EXHIBIT 10.17
EQUIPMENT LEASE AGREEMENT
This Equipment Lease Agreement (the "Agreement") is entered into on this 9th day
of April, 2003 (the "Effective Date") between MITCHAM Industries, Inc., a Texas
corporation ("MITCHAM"), and Sercel Inc., a corporation organized under the laws
of Oklahoma ("SERCEL"), which parties agree as follows:
1. Introduction
SERCEL and certain of its affiliates design, manufacture and market
fully-configured seismic data acquisition systems (the "SERCEL
Systems"), the components thereof and equipment related thereto,
including station units that are sometimes called "channel boxes." At
the present time, SERCEL and certain of its affiliates manufacture
equipment as described on Schedule 2.a and Schedule 2.b (collectively
the "Products"). MITCHAM provides full service leasing services to
customers in the oil and gas industry, including the leasing of new and
used channel boxes to customers who have SERCEL Systems. For good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged for all purposes. The Parties entered into a lease
equipment agreement, which expired on December 31, 2002 and they are
willing to continue their relationship for one additional year but
based on the terms and conditions herein contained. MITCHAM and SERCEL
agree to the terms set forth herein.
2. Exclusive Authorized Third Party Lessor
(a) MITCHAM hereby represents to SERCEL that MITCHAM has the necessary
skills, experience, personnel, facilities and equipment to effectively
perform its responsibilities as the exclusive leasing representative
for SERCEL as described in the Agreement for the Products hereinafter
specified. In reliance upon that representation, SERCEL hereby appoints
MITCHAM as the exclusive representative for SERCEL to lease the Land
Products, as further specified on Schedule 2.a throughout the world
(the "Territory"). In addition thereto, SERCEL hereby appoints MITCHAM
as a nonexclusive representative for SERCEL to lease the Marine/OBC
Products, as further specified on Schedule 2.b throughout the world
(the "Territory"). Notwithstanding the foregoing, MITCHAM's
appointments as exclusive or nonexclusive leasing representative
pursuant hereto shall not include financing leases or other leases of
duration of greater than one year. During the term of this Agreement,
MITCHAM will actively promote and solicit the leasing of the Products.
During the term of this Agreement, SERCEL and/or any company of the
SERCEL Group shall remain free to perform, directly or indirectly, with
any third party any operating or financial lease of whatever duration
with respect to either Land, Marine or OBC Product throughout the
Territory. The Parties acknowledge that the purpose of this equipment
lease agreement is the lease of Products by MITCHAM. This Agreement
does not allow Mitcham to act as distributor, agent, commercial
representative or reseller of brand-new Products.
(b) The Parties acknowledge that the discounts granted to Mitcham under
the Volume Purchase Table executed between the Parties on the same date
of this Agreement are granted by SERCEL in consideration of MITCHAM
leasing the Products and that SERCEL's discount policy is different
(i.e. not as favorable) from the discounts granted when the Products
are purchased for resale.
(c) SERCEL agrees to provide MITCHAM with any information regarding a
rental, lease or finance opportunity that SERCEL will not undertake for
any reason whatsoever.
3. Purchase of Products from SERCEL
Subject to the other provisions of this Agreement, MITCHAM agrees that
it will purchase from SERCEL, and SERCEL agrees that it will sell to
MITCHAM, subject to fulfillment by Mitcham of its obligations under the
Volume Purchase Agreement signed on the 9th day of April 2003, the
Products necessary to meet MITCHAM's obligations under each Lease as
provided herein. The terms and conditions of purchases by MITCHAM of
the Products hereunder shall be governed by SERCEL's standard terms and
conditions, a copy of which is attached hereto as Schedule 3(a);
provided, however, that in the event of any conflict between the terms
of such terms hereof, the terms of the Agreement shall prevail. SERCEL
may update Schedule 3(a) from time to time after written notice to
MITCHAM. SERCEL shall sell to MITCHAM such of the Products as MITCHAM
shall order (an "Order") valued after giving effect to the discount(s)
set forth on the VPA and subject to the conditions therein.
MITCHAM will not order from any third party any Products or replacement
parts for SERCEL equipment that is not qualified by SERCEL. Such
purchases from a third party will give SERCEL the right to early
terminate this agreement for breach and in any case any warranty
remaining on the equipment sold by SERCEL will be void for the
remaining period.
MITCHAM expressly acknowledges that SERCEL does not manufacture anymore
the SN 388 system and that although MITCHAM can lease its existing
inventory of SN 388 systems, it will not order additional SN 388
systems. Furthermore, MITCHAM expressly acknowledges that SERCEL does
not manufacture anymore the Mertz Vibrator product line, but SERCEL
agrees to support the product through spare parts sales, and MITCHAM
may continue to lease its existing inventory of Mertz Vibrators but it
will not order any additional Mertz Vibrators.
4. Pricing
In no event shall either SERCEL or MITCHAM have any right to require
that either of them charge any specific price or follow any pricing
guidelines or establish or require any other
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specific or general term with regard to the Leasing of any of the
Products, or the provision of any other good or service by either of
them. Notwithstanding the foregoing, MITCHAM shall use its reasonable
best efforts to have a reasonable quantity of the Products available
for lease at prices which MITCHAM believes reflects the supply and
demand for the Products.
5. Provision of Certain Goods and Services by SERCEL
SERCEL hereby agrees that MITCHAM shall have the right to send a
reasonable number of its employees and representatives of its customers
who lease the Products from MITCHAM to such technical, training,
operations and maintenance classes as SERCEL provides to SERCEL
customers who lease or purchase the Products from SERCEL, at Sercel
standard rates. SERCEL will have no responsibility for travel, lodging,
food or incidental expenses of the MITCHAM attendees. Following is
SERCEL's current training price schedule, which can be changed any
anytime as long as MITCHAM is so notified 30 days in advance:
<Table>
<Caption>
MINIMUM
TRAINING DURATION CHARGE IN USD COURSE TOTAL REQUIREMENT
-------------- -------- ------------- ------------ -----------
Syntrak 3 days 400.00/day 1200/student 4 students
GCS90 1 day 400/day 400/student 4 students
408UL 2 weeks 1950/week 3900/student 4 students
Limited Repair 2 days 400/day 800/student 4 students
(408)
</Table>
SERCEL hereby agrees to send to MITCHAM such quantities of all manuals
and selling information, marketing brochures and literature regarding
the Products (other than proprietary information) as SERCEL develops
and as MITCHAM shall reasonably request in connection with its Leasing
activities, at no charge to MITCHAM.
6. Warranty and Service
6.1 SERCEL warrants to MITCHAM all of the new Products sold by SERCEL to
MITCHAM as per SERCEL's standard warranty terms.
6.2 The warranty period shall begin from and after the date of installation
of the Products, but only on the condition that such installation is
made within thirty (30) days from the date such Product is received by
MITCHAM.
6.3 SERCEL makes no warranties or representations whatsoever with respect
to any non-SERCEL products, however, any warranty information from the
manufacturers of the non-SERCEL products shall be passed on to MITCHAM.
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6.4 The standard SERCEL warranty is given expressly and in lieu of all
other express or implied warranties, including a warranty of
merchantability or fitness and in no event shall SERCEL be liable for
consequential damages resulting from the use of any of the Products.
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6.5 In no event shall MITCHAM have any authority whatsoever, express or
implied, to make warranties other than those provided for herein
without prior written permission from SERCEL.
7. Schedule Maintenance of Leased Equipment: Repairs
MITCHAM and SERCEL acknowledge that third party lessees of the Products
from MITCHAM may return such Leased Products directly to SERCEL after
the termination of such Leases. In such event, SERCEL shall perform its
standard maintenance check of such Products and inform MITCHAM of any
necessary repairs.
The maintenance checks and the repairs performed by SERCEL on the
Products received from the lessees shall be invoiced by SERCEL to
MITCHAM at the SERCEL standard cost. With respect to the repair
undertaken by SERCEL, MITCHAM will be entitled to a five percent (5%)
discount on the parts excluding workmanship, MITCHAM shall also pay the
reasonable and ordinary freight and storage charges incurred by SERCEL
with respect to such Products.
8. Right to Use Name
MITCHAM shall have the right during the Term of this Agreement to (i)
identify itself as a lessor of the Products, (ii) use all SERCEL
trademarks and tradenames related to the Products that MITCHAM Leases
to third parties in advertisements and sales and promotional materials;
provided, however, that MITCHAM shall obtain the prior written approval
of SERCEL to any such advertisements and sales and promotional
materials. No rights to manufacture are granted by this Agreement. All
such SERCEL trademarks and tradenames related to the Products are and
shall remain the sole and exclusive property of SERCEL, and MITCHAM
shall have no rights therein other than as specifically set forth in
this Agreement.
9. Relationship of the Parties
Neither MITCHAM nor SERCEL shall have (i) any liability for Leases or
sales of any of the Products by the other, or (ii) any authority to
control, act for or obligate the other in anyway, except as set forth
herein. This agreement shall not be construed as creating an agency,
partnership or joint venture between MITCHAM and SERCEL. Neither
MITCHAM nor SERCEL (or any of their employees or representatives) shall
be construed as an agent, consultant or employee of the other for any
purpose. MITCHAM shall not have the authority to bind SERCEL in any
respect, it being intended that MITCHAM shall act as an independent
contractor and not as an agent, with the understanding that SERCEL
shall not be responsible for any obligations and/or liabilities
incurred by MITCHAM in connection with its business activities.
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10. Term of Agreement
Unless sooner terminated in accordance with the provisions hereof, this
Agreement shall be effective from the Effective Date through December
31, 2003 (the "Term"). This Agreement may only be renewed through
written agreement of both Parties. Notwithstanding the above, the
effectiveness of this Agreement is expressly subject to the coming into
force of the Volume Purchase Agreement to be signed on the same date
that this Agreement.
11. Indemnity
SERCEL and MITCHAM hereby agree to the following indemnification
obligations:
a. MITCHAM shall indemnify and hold harmless SERCEL, its directors,
officers and employees (hereinafter the "SERCEL Indemnitees")
against any and all liability, loss, damages, fines, penalties,
costs and expenses (including, without limitation, court costs,
and reasonable attorneys fees) incurred by any of the SERCEL
Indemnitees as a result of any breach or violation by MITCHAM or
others acting on its behalf of any obligation, covenant,
representation or warranty of MITCHAM set forth in this Agreement.
b. SERCEL shall indemnify and hold harmless MITCHAM, its directors,
officers and employees (hereinafter the "MITCHAM Indemnitees")
against any and all liability, loss, damages, fines, penalties,
costs and expenses (including, without limitation, court costs and
reasonable attorneys fees) incurred by any of the MITCHAM
Indemnitees (i) as a result of any breach or violation by SERCEL
or others (other than MITCHAM) acting on its behalf of any
obligation, covenant, representation or warranty of SERCEL set
forth in the Agreement as amended, (ii) for infringement or claim
of infringement of any claimed patent rights relating to the
SERCEL Products, or (iii) that arise out of or are based upon
losses, claims, damages or liabilities suffered by any third
parties (meaning any party other than MITCHAM, SERCEL, MITCHAM's
Customer and their respective affiliates) resulting from the
design, manufacture, and/or operation of any SERCEL Products, from
the failure of any such SERCEL Products to satisfy any warranties
(whether expressed or implied, if any), or from any defect in the
SERCEL Products.
c. It is expressly acknowledged by MITCHAM that all liabilities and
indemnification in relation thereto between SERCEL and MITCHAM and
MITCHAM's Customers will be exclusively governed by SERCEL's
general conditions of sale as mentioned in Schedule 3(a) of the
Agreement.
d. Either party seeking indemnification hereunder shall notify the
other party in writing of any legal action commenced against the
SERCEL Indemnitees or the MITCHAM Indemnitees, as the case may be,
as soon as practicable. The indemnity obligations of MITCHAM and
SERCEL shall survive the expiration or termination of the
Agreement.
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e. In no event will SERCEL be liable to MITCHAM, whether in contract
or tort including negligence, under the Agreement as amended for
special, incidental, indirect or consequential damages or any
other losses or damages whatsoever resulting from loss of use,
time, profits or business resulting from its performance, non
performance or termination of the Agreement as amended.
12. General
a. The addresses of MITCHAM and SERCEL for purposes of giving any
notice or other communication under this Agreement are as set
forth below. Any such notice or communication shall be in writing
and signed by an officer or authorized representative of MITCHAM
or SERCEL, as applicable. Any such notice or communication shall
be deemed to have been given (i) immediately upon physical
delivery to the addressee, and (ii) three days after such notice
or communication has been addressed as set forth below,
first-class postage prepaid, certified mail, return receipt
requested.
MITCHAM: MITCHAM Industries, Inc.
P.O. Box 1175
Huntsville, Texas 77342-1175
Attn: Billy F. MITCHAM, Jr.
SERCEL: SERCEL Incorporated
17155 Park Row
Box 218909
Houston, Texas 77318
Attn: Mark Farine
Notice may be served in any other manner, including telex,
telecopy, telegram, etc., but shall be deemed delivered and
effective as of the time of actual delivery.
b. MITCHAM and SERCEL represent and warrant to each other that the
execution, delivery and performance of this Agreement have been
authorized by all necessary corporate action, and that this
Agreement is a valid and binding obligation of each of them,
respectively. MITCHAM and SERCEL represent and warrant to each
other that, to the best of their knowledge, neither the execution
and delivery of, nor the performance of this Agreement will
conflict with or result in a breach of any (i) law or of any
regulation, order, writ, injunction, or decree of any court or
government authority of any country or state in which this
Agreement is to be performed, or (ii) any agreement to which they
are a party.
c. This Agreement represents the entire agreement between MITCHAM and
SERCEL and supersedes any previous agreement or any prior oral or
written negotiations with regard to the subject matter hereof, and
may not be amended, or modified except by a written document
signed by duly authorized officers of MITCHAM and SERCEL.
d. This Agreement may not be assigned by either party without the
prior written consent of the other party, except that SERCEL may
assign this Agreement to (a) any affiliate of SERCEL, or (b) any
party succeeding to ownership of substantially all of the assets
of
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SERCEL, upon notice to, but without the consent of MITCHAM. In
addition, in the event Billy F. MITCHAM, Jr. is no longer employed
by MITCHAM in a senior management capacity or is considered by
SERCEL to be not sufficiently and actively involved in the
performance of this Agreement, SERCEL shall have the option upon
60 days written notice to terminate this Agreement. This Agreement
shall bind and be enforceable against the parties hereto and their
respective successors and permitted assigns. Notwithstanding any
authorized assignment, MITCHAM shall continue to be liable for all
obligations of MITCHAM set forth in this Agreement.
13. Compliance with Laws
In all of its activities pursuant to this Agreement, MITCHAM and SERCEL
shall comply with all laws, decrees, statutes, rules, regulations,
codes and ordinances of any jurisdiction which may be applicable to
such activities, including without limitation, laws imposing
registration and disclosure requirements on MITCHAM; provided, however,
insignificant violations of any of the foregoing that have no more than
a de minimis effect on MITCHAM or SERCEL shall not be a violation of
this Agreement. In leasing the Products hereunder, MITCHAM shall act at
all times in a manner demonstrating a high level of integrity and
ethical standards. Without limiting the scope of its general
obligations set forth above this section, MITCHAM hereby represents and
warrants to SERCEL in connection with its activities performed with
regard to the Products in the past (if any), and hereby covenants and
agrees with SERCEL in connection with its activities to be performed in
connection with the Products in the future, that MITCHAM and any person
or firm acting in association with or on behalf of MITCHAM:
o has not offered, paid, given, promised to pay or give, or
authorized the payment or gift of, and;
o will not offer, pay, promise to pay or give, or authorize the
payment or gift of, any money or thing of value to;
o any "Foreign Official" as defined in the United States Foreign
Corrupt Practices Act (Pub. L. No. 95-213, 94 Stat. 1494),
together with all amendments to that Act which are effective
during the term hereof (the "FCPA");
o any political party or party official, or any candidate for
political office; or
o any other person for the purpose of;
o influencing any act or decision of such Foreign Official,
political party, party official, or candidate in his or its
official capacity;
o inducing such Foreign Official, political party, party official or
candidate to do or omit to do an act in his violation of his or
its official duty; or
o inducing such Foreign Official, political party, party official or
candidate to use his or its influence with a foreign government or
an instrumentality of such government to affect or influence any
act or decision of such government or instrumentality in order to
assist SERCEL to obtain or retain business with any person or to
direct business to any person.
Further, MITCHAM hereby represents and warrants to SERCEL that no
person having a direct or indirect financial interest in MITCHAM as of
the date hereof is: (i) a Foreign Official, (ii) an official of any
political party, or (iii) a candidate for political office; provided,
however, for purposes hereof, a person shall not be deemed to have a
direct or indirect financial interest in MITCHAM as a result of owning
less than (5%) of the outstanding shares of common stock of
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MITCHAM. In connection with determining whether a person owns five
percent (5%) or more of the stock, MITCHAM shall be permitted to rely
upon filings made by its shareholders under the Securities Exchange Act
of 1934, as amended, or filings made under other applicable federal
securities laws. MITCHAM shall immediately notify SERCEL in the event
that any person now or hereafter having such a financial interest in
MITCHAM shall assume such a status.
From time to time as requested by SERCEL, MITCHAM shall, within five
(5) days after request from SERCEL, certify to SERCEL in writing that
the obligations, representations and warranties of MITCHAM set forth in
this Section have not been violated. SERCEL shall not be permitted to
request such certification more often than once each calendar quarter
unless it has reason to believe a violation has occurred. MITCHAM shall
cooperate fully with any investigation which may be conducted by
representatives of SERCEL for the purpose of determining whether or not
MITCHAM has violated any of those obligations, representations and
warranties. In the event that amendments in the FCPA reasonably
necessitate modifications to this Section 13, the Parties hereto agree
to negotiate in good faith in connection therewith and enter into such
modifications.
14. MITCHAM Undertakings
a. To use its reasonable best efforts to actively promote and solicit
the leasing of the Products.
b. To participate in training programs which may be offered by SERCEL
or by others relating to the Products.
c. To obtain approval of SERCEL prior to the commencement of any
advertising relating to the sale of the Products which advertising
has not been previously approved by SERCEL.
d. Not knowingly to lease the Products to companies or countries that
are precluded by United States law from trading with the United
State or its residents and, to make reasonable inquiry in
connection therewith, including inserting provisions in the leases
with their customers that are reasonably intended to keep
MITCHAM'S customers from using the Products in the countries in
which United States law prohibits the use of the Products.
e. To make all reasonable effort to use the agents described on
Schedule 14(e) and that have been designated by SERCEL in
locations outside of the United States or Canada so as to minimize
conflicts between agents, except MITCHAM shall not be obligated to
use its reasonable efforts in India since MITCHAM currently has an
agent in such country. However, if conflicts arise as a result of
multiple agents, both Parties will make a reasonable attempt to
use the same agent.
f. To use all reasonable best efforts to continue to maintain an
organization commensurate with the growth of Leasing of the
Products.
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g. To return to SERCEL on termination of this Agreement any and all
catalogs, samples, price lists, and any other data, information
and/or supplies or materials furnished by SERCEL which are in the
possession of MITCHAM or any of its employees, agents,
representatives or bailees.
h. Not to alter, hide nor secrete SERCEL'S name on any of the
Products or on any sales promotion material furnished by SERCEL.
15. Purchase Order Acceptance
15.1 All sales of the Products are subject to SERCEL'S standard conditions
of sale, however, SERCEL reserves the right to, at any time, change,
alter or amend these conditions by giving prior written notice to
MITCHAM.
15.2 MITCHAM shall confirm with SERCEL all relevant delivery information
prior to submission of a purchase order for any of the Products.
15.3 SERCEL shall have the right to reject, in whole or in part, any
Purchase Order from MITCHAM, to refuse in whole or part, to consent to
any cancellation requested by MITCHAM, and to reject in whole or part,
any and all returns of the Products or to refuse to grant refunds or
allowances on such returns, based upon reasonable grounds. Any Purchase
Order shall be binding on SERCEL only upon receipt by MITCHAM of a
SERCEL's formal acceptance or acknowledgement of order.
16. Confidential Information
MITCHAM agrees that it will maintain in strict confidence, and not
disclose to any other person or firm except with the prior written
permission of an authorized officer of SERCEL, any and all information
received from SERCEL or prepared by MITCHAM for SERCEL regarding
prices, customer lists, business plans, strategies, forecasts, studies,
reports and any other information which may be considered confidential
or proprietary by SERCEL and which is not publicly available. The
confidentiality obligation of MITCHAM under this Section 16 shall
survive the expiration or termination of this Agreement. In the event
that MITCHAM receives a request to disclose all or any part of the
confidential information under terms of a subpoena or order issued by a
court or by a governmental body, MITCHAM agrees (i) to notify SERCEL
immediately of the existence, terms; and circumstances surrounding such
request, (ii) to consult with SERCEL on the advisability of taking
legally available steps to resist or narrow such request, and (iii) if
disclosure of such information is required to prevent MITCHAM from
being held in contempt or subject to other penalty, to furnish only
such portion of the information as, in the written opinion of counsel
reasonably satisfactory to SERCEL, it is legally compelled to disclose
and to exercise its best efforts to obtain an order or other reliable
assurance that confidential treatment will be accorded to the disclosed
information. The
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provisions of this Section are mandatory, MITCHAM hereby acknowledges
that the provisions of the Agreement may be specifically performed and
enforced, and MITCHAM consents and agrees that it may be restrained,
enjoined or otherwise prevented from divulging any such confidential
information if at any time SERCEL reasonably fears that such event may
occur.
17. Force Majeure
All transactions under this Agreement and all purchase orders accepted
hereunder are subject to modification or cancellation in the event of
strikes, labor disputes, lock-outs, accidents, fires, delays in
manufacturing or in transportation or delivery of materials, floods
severe weather or other acts of God, embargoes, governmental actions,
wars or any other cause beyond the reasonable control of the party
concerned, whether similar to or different from the causes above
enumerated; and including any special, indirect, incidental, or
consequential damages arising from SERCEL'S delay in delivery or
failure to deliver as a result of any such cause. In the event of a
scarcity of any of the Products for whatever cause, SERCEL will make a
reasonable effort to allocate its available supply on the basis of past
orders or otherwise as it sees fit, regardless of the time of receipt
or acceptance of orders or the quantity of orders on hand.
18. Security Interests
Until full payment of the purchase price for the Products, SERCEL
hereby retains, and MITCHAM hereby grants to SERCEL, a purchase money
security interest in all of the Products sold to MITCHAM on account.
MITCHAM consents to actions by SERCEL that are appropriate to perfect
SERCEL'S purchase money security interest and agrees to execute such
financing statements as are reasonably requested by SERCEL in
connection with the foregoing.
19. Termination
Thus Agreement may be terminated at any time:
a. by the mutual agreement of the parties; or
b. by either party upon giving a notice of termination to the other
party in the event the other party fails to perform, observe or
comply with any of the obligations or undertakings of such other
party which are contained in this Agreement, and such failure has
not been cured within fifteen (15) days after the terminating
party has given a written notice specifying such failure to the
other party.
Notwithstanding the above, SERCEL shall be entitled to immediately
terminate this Agreement effective upon the giving of notice to MITCHAM
in the event that: (i) SERCEL has reasonable
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cause to believe that MITCHAM or others acting in association with or
on the behalf of MITCHAM have committed, or intend to commit, a
violation of the FCPA; (ii) MITCHAM refuses or is unable to make the
certification described in Section 13; (iii) MITCHAM ceases doing
business as a going concern, makes an assignment for the benefit of
creditors, admits in writing its inability to pay its debts as they
become due or such fact is determined by judicial proceedings, files a
voluntary petition in bankruptcy, is adjusted a bankrupt or an
insolvent entity, files a petition seeking for itself any
reorganization, rearrangement, composition,
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readjustment, liquidation, dissolution, or similar arrangement under
any present or future statute, law or regulation, or files an answer
admitting the material allegations of a petition filed against it in
any such proceedings, consents to or acquiesces in the appointment of a
trustee, receiver, or liquidator of, all or any substantial part of its
assets or properties, or if it or the holders of its common stock shall
take any action contemplating its dissolution or liquidation. In such
event, SERCEL shall have no further liability to MITCHAM under this
Agreement. It is expressly acknowledged between the Parties that the
modification, amendment or termination of this Agreement by SERCEL for
whatever reason or the non renewal thereof will not entitle MITCHAM to
claim for any damage, penalty or indemnity whatsoever.
20. Arbitration
All disputes involving this Agreement shall be finally resolved by an
arbitrator appointed by, and operating under, the rules of the Judicial
Arbitration and Mediation Services (J.A.M.S.). The choice of the
individual arbitrator shall be upon mutual agreement of SERCEL and
MITCHAM, and the parties agree to negotiate in good faith in connection
with the selection of the individual arbitrator. The written decision
of the arbitrator shall be final and binding upon all parties, and
shall be convertible to a court judgment in the State of Texas. The
arbitration shall take place in the State of Texas. The prevailing
party as determined by the arbitrator shall be entitled to receive
reasonable costs and reasonable attorney's fees from the non-prevailing
party in addition to any other relief granted. No demand for
arbitration shall be made after the date when institution of a legal or
equitable proceeding based upon the claim or dispute would be barred by
the applicable statute of limitations of the State of Texas. All
demands for arbitration shall be made in accordance with Section 12 and
shall be deemed made as of the sooner of actual receipt or the date the
demand is placed in the United States Mail. Any party shall be entitled
to file a lawsuit to specifically enforce the parties' agreement to
arbitrate and for the purpose of obtaining injunctive relief to enforce
this Agreement.
21. Applicable Law
This Agreement shall be governed by the laws of the United States of
the State of Texas without giving effect to the conflict of laws rules.
22. Export Control Laws
All shipments made by SERCEL to MITCHAM or third parties shall at all
times be subject to the export control laws and regulations of the
United States of America, as such laws shall be amended from time to
time. MITCHAM agrees that it shall not assist in the disposition of US
origin SERCEL Products, by way of transshipment, re-export, diversion
or otherwise, except as said laws and regulations may expressly permit.
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23. Standard of Business Conduct
MITCHAM agrees not to pay any commissions, fees or grant any rebates to
any employee or officer of any proposed customer or its affiliates or
favor employees or officers of such proposed customer with gifts or
entertainment of significant costs or value or enter into any business
arrangements with employees or officers of any such proposed customer,
other than as a representative of that proposed customer, without the
proposed customer's prior written approval.
24. Waiver
The failure of a party to insist upon strict performance of any
provision of this Agreement shall not constitute a waiver of, or
estoppel against asserting, the right to require performance in the
future. A waiver or estoppel in any one instance shall not constitute a
waiver or estoppel with respect to a later breach.
25. Severability
If any of the terms and conditions of this Agreement are held by any
court of competent jurisdiction to contravene, or to be invalid under,
the laws of any political body having jurisdiction over the subject
matter hereof, such contravention or invalidity shall not invalidate
the entire Agreement. Instead, this Agreement shall be construed by
reforming the particular offending provision or provisions held to be
invalid so that it or they are valid and enforceable while remaining as
faithful as possible to the original intent of the provision or
provisions, the rights and obligations of the parties shall be
construed and enforced accordingly, and this Agreement shall remain in
full force and effect.
26. Construction
The headings in this Agreement are inserted for convenience and
identification only and are not intended to describe, interpret,
define, or limit the scope, extent, or intent of this Agreement or any
other provision hereof. Whenever the context requires, the gender of
all words used in this Agreement shall include masculine, feminine, and
neuter, and the number of all words shall include the singular and the
plural.
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27. Counterpart Execution
This Agreement may be executed in any number of counterparts with the
same effect as if all the parties had signed the same document. All
counterparts shall be construed together and shall constitute one and
the same instrument.
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28. Cumulative Rights
The rights and remedies provided by this Agreement are cumulative, and
the use of any right or remedy by any part shall not preclude or waive
its right to use any or all other remedies. These rights and remedies
are given in addition to any other rights a party may have by law,
statute, in equity or otherwise.
29. Reliance
All factual recitals, covenants, agreements, representations and
warranties made herein shall be deemed to have been relied on by the
parties in entering into this Agreement.
30. No Third Party Beneficiary
Any agreement herein contained, express or implied, shall be only for
the benefit of the undersigned parties and their permitted successors
and assigns, and such agreements and assumption shall not inure to the
benefit of the obliges of any other party, whomsoever, it being the
intention of the undersigned that no one shall be deemed to be a third
party beneficiary of this Agreement.
31. Drafting Party
This Agreement expresses the mutual intent of the parties to this
Agreement. Accordingly, regardless of the preparing party, the rule of
construction against the drafting party shall have no application to
this Agreement.
32. Time is of the Essence
Time is of the essence with respect to all provisions of this
Agreement.
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33. Incorporation of Schedules
All schedules attached to this Agreement are incorporated into this
Agreement as fully as if stated within the body of this Agreement.
34. Survival
Articles 2 (c), 11, 16, 19, 20, 21 and 34 of the Agreement and schedule
3.c herein shall survive expiration or termination of this Agreement
for whatever reason.
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IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representative as of the date first written above.
SERCEL Inc. MITCHAM
By: /s/ George Wood By: /s/ Billy F. Mitcham, Jr.
------------------------------- ---------------------------------
George WOOD, President Billy F. MITCHAM, Jr. - President
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SCHEDULE "2.A."
LIST OF LAND SYSTEMS
Subject to revision
1. SN388
2. 408UL
3. 408ULS
4. VE432
5. Nomad
6. 408UL DSU
The list of systems includes all sub-systems and sub-assembles.
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SCHEDULE "2.B."
LIST OF MARINE AND OBC SYSTEMS
Subject to revision
1. Aqualink
2. Seal (Solid and Fluid Streamers)
3. Deep Sea Link (DSL)
The list of systems includes all sub-systems and sub-assembles.
-20-
SCHEDULE 3(a)
SERCEL, INC.
GENERAL TERMS AND CONDITIONS OF SALE
1. SCOPE OF APPLICATION. THE PRESENT TERMS AND CONDITIONS (THE "CONDITIONS")
SHALL, TOGETHER WITH SELLER'S PROPOSAL (THE "PROPOSAL"), GOVERN ANY SALE AND
DELIVERY OF GOODS, EQUIPMENT AND MATERIALS (COLLECTIVELY, THE "GOODS") MADE BY
SELLER, UNLESS OTHER ADDITIONAL OR DIFFERENT CONDITIONS HAVE BEEN AGREED UPON IN
WRITING BY SELLER. THEREFORE, THE CONDITIONS AND THE PROPOSAL SHALL BE DEEMED TO
SUPERCEDE ANY OTHER DOCUMENTS AND FORMS RELATING TO BUYER'S ACQUISITION OF THE
GOODS, INCLUDING BUYER'S TERMS AND CONDITIONS OF PURCHASE. BY ORDERING THE
GOODS, BUYER SHALL BE AUTOMATICALLY DEEMED TO HAVE ELECTED TO ENTER INTO AND BE
BOUND BY THESE CONDITIONS AND THE PROPOSAL. ANY MODIFICATION TO THESE CONDITIONS
OR THE PROPOSAL SHALL NOT BE BINDING OR ENFORCEABLE UNLESS AGREED TO IN WRITING
BY SELLER. IN CASE OF DISCREPANCIES BETWEEN THESE CONDITIONS AND THE PROPOSAL,
THE PROPOSAL SHALL PREVAIL. WAIVER BY SELLER OF ANY DEFAULT HEREUNDER SHALL NOT
BE DEEMED A WAIVER BY SELLER OF ANY OTHER OR SUBSEQUENT OR CONCURRENT DEFAULT
WHICH MAY OCCUR. THE RIGHTS OF BUYER HEREUNDER SHALL NEITHER BE ASSIGNABLE NOR
TRANSFERABLE, EXCEPT WITH THE WRITTEN CONSENT OF SELLER.
If these conditions are for costing, fabrication or other services, the
designations "Buyer" and "Seller" are used herein for convenience of reference
only and this contract is not a contract of sale.
2. PRICING. Unless otherwise specified, (a) prices quoted by Seller in the
Proposal are offered for a period of thirty (30) days, and (b) all terms are
F.O.B. Seller's facility in Houston, Texas, net thirty (30) days. A service
charge of 1.5% per month (18%, annual percentage rate) will be added to all
invoices that remain unpaid forty-five (45) days after the invoice date. Seller
reserves the right to make corrections to the Proposal caused by typographical,
clerical or engineering errors, or incomplete information from Buyer. The
Proposal notwithstanding, all orders are subject to the approval of Seller's
Credit Department. If Buyer or the paying entity shall fail to make any payments
in accordance with the term of these Conditions or the Proposal, Seller may at
its sole option, (i) cancel this order as to any undelivered items, or (ii)
defer or withhold shipments or deliveries hereunder (or under any other contract
with Buyer) until Seller's receipt of such payment and all interest due thereon.
3. ADDITIONAL COSTS. Unless otherwise stated herein or in the Proposal, the
price does not include: any freight rate increases and/or added expenses
resulting from compliance with Buyer's shipping instructions whether or not
reflected in Buyer's order; the expenses of intra-city delivery to or from rail
sidings; applicable manufacturer's sales, or value added or other taxes; import
or export duties; the expense of special preparation of export including,
without limitation, export packaging, consular invoices, export declarations,
certificates of origin, insurance in transit or similar items; and inspection
charges incident to inspection by other than Seller's employees or agents. Buyer
will be invoiced for all such items when applicable. Import licenses, foreign
exchange and customs approval required in connection with the purchase, delivery
or payment of the Goods are the sole responsibility and expense of Buyer. Buyer
shall at all times be deemed the exporter/importer of record.
4. DELIVERY. Deliveries shall be considered made when the Goods described
herein, or any part thereof, are either loaded on inland carriers (evidenced by
transportation receipt) or placed in storage, whichever shall be earlier in
time. At such time, title to the Goods and risk of loss shall pass to Buyer.
Seller shall not be responsible for delay in or failure of deliveries resulting
from any cause beyond Seller's reasonable control, including, but without
limitation: a force majeure condition; inability to secure fuel, raw material
supplies or power at current prices or on account of shortage thereof; demands
exceeding Seller's manufacturing or delivery capacity; or any treaty, compact,
agreement, law, act, ordinance, order, rule or regulation issued or agreed to by
an official or governmental agency of any tier or country affecting the conduct
of Seller's business and with which Seller in its sole judgment deems it
advisable to comply, whether or not it may have any duty to do so. Buyer agrees
to inspect at Buyer's expense and risk all Goods immediately upon receipt, and
to refuse acceptance thereof unless any loss or damage in transit is fully noted
in the delivery documents. Seller assumes no responsibility for damage to or
loss of Goods occurring during shipment or delivery, and Buyer agrees to make
all claims for any such damage or loss directly with the carrier.
On direct shipments that do not include installation, Buyer will
receive and install the Goods. It is Buyer's responsibility to inspect the Goods
and to file freight claims. Seller will not be liable for any cost of repairs
and/or replacement of damaged Goods resulting from freight damage.
5. INSTALLATION. In the event that the Proposal provides for Seller's
installation of the Goods, such installation will be made in accordance with the
terms of this paragraph 5. All installations shall be during normal working
hours and Buyer will provide Seller at least twenty-four (24) hours notice of a
change or cancellation in a scheduled installation. If causes outside of
Seller's control, result in a postponement of such installation, the Goods will
be stored until installation can be completed. The Goods, however, will be
considered accepted by Buyer for purposes of invoicing and payment. In such
event, Buyer shall have the right to withhold five percent (5%) of the invoice
amount until the Goods are delivered. A warehousing fee of one percent (1%) of
list price of the Goods per month or part thereof will be charged if the
installation is not completed as a result of causes outside of Seller's control.
Seller's ability to erect or assemble the Goods is dependent upon
jurisdictional agreements between trade unions at the job site. If trade
regulations require employing tradesmen to complete the installation, any
additional cost will be paid by Buyer. Unless otherwise specified in the
Proposal, installation prices are based on non-union labor.
Installation is to include Goods on this order only and does not
include moving or handling of existing equipment, machines, etc. An additional
charge for moving and/or transporting merchandise shall be invoiced by Seller
and paid by Buyer if (1) staging/storage areas provided at the job site are
inconveniently located or are located on another floor from where the work is to
be done, (2) Goods must be transported up or down stairs, (3) the Goods must be
moved due to the progress of other trades, or at Buyer's request, or (4) Seller
is required to move or handle any existing equipment, machines, etc.
Buyer will provide a job site that is clean, clear, and free of debris
prior to installation. Exceptional delivery and installation encumbrances will
result in extra charges. Encumbrances may include inability to locate Buyer's
contact, secure access to the delivery and/or installation site or access to the
freight elevator. The job site shall also be free of the interference of all
trades in the work areas.
Buyer, at Buyers expense, will furnish any necessary electric current,
light, heat, air conditioning, use of at least one dedicated elevator, and
suitable unobstructed dock space and secured staging areas.
6. SOFTWARE LICENSE. To the extent that an operating system or software is
incorporated into any of the Goods, such system or software is not sold but
licensed to Buyer. Except as may be provided otherwise in the Proposal, such
license is a personal, non-exclusive,
non-transferable and perpetual license to use the object code version of the
operating system or software and all written documentation related thereto that
is made available by Seller at its discretion to Buyer solely (i) in connection
with Buyer's use of the Goods, and (ii) for Buyer's internal uses and purposes.
Unless otherwise provided in the Proposal, the license of any such operating
system or software pursuant to the terms of these Conditions shall not include
any obligation on the part of Seller to provide Buyer with any updates of such
operating system or software or any technical support with respect thereto.
7. CANCELLATIONS AND CHANGES. Cancellation or change in any order by Buyer shall
not be effective without notice received., agreed to, and confirmed in writing
by Seller. In the event Seller in its discretion approves Buyer's cancellation
of an order, Buyer agrees to pay a reasonable cancellation charge to Seller.
Seller's prior written consent must be obtained before returning any Goods in
all cases.
8. WARRANTIES. Except with respect to certain Goods that may include a longer
warranty period (which longer warranty period will be specifically described in
the Proposal if such longer warranty period is applicable). Upon the Products'
delivery, Seller warrants Goods of its own manufacture against defects in
materials and workmanship under normal use. Any portion of the Goods not
manufactured by Seller are warranted only to the extent of the original
manufacturer's warranty. Notice of the alleged defect must be given to Seller in
writing with all identifying details including serial number, type of equipment
and date of purchase within thirty (30) days of the discovery of same during the
warranty period. Seller's sole obligation on this warranty shall be, at its
option, to repair or replace or refund the purchase price of any product of part
thereof which proves to be defective as alleged. No allowances will be made for
repairs or alterations affected without specific written authorization from
Seller.
If requested by Seller, such product or part thereof must be promptly
returned to the Seller or the manufacturer as designated by the Seller prior to
any attempted repair, or sent to an authorized service center. All shipping
expenses are to be prepaid by the Buyer. Seller accepts no responsibility for
loss or damage in transit of goods, nor will any warranty claim be considered
unless the returned goods are received intact and undamaged as a result of
shipment. Repaired or replaced Goods returned to Buyer will be shipped F.O.B.
Seller's facility in Houston, Texas.
Seller warrants repaired or replaced parts of its own manufacture
against defects in materials and workmanship under normal use and service for
ninety (90) days or for the remainder of the warranty on the product being
repaired. This warranty applies to the repaired or replaced part and is not
extended to the product or any other component of the product being repaired.
Under the terms of this warranty, Seller shall not be responsible nor
liable for, and Buyer agrees to indemnify and hold Seller harmless from all
liability and expense arising out of or attributable to: (a) any consequential,
collateral or special losses or damages; (b) equipment conditions caused by fair
wear and tear, abnormal conditions of use, accident, neglect, or misuse of said
equipment; (c) labor charges, loss or damage resulting from the supplying of
defective part(s) or improper repairs by unauthorized person(s); or (d) damage
caused by abrasive materials, chemicals, scale deposits, corrosion, lightning,
improper voltage or mishandling.
Seller reserves the right to substitute new equipment and/or improve
the part(s) on any equipment judged defective without further liability. All
repairs and/or services performed by Seller, not adjusted as covered by this
warranty, will be charged in accordance with the current equipment and service
prices.
Any integration of uncertified components, sub-assemblies or assemblies
into Sercel products will render the product warranty null and void.
This warranty is VOID unless the Buyer provides protective storage,
installs and maintains the equipment in accordance with manufacturer's
instructions, and operates the equipment within the published specifications
and/or operational model.
Credit will NOT be allowed nor shipment accepted on any part(s) or
equipment returned unless Seller's prior approval in writing has been obtained
by Buyer.
THIS WARRANTY IS THE SOLE WARRANTY OF SELLER AND ANY OTHER WARRANTIES
EXPRESS, IMPLIED IN LAW OR IMPLIED IN FACT, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR USE, ARE HEREBY SPECIFICALLY EXCLUDED. BY
ACCEPTANCE OF THE GOODS, BUYER WAIVES ALL WARRANTIES, GUARANTEES AND
REPRESENTATIONS, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMTIED TO WARRANTIES OF
MERCHANTABILITY, MATERIALS, WORKMANSHIP, DESIGN AND SUITABILITY FOR A SPECIFIED
OR INTENDED PURPOSE WHETHER ARISING BY OPERATION OF LAW, USAGE IN TRADE, PRIOR
BUSINESS PRACTICE OR OTHERWISE.
No employee of Seller and no agent, dealer or distributor has any
authority to change or enlarge the terms of this warranty to obligate the Seller
to other than strictly the terms of this written warranty.
Seller shall not be liable for any special, indirect or consequential
damages, whether for breach of contract, breach of warranty, tort or otherwise,
which damages are expressly excluded. Additionally, Seller shall not be liable
for any loss, damage or liability incurred by Buyer or by any subsequent user of
the Goods, equipment, documentation or services furnished by Seller, arising out
of the use of such Goods, equipment, documentation or services, whether due to
the negligence of Seller or otherwise. For purposes hereof, the term
"consequential damages" shall be broadly construed, and shall include the
definition set forth in the Texas Business and Commerce Code-Sales, including
by way of example and without limitation damage or loss of other property or
equipment, loss of profits or revenue, repair costs, damages caused by delay in
delivery, and damage or injury to person or property for any reason, including
damage or injury proximately resulting from any breach of any warranty. Seller's
liability, including without limitation any liability for any defect or
malfunction, shall be limited exclusively to the repair or replacement of the
non-conforming Goods or equipment furnished by Seller, or refund of the cost of
Goods provided, as may be applicable, which remedies shall constitute the
Buyer's sole and exclusive remedy and are not cumulative of those provided in
the Texas Business and Commerce Code-Sales. The remedies set forth herein are
exclusive, and the liability of Seller with respect to any contract, performance
or breach thereof, the manufacture, sale, delivery or installation, repair or
use of the equipment or Goods provided under this contract, whether in contract,
in tort, under any warranty or otherwise, shall not exceed the price of the
equipment or goods on which such liability is based. Buyer acknowledges and
agrees that the Goods furnished hereunder do not constitute consumer goods as
that term is defined in the Texas Business and Commerce and Code-Sales.
9. BUYER'S INDEMNITY. BUYER AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND SELLER
AND SELLER'S DIVISIONS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES
AND AGENTS, FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS (FOUNDED OR
UNFOUNDED), LOSSES, DAMAGES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
CONSEQUENTIAL DAMAGES, REASONABLE ATTORNEY'S FEES AND OTHER REASONABLE
PROFESSIONAL'S FEES) FOR PERSONAL INJURIES TO PERSONS (INCLUDING DEATH) AND FOR
LOSS OF, DAMAGE TO OR DESTRUCTION OF PROPERTY ARISING OUT OF OR IN CONNECTION
WITH: (i) BUYER'S SPECIFICATION, DESIGN OR IMPROPER USE OF THE GOODS (II)
BUYER'S OMISSION OR NEGLECT; (III) BUYER'S PERFORMANCE OR EXERCISE OF BUYER'S
RIGHTS, OBLIGATIONS OR DUTIES UNDER THESE CONDITIONS OR THE PROPOSAL;
(IV) BUYER'S INFRINGEMENT OF ANOTHER'S PROPERTY RIGHTS; AND (V) BUYER'S
MISAPPLICATION OR MISUSE OF PROPRIETARY OR OTHER INFORMATION FURNISHED REGARDING
THE GOODS SOLD BY SELLER, WHETHER OR NOT THE GOODS OR INFORMATION ORIGINATED
WITH SELLER.
10. TECHNICAL ASSISTANCE AND ADVICE. Upon Buyer's request and to the extent not
specifically provided for in the Proposal, Seller will endeavor to furnish such
technical advice as Seller has available concerning the installation and use of
the Goods by Buyer. It is expressly understood by the parties that any technical
advice furnished by Seller concerning the installation and use of the Goods that
is not provided for in the Proposal is given gratis, and Seller assumes no
obligation nor shall Seller in any way be liable for the advice given or results
obtained. All such advice is given by Seller and accepted by Buyer completely at
Buyer's sole risk.
11. DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or
relating to these Conditions or the Proposal, or interpretation application,
implementation breach or enforcement which the parties are unable to resolve by
mutual agreement, shall be settled by submission by either party of the
controversy, dispute or claim to binding arbitration in Houston, Texas before a
single arbitrator in accordance with the rules of the American Arbitration
Association then in effect (or similar dispute resolution facilitator if the
American Arbitration Association is then no longer in existence). In any such
arbitration proceeding the parties agree to provide all discovery deemed
necessary by the arbitrator. The decision and award made by the arbitrator shall
be final, conclusive and non-appealable and binding on all parties hereto for
all purposes, and judgment may be entered thereon in any court of competent
jurisdiction. The parties agree that the decision of the arbitrator shall not
include punitive damages and the arbitrator shall be so instructed. The costs of
the arbitration proceeding shall be borne equally by Buyer and Seller.
12. LIMITATIONS; CHOICE OF LAW. Any action by Buyer under or for breach of these
Conditions, the Proposal or the agreement relating thereto must be commenced
within two (2) years after the cause of action has accrued and thereafter is
waived. These terms and conditions shall be interpreted in accordance with, and
the rights and obligations herein of Buyer and Seller shall be governed by the
laws of the State of Texas.
13. COMPLIANCE WITH LAWS. In all of their respective activities pursuant to this
contract, Buyer and Seller shall strictly comply with all laws, decrees,
statutes, rules, regulations, codes and ordinances of any jurisdiction,
including the United States Foreign Corrupt Practices Act (Pub. L. No. 95-213,
94 Stat. 1494) (the "FCPA Act"), together with all amendments to the FCPA Act
which are effective during the term hereof, which may be applicable to such
activities.
SCHEDULE 14 (e)
LIST OF AGENT OR DISTRIBUTORS
Country Agent
Australia Seismic Asia Pacific Pty Lt
Belarus FXC
Bangladesh N&N Corporation
Brazil Business Development Consultancy
India Pan India Ltd
Israel Dorami
Japan KBK
Pakistan Shahzad International
Mexico Nunez y Asociados SA e CV
Russia FXC
Turkey Damas Ticaret Sanayi AS
Turkmenistan Centro Turkmen
Uzbekistan Cenasco