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EXHIBIT 10.3
EQUIPMENT SUBLEASE
THIS EQUIPMENT SUBLEASE (this "Sublease") is made and entered into as of
the 28 day of March, 2000, by and between XXXXXXXX.XXX,INC., a Delaware
corporation ("goracing"), ACTION PERFORMANCE COMPANIES, INC., an Arizona
corporation ("Action") (Action and goracing are hereinafter referred to each as
a "Sublessor" and collectively as "Sublessors") and INTEGRATED INFORMATION
SYSTEMS, INC., a Delaware corporation, ("Sublessee").
RECITALS
A. Action entered into a certain Master Equipment Lease with General
Electric Capital Corporation, a New York corporation ("GE Capital") dated as of
December 22, 1998 including Computer Equipment Schedule No. 1 dated December
22, 1998, Computer Equipment Schedule No. 2 dated February 18, 1999 and
Addendum to Schedules No. 001 and 002 to Master Lease Agreement dated as of
February 18, 1999 (collectively the "Action Master Equipment Lease"), whereby
Action leased certain equipment listed on Schedule A hereto (the "Action
Equipment") from GE Capital.
B. goracing entered into a certain Master Equipment Lease with GE
Capital dated as of August 9, 1999 including Computer Equipment Schedule No. 01
dated October 1, 1999, Computer Equipment Schedule No. 02 dated November 5,
1999, Furniture Schedule No. 003 dated December 29, 1999, and Furniture
Schedule No. 004 dated January 24, 2000 (collectively the "goracing Master
Equipment Lease"), whereby goracing leased certain equipment listed on Schedule
B hereto (the "goracing Equipment") from GE Capital. (The Action Equipment and
the goracing Equipment are hereinafter collectively referred to as the
"Equipment" and the Action Master Equipment Lease and the goracing Master
Equipment Lease are hereinafter each referred to as a "Base Equipment Lease"
and collectively referred to as the "Base Equipment Leases.")
C. The Equipment is located at and used in connection with the occupancy
of the premises located at 0000 Xxxxx Xxxxxxx Xxxxx, Xxxxx, Xxxxxxx (the
"Premises").
D. On even date herewith, Action and Sublessee intend to enter into a
Sublease Agreement (the "Hohokam Sublease") whereby Sublessee will sublease from
Action a portion of the Premises.
E. In connection with Hohokam Sublease, Sublessee desires to sublease
the Equipment from Sublessors and Sublessors desire to sublease the Equipment
to Sublessee, on the terms and conditions herein set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Sublessors and Sublessee hereby
agree as follows:
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1. GRANT.
(a) BY ACTION. Action hereby subleases its rights and obligations
in the Action Master Equipment Lease to Sublessee, and Sublessee hereby
subleases Action's rights and obligations in the Action Master Equipment Lease
from Action, on the terms and conditions herein set forth.
(b) BY GORACING. goracing hereby subleases its rights and
obligations in the goracing Master Equipment Lease to Sublessee, and Sublessee
hereby subleases goracing's rights and obligations in the goracing Master
Equipment Lease from goracing, on the terms and conditions herein set forth.
2. INCORPORATION OF BASE EQUIPMENT LEASE; EXCEPTIONS. Each and every
provision of the Base Equipment Leases is incorporated herein by this
reference. Sublessors shall sublet their respective interests in the Equipment
to Sublessee under the same rental, terms and conditions to which Sublessors
agreed as the "Lessee" in the respective Base Equipment Leases, except as
otherwise herein provided. Wherever the term "Lessee" appears in the Base
Equipment Leases, it shall be deemed to refer to Sublessee. Sublessee shall
render performance to Lessor as required under all of the terms of the Base
Equipment Leases. Sublessee shall be entitled under this Sublease to all of the
rights and benefits that the Sublessors, as Lessee, enjoy under the Base
Equipment Leases, except as otherwise herein provided. Sublessee hereby
expressly agrees to be bound to all terms and conditions contained in the Base
Equipment Leases.
3. TERM.
(a) ACTION MASTER EQUIPMENT LEASE. Sublessee's rights and
obligations under this Sublease with respect to the Action Master Equipment
Lease shall commence as of the date first set forth above and shall expire
according to the terms of the Action Master Equipment Lease.
(b) GORACING MASTER EQUIPMENT LEASE. Sublessee's rights and
obligations under this Sublease with respect to the goracing Master Equipment
Lease shall commence as of the date first set forth above and shall expire
according to the terms of the goracing Master Equipment Lease.
4. BASE RENT AND OTHER CHARGES
(a) GENERALLY. Beginning with payments due after the date first
written above, the Sublessee shall pay directly to Lessor the monthly rent due
under Base Equipment Leases as well as any additional payments due under the
Base Equipment Leases, including but not limited to all taxes, fees and
assessments due, imposed, assessed or levied against any Equipment (each a
"Payment" and collectively the "Payments"), in the amount required by the terms
of the Base Equipment Leases which shall be due and payable to Lessor on or
before the date such Payment is due under the Base Equipment Leases. Sublessee
shall provide Sublessors with written proof of the timely payment of each
Payment within five (5) business days after the delivery of such Payment.
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(b) CONTINGENCY. To the extent that Lessor objects to the payment
structure agreed to in Section 4(a) hereto, the parties agree that Sublessee
shall deliver all Payments to goracing no later than five (5) business days
before the date such Payment is due to the Lessor under the Base Equipment
Leases. All Payments delivered under this Section 4(b) shall be made payable
jointly to the lesser and goracing. To the extent such Payment has been tendered
from Sublessee to goracing, pursuant to the terms of this Section 4(b), goracing
shall provide Sublessee with written proof of the timely payment to Landlord of
such Payment within five (5) business days after the due date.
5. REPORTS.
(a) LIENS. If any tax or other lien shall attach to any Equipment,
Sublessee will notify Sublessors in writing, within ten (10) days after
Sublessee becomes aware of the tax or lien. The notice shall include the full
particulars of the tax or lien and the location of such Equipment on the date of
the notice.
(b) FINANCIAL STATEMENTS. Sublessee shall deliver to Sublessors,
Sublessee's complete financial statements, certified by a recognized firm of
certified public accountants within ninety (90) days of the close of each fiscal
year of Sublessee.
(c) INSPECTION. Sublessors may inspect any portion of the Equipment
during normal business hours after giving the Sublessee reasonable prior notice.
(d) RELOCATION. Sublessee will keep the Equipment at the Premises and
will give Sublessors prior written notice of any relocation of any portion of
the Equipment.
(e) LOSS OR DAMAGE. If any Equipment is lost or damaged (where the
estimated repair costs would exceed the greater of ten percent (10%) of the
original equipment cost (as listed in the Base Equipment Leases) or ten thousand
dollars ($10,000), or is otherwise involved in an accident causing personal
injury or property damage, Sublessee will promptly and fully report the event to
Sublessors in writing.
(f) OFFICER'S CERTIFICATE. Sublessee will furnish a certificate of an
authorized officer of Sublessee stating that he has reviewed the activities of
Sublessee and that, to the best of his knowledge, there exists no default or
event which with notice or lapse of time (or both) would become such a default
within thirty (30) days after any request by Sublessors.
6. INSURANCE. Sublessee shall maintain insurance on the Equipment as
stipulated in Section 9 of the Base Equipment Leases. Sublessee shall name
Sublessors as an additional insured on such insurance policy(ies).
7. DEFAULT AND REMEDIES.
(a) DEFAULT. Sublessors may in writing declare this Sublease in
default if: (i) Lessor may currently declare Sublessee in default in accordance
with the provisions of Section 11 of either of the Base Equipment Leases, (ii)
Sublessee breaches any of its obligations under this Sublease and fails to cure
that breach within ten (10) days after written notice from the
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Sublessors; or (iii) any representation or warranty made in connection with
this Sublease shall be false or misleading in any material respect.
(b) REMEDIES. After a default under this Sublease, at the request of the
respective Sublessor, Subleasee shall comply with the provisions of Section
10(a) of the respective Base Equipment Lease. Sublessee hereby authorizes
Sublessor to peacefully enter any premises where any Equipment subject to the
respective Base Equipment Lease may be and take possession of the Equipment.
Sublessee shall immediately pay to the respective Sublessor without further
demand as liquidated damages for loss of bargain and not as a penalty, the
Stipulated Loss Value of the Equipment (as defined in the respective Base
Equipment Lease and calculated as of the rent payment date prior to the
declaration of default) and all rents and other sums then due under this
Sublease. Sublessors may terminate this Sublease as to any or all of the
Equipment. A termination shall occur only upon written notice by Sublessors to
Sublessee and only as to the specific Equipment specified in any such notice.
Sublessors may, but shall not be required to, lease, otherwise dispose of or
keep idle all or part of the Equipment. Sublessors may use Sublessee's premises
for a reasonable period of time for any or all of the purposes stated above
without liability for rent, costs, damages or otherwise. The proceeds of such
lease or other disposition, if any, shall be applied in the following order of
priorities:(i) to pay all of Sublessors costs, charges and expenses incurred in
taking, removing, holding, repairing, leasing or otherwise disposing of
Equipment; (ii) to the extent not previously paid by Sublessor, to pay Lessor
all sums due from Sublessee under this Sublease; (iii) to reimburse Sublessee
any sums previously paid by Sublessor as liquidated damages; and (iv) any
surplus shall be retained by the respective Sublessor. Sublessee shall
immediately pay any deficiency in (i) and (ii) above.
(c) REMEDIES CUMULATIVE. The foregoing remedies are cumulative, and any
or all thereof may be exercised instead of or in addition to each other or any
additional remedies under this Sublease, at law, in equity, or under statute.
Sublessee shall pay Sublessors' actual attorneys' fees incurred in connection
with the enforcement, assertion, defense or preservation of Sublessors' rights
and remedies under this Sublease, or if prohibited by law, such lesser sum as
may be permitted. Waiver of any default shall not be a waiver of any other or
subsequent default.
8. INDEMNIFICATION. Sublessee hereby agrees to indemnify Sublessors,
their agents, employees, successors and assigns from and against any and all
losses, damages, penalties, injuries, claims, actions and suits, including
legal expenses, of whatsoever kind and nature arising out of or relating to the
Equipment or this Sublease, except to the extent the losses, damages,
penalties, injuries, claims, actions, suits or expenses result from Sublessors'
gross negligence or willful misconduct.
9. REPRESENTATIONS AND WARRANTIES OF SUBLESSEE. To induce the Sublessors
to enter into this Sublease, Sublessee makes the following representations and
warranties to Sublessor:
(a) POWER AND CAPACITY. Sublessee has adequate power and capacity
to enter into, and perform under, this Sublease. Sublessee is duly qualified to
do business wherever necessary to carry on its present business and operations,
including the jurisdiction(s) where the Equipment is or is to be located.
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(b) BINDING AGREEMENT. This Sublease has been duly authorized,
executed and delivered by Sublessee and constitutes a valid, legal and binding
agreement, enforceable in accordance with its terms.
(c) NO VIOLATION. The entry into and performance by Sublessee of
this Sublease will not: (i) violate any judgment, order, law or regulation
applicable to Sublessee or any provision of Sublessee's Certificate of
Incorporation or bylaws; or (ii) result in any breach of, constitute a default
under or result in the creation of any lien, charge, security interest or other
encumbrance upon any Equipment pursuant to any indenture, mortgage, deed or
trust, bank loan or credit agreement or other instrument (other than this
Sublease along with the Base Equipment Leases) to which Sublessee is a party.
(d) NO PROCEEDINGS. There are no suits or proceedings pending or
threatened in court or before any commission, board or other administrative
agency against or affecting Sublessee, which if decided against Sublessee will
have a material adverse effect on the ability of Sublessee to fulfill its
obligations under this Agreement.
(e) GOOD STANDING. Sublessee is and will be at all times validly
existing and in good standing under the laws of the State of its incorporation
(specified in the first sentence of this Agreement).
(f) USE OF EQUIPMENT. The Equipment will at all times be used for
commercial or business purposes.
(g) "AS IS" CONDITION. Sublessee acknowledges that the Equipment is
being subleased "as is" and that the Sublessors make no representation with
regard to the Equipment's condition or future use or performance.
10. REPRESENTATIONS AND WARRANTIES OF SUBLESSORS. To induce the Sublessee
to enter into this Sublease, Sublessors make the following representations and
warranties to Sublessee:
(a) POWER AND CAPACITY. Sublessors have adequate power and capacity
to enter into, and perform under, this Sublease. Sublessors are duly qualified
to do business wherever necessary to carry on their present business and
operations, including the jurisdiction(s) where the Equipment is located.
(b) BINDING AGREEMENT. This Sublease has been duly authorized,
executed and delivered by Sublessors and constitutes a valid, legal, and
binding agreement, enforceable in accordance with its terms.
(c) NO VIOLATION. The entry into and performance by Sublessors of
this Sublease will not: (i) violate any judgment order, law or regulation
applicable to Sublessors or any provision of Sublessors' Certificate of
Incorporation or bylaws; or (ii) result in any breach of, constitute a default
under or result in the creation of any lien, charge, security interest or other
encumbrance upon any Equipment pursuant to any indenture, mortgage, deed of
trust, bank loan or credit agreement or other instrument to which Sublessors
are a party.
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(d) NO PROCEEDINGS. There are no suits or proceedings pending or
threatened in court or before any commission, board or other administrative
agency against or affecting Sublessors, which if decided against Sublessors
will have a material adverse effect on the ability of Sublessors to fulfill
their obligations under this Agreement.
(e) DEFAULT; TERMINATION; CONSENT. There is no default existing
under the terms of the Base Equipment Leases or event which, with the passage
of time or the giving of notice, would become a default thereunder. There is no
pending termination under either Base Equipment Lease. The "purchase option"
under each of the Base Equipment Leases is presently existing and has not been
modified or surrendered by the Lessee thereunder. The prior written consent of
the Lessor to the Base Equipment Leases has been made and received by
Sublessors.
(f) DISPUTES. There are no outstanding, and to the best of
Sublessors' knowledge, no threatened, disputes or disagreements with respect to
the Equipment.
(g) INTELLECTUAL PROPERTY. All intellectual property rights relating
to the Equipment, to the best of Sublessors' knowledge, are currently in
compliance with all legal requirements, are valid and enforceable, and have not
been challenged or threatened in any way as infringing upon the rights of any
third party.
(h) TAXES. There are no taxes or assessment of taxes of Sublessors'
that are or may become payable by Sublessee or chargeable as a lien or
encumbrance against the Equipment listed on Exhibits A and B, including as a
result of this transaction.
11. LATE PAYMENT CHARGE. If any amount due to Lessors is not received in
full by Lessors on or before five (5) days after the date any such payment is
due, then Sublessee shall pay to the respective Sublessor a late payment charge
in the amount of ten percent (10%) of the amount then due. This provision shall
not be construed to allow or permit Sublessee to make payments after the due
date, or to waive any of Sublessors' rights in connection with late payments
made by Sublessee. Sublessee shall also reimburse the respective Sublessor
for, and indemnify and hold the respective Sublessor harmless for, from and
against, any late charges, penalties, interest or other charges incurred by
such Sublessor under the Base Equipment Leases as a result of any late payment
by Sublessee.
12. NOTICES. All notices of communication required or permitted hereunder
or with regard to the Base Equipment Leases shall be in writing and may be
given by depositing the same in the United States mail, addressed to the party
to be notified, postage prepaid and registered or certified with return receipt
requested, or by delivering the same in person to an officer or agent of such
party.
(i) If to Sublessors, addressed to them at:
Action Performance Companies, Inc./xxxxxxxx.xxx,inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
FAX: (000) 000-0000
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With a copy to:
Xxxxxxxxx Xxxxxxx, LLP
0 X. Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
(ii) If to Sublessee, addressed to them at:
Integrated Information Systems, Inc.
0000 X. Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxx & Xxxxxx, LLP
One Arizona Center
000 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxxxxxx, Esq.
Fax: (000) 000-0000
13. TERMINATION OF GRANT.
(a) ACTION MASTER EQUIPMENT LEASE. In the event of the termination of
the Action Master Equipment Lease under its own terms or under any provision
thereof that authorizes such terminations, this Sublease shall simultaneously
and automatically terminate with respect to the grant contained in Section 1
hereto only. Such termination will in no way affect any of Sublessors' rights
under this Sublease, including but not limited to, Sublessors' rights contained
in Sections 7 and 8 hereto, which shall survive.
(b) GORACING MASTER EQUIPMENT LEASE. In the event of the termination
of the goracing Master Equipment Lease under its own terms or under any
provision thereof that authorizes such terminations, this Sublease shall
simultaneously and automatically terminate with respect to the grant contained
in Section 1 hereto only. Such termination will in no way affect any of
Sublessors' rights under this Sublease, including but not limited to,
Sublessors' rights contained in Sections 7 and 8 hereto, which shall survive.
14. GENERAL PROVISIONS.
(a) ENTIRE AGREEMENT. This Agreement contains the entire agreement
and understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof.
(b) CONTROLLING LAW. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement, shall be governed by and
construed,
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interpreted and enforced in accordance with the laws of the State of Arizona,
notwithstanding any Arizona or other conflict-of-law provision to the contrary.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS SUBLEASE AS OF THE DATE
FIRST ABOVE WRITTEN.
SUBLESSORS:
xxxxxxxx.xxx, inc., a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Its:
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Action Performance Companies, Inc.,
an Arizona corporation
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Its: Chief Financial Officer
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SUBLESSEE:
Integrated Information Systems, Inc.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Its: Vice President
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SCHEDULE A
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COMPUTER EQUIPMENT SCHEDULE
SCHEDULE NO. 1
DATED THIS 12/22/98
TO MASTER LEASE AGREEMENT
DATED AS OF 12/22/98
Lessor & Mailing Address: Lessee & Mailing Address:
General Electric Capital Corporation Action Performance Companies, Inc.
0000 X. Xxxxxxx Xx., Xxxxx 0000 0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
This Schedule is executed pursuant to, and incorporates by reference the terms
and conditions of, and capitalized terms not defined herein shall have the
meanings assigned to them in, the Master Lease Agreement identified above
("AGREEMENT" said Agreement and this Schedule being collectively referred to as
"LEASE"). This Schedule, incorporating by reference the Agreement, constitutes a
separate instrument of lease.
A. EQUIPMENT: Subject to the terms and conditions of the Lease, Lessor agrees to
Lease to Lessee the Equipment described below (the "EQUIPMENT").
NUMBER CAPITALIZED
OF UNITS LESSORS COST MANUFACTURER SERIAL NUMBER MODEL AND TYPE OF EQUIPMENT
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Various Computer Equipment as further described on the attached Exhibit A
B. FINANCIAL TERMS
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1. Advance Rent (if any): $41,869.35 5. Basic Term Commencement Date:
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2. Capitalized Lessor's Cost: $1,500,191.73 6. Lessee Federal Tax ID No.: 00-0000000
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3. Basic Term (No. of Months): 36 Months. 7. Last Delivery Date: December 31, 1998
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4. Basic Term Lease Rate Factor: 2.790933% 8. Daily Lease Rate Factor: 0.093031%
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9. First Termination Date: Thirty-six (36) months after the Basic Term
Commencement Date.
10. Interim Rent: For the period from and including the Lease Commencement
Date to but not including the Basic Term Commencement Date ("Interim
Period"), Lessee shall pay as rent ("Interim Rent") for each unit of
Equipment, the product of the Daily Lease Rate Factor times the
Capitalized Lessor's Cost of such unit times the number of days in the
Interim Period. Interim Rent shall be due on N/A.
11. Basic Term Rent. Commencing on 12/22/98 and on the same day of each month
thereafter (each, a "Rent Payment Date") during the Basic Term, Lessee
shall pay as rent ("Basic Term Rent") the product of the Basic Term Lease
Rate Factor times the Capitalized Lessor's Cost of all Equipment on this
Schedule.
C. TAX BENEFITS Depreciation Deductions:
1. Depreciation method is the 200% declining balance method, switching to
straight line method for the 1st taxable year for which using the straight
line method with respect to the adjusted basis as of the beginning of such
year will yield a larger allowance.
2. Recovery Period: Five (5) Years.
3. Basis: 100% of Capitalized Lessors Cost.
D. PROPERTY TAX
APPLICABLE TO EQUIPMENT LOCATED IN PHOENIX, MARICOPA COUNTY, ARIZONA;
HARRISBURG, CABARRUS COUNTY, NORTH CAROLINA; ATLANTA, XXXXXX COUNTY, GEORGIA:
Lessee agrees that it will not list any of such Equipment for property tax
purposes or report any property tax assessed against such Equipment until
otherwise directed in writing by Lessor. Upon receipt of any property tax
xxxx pertaining to such Equipment from the appropriate taxing authority,
Lessor will pay such tax and will invoice Lessee for the expense. Upon
receipt of such invoice, Lessee will promptly reimburse Lessor for such
expense.
PROPERTY TAX NOT APPLICABLE ON EQUIPMENT LOCATED IN CANTON, NORFOLK COUNTY,
MASSACHUSETTS AND WALTHAM, MIDDLESEX COUNTY, MASSACHUSETTS.
Lessor may notify Lessee (and Lessee agrees to follow such notification)
regarding any changes in property tax reporting and payment responsibilities.
E. ARTICLE 2A NOTICE
IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 2A OF THE UNIFORM COMMERCIAL
CODE AS ADOPTED IN THE APPLICABLE STATE, LESSOR HEREBY MAKES THE FOLLOWING
DISCLOSURES TO LESSEE PRIOR TO EXECUTION OF THE LEASE
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The MAINTENANCE Section of the Lease is amended by adding the following as
the third sentence in subsection (a):
Lessee agrees that upon return of the Equipment, it will comply with all
original manufacturer's performance specifications for new Equipment without
expense to Lessor. Lessee shall, if requested by Lessor, obtain a certificate or
service report from the manufacturer attesting to such condition.
Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to (i) the existence or
the continuation of the existence, of an Environmental Emission (including,
without limitation, a sudden or non-sudden accidental or non-accidental
Environmental Emission), of, or exposure to, any substance, chemical, material,
pollutant, Contaminant, odor or audible noise or other release or emission in,
into or onto the environment (including, without limitation, the air, ground,
water or any surface) at, in, by, from or related to any Equipment, (ii) the
environmental aspect of the transportation, storage, treatment or disposal of
materials in connection with the operation of any Equipment or (iii) the
violation, or alleged violation of any statutes, ordinances, orders, rules
regulation, permits or licenses of, by or from any governmental authority,
agency or court relating to environmental matters connected with any Equipment.
(b) "Affiliate" shall refer, with respect to any given Person, to any
Person that directly or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, such Person.
(c) "Contaminant" shall refer to those substances which are regulated by or
form the basis of liability under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls ("PCBs"), and radioactive
substances, or other material or substance which has in the past or could in the
future constitute a health, safety or environmental hazard to any Person,
property or natural resources.
(d) "Environmental Claim" shall refer to any accusation, allegation, notice
of violation, claim, demand, abatement or other order on direction (conditional
or otherwise) by any governmental authority or any Person for personal injury
(including sickness, disease or death), tangible or intangible property damage,
damage to the environment or other adverse effects on the environment, or for
fines, penalties or restrictions, resulting from or based upon any Adverse
Environmental Condition.
(e) "Environmental Emission" shall refer to any actual or threatened
release, spill, emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the indoor or outdoor
environment, or into or out of any of the Equipment, including, without
limitation, the movement of any Contaminant or other substance through or in the
air, soil, surface water, groundwater or property.
(f) "Environmental Law" shall mean any federal, foreign, state or local
law, rule or regulation pertaining to the protection of the environment,
including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA") (42 U.S.C. Section 9601 et seq.), the
Hazardous Material Transportation Act (49 U.S.C. Section 1801 et seq.), the
Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the
Clean Air Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. Section 1361 et seq.), and the Occupational Safety and
Health Act (19 U.S.C. Section 651 et seq.), as these laws have been amended or
supplemented, and any analogous foreign, federal, state or local statutes, and
the regulations promulgated pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost, damage, liability,
deficiency, fine, penalty or expense (including, without limitation, reasonable
attorneys' fees, engineering and other professional or expert fees),
investigation, removal, cleanup and remedial costs (voluntarily or involuntarily
incurred) and damages to, loss of the use of or decrease in value of the
Equipment arising out of or related to any Adverse Environmental Condition.
(h) "Person" shall include any individual, partnership, corporation, trust,
unincorporated organization, government or department or agency thereof and any
other entity.
Lessee shall fully and promptly pay, perform, discharge, defend, indemnify
and hold harmless Lessor and its Affiliates, successors and assigns, directors,
officers, employees and agents from and against any Environmental Claim or
Environmental Loss.
The provisions of this Schedule shall survive any expiration or termination
of the Lease and shall be enforceable by lessor, its successors and assigns.
RETURN CONDITIONS: In addition to the provisions provided for in the RETURN
OF EQUIPMENT Section of the Lease, and provided that the Lessee has not elected
its option to purchase the Equipment, Lessee shall, at its expense:
(a) Upon the request of Lessor, Lessee shall no later than ninety (90) days
prior to the expiration or other termination of the Lease provide:
(i) a detailed inventory of the Equipment (including the model and
serial number of each major component thereof), including, without limitation,
all internal circuit boards, module boards, and software features;
(ii) a complete and current set of all manuals, equipment
configuration, setup and operation diagrams, maintenance records and other data
that may be reasonably requested by Lessor concerning the configuration and
operation of the Equipment; and
(iii) a certification of the manufacturer or of a maintenance provider
acceptable to Lessor that the Equipment (1) has been tested and is operating in
accordance with manufacturers specifications (together with a report detailing
the condition of the Equipment), the results of such test(s) and inspection(s)
and all repairs that were performed as a result of such test(s) and
inspection(s) and (2) that the Equipment qualifies for the manufacturers used
equipment maintenance program.
(b) Upon the request of Lessor, Lessee shall, no later than sixty (60) days
prior to the expiration or other termination of the Lease, make the Equipment
available for on-site operational inspection by persons designated by the Lessor
who shall be duly qualified to inspect the Equipment in its operational
environment.
(c) All Equipment shall be cleaned and treated with respect to rust,
corrosion and appearance in accordance with manufacturers recommendations and
consistent with the best practices of dealers in used equipment similar to the
Equipment; shall have no Lessee installed markings or labels which are not
necessary for the operation, maintenance or repair of the Equipment; and shall
be in compliance with all applicable governmental
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EXHIBIT A
TO
SCHEDULE NO. 1
DATED THIS 12/22/98
TO MASTER LEASE AGREEMENT
DATED AS OF 12/22/98
Number Capitalized
of Units Lessors Cost Manufacturer Serial Number Model and Type of Equipment
-------- ------------ ------------ ------------- ---------------------------
$245,235,10/Lot Cisco Systems Various Computer Equipment Consisting of:
(3) 69050114, 69052391, Series 5500 Bundle
69054144
(1) 5500 Chassis
(1) 5500 AC Power Supply
10912989, 11439326, 10913323 (1) 24 Port 10/100 Switch Module
10847310, 10906765, 10903430 (1) 5K Supervisory Module III with NFFC
(3) 5500 Secondary AC Power Supply
(6) AC Power Cord
(3) 5500 Flash Image
(1) 10850800 5K Supervisory Module III with NFFC
(4) 10102210, 10102234 100BaseFX Multimode Fiber Uplink
10102226, 10830093
(2) 09697952, 09699090 12 port 100 FX Module
(2) 11439767, 10920040 Catalyst Route Switch Module
(2) FAA0246S00R, FAA0246U026 RSM IP w/VIP
(13) 11430748, 11433490, 11433708, 24 Port 10/100 Module
11433727, 11469859, 11431399,
11456112, 11456153, 11458321,
11433696, 11457407, 11458093,
11458101
(2) 09989931, 09989987 FDDI Module (MMF/MIC)
(1) Switchprobe 1 port 100TX Full Duplex
(1) 11301119 CWSI for Windows NT
(2) FAA0246SOOR, FAA0246UO2K 2924 Chassis w/22p10/100TX, 2p100FX
all including all standard attachments,
accessions and accessories
Equipment immediately listed above is located at: 0000 Xxxx Xxxxxxxx Xxxx,
Xxxxxxx, Xxxxxxxx Xxxxxx, XX 00000
Number Capitalized
of Units Lessors Cost Manufacturer Serial Number Model and Type of Equipment
-------- ------------ ------------ ------------- ---------------------------
$156,600.75/Lot Cisco Systems Various Computer Equipment consisting of:
(6) 364074248, 364074315, Cisco 3640 Router w/RPS
364074247, 364074246,
364074314, 364074243
(6) 3600 Series IOS IP/PLUS Feature Set
(6) 3600 Series 4-16 MB Flash Upgrade
(5) 10257113, 10518379, 10257182, 3600 Series 4 port Serial Network Module
10519034, 1057311
(7) 11265601, 11265868, 11265888, 3600 Series 1 port FE-TX Network Module
11265870, 11265814, 11265867,
11265828
(10) V3.5, DTE, Male, 10'
(4) CAH02360194, CAH02360188 600 Watt Redundant Power System
CAH02370226, CAH02360189
(6) RPS Redundant Cable
(9) FAA0246YOOA, FAA0245ZOON, 2924 Chassis w/24p10/100 TX
FAA0246XOOB, FAA0246ZOO6,
FAA0246XOOD, FAA0246XOOG,
FAA0246XOO4, FAA0245WOOP,
FAA0246XOOA
(2) 22202450090, 22202450118 Standard Local Director, 45 Mhps
(1) Local Director Failover Cable
(3) 18008319, 18008317, 18008318 PIX Firewall 520 w/2NIC's
(3) 10/100 Interface Card for PIX
200.00 Freight
all including all standard attachments
accessions and accessories
Equipment immediately listed above is located at: 0000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxx Xxxxxx, XX 00000
13
NUMBER CAPITALIZED
OF UNITS LESSORS COSTS MANUFACTURER SERIAL NUMBER MODEL AND TYPE OF EQUIPMENT
-------- ------------- ------------ --------------- ----------------------------
$964,519.57/lot Various Compaq and Microsoft Computer
Equipment consisting of:
(42) Compaq CPU to switch cable
(10) 42U rack for Proliant
(49) Netellignet ethernet
(3) 15U rack blanking panel kit
(4) rack stabalizing feet
(4) fibre host adapter
(8) 32 MB DIMM memory
(8) 64 MB DIMM memory
(31) 64 MB DIMM memory
(8) Switch box 8 port
(3) D844BSN10576 Proliant storage system
D844BSN10208
D844BSN10475
(12) XEON 400 1M SLOTZ
(14) 18.2 GB plug ultra-wide
(9) Proliant 1850R
(2) Firewall enterprise encryption
(10) Netelligent cable management
(4) 256 MB DIMM kit
(8) Proliant 850R model 6/200 H
(8) V55 15" Monitor
(30) SMART-2/DH PCI array
(8) rack mount keyboard
(4) CPU to switch cable 20FT
(4) INTERNAL 35/70-GB DLT drive
(1) SD838BR440013 DLT tape array II
(10) Monitor/utility shelf kit
(8) keyboard drawer kit
(2) D842HUQ10022 fibre channel array rack
D842HUQ10024
(2) fibre channel storage hub
(4) Proliant 7000 PD-400 1MB
(2) Proliant 1600R PII 400
(16) 4.3GB SCSI ultra-wide pluggable
(96) 9.1GB SCSI ultra-wide
(14) 18.2GB SCSI ultra-wide
(31) 64MB registered SDRAM
(25) 128MB registered SDRAM DIMM
(6) 128MB registered SDRAM DIMM
(2) P2-400 512K SLOT1 processor
(31) P2-400 512K SLOT1 processor
(84) 4.3GB NHP ultra-wide hard drive
(30) 256MB registered SDRAMM DIMM
(31) Proliant 1850R PII 400
(4) Microsoft SQL Server enterprise
(10) WIN NT Server V4.0 enterprise
(2) Exchange Server 25 client
(34) MS Windows NT Server w/option
(6) Site server commerce V3.0
(12) Site Server V3.0 10 clients
(2) Site Server V3.0 10 clients
(5) Site Server V3.0 10 clients
889.31 Freight
and all including all attachments,
accessions and accessories
Equipment immediately listed above is located at: 000 Xxxxxx Xx.,
Xxxxxxx, Xxxxxxxxx Xxxxxx, XX 00000
2
14
NUMBER CAPITALIZED
OF UNITS LESSORS COST MANUFACTURER SERIAL NUMBER MODEL AND TYPE OF EQUIPMENT
-------- ---------------- ------------- ------------------ ---------------------------------------------
$ 126,074.30/Lot Cisco Systems Various Computer Equipment consisting of:
(1) 69054145 Series 0000 Xxxxxx to include:
(1) 5500 Chassis
(1) 5500 AC Power Supply
10910602 (1) 24 Port 10/100 Switch Module
10903547 (1) 5K Supervisory Module III with NFFC
(1) 5500 Secondary AC Power Supply
(2) AC Power Cord
(1) 5500 Flash Image
(1) 10867086 5K Supervisory Module III with NFFC
(2) 10105098, 10102185 100Base FX Multimode Fiber Uplink
(8) 11458464, 11463463 24 Port 10/100 Module
11471175, 11471381
11433713, 11458089
11464058, 11471361
(2) 11438370, 11438330 Catalyst Route Switch Module
(2) RSM IP w/VIP
(1) 63080450 Switchprobe 1 port 100TX Full Duplex
(3) FAA0246U01Z 2924 Chassis w/22p10/10TX, 2p100FX
FAA0246T02K
FAA0246T02H
(3) FAA0246YO38 2924 Chassis w/24p10/100TX
FAA0246W02L
FAA0246Z008
100.00 Freight
and all including all attachments, accessions
and accessories
Equipment immediately listed above is located at:
0000 Xxxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx Xxxxxx, XX 00000
NUMBER CAPITALIZED
OF UNITS LESSORS COST MANUFACTURER SERIAL NUMBER MODEL AND TYPE OF EQUIPMENT
-------- -------------- ------------- ------------------------ ---------------------------------------------
$ 6,472.70/Lot Cisco Systems Various Computer Equipment consisting of:
(2) FAA0246T012, FAA0246T02J 2924 Chassis w/22p10/10TX, 2p100FX
100.00 Freight
and all including all attachments, accessions
and accessories
Equipment immediately listed above is located at:
0000 Xxxxxxxxx Xxxxxxxxxx, Xxxxx, XX, Xxxxxxx, Xxxxxx Xxxxxx, XX 00000
3
15
[GE LOGO]
GE Capital
--------------------------------------------------------------------------------
December 16, 1998
Insight Action Performance Companies, Inc.
0000 X. Xxxx Xxxxxx 0000 Xxxx Xxxxxxxx Xx.
Xxxxx, XX 00000 Xxxxxxx, XX 00000
Ladies and Gentlemen:
As you are aware, General Electric Capital Corporation ("GE CAPITAL") intends
to purchase the equipment described on Exhibit A hereto (the "EQUIPMENT") from
Insight ("SUPPLIER") for lease to Action Performance Companies, Inc. ("LESSEE")
pursuant to Schedule No. 1 to that certain Master Lease Agreement, dated
12/22/98 (the "LEASE") between Lessor and Lessee. AS one of the conditions to
proceeding with the transaction, GE Capital seeks additional assurances that
title to the Equipment has not yet passed to Lessee, but instead remains with
the Supplier, notwithstanding that the Equipment may have already been
delivered to Lessee.
GE Capital requests Lessee to sign where indicated below to confirm that (i) it
has been Lessee's intent from the beginning to obtain the use of the Equipment
via a lease, and for GE Capital to take clear title to the Equipment directly
from the Supplier, and (ii) except for the rights which Customer may acquire as
Lessee under the Lease, Customer has no right, title or interest in the
Equipment and disclaims all right, title or interest in the Equipment.
GE Capital requests Supplier to sign where indicated below to confirm that (i)
the Equipment has not been previously sold by Supplier to Lessee, (ii) Supplier
presently retains clear title to the Equipment, and (iii) upon Lessee's
execution of the Certificate of Acceptance for the Equipment, title to and risk
of loss of the Equipment shall pass directly to GE Capital from Supplier, free
and clear of all security interests, liens and encumbrances.
Sincerely,
General Electric Capital Corporation
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name & Title: Xxxxxx X. Xxxxxx
Risk Analyst
ACKNOWLEDGED AND AGREED:
Supplier: Lessee:
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxxxx
-------------------------------- -----------------------------------
Name & Title: Xxxx X. Xxxxxxxx - Name & Title: Xxxxx Xxxxxx, C.F.O.
Portfolio Manager
Date: 12/22/98 Date: 12/18/98
16
EXHIBIT A
Number Capitalized
of Units Lessors Cost Manufacturer Serial Number Model and Type of Equipment
$964,519.57/Lot Various Compaq and Microsoft
Computer Equipment consisting of:
Compaq CPU to switch cable
(42) 42U rack for Proliant
(10) Netellignet ethernet
(49) 15U rack blanking panel kit
(3) rack stabalizing feet
(4) fibre host adapter
(4) 32MB DIMM memory
(8) 64MB DIMM memory
(8) 64MB DIMM memory
(31) Switch box 8 port
(8) D844BSN10576 Proliant storage system
(3) D844BSN10208
D844BSN10475
(12) XEON 400 1M SLOT2
(14) 18.2 GB plug ultra-wide
(9) Proliant 1850R
(2) Firewall enterprise encryption
(10) Netelligent cable management
(4) 256 MB DIMM kit
(8) Proliant 850R model 6/200 H
(8) V55 15" Monitor
(30) SMART-2/DH PCI array
(8) rack mount keyboard
(4) CPU to switch cable 20FT
(4) INTERNAL 35/70-GB DLT drive
(1) SD838BR440013 DLT tape array II
(10) Monitor/utility shelf kit
(8) Keyboard drawer kit
(2) D842HUQ10022 fibre channel array rack
D842HUQ10042
(2) fibre channel storage hub
(4) Proliant 7000 PD-400 1MB
(2) Proliant 1600R PII 400
(16) 4.3GB SCSI ultra-wide pluggable
(96) 9.1GB SCSI ultra-wide
(14) 18.2GB SCSI ultra-wide
(31) 64MB registered SDRAM
(25) 128MB registered SDRAM DIMM
(6) 128MB registered SDRAM DIMM
(2) P2-400 512K SLOT1 processor
(31) P2-400 512K SLOT1 processor
(84) 4.3GB NHP ultra-wide hard drive
(30) 256MB registered SDRAM DIMM
(31) Proliant 1850R PII 400
(4) Microsoft SQL Server enterprise
(10) WIN NT Server V4.0 enterprise
(2) Exchange Server 25 client
(34) MS Windows NT Server w/option
(6) Site server commerce V3.0
(12) Site Server V3.0 10 clients
(2) Site Server V3.0 10 clients
(5) Site Server V3.0 10 clients
Freight
889.31
and all including all attachments,
accessions and accessories
17
Date December 22, 1998
-------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
0000 Xxxx Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Gentlemen:
This is to acknowledge that the following invoices for equipment shipped to:
Tech2000 Worldwide, 0000 Xxxxxxxx Xx., Xxxxxx, XX 00000, should have named
General Electric Capital Corporation as buyer or "sold to" party and not Action
Performance Companies:
INVOICE NO.
-----------
4452162
4452365
4452400
4452402
4469230
4472050
4473540
4474158
4475787
4480223
4487874
4489767
4491575
4551503
4555303
4557246
INSIGHT
By Xxxx X. Xxxxxxxx
---------------------
Title Xxxx X. Xxxxxxxx - Portfolio Manager
---------------------
18
COMPUTER EQUIPMENT SCHEDULE
SCHEDULE NO. 002
DATED THIS FEBRUARY 18, 1999
TO MASTER LEASE AGREEMENT
DATED AS OF DECEMBER 22, 1998
LESSOR & MAILING ADDRESS: LESSEE & MAILING ADDRESS:
GENERAL ELECTRIC CAPITAL CORPORATION ACTION PERFORMANCE COMPANIES, INC.
XXX XXXXXXX XXXXXX, 0000 XXX XXXXXXX 0000 XXXX XXXXXXXX XXXX
XXXXX 0000, X.X. 0 XXXXXXX, XX 85040
XXXXXX, XX 00000
This Schedule is executed pursuant to, and incorporates by reference the terms
and conditions of, and capitalized terms not defined herein shall have the
meanings assigned to them in, the Master Lease Agreement identified above
("Agreement" said Agreement and this Schedule being collectively referred to as
"Lease"). This Schedule, incorporating by reference the Agreement, constitutes
a separate instrument of lease.
A. EQUIPMENT: Subject to the terms and conditions of the Lease, Lessor agrees
to Lease to Lessee the Equipment described below (the "Equipment").
NUMBER CAPITALIZED
OF UNITS LESSORS COST MANUFACTURER SERIAL NUMBER MODEL AND TYPE OF EQUIPMENT
--------- ----------- ------------ ------------- ---------------------------
1 $53,495.80 N/A computer support system
consisting of the following:
two (2) 512MB DIMM kit, (4)
tower to rack conversion,
four (4) Mol-C SQL SVR
Internet Conn V7, four (4)
MOL-C site SVR Internet
Conn 3, and twelve (12) MOL-C
site SVR Internet Conn 3
Equipment immediately listed above is located at: 000 Xxxxxx Xx., Xxxxxxx, Xxxxxxxxx Xxxxxx, XX 00000
B. FINANCIAL TERMS
1. Advance Rent (if any): Not Applicable 5. Basic Term Commencement Date: February 22, 1999
2. Capitalized Lessor's Cost: $53,495.80 6. Lessee Federal Tax ID No.: 000000000
3. Basic Term (No. of Months): 34 Months. 7. Last Delivery Date: February 21, 1999
4. Basic Term Lease Rate Factor: 0.02928665 8. Daily Lease Rate Factor: 0.00097622
9. First Termination Date: Thirty-six (36) months after the Basic Term
Commencement Date.
10. Interim Rent: For the period from and including the Lease Commencement Date
to but not including the Basic Term Commencement Date ("Interim Period"),
Lessee shall pay as rent ("Interim Rent") for each unit of Equipment, the
product of the Daily Lease Rate Factor times the Capitalized Lessor's Cost
of such unit times the number of days in the Interim Period. Interim Rent
shall be due on February 21, 1999.
11. Basic Term Rent. Commencing on February 22, 1999 and on the same day of
each month thereafter (each, a "Rent Payment Date") during the Basic Term,
Lessee shall pay as rent ("Basic Term Rent") the product of the Basic Term
Lease Rate Factor times the Capitalized Lessor's Cost of all Equipment on
this Schedule.
C. TAX BENEFITS Depreciation Deductions:
1. Depreciation method is the 200% declining balance method, switching to
straight line method for the 1st taxable year for which using the
straight line method with respect to the adjusted basis as of the
beginning of such year will yield a larger allowance.
2. Recovery Period: FIVE (5) YEARS.
3. Basis: 100% of Capitalized Lessors Cost.
D. PROPERTY TAX
PROPERTY TAX NOT APPLICABLE ON EQUIPMENT LOCATED IN 000 XXXXXX XXXXXX,
XXXXXXX, XX 00000-0000.
Lessor may notify Lessee (and Lessee agrees to follow such notification)
regarding any changes in property tax reporting and payment
responsibilities.
E. ARTICLE 2A NOTICE
19
IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 2A OF THE UNIFORM COMMERCIAL
CODE AS ADOPTED IN THE APPLICABLE STATE, LESSOR HEREBY MAKES THE FOLLOWING
DISCLOSURES TO LESSEE PRIOR TO EXECUTION OF THE LEASE, (A) THE PERSON(S)
SUPPLYING THE EQUIPMENT IS INSIGHT (THE "SUPPLIER(S)"), (B) LESSEE IS
ENTITLED TO THE PROMISES AND WARRANTIES, INCLUDING THOSE OF ANY THIRD
PARTY, PROVIDED TO THE LESSOR BY SUPPLIER(S), WHICH IS SUPPLYING THE
EQUIPMENT IN CONNECTION WITH OR AS PART OF THE CONTRACT BY WHICH LESSOR
ACQUIRED THE EQUIPMENT AND (C) WITH RESPECT TO SUCH EQUIPMENT, LESSEE MAY
COMMUNICATE WITH SUPPLIER(S) AND RECEIVE AND ACCURATE AND COMPLETE
STATEMENT OF SUCH PROMISES AND WARRANTIES, INCLUDING ANY DISCLAIMERS AND
LIMITATIONS OF THEM OR OF REMEDIES. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, LESSEE HEREBY WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A
LESSEE IN ARTICLE 2A AND ANY RIGHTS NOW AND HEREAFTER CONFERRED BY STATUTE
OR OTHERWISE WHICH MAY LIMIT OR MODIFY ANY OF LESSOR'S RIGHTS OR REMEDIES
UNDER THE DEFAULT AND REMEDIES SECTION OF THE AGREEMENT.
F. STIPULATED LOSS AND TERMINATION VALUE TABLE*
Termination Stipulated Termination Stipulated
Value Loss Value Value Loss Value
Rental Percentage Percentage Rental Percentage Percentage
Interim 103.177 107.154
1 103.177 107.154 18 61.371 67.859
2 100.836 104.960 19 58.775 65.411
3 98.480 102.752 20 56.162 62.946
4 96.110 100.530 21 53.535 60.466
5 93.725 98.293 22 50.891 57.970
6 91.326 96.041 23 48.230 55.457
7 88.912 93.776 24 45.554 52.929
8 86.484 91.495 25 42.862 50.384
9 84.041 89.199 26 40.153 47.823
10 81.583 86.889 27 37.427 45.245
11 79.110 84.564 28 34.685 42.651
12 76.621 82.223 29 31.926 40.040
13 74.118 79.868 30 29.150 37.412
14 71.599 77.497 31 26.358 34.767
15 69.066 75.111 32 23.549 32.105
16 66.516 72.709 33 20.722 29.426
17 63.951 70.292 34 17.878 26.730
*The Stipulated Loss Value or Termination Value for any unit of Equipment shall
be the Capitalized Lessor's Cost of such unit multiplied by the appropriate
percentage derived from the above table. In the event that the Lease is for any
reason extended, then the last percentage figure shown above shall control
throughout any such extended term.
G. MODIFICATIONS AND ADDITIONS FOR THIS SCHEDULE ONLY.
For purposes of this Schedule only, the Agreement is amended as follows:
EQUIPMENT SPECIFIC PROVISIONS
The MAINTENANCE Section of the Lease is amended by adding the
following as the third sentence in subsection (a):
Lessee agrees that upon return of the Equipment, it will comply with
all original manufacturer's performance specifications for new Equipment
without expense to Lessor. Lessee shall, if requested by Lessor, obtain a
certificate or service report from the manufacturer attesting to such
condition.
Each reference contained in this Agreement to:
(a) "Adverse Environmental Condition" shall refer to (i) the
existence or the continuation of the existence, of an Environmental
Emission (including, without limitation, a sudden or non-sudden accidental
or non-accidential Environmental Emission), of, or exposure to, any
substance, chemical, material, pollutant, Contaminant, odor or audible
noise or other release or emission in, into or onto the environment
(including, without limitation, the air, ground, water or any surface) at,
in, by, from or related to any Equipment, (ii) the environmental aspect of
the transportation, storage, treatment or disposal of materials in
connection with the operation of any Equipment or (iii) the violation, or
alleged violation of any statutes, ordinances, orders, rules, regulations,
permits or licenses of, by or from any governmental authority, agency or
court relating to environmental matters connected with any Equipment.
(b) "Affiliate" shall refer, with respect to any given Person, to any
Person that directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such
Person.
20
(c) "Contaminant" shall refer to those substances which are regulated
by or form the basis of liability under any Environmental Law, including,
without limitation, asbestos, polychlorinated biphenyls ("PCBs"), and
radioactive substances, or other material or substance which has in the
past or could in the future constitute a health, safety or environmental
hazard to any Person, property or natural resources.
(d) "Environmental Claim" shall refer to any accusation, allegation,
notice of violation, claim, demand, abatement or other order on direction
(conditional or otherwise) by any governmental authority or any Person for
personal injury (including sickness, disease or death), tangible or
intangible property damage, damage to the environment or other adverse
effects on the environment, or for fines, penalties or restrictions,
resulting from or based upon any Adverse Environmental Condition.
(e) "Environmental Emission" shall refer to any actual or threatened
release, spill, emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the indoor or outdoor
environment, or into or out of any of the Equipment, including, without
limitation, the movement of any Contaminant or other substance through or
in the air, soil, surface water, groundwater or property.
(f) "Environmental Law" shall mean any federal, foreign, state or
local law, rule or regulation pertaining to the protection of the
environment, including, but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA") (42 U.S.C. Section 9601
et seq.), the Hazardous Material Transportation Act (49 U.S.C. Section 1801
et seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251
et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section
6901 et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the
Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 1361 et
seq.), and the Occupational Safety and Health Act (19 U.S.C. Section 651 et
seq.), as these laws have been amended or supplemented, and any analogous
foreign, federal, state or local statutes, and the regulations promulgated
pursuant thereto.
(g) "Environmental Loss" shall mean any loss, cost, damage, liability,
deficiency, fine, penalty or expense (including, without limitation,
reasonable attorneys' fees, engineering and other professional or expert
fees), investigation, removal, cleanup and remedial costs (voluntarily or
involuntarily incurred) and damages to, loss of the use of or decrease in
value of the Equipment arising out of or related to any Adverse
Environmental Condition.
(h) "Person" shall include any individual, partnership, corporation,
trust, unincorporated organization, government or department or agency
thereof and any other entity.
Lessee shall fully and promptly pay, perform, discharge, defend,
indemnify and hold harmless Lessor and its Affiliates, successors and
assigns, directors, officers, employees and agents from and against any
Environmental Claim or Environmental Loss.
The provisions of this Schedule shall survive any expiration or
termination of the Lease and shall be enforceable by lessor, its successors
and assigns.
RETURN CONDITIONS: In addition to the provisions provided for in the
RETURN OF EQUIPMENT Section of the Lease, and provided that the Lessee has
not elected its option to purchase the Equipment, Lessee shall, at its
expense:
(a) Upon the request of Lessor, Lessee shall no later than ninety (90)
days prior to the expiration or other termination of the Lease provide:
(i) a detailed inventory of the Equipment (including the model
and serial number of each major component thereof), including, without
limitation, all internal circuit boards, module boards, and software
features;
(ii) a complete and current set of all manuals, equipment
configuration, setup and operation diagrams, maintenance records and other
data that may be reasonably requested by Lessor concerning the
configuration and operation of the Equipment; and
(iii) a certification of the manufacturer or of a maintenance
provider acceptable to Lessor that the Equipment (1) has been tested and is
operating in accordance with manufacturers specifications (together with a
report detailing the condition of the Equipment), the results of such
test(s) and inspection(s) and all repairs that were performed as a result
of such test(s) and inspection(s) and (2) that the Equipment qualifies for
the manufacturers used equipment maintenance program.
(b) Upon the request of Lessor, Lessee shall, no later than sixty (60)
days prior to the expiration or other termination of the Lease, make the
Equipment available for on-site operational inspection by persons
designated by the Lessor who shall be duly qualified to inspect the
Equipment in its operational environment.
(c) All Equipment shall be cleaned and treated with respect to rust,
corrosion and appearance in accordance with manufacturers recommendations
and consistent with the best practices of dealers in used equipment similar
to the Equipment; shall have no Lessee installed markings or labels which
are not necessary for the operation, maintenance or repair of the
Equipment; and shall be in compliance with all applicable governmental
laws, rules and regulations.
(d) The Equipment shall be deinstalled and packed by or under the
supervision of the manufacturer or such other person acceptable to Lessor
in accordance with manufacturers recommendations. Without limitation, all
internal fluids will either be drained and disposed of or filled and
secured in accordance with manufacturers recommendations and applicable
governmental laws, rules and regulations.
(e) Provide for transportation of the Equipment in a manner consistent
with the manufacturer's recommendations and practices to any locations
within the continental United States as Lessor shall direct; and shall have
the Equipment unloaded at such locations.
H. PAYMENT AUTHORIZATION
You are herby irrevocably authorized and directed to deliver and apply the
proceeds due under this Schedule as follows:
21
Company Name Address Amount
------------ ------- ------
Insight P. O. Xxx 00000, $53,495.80
Xxxxxxx, XX 00000
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
Pursuant to the provisions of the lease, as it relates to this Schedule,
Lessee hereby certifies and warrants that (i) all Equipment listed above has
been delivered and installed (if applicable) as of the date stated above; (ii)
Lessee has inspected the Equipment, and all such testing as it deems necessary
has been performed by Lessee, Supplier or the manufacturer; and (iii) Lessee
accepts the Equipment for all purposes of the Lease, the purchase documents and
all attendant documents.
Lessee does further certify that as of the date hereof (i) Lessee is not
in default under the Lease; (ii) the representations and warranties made by
Lessee pursuant to or under the Lease are true and correct on the date hereof
and (iii) Lessee has reviewed and approves of the purchase documents for the
Equipment, if any.
Except as expressly modified hereby, all terms and provisions of the
Agreement shall remain in full force and effect. This Schedule is not binding
or effective with respect to the Agreement or Equipment until executed on
behalf of Lessor and Lessee by authorized representatives of Lessor and
Lessee, respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Schedule to be
executed by their duly authorized representatives as of the date first above
written.
LESSOR: LESSEE:
General Electric Capital Corporation Action Performance Companies, Inc.
By:_________________________________ By: /s/ Xxxxx Xxxxxx
------------------------------
Name:_______________________________ Name: Xxxxx Xxxxxx
----------------------------
Title:______________________________ Title: CFO
---------------------------
Attest
By: /s/ Xxxxx Philpost
-------------------------------
Name: Xxxxx Philpost
-----------------------------
22
ADDENDUM
TO SCHEDULES NO. 001 AND 002
TO MASTER LEASE AGREEMENT
DATED AS OF FEBRUARY 18, 1999
This Addendum (this "ADDENDUM") amends and supplements Schedule No. 1 and
Schedule No. 2 (each, a "SCHEDULE"; collectively, the "SCHEDULES") to the above
referenced Master Lease Agreement (the "AGREEMENT"), between GENERAL ELECTRIC
CAPITAL CORPORATION ("LESSOR") and Action Performance Co. ("LESSEE") and is
hereby incorporated into the Schedule as though fully set forth therein.
Capitalized terms not otherwise defined herein shall have the meanings set
forth in the Schedule or Agreement.
WHEREAS, pursuant to Schedule No. 1 to the Agreement, Lessor has leased to
Lessee certain Equipment more particularly described therein (the "SCHEDULE NO.
1 EQUIPMENT"); and
WHEREAS, Lessee desires to lease certain additional Equipment from Lessor
pursuant to Schedule No. 2 of the Agreement, which Equipment is related to the
Schedule No. 1 Equipment and does not ordinarily function independently of the
Schedule No. 1 Equipment;
NOW THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration, and in order to induce Lessor to enter into Schedule
No. 2, the parties agree that notwithstanding anything to the contrary
contained in the Schedules or the Agreement, if Lessee exercises its option to
early terminate the Agreement with respect to all of the Equipment on a
Schedule, it must at that same time exercise that same option with respect to
all of the Equipment on the other Schedule, and whichever end-of-lease option
Lessee elects with respect to either purchasing all of the Equipment on a
Schedule or returning all of the Equipment on a Schedule, must also be elected
by Lessee with respect to all of the Equipment on the other Schedule.
Except as expressly modified hereby, all terms and provisions of the Schedules
and Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Addendum to be
executed by their duly authorized representatives on this 18 day of Feb., 1999.
Lessor: Lessee:
General Electric Capital Corporation Action Performance Companies, Inc.
By: By: /s/ Xxxxx Xxxxxx
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Name: Name: Xxxxx Xxxxxx
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Title: Title: CFO
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IMPORTANT! YOUR INVOICE INFORMATION
DIRECTIONS: PLEASE COMPLETE AND RETURN WITH YOUR SIGNED DEAL DOCUMENTS OR FAX TO
000 000-0000 PLEASE MAKE ANY NECESSARY CORRECTIONS TO THE FOLLOWING INFORMATION:
Customer name: Action Performance Companies, Inc.
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Contact name Accounts Payable Title
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Contact phone 000 000-0000 Fax
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REQUIRED SECTION:
1. Where would you like your invoice sent?
Billing address Same as Mailing
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City/state/zip
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Attention Phone
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Department
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OPTIONAL SECTION:
2. What information would you like on your invoice?
( ) Company Purchase Order number (if checked, list PO number: )
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( X ) Equipment serial number, model number and description
( X ) Equipment location
( ) Rent and sales tax broken down by asset
3. We can provide you with one invoice that incorporates the billing for all
your Commercial Equipment Financing accounts with the same due date, the same
billing address, and the same number of advance billing days.
Would you like to receive one combined invoice?
( ) Yes ( X ) No
4. Would you like to set up electronic payments?
( ) Yes (If Yes, see EPS Authorization attachment) ( X ) No
5. To help us plan for possible future enhancements to invoice, what other
information would you like to see on your invoice?
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Xxxx Xxxxxxxx
Region Documentation Specialist
Account Schedule # 4081372002
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SCHEDULE B
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