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Exhibit 10.2
EQUIPMENT SUBLEASE
THIS EQUIPMENT SUBLEASE (this "Sublease") is made and entered into as of the 28
day of March, 2000, by and between INTEGRATED INFORMATION SYSTEMS, INC., a
Delaware corporation ("IIS"), and XXXXXXXX.XXX, INC., a Delaware corporation,
("goracing").
RECITALS
A. Action Performance Companies, Inc., an Arizona corporation and sole
shareholder of goracing ("Action") and goracing (goracing and Action are
hereinafter collectively referred to as the "Retaining Parties") have entered
into certain equipment leases with General Electric Capital Corporation, a New
York Corporation ("GE Capital"), dated as of December 22, 1998, and August 9,
1999, respectively (the "Master Equipment Leases") whereby the Retaining Parties
lease certain equipment (the "GEAC Equipment") located at and used as part of
the occupancy of 0000 X. Xxxxxxx Xxxxx, Xxxxx, Xxxxxxx (the "Premises").
B. Action has entered into a Lease Agreement with H-B TEMPE, L.L.C., an
Arizona limited liability company ("Tempe") dated June 28, 1999 for the Premises
(the "Hohokam Lease").
C. As of the date hereof, Action intends to enter into a Sublease with
IIS (the "Hohokam Sublease") whereby IIS will assume certain of the rights and
obligations of Action under the Hohokam Lease.
D. As of the date hereof, the Retaining Parties intend to enter into an
Equipment Sublease with IIS (the "Equipment Sublease") whereby IIS assumes all
of the rights and obligations of the Retaining Parties under the Master
Equipment Leases.
E. As of the date hereof, goracing intends to enter into an Asset
Purchase Agreement with IIS (the "Asset Purchase Agreement") whereby IIS will
purchase certain assets from goracing that are currently located on and are
being used as part of the occupancy of the Premises (the "Purchased Equipment").
The Purchased Equipment is listed on Schedules A and B of the Asset Purchase
Agreement. (The GEAC Equipment and the Purchased Equipment is collectively
referred to hereinafter as the "Equipment").
F. A portion of the Equipment is located in the portion of the Premises
that is currently not subject to the Hohokam Sublease (the "Retained Premises")
and/or is currently being used by goracing (the "goracing Equipment"). The
goracing Equipment includes, but is not limited to certain furniture, fixtures,
computers and network equipment.
G. goracing desires to sublease from IIS and IIS desires for goracing
to sublease the goracing Equipment upon the terms and conditions contained
herein,
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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, the parties hereby agree as follows:
1. GRANT. IIS hereby subleases the goracing Equipment to goracing, and
goracing hereby subleases the goracing Equipment from IIS, on the terms and
conditions herein set forth.
2. RENT.
(a) BASE RENT. In exchange for the leasehold interest of the
goracing Equipment, goracing shall pay IIS $8,000 per month (the "Base Rent"),
which shall be due and payable on the 1" day of each month beginning on April 1,
2000.
(b) ADJUSTMENTS TO BASE RENT.
(i) FIRST FLOOR RETAINED PREMISES EXPANSION RIGHT. In
the event that IIS exercises its First Floor Retained Expansion Right (as
defined in Section 5 of the Hohokam Sublease) the Base Rent shall be reduced by
$3,000 per month beginning on the date such exercise becomes effective.
(ii) SURRENDER OF FIRST FLOOR RETAINED PREMISES. In
the event that Action surrenders its right to the First Floor Retained Premises
(as defined in Section 3(C) of the Hohokam Sublease) the Base Rent shall be
reduced by $3,000 per month beginning on the date such surrender becomes
effective.
(iii) SECOND FLOOR RETAINED PREMISES EXPANSION RIGHT.
In the event that IIS exercises its Second Floor Retained Expansion Right (as
defined in Section 8 of the Hohokam Sublease) the Base Rent shall be reduced by
$5,000 per month beginning on the date such exercise becomes effective.
(iv) SURRENDER OF SECOND FLOOR RETAINED PREMISES. In
the event that Action surrenders its right to the Second Floor Retained Premises
(as defined in Section 3(C) of the Hohokam Sublease the Base Rent shall be
reduced by $5,000 per month beginning on the date such surrender becomes
effective.
3. Term.
(a) BASE TERM. goracing's rights and obligations under this
Sublease shall commence as of the date set forth above and shall expire upon the
Expiration Date of the Hohokam Sublease (as defined in Section 1(H) of the
Hohokam Sublease).
(b) ADJUSTMENTS TO THE TERM. In the event that IIS exercises
its First Floor Retained Premises Expansion Right or its Second Floor Retained
Premises Expansion Right, or in the event that Action surrenders its rights to
the First Floor Retained Premises or the Second
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Floor Retained Premises, the term of this Sublease, with respect to the portion
of the Equipment located in or associated with the respective retained or
surrendered area, shall be reduced to the effective date of such exercise or
surrender.
(c) AUTOMATIC TERMINATION. In the event that Action's
occupancy of the Premises is completely terminated in accordance with the terms
and conditions of the Hohokam Sublease, this Sublease shall simultaneously, and
automatically terminate (without being deemed, however, to be a waiver by
goracing of any other rights or remedies it may have under this Sublease).
4. NETWORKING EQUIPMENT. The parties agree that the Equipment includes
approximately $170,000 of networking equipment more fully described on Exhibit A
hereto (the "Networking Equipment"). The parties further agree that in exchange
for a monthly payment of $5,000, goracing shall have exclusive use of the
Networking Equipment until such Networking Equipment is no longer needed by
goracing, but in no event shall such period of use extend beyond May 30, 2000.
5. LATE PAYMENT CHARGE. If any amount due to IIS, is not received in
full by IIS on or before five (5) days after the date any such payment is due,
then goracing shall pay to IIS 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 goracing to make payments after the due date, or to waive any of
IIS's rights in connection with late payments made by goracing.
6. 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 goracing, addressed to it at:
xxxxxxxx.xxx, inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
With a copy to:
Xxxxxxxxx Xxxxxxx, LLP
I E. Camelback Road, Suite 1100
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000
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(ii) If to IIS, addressed to it 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
7. 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, 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.
(c) COSTS AND FEES. goracing agrees to reimburse IIS and IIS
agrees to reimburse goracing for any reasonable costs and expenses, including
attorney's fees, incurred by such party in connection with the enforcement or
preservation of any right or remedy of the other party under this Agreement.
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IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS SUBLEASE AS OF THE DATE FIRST
ABOVE WRITTEN.
IIS:
INTEGRATED INFORMATION SYSTEMS,
INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
--------------------------
Its: Vice President
---------------------------
GORACING:
xxxxxxxx.xxx, Inc., a
Delaware corporation
By: Xxxxx Xxxxxxx
--------------------------
Name: Xxxxx Xxxxxxx
--------------------------
Its: Chief Financial Officer
--------------------------
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EXHIBIT A
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EXHIBIT A TO EQUIPMENT SUBLEASE (IIS TO GORACING)
BRAND MODEL DESCRIPTION Quantity Price ea. Total
----- ----- ----------- -------- --------- -----
Compaq 1850R High density Proliant server 3 $3,260 $9,780
Compaq 1600R Proliant server 1 3,095 3,095
Compaq 40OP11 Processor for server 4 1,560 6,240
Compaq 256MB Memory kit for server 4 1,670 6,680
Compaq 128MB Memory kit for server 4 826 3,304
Compaq Smart-2DH SCSI array controller 4 1,645 6,580
Compaq 4.3GIG Internal hard drive 8 503 4,024
Compaq 9.1GIG External hot-pluggable drive 14 1,080 15,120
Compaq DLT ArrayII DLT Drive system 1 26,685 26,685
Compaq StorEdge Ul array storage system 1 1,457 1,457
Compaq Rack&access Rack & keyboard, etc. 1 3,305 3,305
Compaq UPS 30DO Rack mountable UPS system 1 1,853 1,853
Compaq FILMon Flat monitor for servers 1 1,295 1,295
Cisco Catalyst 6509 Switch for connectivity 1 7,196 7,196
Cisco PWR supply 2nd Power supply for Catalyst 1 2,876 2,876
Cisco SupE1 SUP Engine for Catalyst 1 7,196 7,196
Cisco MSM mod MSM Module for Catalyst 1 14,396 14,396
Cisco CAT6000 48prt 48 Port Switch module for Catalyst 4 9,356 37,424
Cisco 0000 Xxxxxx Xxxxxx for connectivity 1 4,745 4,745
Cisco CAT6000 gig Gigabit module for Catalyst 1 7,196 7,196
--------
Total $170,447
Fixed Asset Schedules Page 1 of 1 Assets Retained by xxxxxxxx.xxx
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CS(R062599)
COMPUTER EQUIPMENT SCHEDULE
SCHEDULE NO. 01
DATED THIS 10/1/99
--------------
TO MASTER LEASE AGREEMENT
DATED AS OF August 9, 1999
Lessor & Mailing Address: Lessee & Mailing Address:
------------------------- -------------------------
General Electric Capital Corporation xxxxxxxx.xxx,inc.
Xxx Xxxxxxx Xxxxxx, 0000 XXX Xxxxxxx Xxxxx 0000, X.X.0 0000 X. Xxxxxxxx Xxxx
Xxxxxx, 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 LESSOR'S COST MANUFACTURER SERIAL NUMBER MODEL AND TYPE OF EQUIPMENT
-------- ------------- ------------ ------------- ---------------------------
$3,250,730.07 Numerous Personal Computers, monitors, printers,
software and the various equipment
needed for installation and running of the
systems.
SEE COLLATERAL SCHEDULE A ATTACHED HERETO FOR THE VARIOUS
EQUIPMENT, SERIAL NUMBERS AND COSTS.
Equipment immediately listed above is located at: 0000 X. Xxxxxxxx Xxxx,
Xxxxxxx, Xxxxxxxx Xxxxxx, XX 00000
B. FINANCIAL TERMS
-----------------------------------------------------------------------------------------------------------------------------------
1. Advance Rent (if any): NOT APPLICABLE 5. Basic Term Commencement Date:
2. Capitalized Lessor's Cost: $3,250,730.07 6. Lessee Federal Tax ID No.: 000000000
3. Basic Term (No. of Months): 36 MONTHS. 7. Last Delivery Date: OCTOBER 1, 1999
4. Basic Term Lease Rate Factor: 2.843469% 8. Daily Lease Rate Factor: N/A
-----------------------------------------------------------------------------------------------------------------------------------
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 NOT APPLICABLE.
11. Basic Term Rent. Commencing on OCTOBER 1, 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 the Capitalized Lessor's Cost.
D. PROPERTY TAX
APPLICABLE TO EQUIPMENT LOCATED IN 0000 X. XXXXXXXX XXXX, XXXXXXX, XXXXXXXX
XXXXXX, XX: 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.
Lessor may notify Lessee (and Lessee agrees to follow such notification)
regarding any changes in property tax reporting and payment
responsibilities.
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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, (A) THE PERSON(S)
SUPPLYING THE EQUIPMENT IS ADVANCED SYSTEMS GROUP, KENT DATA COMM, ORACLE,
ACCRUE SOFTWARE, INC. (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 AN
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 OR 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
1 103.656 107.834 19 61.007 68.541
2 101.452 105.816 20 58.481 66.202
3 99.219 103.769 21 55.942 63.849
4 96.955 101.692 22 53.389 61.482
5 94.675 99.598 23 50.818 59.098
6 92.378 97.488 24 48.233 56.699
7 90.065 95.361 25 45.634 54.287
8 87.735 93.218 26 43.017 51.856
9 85.389 91.059 27 40.386 49.412
10 83.027 88.883 28 37.741 46.953
11 80.648 86.690 29 35.077 44.476
12 78.251 84.480 30 32.395 41.980
13 75.839 82.254 31 29.697 39.469
14 73.409 80.011 32 26.983 36.941
15 70.962 77.750 33 24.252 34.396
16 68.499 75.473 34 21.505 31.836
17 66.018 73.179 35 18.739 29.256
18 63.519 70.867 36 15.956 26.661
* 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:
1. 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-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,
regulations, permits or licenses of, by or from any governmental authority,
agency or court relating to environmental matters connected with any Equipment.
(b) "Affiliates" shall refer, with respect to any given Person, to any
Person that directly or indirectly through one or more intermediaries, controls,
or
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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, safely 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
Clear 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
attorney's fees, engineering and other professional or expert fees),
investigation, removal, cleanup and remedial costs (voluntary 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, it 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.
2. LEASE TERM OPTIONS
EARLY LEASE TERM OPTIONS
The Lease is hereby amended by adding the following to the end thereof:
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CANCELLATION OPTION:
(a) So long as no default exists hereunder and expressly provided that
all of the terms and conditions of this Provision are fulfilled, Lessee may
cancel the Agreement as to all (but not less than all) of the Equipment on this
Schedule as of any one of the Cancellation Dates set forth below (each, a
"Cancellation Date") upon at least 90 days prior written notice (the "Notice
Date") to Lessor (which notice shall be irrevocable and shall be sent to the
attention of Lessor's Asset Management Organization, 00 Xxx Xxxxxxxxx Xxxx,
Xxxxxxx, XX 00000-0000). Such notice shall state the Cancellation Date which
shall apply. If all of the terms and conditions of this Provision are not
fulfilled, this Lease shall continue in full force and effect and Lessee shall
continue to be liable for all obligations thereunder, including, without
limitation, the obligation to continue paying rent.
(b) Prior to the Cancellation Date, Lessee shall
(i) pay to Lessor, as additional rent, (A) the Cancellation Value
(set forth below for the applicable Cancellation Date) for the Equipment, plus
(B) all rent and all other sums due and unpaid as of the Cancellation Date
(including, but not limited to, any Rent payment due and payable on the
Cancellation Date and any sales taxes and property taxes); and
(ii) return the Equipment in full compliance with the RETURN OF
EQUIPMENT Section of the Lease, such compliance being independently verified
by an independent appraiser selected by Lessor (reasonably acceptable to
Lessee) to determine that the Equipment is in such compliance, which
determination shall be final, binding and conclusive. Lessee shall bear all
costs associated with such appraiser's determination and such costs, if any, to
cause the Equipment to be in full compliance with the RETURN OF EQUIPMENT
Section of the Lease on or prior to such Cancellation Date.
(c) The Cancellation Dates and the applicable Cancellation Values are as
set forth below:
October 1, 2001 1,350,028.20
(d) Lessee shall, from the applicable Notice Date through the
Cancellation Date,
(i) continue to comply with all of the terms and conditions of the
Lease, including, but not limited to, Lessee's obligation to pay rent, and
(ii) make the Equipment available to Lessor in such a manner as to
allow Lessor to market and demonstrate the Equipment to potential purchasers or
lessees from such premises at no cost to Lessor; provided, however, that,
subject to Lessor's right to market and demonstrate the Equipment to potential
purchasers or lessees from time to time, Lessee may still use the Equipment
until the Cancellation Date.
(e) Lessee shall, from the applicable Cancellation Date through the
earlier of the date the Equipment is sold by Lessor to a third party or 30 days
following the Cancellation Date, comply with the following terms and conditions:
(i) Continue to provide insurance for the Equipment, at Lessee's own
expense, in compliance with the terms found in the INSURANCE Section of the
Lease, and
(ii) Make the Equipment available to Lessor and/or allow Lessor to
store the Equipment at Lessee's premises, in such a manner as to allow Lessor
to market and demonstrate the Equipment to potential purchasers or lessees from
such premises at no cost to Lessor.
(f) The proceeds of any sale or re-sale of the Equipment after Lessee has
exercised its Cancellation Option shall be for the sole benefit of Lessor and
Lessee shall have no interest in or any claim upon any of such proceeds.
H. PAYMENT AUTHORIZATION
You are hereby irrevocably authorized and directed to deliver and apply the
proceeds due under this Schedule as follows:
COMPANY NAME ADDRESS AMOUNT
------------ -------- -------
Advanced Systems Group, Inc. 00000 Xxxxx Xxxxx Xxxxxx $1,831,694.00
Xxxxxxxx, XX 00000
Kent Datacomm X.X. Xxx 000000 $525,931.07
Xxxxxxx, XX 00000-0000
Oracle Wire Transfer Information: $570,326.00
Xxxxx Fargo Bank
Chicago, IL
ABA# 000000000
Account# 4522-020841
Accrue Software, Inc. 00000 Xxxxxxxx Xxxxx x000,000.00
Xxxxxxxx, XX 00000
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
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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 XXXXXXXX.XXX, INC.
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXX XXXXXX
--------------------------------- ---------------------------------
Name: XXXXXX X. XXXXXX Name: XXXXX XXXXXX
------------------------------- -------------------------------
Title: Senior Risk Analyst Title: C.E.O.
------------------------------ ------------------------------
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Collateral Schedule A
to
Schedule No. 01
ADVANCED SYSTEMS GROUP
VENDOR
SERIAL NUMBER ITEM# DESCRIPTION QUANTITY TOTAL SOFT COST
-------------------------------------------------------------------------------------------------------------------------------
XX-XXX0-0000-0 Xxxxxxx Web Edition 2 $7,744.00
XX-XXX0-0000-0 Xxxxxxx Edition Support 2 $1,834.00
XX-XXX0-0000-0 Xxxxxxx Web Edition 20 $77,440.00
XX-XXX0-0000-0 Xxxxxxx Web Edition Support 20 $18,340.00
XX-XXX0-0000-0 Xxxxxxx Web Edition 2 $300.00
See Invoice #0016427 A26-AA-R E250 SERVER BASE CONFIG (RACK) 20 $79,480.00
See Invoice #0016427 1194A Opt 400MHz/2MB processor 40 $201,600.00
7004A OPT MEMORY 256MB (2*128MB) 40 $54,000.00
See Invoice #0016427 5234A OPT INT DISK 9.1GB/10K USCSI 120 $118,800.00
3668A PGX32 CARD W/VIDEO ADAPTOR 20 $5,320.00
9683A REDUNDNT POWER SUPPLY FOR E250 20 $12,520.00
X1034A OPT QFE PCI CARD W/SW 20 $15,120.00
SOLMS-260W9999 SOLARIS 2.6 STD ENGLISH SVR 2 $160.00
ASG installation 20 $39,900.00
7004A OPT MEMORY 256MB (2*128MB) 24 $32,400.00
XX-XXX0-0000-0 Xxxxxxx Web Edition 2 $7,744.00
XX-XXX0-0000-0 Xxxxxxx Web Edition Support 2 $1,834.00
2580A OPT PROCESSOR US 400-MHZ/8MB 2 $26,600.00
XX-XXX0-0000-0 Xxxxxxx Web Edition lic for E3500 1 $9,040.00
XX-XXX0-0000-0 Xxxxxxx Web Edition annual support 7x24 1 $2,141.00
XX-XXX0-0000-0 Xxxxxxx Web Edition 2 $7,744.00
XX-XXX0-0000-0 Xxxxxxx Web Edition support 2 $1,834.00
XX-XXX0-0000-0 Xxxxxxx Web Edition 1 $3,872.00
XX-XXX0-0000-0 Xxxxxxx Web Edition support 1 $917.00
See Invoice #0016428 A26-AA-R E250 SERVER BASE CONFIG (RACK) 2 $7,948.00
See Invoice #0016428 1194A Opt 400MHz/2MB processor 4 $20,160.00
7004A OPT MEMORY 256MB (2*128MB) 4 $5,400.00
See Invoice #0016428 5234A OPT INT DISK 9.1GB/10K USCSI 12 $11,880.00
3668A PGX32 CARD W/VIDEO ADAPTOR 2 $532.00
9683A REDUNDNT POWER SUPPLY FOR E250 2 $1,252.00
X1141A SUN GIGABITETHERNET T/P 2.0 4 $6,368.00
ASG installation 2 $3,990.00
See Invoice #0016428 E3501-C82 ENT 3500 BASE, 400MHZ/8MB 1 $33,440.00
See Invoice #0016428 2602A OPT INT CPU/MEM BD FOR EXX00 1 $6,840.00
X7023A OTP MEMORY 1GB (8*128MB) 2 $14,440.00
1
14
Collateral Schedule A
to
Schedule No. 01
ADVANCED SYSTEMS GROUP
VENDOR
SERIAL NUMBER ITEM# DESCRIPTION QUANTITY TOTAL SOFT COST
-------------------- ----------------- ----------------------------- -------- ---------- ---------
3655A TURBOGXPLUS CARD W/CABLES, DOC 1 $747.00
2652A OPTIONAL FC-AL INTERFACE BOARD 1 $1,140.00
X6731A FCAL GBIC MODULE 100MB/S 2 $912.00
X973A 2 METER FIBRE CHANNEL CABLE 1 $150.00
9689A OPT 2ND PERIPHERAL PS/195W 1 $1,140.00
2612A OPT INT I/O BD EXXOO W/FC-AL 2 $9,880.00
X6710A FC-AL 9.1 GB 10000RPM 1" DISK 4 $8,816.00
X954A OPT INT PS/300W FOR EX000 2 $2,736.00
ASG installation 1 $3,495.00
1065A OPT ULTRA DWIS/S HOST ADAPTER 2 $1,968.00
X979A OPT CABLE DSCSI 12M 2 $530.00
X5235A OPT INT XXXX 0XX/00000 XXXXX 50 $51,750.00
X6537A STOREDGE A3500 CONTROLLER 1 $ 3,641.00
X7020A Opt A3500 Memory 64BM 2 $2,660.00
See Invoice # 0016433 A21UHC1A9P-B256CP WS U5/333 PGX24 256/9GB/CD 1 $ 3,641.00
See Invoice # 0016433 X7119A 19" COLOR MONITOR W/CABLE 1 $711.00
See Invoice # 0016433 X5236A OPT INT 0 XX Xxxxx for U5/U10 1 $405.00
SYMY9-201-E999 SyMON 2.0.1 for 25 servers 1 $15,000.00
SYMX9-201-E999 SyMON 2.0.1 for 10 servers 1 8,000.00
SYMM9-201-999M SyMON 2.0.1 Media Kit 1 $50.00
ASG installation 1 $2,495.00
See Invoice # 0016434 A21UHC1Z9S-B128CP SERVER U5/333, 128/9GB 2 $8,092.00
X7037A OPT 128MB DRAM, 50NS, U5/U10 2 $766.00
ASG installation 2 $3,990.00
SG-XARY030A 72" STOREDGE EXPANSION RACK 7 $39,900.00
X9818A OPT DOOR ASSEMBLY 72" CABINET 7 $3,458.00
2244A OPT 400MHZ CPU W/4MB FOR E450 8 $40,320.00
See Invoice # 0016440 A25-BA SRVR E450 ZERO BASE 2 $20,422.00
X9690A E450 RACKMOUNTING KIT 2 $1,360.00
7005A OPT MEMORY 512MB (2*256MB) 4 $14,400.00
See Invoice # 0016440 5234A OPT INT DISK 9.1GB/10K USCSI 12 $11,880.00
6602A OPT 8BAY H/W RAID FOR E450 2 $4,852.00
3668A PGX32 CARD W/VIDEO ADAPTOR 2 $532.00
X1034A OPT QFE PCI CARD W/SW 2 $1,512.00
ENT 3500 Rackmount Kit 1 $6,500.00
xxxxxxxx.xxx, inc. 2
15
Collateral Schedule A
to
Schedule No. 01
-------------------------------------------------------------------------------------------------------------------------
VENDOR ADVANCED SYSTEMS GROUP
SERIAL NUMBER ITEM# DESCRIPTION QUANTITY TOTAL SOFT COST
-------------------------------------------------------------------------------------------------------------------------
CL6IS-229-9999 SC 2.2 FOR E4/5X00 & SC2000 2 $19,200.00
-------------------------------------------------------------------------------------------------------------------------
CL9DS-229-9999 SUN CLUSTER 2.2 DOCS - ENGLISH 1 $400.00
-------------------------------------------------------------------------------------------------------------------------
CLCIS-22P-9999 SC 2.2 OPS FOR E4/5/6x00 2 $6,400.00
-------------------------------------------------------------------------------------------------------------------------
See Invoice # 0016439 2580A OPT PROCESSOR US 400-MHZ/8MB 12 $159,600.00
-------------------------------------------------------------------------------------------------------------------------
See Invoice # 0016439 E5501 ENT 5500 SERVER BASE 2*PS 1 $36,480.00
-------------------------------------------------------------------------------------------------------------------------
OPT 2ND POWER SEQUENCER 1 $836.00
-------------------------------------------------------------------------------------------------------------------------
X9626A 2ND SEQ. MOUNTING FOR E55/6500 1 $114.00
-------------------------------------------------------------------------------------------------------------------------
X9602A Ex000 Cabinet Floor Brackets 1 $304.00
-------------------------------------------------------------------------------------------------------------------------
See Invoice # 0016439 E4501 ENT 4500 SERVER BASE 2*PS 1 $28,120.00
-------------------------------------------------------------------------------------------------------------------------
See Invoice # 0016439 2602A OPT INT CPU/MEM BD FOR EXX00 6 $41,040.00
-------------------------------------------------------------------------------------------------------------------------
X7023A OTP MEMORY 1GB (8*128MB) 4 $28,880.00
-------------------------------------------------------------------------------------------------------------------------
2612A OPT INT I/O BD EXX00 W/FC-AL 6 $29,640.00
-------------------------------------------------------------------------------------------------------------------------
X954A OPT INT PS/300W FOR EX000 4 $5,472.00
-------------------------------------------------------------------------------------------------------------------------
X1065A OPT ULTRA DWIS/S HOST ADAPTER 4 $3,936.00
-------------------------------------------------------------------------------------------------------------------------
See Invoice # 0016439 SG-XARY147A-36G 36GB D1000 FOR RACK (10K RPM) 2 $16,372.00
-------------------------------------------------------------------------------------------------------------------------
X1073A SC 2.1 SCI/SBUS BOARD 4 $13,680.00
-------------------------------------------------------------------------------------------------------------------------
X3825A SC 2.1 SCI CABLE (10M) 2 $500.00
-------------------------------------------------------------------------------------------------------------------------
X1312A TERMINAL CONCENTRATOR KIT 1 $1,900.00
-------------------------------------------------------------------------------------------------------------------------
X3836A 5M SERIAL CABLE 1 $125.00
-------------------------------------------------------------------------------------------------------------------------
See Invoice # 0016439 A21UGE1A9P-C128CR WS U5/360 PGX24 128/8GB/CD 1 $2,403.00
-------------------------------------------------------------------------------------------------------------------------
See Invoice # 0016439 X7126A 17" ENTRY COLOR MONITOR 1 $432.00
-------------------------------------------------------------------------------------------------------------------------
SOLMS-260WD999 SOLARIS 2.6 STD. ENGLISH DT 1 $60.00
-------------------------------------------------------------------------------------------------------------------------
Installation 1 $15,000.00
-------------------------------------------------------------------------------------------------------------------------
X1065A OPT ULTRA DWIS/S HOST ADAPTER 4 $3,936.00
-------------------------------------------------------------------------------------------------------------------------
X979A OPT CABLE DSCSI 12M 4 $1,060.00
-------------------------------------------------------------------------------------------------------------------------
X5235A OPT INT XXXX 0XX/00000 XXXXX 30 $31,050.00
-------------------------------------------------------------------------------------------------------------------------
X6537A STOREDGE A3500 CONTROLLER 1 $19,874.00
-------------------------------------------------------------------------------------------------------------------------
X7020A OPT A3500 MEMORY 64MB 2 $2,660.00
-------------------------------------------------------------------------------------------------------------------------
Netscape Enterprise Server 14 $15,666.00
-------------------------------------------------------------------------------------------------------------------------
Netscape Enterprise Server Support 14 $3,920.00
-------------------------------------------------------------------------------------------------------------------------
See Invoice # 0016820 SG-ARY370A-91G 91-GB A3500 (1x5x9-GB) 1 $43,092.00
-------------------------------------------------------------------------------------------------------------------------
See Invoice # 0016822 SG-ARY370A-91G 91-GB A3500 (1x5x9-GB) 1 $43,092.00
-------------------------------------------------------------------------------------------------------------------------
See Invoice # 0016826 Annual Gold Support for E450 Server 2 $5,682.00
-------------------------------------------------------------------------------------------------------------------------
Annual Gold Support for E250 Server 20 $38,760.00
-------------------------------------------------------------------------------------------------------------------------
See Invoice # 0016824 Annual Gold Support for WS U5/333 1 $442.00
-------------------------------------------------------------------------------------------------------------------------
3
16
Collateral Schedule A
to
Schedule No. 01
ADVANCED SYSTEMS GROUP
VENDOR
SERIAL NUMBER ITEM # DESCRIPTION QUANTITY TOTAL SOFT COST
See Invoice #0016824 Annual Gold Support for SyMON for 25 servers 1 $3,569.00
See Invoice #0016824 Annual Gold Support for SyMon for 10 servers 1 $1,894.00
See Invoice #0016823 Annual Gold Support for Server U5/333 2 $858.00
See Invoice #0016827 Annual Gold Support E250 Server 2 $3,876.00
See Invoice #0016827 Annual Gold Support ENT 3500 Base & 1 $5,739.00
See Invoice #0016827 Annual Gold Support OPT INT CPU 1 $0.00
See Invoice #0016827 Annual Gold Support 91-GB A3500 & 1 $13,402.00
See Invoice #0016827 Annual Gold Support Storedge A3500 Controller 1 $0.00
See Invoice #0016828 Annual Gold Support for ENT 5500 & 1 $10,971.50
See Invoice #0016828 Annual Gold Support for ENT 4500 1 $0.00
See Invoice #0016828 Annual Gold Support for OPT INT CPU 1 $9,646.50
See Invoice #0016828 Annual Gold Support for 36GB D1000 1 $2,954.00
See Invoice #0016828 Annual Gold Support for WS U5/360 1 $442.00
See Invoice #0016828 Annual Gold Support for SC 2.2 for E4/5x00 1 $5,103.00
See Invoice #0016828 Annual Gold Support for SC 2.2 for OPS 1 $1,701.00
See Invoice #0016828 Annual Gold Support for 91-BG A3500 & 1 $13,402.00
See Invoice #0016828 Annual Gold Support for Storedge A3500 1 $0.00
See Invoice #0017035 ASG Installation Services 1 $4,990.00
4
17
Collateral Schedule A
to
Schedule No. 01
------------------------------------------------------------------------------------------------------------------------------------
Kent DataComm
Vendor
Serial Number Item # Description Quantity Total Soft Cost
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764485 WS-C6509 Catalyst 6509 Chassis IDF 1 & 2 2 $14,392.80
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764485 WS-CAC-1300W Catalyst 6000 1300W AC Power Supply 2 $5,752.80
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764485 WS-CAC-1300W/2 Catalyst 6000 Second 1300W AC Power 2 $5,752.80
Supply
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764485 WS-X6K-SUP1-2GE Catalyst 6000 Supervisor Engine 1, 2GE 2 $14,392.80
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764485 MEM-C6K-FLC16M Catalyst 6000 Supervisor PCMCIA Flash 2 $576.00
Mem Card
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764485 WS-X6248-RJ-45 Catalyst 6000 48-port 10/100 RJ-45 6 $56,138.40
Module
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764485 WS-G5484 100Base-SX Short Wavelengh GBIC 4 $1,440.00
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764485 CON-SNTP-WS-C6509 24x7x4 Service, Catalyst 6509 2 $20,800.00
------------------------------------------------------------------------------------------------------------------------------------
Shipping & Handling $303.45
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764488 WS-C6509 Catalyst 6509 Chassis MDF 1 $7,196.40
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764488 WS-CAC-1300W Catalyst 6000 1300W AC Power Supply 1 $2,876.40
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764488 WS-CAC-1300W/2 Catalyst 6000 Second 1300W AC Power 1 $2,876.40
Supply
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764488 WS-X6K-SUP1-2GE Catalyst 6000 Supervisor Engine 1, 2GE 1 $7,196.40
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764488 MEM-C6K-FLC16M Catalyst 6000 Supervisor PCMCIA Flash 1 $288.00
Mem Card
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764488 WS-X6K-SUP1-2GE Catalyst 6000 Supervisor Engine 1, 2GE 1 $7,196.40
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764488 MEM-C6K-FLC16M Catalyst 6000 Supervisor PCMCIA Flash 1 $288.00
Mem Card
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764488 WS-X6408-GBIC Catalyst 6000 8-port Gigabit Ethernet 2 $14,392.80
Module
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764488 WS-X6248-RJ-45 Catalyst 6000 48-port 10/100 RJ-45 Module 1 $9,356.40
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764488 WS-G5484 1000Base-SX Short Wavelengh GBIC 4 $1,440.00
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764488 WS-X6302-MSM Catalyst 6000 Multilayer Switch Module 1 $14,396.40
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764488 CON-SNTP-WS-C6509 24x7x4 Service, Catalyst 6509 1 $10,400.00
------------------------------------------------------------------------------------------------------------------------------------
Shipping & Handling $210.75
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764494 LDIR-430 LocalDirector 430 2 $36,000.00
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764494 CAB-AC Power Cord, 110V 2 $7,833.60
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764494 CON-SNTP-LDIR430, smartnet premium 2 $6,968.82
24x7x4
------------------------------------------------------------------------------------------------------------------------------------
Shipping & Handling $116.25
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764493 CISCO7206VXR Cisco 7206VXR, 6-slot Chassis 1 AC Supply 2 $10,080.00
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764493 PWR-7200/2 Cisco 7200 Dual AC Power Supply Option, 2 $4,320.00
280W
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764493 S72CH-12.0.4T IP/FW 2 $7,200.00
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764493 FR-IR72 Cisco IOS 7200 Series InterDomain 2 $4,896.00
Routing/Tag
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764493 C7200-I/O-FE Cisco 7200 Input/Output Controller with 2 $3,600.00
Fast Ethernet Port
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764493 MEM-I/O-FLD16M Cisco 7200 I/O PCMCIA Flash Memory, 16MB 2 $576.00
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764493 MEM-I/O-FLD40M Cisco 7200 I/O PCMCIA Flash Memory, 40MB 2 $576.00
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764493 NPE-300 Cisco 7200VXR Network Processing Engine 2 $10,800.00
300
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764493 PA-2FEISL-TX 2 Port Fast Ethernet/ISL 100Base TX Port 2 $5,472.00
Adapter
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764493 PA-POS-OC3MM 1-Port Packet/SONET OC3c/STM1 Multimode 2 $8,640.00
Port adapter
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764493 PA-A3-T3 1-Port ATM Enhanced DS3 4 $23,040.00
------------------------------------------------------------------------------------------------------------------------------------
xxxxxxxx.xxx, inc. 5
18
Collateral Schedule A
to
Schedule No. 01
Kent DataComm
Serial Number Vendor Item # Description Quantity Total Soft Cost
------------------------------------------------------------------------------------------------------------------------------------
See Invoice #99764493 CON-SNTP-7206 Cisco 7206 SMARTnet Premium Maintenance 2 $6,912.00
Shipping & Handling $290.85
See Invoice #99764489 WS-C6509 Catalyst 6509 Chassis 3 $21,589.20
See Invoice #99764489 WS-CAC-1300W Catalyst 6000 1300W AC Power Supply 3 $ 8,629.20
See Invoice #99764489 WS-CAC-1300W/2 Catalyst 6000 Second 1300W AC Power Supply 3 $ 8,629.20
See Invoice #99764489 WS-X6K-SUP1-2GE Catalyst 6000 Supervisor Engine 1, 2GE 3 $21,589.20
See Invoice #99764489 MEM-C65-FLC16M Catalyst 6000 Supervisor PCMCIA Flash Mem Card 3 $ 864.00
See Invoice #99764489 WS-X6408-GBIC Catalyst 6000 8-port Gigabit Ethernet Module 3 $21,589.00
See Invoice #99764489 WS-X6248-RJ-45 Catalyst 6000 48-port 10/100 RJ-45 Module 3 $28,069.20
See Invoice #99764489 CON-SNTP-WS-C6509 24x7x4 Service, Catalyst 6509 3 $31,200.00
Shipping & Handling $341.25
See Invoice #99764491 NRS-2FE NetRanger Sensor, 2 10/100bT Intfc 2 $27,360.00
CON-SNTP-LDIR430, smartnet premium 24x7x4 2 $ 8,635.00
Shipping & Handling $ 90.45
See Invoice #2125819 PA-2FEISL-TX 2 Port Fast Ethernet/ISL 100Base TX Port Adapter 2 $ 5,472.00
Shipping & Handling $ 28.07
See Invoice #2152775 CON-SNTP-NRS-2FE SNTP Svc, NetRanger Sensor, 2 10/100bT Intfc 2 $ 2,308.74
See Invoice #2152775 CON-SNTP-LDIR430 24X7X4 Service, LDIR-430, LocalDirector 430 2 $ 1,863.18
See Invoice #2152775 CON-SNTP-7206 SNTP Svc, -7206 2 $ 2,688.00
19
Collateral Schedule A
to
Schedule No. 01
ORACLE
Serial Number Vendor Item # Description Quantity Total Soft Cost
------------------------------------------------------------------------------------------------------------------------------------
OR-0308iPLPU Oracle Enterprise server V8i 4800 $297,600.00
perpetual license, power unit $ 0.00
Diagnostics Pack 4800 $ 22,320.00
Tuning Pack 4800 $ 22,320.00
OR-050PARALLEL8iPUSL Oracle Enterprise Edition Parallel server V8i 4800 $119,040.00
perpetual license, power unit annual support $ 0.00
Designer/2000 3 $ 5,575.00
1 Year Annual Technical Support 1 $ 96,378.00
Oracle Designer 2.1 for Microsoft 1 5,575.00
Silver Advance Service for Oracle Design 1 1,518.00
20
Collateral Schedule A
to
Schedule No. 01
Vendor Accure Software Inc.
Serial Number Item# Description Quantity Software Soft Cost
---------------------------------------------------------------------------------------------------------------------
Base Product 1 $17,000.00
Software Software Support - 17.5% of
software list price in year 1 1 $69,644.00
Additional Components UNIX CPUs Analyzed 33 $329,967.00
Additional Components Non-UNIX CPUs Analyzed 4 $31,996.00
Additional Components Network Segments Monitored 1 $4,000.00
Additional Components Vignette Bridge 1 $15,000.00
Quick Insight 1 $7,500.00
Administrator's Training 1 $2,000.00
Business Analyst Training 2 $2,000.00
Discount Special Discount Incentive 1 $156,328.00
21
ANNEX C
TO
SCHEDULE NO. 01
TO MASTER LEASE AGREEMENT
DATED AS OF AUGUST 9, 1999
CERTIFICATE OF ACCEPTANCE
To: GENERAL ELECTRIC CAPITAL CORPORATION (together with its successors and
assigns, if any, "LESSOR")
Pursuant to the provisions of the above schedule and lease (collectively,
the "LEASE"), Lessee hereby certifies and warrants that (a) all Equipment
listed below has been delivered and installed (if applicable); (b) Lessee has
inspected the Equipment, and all such testing as it deems necessary has been
performed by Lessee, Supplier or the manufacturer; (c) Lessee accepts the
Equipment for all purposes of the Lease, the purchase documents and all
attendant documents; and (d) the Equipment was first delivered to Lessee within
ten (10) days of the date hereof.
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.
DESCRIPTION OF EQUIPMENT
NUMBER
OF UNITS MANUFACTURER SERIAL NUMBERS MODEL AND TYPE OF EQUIPMENT
-------- ------------ -------------- ---------------------------
Numerous Personal Computers, monitors,
printers, software and the
various equipment needed for
installation and running of
the systems.
SEE COLLATERAL SCHEDULE A ATTACHED TO EQUIPMENT SCHEDULE NO. 01
FOR THE VARIOUS EQUIPMENT, SERIAL NUMBERS AND COST
Equipment immediately listed above is located at: 0000 X. Xxxxxxxx Xxxx,
Xxxxxxx, Xxxxxxxx Xxxxxx, XX
xxxxxxxx.xxx,Inc.
By: /s/ XXXXX XXXXXX
------------------------
Title: C.E.O.
---------------------
Dated: 10/01/99
---------------------
22
[GE LOGO]
GE Capital
--------------------------------------------------------------------------------
General Electric Capital Corporation
One Lincoln Centre, 0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
000 000-0000
November 4, 1999
xxxxxxxx.xxx,inc.
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxx, XX 00000
Attn: Xxxx Xxxxx
Dear Xx. Xxxxx:
Attached please find the following documents.
1. Equipment Schedule No. 02
2. Collateral Schedule A
3. Annex C (Certificate of Acceptance)
4. 1-UCC-1 Financing Statement, (SOS-AZ)
5. Invoice for Documentation & 1st Payment
The master documents dated 08/09/1999 will also be used for this schedule.
Please execute the documents and return the original by Federal Express. Should
you have any questions, please call. Thanks.
Sincerely,
General Electric Capital Corporation
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Documentation Specialist
A GE Capital Services Company
23
COMPUTER EQUIPMENT SCHEDULE
SCHEDULE NO. 02
DATED THIS 11/5/99
TO MASTER LEASE AGREEMENT
DATED AS OF AUGUST 9, 1999
LESSOR & MAILING ADDRESS: LESSEE & MAILING ADDRESS:
GENERAL ELECTRIC CAPITAL CORPORATION XXXXXXXX.XXX, INC.
XXX XXXXXXX XXXXXX, 0000 XXX XXXXXXX 0000 X. XXXXXXXX XXXX
XXXXX 0000, X.X.0 XXXXXXX, XX 00000
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 LESSOR'S COST MANUFACTURER SERIAL NUMBER MODEL AND TYPE OF EQUIPMENT
-------- ------------- ------------ ------------- ---------------------------
1 $1,048,073.67 Computers, printers, software and the
various equipment needed for installation
and running of the system.
SEE COLLATERAL SCHEDULE A ATTACHED HERETO FOR THE VARIOUS
EQUIPMENT, SOFTWARE, AND COSTS.
and including all additions, attachments, accessories and accessions thereto,
and any and all substitutions, replacements or exchanges therefor, and all
insurance and/or other proceeds thereof by and between Lessee and Lessor
whether now owned or hereafter acquired.
Equipment immediately listed above is located at: 0000 X. Xxxxxxx Xxxxx,
Xxxxx, Xxxxxxxx Xxxxxx, XX 00000
B. FINANCIAL TERMS
1. Advance Rent (if any): NOT APPLICABLE 5. Basic Term Commencement Date: NOVEMBER 5, 1999
2. Capitalized Lessor's Cost: $1,048,073.67 6. Lessee Federal Tax ID No.: 000000000
3. Basic Term (No. of Months): 36 Months. 7. Last Delivery Date: NOVEMBER 5, 1999
4. Basic Term Lease Rate Factor: 3.034789% 8. Daily Lease Rate Factor: N/A
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 NOT APPLICABLE.
11. Basic Term Rent. Commencing on NOVEMBER 5, 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 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 the Capitalized Lessor's Cost.
D. PROPERTY TAX
APPLICABLE TO EQUIPMENT LOCATED IN 0000 X. XXXXXXX XXXXX, XXXXX, XXXXXXXX
XXXXXX, XX 00000: 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.
1
24
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, (A) THE
PERSON(S) SUPPLYING THE EQUIPMENT IS ADVANCED SYSTEMS GROUP, BROADCAST
SOFTWARE INT'L, BROADCAST SUPPLY WORLDWIDE, ENGAGE TECHNOLOGIES, INC., KENT
DATACOMM, ORACLE, PACIFIC RESEARCH & ENGINEERING CORP., VIGNETTE
CORPORATION (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 AN
ACCURATE NAD 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 OR
HEREAFTER CONFERRED UPON A LESSEE IN ARTICLE 2A AND ANY RIGHTS NOW OR
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
------ ----------- ---------- ------ ----------- ----------
1 103.568 107.890 19 57.275 68.839
2 101.160 105.844 20 54.534 66.500
3 98.720 103.847 21 51.776 64.144
4 96.262 101.791 22 48.998 61.769
5 93.787 99.718 23 46.203 59.376
6 91.294 97.627 24 43.391 56.966
7 88.784 95.519 25 40.559 54.536
8 86.256 93.394 26 37,709 52,089
9 83.712 91.252 27 34.842 49.624
10 81.149 89.091 28 31.955 47.139
11 78.568 86.913 29 29.048 44.635
12 75.970 84.717 30 26.125 42.114
13 73.353 82.503 31 23.186 39.577
14 70.719 80.271 32 20.230 37.024
15 68.067 78.021 33 17.259 34.455
16 65.396 75.753 34 14.267 31,865
17 62.706 73.465 35 11.258 29.259
18 59.999 71.161 36 8.234 26.637
* 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-accidental Environment 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 environment 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
25
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 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.
3
26
H. PAYMENT AUTHORIZATION
You are hereby irrevocably authorized and directed to deliver and apply
the proceeds due under this Schedule as follows:
COMPANY NAME ADDRESS AMOUNT
------------ ------- ------
Advanced Systems Group, Inc. 00000 Xxxxx Xxxxx Xxxxxx $286,319.00
Xxxxxxxx, XX 00000
Broadcast Supply Worldwide 0000 - 00xx Xxxxxx Xxxx $ 26,454.24
Xxxxxx, XX 00000
Broadcast Software International 0000 Xxxxxx Xxxx Xxxx, Xxxxx X $ 9,426.00
Xxxxxx, XX 00000
Engage Technologies 000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx $ 52,608.00
Xxxxxxx, XX 00000
Kent Datacomm X.X. Xxx 000000 $ 61,634.85
Xxxxxxx, XX 00000-0000
Oracle Per Wire Instructions: $ 6,976.58
Xxxxx Fargo Bank
Chicago, IL
ABA# 000000000
Account # 4522-020841
Pacific Research & Engineering Corp. 0000 Xxx Xxxxxx Xxxxx $ 11,555.00
Xxxxxxxx, XX 00000
Vignette Corporation 901 S. MoPac Expwy $593,100.00
Xxxxxxxx 0
Xxxxxx, XX 00000
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
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 xxxxxxxx.xxx, inc.
By: By: /s/ XXXXX XXXXXX
-------------------------------- ------------------------------------
Name: Name: XXXXX XXXXXX
------------------------------ ----------------------------------
Title: Title: CEO
----------------------------- ---------------------------------
4
27
Collateral Schedule A
to
Schedule No. 02
ADVANCED SYSTEMS GROUP
VENDOR
SERIAL NUMBER ITEM# DESCRIPTION QUANTITY HARDWARE SOFTWARE
===============================================================================================================================
MD-NBS-1500-0 NETBACKUP FOR SUN MEDIA & DOC KIT 1 $ 200.00
SL-NBS1-1500-0 NETBACKUP SERVER LICENSE FOR SUN 2 $11,900.00
DS-NBS1-1500-0 DIRECT ASSIST SUPPORT 2 $ 2,602.00
SL-NBC1-1500-2 NETBACKUP CLIENT/1 LICENSE F/SOLARIS 32 $15,680.00
DS-NBC1-1500-2 DIRECT ASSIST SUPPORT 32 $ 3,424.00
XX-XXX0-0000-0 XXX MEDIA/DOCS (SOLARIS X86) 1 $ 100.00
XX-XXX0-0000-0 XXX CLIENT LIC (SOLARIS X86) 2 $ 980.00
XX-XXX0-0000-0 XXX CLIENT SUPPORT (SOLARIS X86) 2 $ 214.00
XX-XXX0-0000-0 XXX XX XXX XXXXX/XXX XXX-XXXXXX, SYSBAS 1 $ 100.00
XX-XXX0-0000-0 XXX DATABASE EXTENSION FOR ORACLE-LI 1 $ 3,500.00
DS-NBO1-1500-2 DIRECT SUPPORT: NBU DATABASE EXTENSION 1 $ 765.00
XX-XXX0-0000-0 XXX ROBOTIC SUPPORT - TIER 4 1 $17,500.00
XX-XXX0-0000-0 XXX SUPPORT - ROBOTICS TIER 4 1 $ 3,825.00
XX-XXX-0000-0 XXX ROBOTIC SUPPORT - TIER 4 2ND CONNEC 1 $ 7,000.00
XX-XXX0-0000-0 XXX SUPPORT - ROBOTICS TIER 4 2ND 1 $ 1,530.00
XX-XXX0-0000-0 XXXXXXX VAULT EXTENSION 1 $15,000.00
CS-NBV3-9900-1 SUPPORT - VERITAS VAULT EXTENSION 1 $ 2,550.00
00-0000-00 SCALAR 0000 XXX XXXXX XXX, 0 XXXXX XXXX 1 $36,800.00
00-0000-00 SCALAR 000/XXX XXXXX XXXXXX XXX0000, H 6 $45,000.00
X1065A ULTRA F/W/D SCSI ADAPTER 4 $ 3,936.00
S979A OPT CABLE DSCSI 12M 4 $ 1,060.00
X5235A 9, 1GB, 1000RPM EXP DISK FOR A1000/D10 2 $ 2,070.00
ASG-INSTALL ASG INSTALLATION SERVICES 1 $23,500.00
00-0000-00 SCALAR 1000 ON-SITE INSTALLATION 1 $ 1,500.00
A26-AA-R ENTERPRISE 250 SERVER BASE/RACKMOUNT 2 $ 7,948.00
937h3075
937h307C
X119A 400MHZ-2MB ULTRASPARC - 11 PROCESSOR MO 4 $20,160.00
19316
22770
W/937H3075
W/937H307C
X7004A 256MB FOR ULTRA (2X128MB) 8 $10,800.00
X5234A 9, GB 1000 - RPM ULTRASCSI HARD DRIVE 12 $11,880.00
X3668A PGX32 8BIT COLOR FRAME BUFFER W/ 2 $ 532.00
X9683A REDUNDANT POWER SUPPLY 2 $ 1,252.00
xxxxxxxx.xxx, inc. 1
28
Collateral Schedule A
to
Schedule No. 02
ADVANCED SYSTEMS GROUP
VENDOR
SERIAL NUMBER ITEM # DESCRIPTION QUANTITY HARDWARE SOFTWARE
------------- ----------------- ----------------------------------------- -------- --------- ---------
X1032A 100BT & F/W SCSI PCI ADAPTER 2 $1,512.00
SL-WEB1-1500-1 WEB EDITION - LICENSE ONLY, TIER 2 W/V 2 $7,744.00
DS-WEB1-1500-1 WEB EDITION - DIRECT ASSIST SUPPORT ON 2 $1,834.00
X311L POWER CORD 4 $ --
IS-ESB ENTERPRISE SYSTEM BUILD BY ACCESS INTE 2 $ --
ASG-INSTALL ASG INSTALLATION SERVICES 2 $3,990.00
SUN-SPECTRUM13 SUN SPECTRUM MAINTENANCE 2 $3,876.00
A21UHC1A9P-B256CP ULTRA 0, 000XXX, 000XX, 0XX, XX, XXX G 1 $3,641.00
X7119A 19" COLOR MONITOR 1 $ 711.00
ISOL-2.6-USL-P SOLARIS 2.6 FOR X86 WGS MEDIA, LICENSE 3 $2,085.00
X3515A UNIX TYPE-6 KEYBOARD - U.S./IN AMERICAN 1 $ --
SUN-SPECTRUM17 SUN SPECTRUM MAINTENANCE 1 $ 429.00
ASG-INSTALL ASG INSTALLATION SERVICES 1 $ 995.00
SG-XARY030A 72" STOREGE EXPANSION RACK 2 $5,700.00
X9818A FRONT DOOR ASSEMBLY FOR 72" CABINET 1 $ 494.00
X3858A POWER CORD FOR A3500, DOMESTIC 2 $ --
Invoice #
006655-6714-6718-6719F
xxxxxxxx.xxx,inc. 2
29
Collateral Schedule A
to
Schedule No. 02
BROADCAST SOFTWARE INTERNATIONAL
VENDOR
SERIAL NUMBER ITEM # DESCRIPTION QUANTITY HARDCOST SOFTWARE
------------- ----------------- ----------------------------------------- -------- --------- ---------
WSR WaveStation-Digital Audio Automation 1 $900.00
STR STINGER 2 $398.00
CMR Call Master 1 $349.00
CPRO Cool Edit Pro 1.1 1 $349.00
ASI4113 AudioScience ASI4113 - Triple Play, 3 $7,185.00
Single Record Balanced Audio Adaptor
Xxxx.Xxxxxxxx Telephone Training - Buy 2 hours get 1 hour 2 $100.00
free special
Shipping Prep, Handling & Insured Shipping $ 46.00
3
30
Collateral Schedule A
to
Schedule No. 02
BROADCAST SUPPLY WORLDWIDE
SERIAL NUMBER VENDOR ITEM # DESCRIPTION QUANTITY HARDCOST SOFTWARE
---------------------------------------------------------------------------------------------------------------------------
DNM2000R MINIDISC DJ RECORDER/PLAYER 3 $1,866.00
DN2500F CD PLAYER, DUAL TRANSPORT DJ 2 $1,992.28
K240M HEADPHONE 6 $ 450.00
610 BROADCAST AUDIO DELAY 1 $2,194,00
501 SINGLE CHANNEL COMP/LIMITER 2 $ 596.00
0000 XXXXXXX, XX ANALOG I/O 1 $3,670,00
HSC200SR BROADCAST ELECTRET HEADSET 2 $ 370.00
DT190 HEADSET W/INSTALLED CONNECTO 4 $1,096,00
RE20 MICROPHONE, DYNAMIC CARDIOID 6 $2,220.00
309A SHOCK MOUNT FOR RE20 6 $ 549.90
MS12C MIC XXXXX, XXXXX 0 $ 65.16
LM1-3BLK MIC BOOM, HEAVY DUTY 3LB, BLA 5 $ 244.20
WS1BLU WINDSCREEN, RE20/MD421U-NAVY 3 $ 49.56
WS1GR WINDSCREEN, RE20/MD421U-GREEN 3 $ 49.56
M25 MIC CABLE, 25' LOW Z #SMM25 5 $ 35.65
M10 MIC CABLE, 10' LOW Z #SMM10 5 $ 34.80
SMM5 MIC CABLE, MALE TO FEMALE XLR 5 $ 29.40
420 AMPLIFIER, POWER-STEREO 2 $ 597.68
NS10MS SPEAKERS, MONITOR-PAIR 2 $ 654.00
HA6A AMPLIFIER, HEADPHONE 1 $ 274.00
528E VOICE PROCESSOR 2 $1,032.00
8451BLKBOX CABLE, IN BOX, 1000' - BLACK 1 $ 80.00
CW2K12X12CH CUTTING WEDGE 2000, 12" X 12" - CHA 256 $ 596.48
CW2K2X4CH CUTTING WEDGE 2000, 2 X 4 - CHARC 128 $2,387.20
FREIGHT CHAR MISC. FREIGHT CHARGE 1 $ 350.00
220 DIRECT INTERFACEMODULE (DIM) 1 $1,691.00
310 SWITCH CONSOLE 1 $ 600.00
140 DIGITAL HYBRID, 200 DELTA 1 $1,636.00
900# TELOS MYTEL 0702-000 1 $ 270.00
AW LIGHT, ON AIR, SINGLE LENDS, WAL 1 $ 97.91
RW LIGHT, RECORDING, SINGLE LENS 1 $ 97.91
AC LIGHT, ON AIR, DUAL LENS, WALL 1 $ 115.51
RC LIGHT, RECORDING, SUAL LENDS, WALL 2 $ 231.02
900# PROLITE BC BLACK CEILING XXXX 2 $ 231.02
xxxxxxxx.xxx, inc. 4
31
Collateral Schedule A
to
Schedule No. 02
ENGAGE TECHNOLOGIES, INC.
SERIAL NUMBER VENDOR ITEM # DESCRIPTION QUANTITY HARDCOST SOFTWARE
---------------------------------------------------------------------------------------------------------------------------------
Accipiter Gold License Upgrade 1 $32,600.00
Pro-rated Support Contract Upgrade (Until 11/31/1 1 $ 1,358.00
Annual Support Contract (Until 11/3/2000) 1 $11,150.00
Consulting for transition to UNIX 5 $ 7,500.00
xxxxxxxx.xxx, inc. 5
32
Collateral Schedule A
to
Schedule No. 02
KENT DATACOMM
VENDOR
SERIAL NUMBER ITEM# DESCRIPTION QUANTITY HARDWARE SOFTWARE
----------------------------------------------------------------------------------------------------------------------------
NM-16AM= 16 Port Analog Modem Network Module, Spare 1 $ 3,168.00
WIC-1DSU-T1= 1-Port T1/Fractional T1 DSU/CSU WAN Interface Card 1 $ 720.00
CSNT-2.3 CiscoSecure ACS V2.3 for Windows NT 1 $ 3,240.00
WS-G5484= 1000BASE-SX "Short Wavelength GBIC" (Mullimode on) 10 $ 3,600.00
WS-X6248-RJ-45= Catalyst 6000 48-port 10/100 RJ-45 Module, Spare 3 $28,069.20
15951 DalaSMART T3/E3 IDSU, AC 2 $ 6,892.50
C7200-I/O= Cisco 7200 Input/Output Controller, Spare 2 $ 1,440.00
RETURN - C7200-I/O-FE Cisco 7200 Input/Output Controller with Fast Ethernet Port 2 $(3,600.00)
MEM-SD-NPE-128MB 128MB Memory Upgrade Kit for NPE-30 2 $ 3,456.00
WS-X6302-MSM Catalyst 6000 Multilayer Switch Module 1 $14,396.40
SFC6-MSM-12.0.1W Catalyst 6000 MSM IP/IP-Multicast Routing Feature Set 1 $ --
WS-X6302-MSM Catalyst 6000 Multilayer Switch Module 1 $ --
SFC6-MSM-12.0.1W Catalyst 6000 MSM IP/IP-Multicast Routing Feature Set 1 $ --
Shipping $252.75
xxxxxxxx.xxx, inc. 6
33
Collateral Schedule A
to
Schedule No. 02
ORACLE
VENDOR
SERIAL NUMBER ITEM# DESCRIPTION QUANTITY HARDCOST SOFTCOST
----------------------------------------------------------------------------------------------------------------------------
Silver Advance Service for Oracle Design 1 $1,680.00
Designer & Oracle Toos CD Pack v1 for 1 $5,296.58
Microsoft Windows 95/98/N
xxxxxxxx.xxx, inc. 7
34
Collateral Schedule A
to
Schedule No. 02
PACIFIC RESEARCH & ENGINEERING
VENDOR
SERIAL NUMBER ITEM # DESCRIPTION QUANTITY HARDCOST SOFT COST
----------------------------------------------------------------------------------------------------------------------
99-970-1 12-Input Airwave Mainframe Assembly 1 $ 3,439.00
99-962 Stereo Line Input Module 11 $ 6,006.00
99-963 Telephone Line Input/Mix-Minus Output Module 1 $ 615.00
99-1109 Audio Wiring System for Airwave-12 Console 1 $ 1,495.00
xxxxxxxx.xxx, inc. 8
35
Collateral Schedule A
to
Schedule No. 02
VIGNETTE CORPORATION
VENDOR
SERIAL NUMBER ITEM # DESCRIPTION QUANTITY PRICE/EA. HARDCOST SOFT COST
----------------------------------------------------------------------------------------------------------------------------------
SS-Department StoryServer Live Delivery Server License 2 $100,000.00 $200,000.00
Page Views-2000K StoryServer Page View License 2000K/Day 6 $40,000.00 $240,000.00
SS-Developer-5VDC-5 StoryServer Template Developer License 1 $20,000.00
SS-SM StoryServer Updates and Web-Based Support 1 $107,100.00
SS-TS-2 StoryServer Phone Support 1 $10,000.00
VT-CSS0S4 StoryServer Training 1 $16,000.00
xxxxxxxx.xxx, inc. 9
36
(8/91) ANNEX C
TO
SCHEDULE NO. 02
TO MASTER LEASE AGREEMENT
DATED AS OF August 9, 1999
CERTIFICATE OF ACCEPTANCE
To: GENERAL ELECTRIC CAPITAL CORPORATION (together with its successors and
assigns, if any, "LESSOR")
Pursuant to the provisions of the above schedule and lease (collectively,
the "LEASE"), Lessee hereby certifies and warrants that (a) all Equipment
listed below has been delivered and installed (if applicable); (b) Lessee has
inspected the Equipment, and all such testing as it deems necessary has been
performed by Lessee, Supplier or the manufacturer; (c) Lessee accepts the
Equipment for all purposes of the Lease, the purchase documents and all
attendant documents; and (d) the Equipment was first delivered to Lessee within
ten (10) days of the date hereof.
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.
DESCRIPTION OF EQUIPMENT
NUMBER
OF UNITS MANUFACTURER SERIAL NUMBERS MODEL AND TYPE OF EQUIPMENT
-------- ------------ -------------- ---------------------------
Numerous Computers, software and the various
equipment needed for installation
and running of the system.
SEE COLLATERAL SCHEDULE A ATTACHED TO EQUIPMENT SCHEDULE NO. 2 FOR THE
VARIOUS EQUIPMENT SOFTWARE AND COST.
Equipment immediately listed above is located at: 0000 X. Xxxxxxx Xxxxx, Xxxxx,
Xxxxxxxx Xxxxxx, XX 00000
xxxxxxxx.xxx, inc.
By: /s/ Xxxxx Xxxxxx
---------------------
Title: Xxxxx Xxxxxx CEO
---------------------
Dated: 11/5/99
---------------------
37
[GE logo] General Electric Capital Corporation
--------------------------------------------------------------
------------------------------------------------------
Billing Id. Invoice No. Due Date
------------------------------------------------------
4092172-02 11/05/1999
------------------------------------------------------
Current Due Total Due
------------------------------------------------------
$ $34,660.52
------------------------------------------------------
MAKE CHECKS PAYABLE AND REMIT TO:
GENERAL ELECTRIC CAPITAL CORPORATION
0000 XXX XXXXXXX, XXXXX 0000,
ONE LINCOLN CENTRE, L.B.3
XXXXXX, XX 00000
ATTN: XXXXX X. BRACHES
xxxxxxxx.xxx,inc.
0000 Xxxxxxx Xxxxx
Xxxxx, XX 00000
Attn: Xxxx Xxxxx
To ensure proper credit-detach along dotted line and return upper portion with
payment.
Please do not staple or fold.
--------------------------------------------------------------------------------
[GE logo] General Electric Capital Corporation
________________________________________________________________________________
BILLING ID. CUSTOMER NO. OFFICE ID. CUSTOMER SERVICE
4092172-002 8230 0-000-XXX-XXXX
INVOICE NO. INVOICE DATE DUE DATE TOTAL DUE
11/03/99 11/05/99 $34,660.52
xxxxxxxx.xxx,inc.
0000 Xxxxxxx Xxxxx
Xxxxx, XX 00000
Attn: Xxxx Xxxxx
--------------------------------------------------------------------------------------------------------
ACCOUNT DUE DATE DESCRIPTION AMOUNT
--------------------------------------------------------------------------------------------------------
4092172-002 11/03/99 1st Payment $31,806.82
Sales Tax @ 7.40% $ 2,353.70
Documentation Fee $ 500.00
--------------------------------------------------------------------------------------------------------
RETAIN THIS PORTION
38
hSLB/CS(R062599)
FURNITURE SCHEDULE
SCHEDULE NO. 003
DATED THIS 12/29/99
TO MASTER LEASE AGREEMENT
DATED AS OF August 9, 1999
Lessor & Mailing Address: Lessee & Mailing Address:
------------------------- -------------------------
GENERAL ELECTRIC CAPITAL CORPORATION xxxxxxxx.xxx, inc.
XXX XXXXXXX XXXXXX, 0000 XXX XXXXXXX XXXXX 0000, X.X. 3 0000 X. XXXXXXXX XXXX
XXXXXX, 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 LESSOR'S COST MANUFACTURER SERIAL NUMBER MODEL AND TYPE OF EQUIPMENT
1 $800,000.00 Misc. Furniture & Fixtures All of Debtor's now owned and hereafter
acquired furniture and fixtures, together
with all parts, attachments, accessories,
substitutions, repairs, improvements and
replacements thereto, and any proceeds
thereof, including but not limited to
insurance proceeds.
Equipment immediately listed above is located at: 0000 X. Xxxxxxx Xxxxx,
Xxxxx, Xxxxxxxx Xxxxxx, XX 00000
B. FINANCIAL TERMS
1. Advanced Rent (if any): NOT APPLICABLE 5. Basic Term Commencement Date: JANUARY 2, 2000
2. Capitalized Lessor's Cost: $800,000.00 6. Lessee Federal Tax ID No.: 000000000
3. Basic Term (No. of Months): 60 MONTHS. 7. Last Delivery Date: DECEMBER 29, 1999
4. Basic Term Lease Rate Factor: 1.8941903% 8. Daily Lease Rate Factor: .0613968%
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 JANUARY 1, 2000.
11. Basic Term Rent. Commencing on JANUARY 2, 2000 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: 7 YEARS
3. Basis: 100% OF THE CAPITALIZED LESSOR'S COST.
39
D. PROPERTY TAX
APPLICABLE TO EQUIPMENT LOCATED AT 0000 X. XXXXXXX XXXXX, XXXXX, XXXXXXXX
XXXXXX, XX 00000: 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.
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, (A) THE PERSON(S)
SUPPLYING THE EQUIPMENT IS xxxxxxxx.xxx,inc. (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 AN 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 OR
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
1 103.721 107.735 31 64.317 70.435
2 102.601 106.685 32 62.842 69.031
3 101.452 105.607 33 61.359 67.618
4 100.273 104.498 34 59.867 66.196
5 99.083 103.377 35 58.362 64.762
6 97.881 102.246 36 56.849 63.319
7 96.668 101.102 37 55.327 61.867
8 95.443 99.948 38 53.793 60.403
9 94.207 98.783 39 52.247 58.927
10 92.960 97.605 40 50.693 57.443
11 91.701 96.417 41 49.131 55.951
12 90.431 95.217 42 47.560 54.451
13 89.149 94.005 43 45.982 52.943
14 87.856 92.782 44 44.392 51.422
15 86.552 91.548 45 42.793 49.894
16 85.238 90.305 46 41.186 48.357
17 83.915 89.052 47 39.568 46.809
18 82.582 87.789 48 37.946 45.257
19 81.239 86.516 49 36.313 43.694
20 79.885 85.232 50 34.669 42.121
21 78.521 83.938 51 33.014 40.536
22 77.147 82.634 52 31.348 38.941
23 75.762 81.319 53 29.671 37.334
24 74.367 79.994 54 27.983 35.716
25 72.961 78.659 55 26.284 34.087
26 71.545 77.313 56 24.573 32.446
27 70.116 75.954 57 22.851 30.794
28 68.679 74.587 58 21.117 29.131
29 67.234 73.212 59 19.372 27.456
30 65.779 71.828 60 17.615 25.769
40
*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:
1. The LEASING Section subsection (b) of the Lease is hereby deleted in
its entirety and the following substituted in its stead:
(b) The obligation of Lessor to purchase the Equipment from Lessee and
to lease the same to Lessee shall be subject to receipt by Lessor, on or
prior to the earlier of the Lease Commencement Date or Last Delivery Date
therefor, of each of the following documents in form and substance
satisfactory to Lessor: (i) a Schedule for the Equipment (ii) evidence of
insurance which complies with the requirements of the INSURANCE Section of
the Lease, and (iii) such other documents as Lessor may reasonably request.
Once the Schedule is signed, the Lessee may not cancel the Lease.
2. The DELIVERY, USE AND OPERATION Section subsection (a) of the Lease
shall be deleted and the following substituted in its stead:
The parties acknowledge that this is a sale/leaseback transaction and
the Equipment is in Lessee's possession as of the Lease Commencement
Date.
3. XXXX OF SALE
Lessee, in consideration of the Lessor's payment of the amount set
forth in B 2 above, which includes any applicable sales taxes (which
payment Lessee acknowledges), hereby grants, sells, assigns, transfers and
delivers to Lessor the Equipment along with whatever claims and rights
Seller may have against the manufacturer and/or Supplier of the Equipment,
including but not limited to all warranties and representations. At Lessors
request Lessee will cause Supplier to deliver to Lessor a written statement
wherein the Supplier (i) consents to the assignment to Lessor of whatever
claims and rights Lessee may have against the Supplier, (ii) agrees not to
retain any security interest, lien or other encumbrance in or upon the
Equipment at any time, and to execute such documents as Lessor may request
to evidence the release of any such encumbrance, and (iii) represents and
warrants to Lessor (x) that Supplier has previously conveyed full title to
the Equipment to Lessee, (y) that the Equipment was delivered to Lessee and
installation completed, and (z) that the final purchase price of the
Equipment (or a specified portion of such purchase price) has been paid by
Lessee.
Lessor is purchasing the Equipment for leasing back to Lessee pursuant
to the Lease. Lessee represents and warrants to Lessor that (i) Lessor will
acquire by the terms of this Xxxx of Sale good title to the Equipment free
from all liens and encumbrances whatsoever; (ii) Lessee has the right to
sell the Equipment; and (iii) the Equipment has been delivered to Lessee in
good order and condition, and conforms to the specifications, requirements
and standards applicable thereto; and (iv) the equipment has been
accurately labeled, consistent with the requirements of 40 CFR part 82
Subpart E, with respect to products manufactured with a controlled
(ozone-depleting) substance.
Lessee agrees to save and hold harmless Lessor from and against any
and all federal, state, municipal and local license fees and taxes of any
kind or nature, including, without limiting the generality of the
foregoing, any and all excise, personal property, use and sales taxes, and
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, actions and suits resulting therefrom and imposed upon,
incurred by or asserted against Lessor as a consequence of the sale of the
Equipment to Lessor.
4. ACCEPTANCE
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); (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.
5. EQUIPMENT SPECIFIC PROVISIONS
RETURN PROVISIONS: In addition to the provisions provided for in the RETURN
OF EQUIPMENT Section of the Lease, and provided that Lessee has elected not
to exercise its option to purchase the Equipment, Lessee shall, at its
expense:
(a) at least ninety (90) days and not more than one hundred twenty
(120) days prior to lease termination: (i) ensure Equipment has been
maintained, and is operating, within manufacturer's specifications; and;
(ii) cause manufacturer's representative or other qualified maintenance
provider, acceptable to Lessor, to perform a physical inspection and test
of all the components and capabilities of the Equipment and provide a full
inspection report to Lessor, and
41
that there shall be no missing screws, bolts, fasteners, etc.; the furniture
will be free from all large scratches, marks, gouges, dents, discoloration or
stains; all drawers, runners, and locks will be in good working condition to
include keys; and there shall be no evidence of extreme use or overloading,
i.e. bowed or sagging shelves; (iii) if during such inspection the Equipment is
found not to be in compliance with the above, then Lessee shall remedy them per
the Lease Agreement and provide a follow-up inspection to verify the Equipment
meets the return provisions.
(b) Upon lease termination, Lessee shall (i) have the manufacturer's
representative or other person acceptable to Lessor de-install all Equipment
including all wire, cable, and mounting hardware; (ii) if applicable, ensure
all necessary permits and labor are obtained to deliver the Equipment; (iii)
the Equipment shall be packed properly and in accordance to the manufacturer's
recommendations; (iv) the Lessee shall provide for the 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; (v) at
Lessor's choice, either (1) allow Lessor, at Lessor's expense, and provided
Lessor has provided reasonable notice to Lessee, to arrange for an on-site
auction of the Equipment which will be conducted in a manner that will not
interfere with the Lessee's business operations, or (2) Lessee shall provide
free safe storage for the Equipment for a period not to exceed sixty (60) days
from the Lease expiration.
6. LEASE TERM OPTIONS
EARLY LEASE TERM OPTIONS
The Lease is hereby amended by adding the following to the end thereof:
CANCELLATION OPTION:
(a) So long as no default exists hereunder and expressly provided that all
of the terms and conditions of this Provision are fulfilled, Lessee may cancel
the Agreement as to all (but not less than all) of the Equipment on this
Schedule as of any one of the Cancellation Dates set forth below (each, a
"Cancellation Date") upon at least 90 days prior written notice (the "Notice
Date") to Lessor (which notice shall be irrevocable and shall be sent to the
attention of Lessor's Asset Management Organization, 00 Xxx Xxxxxxxxx Xxxx,
Xxxxxxx, XX 00000-0000). Such notice shall state the Cancellation Date, which
shall apply. If all of the terms and conditions of this Provision are not
fulfilled, this Lease shall continue in full force and effect and Lessee shall
continue to be liable for all obligations thereunder, including, without
limitation, the obligation to continue paying rent.
(b) Prior to the Cancellation Date, Lessee shall
(i) pay to Lessor, as additional rent, (A) the Cancellation Value
(set forth below for the applicable Cancellation Date) for the Equipment, plus
(B) all rent and all other sums due and unpaid as of the Cancellation Date
(including, but not limited to, any Rent payment due and payable on the
Cancellation Date and any sales taxes and property taxes); and
(ii) return the Equipment in full compliance with the RETURN OF
EQUIPMENT Section of the Lease, such compliance being independently verified by
an independent appraiser selected by Lessor (reasonably acceptable to Lessee)
to determine that the Equipment is in such compliance, which determination
shall be final, binding and conclusive. Lessee shall bear all costs associated
with such appraiser's determination and such costs, if any, to cause the
Equipment to be in full compliance with the RETURN OF EQUIPMENT Section of the
Lease on or prior to such Cancellation Date.
(c) The Cancellation Dates and the applicable Cancellation Values are as
set forth below:
January 2, 2001 74.277% of Capitalized Lessors Costs
(d) Lessee shall, from the applicable Notice Date through the Cancellation
Date,
(i) continue to comply with all of the terms and conditions of the
Lease, including, but not limited to, Lessee's obligation to pay rent, and
(ii) make the Equipment available to Lessor in such a manner as to
allow Lessor to market and demonstrate the Equipment to potential purchasers or
lessees from such premises at no cost to Lessor; provided, however, that,
subject to Lessor's right to market and demonstrate the Equipment to potential
purchasers or lessees from time to time, Lessee may still use the Equipment
until the Cancellation Date.
(e) Lessee shall, from the applicable Cancellation Date through the earlier
of the date the Equipment is sold by Lessor to a third party or 30 days
following the Cancellation Date, comply with the following terms and conditions:
(i) Continue to provide insurance for the Equipment, at Lessee's own
expense, in compliance with the terms found in the INSURANCE Section of the
Lease, and
(ii) Make the Equipment available to Lessor and/or allow Lessor to
store the Equipment at Lessee's premises, in such a manner as to allow Lessor
to market and demonstrate the Equipment to potential purchasers or lessees from
such premises at no cost to Lessor.
42
(f) The proceeds of any sale or re-lease of the Equipment after
Lessee has exercised its Cancellation Option shall be for the sole benefit
of Lessor and Lessee shall have no interest in or any claim upon any of
such proceeds.
The Lease is amended by adding the following thereto:
EARLY PURCHASE OPTION:
(a) Provided that the Lease has not been earlier terminated and
provided further that Lessee is not in default under the Lease or any other
agreement between Lessor and Lessee, Lessee may, UPON AT LEAST 30 DAYS BUT
NO MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO LESSOR OF LESSEE'S
IRREVOCABLE ELECTION TO EXERCISE SUCH OPTION, purchase on an AS IS BASIS
all (but not less than all) of the Equipment listed and described in this
Schedule on the rent payment date (the "Early Purchase Date") which is 48
months from the Basic Term Commencement Date for a price equal to
THIRTY-THREE AND 32/100 percent (33.32%) of the Capitalized Lessor's Cost
(the "FMV Early Option Price"), plus all applicable sales taxes.
Lessor and Lessee agree that the FMV Early Option Price is a reasonable
prediction of the Fair Market Value (as such term is defined in the
PURCHASE OPTION Section subsection (b) of the Lease hereof) of the
Equipment at the time the option is exercisable. Lessor and Lessee agree
that if Lessee makes any non-severable improvement to the Equipment which
increases the value of the Equipment and is not required or permitted by
the MAINTENANCE Section or the RETURN OF EQUIPMENT Section of the Lease
prior to lease expiration, then at the time of such option being exercised,
Lessor and Lessee shall adjust the purchase price to reflect any addition
to the price anticipated to result from such improvement. (The purchase
option granted by this subsection shall be referred to herein as the "Early
Purchase Option".)
(b) If Lessee exercises its Early Purchase Option with respect to the
Equipment leased hereunder, then on the Early Purchase Option Date, Lessee
shall pay to Lessor any Rent and other sums due and unpaid on the Early
Purchase Option Date and Lessee shall pay the FMV Early Option Price, plus
all applicable sales taxes, to Lessor in cash.
H. PAYMENT AUTHORIZATION
You are hereby irrevocably authorized and directed to deliver and apply
the proceeds due under this Schedule as follows:
COMPANY NAME ADDRESS AMOUNT
---------------------------------------------------------------------------
xxxxxxxx.xxx, inc. 0000 X. Xxxxxxxx Xxxx $800.000.00
Xxxxxxx, XX 00000
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
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 xxxxxxxx.xxx, inc.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxxx
----------------------------------- -----------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx Xxxxxxx
Title: Senior Risk Analyst Title: CFO Action Performance
43
[ACTION PERFORMANCE COMPANIES, INC. XXXXXXXXXX]
Xxxxxxxx 00, 0000
XX Xxxxxxx Xxxx.
000 X. 00xx Xx
Xxxxx 000
Xxxxxxx, XX 00000
To Whom It May Concern:
As Chairman of the Board and CEO of Action Performance Companies, Inc.
("Action"), I hereby affirm that Xxxxx Xxxxxxx is an authorized officer of
Action, and therefore is allowed to execute agreements on behalf of Action and
its wholly owned subsidiaries. These subsidiaries include xxxxxxxx.xxx, inc.
and this mandate provides Xxxxx Xxxxxxx the authorization to execute agreements
on behalf of goracing and/or obligate Action to guarantee funds of goracing, to
any of its vendors, including GE Capital Corporation.
Sincerely,
Action Performance Companies, Inc.
/s/ Xxxx X. Xxxxxxxxx
___________________________
Xxxx X. Xxxxxxxxx
C.E.O.
44
SLB/CS(R062599) [BAR CODE]
FURNITURE SCHEDULE
SCHEDULE NO. 004
DATED THIS JAN. 24, 2000
TO MASTER LEASE AGREEMENT
DATED AS OF AUGUST 9, 1999
LESSOR & MAILING ADDRESS: LESSEE & MAILING ADDRESS:
------------------------- -------------------------
GENERAL ELECTRIC CAPITAL CORPORATION xxxxxxxx.xxx, inc.
XXX XXXXXXX XXXXXX, 0000 XXX XXXXXXX XXXXX 0000, X.X. 3 0000 X. XXXXXXXX XXXX
XXXXXX, 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 LESSOR'S COST MANUFACTURER SERIAL NUMBER MODEL AND TYPE OF EQUIPMENT
-------- ------------- ------------ ------------- ---------------------------
1 $583,097.00 Misc. Furniture & Fixtures All of Debtor's now owned and
hereafter acquired furniture
and fixtures, together with all
parts, attachments, accessories,
substitutions, repairs, improvements
and replacements thereto, and any
proceeds thereof, including but not
limited to insurance proceeds.
Equipment immediately listed above is located at: 0000 X. Xxxxxxx Xxxxx,
Xxxxx, Xxxxxxxx Xxxxxx, XX 00000
B. FINANCIAL TERMS
1. Advance Rent (if any): NOT APPLICABLE 5. Basic Term Commencement Date: FEBRUARY 1, 2000
2. Capitalized Lessor's Cost: $583,097.00 6. Lessee Federal Tax ID No.: 000000000
3. Basic Term (No. of Months): 60 Months. 7. Last Delivery Date: JANUARY 24, 2000
4. Basic Term Lease Rate Factor: 1.897760% 8. Daily Lease Rate Factor: .063259%
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 JANUARY 31, 2000.
11. Basic Term Rent. Commencing on FEBRUARY 1, 2000 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: 7 YEARS.
3. Basis: 100% of the Capitalized Lessor's Cost.
D. PROPERTY TAX
APPLICABLE TO EQUIPMENT LOCATED IN 0000 X. XXXXXXX XXXXX, XXXXX, XXXXXXXX
XXXXXX, XX 00000: 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.
45
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, (A) THE PERSON(S)
SUPPLYING THE EQUIPMENT IS xxxxxxxx.xxx, inc. (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 AN 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 OR 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
1 103.413 107.427 31 64.893 70.900
2 102.283 106.364 32 63.428 69.502
3 101.145 105.292 33 61.953 68.093
4 99.998 104.211 34 60.465 66.671
5 98.842 103.122 35 58.965 65.238
6 97.677 102.023 36 57.455 63.794
7 96.500 100.913 37 55.931 62.337
8 95.315 99.794 38 54.404 60.877
9 94.121 98.667 39 52.876 59.415
10 92.915 97.527 40 51.336 57.941
11 91.700 96.379 41 49.784 56.456
12 90.476 95.221 42 48.220 54.958
13 89.240 94.051 43 46.644 53.449
14 87.992 92.870 44 45.056 51.927
15 86.732 91.676 45 43.455 50.392
16 85.460 90.470 46 41.842 48.846
17 84.174 89.251 47 40.216 47.286
18 82.877 88.020 48 38.578 45.714
19 81.567 86.777 49 36.927 44.130
20 80.244 85.521 50 35.263 42.533
21 78.909 84.252 51 33.587 40.922
22 77.562 82.971 52 31.897 39.299
23 76.202 81.677 53 30.194 37.662
24 74.828 80.370 54 28.478 36.013
25 73.443 79.051 55 26.748 34.350
26 72.045 77.720 56 25.006 32.673
27 70.636 76.378 57 23.249 30.983
28 69.217 75.025 58 21.479 29.280
29 67.787 73.661 59 19.695 27.563
30 66.346 72.287 60 17.898 25.831
* 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:
1. The LEASING Section subsection (b) of the Lease is hereby deleted in
its entirety and the following substituted in its stead:
46
b) The obligation of Lessor to purchase the Equipment from Lessee and to
lease the same to Lessee shall be subject to receipt by Lessor, on or prior to
the earlier of the Lease Commencement Date or Last Delivery Date therefor, of
each of the following documents in form and substance satisfactory to Lessor:
(i) a Schedule for the Equipment (ii) evidence of insurance which complies with
the requirements of the INSURANCE Section of the Lease, and (iii) such other
documents as Lessor may reasonably request. Once the Schedule is signed, the
Lessee may not cancel the Lease.
2. The DELIVERY, USE AND OPERATION Section subsection (a) of the Lease shall
be deleted and the following substituted in its stead:
The parties acknowledge that this is a sale/leaseback transaction and the
Equipment is in Lessee's possession as of the Lease Commencement Date.
3. XXXX OF SALE
Lessee, in consideration of the Lessor's payment of the amount set forth
in B 2. above, which includes any applicable sales taxes (which payment Lessee
acknowledges), hereby grants, sells, assigns, transfers and delivers to Lessor
the Equipment along with whatever claims and rights Seller may have against the
manufacturer and/or Supplier of the Equipment, including but not limited to all
warranties and representations. At Lessors request Lessee will cause Supplier
to deliver to Lessor a written statement wherein the Supplier (i) consents to
the assignment to Lessor of whatever claims and rights Lessee may have against
the Supplier, (ii) agrees not to retain any security interest, lien or other
encumbrance in or upon the Equipment at any time, and to execute such documents
as Lessor may request to evidence the release of any such encumbrance, and
(iii) represents and warrants to Lessor (x) that Supplier has previously
conveyed full title to the Equipment to Lessee, (y) that the Equipment was
delivered to Lessee and installation completed, and (z) that the final purchase
price of the Equipment (or a specified portion of such purchase price) has been
paid by Lessee.
Lessor is purchasing the Equipment for leasing back to Lessee pursuant to
the Lease. Lessee represents and warrants to Lessor that (i) Lessor will
acquire by the terms of this Xxxx of Sale good title to the Equipment free from
all liens and encumbrances whatsoever, (ii) Lessee has the right to sell the
Equipment; and (iii) the Equipment has been delivered to Lessee in good order
and condition, and conforms to the specifications, requirements and standards
applicable thereto; and (iv) the equipment has been accurately labeled,
consistent with the requirements of 40 CFR part 82 Subpart E, with respect to
products manufactured with a controlled (ozone-depleting) substance.
Lessee agrees to save and hold harmless Lessor from and against any and
all federal, state, municipal and local license fees and taxes of any kind or
nature, including, without limiting the generality of the foregoing, any and
all excise, personal property, use and sales taxes, and from and against any
and all liabilities, obligations, losses, damages, penalties, claims, actions
and suits resulting therefrom and imposed upon, incurred by or asserted against
Lessor as a consequence of the sale of the Equipment to Lessor.
4. ACCEPTANCE
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); (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.
5. EQUIPMENT SPECIFIC PROVISIONS
RETURN PROVISIONS: In addition to the provisions provided for in the RETURN OF
EQUIPMENT Section of the Lease, and provided that Lessee has elected not to
exercise its option to purchase the Equipment, Lessee shall, at its expense:
(a) at least ninety (90) days and not more than one hundred twenty (120)
days prior to lease termination: (i) ensure Equipment has been maintained, and
is operating, within manufacturer's specifications; and; (ii) cause
manufacturer's representative or other qualified maintenance provider,
acceptable to Lessor, to perform a physical inspection and test of all the
components and capabilities of the Equipment and provide a full inspection
report to Lessor, and that there shall be no missing screws, bolts, fasteners,
etc.; the furniture will be free from all large scratches, marks, gouges,
dents, discoloration or stains; all drawers, runners, and locks will be in good
working condition to include keys; and there shall be no evidence of extreme
use or overloading, i.e. bowed or sagging shelves; (iii) if during such
inspection the Equipment is found not to be in compliance with the above, then
Lessee shall remedy them per the Lease Agreement and provide a follow-up
inspection to verify the Equipment meets the return provisions.
(b) Upon lease termination, Lessee shall (i) have the manufacturer's
representative or other person acceptable to Lessor de-install all Equipment
including all wire, cable, and mounting hardware; (ii) if applicable, ensure
all necessary permits and labor are obtained to deliver the Equipment; (iii)
the Equipment shall be packed properly and in accordance to the manufacturer's
recommendations; (iv) the Lessee shall provide for the 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; (v) at
Lessor's choice, either (1) allow Lessor, at Lessor's expense, and provided
Lessor has provided reasonable notice to Lessee, to arrange for an on-site
auction of the Equipment which will be conducted in a manner that will not
interfere with the Lessee's business operations, or (2) Lessee shall provide
free safe storage for the Equipment for a period not to exceed sixty (60) days
from the Lease expiration.
6. LEAST TERM OPTIONS
Early Lease Term Options
The Lease is hereby amended by adding the following to the end thereof:
CANCELLATION OPTION:
47
(a) So long as no default exists hereunder and expressly provided that all
of the terms and conditions of this Provision are fulfilled, Lessee may cancel
the Agreement as to all (but not less than all) of the Equipment on this
Schedule as of any one of the Cancellation Dates set forth below (each, a
"Cancellation Date") upon at least 90 days prior written notice (the "Notice
Date") to Lessor (which notice shall be irrevocable and shall be sent to the
attention of Lessor's Asset Management Organization, 00 Xxx Xxxxxxxxx Xxxx,
Xxxxxxx, XX 00000-0000). Such notice shall state the Cancellation Date which
shall apply. If all of the terms and conditions of this Provision are not
fulfilled, this Lease shall continue in full force and effect and Lessee shall
continue to be liable for all obligations thereunder, including, without
limitation, the obligation to continue paying rent.
(b) Prior to the Cancellation Date, Lessee shall
(i) pay to Lessor, as additional rent, (A) the Cancellation Value
(set forth below for the applicable Cancellation Date) for the Equipment, plus
(B) all rent and all other sums due and unpaid as of the Cancellation Date
(including, but not limited to, any Rent payment due and payable on the
Cancellation Date and any sales taxes and property taxes); and
(ii) return the Equipment in full compliance with the RETURN OF
EQUIPMENT Section of the Lease, such compliance being independently verified by
an independent appraiser selected by Lessor (reasonably acceptable to Lessee) to
determine that the Equipment is in such compliance, which determination shall be
final, binding and conclusive. Lessee shall bear all costs associated with such
appraiser's determination and such costs, if any, to cause the Equipment to be
in full compliance with the RETURN OF EQUIPMENT Section of the Lease on or prior
to such Cancellation Date.
(c) The Cancellation Dates and the applicable Cancellation Values are
as set forth below:
February 1, 2001 74% of Capitalized Lessors Costs
(d) Lessee shall, from the applicable Notice Date through the
Cancellation Date,
(i) continue to comply with all of the terms and conditions of
the Lease, including, but not limited to, Lessee's obligation to pay rent, and
(ii) make the Equipment available to Lessor in such a manner as to
allow Lessor to market and demonstrate the Equipment to potential purchasers or
lessees from such premises at no cost to Lessor; provided, however, that,
subject to Lessor's right to market and demonstrate the Equipment to potential
purchasers or lessees from time to time, Lessee may still use the Equipment
until the Cancellation Date.
(e) Lessee shall, from the applicable Cancellation Date through the
earlier of the date the Equipment is sold by Lessor to a third party of 30 days
following the Cancellation Date, comply with the following terms and conditions:
(i) Continue to provide insurance for the Equipment, at Lessee's
own expense, in compliance with the terms found in the INSURANCE Section of the
Lease, and
(ii) Make the Equipment available to Lessor and/or allow Lessor to
store the Equipment at Lessee's premises, in such a manner as to allow Lessor to
market and demonstrate the Equipment to potential purchasers or lessees from
such premises at no cost to Lessor.
(f) The proceeds of any sale or re-lease of the Equipment after
Lessee has executed its Cancellation Option shall be for the sole benefit of
Lessor and Lessee shall have no interest in or any claim upon any of such
proceeds.
The Lease is amended by adding the following thereto:
EARLY PURCHASE OPTION:
(a) Provided that the Lease has not been earlier terminated and
provided further that Lessee is not in default under the Lease or any other
agreement between Lessor and Lessee, Lessee may, UPON AT LEAST 30 DAYS BUT NO
MORE THAN 270 DAYS PRIOR WRITTEN NOTICE TO LESSOR OF LESSEE'S IRREVOCABLE
ELECTION TO EXERCISE SUCH OPTION, purchase on an AS IS BASIS all (but not less
than all) of the Equipment listed and described in this Schedule on the rent
payment date (the "Early Purchase Date") which is 48 months from the Basic Term
Commencement Date for a price equal to THIRTY-THREE AND 93/100 percent (33.93%)
of the Capitalized Lessor's Cost (the "FMV Early Option Price"), plus all
applicable sales taxes.
Lessor and Lessee agree that the FMV Early Option Price is a reasonable
prediction of the Fair Market Value (as such term is defined in the PURCHASE
OPTION Section subsection (b) of the Lease hereof) of the Equipment at the time
the option is exercisable. Lessor and Lessee agree that if Lessee makes any
non-severable improvement to the Equipment which increases the value of the
Equipment and is not required or permitted by the MAINTENANCE Section or the
RETURN OF EQUIPMENT Section of the Lease prior to lease expiration, then at the
time of such option being exercised, Lessor and Lessee shall adjust the purchase
price to reflect any addition to the price anticipated to result from such
improvement. (The purchase option granted by this subsection shall be referred
to herein as the "Early Purchase Option").
(b) If Lessee exercises its Early Purchase Option with respect to the
Equipment leased hereunder, then on the Early Purchase Option Date, Lessee shall
pay to Lessor any Rent and other sums due and unpaid on the Early Purchase
Option Date and Lessee shall pay the FMV Early Option Price, plus all applicable
sales taxes, to Lessor in cash.
H. PAYMENT AUTHORIZATION
You are hereby irrevocably authorized and directed to deliver and apply the
proceeds due under this Schedule as follows:
COMPANY NAME ADDRESS AMOUNT
------------ ------- ------
xxxxxxxx.xxx, inc. 0000 X. Xxxxxxxx Xxxx $583,097.00
Xxxxxxx, XX 00000
4
48
This authorization and direction is given pursuant to the same authority
authorizing the above-mentioned financing.
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 xxxxxxxx.xxx, inc.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx Xxxxxxx
------------------------------- ---------------------------
Title: Senior Risk Analyst Title: CFO Action Performance
------------------------------ --------------------------
49
[ACTION PERFORMANCE COMPANIES, INC. LOGO]
December 27, 1999
GE Capital Corp.
000 X. 00xx Xx.
Xxxxx 000
Xxxxxxx, XX 00000
To Whom It May Concern:
As Chairman of the Board and CEO of Action Performance Companies, Inc.
("Action"), I hereby affirm that Xxxxx Xxxxxxx is an authorized officer of
Action, and therefore is allowed to execute agreements on behalf of Action and
its wholly owned subsidiaries. These subsidiaries include xxxxxxxx.xxx, inc. and
this mandate provides Xxxxx Xxxxxxx the authorization to execute agreements on
behalf of goracing and/or obligate Action to guarantee funds of goracing, to
any of its vendors, including GE Capital Corporation.
Sincerely,
Action Performance Companies, Inc.
/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
C.E.O.
PHOENIX - CHARLOTTE - ATLANTA
0000 XXXXXXXXX XXXXXXXXXX XXXXX XX - Xxxxxxx, XXXXXXX 00000
000 000-0000 - 000 000-0000 FAX
50
XXXXXXXX.XXX DISPOSALS
ACQUISITIO SYS ACQUISITION
DATE NO LIFE ACCOUNT DESCRIPTION VALUE NBV
-----------------------------------------------------------------------------------------------------------------------------
LEASED
11/17/99 198 05 00 1545-000 BLIND IDEAS-GORACING BUILDING BLINDS $ 592.92 $ 573.16
11/17/99 194 05 00 1545-000 BUSINESS RESOURCE GROUP-MAPLE OFFICE
CHAIRS/FURNITURE $ 8,377.45 $ 8,098.21
9/8/99 168 05 00 1545-000 BUSINESS RESOURCE-DEPOSIT FOR OFFICE FURNITURE $ 3,500.00 $ 3,266.67
10/31/99 181 10 00 1590-000 COMPEL-ADD RAISED FLOOR $ 144,067.14 $ 140,465.47
9/30/99 178 10 00 1590-000 COMPEL-CABLING XXXXXXXX.XXX $ 110,115.12 $ 106,444.62
10/31/99 182 10 00 1590-000 COMPEL-CABLING-TV/SPEAKER $ 87,455.18 $ 85,268.80
9/30/99 174 05 00 1550-000 COMPEL-TECH CENTER PROJECT $ 195,704.06 $ 182,657.12
11/17/99 197 05 00 1545-000 CORPORATE EXPRESS-BREAKROOM TABLES/OFFICE FURNITURE $ 12,582.34 $ 12,162.93
12/17/99 208 05 00 1540-000 CORPORATE EXPRESS-CABINET STORAGE $ 1,739.82 $ 1,710.83
12/29/99 212 05 00 1540-000 CORPORATE EXPRESS-CHAIRS $ 36,166.00 $ 35,563.24
11/17/99 196 05 00 1545-000 CORPORATE EXPRESS-CONFERENCE ROOM FURNITURE/OFFICE $ 35,834.30 $ 34,639.83
FURNITURE
12/17/99 210 05 00 1540-000 CORPORATE EXPRESS-CONFERENCE TABLE $ 2,024.19 $ 1,990.46
11/17/99 195 05 00 1545-000 CORPORATE EXPRESS-OFFICE FURNITURE/OFFICE $ 136,890.73 $ 132,327.71
DESKS/BOOKCASES
12/17/99 209 05 00 1540-000 CORPORATE EXPRESS-SPECIAL FURNITURE/CHAIRS 10 $ 2,546.60 $ 2,504.16
12/17/99 211 05 00 1540-000 CORPORATE EXPRESS-WALL BOARDS $ 1,679.33 $ 1,651.35
10/8/99 183 05 00 1545-000 FITNESS SOURCE-WORKOUT EQUIPMENT FOR WEIGHTROOM $ 22,373.26 $ 21,254.60
11/19/99 203 05 00 1545-000 FRY'S ELECTRONICS-3 SONY TV/HPC4226A LJ1100SE
4 TEST SETS/NOKIA 6100/5100 $ 2,190.37 $ 2,117.36
10/11/99 184 05 00 1545-000 INSTANT BLINDS-VERTICAL BLINDS FOR BOARDROOM $ 880.50 $ 836.48
9/8/99 169 05 00 1545-000 KNOLL TEXTILES-DEPOSIT FOR FURNITURE $ 8,000.00 $ 7,466.67
11/30/99 205 05 00 1545-000 MCMASTER XXXX SUPPLY CO.-OFFICE EQUIPMENT $ 627.23 $ 606.33
10/13/99 185 05 00 1545-000 ROYAL SIGN CO-GORACINGCOM BUILDING SIGNAGE/TAX $ 11,513.39 $ 10,937.72
9/8/99 167 05 00 1545-000 SOUTHWEST PARTITION-50% DEPOSIT ON CUBICLES $ 247,206.49 $ 230,726.06
AND OFFICE FURNITURE
11/17/99 192 05 00 1545-000 SOUTHWEST PARTITIONS-BREAKROOM CHAIRS/TASK $ 39,493.77 $ 38,177.31
CHAIRS/MANAGER CHAIRS
11/17/99 191 05 00 1545-000 SOUTHWEST PARTITIONS-CUBICLE PIECES $ 125,273.91 $ 121,098.12
12/2/99 206 05 00 1540-000 SOUTHWEST PARTITIONS-CUSTOM CONFERENCE TABLE $ 16,217.08 $ 16,217.08
W/ ACCESS FOR ELECTRICAL
9/15/99 170 05 00 1545-000 SOUTHWEST PARTITIONS-HIGHBACK CHAIRS FOR TOP EXECS $ 3,811.84 $ 3,557.72
11/17/99 193 05 00 1545-000 SOUTHWEST PARTITIONS-OFFICE FURNITURE $ 35,407.64 $ 34,227.39
11/18/99 199 05 00 1545-000 SOUTHWEST PARTITIONS-OFFICE FURNITURE $ 83,531.88 $ 80,747.49
9/23/99 171 05 00 1545-000 SYSTEM FREIGHT SYSTEMS-PUBLICATION SHIPPING $ 198.68 $ 185.44
$ 1,376,001.22 $ 1,317,480.33
