount of progress
payments and deposits made)/30). This rental fee will be billed monthly.
Lessor will not be required to fund on any items of Leased Property not
installed and accepted by Lessee on or before 7/10/96 (the "Funding Cut-Off
-------
Date"). If all of the Leased Property to be included in the above-
referenced Agreement is not accepted by the Lessee on or before the Funding
Cut-Off Date, Lessor may, at its sole option, pursue one of the following
alternatives: (a) Lessor may commence the Lease (using the Funding Cut-Off
Date as the Commencement Date) based on the portion of the Leased Property
which has been delivered and accepted by Lessee and paid for by Lessor as
of the Funding Cut-Off Date, and demand that Lessee pay to Lessor an amount
equal to that which Lessor has paid to vendor(s) on behalf of Lessee for
items of Leased Property not yet installed and accepted, plus all pro-rata
rental fees, taxes, late fees, and other charges which are due and owing;
(b) Lessor may, at its sole and absolute discretion, extend the allowed
Installation Period and establish a new Funding Cut-Off Date; or (c) Lessor
may demand that Lessee pay to Lessor a total amount equal to that which
Lessor has paid to vendor(s) on behalf of Lessee, plus all pro-rata rental
fees, taxes, late fees, and other charges which are due and owing under the
terms of the above-referenced Agreement. Should such a demand be made by
Lessor, Lessee hereby unconditionally agrees to reimburse said funds to
Lessor in full within ten business days of said demand, and Lessor, upon
receipt of such payment in full, shall release Lessee from further payment
obligations under the Lease. Lessee shall provide Lessor with updated
financial information throughout the Installation Period as periodically
requested by Lessor. Lessor shall reserve the right to terminate the
Installation Period at any time in the event Lessor determines, at Lessor's
sole discretion, that there has been a material adverse change in Lessee's
financial condition, at which time Lessor would then have the right to
elect either (a), (b) or (c) above. Irrespective of this Letter Agreement,
all other terms and conditions including, without limitation, all payment
obligations by Lessee under the Agreement shall remain absolute and
unconditional without regard in any manner whatsoever to the pro-rata
rental obligations and/or pro-rata rental period set forth herein. The
acceptance by Lessee of all items of Leased Property is not a pre-condition
to Lessee's performance of any of its obligations under the Agreement,
including all rental and other payment obligations.
The Agreement is hereby duly amended to incorporate the foregoing revisions.
Please acknowledge your acceptance of the same by your authorized signature
below and return the original of this Letter Agreement to Amplicon, Inc. within
five days of the date hereof, retaining the enclosed copy for your records.
2
THIS LETTER AGREEMENT IS CONTINGENT UPON THE APPROVAL OF THE AMPLICON, INC.
FINANCE COMMITTEE.
LESSEE: LESSOR:
INTERNATIONAL
ENVIRONMENTAL CORPORATION AMPLICON, INC.
----------------------------------- ----------------------------------------
BY: /s/ Xxxx X. Xxxxxx BY: ___________________________________
----------------------------
NAME: XXXX X. XXXXXX NAME: XXXXXXX X. XXXXXXXXX
---------------------------- ----------------------------------
TITLE: VICE PRESIDENT TITLE: VICE PRESIDENT
---------------------------- ---------------------------------
DATE: 5-7-96 DATE: _________________________________
-----------------------------
3
CASUALTY SCHEDULE ATTACHED TO AND MADE A PART OF LEASE SCHEDULE(S) NO. 01 WHICH
--
IS/ARE PART OF LEASE AGREEMENT ORDER NO. OL-09083 DATED 4/26/96 BY AND BETWEEN
-------- -------
INTERNATIONAL ENVIRONMENTAL CORPORATION AS LESSEE, AND AMPLICON, INC., AS
--------------------------------------- --------------
LESSOR.
% OF
QUARTER PURCHASE PRICE
------- --------------
1 115
2 114
3 111
4 106
5 103
6 100
7 97
8 94
9 91
10 88
11 85
12 82
13 79
14 76
15 73
16 70
17 67
18 64
19 61
20 58
21 and
thereafter 55
4
LESSEE: LESSOR:
INTERNATIONAL
ENVIRONMENTAL CORPORATION AMPLICON, INC.
--------------------------------------- -----------------------------------
BY: /s/ Xxxx X. Xxxxxx BY: ______________________________
--------------------------------
NAME: XXXX X. XXXXXX NAME: XXXXXXX X. XXXXXXXXX
-------------------------------- ------------------------------
TITLE: VICE PRESIDENT TITLE: VICE PRESIDENT
-------------------------------- -----------------------------
DATE: 5-7-96 DATE: _____________________________
---------------------------------
5
AMPLICON FINANCIAL
0 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
(000)000-0000
(000)000-0000
Facsimile(714)751-7557
December 20,1996
INTERNATIONAL ENVIRONMENTAL CORPORATION
0000 0-00 Xxxx
Xxxxxxxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to that Lease Agreement Order No. OL-09083, dated 04/26/96, by
-------- --------
and between International Environmental Corporation, as Lessee, and Amplicon,
---------------------------------------
Inc., as Lessor (the "Lease"), and to Lease Schedule O1 and all related
--
subsidiary documents under the Lease (the "Agreement"). Notwithstanding anything
to the contrary contained therein, and to the limited extent hereof, this Letter
Agreement amends and supersedes the said Agreement and is hereby incorporated by
reference therein.
Capitalized terms used in this Letter Agreement without definition shall have
the meanings set forth in the Lease, unless the context hereof otherwise
specifically requires. This Letter Agreement is to be construed as supplemental
to, and part of, the Lease.
Due to an increase in the Leased Property cost from $930.000.00 to $960.258.04
----------- -----------
and due to an increase in 5 year Treasury Notes from 5.74% to 5.92%, Lessor and
----- -----
Lessee hereby agree to the following changes:
LEASE SCHEDULE 01 AS STATED AS REVISED
----------------- --------- ----------
QUARTERLY RENT $51,207.00 $53,107.00
DELIVERY ORDER AS STATED AS REVISED
-------------- --------- ----------
QUARTERLY RENT $51,207.00 $53,107.00
In all other respects, the terms and conditions of the Agreement, as originally
written, shall remain in full force and effect. The Agreement, as amended
herein, sets forth the entire and final understanding between the parties with
respect hereto. The terms of this Letter Agreement have been negotiated and
jointly drafted by Lessor and Lessee and, therefore, the language of the Letter
Agreement shall not be construed in favor or against either party.
The undersigned represent that they have the authority to enter into this
Agreement, and that the same shall be legally binding and enforceable on the
respective principals. Please acknowledge your acceptance of same by your
authorized signature below and return the original of this Letter Agreement to
Amplicon, Inc. within five (5) days from the date hereof.
ACKNOWLEDGED AND ACCEPTED ON THIS Very truly yours,
31 DAY OF December , 1996 AMPLICON, INC.
---- ---------- --
International Environmental
Corporation
--------------------------------------
BY: /s/ Xxxxx X. Xxxx ___________________________________
--------------------------------
J. Xxxxx Xxxxxx
NAME: Xxxxx X. Xxxx Assistant Vice President
---------------------------------
TITLE: Vice President
--------------------------------
2
