1
Exhibit 10.35
Amplicon Financial
0 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
January 22, 1998
Xx. Xxxxx Xxxxx
Chief Executive Officer
Xxxxx Geophysical, Inc.
874 "A" Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Re: Lease Agreement Order No. OL-10027
Lease Schedule 1
Dear Xx. Xxxxx:
We are pleased to inform you that the above referenced transaction has been
approved by the Amplicon, Inc. Finance Committee through February 28, 1998. With
written notice, Amplicon may extend the credit approval at its sole discretion.
The Lessee shall submit quarterly financial statements to Amplicon for review
and consideration of an extension of this approval.
The approval of this transaction is conditioned upon there being no material
adverse change in the financial condition of the Lessee or its Guarantor as
judged solely by Amplicon, and receipt of all documentation required and
approved by Amplicon legal counsel. Lessee will be responsible for all standard
documentation fees including, but not limited to UCC filing fees, lien search
fees, and collateral field audits (as required).
The specific terms of this approval are outlined in the previously-signed Lease
Agreement Order XX-00000, Xxxxxxxx "A", and Lease Schedule No. 1 as modified on
January 8, 1998; and subsidiary documents to be forwarded to Lessee within the
next few days. The basic terms of this approval, as outlined below, shall
confirm the understanding of Lessee and Amplicon:
Lease Schedule 1:
Initial Term 12 Quarterly Rentals;
Monthly Rent $59,544.00 including applicable sales/use tax
Deposit period Equal to one month's rent to be applied to last billing period
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General Property Description Approximately 250 Sercel Opseis Seismic
Remote Acquisition Recorders. All Property shall be subject to
final approval by the Amplicon Finance Committee.
New Property Cost $2,000,000.00 + 10% including applicable sales tax
Guarantor(s) Venture Seismic Ltd.
If you have any questions, please do not hesitate to call Xxxxx Xxxxxxxx at
(000) 000-0000, Ext. 340. Thank you for choosing Amplicon as your financing
source.
Sincerely,
Amplicon, Inc.
/s/ J. Xxxxx Xxxxxx
--------------------------------
J. Xxxxx Xxxxxx
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LEASE AGREEMENT
AMPLICON FINANCIAL
0 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
000-000-0000 or 000-000-0000 Facsimile 000-000-0000
LESSEE:
Xxxxx Geophysical, Inc.
000-X Xxxx Xxxx
Xxxxxxxxxx, XX 00000
1. AGREEMENT/LEASE: Amplicon, Inc. ("Amplicon") agrees to lease to Lessee the
hardware, software and/or other equipment ("Property") described on the Lease
Schedule(s) ("Schedule(s)") referencing this Lease Agreement ("Agreement") and
Lessee agrees to lease from Amplicon the Property subject to the terms set forth
herein and on each Schedule(s) that the parties may from time to time enter into
with respect to this Agreement. Each Schedule identified as being a part of
this Agreement incorporates the terms of this Agreement and constitutes a
separate lease agreement and is referred to herein as the "Lease". The Lease is
in force and is binding upon Lessee and Amplicon upon signed acceptance by
Amplicon.
2. UNIFORM COMMERCIAL CODE ACKNOWLEDGMENT: Lessee acknowledges that it has
covering the Property purchased from the Supplier for lease and Amplicon has
informed or advised Lessee, either previously or by this Lease, of the
following: (i) the identity of the Supplier; (ii) that Lessee may have rights
under the Supply Contract; and (iii) that Lessee may contact the Supplier for a
description of any such rights. This Lease is a "Finance Lease". (The terms
"Finance Lease", "Supply Contract" and "Supplier" as used in this Lease have the
meanings only as ascribed to them under Division 10 of the California Uniform
Commercial Code and have no effect on any tax or accounting treatment of the
Lease). This provision survives termination of the Lease.
3. NO WARRANTIES: AMPLICON IS NOT THE MANUFACTURER, DEVELOPER, PUBLISHER,
DISTRIBUTOR, LICENSER OR "SUPPLIER" OF THE PROPERTY AND MAKES NO EXPRESS OR
IMPLIED OR REPRESENTATION AS TO FITNESS, QUALITY, DESIGN, CONDITION, CAPACITY,
SUITABILITY, VALUE, MERCHANTABILITY, OR PERFORMANCE OF THE PROPERTY OR THE
MATERIAL OR WORKMANSHIP THEREOF OR AGAINST INTERFERENCE BY LICENSERS OR OTHER
THIRD PARTIES, IT BEING AGREED THAT THE PROPERTY IS LEASED "AS IS" AND THAT ALL
SUCH RISKS ARE TO BE BORNE BY LESSEE. Lessee selected the Property and
represents that all the Property is suitable for Lessee's purposes. Amplicon
assigns to Lessee during the term of the Lease any warranty rights it may have
received from the Supplier as a result of Amplicon's purchase of the Property.
If Lessee has any claims regarding the Property or any other matter arising from
Lessee's relationship with the Supplier, Lessee must make them against the
Supplier. This provision survives termination of the Lease.
4. AUTHORIZATION DATE AND LEASE DURATION: A Schedule commences and rent is due
beginning on the date that Lessee certifies in writing to Amplicon that all of
the Property has been received and accepted by Lessee as installed, tested and
ready for use, and Lessee authorizes Amplicon in writing to disburse payment to
the Supplier ("Authorization Date"). Unless and until Lessee provides such
written authorization, Amplicon will not disburse payment to Suppliers. The
Term of each Schedule is reflected on the Schedule and begins on the first day
of the calendar quarter following the Authorization Date. A calendar quarter
commences on the first day of January, April, July and October. Term extends
for an additional twelve month period ("Extension Term") at the rental rate
delineated on the Schedule unless Lessee provides to Amplicon written notice of
Lessee's election not to extend the term at least one hundred eighty days prior
to the expiration of the term.
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5. RENTAL: The rent payable is shown on the Schedule(s). The quarterly rent is
due to Amplicon, in advance, for each quarter or portion of a quarter beginning
on the Authorization Date and continuing for each quarter that this Lease is in
effect. Rent for portions of a quarter are based on a daily rental equal to
one-ninetieth of the quarterly rent. ALL RENTS SHALL BE PAID WITHOUT NOTICE OR
DEMAND AND WITHOUT ABATEMENT, DEDUCTION OR SETOFF OF ANY AMOUNT WHATSOEVER. THE
OPERATION AND USE OF THE PROPERTY IS SOLELY AT THE RISK OF LESSEE AND THE
OBLIGATION OF LESSEE TO PAY RENT UNDER THE LEASE SHALL BE ABSOLUTE AND
UNCONDITIONAL. Rents will be paid to Amplicon unless otherwise instructed in
writing by Amplicon or its assignee.
6. INDEMNITY: Lessee assumes liability for, and agrees at its own expense to
indemnify and defend Amplicon, its employees, officers, directors and assigns,
from and against any and all claims, liabilities, losses, damages, and expenses
(including legal expenses) of every kind or nature (including, without
limitation, claims based upon strict liability) arising out of the use,
condition (including latent and other defects, whether or not discoverable by
Lessee or Amplicon), operation or ownership of any items of Property (including
without limitation, any claim for patent, trademark or copyright infringement)
or for any interruptions of service, loss of business or consequential damages.
These indemnities and assumptions survive the termination of this Lease.
7. PERFORMANCE OF LESSEE'S OBLIGATION BY AMPLICON: If Lessee fails to perform
any of its obligations under this Lease, Amplicon may, at its option, perform
them for Lessee without waiving Lessee's default. Any amount paid by Amplicon,
and any expense (including reasonable attorneys' fees) or any other liability
incurred by Amplicon as a result of its performance of Lessee's obligations will
be payable to Lessee to Amplicon upon demand.
8. FURTHER ASSURANCES AND NOTICES: Lessee's signing of this Lease constitutes a
firm offer. In consideration of Amplicon's time and effort in reviewing and
acting on the offer, Lessee agrees that its offer is irrevocable for twenty
business days after Amplicon's receipt of the offer and of all credit
information requested by Amplicon. Amplicon's signing of the Lease, including
the Schedule, constitutes acceptance of Lessee's offer. Lessee agrees to sign
and provide any documents which Amplicon deems necessary for confirmation,
assignment and assurance of performance by Lessee of its obligations under the
Lease or for perfection of this Lease and the Property including but not
limited, to the signing and filing of Uniform Commercial Code (UCC) Financing
Statements (which Lessee agrees may be signed by Amplicon on Lessee's behalf).
Lessee authorizes Amplicon to insert applicable dates as necessary to complete
all documentation for the Lease. Prior to Amplicon's acceptance of the Lease
and for the duration of the Lease, Lessee agrees to promptly provide Amplicon
with all credit information reasonably requested by Amplicon including but not
limited to, comparative audited financial statements for the most current annual
and interim reporting periods. Lessee's failure to provide such information to
Amplicon is an event of default under the Lease. ALL NOTICES TO AMPLICON MUST
BE IN WRITING AND SENT CERTIFIED MAIL RETURN RECEIPT REQUESTED TO THE ADDRESS
SHOWN ABOVE OR SUCH OTHER ADDRESS AS TO WHICH LESSEE HAS BEEN NOTIFIED IN
WRITING.
9. DEFAULT: Whenever any amount due under the Lease is not received by Amplicon
or its assignee when due, Lessee shall pay a delinquency charge equal to five
percent of the amount then due (or maximum allowed by law) for the month in
which the amount is due and again for each month that the amount remains unpaid.
An Event of Default shall occur if: (a) Lessee fails to pay any rent or other
payment under the Lease when due and the failure continues for ten days; (b)
Lessee fails to perform or observe any of the covenants or obligations in this
Lease other than Lessee's rental obligation, and such failure is not cured
within ten days after written notice has been provided; (c) Lessee makes an
assignment for the benefit of its creditors, files any petition or takes any
action under any bankruptcy, reorganization or insolvency laws; (d) an
involuntary petition is filed under any bankruptcy statute against Lessee or any
receiver, trustee or custodian is appointed to take possession of Lessee's
properties, unless such petition or appointment is set aside or withdrawn within
sixty days of said filing or appointment; (e) Lessee attempts to or does remove,
transfer, sell, sublicense, encumber, part with possession, or sublet any of the
Property; (f) Lessee attempts to assign or transfer this Lease or its interest
under the Lease or moves any of the
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Property from the location(s) set forth on the Schedule without Amplicon's prior
written consent; or (g) Lessee undergoes a sale, buyout, change in control, or
change in ownership of any type, form or manner which, as judged solely by
Amplicon, results in a material deterioration in Lessee's credit worthiness.
10. REMEDIES: Upon an Event of Default, Amplicon may exercise at its sole option
any one or more of the remedies permitted by law, including but not limited to
the following: (a) through legal action, enforce performance by Lessee of the
applicable covenants and obligations of this Lease or recover damages for the
breach of those covenants or obligations; (b) terminate the Lease and Lessee's
rights under the Lease; (c) by notice in writing to Lessee, recover all amounts
due on or before the date Amplicon declared this Lease to be in default, plus,
as liquidated damages for the loss of a bargain and not as a penalty, accelerate
and declare to be immediately due and payable all rentals and other sums payable
under the Lease without any presentment, demand, protest or further notice (all
of which are hereby expressly waived by Lessee), at which time the same shall
become immediately due and payable; and (d) take immediate possession of the
Property, or any part of the Property, from Lessee free from claims by Lessee.
In the case of Software, it is agreed that Lessee's unauthorized use,
disclosure, or transfer of the Software will cause Amplicon significant damages
which, at the time the parties enter the Lease, are impossible to quantify or
predict. Therefore, if Lessee is found to be using (in any manner) all or any
portion of the Software after the termination of this Lease, or after an Event
of Default under the Lease, or if Supplier terminates a license of Lessee's
right to use the Software for an alleged breach of the use, disclosure, or
transfer restrictions imposed on Lessee, the parties hereby agree that
liquidated damages shall be payable immediately by Lessee to Amplicon in an
amount which is equal to two times the amount paid by Amplicon for the Software.
The exercise of any of the foregoing remedies by Amplicon will not constitute a
termination of this Lease unless Amplicon so notifies Lessee in writing. If
Amplicon repossesses the Property, Amplicon may rent or sell the Property in
such a manner and at such times as Amplicon may determine and without notice to
Lessee. In the event Amplicon rents the Property, any rentals received by
Amplicon for the period commenting after the remaining Term(s) of the Schedule
shall be applied to the payment of: (i) all costs and expenses (including
reasonable attorneys' fees) incurred by Amplicon in enforcing its remedies under
this Lease, and (ii) the rentals for the remainder of the Term(s) and all other
sums then remaining unpaid under this Lease. All rentals received by Amplicon
for the period commencing after the remaining Term(s) shall be retained by
Amplicon. Lessee will remain liable to Amplicon to the extent that the
aggregate amount of the sums referred to in clauses (i) and (ii) above exceed
the aggregate rentals received by Amplicon under such agreements for the
remaining Term(s) applicable to the Property covered by such agreements. In the
event that Amplicon sells the Property, the proceeds will be applied to the sum
of : (1) all costs and expenses (including reasonable attorneys' fees) incurred
by Amplicon in enforcing its remedies under this Lease and in disposing of the
Property, (2) the rentals accrued under this Lease, but unpaid up to the time of
such disposition, (3) any and all other sums other than rentals then owing to
Amplicon by Lessee under the Lease, and (4) the stipulated value as would be
determined in the event of a Casualty Occurrence (as defined in the terms and
conditions to the Schedule) on the date of the Property's disposition. The
remaining balance of such proceeds, if any, will be applied first to reimburse
Lessee for any sums previously paid by Lessee as liquidated damages (as set
forth in (c) above), and any remaining amounts will be retained by Amplicon.
Lessee will remain liable to Amplicon to the extent that the aggregate amount of
the sums referred to in clauses (1) through (4) above exceeds the proceeds
received by Amplicon in connection with the disposition of the Property.
Amplicon's remedies under this Lease shall not be deemed exclusive. Waiver of
any default or breach of this Lease shall not to construed as a waiver of
subsequent or continuing defaults or breaches.
11. DISPUTE RESOLUTION: THE PARTIES AGREE THAT ALL DISPUTES, WHETHER BASED IN
TORT OR CONTRACT, RELATING TO OR ARISING OUT OF THIS LEASE (COLLECTIVELY, "LEASE
DISPUTES") WILL BE FILED AND CONDUCTED IN THE CALIFORNIA SUPERIOR COURT FOR THE
COUNTY OF ORANGE, UNLESS AMPLICON OR ITS ASSIGNEE SELECTS AN ALTERNATIVE FORUM.
LESSEE AGREES TO SUBMIT TO THE PERSONAL JURISDICTION OF THE CALIFORNIA SUPERIOR
COURT FOR ALL LEASE DISPUTES. LESSEE WAIVES ITS RIGHTS TO A JURY TRIAL IN ANY
ACTION ARISING OUT OF OR RELATING TO THIS LEASE. If any party to this Lease
brings any action to enforce any of the terms, or to recover for any breach,
then the prevailing party is entitled to recover from
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the other party reasonable attorneys' fees and costs, including all JAMS related
costs and costs of collection (including judgment enforcement and collection
costs).
12. MISCELLANEOUS: All agreements, representations and warranties contained in
this Lease, or in any document or certificate delivered pursuant to or in
connection with this Lease, shall expressly survive the termination of this
Lease. If any provision of this Lease is determined by competent authority to
be unenforceable, such determination shall not invalidate the remaining
provisions of the Lease. To the extent permitted by applicable law, Lessee
waives any provision of law which renders any provision hereof prohibited or
unenforceable in any respect. This Lease has been entered into and shall be
performed in California and, therefore, THIS LEASE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA
(EXCLUSIVE OF PRINCIPLES OF CONFLICT OF LAWS). Time is of the essence of this
Lease and each provision thereof.
******************************************************************
TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES THE FOLLOWING
RIGHTS AND REMEDIES CONFERRED UPON LESSEE BY LAW: (I) RIGHT TO CANCEL OR
TERMINATE THIS LEASE, (II) RIGHT TO REJECT THE PROPERTY, (III) RIGHT TO REVOKE
ACCEPTANCE OF THE PROPERTY, (IV) RIGHT TO RECOVER DAMAGES FROM AMPLICON FOR ANY
BREACH OF WARRANTY, (V) RIGHT TO RECOVER ANY GENERAL, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES WHATSOEVER, AND (VI) RIGHT TO SPECIFIC PERFORMANCE,
REPLEVIN, DETINUE, SEQUESTRATION, CLAIM AND DELIVERY OR THE LIKE FOR THE
PROPERTY SUBJECT TO THIS LEASE.
THIS LEASE AGREEMENT AND THE APPLICABLE SCHEDULE(S) CONTAIN THE ENTIRE AGREEMENT
BETWEEN AMPLICON AND LESSEE WITH RESPECT TO THE SUBJECT MATTER HEREOF. THE LEASE
CAN ONLY BE MODIFIED IN WRITING, WITH SUCH MODIFICATIONS SIGNED BY A PERSON
AUTHORIZED TO SIGN AGREEMENTS ON BEHALF OF LESSEE AND BY AN AUTHORIZED SIGNER OF
AMPLICON. NO ORAL OR OTHER WRITTEN AGREEMENTS, REPRESENTATIONS OR PROMISES
SHALL BE RELIED UPON BY, OR BE BINDING ON, THE PARTIES UNLESS MADE A PART OF
THIS LEASE BY A WRITTEN MODIFICATION SIGNED BY AN AUTHORIZED SIGNER OF LESSEE
AND AMPLICON.
LESSEE: AMPLICON,INC.
/s/ Xxxxx Xxxxx /s/ Xxxxxxx X. XxXxxxxxx
------------------------------ -----------------------------------------
(Signature) (Signature)
This Lease is subject to acceptance by Amplicon's Finance Committee. BY SIGNING
BELOW, THE SIGNER CERTIFIES THAT HE OR SHE HAS READ THIS LEASE AGREEMENT,
INCLUDING THE REVERSE SIDE, HAS HAD AN OPPORTUNITY TO DISCUSS TERMS WITH
AMPLICON, AND IS AUTHORIZED TO SIGN ON BEHALF OF LESSEE. Until this Lease has
been signed by an authorized signer of Amplicon, it will constitute a firm offer
by Lessee.
LESSEE/OFFEROR AMPLICON, INC.
OFFER: XXXXX GEOPHYSICAL, INC. ACCEPTANCE:
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. XxXxxxxxx
--------------------------- -------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxxx X. XxXxxxxxx
----------------------- -------------------------------
Title: C.E.O. Title: Senior Vice President
---------------------- -------------------------------
Date: October 15, 1997 Date: January 22, 1998
---------------------- -------------------------------
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ADDENDUM "A"
TO
LEASE AGREEMENT ORDER NO. OL-10027
This Addendum is supplemental to and made a part of this Lease Agreement Order
No. OL-10027 dated 01/22/98 ( the "Agreement"), and other related documents
under the Agreement (collectively, the "Lease"). The Lease is between Xxxxx
Geophysical, Inc. (as "Lessee") and Amplicon, Inc. ("Amplicon").
Capitalized terms used in this Addendum without definition shall have the
meanings set forth in the Lease, unless specially modified. This Addendum is to
be construed as supplemental to, and part of, the Lease.
At the bottom of the front page of the Agreement after the sentence that
reads as follows:
"BY THE SIGNING BELOW, THE SIGNER CERTIFIES THAT HE OR SHE HAS READ THIS
LEASE AGREEMENT, INCLUDING THE REVERSE SIDE, HAS HAD AN OPPORTUNITY TO DISCUSS
ITS TERMS WITH AMPLICON, AND IS AUTHORIZED TO SIGN ON BEHALF OF LESSEE." insert
the following sentence:
"LESSEE HEREBY REPRESENTS AND WARRANTS TO AMPLICON THAT THE PROPERTY IS
EXCLUSIVELY FOR BUSINESS USE, AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD USE. TO
THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, FROM TIME TO TIME IN
EFFECT, LESSEE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVES THE PROVISIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES AND
CONSUMER PROTECTION ACT OF TEXAS BUSINESS AND COMMERCE CODE, CHAPTER 17,
SUBTITLE E. SECTION 17.41-17.63, OTHER THAN SECTION 17.555 THEREOF."
SECTION 9. DEFAULT: Delete the first (1st) sentence and replace it with
the following sentence:
"WHENEVER ANY AMOUNT DUE UNDER THE LEASE IS NOT RECEIVED BY AMPLICON OR ITS
ASSIGNEE WHEN DUE, SAID PAST DUE AMOUNT SHALL BEAR INTEREST COMMENCING ON THE
DUE DATE AND CONTINUING TO (BUT NOT INCLUDING) THE DATE OF PAYMENT THEREOF BY
LESSEE, AT THE DELINQUENCY RATE OF EIGHTEEN PERCENT (18%) PER ANNUM OR THE
MAXIMUM ALLOWED BY LAW."
SECTION 12. MISCELLANEOUS: After the last sentence insert the following
sentence:
"LESSEE ACKNOWLEDGES AND AGREES THAT THE PURCHASE PRICE AND LICENSE FEE AS
SET FORTH ON THE APPLICABLE SCHEDULE OR ITS SUPPORTING DOCUMENTS, REPRESENTS THE
MARKET VALUE OR MARKET PRICE OF THE PROPERTY AS OF THE AUTHORIZATION DATE OF THE
APPLICABLE SCHEDULE.
LESSEE INITIALS: /s/ BK AMPLICON INITIALS: /s/ MLM
------ -------
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ADDENDUM "A"
PAGE TWO OF TWO
The following shall be added to the lease:
"SECTION 13. CONSTRUCTION OF THE LEASE:"
"LESSEE AND AMPLICON HEREBY ACKNOWLEDGE AND AGREE THAT THIS TRANSACTION IS
INTENDED AS, AND IS, A TRUE LEASE TRANSACTION AND NOT A CREDIT SALE NOR
FINANCING. NOTWITHSTANDING THE EXPRESS UNDERSTANDING OF THE PARTIES HERETO, IF
A COURT OR ARBITRAL BODY WERE TO DEEM THIS TRANSACTION TO BE A CREDIT SALE OR
FINANCING THEN, IN DETERMINING WHETHER OR NOT AMOUNTS DEEMED TO CONSTITUTE
INTEREST CONTRACTED FOR, CHARGE OR COLLECTED EXCEED THE MAXIMUM RATE OF INTEREST
ALLOWED FROM TIME TO TIME BY APPLICABLE STATE OR FEDERAL LAW ("HIGHEST LAWFUL
RATE"), TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, (A) AMOUNTS DUE HEREUNDER
SHALL BE CHARACTERIZED AS PRINCIPAL, OR AS A NONUSURIOUS EXPENSE, FEE OR
PREMIUM, RATHER THAN INTEREST, (B) AMOUNTS DUE HEREUNDER AFTER ACCELERATION BY
REASON OF A DEFAULT OR OTHERWISE, OR PREPAID, SHALL NOT BE DEEMED TO CONSTITUTE
INTEREST, BUT ANY PORTIONS OF SUCH AMOUNTS DEEMED TO CONSTITUTE INTEREST,
CONTRACTED FOR, CHARGED OR COLLECTED IN CONNECTION WITH SUCH ACCELERATION OR
PREPAYMENT MAY NEVER EXCEED THE HIGHEST LAWFUL RATE, AND (C) ALL AMOUNTS DEEMED
TO CONSTITUTE INTEREST SHALL BE AMORTIZED, PRORATED, ALLOCATED AND SPREAD, IN
EQUAL PARTS THROUGHOUT THE ENTIRE TERM OF THE LEASE."
In all other respects, the terms and conditions of the Lease, as originally set
forth, shall remain in full force and effect. The Lease 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 Amplicon 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 Addendum, 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 as of the date set forth below their respective
signatures.
LESSEE:
XXXXX GEOPHYSICAL, INC. AMPLICON, INC.
------------------------------ ------------------------------------
BY: /s/ Xxxxx Xxxxx BY: /s/ Xxxxxxx X. XxXxxxxxx
-------------------------- ----------------------------
NAME: Xxxxx Xxxxx NAME: Xxxxxxx X. XxXxxxxxx
---------------------- ----------------------------
TITLE: C.E.O. TITLE: Senior Vice President
---------------------- ----------------------------
DATE: October 15, 1997 DATE: January 22, 1998
---------------------- ----------------------------
9
AMPLICON FINANCIAL
0 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000 L E A S E
000-000-0000 or 000-000-0000 Facsimile 000-000-0000 SCHEDULE
NO.
LESSEE: CONTACT: Xxxx Xxxxx -- Venture Seismic
Xxxxx Geophysical, Inc. PHONE: 000-000-0000
000-X Xxxx Xxxx FAX: 000-000-0000
Xxxxxxxxxx, XX 00000
THIS SCHEDULE IS ISSUED WITH RESPECT TO THE LEASE AGREEMENT ORDER NO. OL-10027
DATED 01/22/98. All of the terms of the Lease Agreement are incorporated into
this Schedule as if fully reflected on the Schedule. The terms of this Schedule
and the Lease Agreement combine to form an individual Lease with an independent
Term.
Any Deposit under this Schedule shall be returned to Lessee (without interest
thereon) if Amplicon does not accept this Schedule. Upon acceptance of this
Lease by Amplicon any such Deposit shall be treated as a Transaction Fee earned
by Amplicon and unless otherwise specified herein shall not be applied to any
rentals or other payments due under the Lease.
Term (months): THIRTY-SIX (36)
Deposit: $65,430.00 (TO BE APPLIED TO THE LAST TERM RENTAL PAYMENT)
Monthly Rent: $65,430.00 (LEASE RATE FACTOR OF .029772) (BILLED QUARTERLY)
Property: TOTAL PROPERTY COST: $2,197,721.55 (250 Sercel Opseis
Seismic Remote Data
Acquisition & Peripherals)
Quantity Property Description Serial #
-------- -------------------- --------
Property more fully described on Exhibit "A" attached hereto and made a part
hereof.
THE MONTHLY LEASE RATE FACTOR OF .029772 MAY BE ADJUSTED BY .000045 FOR EVERY
TEN (10) BASIS POINT ADJUSTMENT IN CORRESPONDING AVERAGE YIELD OF EQUALLY
MATURING US TREASURY NOTES. THE FINAL MONTHLY LEASE RATE FACTOR SHALL BE FIXED
AT THE AUTHORIZED DATE AND SHALL REMAIN CONSTANT THROUGHOUT THE TERM OF THE
LEASE. THE INITIAL INDEX RATE SHALL BE 6.20%.
LESSEE AGREES TO PROVIDE A CORPORATE GUARANTY FROM THE PARENT CORPORATION,
VENTURE SEISMIC LTD. IN A FORM ACCEPTABLE TO AMPLICON, INC. LESSEE HAS THE RIGHT
TO QUIETLY ENJOY THE USE OF THE PROPERTY WITHOUT INTERFERENCE BY AMPLICON OR ITS
ASSIGNEE PROVIDED LESSEE IS IN COMPLIANCE WITH TERMS OF THIS LEASE.
AT THE EXPIRATION OF THE TERM OR, IF EXTENDED PURSUANT TO SECTION 4 OF THE LEASE
AGREEMENT, AT THE EXPIRATION OF THE EXTENSION TERM LESSEE SHALL: (I) PURCHASE
THE PROPERTY FOR A MUTUALLY AGREEABLE PRICE OF 10% OF AMPLICON'S ORIGINAL COST
OF THE PROPERTY; (II) PROMPTLY RETURN ALL,
10
BUT NOT LESS THAN ALL, OF THE PROPERTY ACCORDING TO THE TERMS AND CONDITIONS OF
ITS LEASE AND LEASE REPLACEMENT PROPERTY FORM AMPLICON WHICH HAS A COST EQUAL TO
OR GREATER THAT THE ORIGINAL COST OF THE PROPERTY; OR (III) EXTEND THE SCHEDULE
FOR A PERIOD OF ONE ADDITIONAL YEAR AT THE RENTAL RATE DELINEATED HEREIN. WITH
RESPECT TO OPTIONS (I) AND (II), AMPLICON AND LESSEE SHALL 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 (I) OR OPTION
(II) BY THE EXPIRATION OF THE APPLICABLE TERM, THEN OPTION (III) SHALL PREVAIL.
AT THE END OF THE EXTENSION PROVIDED BY OPTION (III), THIS LEASE SHALL CONTINUE
SUBJECT TO TERMINATION BY EITHER LESSEE OR AMPLICON AT THE END OF ANY MONTH,
PROVIDED AT LEAST NINETY DAYS PRIOR WRITTEN NOTICE IS DELIVERED TO THE OTHER
PARTY.
THE INDIVIDUAL SIGNING BELOW CERTIFIES THAT HE OR SHE HAS READ THIS SCHEDULE
(INCLUDING THE TERMS ON THE REVERSE SIDE) AND THE LEASE AGREEMENT, AND IS
AUTHORIZED TO SIGN THIS SCHEDULE ON BEHALF OF LESSEE.
THIS SCHEDULE ALONG WITH THE LEASE AGREEMENT CONTAIN THE ENTIRE AGREEMENT
BETWEEN AMPLICON AND LESSEE WITH RESPECT TO THE SUBJECT MATTER HEREOF. THIS
AGREEMENT CAN ONLY BE MODIFIED IN WRITING, WITH SUCH MODIFICATIONS SIGNED BY A
PERSON AUTHORIZED TO SIGN AGREEMENTS ON BEHALF OF LESSEE AND BY AN AUTHORIZED
SIGNER OF AMPLICON. NO ORAL OR OTHER WRITTEN AGREEMENTS, REPRESENTATIONS OR
PROMISES SHALL BE RELIED UPON OR BE BINDING ON THE PARTIES UNLESS MADE A PART OF
THIS LEASE BY A WRITTEN MODIFICATION SIGNED BY AN AUTHORIZED SIGNER OF BOTH
LESSEE AND AMPLICON.
LESSEE/OFFEROR AMPLICON, INC.
OFFER: XXXXX GEOPHYSICAL, INC. ACCEPTANCE:
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. XxXxxxxxx
----------------------- -------------------------------
Name: Xxxxx Xxxxx Name: Xxxxxxx X. XxXxxxxxx
----------------------- -------------------------------
Title: Chief Executive Officer Title: Senior Vice President
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Date: October 15, 1997 Date: January 22, 1998
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TERMS AND CONDITIONS
APPLICABLE TO THIS LEASE SCHEDULE
A. RIGHT TO INSPECT THE PROPERTY: Amplicon may during reasonable business hours
enter upon any premises where the Property is located to confirm compliance the
terms of the Lease.
B. TAXES ON THE PROPERTY: All fees, assessments and taxes (except those based
upon the net income of Amplicon) which may now or hereafter become due or are
imposed upon the ownership, sale, possession and/or use of the Property are to
be paid by Lessee. While Lessee will be responsible for payment of all personal
property taxes, Amplicon will file all personal property tax returns. Amplicon
is not responsible for contesting any valuation of, or tax impose on, the
Property (but may do so strictly as an accommodation to Lessee) and will not be
liable or accountable to Lessee therefor. Amplicon retains any and all federal
and state tax credits or benefits relating to the Property.
C. USE, OPERATION AND MAINTENANCE OF THE PROPERTY: Lessee at its own expense,
will provide a suitable place for the operation of the Property, and keep in
force for the duration of the Lease the best standard Supplier's maintenance
agreement(s) which will cause the Supplier(s) to make all the necessary repairs,
adjustment, and replacements in accordance with such maintenance agreement(s)
and entitle Lessee (through Amplicon, if necessary) to obtain available
enhancements, updates, upgrades and changes.
D. ADDITIONS AND MODIFICATIONS TO THE PROPERTY: All additions and modifications
to the Property become a part of the Property and are owned by Amplicon.
Software, as described on any Schedule(s), includes all updates, revisions,
upgrades, new versions, enhancements, modifications, derivative works,
maintenance fixes, translations, adaptations, and copies of the foregoing or of
the original version of the Software whether obtained from the Supplier,
licenser or from any source whatsoever, and references in this Lease to Software
will be interpreted as references to any and all of the foregoing. All additions
and modifications to the Property must be free and clear of any liens or rights
of other parties.
E. INSURING THE PROPERTY: While the Property is in transit and for the duration
of the Lease, Lessee at its own expense shall maintain (i) comprehensive public
liability insurance (naming Amplicon or its assigns as additional insured) for
bodily injury and property damage resulting from the maintenance, use or
transport of the Property and (ii) property and casualty insurance (naming
Amplicon and/or its assigns as sole loss payee) covering all risks of loss or
damage to the Property from any cause whatsoever including, without limitation,
fire and theft. All insurance will be from an insurer(s) and in a form and
amount satisfactory to Amplicon. Lessee shall deliver to Amplicon the original
policies or certificates of such insurance (and each renewal or replacement
thereof) and evidence of the payment of the premiums for such insurance polices.
All polices will provide that no cancellation or material modification of such
insurance shall be effective without thirty days prior written notice to
Amplicon.
F. RISK OF LOSS TO THE PROPERTY: While the Property is in transit and throughout
the duration of the Lease, Lessee assumes all responsibility for loss or damage
or other Casualty Occurrence, as defined herein, to the Property and shall hold
Amplicon harmless. A Casualty Occurrence occurs if, for any reason whatsoever,
any of the Property is lost, stolen, requisitioned, taken, confiscated,
destroyed or irreparably damaged by any cause whatsoever. 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 is also deemed a Casualty Occurrence. In the event of a
Casualty Occurrence as to any Property, Lessee will immediately inform Amplicon
in writing. On the next succeeding rental payment date, Lessee will (i) either
replace the Property with like-kind Property, free and clear of any liens or
rights of other parties, acceptable to Amplicon or Amplicon's assignee and
continue to pay all rentals without interruption as they come due, or (ii) pay
to Amplicon all past due rentals and other amounts then late or due and an
amount equal to the stipulated value as determined by the Casualty Schedule
annexed to the Lease ("Stipulated Value"). When Lessee makes this payment to
Amplicon, the rentals cease to accrue and the Lease with respect to the Schedule
ends. Insurance proceeds received by Amplicon as a result to a Casualty
Occurrence will be applied to reduce Lessee's obligation to pay the Stipulated
Value.
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G. OWNERSHIP OF THE PROPERTY: Amplicon at all times retains ownership, title
and/or control over Lessee's right to use the Property in accordance with the
terms of the Lease. Lessee shall protect and defend, at its own expense,
Amplicon's title and/or rights in the Property against all claims and liens and
keep the Property free and clear of all such claims and liens. The Property is
and shall remain personal property of Amplicon. To the extent Software subject
to this Lease may also be the subject of a license agreement between the
Supplier and Lessee, Lessee acknowledges that the license to use the Software
is being provided to Lessee solely because of payments made by Amplicon to the
Supplier and, accordingly, Lessee agrees that Amplicon has an interest in the
license. Lessee agrees that if it or any of its affiliates receives anything
of value from the Supplier (including without limitation, a trade-in,
substitution, discount or upgrade allowance) other than Lessee's right to use
the Software reelected on the Schedule for the duration of this Lease, Lessee
will advise Amplicon and pay to Amplicon an amount equal to such additional
value obtained by Lessee. Lease agrees that it will not surrender, transfer or
modify the license agreement without first obtaining the written consent of
Amplicon.
H. RETURN OF PROPERTY: If Lessee elects to return the Property as provided for
in the Lease, Lessee will discontinue the use of the Property, pay to Amplicon
an inspection, refurbishment and restocking fee equal to three percent of the
Property's original cost, and immediately, at its own expense, ship the
Property, with all manuals, cables, cartons and packing materials as originally
furnished by Supplier, to a location within the United States in accordance with
the Property return instructions provided by Amplicon. In the case of Software,
Lessee will destroy all intangible Software items, and deliver to Amplicon all
tangible items constituting Software. At Amplicon's request, Lessee will also
certify in a written form acceptable to Amplicon that: (i) all the tangible
Software has been delivered to Amplicon; (ii) all intangible records have been
destroyed; (iii) Lessee has not retained the Software in any form: (iv) Lessee
will not use the Software after termination and (v) Lessee has not received from
Supplier(s) anything of value relating to or in exchange for Lessee's use,
rental or possession of the Software during the duration of the Lease (including
a trade-in, substitution or upgrade allowance). Until Lessee has complied with
all the requirement of this Section, rent payment obligations will continue from
month to month at the rental rate delineated on the Schedule.
I. ASSIGNMENT OF LEASE AND/OR PROPERTY: AMPLICON MAY ASSIGN ANY OF ITS
RIGHTS IN THE LEASE AND/OR THE PROPERTY OF AN ASSIGNEE ("ASSIGNEE"). LESSEE
HEREBY CONSENTS TO SUCH ASSIGNMENT AND FURTHER AGREES AS FOLLOWS: (1) ASSIGNEE
DOES NOT ASSUME ANY OF THE OBLIGATIONS OF AMPLICON UNDER THE LEASE; (2) TO PAY
ALL ASSIGNED MONIES DUE UNDER THE LEASE 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 LESSEE MAY NOW OR HEREAFTER
HAVE AGAINST AMPLICON (LESSEE RESERVES ITS RIGHT TO HAVE RECOURSE DIRECTLY
AGAINST AMPLICON ON ACCOUNT OF ANY SUCH DEFENSE OR COUNTERCLAIM); (3) TO PROVIDE
AMPLICON WITH A COPY OF ANY NOTICES SENT BY LESSEE TO ASSIGNEE UNDER THE LEASE;
(4) THAT SUBJECT TO AND WITHOUT IMPAIRMENT OF LESSEE'S LEASE-HOLD RIGHTS IN AND
TO THE PROPERTY COVERED UNDER THE LEASE, LESSEE SHALL HOLD SAID PROPERTY AND THE
POSSESSION THEREOF FOR THE ASSIGNEE TO THE EXTENT OF THE ASSIGNEE'S RIGHTS
THEREIN, AND (5) SUCH ASSIGNMENT DOES NOT CHANGE LESSEE'S OBLIGATIONS UNDER THIS
LEASE OR INCREASE THE BURDEN AND RISKS IMPOSED ON LESSEE. WITHOUT THE PRIOR
WRITTEN CONSENT OF AMPLICON, LESSEE SHALL NOT ASSIGN THIS LEASE OR ITS INTEREST
IN THE LEASE IN ANY FORM OF MANNER INCLUDING, BUT NOT LIMITED TO, AN ASSIGNMENT
DUE TO A SALE, MERGER, LIQUIDATION, SUB-LEASE, LEVERAGED BUYOUT, CHANGE OF
OWNERSHIP OR CHANGE-IN-CONTROL.
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EXHIBIT "A" (LEASE SCHEDULE NO. 01 TO LEASE AGREEMENT ORDER NO. OL-10027) TO
LEASE SCHEDULE WHEREIN
Xxxxx Geophysical Inc. is the Lessee
Lessee's Address: 874 "A" Xxxx Xxxx, Xxxxxxxxxx, XX 00000
Property Location: Same as above
QTY. DESCRIPTION
Supplier: Mitcham Industries, Inc.
Invoice No: 101277
50 OPSEIS SAR - 6 CHANNELS, S/N: 6174, 6209, 6214, 6215, 6216, 6217, 6218,
6219, 6220, 6221, 6222, 6223, 6224, 6225, 6226, 6227, 6228, 6229, 6230,
6231, 6232, 6234, 6235, 6236, 6238, 6239, 6240, 6241, 6242, 6243,
6244, 6245, 6247, 6248, 6249, 6251, 6252, 6253, 6261, 6262,
6263, 6265, 6266, 6267, 6268, 6270, 6271, 6272, 6273, 6274
Invoice No: 101273
200 OPSEIS EAGLE SAR, S/N: 5508, 5215, 5554, 5502, 5203, 5279, 5249, 5490,
5402, 5524, 5498, 5199, 5523, 5537, 5566, 5509, 5549, 5538, 5547, 5609, 5485,
5608, 5514, 5521, 5595, 5594, 5227, 5618, 5531, 5588, 5558, 5590, 5572, 5257,
5225, 5412, 5605, 5582, 5576, 5577, 5581, 5529, 5424, 5266, 5540, 5565, 5601,
5560, 5639, 5530, 5429, 5583, 5210, 5568, 5503, 5563, 5561, 5585, 5265, 5562,
5592, 5439, 5246, 5559, 5512, 5539, 5535, 5621, 5500, 5548, 5586, 5640, 5273,
5298, 4966, 5584, 5293, 5642, 4850, 5278, 5518, 5499, 5295, 5494, 5405, 5497,
5551, 5489, 5598, 5533, 5644, 5607, 5403, 5515, 5505, 5646, 5587, 5213, 4048,
5853, 5198, 5391, 5522, 5655, 5620, 5520, 5625, 5627, 5616, 5240, 5624, 5550,
5630, 4605, 5657, 5615, 5593, 5663, 5569, 5573, 5623, 5555, 5163, 4599, 4910,
5591, 5578, 5589, 4878, 5496, 5231, 5613, 5543, 5371, 5193, 5028, 5068, 5397,
5243, 5375, 5619, 5386, 5811, 5196, 5262, 5069, 5168, 5064, 5575, 5449, 5294,
5185, 5205, 5428, 5226, 5516, 5401, 5275, 5282, 5506, 5603, 5634, 5612, 5633,
5190, 5018, 5017, 5177, 5541, 5546, 5542, 5622, 5510, 5272, 5218, 5604, 5178,
5507, 5229, 5285, 5511, 5217, 5206, 5181, 5472, 5571, 5258, 5545, 5492, 5188,
4938, 5411,5600,5810,5389,5631,5234,5553,5392,5233
Plus all replacement parts, substitutions, additions, attachments,
modifications, updates, upgrades, revisions, new versions, enhancements,
accessories and the proceeds thereof.
LESSEE:
Xxxxx Geophysical, Inc. Amplicon, Inc.
BY: /s/: Xxxxx Xxxxx BY: /s/: Xxxxxxx X. XxXxxxxxx
NAME: Xxxxx Xxxxx NAME: Xxxxxxx XxXxxxxxx
TITLE: Chief Executive Officer TITLE: Senior Vice President
DATE: January 30, 1998 DATE: February 9, 1998
