Exhibit 10.17.1
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Agilent Technologies Financing Agreement No. AG000074
Financing Agreement
Page 1 of 2 Lessee: OPLINK COMMUNICATIONS, INC.
March 30, 2000
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Lessor hereby agrees to finance for Lessee and Lessee hereby agrees to finance
with Lessor, subject to the terms of this Financing Agreement ("Agreement"), the
personal property together with all attachment, replacements, parts,
substitutions, additions, software licenses, repairs, support, consulting and
accessories incorporated/affixed, whether or not provided by Agilent("Product")
described in any Lessor Product Schedule ("Schedule") executed by the parties
pursuant to this Agreement.
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1. NON-CANCELLABLE
This Agreement shall be effective as of the date of execution by both parties.
THIS AGREEMENT AND ANY SCHEDULES EXECUTED HEREUNDER CANNOT BE CANCELLED OR
TERMINATED EXCEPT AS EXPRESSLY PROVIDED HEREIN.
2. RENT; ACCEPTANCE OF PRODUCT
Lessee shall pay to Lessor for use of the Product during the initial and any
renewal term of any Schedule, the payment amount specified on said Schedule
("Rent"). Lessee's acceptance will be presumed unless Lessee demonstrates within
14 days after delivery that the Product is not acceptable. Lessor reserves the
right to charge interest on any balance which exceeds 30 days past due. Rent
shall begin to accrue upon delivery and acceptance of Product ("Rent
Commencement Date"). Rent shall accrue whether or not Lessee has received notice
that such payment is due.
3. TAXES; INSURANCE
Lessee agrees to pay to Lessor, when due, all license fees, assessments, sales,
use, personal property, excise, and other taxes except for taxes based on
Lessor's income, now or hereafter imposed on the Product or the possession,
operation or use thereof. Lessee shall obtain and maintain liability insurance
and insurance against loss or damage to the Product. Upon request, Lessee shall
furnish to Lessor a Certificate of Insurance or other evidence of insurance
coverage.
4. LOSS OR DAMAGE
Lessee shall bear the entire risk of loss or damage to the Product from any
cause whatsoever from the date of delivery until it is returned and received by
Lessor. Lessee shall promptly notify Lessor of any loss or damage. No loss or
damage shall relieve Lessee of the obligation to pay Rent or perform any other
obligation hereunder. In the event of loss or damage, Lessee, at Lessor's
option, shall either place the Product in good condition and repair or pay
Lessor the buyout option price set out in the applicable Schedule.
5. INTELLECTUAL PROPERTY RIGHTS
Unless otherwise stated in writing by Lessor, Lessor copyrighted material
(software and printed documentation) may not be copied except for archival
purposes, to replace a defective copy or for program error verification. If
Lessor's software license is included in Product, then Lessor's standard
software terms shall apply. Lessor will defend or settle any claim against
Lessee that an Agilent Product or Support delivered under this Agreement
infringes a patent, utility model, industrial design, copyright, mask work or
trademark in the country where Lessee uses the Agilent Product or receives
Support, provided Lessee: (i) promptly notifies Lessor in writing of the claim;
and (ii) cooperates with Lessor in, and grants Lessor sole authority to control
the defense and any related settlement. Lessor will pay the cost of such defense
and settlement and any costs and damages finally awarded by a court against
Lessee. If such a claim is made, Lessor may procure the right for Lessee to
continue using the Agilent Product, may modify the Product or replace it. If use
of the Agilent Product is enjoined by a court and Lessor determines that none of
these alternatives is reasonably available, Lessor will take back the Agilent
Product and refund its depreciated value if a purchase option has been
exercised. Lessor has not obligation for any claim of infringement arising from:
(i) Lessor's compliance with any designs, specifications or instructions of
Lessee; (ii) modification of the Agilent Product by Lessee or a third party;
(iii) use of the Agilent Product in a way not specified by Lessor; or (iv) use
of the Agilent Product with Non-Agilent products not supplied by Lessor. These
terms state the entire liability of Lessor for claims of infringements.
6. IDENTIFICATION; PERSONAL PROPERTY
If Lessee is in compliance with the terms of this Agreement and applicable
Schedules, Lessee shall have quiet enjoyment of the Product. No other right,
title or interest shall pass to Lessee. Lessor, at its own expense, may require
markings to be affixed to or placed on the Product to give notice of Lessor's
ownership thereof. Both parties hereby confirm their intent that the Product
shall always remain and be deemed personal property even though said Product may
hereafter become attached or affixed to real property.
7. USE; RELOCATION; ASSIGNMENT
Lessee will operate the Product in accordance with manufacturer's manuals and
instructions, by competent and duly qualified personnel only, in accordance with
applicable governmental regulations, if any, and for business, medical,
scientific, or commercial purposes only, and not for personal use. Lessee agrees
not to sell, assign, sublet, hypothecate or otherwise encumber or suffer a lien
upon or against any interest in this Agreement, any Schedule hereunder, or the
Product. Lessee agrees not to alter the Product or remove the Product from its
original location without Lessor's prior written consent. Relocation by Lessor's
support personnel shall not constitute Lessor's consent.
This Agreement, and the obligations of Lessee to make payments hereunder, may be
assigned by Lessor and reassigned in whole or in part to one or more Assignees
at any time subsequent to its execution, without the necessity of obtaining the
consent of Lessee. Lessor agrees to give notice of assignment to Lessee and upon
receipt of such notice Lessee agrees to make all payments to the Assignee
designated in the assignment. Lessee agrees to execute all documents, including
Notices of Assignment, which may be reasonably request and provided by Lessor or
its Assignee in order to protect their interest in the Product and in this
Agreement.
8. SUPPORT; REPAIRS
If Lessee finances Support provided by Lessor the term of the financed support
is non-cancellable. Lessee acknowledges that the finance period and Support
period may not correspond. If no order for Support is made, Lessee, at its own
costs and expense, shall keep the Product in good repair, condition and working
order.
9. WARRANTY
For Agilent Product, Lessee shall have the benefit of applicable manufacturer's
warranties which are normally furnished to purchasers of identical product
manufactured by Agilent. THIS WARRANTY IS EXCLUSIVE AND NO OTHER WARRANTY,
WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. LESSOR SPECIFICALLY DISCLAIMS
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. NON-AGILENT PRODUCT; NON-AGILENT VENDOR
Lessee acknowledges that it has selected the Vendor and Product supplied by
Vendor. LESSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED WHATSOEVER WITH RESPECT TO
VENDOR'S PRODUCT, AND AS TO LESSOR, LESSEE ACQUIRES THE PRODUCT "AS IS". If
Vendor's Product is unsatisfactory for any reason, Lessee shall make any claim
on
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account thereof solely against Vendor and shall, nevertheless, pay lessor all
payments due under the Agreement.
It is Lessee's sole responsibility to acquire updates or other necessary
documentation to Vendor's Product. If Lessee should forfeit any rights granted
to Lessee, or if Vendor terminates any rights granted to Lessee, payment shall
continue uninterrupted to Lessor. Lessee agrees that it will not assert any
defense, deduction, abatement, counterclaim or set-off against Lessor. Lessee
understands and agrees that neither Vendor nor any employee, agent, or
representative of Vendor is an agent of Lessor. No agent of Vendor is authorized
to waive or alter any terms or conditions of this Agreement, and no
representations as to the Vendor's Product or any other matter by Vendor shall
in any way affect Lessee's obligations under this Agreement.
11. RETURN OF POLICY
Upon expiration or termination, Lessee, at its own risk and expense, shall have
the Product packed for shipment in accordance with manufacturer's specifications
and shall immediately return the Product to Lessor in the same condition as when
delivered, ordinary wear and tear excepted, freight prepaid and insured, to
Lessor's remarketing facility.
12. LIMITATION OF LIABILITY
For Agilent Product, Lessor will be liable for damage to tangible property per
incident up to the greater of $300,000 or the actual charges paid to Lessor for
the Product that is the subject of the claim, and for damages for bodily injury
or death, to the extent that all such damages are determined by a court of
competent jurisdiction to have been directly caused by a defective Product
financed hereunder. Lessor will not be liable for performance delays or for
non-performance, due to causes beyond its reasonable control. For any material
breach of Support services by Agilent, Lessee's remedy and Lessor's liability
will be limited to a refund of the related Support charges paid during the
period of breach, up to a maximum of 12 months. THE REMEDIES PROVIDED HEREIN ARE
LESSEE'S SOLE AND EXCLUSIVE REMEDIES. IN NO EVENT SHALL LESSOR BE LIABLE FOR
LOSS OF DATA OR FOR DIRECT, INDIRECT, SPECIAL INCIDENTAL, CONSEQUENTIAL
(INCLUDING LOST PROFIT), OR OTHER DAMAGE WHETHER BASED IN CONTRACT, TORT OR ANY
OTHER LEGAL THEORY.
13. EVENTS OF DEFAULT; REMEDIES
If Lessee fails to pay Rent when due and fails to cure such breach within ten
(10) days of notice of same, or in the event of any other breach of this
Agreement, any Schedule hereunder, or any other Agreement between the parties
hereto, or if any credit or other information submitted to Lessor is false or
misleading in any material respect, or in the event of any act of insolvency or
bankruptcy by or against Lessee, Lessor may, at its option exercise any one or
more of the following remedies: (i) declare all sums due and to become due as
immediately due and payable; (ii) enter upon the premises where the Product is
located and take immediate possession of and remove the same; (iii) sell any or
all of the Product at public or private sale or otherwise dispose of, hold, use
or lease to others said Product; (iv) exercise any other right or remedy which
may be available to Lessor under applicable law, including the right to recover
damages or the breach hereof. No remedy referred to herein is intended to be
exclusive but each shall be cumulative and in addition to any of the remedies
referred to above or otherwise available to Lessor at law or in equity. No
express or implied waived by Lessor of any default or a waiver of any of
Lessor's rights. If any action is brought by either party to enforce this
Agreement or to protect its interest in the Product, the losing party agrees to
pay the costs thereof including reasonable attorneys' fees and other costs of
collection.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of California. Nothing herein shall be deemed to preclude or prevent
Lessor from bringing any action or claim to enforce the provisions of this
Agreement in any appropriate state or forum.
15. FINANCING STATEMENTS
Lessee hereby grants and Lessor reserves a Purchase Money Security Interest in
the Product financed hereunder and any proceeds thereof to secure payment of any
balance due hereunder. Lessee hereby nominates and appoints Lessor as its
attorney-in-fact for the sole purpose of executing on Lessee's behalf financing
statements (and any appropriate amendments thereto) under the provisions of the
Uniform Commercial Code for protective purposes, related to this Agreement and
any Schedule hereunder.
16. MISCELLANEOUS
(a) This Agreement, together with any Schedules hereunder, and any referenced
addenda, exhibits or attachments shall constitute the entire understanding
between the parties and supersedes any previous communications, representations,
or agreements, whether oral or written; (b) any notice or demands made hereunder
shall be in writing and by regular mail or facsimile; (c) No change or
modification of any term or condition hereof shall be valid unless made in
writing and signed by an authorized representative of each party; (d) Any
provision of this Agreement which is unenforceable in any jurisdiction shall as
to that jurisdiction only be ineffective to the extent of such unenforceability
without invalidating the remaining provisions hereof.
By execution hereof, the signer on behalf of Lessee hereby certifies that s/he
has read this Agreement and the referenced Exhibits, and that s/he is duly
authorized by Lessee to execute this Agreement.
LESSOR: AGILENT TECHNOLOGIES LESSEE: OPLINK COMMUNICATIONS, INC.
MARCH 30, 2000
By: /s/ Xxxxxxxxx Xxxx By: /s/ Xxxxxxxx Xx
------------------------- --------------------------------
Name: Xxxxxxxxx Xxxx Name: Xxxxxxxx Xx
------------------------- --------------------------------
Title: N.A. Finance Mgr. Date: 6/29/00 Title: VP of MFG. Date: 3/30/00
---------------------- --------------- ------------------------------ ---------
(SECOND LESSEE AUTHORIZATION, IF NEEDED)
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
---------------------------------
Title: VP - Finance & Admin. Date: 3/30/00
--------------------------------- ---------
2
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Agilent Technologies Financing Agreement No. AR1158A
Product Schedule & ---------
Payment Agreement - Page 1 of 2 March 30, 2000
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COMPANY (1) Full Legal Name: Oplink Communications, Inc.
INFORMATION: STREET ADDRESS: 3475 N. First St.
CITY: San Xxxx COUNTY:
STATE: CA ZIP CODE: 95134-1803
PLEASE USE THE FULL LEGAL NAME OF
YOUR COMPANY FEDERAL TAX I.D. #:
TAX STATUS CONTACT: Xxxx Xxxxx PHONE: (000) 000-0000
(ATTACH DOCUMENTATION IF APPLICABLE) |X| Taxable |_| Direct Pay Permit |_| Tax exempt
SALES/USE TAX |X| Paid Upfront |_| Billed Upfront (financed) |_| Billed with each payment
PERSONAL PROPERTY TAX |_| Include in rate |_| Xxxx as additional |X| Lessee pays directly |_| Lessee is exempt
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STREET ADDRESS: Same As Above
PRODUCT LOCATION (2) CITY: COUNTY:
(IF OTHER THAN ABOVE) STATE: ZIP CODE:
STREET ADDRESS: Same As Above
BILLING ADDRESS CITY: COUNTY:
(IF OTHER THAN ABOVE) STATE: ZIP CODE:
CONTACT: PHONE:
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THIS SECTION BELOW IS TO BE COMPLETED BY YOUR AGILENT TECHNOLOGIES SALES TEAM.
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OUR (3)
AGREEMENT |X| Master Lease # AG000074
INCLUDES: --------
THE ITEMS CHECKED ARE INCORPORATED AND |_| First Year Support Coverage |_| Multi Year Support Coverage
BY THIS REFERENCE MADE A PART OF THIS
AGREEMENT |_| Early Buyout Schedule dated |_|
------------------------------------------
|-| |-|
----------------------------------- ------------------------------------------
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THE (4) The products listed on Agilent quotation #0003-49510 for $[ * ] and 0003-49492 FOR
PRODUCT $[ * ] ARE HEREBY INCORPORATED BY THIS REFERENCE. THIS OFFER IS CONTINGENT UPON CREDIT
SCHEDULE: APPROVAL BY LESSOR AND LESSOR RESERVES THE RIGHT TO CHANGE OR REVOKE THIS OFFER BASED
ON CREDIT APPROVAL GRANTED, IF ANY.
PLEASE ATTACH Net Price - Hardware $[ * ]
EQUIPMENT QUOTE -----------
OR COMPLETE THIS Net Price - Software $[ * ]
SCHEDULE -----------
Total Net Price - Product $[ * ]
[GRAPHIC] -----------
Support $[ * ]
-----------
Sales Tax $[ * ]
-----------
Downpayment $[ * ]
-----------
Net Balance to Finance $[ * ]
-----------
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LEASE (5) TERM NUMBER OF PAYMENTS PAYMENT FREQUENCY PAYMENT AMOUNT
PAYMENTS: (IN MONTHS) (PLUS APPLICABLE TAXES)
36 36 MONTHLY $[ * ]
----------- ------------------ ---------------- -----------------------
----------- ------------------ ---------------- -----------------------
* CONFIDENTIAL TREATMENT REQUESTED
3
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Agilent Technologies March 30, 2000
Product Schedule &
Payment Agreement - Page 2 of 2 Financing Agreement No. AR1158A
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(6) THIS AGREEMENT |X| Lease |_| Installment |_|
IS FOR AN: --------------
|_| Rental |_| Easy Rent |_|
--------------
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(7)
1. NON-CANCELLABLE: THIS AGREEMENT CANNOT BE CANCELLED OR TERMINATED EXCEPT AS
EXPRESSLY PROVIDED FOR HEREIN.
2. TERM. The term of this Schedule and Agreement for each Product covered
hereunder shall commence upon the date Lessor executes the same and shall expire
60 months following the "Rent Commencement Date" as defined in paragraph 2 of
the Financing Agreement, or on the expiration of any applicable renewal period.
However, if Lessee has executed this Schedule and the Product ordered has been
delivered prior to Lessor's execution thereof, the term of this Schedule and
Agreement shall be effective on the date of execution by Lessee.
3. INTEREST. [Applicable only to Installment sales and leases with $1.00 buy out
options]. The interest to be paid under this Schedule and Payment Agreement is
$[ * ].
4. PURCHASE, RENEWAL, RETURN OPTIONS: Provided that no event of default has
occurred and is continuing to occur at the end of the initial non-cancellable
lease term or subsequent renewal term, Lessee shall have the option to exercise
the following options by providing Lessor with at least sixty (60) days prior
written notice of its intent to:
(i) purchase all or some of the Product covered by this Agreement for: (CHECK
ONE)
|_| The then fair market value of each Product to be purchased. Lessor will
advise Lessee in writing as to the then applicable Fair Market Value for each
Product to be purchased;
OR
|X| One Dollar ($1.00) for each Product (available only for State and Local
Government Leases or with special approval);
OR
|_| Fixed Purchase Option of _____% of the original amount to finance of the
Product to be purchased (less discounts if applicable) plus any accrued late
charges and taxes applicable to the transfer of this Product. (ii) Except for
EasyRent, renew all or some of the Equipment covered by this Agreement for an
additional non-cancellable period of twelve (12) months for the:
|Net Price of Equipment to be Renewed | | Original |
|--------------------------------------------| x |Monthly x 75%|
| Total Net Price of Equipment | | Payment |
(iii) renew all or some of the Product covered by this Agreement on a
month-to-month basis for the:
|Net Price of Equipment to be Renewed | | Original |
|--------------------------------------------| x | Monthly |
| Total Net Price of Equipment | | Payment |
(iv) return in accordance with the referenced Financing Agreement any Product
covered by this Schedule that is not purchased or renewed.
If Lessee fails to notify Lessor of its intentions at least sixty (60) days
prior to the expiration of this Schedule, it is agreed that Lessee shall renew
all of the Product covered hereunder in accordance with option (iii) above.
During the renewal period, Lessee may purchase all or some of the Product
covered hereunder for the price computed in accordance with option (i) above by
providing Lessor Sixty (60) days prior written notice.
If Lessee has selected a fixed-price purchase option, during the renewal period,
such purchase option shall be re-determined based on the total lease term.
IF LESSEE EXERCISES ITS OPTION TO PURCHASE THE PRODUCT, IT IS SOLD IN IT'S THEN
`AS IS' CONDITION AT ITS LOCATION WHEN THE OPTION IS EXERCISED.
5. EARLY BUYOUT OPTION: At its option beginning with the fourth (4th) month
following the Rent Commencement Date, Lessee may purchase all of the Product in
its then "as is" condition at its location when the option is exercised. Except
for leases with Fair Market Value purchase options, the purchase price shall be
determine from the referenced Early Buyout Schedule. The early buyout purchase
price for leases with Fair Market Value purchase options shall be such that
Lessor's projected yield from the lease shall be preserved.
6. PRODUCT UPGRADE/ADD-ON: At its option but subject to Lessor's prior written
consent, Lessee may enhance or upgrade those items covered under this Schedule
by leasing additional or upgrade Product on a then currently marketed Lessor
upgrade program. Such additional or upgrade equipment shall be scheduled on a
new Product Schedule and Payment Agreement.
7. UPGRADE CREDIT: If this Schedule reflects an upgrade credit for Product to be
returned by Lessee, Lessee agrees to return such Equipment within thirty (30)
days of delivery and acceptance of the new Product acquired hereunder to
Lessor's remarketing facility.
8. FINANCING STATEMENT: Lessee hereby nominates and appoints Lessor as its
attorney-in-fact for the sole purpose of executing on Lessee's behalf financing
statements (and any appropriate amendments thereto) under the provisions of the
Uniform Commercial Code for protective purposes.
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By execution hereof, the signer certifies that s/he has read this agreement and
that s/he is duly authorized to execute this agreement on behalf of Lessee.
LESSOR: AGILENT TECHNOLOGIES LESSEE: OPLINK COMMUNICATIONS, INC.
By:/S/ XXXXXXXXX XXXX By: /S/ XXXXXXXX XX
---------------------------------- ------------------------------------
Name:XXXXXXXXX XXXX Name: XXXXXXXX XX
-------------------------------- ----------------------------------
Title:N.A. FINANCE MGR. Date:6/29/00 Title: VP OF MFG. Date:3/30/00
----------------- ------- --------------- -------
(SECOND LESSEE AUTHORIZATION, IF NEEDED)
By: /S/ XXXX XXXXX
------------------------------------
Name: XXXX XXXXX
---------------------------------
Title: VP--FINANCE & ADMIN. Date:3/30/00
--------------------- ------------
5
AGILENT TECHNOLOGIES, INC.
0000 XXXXX XXXXXXXX XXXXXXXXX
XX 24EN-4-14
XXXXXXXXX, XXXXXXXX 00000
AGILENT TECHNOLOGIES
INNOVATING THE HP WAY
June 7, 2000
Xx. Xxxx Xxxxx
Oplink Communications, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Re: Agilent Lease Agreement #4124-07275
Amendment #1
Dear Xx. Xxxxx:
Your financing agreement has been amended to reflect the following changes:
DELETE:
Quote #0003-49510 dated 3/29/00 in the amount of $[ * ]
Quote #0003-49492 dated 5/30/00 in the amount of $[ * ]
TOTALING: $[ * ]
ADD:
Quote #2003-495,100 dated 5/30/00 in the amount of $[ * ]
Quote #2003-49492 dated 5/30/00 in the amount of $[ * ]
TOTALING: $[ * ]
CHANGE FROM CHANGE TO
Amount to Finance: $[ * ] $[ * ]
Monthly Payment: $[ * ] $[ * ]
As this decreases your amount to finance and monthly payment, it is not
necessary to sign and return this amendment. All other terms and conditions
remain unchanged. If you have any questions, please feel free to give me a call
at (000) 000-0000.
Sincerely,
AGILENT TECHNOLOGIES
Agilent Finance
/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Financing Services Representative
* CONFIDENTIAL TREATMENT REQUESTED
6
AGILENT TECHNOLOGIES, INC.
0000 XXXXX XXXXXXXX XXXXXXXXX
XX 24EN-4-14
XXXXXXXXX, XXXXXXXX 00000
AGILENT TECHNOLOGIES
INNOVATING THE HP WAY
June 28, 2000
Xx. Xxxx Xxxxx
Oplink Communications, Inc.
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Re: Lease Agreement Order 4121-07275
Lease Agreement AR1158A
Purchase Order 201350-00
Amendment #2
Dear Xx. Xxxxx:
Due to a delay in shipment of some of the items you have ordered, your financing
agreement has been split into four schedules. Schedule A will xxxx for items
already shipped. Schedule B, C and D will xxxx for the remaining items once
shipment has occurred. Please refer to the changes below:
DELETE FROM SCHEDULE A AND ADD TO SCHEDULE B:
PRODUCT OPTION QTY DESCRIPTION PRICE
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
---------------
TOTAL $[ * ]
* CONFIDENTIAL TREATMENT REQUESTED
7
DELETE FROM SCHEDULE A AND ADD TO SCHEDULE C:
PRODUCT OPTION QTY DESCRIPTION PRICE
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
---------------
TOTAL $[ * ]
DELETE FROM SCHEDULE A AND ADD TO SCHEDULE D:
PRODUCT OPTION QTY DESCRIPTION PRICE
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
* CONFIDENTIAL TREATMENT REQUESTED
8
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] [ * ] $[ * ]
[ * ] [ * ] [ * ] $[ * ]
---------------
TOTAL $[ * ]
RESULT:
PREVIOUS NEW NEW NEW NEW
SCHEDULE A SCHEDULE A SCHEDULE B SCHEDULE C SCHEDULE D
Amount to Finance: $[ * ] $[ * ] $[ * ] $[ * ] $[ * ]
Monthly Payment: $[ * ] $[ * ] $[ * ] $[ * ] $[ * ]
As this will result in no change to the total Amount to Finance or Total Monthly
Payment, it is not necessary to sign and return this document. All other terms
and conditions of this contract remain unchanged. If you have any questions
please call me at 000 000-0000.
Sincerely,
AGILENT TECHNOLOGIES
Customer Finance Center
/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Financing Services Representative
* CONFIDENTIAL TREATMENT REQUESTED
9
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Agilent Technologies Financing Agreement No. AR1596A
Product Schedule &
Payment Agreement - Page 1 of 2
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COMPANY (1) FULL LEGAL NAME: Oplink Communications, Inc.
INFORMATION:
STREET ADDRESS: 3475 N. First St.
PLEASE USE THE FULL LEGAL NAME OF CITY: San Xxxx COUNTY:
YOUR COMPANY
STATE: CA ZIP CODE: 95134
TAX STATUS
FEDERAL TAX I.D. #:
(ATTACH DOCUMENTATION IF APPLICABLE)
CONTACT: Xxxxxx Demiashkina PHONE: (000) 000-0000
SALES/USE TAX
|X| Taxable |_| Direct Pay Permit |_| Tax exempt
PERSONAL PROPERTY TAX
|X| Paid Upfront |_| Billed Upfront (financed) |_| Billed with each payment
|_| Include in rate |_| Xxxx as additional |X| Lessee pays directly
|_| Lessee is exempt
----------------------------------------- -----------------------------------------------------------------------------------
STREET ADDRESS: Same As Above
PRODUCT LOCATION (2) CITY: COUNTY:
(IF OTHER THAN ABOVE)
STATE: ZIP CODE:
BILLING ADDRESS
(IF OTHER THAN ABOVE) STREET ADDRESS: Same As Above
CITY: COUNTY:
STATE: ZIP CODE:
CONTACT: PHONE:
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THIS SECTION BELOW IS TO BE COMPLETED BY YOUR AGILENT TECHNOLOGIES SALES TEAM.
OUR (3)
AGREEMENT |X| Master Lease # AG000074
INCLUDES:
THE ITEMS CHECKED ARE INCORPORATED AND |_| First Year Support Coverage |_| Multi Year Support Coverage
BY THIS REFERENCE MADE A PART OF THIS
AGREEMENT |_| Early Buyout Schedule dated |_|
------------------------------
|_| |_|
--------------------------- ------------------------------
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THE (4) THE PRODUCTS LISTED ON AGILENT TECHNOLOGIES QUOTE #2003-55771 DATED 5/1/00 FOR $[ * ] &
PRODUCT AGILENT TECHNOLOGIES QUOTE #1003-55682 DATED 5/1/00 FOR $[ * ] TOTALING $[ * ] ARE HEREBY
SCHEDULE: INCORPORATED BY THIS REFERENCE. THIS OFFER IS CONTINGENT UPON CREDIT APPROVAL BY LESSOR
AND LESSOR RESERVES THE RIGHT TO CHANGE OR REVOKE THIS OFFER BASED ON CREDIT APPROVAL
GRANTED, IF ANY.
Agilent Technologies Order #4124-07855
PLEASE ATTACH Net Price - Hardware $[ * ]
EQUIPMENT QUOTE Net Price - Software $[ * ]
OR COMPLETE THIS Total Net Price - Product $[ * ]
SCHEDULE Refinance per addendum $[ * ]
Sales Tax $[ * ]
Downpayment $[ * ]
Net Balance to Finance $[ * ]
-----------------------------------------------------------------------------------------------------------------------------
LEASE (5) TERM NUMBER OF PAYMENTS PAYMENT FREQUENCY PAYMENT AMOUNT
PAYMENTS: (IN MONTHS) (PLUS APPLICABLE
TAXES)
36 36 MONTHLY $[ * ]
---------- ---------------- --------------- ---------------
---------- ---------------- --------------- ---------------
* CONFIDENTIAL TREATMENT REQUESTED
10
--------------------------------------------------------------------------------
Agilent Technologies Financing Agreement No. AR1596A
Product Schedule &
Payment Agreement - Page 2 of 2
--------------------------------------------------------------------------------
THIS AGREEMENT |X| Lease |_| Installment |_|
IS FOR AN: -----------
(6) |_| Rental |_| Easy Rent |_|
-----------
--------------------------------------------------------------------------------
(7)
1. NON-CANCELLABLE: THIS AGREEMENT CANNOT BE CANCELLED OR TERMINATED EXCEPT AS
EXPRESSLY PROVIDED FOR HEREIN.
2. TERM. The term of this Schedule and Agreement for each Product covered
hereunder shall commence upon the date Lessor executes the same and shall expire
36 months following the "Rent Commencement Date" as defined in paragraph 2 of
the Financing Agreement, or on the expiration of any applicable renewal period.
However, if Lessee has executed this Schedule and the Product ordered has been
delivered prior to Lessor's execution thereof, the term of this Schedule and
Agreement shall be effective on the date of execution by Lessee.
3. INTEREST. [Applicable only to Installment sales and leases with $1.00 buy out
options]. The interest to be paid under this Schedule and Payment Agreement is
$[ * ].
4. PURCHASE, RENEWAL, RETURN OPTIONS: Provided that no event of default has
occurred and is continuing to occur at the end of the initial non-cancellable
lease term or subsequent renewal term, Lessee shall have the option to exercise
the following options by providing Lessor with at least sixty (60) days prior
written notice of its intent to:
(i) purchase all or some of the Product covered
by this Agreement for:
(CHECK ONE)
|_| The then fair market value of each
Product to be purchased. Lessor will advise Lessee in writing as to the then
applicable Fair Market Value for each Product to be purchased;
OR
|X| One Dollar ($1.00) for each Product (available only for State and Local
Government Leases or with special approval);
(8) OR
|_| Fixed Purchase Option of _____% of the original amount to finance of the
Product to be purchased (less discounts if applicable) plus any accrued late
charges and taxes applicable to the transfer of this Product.
(ii) Except for EasyRent, renew all or some of the Equipment covered by this
Agreement for an additional non-cancellable period of twelve (12) months for
the:
|Net Price of Equipment to be Renewed | | Original |
|--------------------------------------------| x |Monthly x 75%|
| Total Net Price of Equipment | | Payment |
(iii) renew all or some of the Product covered by this Agreement on a
month-to-month basis for the:
|Net Price of Equipment to be Renewed | | Original |
|--------------------------------------------| x | Monthly |
| Total Net Price of Equipment | | Payment |
(iv) return in accordance with the referenced Financing Agreement any Product
covered by this Schedule that is not purchased or renewed. If Lessee fails to
notify Lessor of its intentions at least sixty (60) days prior to the expiration
of this Schedule, it is agreed that Lessee shall renew all of the Product
covered hereunder in accordance with option (iii) above.
During the renewal period, Lessee may purchase all or some of the Product
covered hereunder for the price computed in accordance with option (i) above by
providing Lessor Sixty (60) days prior written notice.
If Lessee has selected a fixed-price purchase option, during the renewal period,
such purchase option shall be re-determined based on the total lease term.
IF LESSEE EXERCISES ITS OPTION TO PURCHASE THE PRODUCT, IT IS SOLD IN IT'S THEN
`AS IS' CONDITION AT ITS LOCATION WHEN THE OPTION IS EXERCISED.
5. EARLY BUYOUT OPTION: At its option beginning with the fourth (4th) month
following the Rent Commencement Date, Lessee may purchase all of the Product in
its then "as is" condition at its location when the option is exercised. Except
for leases with Fair Market Value purchase options, the purchase price shall be
determine from the referenced Early Buyout Schedule. The early buyout purchase
price for leases with Fair Market Value purchase options shall be such that
Lessor's projected yield from the lease shall be preserved.
6. PRODUCT UPGRADE/ADD-ON: At its option but subject to Lessor's prior written
consent, Lessee may enhance or upgrade those items covered under this Schedule
by leasing additional or upgrade Product on a then currently marketed Lessor
upgrade program. Such additional or upgrade equipment shall be scheduled on a
new Product Schedule and Payment Agreement.
7. UPGRADE CREDIT: If this Schedule reflects an upgrade credit for Product to be
returned by Lessee, Lessee agrees to return such Equipment within thirty (30)
days of delivery and acceptance of the new Product acquired hereunder to
Lessor's remarketing facility.
8. FINANCING STATEMENT: Lessee hereby nominates and appoints Lessor as its
attorney-in-fact for the sole purpose of executing on Lessee's behalf financing
statements (and any appropriate amendments thereto) under the provisions of the
Uniform Commercial Code for protective purposes.
* CONFIDENTIAL TREATMENT REQUESTED
11
Quote Number 2002-80699
Oplink Communications, Inc.
Quote Date: APR 23, 1999
Quotation Last Revised:04-23-99 18:40
Page 2 of 3
-------------------------------------------------------------------------------
By execution hereof, the signer certifies that s/he has read this agreement
and that s/he is duly authorized to execute this agreement on behalf of
Lessee.
LESSOR: AGILENT TECHNOLOGIES LESSEE: OPLINK COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxx
---------------------------------- -------------------------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxx Xxxxx
---------------------------------- -------------------------------------------------
Title: Customer Finance Center Mgr Date: 7/12/00 Title: VP - Finance & Admin. Date: 5/31/00
-------------------------------- --------------- ------------------------------ ---------
(SECOND LESSEE AUTHORIZATION, IF NEEDED)
By:
------------------------------------------------
Name:
------------------------------------------------
Title: Date:
----------------------------- ---------
12
--------------------------------------------------------------------------------
Agilent Technologies Financing Agreement No. AR1773A
Product Schedule & -------
Payment Agreement - Page 1 of 2 March 30, 2000
--------------------------------------------------------------------------------
COMPANY (1) Full Legal Name: Oplink Communications, Inc.
INFORMATION: STREET ADDRESS: 3475 N. First St.
CITY: San Xxxx COUNTY:
STATE: CA ZIP CODE: 95134
PLEASE USE THE FULL LEGAL NAME OF
YOUR COMPANY FEDERAL TAX I.D. #:
TAX STATUS CONTACT: Xxxx Xxxxx PHONE: (000) 000-0000
(ATTACH DOCUMENTATION IF APPLICABLE) |X| Taxable |_| Direct Pay Permit |_| Tax exempt
SALES/USE TAX |X| Paid Upfront |_| Billed Upfront (financed) |_| Billed with each payment
PERSONAL PROPERTY TAX |_| Include in rate |_| Xxxx as additional |X| Lessee pays directly |_| Lessee is exempt
-----------------------------------------------------------------------------------------------------------------------------------
STREET ADDRESS: Same As Above
PRODUCT LOCATION (2) CITY: COUNTY:
(IF OTHER THAN ABOVE) STATE: ZIP CODE:
STREET ADDRESS: Same As Above
BILLING ADDRESS CITY: COUNTY:
(IF OTHER THAN ABOVE) STATE: ZIP CODE:
CONTACT: PHONE:
--------------------------------------------------------------------------------
THIS SECTION BELOW IS TO BE COMPLETED BY YOUR AGILENT TECHNOLOGIES SALES TEAM.
--------------------------------------------------------------------------------
OUR (3)
AGREEMENT |X| Master Lease # AG000074
INCLUDES: --------
THE ITEMS CHECKED ARE INCORPORATED AND |_| First Year Support Coverage |_| Multi Year Support Coverage
BY THIS REFERENCE MADE A PART OF THIS
AGREEMENT |_| Early Buyout Schedule dated |_|
------------------------------------------
|-| |-|
----------------------------------- ------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
THE (4) *SEE ATTACHMENT FOR DETAIL
PRODUCT
SCHEDULE: Net Price - Hardware $[ * ]
-----------
PLEASE ATTACH Net Price - Software $[ * ]
EQUIPMENT QUOTE -----------
OR COMPLETE THIS Total Net Price - Product $[ * ]
SCHEDULE -----------
Support $[ * ]
[GRAPHIC] -----------
Sales Tax $[ * ]
-----------
Downpayment $[ * ]
-----------
Net Balance to Finance $[ * ]
-----------
-----------------------------------------------------------------------------------------------------------------------------------
LEASE (5) TERM NUMBER OF PAYMENTS PAYMENT FREQUENCY PAYMENT AMOUNT
PAYMENTS: (IN MONTHS) (PLUS APPLICABLE TAXES)
36 36 MONTHLY $[ * ]
----------- ------------------ ---------------- -----------------------
----------- ------------------ ---------------- -----------------------
* CONFIDENTIAL TREATMENT REQUESTED
13
--------------------------------------------------------------------------------
Agilent Technologies March 30, 2000
Product Schedule &
Payment Agreement - Page 2 of 2 Financing Agreement No. AR1773A
-------
--------------------------------------------------------------------------------
(6) THIS AGREEMENT |X| Lease |_| Installment |_|
IS FOR AN: --------------
|_| Rental |_| Easy Rent |_|
--------------
--------------------------------------------------------------------------------
(7) 1. NON-CANCELLABLE: THIS AGREEMENT CANNOT BE CANCELLED OR TERMINATED EXCEPT
AS EXPRESSLY PROVIDED FOR HEREIN.
2. TERM. The term of this Schedule and Agreement for each Product covered
hereunder shall commence upon the date Lessor executes the same and shall expire
36 months following the "Rent Commencement Date" as defined in paragraph 2 of
the Financing Agreement, or on the expiration of any applicable renewal period.
However, if Lessee has executed this Schedule and the Product ordered has been
delivered prior to Lessor's execution thereof, the term of this Schedule and
Agreement shall be effective on the date of execution by Lessee.
3. INTEREST. [Applicable only to Installment sales and leases with $1.00 buy out
options]. The interest to be paid under this Schedule and Payment Agreement is
$[ * ].
4. PURCHASE, RENEWAL, RETURN OPTIONS: Provided that no event of default has
occurred and is continuing to occur at the end of the initial non-cancellable
lease term or subsequent renewal term, Lessee shall have the option to exercise
the following options by providing Lessor with at least sixty (60) days prior
written notice of its intent to:
(i) purchase all or some of the Product covered by this Agreement for:
(CHECK ONE)
|_| The then fair market value of each Product to be purchased. Lessor will
advise Lessee in writing as to the then applicable Fair Market Value for each
Product to be purchased;
OR
|X| One Dollar ($1.00) for each Product (available only for State and Local
Government Leases or with special approval);
OR
|_| Fixed Purchase Option of _____% of the original amount to finance of the
Product to be purchased (less discounts if applicable) plus any accrued late
charges and taxes applicable to the transfer of this Product.
(ii) Except for EasyRent, renew all or some of the Equipment covered by this
Agreement for an additional non-cancellable period of twelve (12) months for
the:
|Net Price of Equipment to be Renewed| | Original |
|------------------------------------| x |Monthly x 75%|
| Total Net Price of Equipment | | Payment |
(iii) renew all or some of the Product covered by this Agreement on a
month-to-month basis for the:
|Net Price of Equipment to be Renewed| |Original|
|------------------------------------| x | Monthly|
| Total Net Price of Equipment | | Payment|
(iv) return in accordance with the referenced Financing Agreement any Product
covered by this Schedule that is not purchased or renewed.
If Lessee fails to notify Lessor of its intentions at least sixty (60) days
prior to the expiration of this Schedule, it is agreed that Lessee shall renew
all of the Product covered hereunder in accordance with option (iii) above.
During the renewal period, Lessee may purchase all or some of the Product
covered hereunder for the price computed in accordance with option (i) above by
providing Lessor Sixty (60) days prior written notice.
If Lessee has selected a fixed-price purchase option, during the renewal period,
such purchase option shall be re-determined based on the total lease term.
IF LESSEE EXERCISES ITS OPTION TO PURCHASE THE PRODUCT, IT IS SOLD IN IT'S THEN
`AS IS' CONDITION AT ITS LOCATION WHEN THE OPTION IS EXERCISED.
5. EARLY BUYOUT OPTION: At its option beginning with the fourth (4th) month
following the Rent Commencement Date, Lessee may purchase all of the Product in
its then "as is" condition at its location when the option is exercised. Except
for leases with Fair Market Value purchase options, the purchase price shall be
determine from the referenced Early Buyout Schedule. The early buyout purchase
price for leases with Fair Market Value purchase options shall be such that
Lessor's projected yield from the lease shall be preserved.
6. PRODUCT UPGRADE/ADD-ON: At its option but subject to Lessor's prior written
consent, Lessee may enhance or upgrade those items covered under this Schedule
by leasing additional or upgrade Product on a then currently marketed Lessor
upgrade program. Such additional or upgrade equipment shall be scheduled on a
new Product Schedule and Payment Agreement.
7. UPGRADE CREDIT: If this Schedule reflects an upgrade credit for Product to be
returned by Lessee, Lessee agrees to return such Equipment within thirty (30)
days of delivery and acceptance of the new Product acquired hereunder to
Lessor's remarketing facility.
8. FINANCING STATEMENT: Lessee hereby nominates and appoints Lessor as its
attorney-in-fact for the sole purpose of executing on Lessee's behalf financing
statements (and any appropriate amendments thereto) under the provisions of the
Uniform Commercial Code for protective purposes.
* CONFIDENTIAL TREATMENT REQUESTED
14
--------------------------------------------------------------------------------
(8) By execution hereof, the signer certifies that s/he has read this agreement
and that s/he is duly authorized to execute this agreement on behalf of Lessee.
LESSOR: AGILENT TECHNOLOGIES LESSEE: OPLINK COMMUNICATIONS, INC.
By:/S/ XXXX X. XXXXXXXX By: /S/ XXXX XXXXX
---------------------------------- ------------------------------------
Name:/S/ XXXX X. XXXXXXXX Name: XXXX XXXXX
-------------------------------- ----------------------------------
Title: CUSTOMER FINANCE
CENTER MGR. Date:7/12/00 Title: VP--FINANCE & ADMIN. Date:6/29/00
---------------- ------- --------------------- -------
(SECOND LESSEE AUTHORIZATION, IF NEEDED)
By:
------------------------------------
Name:
---------------------------------
Title: Date:
-------------------- ------------
15
--------------------------------------------------------------------------------
Agilent Technologies Financing Agreement No. AR1773A
Order List
--------------------------------------------------------------------------------
XXXXXX X.X. # XXXXX # / XXXXX # XXXXXX XXXXXX
000000 1003-56743 $[ * ]
201324 2003-59530 $[ * ]
201400 24EG-10826-001 $[ * ]
201499 5003-62544 $[ * ]
201500 0003-62479 $[ * ]
201501 0003-62484 $[ * ]
201502 0003-62484 $[ * ]
201503 0003-62483 $[ * ]
201539 0003-63210 $[ * ]
Total $[ * ]
* All products listed on Agilent Technologies order #'s or quote #'s are hereby
incorporated by this reference. This offer is contingent upon credit approval by
Lessor or Lessor reserves the right to change or revoke this offer based on
credit approval granted, if any.
--------------------------------------------------------------------------------
By execution hereof, the signer certifies that s/he has read this agreement and
that s/he is duly authorized to execute this agreement on behalf of Lessee.
LESSOR: AGILENT TECHNOLOGIES LESSEE: OPLINK COMMUNICATIONS, INC.
By:/S/ XXXX X. XXXXXXXX By: /S/ XXXX XXXXX
---------------------------------- ------------------------------------
Name:/S/ XXXX X. XXXXXXXX Name: XXXX XXXXX
-------------------------------- ----------------------------------
Title: CUSTOMER FINANCE
CENTER MGR. Date:7/12/00 Title: VP--FINANCE & ADMIN. Date:6/29/00
---------------- ------- --------------------- -------
(SECOND LESSEE AUTHORIZATION, IF NEEDED)
By:
------------------------------------
Name:
---------------------------------
Title: Date:
-------------------- ------------
16
