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Home My WebLink About02-1740 DOLCHIN, SLOTKIN & TODD, P.C. By: Barry W. Krengel, Esquire Identification No. 28517 One Commerce Square, 24th Floor 2005 Market Street Philadelphia, PA 19103 (215) 665-8000 FINOV A CAPITAL CORPORATION v. PENROSE PLACE PHARMACY, INe. and RONALD COMUNE and WHITE SHIELD, INe. Attorney for Plaintiff COURT OF COMMON PLEAS CIVIL LAW DIVISION CUMBERLAND COUNTY No. 0::2 - 171./6 Qru.\.tr€..JL~ NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you rnust take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Bar Association 2 Liberty A venue Carlisle, PA 17013 (717) 249-3166 A VISO Le han demando a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al parir de la fecha de la demanda y la notificacion. Hace falta asentar una comparesencia escrita 0 en persona 0 con un abogado y entregar a la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si used no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso 0 notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que used cumpla con todas las provisiones de esta demanda. Usted puede perder dinero 0 sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIA TAMENTE. SI NO TIENE ABOGADO 0 SINO TIENE EL DINERO SUFICIENTE DE P AGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DlRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUlR ASISTENCIA LEGAL. Lawyer Referral Service Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 DOLCHIN, SLOTKIN & TODD, P.C. By: Barry W. Krengel, Esquire Identification No. 28517 One Commerce Square, 24th Floor 2005 Market Street Philadelphia, P A 19103 (215) 665-8000 FINOVA CAPITAL CORPORATION 115 West Century Road Paramus, NJ 07652 Attorney for Plaintiff COURT OF COMMON PLEAS CIVIL LAW DIVISION CUMBERLAND COUNTY v. PENROSE PLACE PHARMACY, INe. 1208 Fleetwood Drive Carlisle, P A 17013 and RONALD COMUNE 1208 Fleetwood Drive Carlisle, P A 17013 and WHITE SHIELD, INC. 20 Erford Road Lemoyne, P A 17043 No. 0:2. - I '7liO Q;u~LY~ CIVIL ACTION - COMPLAINT Plaintiff, FINOV A Capital Corporation ("FINOV A") by its attorneys and in support of its Civil Action Complaint for damages against defendants, Penrose Place Pharmacy, Inc., Ronald Comune and White Shield, Inc., alleges and states as follows: THE PARTIES 1. Plaintiff, FINOV A Capital Corporation ("FINOV A"), is a Delaware corporation with a principal place of business located at 4800 North Scottsdale Road, Scottsdale, Arizona. FINOV A's predecessors in interest are Bell Atlantic Tricon Leasing Corporation, Tricon Capital Corporation, and Greyhound Financial Corporation. 2. Defendants, Penrose Place Pharmacy, Inc. and White Shield, Inc. (the "lessee defendants") all own or operate independent pharmacies or optometrists and entered into equipment leases with FINOV A (or its predecessors in interest) which are the subject of this action. One or more ofthe lessee defendants has a principal place of business in Cumberland County and/or is a resident of Cumberland County. 3. Defendant, Ronald Comune (the "guarantor defendant") entered into personal guarantees of the obligations undertaken by the lessee defendant, Penrose Place Pharmacy, Inc., under their equipment leases with FINOV A. The guarantor defendant is, upon information and belief, a resident of Cumberland County. 4. Venue is proper in Cumberland County, because one or more of the lessee defendants or the guarantor defendant resides in Cumberland County. COMMON ALLEGATIONS 5. FINOV A provided financing to the lessee defendants in connection with the lessee defendants' rental of office equipment marketed to them by Recomm Operations, Inc., Recomm International Display Corp., Inc., Optical Technologies, Inc., Automated Travel Center, Inc., Recomm Enterprises, Inc., Recomm International Display, Ltd. and Recomm International Corporation (individually and collectively "Recomm"). 6. In particular, from 1991 through 1995, Recomm marketed and distributed two types of equipment to more than 12,000 pharmacists, veterinarians, and optometrists. These customers generally did not buy the equipment from Recomm, but rather acquired the equipment pursuant to finance leases entered into with FINOV A and other lease finance companies. Those customers are generally referred to herein as "lessees." The first piece of equipment was an 2 electronic display board, known as the "Vox Apothecary," which displayed point-of-sale advertising messages in the lessees' places of business to the lessees' customers. Recomm programmed the messages for the Vox Apothecary and delivered such messages on a diskette to the lessees for display in their professional offices and stores. The second piece of equipment known as the "Interactive Kiosk System" provided travel information and other services to persons accessing the system. 7. In connection with the Vox Apothecary, the vast majority oflessees entered into Advertising Agreements with Recomm which governed their respective rights and obligations in connection with the display of messages on the Vox Apothecary. The Advertising Agreements were generally of the same form, and provided that Recomm would make license fee payments to the lessees of the Vox Apothecary equipment in consideration of their displaying the messages contained on the diskettes provided by Recomm. 8. Upon information and belief, substantially all ofthe lessee defendants entered into an Advertising Agreement with Recomm. 9. In January 1996, Recomm International Display Corporation, Ltd. and several Recomm affiliates filed for bankruptcy protection pursuant to Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Middle District of Florida. Ultimately, all Recomm affiliates filed for bankruptcy protection in the same court, and these bankruptcy cases were substantively consolidated by an order entered on April 30,1998 (the "Bankruptcy Cases"). 3 10. The lessee defendants, by virtue of their actual or potential claims against Recomm, were unsecured creditors of the Recomm Bankruptcy estate, as were the approximately 12,000 other lessees of Recomm equipment. 11. In the Recomm Bankruptcy Cases, Recomm, FINOV A, and certain other lease finance companies filed a plan of reorganization commonly known as the Fourth Amended Joint Plan of Reorganization of the Debtors, the Official Committee of Unsecured Creditors and Certain Leasing Companies Under Chapter 11 of the Bankruptcy Code ("Fourth Amended Plan"). A true and correct copy ofthe Fourth Amended Plan is attached hereto as Exhibit A ("Ex. A"). 12. On May 13, 1998, the Bankruptcy Court entered in the Recomm Bankruptcy Cases an Order Confirming Fourth Amended Joint Plan of Reorganization of Debtors, The Official Committee of Unsecured Creditors and Certain Leasing Companies Under Chapter 11 of the Bankruptcy Code ("Confirmation Order"). A true and correct copy of the Confirmation Order is attached hereto as Exhibit B ("Ex. B"). 13. All the lessee defendants and guarantor defendant are bound by the Fourth Amended Plan and Confirmation Order. (Ex. A at p 10, '\169.) 14. The Confirmation Order, in conjunction with the Fourth Amended Plan, is a final judgment that adjudicated the rights and liabilities of FINO V A and the thousands oflessees, including the lessee defendants, who entered into leases with FINOV A in connection with Recomm- related equipment. Among other things, the Confirmation Order: (i) modified the terms of the leases between FINOV A and the lessee defendants; (ii) adjudged those leases as modified to be valid and binding on all lessee defendants; (iii) released FINOV A from any and all claims and defenses that otherwise may have been raised by the lessee defendants in connection with the leases on any 4 DOLCHIN, SLOTKlN & TODD, P.c. BY: BARRY W. KRENGEL, ESQUIRE Identification No.: 28517 2005 Market Street, 24th Floor Philadelphia, PA 19103 (215) 665-8000 FINOV A CAPITAL CORPORATION Attorney for Plaintiff v. COURT OF COMMON PLEAS CIVIL LAW DIVISION CUMBERLAND COUNTY PENROSE PLACE PHARMACY, INC. RONALD COMUNE WHITE SHIELD, INC. No. 02-1740 ORDER TO SETTLE. DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned matter SETTLED, DISCONTINUED and ENDED. DOLCHIN, SLOTKIN & TODD, P.C. BY:] Barry w,. engel, Esquire Attorne or Plaintiff , Date:.!l!;2J {(I(" ---c; ..-'1 ~~ ~" ({:, rn "0 f'~ 6' q, --' :r~ -"0, roe" _n'i;":, -'jJ~ ".:'?,C) .::-;~".~;;'\ ::-)8 --,,'7-.-,." ,.-) -;;.-\ r .3:, .-c ~ 1";-: t.P ,J;J matters occurring before June 30, 1998; and (iv) enjoined the lessee defendants from raising any claim or defense against FINOV A in connection with the leases on any matters occurring before June 30, 1998. 15. In the Fourth Amended Plan, FINOV Aas a "Participating Lessor," agreed to discount the amounts due from the lessee defendants under their FINOV A leases and to waive certain defaults on those leases occurring through June 30.1998. To that end, the Fourth Amended Plan and Confirmation Order modified each ofthe original leases by recalculating the amount of lease payments due to FINOV A, according to formulas set forth in the Fourth Amended Plan. (Ex. A at pp.19-22, 27-29.) The Fourth Amended Plan and Confirmation Orderrequired that FINOV A provide to the lessees, including the lessee defendants, various payment options under the leases as modified by the Fourth Amended Plan. At the same time, the Confirmation Order decreed that the "[l]eases as modified are valid and binding" as between certain lease finance companies and their respective lessees, including FINOV A and each lessee defendant herein. (Ex. B at p. 19, 'IIl6(iii).) 16. The Confirmation Order also provided that substantially all lessees, including all of the lessee defendants and guarantor defendant, released all claims and defenses against FINOV A. (Ex. B at p.19, '1116.) The Confirmation Order states, in pertinent part, as follows: [E]ach of the Lessees releases any causes of actions, claims, suits, counterclaims, liabilities, obligations, defenses and demands whatsoever, in law or in equity, against the Released Lessor Parties with respect to the revised Leases resulting or arising out of actions, activities or events occurring prior to the Confirmation Date relating to the business or operations of the Debtors, the Leases and the Advertising Contracts. (Ex. B at p. 19, 'IIl6(iv).) FINOV A is among the Released Lessor Parties, as that term is used in the above-quoted language of the Confirmation Order. 5 17. In addition to the foregoing release provision, the Confirmation Order permanently enjoins substantially all lessees, including all of the lessee defendants and guarantor defendant, from pursuing lease-related claims and defenses against FINOV A. The Confirmation Order states, in pertinent part, as follows: As of the Effective Date [June 30, 1998], all Persons, including but not limited to, all Lessees and all individuals or entities that had notice of the Reorganization Cases are permanently enjoined from asserting against the Released Lessor Parties.. . any other or further claims or causes of action based upon any act or omission, transaction, or other activity of any kind or nature that occurred prior to the Effective Date [June 30, 1998]. On and after the Effective Date [June 30, 1998], all Persons who have held, currently hold or may hold a claim or cause of action released pursuant to the terms of the Fourth Amended Plan are permanently enjoined from taking any of the following actions on account of any such released claim or cause of action,. . .(e) commencing or continuing any action in any manner in any place that does not comply with or is inconsistent with the provisions of the Fourth Amended Plan or the Confirmation Order. (Ex. B at p. 23, '\122.) 18. As is more fully alleged below, despite the terms of the Confirmation Order that: (i) confirmed the validity and enforceability ofthe lessee defendants' leases, as modified, and (ii) stripped the lessee defendants of all defenses to the enforceability of their leases, neither the lessee defendants, nor the guarantor defendant, have paid the amounts due and owing to FINOV A pursuant to their leases as modified by the Fourth Amended Plan and Confirmation Order. COUNT I Breach of Contract FINOV A v. PENROSE PLACE PHARMACY, INC. (Lease #7102644R) 19. Plaintiff incorporates paragraphs 1 through 18 as if fully set forth at length. 20. On or about June ll, 1992, FINOV A, as lessor, and Penrose Place Pharmacy, Inc. ("Penrose") as lessee, entered into a written lease #7102644R ("Lease") for Vox equipment 6 (Lease, Ex. C-l), whereby Penrose assumed all the terms, covenants and conditions of the Lease, and agreed to make payments ofthe rentals thereunder when due and to perform promptly all ofthe covenants, conditions and obligations contained therein. 21. Pursuant to the Fourth Amended Plan and Confirmation Order, on June 30, 1998, FINOV A sent Penrose a Modification Letter advising Penrose of the modifications to the Lease ("Modified Lease") and presenting Penrose with several options to pay the amounts it owed under the Modified lease. (Modification Letter, Ex. C-2) Penrose failed to select a payment option under the Modified Lease, and therefore, under the terms of the Fourth Amended Plan and Confirmation Order, Penrose was deemed to have selected Option "4" thereunder. Pursuant to Option "4," Penrose was obligated to make three (3) consecutive monthly payments of $265 beginning on August 1, 1998 and one payment of$44.67 on November 1, 1998. 22. The Modified Lease between FINOV A and Penrose is a valid, binding and enforceable contract, as judicially determined by the United States Bankruptcy Court for the Middle District of Florida. 23. On December 14, 1999, FINOVA sent Penrose a Notice of Default, duly informing Penrose that it was in default and demanding payment of the past-due amount no later than December 24, 1999. (Notice of Default, Ex. C-3) Penrose has failed to comply with FINOV A's demand for payment. 24. Penrose has breached the Modified Lease with FINOV A by failing to make timely payments due and owing to FINOV A under that lease. Thus, pursuant to paragraph 12 ofthe Modified Lease, Penrose has become obligated to pay FINOV A all sums due under the Modified Lease. The value of the lease payments due thereunder is $792.14. Pursuant to paragraph 9 of the 7 Modified Lease, Penrose is obligated to reimburse FINOV A $47.53 for taxes which FINOV A paid on the equipment. In addition, pursuant to paragraph 15 ofthe Modified Lease, Penrose has become obligated to pay FINOV A a 10% late charge on all sums due under the Modified lease. 25. FINOV A has employed attorneys to enforce its rights under the Modified Lease, and is entitled to payment of its attorneys' fees as provided in paragraph 12 ofthe Modified Lease. In addition, pursuant to paragraph 12 of the Modified Lease, Penrose has become obligated to pay FINOV A interest on all sums due, from the date of default until fully paid, at the rate of 1.5% per month. 26. As a result of its breach of contract, Penrose is presently obligated to pay $l ,037.60 to FINOV A, consisting of the following amounts exclusive of interest: A. Lease; B. C. D. fees. $792.l4, the value of the lease payments due under the Modified $47.53, for taxes paid by FINOV A; $25, for late charges; and $172.93, for attorneys' fees, subject to increase for future attorneys' WHEREFORE, plaintiff, Finova Capital Corporation, respectfully requests that this Court enter judgment in its favor and against defendant, Penrose Enterprises, Inc., in the amount of $1,037.60, plus interest and costs of suit. COUNT II Breach of Guarantee FINOV A V. RONALD COMUNE 27. Plaintiff incorporates paragraphs 1 through 26 as if fully set forth at length. 8 28. Defendant, Ronald Comune, as guarantor, executed a written guarantee in favor of FINOV A as to all of the material lease obligations of Penrose under the Modified Lease referred to in Count I above. 29. Lessee Penrose has breached the Modified Lease with FINOV A by failing to make timely payments due and owing to FINOV A under that lease. As set forth in Count I above, lease payments are past due from September 11, 1998 and Penrose has failed to timely cure its default upon receipt of Notice of Default from FINOV A. 30. Under the terms of the guarantee, Ronald Comune, as guarantor, is obligated to pay FINOV A all amounts that Penrose has failed to pay under the Modified Lease. 31. On December 14,1999, FINOV A sent Ronald Comune a Notice of Default, duly informing Ronald Comune that Penrose was in default and demanding payment ofthe past due amount from Ronald Comune, as guarantor, no later than December 24, 1999. Ronald Comune has failed to comply with FINOV A's demand for payment. WHEREFORE, plaintiff, Finova Capital Corporation, respectfully requests that this Court enter judgment in its favor and against defendant, Ronald Comune, in the amount of$1 ,037.60, plus interest and costs of suit. COUNT III Breach of Contract FINOV A v. PENROSE PLACE PHARMACY, INC. (Lease #7162767R) 32. Plaintiff incorporates paragraphs 1 through 3l as if fully set forth at length. 33. On or about January lO, 1995, FINOVA, as lessor, and Penrose Place Pharmacy, Inc. ("Penrose") as lessee, entered into a written lease #7162767R ("Lease") for Vox equipment (Lease, Ex. D-l), whereby Penrose assumed all the terms, covenants and conditions of 9 the Lease, and agreed to make payments of the rentals thereunder when due and to perform promptly all of the covenants, conditions and obligations contained therein. 34. Pursuant to the Fourth Amended Plan and Confirmation Order, on June 30, 1998, FINOV A sent Penrose a Modification Letter advising Penrose of the modifications to the Lease ("Modified Lease") and presenting Penrose with several options to pay the amounts it owed under the Modified lease. (Modification Letter, Ex. D-2) Penrose failed to select a payment option under the Modified Lease, and therefore, under the terms of the Fourth Amended Plan and Confirmation Order, Penrose was deemed to have selected Option "4" thereunder. Pursuant to Option "4," Penrose was obligated to make sixty-three (63) consecutive monthly payments of $413.40 beginning on August 1, 1998 and one payment of$12.62 on December 1, 2003. 35. The Modified Lease between FINOV A and Penrose is a valid, binding and enforceable contract, as judicially determined by the United States Bankruptcy Court for the Middle District of Florida. 36. On December 14, 1999, FINOV A sent Penrose a Notice of Default, duly informing Penrose that it was in default and demanding payment of the past-due amount no later than December 24, 1999. (Notice of Default, Ex. D-3) Penrose has failed to comply with FINOV A's demand for payment. 37. Penrose has breached the Modified Lease with FINOV A by failing to make timely payments due and owing to FINOV A under that lease. Thus, pursuant to paragraph 12 of the Modified Lease, Penrose has become obligated to pay FINOV A all sums due under the Modified Lease. The value of the lease payments due thereunder is $23,010.85. Pursuant to paragraph 9 of the Modified Lease, Penrose is obligated to reimburse FINOV A $l,3 80.65 for taxes which FINOV A 10 paid on the equipment. In addition, pursuant to paragraph 15 of the Modified Lease, Penrose has become obligated to pay FINOV A a 10% late charge on all sums due under the Modified lease. 38. FINOV A has employed attorneys to enforce its rights under the Modified Lease, and is entitled to payment of its attorneys' fees as provided in paragraph 12 of the Modified Lease. In addition, pursuant to paragraph 12 of the Modified Lease, Penrose has become obligated to pay FINOV A interest on all sums due, from the date of default until fully paid, at the rate of 1.5% per month. 39. As a result of its breach of contract, Penrose is presently obligated to pay $31,843.91 to FINOV A, consisting of the following amounts exclusive of interest: A. Lease; B. e. D. fees. $23,010.85, the value ofthe lease payments due under the Modified $1,380.65, for taxes paid by FINOV A; $2,145.09, for late charges; and $5,307.32, for attorneys' fees, subj ectto increase for future attorneys' WHEREFORE, plaintiff, Finova Capital Corporation, respectfully requests that this Court enter judgment in its favor and against defendant, Penrose Enterprises, Inc., in the amount of $31,843.91, plus interest and costs of suit. COUNT IV Breach of Guarantee FINOV A V. RONALD COMUNE 40. Plaintiff incorporates paragraphs 1 through 39 as if fully set forth at length. 11 41. Defendant, Ronald Comune, as guarantor, executed a written guarantee in favor of FINO V A as to all of the material lease obligations of Penrose under the Modified Lease referred to in Count III above. 42. Lessee Penrose has breached the Modified Lease with FINOV A by failing to make timely payments due and owing to FINOV A under that lease. As set forth in Count III above, lease payments are past due from September 10, 1998 and Penrose has failed to timely cure its default upon receipt of Notice of Default from FINOV A. 43. Under the terms ofthe guarantee, Ronald Comune, as guarantor, is obligated to pay FINOV A all amounts that Penrose has failed to pay under the Modified Lease. 44. On December 14,1999, FINOV A sent Ronald Comune a Notice of Default, duly informing Ronald Comune that Penrose was in default and demanding payment ofthe past due amount from Ronald Comune, as guarantor, no later than December 24, 1999. Ronald Comune has failed to comply with FINOV A's demand for payment. WHEREFORE, plaintiff, Finova Capital Corporation, respectfully requests that this Court enter judgment in its favor and against defendant, Ronald Comune, in the amount of$3l,843.91, plus interest and costs of suit. COUNT V Breach of Contract FINOV A v. WHITE SHIELD, INC. (Lease #7122527) 45. Plaintiff incorporates paragraphs 1 through 44 as if fully set forth at length. 46. On or about March 31, 1993, FINOVA, as lessor, and Scotchtown Apothecary, Inc. d/b/a Scotchtown Pharmacy ("Scotchtown"), as lessee, entered into a written lease #7122527 ("Lease") for V ox equipment. (Lease, Ex. E-l). 12 47. On or about September 15,1994, Scotchtown assigned all its right, title and interest in the aforesaid Lease to White Shield, Inc. ("White Shield") (Assumption, Ex. E-2), whereby White Shield assumed all the terms, covenants and conditions ofthe Lease, and agreed to make payments of the rentals thereunder when due and to perform promptly all of the covenants, conditions and obligations contained therein. 48. Pursuant to the Fourth Amended Plan and Confirmation Order, on June 30, 1998, FINOV A sent White Shield a Modification Letter advising White Shield of the modifications to the Lease ("Modified Lease") and presenting White Shield with several options to pay the amounts it owed under the Modified lease. (Modification Letter, Ex. E-3) White Shield failed to select a payment option under the Modified Lease, and therefore, under the terms of the Fourth Amended Plan and Confirmation Order, White Shield was deemed to have selected Option "4" thereunder. Pursuant to Option "4," White Shield was obligated to make sixteen (16) consecutive monthly payments of$265 beginning on August 1,1998 and one payment of$32.06 on January 1, 2000. 49. The Modified Lease between FINOV A and White Shield is a valid, binding and enforceable contract, as judicially determined by the United States Bankruptcy Court for the Middle District of Florida. 50. On December 14, 1999, FINOV A sent White Shield a Notice of Default, duly informing White Shield that it was in default and demanding payment ofthe past-due amount no later than December 24, 1999. (Notice of Default, Ex. E-4) White Shield has failed to comply with FINOV A's demand for payment. 13 51. White Shield has breached the Modified Lease with FINOV A by failing to make timely payments due and owing to FINOV A under that lease. Thus, pursuant to paragraph 12 ofthe Modified Lease, White Shield has become obligated to pay FINOV A all sums due under the Modified Lease. The value ofthe lease payments due thereunder is $4,030.25. Pursuant to paragraph 9 ofthe Modified Lease, White Shield is obligated to reimburse FINOV A $241.82 for taxes which FINOV A paid on the equipment. In addition, pursuant to paragraph 15 ofthe Modified Lease, White Shield has become obligated to pay FINOV A a 10% late charge on all sums due under the Modified lease. 52. FINOV A has employed attorneys to enforce its rights under the Modified Lease, and is entitled to payment of its attorneys' fees as provided in paragraph 12 ofthe Modified Lease. In addition, pursuant to paragraph 12 of the Modified Lease, White Shield has become obligated to pay FINOV A interest on all sums due, from the date of default until fully paid, at the rate of 1.5% per month. 53. As a result of its breach of contract, White Shield is presently obligated to pay $5,516.48 to FINOV A, consisting ofthe following amounts exclusive of interest: $4,030.25, the value of the lease payments due under the Modified A. Lease; B. e. D. fees. $241.82, for taxes paid by FINOV A; $325, for late charges; and $919.41, for attorneys' fees, subject to increase for future attorneys' 14 WHEREFORE, plaintiff, Finova Capital Corporation, respectfully requests that this Court enter judgment in its favor and against defendant, White Shield, Inc., in the amount of$5,5l6.48, plus interest and costs of suit. COUNT VI Breach of Contract FINOV A v. WHITE SHIELD, INC. (Lease #7123579) 54. Plaintiff incorporates paragraphs 1 through 53 as if fully set forth at length. 55. On or about April 22, 1993, FINOV A, as lessor, and Frank Gerolamo d/b/a Drexel Brook Drugs ("Gerolamo"), as lessee, entered into a written lease #7123579 ("Lease") for Vox equipment. (Lease, Ex. F-l). 56. On or about September 15, 1994, Gerolamo assigned all its right, title and interest in the aforesaid Lease to White Shield (Assumption, Ex. F-2), whereby White Shield assumed all the terms, covenants and conditions ofthe Lease, and agreed to make payments ofthe rentals thereunder when due and to perform promptly all of the covenants, conditions and obligations contained therein. 57. Pursuant to the Fourth Amended Plan and Confirmation Order, on June 30, 1998, FINOV A sent White Shield a Modification Letter advising White Shield ofthe modifications to the Lease ("Modified Lease") and presenting White Shield with several options to pay the amounts it owed under the Modified lease. (Modification Letter, Ex. F-3) White Shield failed to select a payment option under the Modified Lease, and therefore, under the terms of the Fourth Amended Plan and Confirmation Order, White Shield was deemed to have selected Option "4" thereunder. Pursuant to Option "4," White Shield was obligated to make twenty (20) consecutive 15 monthly payments of $265 beginning on August 1, 1998 and one payment of $82.34 on May 1, 2000. 58. The Modified Lease between FINOV A and White Shield is a valid, binding and enforceable contract, as judicially determined by the United States Bankruptcy Court for the Middle District of Florida. 59. On December l4, 1999,FINOV A sent White Shield a Notice of Default, duly informing White Shield that it was in default and demanding payment of the past-due amount no later than December 24, 1999. (Notice of Default , Ex. F -4) White Shield has failed to comply with FINOV A's demand for payment. 60. White Shield has breached the Modified Lease with FINOV A by failing to make timely payments due and owing to FINOV A under that lease. Thus, pursuant to paragraph 12 ofthe Modified Lease, White Shield has become obligated to pay FINOV A all sums due under the Modified Lease. The value ofthe lease payments due thereunder is $5,242.56. Pursuant to paragraph 9 ofthe Modified Lease, White Shield is obligated to reimburse FINOV A $314.55 for taxes which FINOV A paid on the equipment. In addition, pursuant to paragraph 15 ofthe Modified Lease, White Shield has become obligated to pay FINOV A a 10% late charge on all sums due under the Modified lease. 61. FINOV A has employed attorneys to enforce its rights under the Modified Lease, and is entitled to payment of its attorneys' fees as provided in paragraph 12 ofthe Modified Lease. In addition, pursuant to paragraph 12 of the Modified Lease, White Shield has become obligated to pay FINOV A interest on all sums due, from the date of default until fully paid, at the rate of 1.5% per month. 16 62. As a result of its breach of contract, White Shield is presently obligated to pay $7,l77.64 to FINOV A, consisting of the following amounts exclusive of interest: A. Lease; B. C. D. fees. $5,242.56, the value of the lease payments due under the Modified $314.55, for taxes paid by FINOV A; $424.26, for late charges; and $l, 196.27, for attorneys' fees, subj ect to increase for future attorneys' WHEREFORE, plaintiff, Finova Capital Corporation, respectfully requests that this Court enter judgment in its favor and against defendant, White Shield, Inc., in the amount of$7,177.64, plus interest and costs of suit. COUNT VII Breach of Contract FINOV A v. WHITE SHIELD, INC. (Lease #7135542) 63. Plaintiff incorporates paragraphs 1 through 62 as if fully set forth at length. 64. On or about October 22, 1993, FINOV A, as lessor, and Healthcare V, Inc. ("Healthcare"), as lessee, entered into a written lease #7135542 ("Lease") for Vox equipment. (Lease, Ex. G-l). 65. On or about October 18, 1994, Healthcare assigned all its right, title and interest in the aforesaid Lease to White Shield (Assumption, Ex. G-2), whereby White Shield assumed all the terms, covenants and conditions ofthe Lease, and agreed to make payments ofthe rentals thereunder when due and to perform promptly all of the covenants, conditions and obligations contained therein. 17 66. Pursuant to the Fourth Amended Plan and Confirmation Order, on June 30, 1998, FINOV A sent White Shield a Modification Letter advising White Shield ofthe modifications to the Lease ("Modified Lease") and presenting White Shield with several options to pay the amounts it owed under the Modified lease. (Modification Letter, Ex. G-3) White Shield failed to select a payment option under the Modified Lease, and therefore, under the terms of the Fourth Amended Plan and Confirmation Order, White Shield was deemed to have selected Option "4" thereunder. Pursuant to Option "4," White Shield was obligated to make twenty-six (26) consecutive monthly payments of$250 beginning on August 1, 1998 and one payment of$168.66 on November 1,2000. 67. The Modified Lease between FINOV A and White Shield is a valid, binding and enforceable contract, as judicially determined by the United States Bankruptcy Court for the Middle District of Florida. 68. On December 14, 1999, FINOV A sent White Shield a Notice of Default, duly informing White Shield that it was in default and demanding payment of the past-due amount no later than December 24, 1999. (Notice of Default, Ex. G-4) White Shield has failed to comply with FINOV A's demand for payment. 69. White Shield has breached the Modified Lease with FINOV A by failing to make timely payments due and owing to FINOV A under that lease. Thus, pursuant to paragraph 12 of the Modified Lease, White Shield has become obligated to pay FINOV A all sums due under the Modified Lease. The value ofthe lease payments due thereunder is $6,694.77. In addition, pursuant to paragraph 15 of the Modified Lease, White Shield has become obligated to pay FINOV A a 10% late charge on all sums due under the Modified lease. 18 70. FINOV A has employed attorneys to enforce its rights under the Modified Lease, and is entitled to payment of its attorneys' fees as provided in paragraph 12 ofthe Modified Lease. In addition, pursuant to paragraph 12 of the Modified Lease, White Shield has become obligated to pay FINOV A interest on all sums due, from the date of default until fully paid, at the rate of 1.5% per month. 71. As a result of its breach of contract, White Shield is presently obligated to pay $8,717.09 to FINOV A, consisting of the following amounts exclusive of interest: A. Lease; B. e. fees. $6,694.77, the value of the lease payments due under the Modified $569.47, for late charges; and $1,452.85, for attorneys' fees, subj ect to increase for future attorneys' WHEREFORE, plaintiff, Finova Capital Corporation, respectfully requests that this Court enter judgment in its favor and against defendant, White Shield, Inc., in the amount of$8,717.09, plus interest and costs of suit. COUNT VIII Breach of Contract FINOV A v. WHITE SHIELD, INC. (Lease #7154917) 72. Plaintiff incorporates paragraphs 1 through 71 as if fully set forth at length. 73. On or about August 31, 1994, FINOV A, as lessor, and White Shield, as lessee, entered into a written lease #7154917 ("Lease") for Vox equipment. (Lease, Ex. H-l). 74. Pursuant to the Fourth Amended Plan and Confirmation Order, on June 30, 1998, FINOV A sent White Shield a Modification Letter advising White Shield ofthe modifications 19 to the Lease ("Modified Lease") and presenting White Shield with several options to pay the amounts it owed under the Modified lease. (Modification Letter, Ex. H-2) White Shield failed to select a payment option under the Modified Lease, and therefore, under the terms of the Fourth Amended Plan and Confirmation Order, White Shield was deemed to have selected Option "4" thereunder. Pursuant to Option "4," White Shield was obligated to make forty-one (41) consecutive monthly payments of $262.50 beginning on August 1, 1998 and one payment of $132.78 on February 1,2002. 75. The Modified Lease between FINOV A and White Shield is a valid, binding and enforceable contract, as judicially determined by the United States Bankruptcy Court for the Middle District of Florida. 76. On December 14, 1999, FINOV A sent White Shield a Notice of Default, duly informing White Shield that it was in default and demanding payment of the past-due amount no later than December 24, 1999. (Notice of Default, Ex. H-3) White Shield has failed to comply with FINOV A's demand for payment. 77. White Shield has breached the Modified Lease with FINOV A by failing to make timely payments due and owing to FINOV A under that lease. Thus, pursuant to paragraph 12 ofthe Modified Lease, White Shield has become obligated to pay FINOV A all sums due under the Modified Lease. The value of the lease payments due thereunder is $10,140.72. Pursuant to paragraph 9 of the Modified Lease, White Shield is obligated to reimburse FINOV A $507.04 for taxes which FINOV A paid on the equipment. In addition, pursuant to paragraph 15 of the Modified Lease, White Shield has become obligated to pay FINOV A a 10% late charge on all sums due under the Modified lease. 20 78. FINOV A has employed attorneys to enforce its rights under the Modified Lease, and is entitled to payment of its attorneys' fees as provided in paragraph l2 of the Modified Lease. In addition, pursuant to paragraph 12 of the Modified Lease, White Shield has become obligated to pay FINOV A interest on all sums due, from the date of default until fully paid, at the rate of 1.5% per month. 79. As a result of its breach of contract, White Shield is presently obligated to pay $13,947.62 to FINOV A, consisting ofthe following amounts exclusive of interest: A. Lease; B. C. D. fees. $10,140.72, the value of the lease payments due under the Modified $507.04, for taxes paid by FINOV A; $914.06, for late charges; and $2,324.60, for attorneys' fees, subjectto increase for future attorneys' WHEREFORE, plaintiff, Finova Capital Corporation, respectfully requests that this Court enter judgment in its favor and against defendant, White Shield, Inc., in the amount of$13,947.62, plus interest and costs of suit. COUNT IX Breach of Contract FINOV A v. WHITE SHIELD, INC. (Lease #7154918) 80. Plaintiff incorporates paragraphs 1 through 79 as if fully set forth at length. 81. On or about August 3l, 1994, FINOV A, as lessor, and White Shield, as lessee, entered into a written lease #7154918 ("Lease") for Vox equipment. (Lease, Ex. 1-1). 21 82. Pursuant to the Fourth Amended Plan and Confirmation Order, on June 30, 1998, FINOV A sent White Shield a Modification Letter advising White Shield ofthe modifications to the Lease ("Modified Lease") and presenting White Shield with several options to pay the amounts it owed under the Modified lease. (Modification Letter, Ex. 1-2) White Shield failed to select a payment option under the Modified Lease, and therefore, under the terms of the Fourth Amended Plan and ConfIrmation Order, White Shield was deemed to have selected Option "4" thereunder. Pursuant to Option "4," White Shield was obligated to make forty-one (41) consecutive monthly payments of$265 beginning on August 1, 1998 and one payment of$134.04 on February 1,2002. 83. The Modified Lease between FINOV A and White Shield is a valid, binding and enforceable contract, as judicially determined by the United States Bankruptcy Court for the Middle District of Florida. 84. On December 14, 1999, FINOV A sent White Shield a Notice of Default, duly informing White Shield that it was in default and demanding payment of the past-due amount no later than December 24, 1999. (Notice of Default, Ex. 1-3) White Shield has failed to comply with FINOV A's demand for payment. 85. White Shield has breached the Modified Lease with FINOV A by failing to make timely payments due and owing to FINOV A under that lease. Thus, pursuant to paragraph 12 ofthe Modified Lease, White Shield has become obligated to pay FINOV A all sums due under the Modified Lease. The value of the lease payments due thereunder is $10,140.72. Pursuant to paragraph 9 of the ModifIed Lease, White Shield is obligated to reimburse FINOV A $608.44 for taxes which FINOV A paid on the equipment. In addition, pursuant to paragraph l5 ofthe Modified 22 Lease, White Shield has become obligated to pay FINOV A a 10% late charge on all sums due under the Modified lease. 86. FINOV A has employed attorneys to enforce its rights under the Modified Lease, and is entitled to payment of its attorneys' fees as provided in paragraph 12 of the Modified Lease. In addition, pursuant to paragraph 12 of the Modified Lease, White Shield has become obligated to pay FINOV A interest on all sums due, from the date of default until fully paid, at the rate of 1.5% per month. 87. As a result ofits breach of contract, White Shield is presently obligated to pay $13,995.88 to FINOV A, consisting of the following amounts exclusive of interest: $10,140.72, the value ofthe lease payments due under the Modified A. Lease; B. e. D. fees. $608.44, for taxes paid by FINOV A; $914.07, for late charges; and $2,332.65, for attorneys' fees, subject to increase for future attorneys' WHEREFORE, plaintiff, Finova Capital Corporation, respectfully requests that this Court enter judgment in its favor and against defendant, White Shield, Inc., in the amount of$13,995.88, plus interest and costs of suit. Dated: +(1/0) DOLCHIN, SLOTKIN & TODD, P.C. By: 23 VERIFICATION I, Ellen M. Brandt, hereby verify that I am the Portfolio Manager for plaintiff, Finova Capital Corporation; that I am authorized to take this Verification on plaintiffs behalf; that the statements made in the Complaint are true and correct to the best of my knowledge, information and belief and that these statements are made subject to the penalties of 18 Pa. e.S.A. Section 4904 relating to unsworn falsification to authorities. j~hz~ ----- ELLEN M. BRANDT Date: 3;/,40 v ,! '\ , EX H I BIT "A" At:: -Cf2/i' Cl. J4N 2 6 V f2 D UNITED STATES BANKRUPTCY COURT ~~'I..JS 6 7998 FOR THE MlDDLE DISTRICT OF FLORIDA IJA7;r-4~^''''I-r(,I-', TAMPA DIVISION FA .r:, '(.'.~ ,. \1 t t {: 'u I ~.:.,~j(ETED , KI<F APR 2 2 1998 ,..~ . , . In re: ) ) OPTICAL TECHNOLOGIES, INC., ) RECOMM OPERATIONS, INC., ) RECOMM ENTERPRISES, INC., ) RECOMM INTERNATIONAL DISPLAY) CORP., INC., AUTOMATED TRAVEL ) CENTER, INC., RECOMM INTERNATIONAL) DISPLAY CORPORATION, RECOMM ) INTERNATIONAL CORPORATION, AND ) RECOMM INTERNATIONAL DISPLAY. ) LTD., ) ) Debtors and Debtors-in-Possession. ) Chapter 11 Case Nos. 96-00805-8PI 96-01200-8Pl 96-01201-8PI 96-01202-8PI 96-()1 :'f11S:PI Honorable Alexander L. Paskay FOURTH AMENDED JOINT PLAN OF REORGANIZATION OF THE DEBTORS. THE OFFICIAL coMMITIEE OF UNSEClJRE~ CREDITORS AND CERTAIN LEASING COMPANIES UNDER C~ERIIOFTHEBANKR~CYCODE Matthew N. Kleiman KIRKLAND & ELLIS 200 East Randolph Drive Chicago. Illinois 6060 1 (312) 861-2000 Counsel to Official Cormninee of Unsecured Creditors Dated: Januar;!'. 1998 John D. Goldsmith TRENAM KEl\lKER SCHARF BARKIN FRYE O'NEIL & MULLIS 2700 Barnett Place 101 East Kennedy Boulevard Tampa. Florida 33601 (813) 223-7474 Counsel to Debtors and Debtors-in- possession Daniel M. Pelliccioni Julia W. Brand KA TIEN MUCHIN & ZA VIS 1999 Avenue of the Stars Suite 1400 Los Angeles. California 90067 (310) 7884400 ' Counsel to FINOV A Capital Corporation Representative of the Participating Lessors Exhibit A TABLE OF CONTENTS Page ARTICLE I _ DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1 A. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 1 B. Defmed Tenns ................................ 2 C. Interpretation, Rules of Construction, Computation of Time, and Choice of Law . . . . . . . . . . . . . . . . . . . . . .. 13 ARTICLE 11- CLASSIFICATION AND TREATMENT OF CLAIMS AND INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 14 A. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 14 B. Administrative Claims . . . . . . . . . . . . . . . . . . . . . . . . . ., 15 1. General Administrative Claims and Professional Fee Claims ................... 15 2. Lender Claims ......................... 16 C. Priority Tax Claims ............................ 17 D. Classification and Treatment of Classes ................ 17 1. Class A-Secured Claims (Unimpaired) . . . . . . . . .. 17 2. Class B-Priority Claims (Unimpaired) .......... 18 3. Class C-Claims of Holders Which are participating Lessees with Advertising Contracts or Guarantors of the Obligations of Participating Lessees with Advertising Contracts (Impaired) ..................... 19 4. Class D-Claims of Holders which are participating Lessees without Advertising Contracts or Guarantors of the Obligations of Participating Lessees without Advertising Contracts (Impaired) ..................... 27 5. Class E- Claims of Holders which are Equipment Owners (Impaired) . . . . . . . . . . . . . . ., 30 6. Class F-Unsecured Claims (Impaired) .......... 31 7. Class G Interests (Impaired) . . . . . . . . . . . . . . . ., 31 8. Class H-Non-Participating Lessees ............. 32 ARTICLE III _ ACCEPTANCE OR REJECTION OF THE PLAN ........ 33 A. Voting By Impaired Classes ....................... 33 B. Acceptance By Impaired Classes .................... 33 C. Presumed Acceptance/Rejection of Plan . . . . . . . . . . . . . . ., 34 (ii) D. Nonconsensual Confirmation . . . . . . . . . . . . . . . . . . . . . ., 34 ARTICLE IV _ TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES .......................... ~ . .. 34 A. Assumption and Assignment Of Executory Contracts And Unexpired Leases .................... 34 1. Assumptions and Assignments Generally ......... 34 2. Approval Of Assumptions and Assignments . . . . . . ., 35 3. Objections To Assumption and Assignments Of Executory Contracts And Unexpired Leases .............. . . . . . . . . . . . . . . ., 3S 4. Payments Related To Assumption Of Executory Contracts And Unexpired Leases .......... . . .. 36 B. Executory Contracts And Unexpired Leases To Be Rejected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 36 1. Rejectioll9 Generally . . . . . . . . . . . . . . . . . . . . .. 36 2. Approval Of Rejections . . . . . . . . . . . . . . . . . . .. 36 3. Objections To Rejection Of Executory Contracts And Unexpired Leases ........... . .. 36 4. Bar Date For Rejection Damages . . . . . . . . . . . . ., 37 C. Amendment To Exhibits Identifying Executory Contracts And Unexpired Leases To Be Assumed Or Rejected .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 37 ARTICLE V _ SUBSTANTIVE CONSOUDATION ................. 37 ARTICLE VI - THE DISTRIBUTION TRUST AND THE DISTRIBUTION TRUSTEE .................................... ., 38 A. Creation of Distribution Trust; Transfer of Assets to the Distribution Trust ..................... 38 B. Assumption of Distribution Obligations ................ 38 C. Duties of the Distribution Trustee . . . . . . . . . . . . . . . . . . .. 38 D. Rights of the Distribution Trustee . . . . . . . . . . . . . . . . . . .. 39 E. Disbursing Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 39 ARTICLE VII - PROVISIONS FOR TREATMENT OF DISPUTED. CONTINGENT. UNUQUlDATED AND UNKNOWN ADMINISTRATIVE EXPENSE CLAIMS. CLAIMS AND INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 40 A. Resolution of Disputed Administrative Expense Claims and Disputed Claims . . . . . . . . . . . . . . . . . . . . . .. 40 (iii) 1. Prosecution of Objections to Claims ............ 40 2. Estimation of Claims ..................... 40 3. Payments and Distributions on Disputed Claims . . . . . . . . . . . . . . . . . . . . . . . . . . '. . .. 41 B. Allowance of Claims and Interests ................... 41 C. Controversy Concerning Impairment . . . . . . . . . . . . . . . . .. 42 ARTICLE VIII - MAINTENANCE OF CAUSES OF ACTION .......... 42 ARTICLE IX - MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN ..................................... 44 A. Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 44 B. Intentionally Omined. . . . . . . . . . . . . . . . . . . . . . . . . . .. 45 C. Funding Of Plan .., . . . . . . . . . . . . . . . . . . . . . . . . . ., 45 1. Cash Payments . . . . . . . . . . . . . . . . . . . . . . . .. 45 2. Indemnification Claims Against the Debtor. ............................. 45 3. Reorganized Debtor Stock. . . . . . . . . . . . . . . . . .. 45 D. Revesting Of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . ., 46 E. Abandonment of Assets . . . . . . . . . . . . . . . . . . . . . . . . .. 46 F. Release Of Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 46 G. Funding of Post-Confirmation Reserve Fund ............. 47 H. Cancellation And Surrender Of Instruments, Securities, And Other Documentation ................. 47 1. Setoffs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 47 J. Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . .. 48 K. Corporate Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 48 L. Waivers and Releases ........................... 48 1. Release of Participating Lessors. .............. 48 2. Release of Participating Lessees. . . . . . . . . . . . . .. 49 3. Release of the Comminee and Certain Officers, Directors or Employees of theDebtors ........................... 50 4. Release of In-Store. .. . . . . . . . . . . . . . . . . . . .. 50 5. Provisions Applicable to All Releases ........... 51 6. Discharge Of Debtors And Injunction ........... 52 7. No Other Releases. ...................... 53 M. Injunction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 53 N. Survival and Re-Constitution of the Committee; Authority of the Committee ....................... 54 O. Effect on Work Product Privilege. ................... 54 (iv) ARTICLE X _ DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 55 A. General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 55 1. Cash Payments . . . . . . . . . . . . . . . . . . . . .. . .. 55 2. Compliance With Tax Requirements . . . . . . . . . . .. 55 B. Transmittal of Distributions to Parties Entitled Thereto .............................. 55 C. Undeliverable Distributions . . . . . . . . . . . . . . . . . . . . . . ., 56 D. Fractional Cents .............................. 56 E. De Minimis Distributions . . . . . . . . . . . . . . . . . . . . . . . ., 56 F. Distributions to Classes C. D. E. F and H .............. 56 1. Creation and Maintenance of Distribution Accounts ............................ 56 2. Allocation of Assets to Distribution Accounts .........._................... 57 ARTICLE Xl _ CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . .. 60 A. Conditions Precedent to ConfIrmation ................. 60 B. Conditions Precedent to Consummation ................ 61 C. Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . . . . ., 61 D. Waiver of Conditions ........................... 61 E. Effect Of Non-Occurrence Of Conditions To The Effective Date ............................... 62 ARTICLE XII - RETENTION OF JURISDICTION ................. 62 ARTICLE XlII _ MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . ., 64 A. ModifIcation of Plan . . . . . . . . . . . . . . . . . . . . . . . . . . ., 64 B. Withdrawal of Plan ............................ 64 C. Term of Injunctions or Stays . . . . . . . . . . . . . . . . . . . . . ., 64 D. Failure- of Bankruptcy Court to Exercise Jurisdiction ................................. 64 E. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 65 F. Exemption from Certain Taxes ..................... 65 G. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 65 H. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., 65 1. Successors And Assigns . . . . . . . . . . . . . . . . . . . . . . . . .. 67 J. Entire Agreement ............................. 67 K. Payment of Statutory Fees ........................ 67 L. Binding Effect ............................... 67 M. Severability Of Provisions Of The Plan ................ 67 N. Saturday. Sunday or Legal Holiday . . . . . . . . . . . . . . . . . .. 67 (v) o. Enforceability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 68 P. Decisions of the participating Lessors ................. 68 (vi) FOURTH AMENDED JOINT PLAN OF REORGANIZATION OF THE DEBTORS, THE OffiCIAL coMMITTEE OF UNSECURED CREDITORS AND CERTAIN LEASING COMPANIES WInCH ARE PARTIES SIGNATORY HERETO ill't'DER CHAPTER 11 OF THE BANKRUPI'CY CODE This Fourth Amended Joint Plan of Reorganization (the "Plan") is proposed jointly by (i) Optical Technologies, Inc., Recomm Operations. Inc., Recomm Enterprises, Inc., Recomm International Display Corp., Ltd, Automated Travel Center, Inc., Recomm International Display Corporation, Recomm International Corporation, and Recomm International Display, Ltd., the debtors in the above-captioned cases (collectively, the "Debtors") pending under chapter 11 of the Bankruptcy Code (as defmed herein), (ii) the Official Committee of Unsecured Creditors in the above- captioned cases, and (Hi) cenain Leasing Companies (as defmed herein), as set forth on . the signature pages hereto. Reference is made to the Disclosure Statement (as defmed herein) for a discussion of the Debtors' history, businesses, results of operations. historical fmancial infonnation, projections, and properties, and for a SUIIUIlary and analysis of the Plan. All Creditors and Interest Holders (in each case. as defmed herein) should review the Disclosure Statement before voting to accept or reject the Plan. In addition, there are other agreements, documents and pleadings on file with the Bankruptcy Court (as defmed herein) that are referenced in the Plan and/or the Disclosure Statement and which are available for review in the office of the clerk of the Bankruptcy Court. ARTICLE I. DEFINITIONS A. General Provisions. Unless the context otherwise requires, the following tenns shall have the following meanings when used in capitalized fonn in the Plan. Such meanings shall be equally applicable to both the singular and plural fonns of such tenns. The words "herein," "hereof" and "hereunder" and other words of similar import refer to the Plan as a whole and not any particular section, subsection, or clause contained in the Plan, unless the context requires otherwise. Whenever from the context it appears appropriate, each tenn stated in either the singular or the plural includes the plural and the singular, as the case may be, and pronouns stated in the masculine, feminine or neuter gender include all genders. Any tenn used in capitalized fonn in the Plan that is not defined herein but that is used in the Bankruptcy Code or the Bankruptcy Rules (as defined herein) shall have the meaning assigned to such tenn in the Bankruptcy Code or the Bankruptcy Rules, as the case may be. B. Defined Terms. In addition to such other terms as are defmed in other sections of the Plan, the following terms (which appear in the Plan as capitalized terms) have the following meanings as used in the Plan: 1. "Administrative Claim" means any Claim constituting a cost or expense of administration of the Reorganization Cases under sections 503(b) and 507(a)(I) of the Bankruptcy Code including, without limitation, any actual and necessary expenses of preserving the estates of the Debtors, all Allowed Professional Fee Claims, and any actual and necessary expenses of operating the businesses of the Debtors. 2. "Advertising Contract" means those certain contracts entered into by the Debtors and Lessees or Equipment Owners whereby the Debtors agreed to remit specified revenue relating to advertising placed on the electronic bulletin board systems, Kiosks and/or other electronic equipment that Lessees leased from Lessors or are owned by Equipment Owners. 3. "Allowed" means, with respect to a Claim or Interest, any such Claim or Interest to the extent that: (a) a proof or application for allowance of such Claim or Interest was timely and properly Filed; (b) a proof or application for allowance of such Claim or Interest was deemed timely and properly Filed under applicable law or by reason of a Final Order or (c) such Claim or Interest has been allowed or deemed allowed pursuant to the entry of a Final Order by the Bankruptcy Court; and, in any such case, as to which no objection to the allowance thereof has been interposed on or before the Effective Date or such other applicable period of limitation fixed by the Bankruptcy Code, the Bankruptcy Rules, or the Bankruptcy Court, or as to which any objection has been determined by a Final Order of the Bankruptcy Court to the extent such objection is determined in favor of the respective Holder or as to which any such objection has been settled by the parties thereto to the extent the Claim has become liquidated and to the extent of all necessary approvals of such settlement by any governing tribunal. Unless otherwise specified herein or by order of the Bankruptcy Court, "Allowed Administrative Claim," "Allowed Claim," or "Allowed Interest" shall not, for purposes of computation of distributions under the Plan. include interest on such Administrative Claim, Claim, or Interest from the Petition Date. Pursuant to Bankruptcy Rule 3003(c)(4), a Filed proof of Claim supersedes a related Scheduled Claim. 4. "Assets" means all assets of the Debtors, of any nature whatsoever, including claims of right, interests and property, real and personal, tangible and intangible. 2 5. "Ballots" means the ballots accompanying the Disclosure Statement upon which Impaired Creditors which are entitled to vote on the Plan shall have indicated their acceptance or rejection of the Plan, and, to the extent applicable, certain other elections described below, in accordance with the Plan and the Voting Instructions. 6. "Bankruptcy Code" means Title I of the Bankruptcy Reform Act of 1978, as amended from time to time, as set forth in title 11 of the United States Code, and applicable portions of titles 18 and 28 of the United States Code, each as amended from time to time and as in effect with respect to the Reorganization Cases. 7. "Bankruptcy Court" means the United States Bankruptcy Court for the Middle District of Florida, or, in the event such court ceases to exercise jurisdiction over the Reorganization Cases, such other court or adjunct thereof that exercises jurisdiction over the Reorganization Cases. 8. "Bankruptcy Rules"means the Federal Rules of Bankruptcy Procedure. as amended from time to time, as applicable to the Reorganization Cases, promulgated under 28 U.S.C. ~ 2075 and the General, Local and Chambers Rules of the Bankruptcy Court. 9. "Board" means the electronic bulletin board systems and/or other related equipment manufactured and/or marketed by the Debtors. 10. "Business Day" means any day other than a Saturday, Sunday or "legal holiday" (as defmed in Bankruptcy Rule 9006(a)). 11. "Cash" means cash and cash equivalents, including, but not limited to, bank deposits, wire transfers. checks, and other similar items. 12. "Causes of Action" means any and all manner of actions, causes of action, suits, claims, counterclaims, liabilities. obligations. defenses, and demands whatsoever, at law or in equity, held by any of the Debtors or the Estates. As the context may require, "Causes of Action" shall also mean the judgments, awards, proceeds, settlement payments and other recoveries that may be obtained on account of, or in compromise of such choses in action. 13. "Claim" means a claim against a Debtor as such term is defmed in section 101(5) of the Bankruptcy Code, including, without limitation (a) any right to payment from the Debtors whether or not such right is reduced to judgment, liquidated, unliquidated, contingent. matured,unmatured, disputed, undisputed, legal. equitable, secured or unsecured; or (b) any right to an equitable remedy for breach of performance 3 if such performance gives rise to a right of payment from the Debtors. whether or not such right to an equitable remedy is reduced to judgment. fixed, contingent. matured, unmatured. disputed. undisputed. secured or unsecured. 14. .Claim Holder" or "Claimant" means the Holder of a Claim. 15. "Class" means one of the classes of Claims or Interests established under Article III of the Plan pursuant to section 1122 of the Bankruptcy Code. 16. "Class C Distribution" means the distribution payable. Pro-Rata. to Holders of Allowed Class C Claims as described below. 17. "Class D Distribution" means the distribution payable. Pro-Rata, to Holders of Allowed Class D Claims as described below. 18. "Class E Distribution" means the distribution payable, Pro-Rata, to Holders of Allowed Class E Claims as described below. 19. "Class F Distribution" means the distribution payable, Pro-Rata, to Holders of Allowed Class F Claims as described below. 20. "Class H Distribution" means the distribution payable, Pro-Rata, to Holders of Allowed Class H Claims as described below. 21. "Committee" means the Official Committee of Unsecured Creditors appointed in the Reorganization Cases by the Office of the United States Trustee, as reconstituted from time to time. 22. "Confirmation" means the entry of an order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code. 23. "Confumation Date" means the date of Confirmation. 24. the Plan. "Confumation Order" means the order of the Bankruptcy Court confuming 25. "Consummation" means the occurrence of the Effective Date. 26. "Contingent Claim" means a Claim that has not accrued and which is dependent upon a future event which may never occur. 4 27. "Creditor" means any Holder of a Claim. 28. "DBGM" means the law fum of Duker, Barrett, Gravante &Markel. 29. "DBGM Application" means the application, motion or other pleading Filed by DBGM with the Bankruptcy Court pursuant to section 503(b)(3)(D) of the Bankruptcy Code seeking Allowance and payment of fees, costs and expenses of DBGM incurred prior to the closing of the merger of the consolidated Debtors and In-Store based on the substantial contribution made by DBGM to the Reorganization Cases. 30. "Date of Assessment" of an Allowed Priority Tax Claim means (a) if the Governmental Unit holding such Allowed Priority Tax Claim assessed such Claim prior to the Petition Date, the date of such assessment, or (b) otherwise, the Effective Date. 31. "Debtor" means Optical Technologies, Inc., Recomm Operations, Inc., Recomm Enterprises, Inc., Recomm International Display Corp., Ltd., Automated Travel Center, Inc., Recomm International Display Corporation, Recomm International Corporation, and Recomm International Display, Ltd. (collectively, the "Debtors")Y . 32. "Debtor-in-Possession" means a Debtor, when acting in the capacity of representative of its Estate in a Reorganization Case (collectively, the "Debtors-in- Possession") . 33. "Disclosure Statement" means the Disclosure Statement to Accompany Third Amended Joint Plan of Reorganization of the Debtors, the Official Committee of Unsecured Creditors and certain Leasing Companies under Chapter 11 of the Bankruptcy Code (and all exhibits and schedules annexed thereto or referenced therein) dated as of March 3, 1997, as such disclosure statement was amended, modified or supplemented. and that was approved pursuant to section 1125 of the Bankruptcy Code by an order of the Bankruptcy Court entered on June 12. 1997. 34. "Disputed Claim" or "Disputed Interest" means a Claim or Interest, respectively, as to which a proof of Claim or Interest has been Filed or deemed Filed and as to which an objection has been or may be timely Filed by the Committee, the Distribution Trustee or any other party in interest entitled to do so, which objection, if timely Filed, has not been withdrawn and has not been overruled or denied by a Final Order. Prior to the time that an objection has been or may be timely Filed, for the !' If not Filed by the time the Plan is Filed with the Court, voluntary petitions for Recomm International Display Corporation, Recomm International Corporation and Recomm International Display Ltd. will be Filed prior to the Confumation Hearing. 5 purposes of the Plan, a Claim or Interest shall be considered a Disputed Claim or Disputed Interest, respectively, (a) if the amount of the Claim or Interest specified in the Filed proof of Claim or proof of Interest exceeds the amount of the Claim or Interest Scheduled by a Debtor as other than disputed, contingent or unliquidated; (b) if the priority of the Claim or Interest specified in the Filed proof of Claim or proof of Interest is of a more senior priority than the priority of the Claim or Interest scheduled by a Debtor; (c) if the Claim or Interest has been Scheduled as disputed, contingent or unliquidated or as being in the amount of $0.00; or (d) if the Claim or Interest has not been Scheduled. 35. "Disputed Claims Reserve Fund" means such amount of Cash as the Committee, or the Distribution Trustee shall determine. in its sole discretion, to be necessary to retain on the Initial Payment Date and on all Subsequent Payment Dates through the Final Payment Date, for the purpose of paying Disputed Claims and Disputed . Interests as they become Allowed Claims and Allowed Interests. 36. "Distribution Account" or "Distribution Accounts" means one or more deposit accounts established for the benefit of one or more classes of Creditors in order to receive and hold funds payable to the Holders of Allowed Claims in such classes and to facilitate all payments required to be made to the Holders of Allowed Claims in such classes under this Plan. 37. "Distribution Trust" means the trust established pursuant to Anicle VI hereof and evidenced by a trust agreement substantially in a form acceptable to the Committee and the Panicipating Lessors. to which shall be transferred at the Effective Date (i) all Cash, (ii) all Causes of Action, pursuant to sections 544. 545, 547, 548 and 549 of the Bankruptcy Code or otherwise, (Hi) the Reorganized Debtor Stock provided for pursuant to the Merger Agreement, and (iv) $100,000 provided pursuant to the Merger Agreement. 38. "Distribution Trustee" means Price Waterhouse, LLP, or any successor thereto, designated by the Committee and approved by the Bankruptcy Coun to serve as trustee of the Distribution Trust and to have the duties and powers specified in the Plan. 39. "Effective Date" means a date selected by the Committee and the Panicipating Lessors which shall be no earlier than the tenth (10th) Business Day after the date on which the conditions specified in both Section XI.A and Section XI.B of the Plan have been: (a) satisfied; or (b) waived pursuant to Section XI.C of the Plan. 40. "Entity" means an entity as defined in section 101(15) of the Bankruptcy Code. 6 41. "Equipment Owners" means Persons who are not Lessors who purchased Boards. Kiosks and/or other related electronic equipment from the Debtors. This does not include Persons who allege that they were informed that they were p.urchasing a Board. Kiosk and/or other related electronic equipment but instead signed a document identified as a Lease Agreement under which such Person is identified as a Lessee and a Lessor is a party as a Lessor. 42. "Equity Security Holder" means the Holder of an Interest. 43. "Estate" means the estate created in a Reorganization Case for a Debtor pursuant to section 541 of the Bankruptcy Code (collectively for all Debtors. the "Estates"). As the context requires, the term "Estate" also refers to the consolidated and combined Estates of the Debtors upon the entry of an order directing the substantive consolidation of such Estates. as requested in Article V of the Plan. 44. "Filed" or "File" means filed or to file, respectively, with the Bankruptcy Court in the Reorganization Cases. 45. "Final Decree" means the decree contemplated under Bankruptcy Rule 3022. 46. "Final Order" means an order, judgment or other decree of the Bankruptcy Court or any other court of competent jurisdiction (or any revision, modification and/or amendment thereof) (a) which has not been reversed or stayed and as to which the time to appeal. petition for certiorari, or move for reargument, rehearing or new trial has expired and as to which no appeal, petition for certiorari, or other proceedings for reargument, rehearing or new trial shall then be pending; or (b) as to which any right to appeal. petition for certiorari, reargue, rehear, reconsider or retry shall have been waived in writing in form and substance satisfactory to the Committee and/or the Distribution Trustee; or (c) in the event that an appeal. writ of certiorari, reargument, rehearing or new trial has been sought, as to which (i) such order of the Bankruptcy Court shall have been affumed by the highest court to which such order was appealed; (ii) certiorari has been denied as to such order; or (ill) reargument or rehearing or new trial from such order shall have been denied, and the time to take any funher appeal, petition for certiorari or move for reargument. rehearing or new trial shall have expired. 47. "Final Payment Date" means the date of the last payment to Holders of Allowed Claims in accordance with the provisions of the Plan. 7 48. "Financing Order" means the Final Financing Order entered by the Bankruptcy Court in the Reorganization Cases on February 23, 1996, as it has been or may be amended, modified, extended or supplemented. 49. "Future Advertising Revenue" means that certain share of future advertising revenue of the Reorganized Debtor, in an amount not less than 30 % in the aggregate of such advertising revenue generated by advertisements nmning on the Boards for a period not less than 5 years, which is to be distributed to the Holders of Allowed Claims in Classes C, D, E, and H pursuant to the terms of the Plan and subject to the terms and conditions of the Promotion and Servicing Agreements. 50. a Lease. "Guarantor" means a guarantor of any of the obligations of a Lessee under 51. "Holder" means an entity holding an Interest or a Claim. 52. "Impaired" means impaired as defIned in section 1124 of the Bankruptcy Code. 53. "Impaired Class" means each of Classes C, D, E, F, G and H as set forth in Article II of the Plan. 54. "Impaired Creditor" means the Holder of a Claim in an Impaired Class. 55. "Impaired Interest Holder" means the Holder of an Interest in an Impaired Class. 56. "Initial Payment Date" meanS a date, not later than the Effective Date, upon which the initial payment under the Plan shall be made. 57. "Insider" means an insider of any of the Debtors, as defmed in section 101(31) of the Bankruptcy Code. 58. "In-Store" means In-Store Promotions, Inc., a Delaware corporation ("In-Store"), the party to the Merger Agreement with the consolidated Debtors. 59. "Interest" means any ownership interest in anyone or more of the Debtors, including, but not limited to, all issued. unissued, authorized or outstanding shares of stock and other equity security interests, together with any warrants, options or contract rights to purchase or acquire such interests at any time and all rights arising with respect thereto. 8 60. "Kiosk" means those electronic kiosk systems manufactured and/or marketed by the Debtors. including. but not limited to, those kiosk systems designed to carry travel program packages and marketed by Automatic Travel Center, Inc. 61. "Kiosk Leases" means those Leases whereby Lessors leased to Lessees the Kiosks purchased from a Debtor. 62. "Lease Discount Table" means the table set fonh on Exhibit A hereto. 63. "Leases" means the lease agreements whereby Lessors leased to Lessees the Boards, Kiosks and/or other electronic equipment that Lessors purchased fro":" ~ Debtor. The term Leases shall specifically include the Kiosk Leases unless otherwIse specified. 64. "Lenders" means those parties who participate as lenders under the Financing Order. 65. "Lessees" means Persons who leased from Lessors the Boards. Kiosks and/or other related electronic equipment that Lessors purchased or otherwise obtained from the Debtors. This includes, but is not limited to, all Persons who allege that they were informed that they were purchasing a Board, Kiosk and/or other related electronic equipment, but instead signed a document identified as a Lease Agreement under whicn such Person is identified as a Lessee and a Lessor is a party as a Lessor. 66. "Lessors" or "Leasing Companies" means Persons who purchased or otherwise obtained Boards, Kiosks and/or other electronic equipment from a Debtor, and leased such equipment to Lessees and those persons that accepted an assignment of any Lessor's rights in the Leases in any way. 67. "Merger Agreement" means collectively, those certain agreements, instruments and documents, each substantially in the form attached hereto as Exhibit D-1 pursuant to which, among other things, In-Store shall merge with the Consolidated Debtors as of the Effective Date. 68. "Non-Participating Lessee" means a Lessee who is a party to a Lease with a Lessor that is not a Participating Lessor and a Guarantor with respect to such Lease, excluding, however, any Lessee or Guarantor whose rights and obligations under a Lease have been conclusively determined prior to the Confumation Date pursuant to a Final Order, judgment or binding agreement between such Lessee and its Lessor (collectively, the "Non-Participating Lessees"). 9 69. "Participating Lessee" means a Lessee who is a party to a Lease with a Participating Lessor and a Guarantor with respect to such Lease, excluding, however, any Lessee or Guarantor whose rights and obligations under a Lease have been conclusively determined prior to the Confirmation Date pursuant to a Final Order, judgment or binding agreement between such Lessee and its Lessor (collectively, the "Participating Lessees"). 70. "Participating Lessor" means a Lessor which (a) is a Lender as of May 30, 1997, (b) elects on or before May 15. 1997, to participate in the Plan and (i) is a proponent of the Plan or (ii) is identified on Exhibit B hereto as a Participating Lessor, (c) owns, as of May 30. 1997. atleast a Pro Rata share of the Tranche B DIP Financing, (d) continues to fund its Pro Rata share of the Tranche B DIP Financing through the Effective Date, (e) funds its Pro Rata share of the amount necessary to confirm the Plan in excess of amounts provided by In-Store and all other sources of funds, and (f) in the event Section IX.B. of the Plan becomes effective, funds its Pro Rata share of the loans referred to therein. For purposes of determining such amounts, the Pro Rata share of each such Lessor (collectively. the "Participating Lessors") shall be based on such Lessor's aggregate outstanding gross rentals under Leases as of December 31, 1995. Lessors with outstanding gross rentals under Leases as of December 31, 1995 of $0.00, may become Participating Lessors by electing to become Participating Lessors on or before May 15, 1997 and by each funding $1,000.00 of the Tranche B DIP Financing. An election to become a Participating Lessor. once made, cannot be revoked. By sending its written election to become a Participating Lessor, each such Participating Lessor is bound by all of the provisions of the Plan. 71. "Person" means any individual, corporation, general partnership, limited partnership, limited liability company, association. joint stock company. joint venture, estate, business trust, governmental unit, creditors' committee, unofficial committee of creditors, or other entity. 72. "Petition Date" means (i) January 22, 1996 for Optical Technologies. Inc.; (ii) January 31, 1996 for Recomm Operations, Inc.. Recomm International Display Corp.. Inc. and Automated Travel Center, Inc.; and (iii) the date on which voluntary petitions under chapter 11 of the Bankruptcy Code were filed for Recomm International Display Corporation, Recomm International Corporation and Recomm International Display. Ltd. 73. "Plan" means this Fourth Amended Joint Chapter 11 Plan of , Reorganization, either in its present form or as it may be altered, amended, modified or supplemented from time to time in accordance with the Plan, the Bankruptcy Code and the Bankruptcy Rules. 10 74. "Post-Confumation Reserve Fund" means such amount of Cash as the Committee and the, Distribution Trustee shall determine, in its sole discretion, to be necessary to retain on the Initial Payment Date and on all . Subsequent Payment Dates through the Final Payment Date, for the purpose of funding and paying for expenses incurred and to be incurred relating to the implementation and Consummation of the Plan and the liquidation of the Estates, including, without limitation, such amounts as the Committee and the Distribution Trustee shall determine to be necessary to be paid after the Effective Date to any Professionals retained by the Distribution Trustee in furtherance of the Plan. 75. "Priority Claim" means a Claim entitled to priority under section 507 r:,~ the Bankruptcy Code, as limited in such section, other than an Administrative Claim or a Priority Tax Claim. 76. "Priority Tax Claim" means a Claim entitled to priority m payment pursuant to section 507(a)(7} of the Bankruptcy Code. 77. "Professional" means a person retained or to be compensated pursuant to sections 326,327,328,330, 503(b)(2) or (4), 1103 or 1107(b) of the Bankruptcy Code. 78. "Professional Fee Claim" means those fees and expenses claimed by Professionals retained through a Bankruptcy Court order by the Debtors or ilit Committee, pursuant to sections 330, 331 and/or 503 of the Bankruptcy Code, and unpaid as of the Confirmation Date, but not including any subrogation or contribution claim arising from any Persons' payment of any fees and expenses to a Professional other than from propeny of the Estates; provided. however, a fmal application to pay any such Professional Fee Claims shall be filed with the Bankruptcy Court within fony-five (45) days after the Effective Date, including any fees or charges assessed against the Estates of the Debtors under section 1930, chapter 123 of title 28 of the United States Code. 79. "Promotion and Servicing Agreement" means that certain Promotion and Servicing Agreement substantially in the form attached hereto as part of Exhibit 0-2. The execution of the Promotion and Servicing Agreements by Lessees and Equipment Owners is a condition to receipt of Future Advertising Revenues by the Lessees and Equipment Owners. 80. "Pro Rata" means proportionately so that the ratio of the amount of consideration distributed on account of a particular Allowed Claim to the amount of the Allowed Claim is the same as the ratio of the amount of consideration distributed on account of all Allowed Claims of the Class or Classes that share in the consideration 11 being distributed at the time to the amount of all Allowed Claims of that Class or those Classes that share in the consideration being distributed at that time. 81. "Reorganization Case" means the case currently pending in the Bankruptcy Court under chapter 11 of the Bankruptcy Code for a Debtor (collectively, the "Reorganization Cases"). 82. "Reorganized Debtor Stock" means those certain shares of common stock of the Reorganized Debtor, representing not less than thirty percent (30%) in the aggregate of the issued and outstanding stock of the Reorganized Debtor ,\ or other Equity Securities having the economic equivalent thereof, that are to be distributed to the participating Lessors under the terms of the Merger Agreement and contemporaneously contributed by the Participating Lessors to the Distribution Trust pursuant to the terms of the Plan, or such other amount of the outstanding common stock of the Reorganized Debtor, or other Equity Securities having the economic equivalent thereof, as the Committee may agree. 83. "Reorganized Debtor" means the Debtors, collectively, on and after the Effective Date. 84. "Scheduled" means set forth in the Schedules of Assets and Liabilities of a Debtor as the same may be amended or supplemented from time to time. 85. "Schedules of Assets and Liabilities" means the "Schedule of Assets and Liabilities of Debtor and Statement of Financial Affairs of Debtor" Filed by a Debtor, as the same have been or may be amended or supplemented from time to time prior to the Effective Date. 86. "Secured Claim" means a claim, including interest, fees and charges to the extent allowable pursuant to section 506(b) of the Bankruptcy Code. that is secured by a lien on and/or security interest in property in which an Estate has an interest, or that is subject to setoff under section 553 of the Bankruptcy Code, to the extent of the value of the claim holder's interest in an Estate's interest in such property, or to the extent of the amount subject to setoff, as applicable, as determined pursuant to section 506(a) and, if applicable, section 1129(b)(2)(a)(i)(In of the Bankruptcy Code. 87. "Subsequent Payment Date" means any date after the Initial Payinent Date (a) that is set by the Distribution Trustee or is otherwise ordered by the Bankruptcy Court, and (b) upon which the Distribution Trustee makes a distribution to any Holders of Allowed Claim. 12 88. "Tranche A DIP Financing" means that portion of the Administrative Claim of the Lenders arising under the Financing Order for funds advanced to the Debtors before May 9, 1996. 89. "Tranche B DIP Financing" means that portion of the Administrative Claim of the Lenders arising under the Financing Order for funds advanced to the Debtors on or after May 9, 1996. 90. "U.S. Trustee" means the United States Trustee for the Middle District of Florida, Tampa Division and the office of such United States Trustee. 91. "Unimpaired" means a Claim that is unimpaired within the meanirg . : section 1126 of the Bankruptcy Code. 92. "Unsecured Claim" means a Claim against a Debtor that is not an Administrative Claim, Priority Tax Chum, Secured Claim, Priority Claim, Lessee Claim or Interest. Without limiting the foregoing, an Unsecured Claim shall include each and any indemnification Claim of a Lessor against the Debtors; provided, however, that any indemnification Claim of a Lessor that is not a Participating Lessor is disallowed to the extent provided in the Plan. 93. "Voting Instructions" means the instructions for voting on the Plan contained in the section of the Disclosure Statement entitled "VOTING ON THE PLAN" and annexed to the Ballots. C. Interpretation, Rules of Construction, Computation of Time, and Choice of Law. I. The provisions of the Plan and of any contract, instrument or other agreement or document created in connection with the Plan, as an adjunct or supplement thereto, or required thereby, shall control over any descriptions thereof contained in the Disclosure Statement. 2. The provisions of the Plan shall control over the provisions of any contract, instrument or other agreement or document. including, but not limited to, the Disclosure Statement, other than the Confumation Order, created in connection with the Plan, as an adjunct or supplement thereto, or required thereby. 3. Any reference in the Plan to a contract, document. instrurnent. release, certificate, indenture or other agreement or document being in a particular form or on 13 particular tenns and conditions means that such document shall be substantially in such form or substantially on such terms and conditions. 4. Any reference in the Plan to an existing document or exhibit means such document or exhibit as it may have been amended, modified or supplemented as of the Effective Date. 5. All exhibits to the Plan are incorporated into the Plan, and shall be deemed to be included in the Plan. 6. In computing any period of time prescribed or allowed by the Plan, the provisions of Bankruptcy Rule 9006(a) shall apply. 7. Subject to the provisions of any contract, certificate, instrument, release, indenture or other agreement or document entered into in connection with the Plan. the rights and obligations arising under the Plan shall be governed by, and construed and enforced in accordance with, federal law , including the Bankruptcy Code and Bankruptcy Rules. ARTICLE n. CLASSIF1CA TlON AND TREATMENT OF CLAIMS AND INTERESTS A. Summary. The categories of Claims and Interests listed below classify Claims and Interests for all purposes, including voting, conflIlI1ation and distribution pursuant to the Plan and pursuant to sections 1122 and 1123(a)(I) of the Bankruptcy Code. A Claim or Interest shall be deemed classified in a particular Class only to the extent that the Claim or Interest qualifies within the description of that Class and shall be deemed classified in a different Class to the extent that any remainder of such Claim or Interest qualifies within the description of such different Class. A Claim or Interest is in a particular Class only to the extent that such Claim or Interest is Allowed in that Class and has not been paid or otherwise senIed prior to the Effective Date. The classification of Claims and Interests pursuant to this Plan is as follows: Class A: Secured Claims Unimpaired -- Deemed to Accept Class B: Priority Claims Unimpaired - Deemed to Accept 14 Class C: Claims of Holders held by participating Lessees with Advertising Contracts and Guarantors of the Obligations of Participating Lessees with Advertising Contracts Impaired -- Entitled to Vote Class D: Claims of Holders held by Participating Lessees without Advertising Contracts and Guarantors of the Obligations of Participating Lessees without Advertising Contracts Impaired -- Entitled to Vote Class E: Claims of Holders held by Equipment Owners Impaired -- Entitled to Vote Class F: Unsecured Claims against any of the Debtors which are not included in Classes C, D, E or H Impaired -- Entitled to Vote Class G: Interests Impaired -- Deemed Not to Accept Class H: Claims of Holders held by Non-Participating Lessees and Guarantors of the Obligations of Non-Participating Lessees Impaired -- Entitled to Vote B. Administrative Claims. 1. General Administrative Claims and Professional Fee Claims. The Distribution Trustee shall pay each Professional Fee Claim, if and when approved by the Bankruptcy Court. and each other Allowed Administrative Claim in full. in Cash from the Distribution Trust, on the later of (a) on or as soon as practicable after the Effective Date, (b) within sixty (60) days after the Claim becomes an Allowed Claim, 15 (c) the date on which the distribution to the holder of the Claim would have been due and payable in the ordinary course of business or under the terms of the Claim in the absence of the Reorganization Cases, or (d) such later date as may be agreed between the Distribution Trustee and the holder of such Allowed Administrative Claim. Without limiting the foregoing. all fees payable under section 1930 of title 28 of the United States Code that have not heretofore been paid shall be paid on or before the Effective Date. Robert Kellish and Sandra Braddock have entered into an agreement which runs to the benefit of the Debtors and the Reorganized Debtor in which Mr. Kellish and Ms. Braddock are each to receive $85,000 on the Effective Date as Administrative Claims. The $85,000 payments shall be made only to the extent such Claims are allowed pursuant to Order of the Court. 2. Lender Claims. The Lenders will forgive repayment of $1 millon of the Tranche A DIP Financing and the Tranche B DIP Financing which amount will be allocated between the Tranche A DIP Fin!!!lcing and the Tranche B DIP Financing on terms agreed upon among the Lenders. After payment of other Administrative Claims, and after funding of $100,000 to the Post-Conft1lIlation Reserve Fund, all Allowed Administrative Claims of Lenders under the Financing Order, other than the amount forgiven pursuant hereto, shall be paid in full, in cash within twenty (20) days of the Effective Date, or such longer time as Lenders in their sole discretion shall allow. All Tranche A DIP Financing Claims shall be paid in full prior to payment of any Tranche B DIP Financing Claims. Until the Allowed Administrative Claims of the Lenders are paid in full, such claims shall be secured by a frrst-priority perfected security interest and lien in and against all present and future property of the Estates and the Distribution Trust, including without limitation all of the Estates' Causes of Action against third parties and the proceeds thereof, whether under sections 544, 545, 547, 548 or 549 of the Bankruptcy Code or otherwise. Notwithstanding the foregoing, the frrst $10 million of recoveries with respect to Causes of Action shall be reserved for (i) distribution to Holders of Allowed Claims in Classes C, D, E, F and H, as provided herein. and (ii) to pay attorneys' fees, costs and expenses of counsel for the Distribution Trust. The Lenders shall neither hold nor assert any Claim for such recoveries. Thereafter, after payment of the attorneys' fees, costs and expenses of counsel for the Distribution Trustee, fifty percent (50%) of all recoveries in excess of $10 million with respect to Causes of Action shall be reserved for distribution to Holders of Allowed Claims in Classes C, D, E, F and H, as provided herein and fifty percent (50%) of such recoveries shall be distributed to the Lenders as set forth herein until all Allowed Administrative Claims of the Lenders are paid in full. In addition to the foregoing, each Lender that is a Participating Lessor shall, in conjunction with the Plan, receive the Reorganized Debtor Stock under the Merger 16 Agreement. and shall, effective as of the Effective Date, contribute its portion of the Reorganized Debtor Stock to the Distribution Trust. Such Reorganized Debtor Stock shall be distributed pursuant to the Plan, as set forth below. Except as otherwise provided herein, each Lender that is a participating Lessor shall also be deemed to hold an Allowed Unsecured Claim for indemnification. Except for the Reorganized Debtor Stock and distributions on account of such Unsecured Claims against the Debtors, and except for repayment of amounts owed under the Financing Order. each Participating Lessor expressly waives all rights to any and all distributions from the Estates and the Distribution Trust. C. Priority Tax Claims. The Distribution Trustee shall pay each Allowed Priority Tax Claim deferred Cash payments over a period not exceeding six years from the Date of Assessment of such Allowed Priority Tax Claim, in an aggregate amount equal to the amount of such Allowed Priority Tax Claim. plus interest from the Effective Date on the unpaid portion thereof, without penalty of any lcind. at the rate prescribed below. The payment of each such Allowed Priority Tax Claim shall be made in equal semi-annual installments of principal, with the first such installment due on the first Business Day following the end of the ftrst full year following the Effective Date, or such other time or times as may be agreed upon between the holder of such Allowed Priority Tax Claim and the Distribution Trustee. Concurrently with the payments of equal semi-annual installments of principal, the Distribution Trustee shall also pay in arrears simple interest from the Effective Date on the unpaid balance of such Allowed Priority Tax: Claim. without penalty of any lcind, at the rate of (i) eight percent (8 %) per annum of the Allowed Priority Tax Claim of the Florida Department of Revenue; (ii) nine percent (9%) per annum of the Allowed Priority Tax Claim of the United States, and (iii) six percent (6%) per annum of all other Allowed Priority Tax Claims. or at such other rate as may be agreed upon between the holder of such Allowed Priority Tax Claim and the Distribution Trustee; provided. however, that the Distribution Trustee reserves the right to pay any Allowed Priority Tax Claim, or any remaining balance thereof, in full, at any time on or after the Effective Date, without premium or penalty. D. Classification and Treatment of Classes. 1. Class A-Secured Claims (Unimpaired). a. Classification: .Class A consists of all Secured Claims against the Estates. 17 b. Treatment: The legal. equitable and contractual rights of the Holders of Class A Claims are unaltered by the Plan; provided, however, the maturity date or dates of all Class A Claims shall be reinstated to the date. or dates, which existed prior to the date of any acceleration of such Class A Claims, subject to the legal and equitable rights of the Debtors with respect to such Claims as they existed immediately prior to the f1ling of the Plan. On the Initial Payment Date (or as soon thereafter as practicable) or. if later. the date on which such Claim becomes Allowed. the Distribution Trustee will either (a) surrender the collateral securing the Allowed Class A Claim to the Claim Holder. or (b) make payments required by section 1124(2) of the Bankruptcy Code (at a rate to be agreed upon between the Distribution Trustee and the Holder of the Claim, or in the absence of such agreement. as determined by the Bankruptcy Coun) to Holders of Class A Claims from the Distribution Trust; provided. however, Allowed Class A Claims representing obligations incurred in the ordinary course of business or assumed by the Debtors shall be paid in full from the Distribution Trust or performed by the Debtors (or their assignee) in the ordinary course of business in accordance with the terms and conditions of the particular transaction and any agreements and instruments relating thereto. Any defaults of such Class A Claims which existed immediately prior to the filing of the Reorganization Cases shall be deemed cured upon the Effective Date. On the Effective Date or. if later, the date on which such Claim becomes Allowed. and subject to the requirements of section 1124(2) of the Bankruptcy Code, the legal, equitable and contractual rights of the Holders of Class A Claims shall be reinstated in full, in accordance with the terms of the agreements, rights or prepctition obligations of the Debtors respecting such Class A Claims. . c. Imoairment: Class A is unimpaired, and is conclusively deemed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class A are not entitled to vote to accept or reject the Plan. 2. Class B-Priority Claims (Unimpaire4). a. Classification: Class B consists of all Unsecured Claims against any of the Debtors that are specified as having priority in sections 507(a)(3), 507(a)(4), 507(a)(5) or 507(a)(6) of the Bankruptcy Code. b. Treatment: Each Allowed Class B Claim shall be paid in full, in Cash, on the latest of (a) on or as soon as practicable after the Effective Date, (b) within 60 days after the Claim becomes an Allowed Claim. (c) the date on which the distribution to the holder of the Claim would have been due and payable in the ordinary course of business or under the terms of the Claim in the absence of the Reorganization 18 Cases, and (d) such later date as may be agreed between the Distribution Trustee and the holder of such Allowed Class B Claim. ' c. Imoainnent: Class B is unimpaired, and is conclusively deemed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Therefore, the Holders of Claims in Class B are not entitled to vote to accept or reject the Plan. 3. Class C-Claims of Holders Which are Participating Lessees with Advertising Contracts or Guarantors of the Obligations of Participating Lessees with Advertising Contracts (Impaired}. a. Classification: Class C consists of all Claims of Holders that are participating Lessees and parties to an Advertising Contract with the Debtors and all Guarantors with respect to such Participating Lessees; provided, however, that there shall be only one recovery on account of an Allowed Claim with respect to any Lease. For purposes of voting and distributions, the Claim of each Class C Creditor is deemed to be an Allowed Claim equal to the amount set forth for such Participating Lessee in the Schedule of Assets and Liabilities, which is the amount reported by the Debtors to be the aggregate of unpaid advertising revenues under the Advenising Contracts. In the event such Allowed Claim of such Class C Creditor is less than $1.00, such Claim shall be deemed to be Allowed in the amount of $1.00. The Claims of all Guarantors are listed as contingent, disputed and unliquidated in the Schedule of Assets and Liabilities and such Claims shall not be Allowed Claims, except as otherwise provided under the Bankruptcy Code and Bankruptcy Rules. b. Treatment: (1) Class C Distribution. Each, Allowed Class C Claim shall receive its Pro Rata share of the Class C Distribution Account on the Initial Payment Date and on each Subsequent Payment Date thereafter, through and including the Final Payment Date. (2) Promotion and Servicing Agreement. All Class C Creditors holding Allowed Claims, whether they leased Boards or Kiosks, shall be bound to perfonn all of their respective obligations under a Promotion and Servicing Agreement with the Reorganized Debtor which shall be in substantially the fonn attached to the Plan as a part of Exhibit D-2, unless an individual Class C Creditor indicates on the Promotion and Servicing Agreement Election Fonn for Lessees and 19 Owners prior to the initial deadline set for voting on the Plan an intent not to be bound by the Promotion and Servicing Agreement. All Holders of Allowed Class C Claims that are bound by the Promotion and Servicing Agreement shall receive a Pro Rata share of Future Advertising Revenue divided among the aggregate of the Holders of Allowed Claims in Classes C, D, E and H bound by the Promotion and Servicing Agreement. In order to receive a distribution of Future Advertising Revenue, Class C Creditors must be bound by the Promotion and Servicing Agreement. Such Promotion and Servicing Agreement, if entered into, shall supersede and replace, in its entirety, the Advenising Contract, if any. In the event that a Class C Creditor elects not to be bound by the Promotion and Servicing Agreement, the Reorganized Debtor retains whatever rights it may have, if any, to enjoin ~ch Creditor's use of the Equipment arising out of the Reorganized Debtor's software and intellectual property rights relating to the Equipment. (3) Modification to Leases (exclusive of Kiosk Leases): As of the Effective Date, the Leases (exclusive of Kiosk Leases) of Participating Lessees that are parties to Advertising Contracts shall be deemed modified and revised as set forth below, which modifications shall be deemed effective as of the Effective Date. (a) For purposes of the Plan, the "Effective Balance" for any lease is: (i) for leases issued on or prior to December 31, 1995, the present value of all rental payments frrst coming due thereunder on or after December 31, 1995; or (ii) for leases issued after December 31, 1995, the present value of all rental payments owing thereunder as of the date of such Lease. In either case, such present value shall be determined as of December 31. 1995, based upon a discount rate of six percent (6%). 20 (b) The "Revised Interest RateY" will be 12%, effective December 31, 1995. (c) The .Class C Revised Principal Balance" of each Lease of a participating Lessee with an Advertising Contract shall be equal to the Effective Balance of such Lease: (i) reduced by the sum of: a) the principal reduction set forth in the Lease Discount Table, according to the number of months remaining in the lease term as of Deccmber 31, 1995; plus b) the aggregate principal portion of lease payments scheduled to be made by any such participating Lessee from January I, 1996 through the Effective Date in accordance with the terms of the original relevant Lease, but as such principal portion of such payments is determined using the Revised Interest Rate; and (ii) except as otherwise provided in Section 1I.D.3.b.(6) below, increased by the amount of the Effective Date Arrearage. if any, calculated as set forth in Section 1I.D.3.b.(6) below. (d) On or prior to the 30th day after the Effective Date, any Lessee with an Advertising Contract (subject to such Participating Lessee's payment of all arrearages) may make a one-time cash prepayment of the Class C Revised Principal Y Notwithstanding any referenccs in the Plan and/or the Disclosure Statement or any other instrument, agreement or document relating thereto or arising thereunder or in connection therewith to "Revised Interest Rate", "Revised Principal Balance" or similar terms, the use of such terms has no effect on the nature of the Lease agreements and similar documents. 21 Balance of the Lease in complete satisfaction and diScharge of its obligations under the Lease. (e) The Class C Revised Principal Balance and the Revised Interest Rate shall be used to determine the "Revised Monthly Lease Payments" according to the number of payments remaining under the terms of the relevant Lease as of the Effective Date (including payments due but not made between January 1. 1996 and the Effective Date); provided. however, that (subject to Section n.D.3.b.(3)(f) below) participating Lessees with Advenising Contracts have the option (but not the obligation) to extend the term of their respective Leases up to 60 months from the Effective Date for purposes of determining the Revised Monthly Lease Payment and payment schedule. Each of such participating Lessees shall make the election to extend the term of its Lease (if such extension is available) within 30 days after the Effective Date, but in the absence of an election, is deemed not to extend such term. (f) . No Revised Monthly Lease Payment of a participating Lessee with an Advertising Contract wi\1 be (i) less than $150 or (ii) greater than $250 for each Board under the Lease. In the event such Lessee's original Lease payment for each Board (exclusive of taxes) was in excess of the standard monthly Lease payment of $298.20. the maximum Revised Monthly Lease Payment shall be 83 % of the original monthly Lease payment (exclusive of taxes). In the event that the Revised Monthly Lease Payment determined under (e) above results in a calculated payment which is less than $150. the term of the relevant Lease shall be reduced to the number of months necessary to make the Revised Monthly Lease Payment not less than $150. In the event that the Revised Monthly Lease Payment determined under (e) above results in a calculated payment which is greater than $250 for each Board under the Lease, the term of the relevant Lease shall be extended (in monthly increments). to the number of months necessary to make the Revised Monthly Lease Payment not greater than $250 for each Board under the Lease. (g) All participating Lessees with Advertising Contracts shall commence payments under their revised Leases by paying their Revised Monthly Lease Payment on the first scheduled payment date under their original Lease following the Effective Date of the Plan. (h) Except as otherwise set forth herein, all other terms and conditions of the relevant Leases. not inconsistent with the terms herein. survive. 22 (4) Modification to Kiosk Leases. As of the Effective Date, the Kiosk Leases of participating Lessees with an Advertising Contract shall be deemed modified and revised as set forth in Section 3.b.(3) of this Subsection D, which modifications shall be deemed effective as of the Effective Date, with the following additional terms: (a) such Lessees with an Advertising Contract shall have the option to extend the term of their Kiosk Leases up to 72 months (as opposed to 60 months), and (b) no Revised Monthly Lease Payment under such a Kiosk Lease will be less than $300 (as opposed to $150) or greater than $390 for each Kiosk under the Lease. In the event such Lessee's original Lease payment for each Kiosk (exclusive of taxes) was in excess of the standard monthly Lease payment of $466.90, the maximum Revised Monthly Lease Payment shall be 83 % of the original monthly Lease payment (exclusive of taxes). In the event that the Revised Monthly Lease Payment determined hereunder results in a calculated payment which is less than $300. the term of the relevant Lease shall be reduced to the number of months necessary to make the Revised Monthly Lease Payment not less than $300. In the event that the Revised Monthly Lease Payment determined hereunder results in a calculated payment which is greater than $390 for each Kiosk under the Lease, the term of the relevant Lease shall be extended (in monthly increments) to the number of months necessary to make the Revised Monthly Lease Payment not greater than $390 for each Kiosk under the Lease. All other provisions of Section 3.b.(3) of this Subsection D. as applicable. shall apply to the modification of Kiosk Leases of participating Lessees with Advertising Contracts under the Plan. (5) Non-Standard Leases. The treatment offered to Participating Lessees in Sections D.3.b.(3) and (4) and D.4.b.(2) and (3) of this Article II are premised on the following assumptions: (a) the term of all non-Kiosk Leases is 48 months, (b) the term of all Kiosk Leases is 60 months, (c) the monthly payment under all non-Kiosk Leases is approximately $298.20, and (d) the monthly payment under all Kiosk Leases is approximately $466.00. In the event that the financial terms of the Lease of any Participating Lessee are materially different from the foregoing assumptions, the participating Lessors agree to modify the treatment offered to such Participating Lessee under the Plan on terms which proportionately reflect such material differences. Any dispute regarding this Section may be submitted to the Bankruptcy Court by the affected Participating Lessee, the affected Participating Lessor or the Conunittee. 23 (6) Arrearages. It is a condition to participation in the Plan that Participating Lessees agree to satisfy and discharge any arrearages under their Leases on the terms provided in this Section. For purposes of this Section, the amount of the "Effective Date Arrearage" shall be calculated as of the Effective Date of the Plan as the aggregate of the face amount (as determined under the terms of the original Lease) of each payment including, but not limited to, any sales, use, excise or other taxes, due but not paid as of the Effective Date (exclusive oflate charges, default interest, collection costs, attorneys' fees or other delinquency charges), plus. accrued interest on such payment at the rate of 16% from the date of non-payment through the 30th day after the Effective Date; provided that for the period December 10, 1997 through the Confmnation Date, interest shall accrue on the Effective Date Arrearage at the rate of twelve percent (12%). Any participating Lessee shall be entitled to elect to pay the Effective Date Arrearage in full within thirty (30) days following the Effective Date of the Plan. If the subject participating Lessee does not pay the Effective Date Arrearage in full within thirty (30) days following the Effective Date, such Participating Lessee's Effective Date Arrearage shall be included in the Class C Revised Principal Balance and sgail be paid in accordance with Section II.D.3.b.(3) above. The participating Lessors shall cause entries to be made in the credit records of any participating Lessee with respect to which such Lessor previously submitted credit information describing any arrearage, delinquency, default or the like under the original Lease. Such new entries shall (i) acknowledge the existence of a good faith dispute by Lessee under the ori~inal Lease, and (ii) report that any arrearage, delinquency, default or the like has been, or is being, cured. The participating Lessor shall provide a copy of such new entry to the Participating Lessee. (7) Personal Property Taxes. (a) Within thirty days after the Effective Date, each Participating Lessee shall pay all delinquent personal property taxes assessable on account of its Lease or the property covered thereby and shall thereafter pay all such taxes as they become due in accordance with the terms of the Lease. (b) The Distribution Trustee shall be authorized on behalf of the participating Lessees and the Participating Lessors, as the case may require, subject to means and procedures as approved by the Committee, to pursue any reasonable means to cause a reduction in the amount of personal property taxes assessed on account of the Leases of Participating Lessees or the property covered thereby. Any reduction in such personal property taxes shall inure to the benefit of the Participating Lessee, 24 I'", whether such reduction is retroactive and/or prospective. To any extent necessary to accomplish the purposes of this subsection, the Distribution Trustee shall be deemed the agent of, and shall have standing to appear for. the participating Lessec:s and the participating Lessors. as the case may require. (8) Waiver of Late Charges, Collection Costs and Attorneys' Fees. Except as specifically set forth herein. all late charges, default interest, collection costs, attorneys' fees or other delinquency charges that have been incurred or accrued as of the Effective Date of the Plan are forever waived by all Participating Lessors with respect to all Participating Lessees. including participating Lessees curing arrearages as provided in Section ll.D.3.b.(6) hereof. (9) Statement of Revised Lease Terms and Arrearages. Within fifteen (l5) days after the Confumation Order shall have become a Final Order, the Participating Lessors shall deliver to their respective Participating Lessees a statement setting forth the following items: (a) the Effective Balance; (b) the applicable lease discount percentage from the Lease Discount Table; (c) the amount of principal payments (if any) made after December 31. 1995. (d) the Revised Principal Balance; (e) the Revised Monthly Lease Payment if the term of the Lease is unchanged; (f) the Revised Monthly Lease Payment if the term of the Lease is extended to 60 months (or 72 months in the case of a Kiosk Lease); (g) the date their first Revised Monthly Lease Payment is due (assuming they do not elect to prepay); (h) the Effective Date Arrearage (if any); and (i) a concise statement. drafted or approved by the Committee, of the participating Lessee's options with respect to the revised Leases and instrUctions for exercising such options. Statements to participating Lessees that are not parties to Advertising Contracts may omit item (b). Class C Participating Lessees and Class D Participating Lessees which have made payments on account of their Leases since December 31. 1995 are entitled to a credit after their respective Leases are modified pursuant to the Plan on account of such payments made after December 31, 1995 that are in excess of the amounts which would have been owing under the Lease as modified, and such Participating Lessee will receive a credit for such amounts. To the extent a Participating Lessee has made all payments required under its Lease and the Lease was terminated between December 31. 1995 and the Effective Date, such Participating Lessee will be entitled to receive a refund of amounts paid with respect to its Lease in excess of amounts that would have been due with respect to the Lease as modified. 25 (10) Right to Retain Equipment on Full Compliance with Revised Lease. Any participating Lessee who complies fully with the terms of its Lease, as modified by the Plan, and completes all of the payments as required therein (whether by payment in accordance with the terms of the revised Lease or by prepayment as provided herein), shall be entitled either (a) to own the equipment covered by such Lease free and clear of any liens or claims of the Debtors, the Reorganized Debtor and the participating Lessors, subject only to the intellectual property rights of the Reorganized Debtor, or (b) to obtain the exclusive right to possess and use such equipment, subject to an agreement with the Reorganized Debtor regarding the provision of advenising on such equipment which agreement shall be in a form acceptable to Reorganized Debtor and the participating Lessee. (11) Discount Reallocation. Under the terms of the Plan, no Participating Lessee who is also a Class D Creditor is entitled to receive the value of the principal reduction set forth in the Lease Discount Table. Notwithstanding the foregoing, the Participating Lessors have agreed that the economic value of such discounts is intended to be provided Pro Rata to all Holders of Allowed Class C Claims that are Participating Lessees. To effectuate this, each Participating Lessor agrees to remit to the Distribution Trust, on a monthly basis, starting on and after the Effective Date, Cash equal to the principal reduction (calculated as set forth in the Lease Discount Table) that would otherwise be given to each participating Lessee of such Participating Lessor (if any) who is a Holder of an Allowed Class D Claim (the "Discount Reallocation") provided however that each Participating Lessor is only required to make such payment to the extent it receives such cash from such Participating Lessee who is a Holder of an Allowed Class D Claim. The Discount Reallocation shall not be subject to any liens or Claims of the participating Lessors. The Discount Reallocation shall be distributed Pro Rata to the Holders of Allowed Class C Claims that are Participating Lessees. as provided herein, after the establishment of appropriate reserves by the Distribution Trustee. c. Impairment: Class C is impaired. and the Holders of Allowed Class C Claims are entitled to vote to accept or reject the Plan. 26 4. Class D-Claims of Holders which are Participating' Lessees without Advertising Contracts or Guarantors of the Obligations of Participating Lessees without Advertising Contracts (Impaired). a. Classification: Class D consists of all Claims of Holders that are participating Lessees that are not parties to an Advenising Contract with any of the Debtors and all Guarantors with respect to such participating Lessees, provided, however. that there shall be only one recovery on account of an Allowed Claim with respect to any Lease. Such Guarantors shall be entitled to vote to accept or reject the Plan. For purposes of classification, any participating Lessee whose Lease commenced on or after October I, 1995 is presumed to be a Class D Creditor; provided, however. if a participating Lessee whose Lease commenced on or after October 1. 1995 can demonstrate to the Committee (and, if contested. to the Bankruptcy Court) that such participating Lessee was a party to an Advertising Contract, such participating Lessee shall be classified and treated as a Class C Creditor. For purposes of voting and distributions, the Claim of each Qass D Creditor is deemed to be an Allowed Claim equal to the present value of the gross lease payments due and payable under its Lease as of December 31. 1995. based upon a discount rate of six percent (6%). In the event such Allowed Claim of such Class D Creditor is less than $1.00, such Claim shall be deemed to be Allowed in the amount of $1.00. The Claims of all Guarantors are listed as contingent, disputed and unliquidated in the Schedules of Assets and Liabilities and such Claims shall not be Allowed Claims, except as otherwise provided under the Bankruptcy Code or the Bankruptcy Rules. b. Treatment: (1) Class D Distribution. Each Allowed Class D Claim shall receive its Pro Rata share of the Class D Distribution Account on the Initial Payment Date and on each Subsequent Payment Date thereafter, through and including the Final Payment Date. (2) Modification to Leases for Participating Lessees and Guarantors of the obligations of participating Lessees without Advertising Contracts (exclusive of Kiosk Leases). As of the Effective Date, the Leases (exclusive of Kiosk Leases) of Participating Lessees that are not parties to Advertising Contracts shall be deemed modified and revised as set forth below, which modifications shall be deemed effective as of the Effective Date. 27 (a) For purposes hereof, the terms "Effective Balance" and "Revised Interest Rate" shall have the same meaning ascribed to those terms, respectively, as is ascribed to such terms in Section Il.D.3.b.(3) of the Plan; (b) The "Class D Revised Principal Balance" of each Lease of a participating Lessee without an Advertising Contract shall be equal to the Effective Balance of such Lease: (i) Reduced by the aggregate principal portion of lease payments scheduled to be made by any such Lessee from January 1. 1996 through the Effective Date in accordance with the terms of the original relevant Lease, but as such principal portion of such payments is determined using the Revised Interest Rate; and (ii) Except as provided in Section ILD.3.b.(6) of the Plan, increased by the amount of the Effective Date Arrearage, if any, calculated as set forth in Section II.D.3.b.(6) of the Plan. (c) On or prior to the 30th day after the Effective Date, any participating Lessee may make a one-time cash prepayment of the Class D Revised Principal Balance of the Lease in complete satisfaction and discharge of its obligations under the Lease. (d) The Class D Revised Principal Balance and the Revised Interest Rate shall be used to determine the "Revised Monthly Lease Payments" according to the number of payments remaining under the terms of the relevant Lease as of the Effective Date (including payments due but not made between January I, 1996 and the Effective Date); provided. however, that (subject to Section II.D.4.b.(2)(e) below) participating Lessees have the option (but not the obligation) to extend the term of their Lease up to 60 months from the Effective Date for purposes of determining the Revised Monthly Lease Payments and payment schedule. Such Participating Lessee shall make the election to extend the term of its Lease within 30 days after the Effective Date, but in the absence of such an election, is deemed not to extend such term. 28 (e) No Revised Monthly Lease Payment will be less than $150 or greater than $250 for each Board under the Lease. In the event such Lessee's original Lease payment for each Board (exclusive of taxes) was in excess of the standard monthly Lease payment of$298.20, the maximum Revised Monthly Lease Payment shall be 83 % of the original monthly Lease payment exclusive of taxes. In the event that the Revised Monthly Lease Payment determined hereunder results in a calculated payment which is less than $150, the term of the relevant Lease shall be reduced to the number of months necessary to make the Revised Monthly Lease Payment not less than $150. In the event that the Revised Monthly Lease Payment determined hereunder results in a calculated payment which is greater than $250 for each Board under the Lease, the term of the relevant Lease shall be extended (in monthly increments) to the number of month~ necessary to make the Revised Monthly Lease Payment not greater than $250 for each Board under the Lease. (f) All participating Lessees shall commence payments under their revised Lease by paying their Revised Monthly Lease Payment on the first scheduled payment date under their original Lease following the Effective Date of the Plan. (g) Except as otherwise set forth herein, all other terms and conditions of the Lease, not inconsistent with the terms herein, survive. (3) Modification to Kiosk Leases without Advertising Contracts. As of the Effective Date, the Kiosk Leases of Participating Lessees without Advertising Contracts shall be deemed modified and revised as set forth in Section 4.b.(3) of this Subsection D, such modifications deemed effective as of the Effective Date, with the following additional terms: (a) such Lessees shall have the option to extend the term of the Kiosk Leases up to 72 months (as opposed to 60 months), and (b) no Revised Monthly Lease Payment under a Kiosk Lease will be less than $300 (as opposed to $150) or greater than $390 for each Kiosk under the Lease. In the event such Lessee's original Lease payment for each Kiosk (exclusive of taxes) was in excess of the standard monthly Lease payment of $466.90, the maximum Revised Monthly Lease Payment shall be 83% of the original monthly Lease payment (exclusive of taxes). In the event that the Revised Monthly Lease Payment hereunder results in a calculated payment which is less than $300, the term of the relevant Lease shall be reduced to the number of months necessary to make the Revised Monthly Lease Payment not less than $300. In the event that the Revised Monthly Lease Payment determined hereunder results in a calculated payment which is greater than $390 for each Kiosk under the Lease, the term of the relevant Lease shall be extended (in monthly increments) to the number of months necessary to make the Revised Monthly Lease Payment not greater 29 than $390 for each Kiosk under the Lease. All other provisions of Section 4.b.(2) of this Subsection D, as applicable, shall apply to the modification of Kiosk Leases under the Plan. (4) Certain Provisions of Section I1.D. Applicable. All provisions of Sections II.D.3.b.(2) and n.D.3.b.(5) through (10) shall also apply to the treatment of Class D Creditors. c. Imnainnent: Class D is impaired, and the Holders of Allowed Class D Claims are entitled to vote to accept or reject the Plan. s. Class E _ Claims of Holders which are Equipment Owners (Impaired). a. Classification: Class E consists of all Claims of Equipment Owners. For purposes of voting and distribution, the Claim of each Class E Creditor is deemed to be an Allowed Claim equal to the amount set fonh for such Claim on the Schedule of Assets and Liabilities, which is the amount reponed by the Debtors to be the aggregate of unpaid advenising revenues under the Advenising Contracts. In the event such €Iass E Creditor's Allowed Claim is $0.00, such Claim shall be deemed to be Allowed in the amount of $6,500.00. b. Treatment: (1) Class E Distribution Account. Each Allowed Class E Claim shall receive its Pro Rata share of the Class E Distribution Account on the Initial Payment Date and on each Subsequent Payment Date thereafter, through and including the Final Payment Date. (2) Promotion and Servicing Agreement. All Class E Creditors, holding Allowed Claims, whether such Equipment Owners owned Boards or Kiosks, shall be bound to perform all of their respective obligations under a Promotion and Servicing Agreement which shall be in substantially the fonn attached to the Plan as a pan of Exhibit D-2, unless such individual Class E Creditor indicates on the Promotion and Servicing Agreement Election Fonn for Lessees and Owners prior to the initial deadline set for voting on the Plan an intent not to be bound by the Promotion and Servicing Agreement. All Holders of Allowed Class E Claims that are bound by the Promotion and Servicing Agreement shall receive a Pro Rata share of Future Advenising Revenues divided among the aggregate of the Holders of Allowed 30 Claims in Classes C, D, E and H bound by the Promotion and Servicing Agreement. In order to receive Future Advertising Revenues, Class E Creditors must be bound by the Promotion and Servicing Agreement. Such Promotion and Servicing Agreement, if entered into, shall supersede and replace, in its entirety, the Advertising Contract. In the event that a Class E Creditor elects not to be bound by the Promotion and Servicing Agreement, the Reorganized Debtor retains whatever rights it may have, if any, to enjoin such Creditor's use of the Equipment arising out of the Reorganized Debtor's software and intellectual property rights relating to the Equipment. c. Imnainnent: Class E is impaired and the Holders of Allowed Class E Claims are entitled to vote to accept or reject the Plan. 6. Class F-Unsecured Claims (Impairetl). a. Classification: Class F consists of all Allowed Unsecured Claims against the Debtors other than those which are left unclassified pursuant to section 1 123(a)(I) of the Bankruptcy Code or are included in other classes set forth herein. b. Treatment: Each Allowed Class F Claim shall receive its Pro Rata share of the Class F Distribution Account on the Initial Payment Date and on each Subsequent Payment Date thereafter, through and including the Final Payment Date. c. Imnairment: Class F is impaired, and the Holders of Allowed Class F Claims are entitled to vote to accept or reject the Plan. 7. Class G Interests (Impairetl). a. Classification: Class G consists of the Holders of Interests of the Debtors. b. Treatment: All Interests of the Debtors will be canceled, terminated and annulled as of the Effective Date of the Plan. The Holders of Interests in Class G will receive no distribution and will retain no Property from the Estates on account of such interests. c. Imnairment: Class G is impaired, and is deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. 31 8. Class H-Non-Participating Lessees (Impaired). a. Classification: Class H consists of all Claims of Holders that are Non-Participating Lessees and all Guarantors with respect to such Non-Participating Lessees; provided. however. that there shall be only one recovery on account of an Allowed Claim with respect to any Lease. For purposes of voting and distributions. the Claim of each Class H Creditor that is a party to an Advertising Contract with the Debtor is deemed to be an Allowed Claim equal to the amount set forth for such Non- participating Lessee in the Schedule of Assets and Liabilities. which is the amount reported by the Debtors to be the aggregate of unpaid advertising revenues under the Advertising Contracts. For purposes of voting and distributions. the Claim of each Class H Creditor that is not a party to an Advertising Contract is deemed to be an Allowed Claim equal to the present value of the gross lease payments due and payable under its Lease as of December 31. 1995. based upon a discount rate of six percent (6%). In the event such Allowed Claim of such Class H Creditor is less than $1.00. such Claim shall be deemed to be Allowed in the amount of $1.00. The Claims of all Guarantors are listed as contingent. disputed and unliquidated in the Schedule of Assets and Liabilities and such Claims shall not be Allowed Claims. except as otherwise provided under the Bankruptcy Code and Bankruptcy Rules. b. Treatment: (1) Class H Distribution. Each Allowed Class H Claim shall receive its Pro Rata share of the Class H Distribution Account on the Initial Payment Date and on each Subsequent Payment Date thereafter. through and including the Final Payment Date. (2) Promotion and Servicing Agreement. - All Class H Creditors holding Allowed Claims. whether they leased Boards or Kiosks. shall be bound to perform all of their respective obligations under a Promotion and Servicing Agreement which shall be in substantially the form attached to the Plan as a part of Exhibit D-2. unless an individual Class H Creditor indicates on the Promotion and Servicing Agreement Election Form for Lessees and Owners prior to the initial deadline set for voting on the Plan an intent not to be bound by the Promotion and Servicing Agreement. All Holders of Allowed Class H Claims that are bound by the Promotion and Servicing Agreement shall receive a Pro Rata share of Future Advertising Revenue divided among the aggregate of the Holders of Allowed Claims in Classes C. D. E and H bound by the Promotion and Servicing Agreement. In order to receive a distribution of Future Advertising Revenue, Class H Creditors must be bound by the 32 Promotion and Servicing Agreement. Such Promotion and Servicing Agreement, if entered into. shall supersede and replace. in its entirety, the Advertising Contract, if any. In the event that a Class H Creditor elects not to be bound by the Promotion and Servicing Agreement, the Reorganized Debtor retains whatever rights it may have, if any, to enjoin such Creditor's use of the Equipment arising out of the Reorganized Debtor's software and intellectual property rights relating to the Equipment. c. Imoairment: Class H is impaired, and the Holders of Allowed Class H Claims are entitled to vote to accept or reject the Plan. . ARTICLE m. ACCEPTANCE OR REJECTION OF THE PLAN A. Voting By Impaired Classes. Each Holder of an Allowed Claim in Classes C, D, E, F and H is entitled to vote either to accept or to reject the Plan. Only those votes cast by Holders of Allowed Claims shall be counted in determining whether acceptances have been received sufficient in number and amount to conflIII1 the Plan. B. Acceptance By Impaired Classes. An Impaired Class of Claims shall have accepted the Plan if: (1) the Holders (other than any Holder designated under section 1126(e) of the Bankruptcy Code) of at least two-thirds in amount of the Allowed Claims actually voting in such Class have voted to accept the Plan; and (2) the Holders (other than any Holder designated under section 1126(e) of the Bankruptcy Code) of more than one-half in number of the Allowed Claims actually voting in such Class have voted to accept the Plan. An Impaired Class of Interests shall have accepted the Plan if the Holders (other than any Holder designated under section 1126(e) of the Bankruptcy Code) of at least two-thirds in amount of Allowed Interests actually voting in such Class have voted to accept the Plan. 33 C. Presumed Acceptance/Rejection of Plan. Classes A and B are unimpaired under the Plan, and, therefore, conclusively are deemed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Class G is deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. D. Nonconsensual Confirmation. Because at least one Class of Claims or Interests is deemed not to accept the Plan, pursuant to section 1129(a)(8) of the Bankruptcy Code, the Debtors, the participating Lessors and the Committee will request that the Bankruptcy Court confirm the Plan in accordance with section 1129(b) of the Bankruptcy Code. Notwithstanding the foregoing, the Debtors, the Participating Lessors and the Committee shall not request Confirmation of the Plan. and shall withdraw the Plan, if the Plan is not accepted by Classes C, 0, E and H, provided that the Committee may waive this requirement with respect to acceptance by Classes 0, E and H. ARTICLE IV. TREA TMEr-.'T OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES A. Assumption and Assignment Of Executory Contracts And Unexpired Leases. I. Assumptions and Assignments Generally. Except as otherwise provided in the Plan, in any order of the Bankruptcy Court, or in any contract, instrument, release, indenture, or other agreement or document incorporated into the Plan or entered into in connection with the Plan or the Reorganization Cases, on the Effective Date, pursuant to section 365 of the Bankruptcy Code, each of the executory contracts and unexpired leases set forth in the -Merger Agreement (or the exhibits thereto) shall be assumed by the Debtor party thereto as set forth therein, subject to the same rights as such Debtor or Reorganized Debtor held or holds at, on or after the Petition Date to modify and/or terminate such agreements under applicable non-bankruptcy law. Each contract and lease listed in the Merger Agreement (or the exhibits thereto) shall be assumed only to the extent, if any. that it constitutes an executory contract or unexpired lease on the Effective Date, and the listing of such contract or lease in the Merger Agreement shall not constitute an admission by a Debtor or Reorganized Debtor that such contract or lease is an executory contract or unexpired lease or that the Debtor or Reorganized Debtor has any liability thereunder_ 34 2. Approval or Assumptions and Assignments. The Confumation Order shall constitute an order of the Bankruptcy Court approving the assumptions and assignments described in this Article IV pursuant to section 365 of the Bankruptcy Code as of the Effective Date, except as otherwise provided for herein. 3. Objections To Assumption and Assignments or Executory Contracts And Unexpired Leases. To the extent that any party to an executory contract or unexpired lease identified for assumption or any other party in interest (a) asserts arrearages or damages pursuant to section 365(b)(l) of the Bankruptcy Code in an amount different from the amount, if any. set forth in the Merger Agreement (or the exhibits thereto), (b) has any objection to the proposed adequate assurance of future performance, if required, or (c) has any other objection to the proposed assumption, cure or assignment of a particular executory contract or unexpired lease on the terms and conditions provided for herein, all such asserted arrearages and any other objections shall be Filed and served within the same deadline and in the same manner established for f1ling objections to Confumation. Failure to assert any arrearages different from the amount set forth in the Merger Agreement (or the exhibits thereto), or to f1le an objection within the time period set forth above, shall constitute consent to the assumption, cure and assignment on the terms provided for herein, including acknowledgment that (a) the Debtors (or their assignees) have provided adequate assurance of future performance, if required, (b) the amount identified for . cure. . if any, is the amount necessary to compensate for any and all outstanding defaults or actual pecuniary loss under the executory contract or unexpired lease to be assumed, and (c) no other defaults exist under such executory contract or unexpired lease. If an objection to assumption and assignment is Filed based upon lack of adequate assurance of future performance or otherwise, and the Bankruptcy Court determines that the pertinent Debtor cannot assume the executory contract or unexpired lease either as proposed or as may be proposed pursuant to a modified proposal submined by the pertinent Debtor, then the unexpired lease or executory contract shall automatically thereupon be deemed to have been rejected pursuant to Section B.l below. 35 4. Payments Related To Assumption Of Executory Contracts And Unexpired Leases. Any monetary defaults, including claims for actual pecuniary loss, under each executory contract and unexpired lease to be assumed under the Plan shaH be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment of the cure amount, if any, as otherwise agreed by the parties, or as ordered by the Bankruptcy Court in Cash within 120 days following the Effective Date, or on such other terms as may be agreed to by the parties to such executory contract or unexpired lease. In the event of a dispute regarding (a) the amount of any cure or pecuniary loss payment, (b) the ability of the Reorganized Debtor to provide adequate assurance of future perfonnance under the contract or lease to be assumed, if required, or (c) any other matter pertaining to assumption, the cure or pecuniary loss payments required by section 365(b)(I) of the Bankruptcy Code shall be made within a reasonable time following entry of a Final Order . resolving the dispute and approving assumption. B. Executory Contracts And Unexpired Leases To Be Rejected. 1. Rejections Generally. As of the Confumation Date, each executory contract or unexpired lease of a Debtor that has not been previously assumed by order of the Bankruptcy Court, that is not the subject of a motion Filed by a Debtor, the Committee, or the Distribution Trustee to assume, and is not assumed under section A.I above, shall be rejected. 2. Approval Of Rejections. The Confmnation Order shall constitute an order of the Bankruptcy Court approving the rejection of executory contracts and unexpired leases as provided herein, pursuant to section 365 of the Bankruptcy Code, as of the Confmnation Date. 3. Objections To Rejection Of Executory Contracts And Unexpired Leases. Any party in interest wishing to object to the rejection of an executory contract or unexpired lease identified for rejection as provided for herein shaH. within the same deadline and in the same manner established for filing objections to Confmnation, file any objection to such rejection. Failure to file any such objection within the time period set forth above shall constitute consent to the rejection. 36 4. Bar Date For Rejection Damages. If the rejection of an executory contract or unexpired lease pursuanno Section B.l above gives rise to a Claim by the other party or parties to such contract or lease. such Claim, to the extent that it is timely Filed and is an Allowed Claim. shall be classified in Class F; provided, however, that the Unsecured Claim arising from rejection shall be forever barred and shall not be enforceable against a Debtor, Reorganized Debtor, Distribution Trust, Distribution Trustee, their successors or properties. unless a proof of Claim is Filed and served on the Distribution Trustee within 30 days after the date of the notice of the entry of an order of the Banlauptcy Court authorizing rejection of the executory contract or unexpired lease, which order may be the Confumation Order. C. Amendment To Exhibits Identifying Executory Contracts And Unexpired Leases To Be Assumed Or Rejected. The Committee, or the Debtors with the consent of the Committee, may alter the executory contracts and unexpired leases to be assumed or rejected if, at least 10 days prior to the hearing on Confumation of the Plan, the Debtor or the Committee provides notice to any parties to the executory contracts or unexpired leases affectec\ thereby and to the parties on the then-applicable special notice list in the Reorganization Cases. ARTICLE V. SUBSTANTIVE CONSOLIDATION Unless the Estates are substantively consolidated by motion prior to the Conformation Hearing, effective as of the Effective Date. the Estates of the Debtors, and all of their assets and liabilities, shall be pooled and substantively consolidated into a single Estate, eliminating thereby any intercompany claims and liabilities of any kind. All Claims of a Holder of any kind against any of the Debtors shall be deemed a single Claim against the consolidated Estate. Any Creditor that asserts Claims against two or more Debtors based on their joint liability (including any Creditor who asserts Claims against one Debtor as primary obligor and against another Debtor or Debtors as guarantor or indemnitor) will hold only one such Claim against the consolidated Estate, and any duplicative Claims against any other Debtor will be disallowed. 37 r' ARTICLE VI. THE DISTRIBUTION TRUST AND THE DISTRIBUTION TRUSTEE A. Creation of Distribution Trust; Transfer of Assets to the Distribution Trust. To provide for the distributions described in the Plan, there is hereby created and established a Distribution Trust. Subject to the provisions of Section DCA. hereof, on the Effective Date, each Debtor shall transfer and assign, or cause to be transferred and assigned, to the Distribution Trust all Cash and all Causes of Action. Subject to the provisions of Section DCA. hereof, cpon the Effective Date, title to all Cash and ~1! Causes of Action of each Debtor shall pass to the Distribution Trust, free and clear ,)f all Claims and liens in accordance with sections 363 and 1141 of the Bankruptcy Cuve, except liens of the Lenders. The Holders of Claims against the Debtors shall be the sole and exclusive beneficiaries of the Distribution Trust. B. Assumption of Distribution Obligations. In consideration for the property to be transferred to the Distribution Trust pursuant to Section VI.A of the Plan, the Distribution Trustee shall assume the Debtors' obligations to make distributions in accordance with the Plan, limited to the distributions expressly provided for in the Plan, and limited to the Cash available to the Di$tributio!1 Trust at the Effective Date from the consolidated Estate and such amounts colkc:t("o hv the Distribution Trustee from recoveries on Causes of Action. The sole and exclUSive purpose of the Distribution Trust shall be the pursuit of the Causes of Action, resolution of claims and the making of distributions required by this Plan. C. Duties of the Distribution Trustee and its Counsel. In addition to its duties as set fonh elsewhere in this Plan, the Distribution Trustee may continue, or if not already commenced, pursue and prosecute Causes of Action which may be available to the consolidated Estate, in the sole and exclusive discretion of the Distribution Trustee. The Distribution Trustee may settle any action or Claim requiring a payment by the Distribution Trust or involving a payment to the Distribution Trust in the amount of $50,000 or less without need of Bankruptcy Court approval; provided. however, the Distribution Trustee shall not settle any controversy with any Insider regarding more than $10,000 or requiring a payment by the Distribution Trust of more than $5,000 except by Bankruptcy Coun approval of such settlement. The Distribution Trustee shall be authorized, directed and empowered to collect (either directly for the' Distribution Trust or by compelling payment to the Plan beneficiary entitled thereto) all assets of the consolidated Estate. All Cash held by the Distribution 38 Trustee in the Distribution Trust shall be maintained in an interest-bearing account in accordance with section 345 of the Bankruptcy Code for the benefit of the Persons and Entities entitled to distributions and payments under the Plan. The Distribution Trustee shall be paid reasonable compensation for its services perfonned hereunder from the Post-Confumation Reserve Fund. D. Rights of the Distribution Trustee. In order to carry out its duties under the Plan, the Distribution Trustee. in addition to its additional rights hereunder, shall have the right, but not the obligation. to (i) retain and compensate DBGM, Professionals and other Persons and Entities to assist the Distribution Trustee in the performance of its duties hereunder, and (ii) employ such other procedures as are necessary for the Distribution Trustee to perform its duties hereunder. such procedures subject to approval by the Bankruptcy Court to the extent they differ from the procedures set forth in the Plan. The Distribution Trustee shall have the right to disburse funds from the Distribution Trust for such PWl'oses; provided, however, that until the Lender Claims are paid in full. the Distribution Trustee shall obtain the consent of the participating Lessors and the Committee, not to be unreasonably withheld, prior to payment of any Professional for services rendered after the Confinnation Date. Except as otherwise provided herein, the Distribution Trustee shall have sole and exclusive discretion with respect to the performance of its duties under the Plan, including, but not limited to, any decisions regarding the liquidation or abandonment of the Causes of Action of the consolidated Estate, the declaration of Subsequent Payment Dates, the determination of reserve funds and the making of distributions other than distributions on the Final Payment Date. E. Disbursing Agent. . The Distribution Trustee, or its designee or assignee, shall act as its own disbursing agent under the Plan and shall establish such accounts as may be necessary or desirable to effectuate payments as provided for in the Plan. 39 ARTICLE VII. PROVISIONS FOR TREATMENT OF DISPUTED, CONTINGENT, UNLIQUIDATED AND UNKNOWN ADMINISTRATIVE EXPENSE CLAIMS, CLAIM:8 AND INTERESTS A. Resolution of Disputed Administrative Expense Claims and Disputed Claims. 1. Prosecution of Objections to Claims by the Distribution Trustee and Its Counsel. Unless otherwise ordered by the Bankruptcy Court after notice and a hearing, the Committee and the Distribution Trustee shall have the exclusive right to make and File objections to Administrative Claims, Claims and Interests, and shall serve a copy of each objection upon the Holder of the Disputed Administrative Claim, Disputed Claim or Disputed Interest to which the objection is made. Except as expressly set forth herein, nothing in the Plan, the Confinnation Order or any order in aid of confirmation of the Plan, shall constitute, or be deemed to constitute, a waiver or release of any claim, cause of action, right of setoff, or other legal or equitable defense which the Debtors had immediately prior to the commencement of the Reorganization Cases, and/or thereafter, against or with respect to any Claim or Interest. Upon confinnation of the Plan, the Committee and the Distribution Trustee shall have, retain, reserve and be entitled to assert all such claims, causes of action, rights of setoff and other legal or equitable defenses which the Debtors had immediately prior to the commencement of the Reorganization Cases fully as if the Reorganization Cases had not been commenced. The Distribution Trustee and the Committee may settle any controversy regarding $50,000 or less or requiring a payment by the Distribution Trust or involving a payment to the Distribution Trust in the amount of $50,000 or less without need of Bankruptcy Court approval; provided. however, the Distribution Trustee and the Committee shall not settle any controversy with any Insider regarding more than $10,000 or requiring a payment by the Distribution Trust of more than $5,000 except by Bankruptcy Court approval of such settlement. 2. Estimation of Claims. The Distribution Trustee may, at any time, request that the Bankruptcy Court estimate any Contingent Claim pursuant to section 502(c) of the Bankruptcy Code regardless of whether the Debtors, the Committee, or the Distribution Trustee have previously objected to such Claim. and the Bankruptcy Court will retain jurisdiction to estimate any Claim at any time during litigation concerning any objection to any Claim, including during the pendency of any appeal relating to any such objection. In the event 40 that the Bankruptcy Coun estimates any Contingent Claim, that estimated amount will constitute either the Allowed amount of such Claim or a maximum limitation on the Allowed amount of such Claim. as determined by the Bankruptcy Coun. If the estimated amount constitutes a maximum limitation on the Allowed amount of such Claim, the Distribution Trustee or the Committee may elect to pursue any supplemental proceedings to object to the ultimate payment of such Claim. All of the aforementioned Claims objection. estimation and resolution procedures are cumulative and not necessarily exclusive of one another. Claims may be estimated and subsequently compromised, settled. withdrawn or resolved by any mechanism approved by the Bankruptcy Coun. Until such time as a Contingent Claim becomes fixed and absolute, such Claim shall be treated as a Disputed Claim for purposes related to allocations and distributions under this Plan. 3. Payments and Distributions on Disputed Claims. On the Initial Payment Date and on each Subsequent Payment Date thereafter. the Distribution Trustee shall reserve from the Distribution Trust such Cash as is necessary to fund the Disputed Claims Reserve Fund. In detennining the amount of Cash to reserve for the Disputed Claims Reserve Fund, the Distribution Trustee shall be entitled to rely upon the estimation. if any, of any Disputed Claims pursuant to Section VII.A.2 of the Plan to determine the amount of Cash so reserved. without objection by the Holder of the Disputed Claim. As and when authorized by a Final Order, Disputed Claims that become Allowed Claims shall be paid first from the Disputed Claims Reserve Fund and second from the Distribution Trust. such that the Holder of such Allowed Claim receives all payments and distributions to which such Holder is entitled under the Plan. Any Cash remaining in the Disputed Claims Reserve Fund after fmal detennination of all Disputed Claims shall be treated as Cash available for distribution, as provided in Section X.F. of the Plan. except to the extent the Distribution Trustee determines that any ponion thereof should be allocated to the Post-Confumation Reserve Fund. Notwithstanding any provision in the Plan to the contrary. no panial payments and no panial distributions will be made with respect to a Disputed Claim until the resolution of such disputes by settlement or Final Order~ Notwithstanding the foregoing, any Person or Entity who holds both (an) Allowed Claim(s) and (a) Disputed Claim(s) will receive the appropriate payment or distribution on the Allowed Claim(s), although no payment or distribution will be made on the Disputed Claim(s) until such dispute is resolved by settlement or Final Order. B. Allowance of Claims and Interests. Except as expressly provided herein. no Claim or Interest shall be deemed Allowed by virtue of the Plan, Confumation of the Plan or any order of the Bankruptcy 41 " Court in the Reorganization Cases, unless and until such Claim or Interest is deemed Allowed under the Bankruptcy Code or the Bankruptcy Court enters a Final Order in the Reorganization Cases allowing such Claim or Interest. Subsequent to Confumation, the Distribution Trustee, on behalf of the consolidated Estate, shall have and retain any and all rights and defenses the Debtors had with respect to any Claim or Interest as of the Petition Date. Unless an earlier time is set by order of the Bankruptcy Court, all objections to Claims and Interests shall be Filed with the Bankruptcy Court and served upon the holders of each of the Claims and Interests to which objections are made by the later of (i) one hundred eighty (180) days after the Effective Date, and (ii) one hundred eighty (180) days after a proof of claim with respect to such Claim is Filed. C. Controversy Concerning Impairment. If a controversy arises as to whether any Claims or Interests, or any Class of Claims or Equity Interests, are impaired under this Plan, the Bankruptcy Court shall. after notice and a hearing, determine such controversy prior to the Confmnation Date. ARTICLE vm. MAINTENANCE OF CAUSES OF ACTION Any rights or Causes of Action under any theory of law, including, without limitation, under the Bankruptcy Code accruing to the Debtors shall remain Assets of the consolidated Estate pursuant to section 1123(b)(3)(B) of the Bankruptcy Code and shall be transferred to the Distribution Trust pursuant to Article VII of the Plan. From and after the Effective Date, the Distribution Trustee may litigate any avoidance, recovery or subordination actions under sections 510,544,545,547,548,549,550,551 and 553 of the Bankruptcy Code, or any other Causes of Action or rights to payments of claims that belong to the Debtors that may be pending on the Effective Date or instituted by the Distribution Trustee after the Effective Date. Absent a determination by the Bankruptcy Court or another court of competent jurisdiction that a conflict of interest exists in so doing, the Distribution Trustee shall retain DBGM as its counsel to pursue the rights and Causes of Action against Insiders or other parties related to the Debtors, but shall retain the right, for cause shown and with the consent of the Committee and the participating Lessors, to terminate such employment and to hire other counsel to pursue such Causes of Action. The Distribution Trustee retains the right, in its sole and exclusive discretion. to hire other Counsel with respect to all other Causes of Action. The fees of DBGM for such services shall not exceed 33-113% of any recoveries on account of such rights or Causes of Action or such lesser amount as allowed under the laws of the State in which any such right or Cause of Action is pursued. 42 In addition, the Plan Proponents have been informed that DBGM will File the DBGM Application with the Bankruptcy Court seeking allowance and payment, under section 503(b)(3)(D) of the Bankruptcy Code. for fees, costs and expenses incurred prior to the date of closing of the merger of the consolidated Debtors and In-Store, based on the substantial contribution of DBGM to the Reorganization Cases. After the date of filing of the Disclosure Statement, DBGM, on behalf of its clients, will not pursue discovery or take any action in the Reorganization Cases or any other case or proceeding against the participating Lessors, unless required to do so by an order of a court in which such case or proceeding is pending and will rely instead on the discovery conducted by the Committee. In addition, any fees, costs and expenses incurred by DBGM in connection with litigation against Lessors other than Participating Lessors after the date of filing of the Disclosure Statement will be segregated by DBGM (the .Segregated Fees, Costs and Expenses") from amounts for which DBGM will seek allowance and paym~:1t in the DBGM Application and DBGM will not seek allowance and payment from the Estates of the Segregated Fees, Costs and Expenses. The Plan Proponents and the participating Lessors acknowledge their belief that DBGM has made a substantial contribution to the Reorganization Cases. The Plan Proponents also understand that DBGM has submitted to counsel for the Committee evidence of the fees. costs and expenses for which it seeks reimbursement, in order to allow the Committee to determine whether in its opinion such fees. costs and expenses are reasonable. DBGM has agreed that such submission shall be a condition pre,:~dc:'r to the Allowance of any fees, costs and expenses to DBGM in the Reorganization Cas!'". The Plan Proponents believe that it is appropriate for the Committee to review the fees, costs and expenses of DBGM as a fiduciary of the Estates. The Committee informed DBGM that it believes DBGM's fees, costs and expenses through December 31, 1996 are reasonable in an amount of $1.500.000.00. All other Plan Proponents, the participating Lessors and In-Store acknowledge that they have no objection to Allowance of a Claim of DBGM pursuant to Section 503(b)(3)(D) of the Bankruptcy Code in the amount of $1,500,000.00. Nothing contained herein constitutes an agreement. express or implied, to fix the fees or compensation to be paid to DBGM. Any payment of fees and expenses to DBGM is subject to the approval of the Bankruptcy Court as reasonable. Such fees, costs and expenses, to the extent Allowed, will be paid as an Administrative Claim on, and in no event prior to, the date of the merger of the consolidated Debtors with In-Store, provided that, in the event a merger of the consolidated Debtors and In-Store does not occur on or prior to the Effective Date, such Allowed fees, costs and expenses of DBGM shall be paid on the Effective Date. The funds necessary to pay such fees, costs and expenses, to the extent Allowed, will be provided by the participating Lessors as part of the Tranche B DIP Financing and will not affect amounts available for distribution to Creditors of the Estates. The 43 Participating Lessors shall not receive any payment on account of that portion of the Tranche B DIP Financing advanced for the payment of the fees, costs and expenses of DBGM until all Allowed Claims in Classes C, D, E, F and H have been paid as provided herein. The Distribution Trustee may settle any controversy regarding $50.000 or less without need of Bankruptcy Court approval; provided. however, the Distribution Trustee shall not settle any controversy with any Insider regarding more than $10,000 or requiring a payment by the Distribution Trust of more than $5.000 except by Bankruptcy Court approval of such settlement. The Distribution Trustee, in its sole discretion, may pursue or may refrain from pursuing a;}y rights of action; provided. however, that while the Lender Claims are unpaid, the Participating Lessors may elect to prosecute a Cause of Action on behalf of the consolidated Estate if the Distribution Trustee elects to refrain from pursuing such Cause of Action. Except as provided herein, no other entity may pursue any such rights of action. ARTICLE IX. MEANS FOR EXECUTION AND IMPLEMENTATION OF THE PLAN A. Merger. On or prior to the Effective Date, In-Store and the Consolidated Debtors will be merged pursuant to the Merger Agreement, with the consolidated Reorganized Debtor being the surviving company. Upon such merger, the Reorganized Debtor will succeed to all of the assets of the Debtors and In-Store, but will succeed to the liabilities of the Debtors only as provided in the Plan. The issued and outstanding stock of the Debtors will be cancelled and will be of no force or effect. The Reorganized Debtor will authorize and issue new common stock as provided in the Merger Agreement. Immediately following the merger, the Reorganized Debtor will change its name to In- Store Promotions, Inc. The entry of the Conflnnation Order shall be deemed approval by the Bankruptcy Court of the merger on the terms and conditions set forth in the Merger Agreement. Upon entry of the Confmnation Order, the Debtors. the Estates, the Distribution Trustee, the Lessors. the Committee and In-Store shall be authorized and directed to consummate the merger and execute any and all documents necessary and appropriate to effectuate the merger. On the date required by the Merger Agreement. the appropriate officers of the Debtors shall file with the Florida Secretary of State the Certificate of Merger with the Merger Agreement attached. Holders of Interests in the Debtors shall be deemed to have 44 voted on the Confirmation Date in favor of the merger and shall not be entitled to cause the Debtors or the Reorganized Debtor (as the case may be) not to consununate the merger. Neither the Holders of Interests in the Debtors nor any Holder of conunon stock of the Reorganized Debtor shall be entitled to any appraisal rights in connection with the merger. B. Intentionally Omitted. C. Funding or Plan. 1. Cash Payments. Funds to make Cash payments required by the Plan shall be provided from the Cash available in the consolidated Estate at the Effective Date, Cash from the operations of the Reorganized Debtor, proceeds of the Causes of Action of the consolidated Estate, and the funds to be paid by In-Store pursuant to the Merger Agreement, all to the extent set forth herein and in the Disclosure Statement. The balance of any Cash required to make Cash Payments to confum the Plan shall be provided by loans from the Participating Lessors to the Debtors as Tranche B DIP Financing. Those funds to be paid tiy In-Store wiII be generated from In-Store's own financing sources as set forth in the Merger Agreement. 2. Indemnification Claims Against the Debtor. Each Participating Lessor shall be deemed to hold an Allowed Unsecured Claim against the Debtors in the dollar amount of all concessions granted to Participating Lessees under the Plan, but only to the extent such Claims are Allowed pursuant to an order of the Court. Each Participating Lessor shall be permitted to vote such Unsecured Claim for, or against, the Plan. Any distribution to the Participating Lessor on account of such Claim shall be contributed to the Distribution Trust by such Participating Lessor, effective as of the Effective Date. 3. . Reorganized Debtor Stock. Except for the Reorganized Debtor Stock provided to the Participating Lessors pursuant to the Merger Agreement and distributions on their Allowed Unsecured Claims, and except for repayment of amounts owed under the Financing Order, each Participating Lessor expressly waives all rights to any and all distributions from the Estates and the Distribution Trust. The Reorganized Debtor Stock allocated pursuant to the Merger Agreement to the Participating Lessors shaH be contributed by the Participating Lessors to the Distribution Trust for distribution pursuant to the terms hereof. 45 D. Revesting Of Assets. Except as otherwise provided in any provision of the Plan, agreements entered into in connection therewith, or the Confumation Order, on the Effective Date all property of each Debtor's Estate, shall revest in the Reorganized Debtor, free and clear of all Claims, liens, encumbrances and other interests of any Entity, and the Reorganized Debtor may thereafter operate its business and may use, acquire and dispose of property without the supervision or approval by the Bankruptcy Court, free of any restrictions of the Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules of the United States Bankruptcy Coun for the Middle District of Florida, and the guidelines and requirements of the Office of the United States Trustee for the Middle District of Florida, other than those restrictions expressly imposed by the Plan or the Confumation Order, or agreements entered into in connection therewith. The Chaners of each of the Debtors are amended to prohibit the issuance of non-voting equity securities. The following individuals will serve initially as the officers of the Reorganized Debtor after Confirmation of the Plan: Lewis Green - President, Julie Gordon - Vice President Marketing, Roben Aldrich - Vice President Finance. The Directors will be Lewis Green, Julie Gordon, Roben Aldrich and Peter Diamandes. Such officers and directors shall be authorized to assume their offices as of the Effective Date and shall be authorized to continue to serve in such capacities thereafter pending funher action of the Board of Directors or stockholders of the Reorganized Debtor in accordance with applicable state law and the Reorganized Debtor's then-existing cenificate of incorporation and bylaws. This designation may be amended at any time prior to the Effective Date upon such notice as may be required by the Bankruptcy Coun. E. Abandonment of Assets. Pursuant to section 554 of the Bankruptcy Code, following Confirmation, the Reorganized Debtor may, after notice and a hearing, seek to abandon any property of the consolidated Estate that is burdensome or of inconsequential value. F. Release Of Liens. Except as otherwise provided in the Plan or in any contract, instrUment or other agreement or document created in connection with the Plan, on the Effective Date all liens or other security interests against property of the Estate of each Debtor shall be released and all right, title and interest of any holder of such liens or other security interests shall reven to the Reorganized Debtor. 46 G. Funding of Post-Confirmation Reserve Fund. On the Effective Date, the Distribution Trustee shall reserve from distribution $100.000.00 to fund the Post-Confirmation Reserve Fund. Thereafter. from time to time, the Distribution Trustee shall reserve such other Cash and other Assets as the Distribution Trustee shall deem necessary and appropriate. in its sole and exclusive discretion. to fund the Post-Conflrmation Reserve Fund from assets otherwise available for payment to Class C, D, E. F and H Creditors. Prior to the Final Payment Date, in the discretion of the Distribution Trustee, funds allocated to the Post-Conf1Ill1ation Reserve Fund may be released for distribution as otherwise provided herein. Any Cash remaining in the Post-Confirmation Reserve Fund after the discharge of all of the Distribution Trustee's duties hereunder shall be treated as Cash available for distribution, as provided in Section X.F. of the Plan. H. Cancellation And Surrender or Instruments, Securities, And Other Documentation. On the Effective Date, except as otherwise provided by the Plan, all outstanding notes, instruments and other writings evidencing indebtedness shall be deemed canceled and of no further force or effect, without any further action on the pan of the Bankruptcy Court or any Person. The holders of such canceled instruments shall have no rights arising from or relating thereto except the rigb,ts provided pursuant to the Plan. I. Setoffs. Except as otherwise provided in the Plan, agreements entered into in connection therewith. the Confirmation Order. or agreements previously approved by Final Order of the Bankruptcy Court, the Distribution Trustee may, pursuant to section 553 of the Bankruptcy Code or applicable nonbankruptcy law, set off against any Allowed Claim before any distribution is made on account of such Allowed Claim, any and all of the claims, rights and causes of action of any nature that a Debtor, Reorganized Debtor or the Distribution Trust holds against the Holder of such Allowed Claim; provided. however, that neither the failure to effect such a setoff nor the allowance of any Claim hereunder shall constitute a waiver or release of any such claims. rights or causes of action that the Debtor, Reorganized Debtor or Distribution Trust may possess against such Holder. To the extent the Distribution Trustee fails to set off against a Claimant and seeks to collect a claim from such Claimant after a distribution to such claimant pursuant to the Plan on account of its Allowed Claim, the Distribution Trustee shall be entitled to full recovery on its claim against such Claimant. 47 J. Limitation of Liability. Neither a Debtor, the Comminee, a Reorganized Debtor, the Participating Lessors, the Distribution Trustee nor any of their respective officers, directors, employees, members or agents, nor any Professional employed by any of them shall have or incur any liability to any Person or Entity for any act taken or omission made in good faith in connection with or related to formulating, implementing, confirming, or consummating the Plan (including soliciting acceptances or rejections thereof), the Disclosure Statement or any contract, instrument, release or other agreement or document entered into in connection with the Plan, except as expressly provided in such contract. release or other agreement or document entered into in connection with the Plan. The entry of the Confirmation Order shall constitute the determination by the Bankruptcy Court that the Debtors, the Comminee, the Reorganized Debtors, the Distribution Trustee, the Participating Lessors, and each of their respective officers, directors. employees, members or agents, and each Professional employed by any of them have acted in good faith through the Confmnation Date with respect to the foregoing. K. Corporate Action. Upon the entry of the ConfIrmation Order by the Bankruptcy Court, all maners provided under the Plan involving the corporate strUcture of the Debtors or shareholder action by the Debtors, shall be deemed to be authorized and approved without any requirement of further action by the Debtor or the shareholders, and the Distribution Trustee shall be authorized to take any action described or contemplated hereunder on behalf of all shareholders. L. Waivers and Releases. 1. Release of Participating Lessors. Except as specifIcally set forth herein. effective on the Effective Date, all Persons including but not limited to each of the Debtors and the Estates and each of the Lessees shall be deemed to unconditionally remise, release, and forever discharge the Participating Lessors and their past and present officers, directors, shareholders, employees, agents. anorneys, parents, subsidiaries, affiliates, predecessors in interest (direct or indirect), successors and assigns, and the heirs, executors, trustees, administrators, successors and assigns of any such Persons and Entities (hereinafter collectively the "Released Lessor Parties"), but excluding, particularly, David Neff and any other such individual who is a former employee, officer or director of both (i) the Debtors and (ii) a Participating. Lessor, of and from any and all manner of actions, causes of action, suits, claims, counterclaims, liabilities, obligations, defenses, and 48 demands whatsoever, at law or in equity, if any, which any of them ever had, now has, or hereafter can, shall, or may claim to have against any of the Released Lessor Parties for or by reason of any cause, matter, or thing whatsoever, arising from the beginning of the world to the Confirmation Date, relating to the business or operations of the Debtors, the Leases and the Advenising Contracts, provided however, that each Participating Lessor covenants not to pursue any legal action against any assignor or any other party from which it obtained the Leases, or which was in any way involved in such Leases, that would in any fashion result in a participating Lessee being subjected to suit or demand by such assignor or such other party arising out of or relating to any Lease in which a participating Lessee claims an interest on the Effective Date. Without limiting the generality of the foregoing, the release from and by the Debtors and the Estates set forth in this Section shall specifically include any and all causes of action, claims, demands, defenses, set-offs and the like under sections 502(d), 542, 547, 548, 549, 550, 551 and 553 of the Bankruptcy Code. In addition, each of the Lessees consents to entry of an order by the Bankruptcy Court finding that the Leases as modified are valid and binding as between the Released Lessor Parties and Participating Lessees only in accordance with their teons and that the obligations of the Participating Lessees thereunder are not subject to any claims, demands, defenses, set-offs and counter-claims. Such order is for purposes of this Plan only and should not be constrUed as an acknowledgement or admission by the Lessees as to the validity of the Leases as between any parties other than the Released Lessor Parties and the Participating Lessees. and this Release shall have no effect on the claims of the Lessees against any individual or entity that is not a party to this Plan resulting from either the Leases or any other lease. In addition, each of the Lessees agrees to release any causes of action, claims, suits, counterclaims, liabilities, obligations, defenses, and demands whatsoever. in law or in equity, if any, against the Released Lessor Parties with respect to the revised Leases resulting or arising out of actions, activities, or events occurring prior to the Confmnation Date, relating to the business or operations of the Debtors, the Leases and the Advertising Contracts. 2. Release of Participating Lessees. Except as specifically set forth herein and except for the obligations of the Participating Lessees under the modified Leases, effective on the Effective Date, each of the Debtors and the Estates and each of the Participating Lessors shall be deemed to unconditionally remise, release, and forever discharge the Participating Lessees and their past and present officers, directors, shareholders, employees, agents, attorneys, parents, subsidiaries, affiliates, successors and assigns, and the heirs, executors, trustees, administrators, successors and assigns of any such Persons and Entities (hereinafter collectively the "Released Lessee Parties"); of and from any and all manner of actions, causes of action, suits, claims, counterclaims, liabilities, obligations, defenses, and demands whatsoever, at law or in equity, if any, which any of them ever had, now has, or hereafter can, shall, or may claim to have against any of the Released Lessee Parties 49 for or by reason of any cause, matter, or thing whatsoever, arising from the beginning of the world to the Confmnation Date, relating to the business or operations of the Debtors, the Leases and the Advertising Contracts. Without limiting the generality of the foregoing, the release from and by the Debtors and the Estates set forth in this Section shall specifically include any and all causes of action, claUns, demands, defenses, set-ofts and the like under sections 502(d), 542, 547, 548, 549, 550, 551 and 553 of the Bankruptcy Code. 3. Release of the Committee and Certain Officers, Directors or Employees of the Debtors. Except as specifically set forth herein, effective on the Effective Date, each of the Debtors, Estates, Lessees and each of the Participating Lessors and each Creditor shall be deemed to unconditionally remise, release, and forever discharge the Committee and their attorneys and other professionalS retained under section 327 of the Bankruptcy Code. including without limitation the Debtors' attorneys and accountants; and each of the officers, directors, and employees of the Debtors identified in Exhibit E attached hereto, and the heirs, executors, trustees, administrators, successors and assigns of any such Persons and Entities (hereinafter collectively the "Released Estate Parties"), of and from any and all manner of actions, causes of action, suits, claims, counterclaims, liabilities, obligations, defenses, and demands whatsoever, at law or in equity, if any, which any of them ever had, now has, or hereafter can, shall, or may claim to have against any of the Released Estate Parties for or by reason of any cause, matter, or thing whatsoever, arising from the beginning of the world to the ConflI1Dation Date, relating to the business or operations of the Debtors, the Leases and the Advertising Contracts. Robert Kellish, the president of Debtors, and Sandra Braddock, the CFO of Debtors, do agree by this Plan to transfer any and all claims they have against Vincens, Manklow, Kent Runnells, and the Hampton, Stoddard law flI1D to the Distribution Trust, and further agree to fully cooperate with In-Store and the Distribution Trustee to effectuate the Plan. 4. Release of In-Store. Except as expressly set forth herein and except for the obligations of the In-Store under the Plan, the Confmnation Order and Merger Agreement, effective on the Effective Date, each of the Debtors and the Estates and each of the participating Lessors and each of the Participating Lessees shall be deemed to unconditionally remise, release and forever discharge In-Store and its past and present officers, directors, shareholders, employees, agents, attorneys, parents, subsidiaries, affiliates, successors and assigns, and the heirs. executors, trustees, administrators, successors and assigns of any such person and entities that have been identified to the Participating Lessors, the Debtors and the Committee prior to the Confinnation Date (hereafter collectively the "Released In-Store Parties"); of and from any and all obligations of actions, causes of action, suits. claims, 50 counterclaims. liabilities, obligations, defenses and demands whatsoever, at law or in equity, if any, which any of them ever had, now has or hereinafter can, shall, or make claim to have against any of the Released In-Store Parties for or by reason of any cause, matter, or thing whatsoever, arising from the beginning of the world to the Confirmation Date. relating to the business or operations of the Debtors, the Leases and the Advertising Contracts. 5. Provisions Applicable to All Releases. Without limiting the generality of the foregoing releases, all Persons, including but not limited to, each of the Debtors, the Estates, the Lessees, the Creditors, and the participating Lessors expressly release any and all claims and defenses in connection with the matters released about which the parties do not know or suspect to exist in their favor, whether through ignorance, oversight, error, negligible or otherwise, and which, if known, would materially affect their decision to enter into these releases, and to this end each of them, therefore, waives any and all rights under section 1542 of the Civil Code of California (or any similar law, provision or statUte) which states in full as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. . All Persons including but not limited to, each of the Debtors, the Estates, the Lessees, the Creditors, In-Store, and the Participating Lessors shall be deemed to have knowingly and willingly waived the provisions of section 1542 (or any similar law, provision or statute) and acknowledges and agrees that this waiver is an essential and material term of the releases contained in this Plan. Each party has been afforded the opportUnity to review these releases with such parties' legal counsel, and such party understands and acknowledges the significance and consequence of these releases and of the specific waiver of section 1542 of the Civil Code of California (or any similar law, provision or statute). Notwithstanding anything else to the contrary, no claims of the Debtors, the Estates or of any person shall be released as against Jean Francois Vincens, Raymond Manldow, Kent Runnells, and the Hampton, Stoddard law rum. The Released Lessee Parties, the Released Lessor Parties, the Released Estate Parties and the Released In- Store Parties are collectively referred to herein as the "Released Parties. . 51 6. Discharge or Debtors And Injunction. Except as otherwise provided in the Plan, in agreements entered into in connection therewith or the Confirmation Order, a. On the Effective Date, each Debtor shall be deemed discharged and released to the fullest extent pennitted by section 1141 of the Bankruptcy Code from all Claims that arose prior to the Effective Date, including without limitation all Secured Claims and Unsecured Claims, and any interest accrued on such Claims from and after the Petition Date, against each Debtor and Debtor in Possession, or any of their assets or properties, and all debts of the kind specified in sections S02(g), S02(h) or S02(i) of the Bankruptcy Code. The discharge and release shall be effective in each case whether or not: (a) a proof of such Claim or Administrative Claim is Filed or deemed Filed pursuant to section 501 of the Bankruptcy Code, (b) the Claim or Administrative Claim is allowed pursuant to the Bankruptcy Code, or (c) the Holder of the Claim or Administrative Claim has accepted the Plan. b. All Persons shall be permanently enjoined by section 524 of the . Bankruptcy Code from asserting against the Reorganized Debtor, its successors, or its assets or properties any other and further Claims or Administrative Claims based upon any act or omission, transaction, or other activity of any kind or nature that occurred prior to the Confirmation Date. The discharge shall void any judgment against a Debtor or Reorganized Debtor at any time obtained to the extent that it relates to a Claim or Administrative Claim discharged; c. On or after the Effective Date, all Persons who have held, currently hold or may hold a Claim discharged or terminated pursuant to the terms of the Plan shall be permanently enjoined by section 524 of the Bankruptcy Code from taking any of the following actions on account of any such discharged Claim, except to the extent necessary to enforce the terms of this Plan: (a) commencing or continuing in any manner any action or other proceeding against a Debtor, Reorganized Debtor, its successors, assets or properties; (b) enforcing, attaching, collecting or recovering in any manner any judgment, award, decree or order against a Debtor, Reorganized Debtor, its successors, assets or properties; (c) creating, perfecting or enforcing any lien or encumbrance against a Debtor, Reorganized Debtor, its successors, assets or properties; (d) asserting any setoff, right of subrogation or recoupment of any kind against any obligation due to a Debtor, Reorganized Debtor, its successors, assets or properties; or (e) commencing or continuing any action in any manner in any place that does not comply with or is inconsistent with the provisions of the Plan or the Confirmation Order. Any Person violating such injunction may be liable for actual 52 damages, including costs and attorneys' fees and, in appropriate circumstances, punitive damages; and d. On or after the Effective Date, all Persons who have held, currently hold or may hold a Claim discharged pursuant to the terms of the Plan shall be permanently enjoined by section 524 of the Bankruptcy Code from commencing or continuing in any manner any action or other proceeding against any party on account of a Claim or cause of action that was property of the Estate, and all such Claims and causes of action shall remain exclusively vested in the Distribution Trustee to the extent such Claims and causes of action were vested in the respective Debtor in Possession. e. The discharge, releases and injunction provided for herein shall not affect the right of any Person to enforce the terms of the Plan or to commence any action or proceeding to collect the distributions required under the Plan. 7. No Other Releases. . Except as described hereinabove, no Person or Entity and/or any such Person's or Entity's parents, subsidiaries, affiliates, related entities, officers, directors, agents and/or employees shall be released andlor discharged of any liabilities under the Plan except as specifically provided in the Plan. Consequently, except as specifically provided herein, all Persons and Entities shall remain liable to the extent presently provided under any applicable law with respect to any Claims against any such Persons or Entities. M. Injunction. All Persons, including but not limited to, all Lessees shall be permanently enjoined from asserting against the Released Lessor Parties, the Released Estate Parties and the Released In-Store Parties, and their successors, or their assets or properties any other or further claims or causes of action based upon any act or omission, uansaction, or other activity of any kind or nature that occurred prior to the Effective Date. On and after the Effective Date, all Persons who have held, currently hold or may hold a claim or cause of action released pursuant to the terms of the Plan shall be permanently enjoined from taking any of the following actions on account of any such released claim or cause of action, (a) commencing or continuing in any manner any action or other proceeding against a Debtor, Reorganized Debtor, Distribution Trust, Distribution Trustee, Participating Lessor, Released Parties, their successors, assets or properties; (b) enforcing, attaching, collecting or recovering in any manner any judgment, award, decree or order against a Debtor, Reorganized Debtor, Distribution Trust, Distribution Trustee, Participating Lessor, Released Parties, their successors, assets or properties; 53 (c) creating, perfecting or enforcing any lien or encumbrance against a Debtor, Reorganized Debtor, Distribution Trust, Distribution Trustee, Participating Lessor, their successors, assets, or properties, (d) asserting any setoff, right of subrogation or recoupment of any kind against any obligation due to a Debtor, Reorganized Debtor, Distribution Trust, Distribution Trustee, Participating Lessor, Released Parties, their successors, assets or properties, or (e) commencing or continuing any action in any manner in any place that does not comply with or is inconsistent with the provisions of the Plan or the Confumation Order. Any Person violating such injunction may be liable for actual damages, including costs and attorneys' fees and, in appropriate circumstances, punitive damages. N. Survival and Re-ConstitutioD or the Committee; Authority or the Committee. Upon Confumation of the Plan, the Committee shall survive and be deemed re- constituted, comprised of all then-existing members of the Committee willing and able to continue in such capacity. The members of the re-constituted Committee shall be entitled to reimbursement from the Post-Confirmation Reserve Fund of their actual and necessary expenses incurred in COMection with discharging their duties and responsibilities hereunder and the Committee's counsel and financial advisors shall be entitled to payment of reasonable fees and reimbursement of actual expenses from the Post-Confumation Reserve Fund, in each case without need for application to the Bankruptcy Court. Except for those powers and duties specifically reserved to the Distribution Trustee hereunder, the Committee shall be authorized to take any action the Committee deems necessary and appropriate to carry out the provisions, purposes and intents of this Plan, and in such capacity, shall be deemed the sole and exclusive duly authorized representative of the consolidated Estate on and after the Confumation Date. In addition to the foregoing, the Committee shall consult with and advise the Distribution Trustee regarding the perfonnance and exercise of its rights and responsibilities under the Plan. O. Erred on Work Produd Privilege. Nothing contained in the Plan shall pennit the Distribution Trustee, the Reorganized Debtor, or any other Person or entity to obtain or waive the work product privilege of John D. Goldsmith, Trenarn, Kemker, Scharf, Barkin, Frye, O'Neil & Mullis and Walter Burnside, general counsel of the Debtors. 54 ARTICLE X. DlSTRIBUl10NS A. General. 1. Cash Payments. Cash payments made pursuant to the Plan shall be in U.S. Dollars by checks drawn on a domestic bank selected by the Distribution Trustee, or by wire tranSfer from a domestic bank, at the option of the Distribution Trustee. 2. Compliance With Tax Requirements. In connection with the Plan. to the extent applicable, the Distribution Trustee in making distributions under the Plan shall comply with all tax withholding and reporting requirements imposed on it by any Governmental unit, and all distributions pursuant to the Plan shall be subject to such withholding and reporting requirements. The Distribution Trustee may withhold the entire distribution due to any Holder of an Allowed Claim until such time as such Holder provides to the Distribution Trustee the necessary information to comply with any withholding requirements of any governmental unit. Any property so withheld will then be paid by the Distribution Trustee to the appropriate authority. If the Holder of an Allowed Claim fails to provide to the Distribution Trustee the information necessary to comply with any withholding requirements of any governmental unit within six months from the date of fIrst notifIcation by the Distribution Trustee to the Holder of the need for such infonnation . or for the Cash necessary to comply with any applicable withholding requirements, then the Holder's distribution shall be treated as an undeliverable distribution in accordance with Section X.C. below. B. Transmittal of Distributions to Parties Entitled Thereto. All distributions by check shall be deemed made at the time such check is deposited in the United States mail, postage prepaid. All distributions by wire transfer shall be deemed made as of the date the Federal Reserve or other wire transfer is made. Except as otherwise agreed with the Holder of an Allowed Claim in respect thereof or as provided in the Plan, any property to be distributed on account of an Allowed Claim, Allowed Administrative Claim or Allowed Equity Interest shall be distributed by mail upon compliance by the Holder with the provisions of the Plan to (i) the latest mailing address Filed for the Holder of an Allowed Claim entitled to a distribution, (ii) the latest mailing address Filed for a Holder of a Filed power of attorney designated by the Holder 55 of such Allowed Claim to receive such distributions, (iii) the latest mailing address Filed for the Holder's transferee as identified in a Filed notice served on the applicable Debtor pursuant to Bankruptcy Rule 300l(e). or (iv) if no such mailing address has been Filed, the mailing address reflected on the Schedules of Assets and Liabilities or in a Debtor's books and records. C. Undeliverable Distributions. Except as otherwise provided in the Plan, any distribution of property (Cash or otherwise) under the Plan which is unclaimed after one (1) year following the distribution date shall be forfeited, and such distribution together with all interest earned thereon and shall be distributed in accordance with the provisions of the Plan. D. Fractional Cents. Notwithstanding any other provision of the Plan to the contrary, no payment of fractional cents will be made pursuant to the Plan. Cash will be issued to Holders entitled to receive a distribution of Cash in whole cents (rounded to the nearest whole cent when and as necessary). E. De Minimis Distributions. No Cash payment of less than Ten Dollars ($10.00) shall be made by the Distribution Trustee in respect of any Allowed Claim unless a request therefor is made in writing by the Holder of such Claim. F. Distributions to Classes C, D, E, F and H. 1. Creation and Maintenance of Distribution Accounts. The Distribution Trustee shall establish and maintain the Class C Distribution Account, the Class D Distribution Account, the Class E Distribution Account, the Class F Distribution Account and the Class H Distribution Account for the purpose of calculating the Pro Rata distributions available to Holders of Claims in Classes C, D, E, F and H, respectively. Such Distribution Accounts may be maintained by bookkeeping entries alone; the Distribution Trustee need not (but may) establish separate bank accounts for such purposes. 56 2. Allocation of Assets to Distribution Accounts. The Class C Distribution Account, the Class D Distribution Account~ the Class E Distribution Account, the Class F Distribution Account and the Class H Distribution Account shall be funded and allocated Cash and Assets of the consolidated Estate as follows: Distribution Account Allocated Assets Class C (a) a Pro Rata share of the Reorganized Debtor Stock divided among the aggregate of Allowed Claims in Classes C, D. E, F and H; and (b) (i) until Classes E and F receive a distribution of 2S.48 % of their Allowed Claims, a Pro Rata share of 2S % of Causes of Action, Cash and Assets, divided among the aggregate of Allowed Claims in Classes C. D and H; and (ii) thereafter, a Pro Rata share of Causes of Action, Cash and Assets divided among the aggregate of Allowed Claims in Classes C, D, E. F and H. Class D (a) a Pro Rata share of the Reorganized Debtor Stock divided among the aggregate of Allowed Claims in Classes C. D. E, F and H; and (b) (i) until Classes E and F receive a distribution of 2S.48 % of their Allowed Claims, a Pro Rata share of 2S % of Causes of Action. S7 Class E Cash and Assets, divided among the aggregate of Allowed Claims in Classes C, D and H; and (ii) thereafter, a Pro Rata share of Causes of Action, Cash and Assets divided among the aggregate of Allowed Claims in Classes C. D, E, F and H. (a) A Cash Payment in an amount equal to the lesser of (i) ten percent (10%) of each Holder's Allowed Claims or (ii) a Pro Rata share divided among the ,aggregate of Allowed Claims in Classes E and F of $100,000. (b) a Pro Rata share of the Reorganized Debtor Stock divided among the aggregate of Allowed Claims in Classes C. D, E, F and H; and (c) (i) a Pro Rata share divided among the aggregate of Allowed Claims in Classes E and F of the fust 75 % of Causes of Action, Cash and Assets, until Classes E and F receive a distribution of 25.48% of their Allowed Claims; and (ii) thereafter. a Pro Rata share of Causes of Action, Cash and Assets divided among the aggregate of Allowed Claims in Classes C. D, E, F and H. 58 Class F Class H (a) A Cash Payment in an amount equal to the lesser of (i) ten percent (10.%) of each Holder's Allowed Claim or (ii) a Pro Rata share divided among the aggregate of Allowed Claims in Classes E and F of $100,000. (b) (i) a Pro Rata share divided among the aggregate of Allowed Claims in Classes E and F of the fust 75% of Causes of Action. Cash and Assets, until Classes E and F receives a distribution of 25.48% of their Allowed Claims; and (ii) thereafter, a Pro Rata share of Causes of Action, Cash and Assets divided among the aggregate of Allowed Claims in CI~sses C, D, E, F and H. (c) a Pro Rata share of the Reorganized Debtor Stock divided among the aggregate of Allowed Claims in Classes C, D, E, F and H. (a) a Pro Rata share of the Reorganized Debtor Stock divided among the aggregate of Allowed Claims in Classes C, D. E, F and H; and (b) (i) until Classes E and F receive a distribution of 25.48% of their Allowed Claims, a Pro Rata share of 25% of Causes of Action, 59 Cash and Assets, divided among the aggregate of Allowed Claims' in Classes C, D and H; and (ii) thereafter, a Pro Rata share of Causes of Action, Cash and Assets divided among the aggregate of Allowed Claims in Classes C, D, E, F and H. (c) A Cash Payment of a Pro Rata share of $90,000 (which will be funded by the Participating Lessors as part of the Tranche B Dip Financing) divided among the aggregate of Allowed Claims in Class H. Other than the Cash from In-Store for distribution to Classes E and F, the funding of the Distribution Accounts shall be made from Cash and Assets otherwise available for distribution to Holders of Class C, D, E, F and H Allowed Claims, after payment or establishment of reserves for payment of Administrative Claims (including Lender Claims), Priority Tax Claims, Secured Claims and Priority Claims, as such payments and reserves are required under Anicle II. hereof. ARTICLE XI, CONDITIONS PRECEDENT A. Conditions Precedent to Confirmation. I. It is a condition to Confirmation of the Plan that the Confirmation Order is satisfactory to the Committee and the Participating Lessors in form and substance, including that the Confirmation Order shall approve in all respects all of the provisions, terms and conditions of the Plan. 2. It is a condition to Confirmation of the Plan that no less than eighty-five percent (85%) of Lessees become Panicipating Lessees as of the Effective Date, 60 measured in terms of aggregate outstanding gross rentals under Leases as of December 31, 1995. 3. It is a condition to Confirmation of the Plan that not less than eighty-five percent (85%) of Lessors become Panicipating Lessors as of the Confumation Date, measured in terms of aggregate outstanding gross rentals under Leases as of December 31, 1995. 4. It is a condition to Confumation of the Plan that the Committee shall have completed its discovery as agreed upon between the Committee, the Participating Lessors, and the Debtors with respect to the releases of the Panicipating Lessors and the Debtors set fonh in Sections IX.L.l and 1X.L.3 of the Plan and shall not have withdrawn its suppon for the Plan. 5. It is a condition to Confumation of the Plan that the Coun enter an order that resolicitation of votes is not required with respect to the Plan. B. Conditions Precedent to Consummation. . 1. It is a condition to Consummation of the Plan that the Confumation Order shall have become a Final Order. 2. It is a condition to Consummation of the Plan that the Merger Agreement shall have been duly executed and delivered and shall have closed in accordance with its terms. 3. It is a condition to Consummation of the Plan that all other documents and agreements necessary to effectuate this Plan and the Merger Agreement have been executed and delivered. C. Intentionally Omitted. D. Waiver of Conditions. The Committee and the Participating Lessors may waive any of the conditions to Confumation of the Plan and/or to Consummation of the Plan, in whole or in part, set fonh in Sections XI.A.l and XI.B. of the Plan (other than the conditions set fonh in Section XI.B.l, which shall be waivable only by the Participating Lessors). The Participating Lessors may waive the condition set forth in Section XI.A.2 of the Plan; provided. however, that in the event that less than eighty-five percent (85%) of Lessees become Participating Lessees as of the Effective Date, measured in terms of aggregate 61 outstanding gross rentals under Leases as of December 31, 1995, the Committee, on behalf of all participating Lessees, shall have the right, but not the obligation, to withdraw the Plan. The Committee, on behalf of all participating Lessees may waive the conditions set fonh in Sections XI.A.3 and XI.A.4 of the Plan. FINOV A Capital Corporation shall have the sole and exclusive right to waive the condition set fonh in Section XI.A.S of the Plan. Such waivers may be made at any time, without notice, without leave or order of the Bankruptcy Court, and without any formal action other than proceeding to confirm and/or consummate the Plan. The Debtors may not waive any condition to Confumation or Consummation. E. Effect Of Non-Occurrence or Conditions To The Effective Date. If no Confirmation Order has been entered by March 30, 1998. or if the Effective Date has not occurred by April 30, 1998, or each by such later dates as are proposed by . the Committee and the Participating Lessors and approved by order of the Bankruptcy Court on notice to such parties in interest as the Bankruptcy Coun may direct, the Confumation Order shall be vacated, the Plan shall not become effective and shall be null and void, and nothing contained in the Plan or in any document executed pursuant thereto shall (1) constitute a waiver or release of any Claims by or against a Debtor; or (2) prejudice in any manner the rights of the Debtors or their Creditors in any funher proceedings. ARTICLE XII. RETENTION OF JURISDICTION Notwithstanding entry of the Confumation Order or the Effective Date having occurred, the Reorganization Cases having been closed or a Final Decree having been entered, the Bankruptcy Court shall have jurisdiction of matters arising out of, and related to the Reorganization Cases and the Plan pursuant to, and for the purposes of, sections 105(a), 1127. 1142 and 1144 of the Bankruptcy Code and for, among other things, the following purposes: I. To hear and determine pending applications for the assumption or rejection of executory contracts or unexpired leases, if any are pending, and the allowance of Claims resulting therefrom. 2. To determine any and all pending adversary proceedings, applications, and contested matters. 62 3. To ensure that distributions are accomplished as provided herein. 4. To hear and determine any objections to Administrative Claims, to proofs of claims or to Claims and Equity Interests filed, and/or asserted both before and after the Confumation Date, including any objections to the classification of any Claim or Equity Interest, and to allow or disallow any Disputed Administrative Claims, Disputed Claim, or Disputed Interest, in whole or in part. 5. To enter and implement such orders as may be appropriate in the event the Confirmation Order is for any reason stayed, revoked, modified, or vacated. 6. To issue such orders in aid of execution of the Plan as may be necessary and appropriate, to the extent authorized by section 1142 of the Bankruptcy Code. 7. To protect the property of the consolidated Estate from adverse claims or interference inconsistent with the Plan, including to hear actions to quiet or otherwise clear title to such property based upon the terms and provisions of this Plan, or to determine the Distribution Trustee's exclusive ownership of claims and Causes of Action retained under the Plan. 8. To consider any modifications of the Plan, to cure any defect or omission, or reconcile any inconsistency in any order of the Bankruptcy Coun, including, without limitation, the Confumation Order. 9. To hear and determine all applications for compensation and reimbursement of expenses of Professionals under sections 330, 331, and S03(b) of the Bankruptcy Code for services rendered and expenses incurred prior to the Confumation Date. 10. To hear and determine disputes arlsmg in connection with the interpretation, implementation, or enforcement of the Plan. 11. located. To recover all assets of the Debtors and property of the Estates, wherever 12. To hear and determine matters concerning state, local, and federal taxes in accordance with sections 345, S05, and 1146 of the Bankruptcy Code. 13. To hear any other matter not inconsistent with the Bankruptcy Code. 14. To enter a Final Decree closing the Reorganization Cases. 63 ARTICLE xm. MISCELLANEOUS PROVISIONS A. Modification of Plan. Prior to the entry of the Confirmation Order, the Plan may only be modified with the consent of the Debtors, the Committee and the Panicipating Lessors, provided that the Plan may be modified without the consent of the Debtors with respect to matters that do not relate to the Debtors including Articles n, VI, vn and Section IX.M, hereof. B. Withdrawal of Plan. The Committee, the Participating Lessors, and the Debtors with the consent of the Committee and the Participating Lessors, reserve the right, at any time prior to the entry of the Conftrmation Order, to revoke and withdraw the Plan. If the Plan is revoked or withdrawn, then, at the option of the Committee and the Panicipating Lessors, the Plan shall be deemed null and void. In that event, nothing contained in the Plan shall be deemed to constitute a waiver or release of any Claims by the Debtors, or to prejudice in any manner the rights of the Debtors in any funher proceedings. C. Term of Injunctions or Stays. Unless otherwise provided, all mJunctions or stays provided for in the Reorganization Cases pursuant to sections 105 or 362 of the Bankruptcy Code or otherwise in effect on the Conftrmation Date shall remain in full force and effect until the Effective Date, including, without limitation, injunctions issued by the Bankruptcy Court in connection with Adv. Pro. No. 96-202. D. Failure of Bankn1ptcy Court to Exercise Jurisdiction. If the Bankruptcy Court abstains from exercising or declines to exercise jurisdiction, or is otherwise without jurisdiction over any matter arising out of the Reorganization Cases, including any of the matters set fonh in the Plan, the Plan shall 64 not prohibit or limit the exercise of jurisdiction by any other court of competent jurisdiction with respect to such matter. E. Governing Law. Unless a rule of law or procedure is supplied by federal law (including the Bankruptcy Code and Bankruptcy Rules). the internal laws of the State of Aorida shall govern the constrUction and implementation of the Plan, without regard to the conflict of laws provisions of the State of Aorida. F. Exemption from Certain Taxes. Pursuant to section 1146(c) of the Bankruptcy Code, the issuance, transfer or exchange of a security, or the making or delivery of: instrument of tranSfer, shall not be subject to any stamp tax or similar,tax. Transfers under this Plan that are exempt from taxation pursuant to section 1146(c) of the Bankruptcy Code include the creation of any mortgage, deed of trust, lien or other security interest; the making, revesanent or assignment of any lease or sublease, and the tranSfer of property or the making, revestment or delivery of any deed or other instrument or tranSfer under, in funherance of, on in connection with, this Plan, including any deed, bills of sale, pledges, mortgages, deeds of trust or assignments executed in connection with this Plan, agreements entered into in connection therewith, or the Confirmation Order. To the extent that any officer or employee of the Debtors may be held personally responsible for the payment of any amounts to the Aorida Department of Revenue ("DOR"), this Plan shall not release such officers or employees from any such liability, except that the DOR shall take no action against the officers or employees of the Debtors so long as payments are made in accordance with the Plan. G. Headings, The headings used in the Plan are insened for convenience only and neither constitute a portion of the Plan nor in any manner shall affect the provisions or interpretation(s) of the Plan. H. Notices. All notices, requests and demands to or upon the Debtors, the Committee or the Distribution Trustee to be effective shall be in writing (including, without limitation, by telex or facsimile transmission), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when actually delivered or, in the case of telex notice, when sent, answerback received, or in the case of notice by facsimile 65 transmission, when received and telephonically confumed, addressed as follows below or at such other address as may be specified by the relevant party in a manner provided for notice in this section: To the Debtors: c/o Recomm Operations, Inc. 4710 Eisenhower Boulevard Suite F-2 Tampa, Florida and John Goldsmith Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis 2700 Barnett Place 101 East Kennedy Boulevard Tampa, Florida 33601 To the Committee: Kirkland & Ellis 200 East Randolph Drive Chicago, Illinois 60601 Telephone: (312)861-2000 Telecopy: (312)861-2200 Attn: Matthew N. Kleiman, Esq. To the Distribution Trustee: Recomm Distribution Trust c/o Kirkland & Ellis 200 East Randolph Drive Chicago, Illinois 60601 Telephone: (312)861-2000 Telecopy: (312)861-2200 Ann: Matthew N. Kleiman, Esq. 66 To the Participating Lessors: At the address set fonh on Exhibit B hereto for each Participating Lessor. I. Successors And Assigns. The rights, benefits and obligations of any person named or referred to in the Plan shall be binding on, and shall inure to the benefit of, the heirs, executors, administrators, successors and/or assigns of such Person or Entity. J. Entire Agreement. This Plan supersedes all prior discussions, understandings, agreements and documents pertaining or relating to any subject matter of the Plan. K. Payment of Statutory Fees. All fees payable pursuant to section 1930 of title 28 of the United States Code, as determined by the Bankruptcy Court at the hearing pursuant to section 1128 of the Bankruptcy Code, shall be paid on or before the Effective Date. L, Binding Effect. Except as otherwise provided herein, the Plan shall bind all Holders of Claims and Interests. M. Severability Of Provisions Of The Plan. The provisions of this Plan shall not be severable unless such severance is agreed to by the Committee and/or the Distribution Trustee, and such severance would constitute a permissible modification of the Plan pursuant to section 1127 of the Bankruptcy Code. N. Saturday, Sunday or Legal Holiday. If any payment or act under the Plan is required to be made or performed on a date that is not a Business Day, then the making of such payment or the performance of such act may be completed on the next succeeding Business Day, but shall be deemed to have been completed as of the required date. 67 O. Enforceability. Should any provision in this Plan be determined to be unenforceable for any reason, such determination shall in no way limit or affect the enforceability and/or operative effect of any other provision of the Plan. P. Decisions of the Participating Lessors. Whenever, under this Plan, the participating Lessors are entitled or required, as a group, to make any election or decision, or render any consent, or waive any provision or condition, the provisions of the Financing Order regarding group determinations shall control. This Section shall in no way modify or abridge the right of each individual Lessor to vote for, or against, the Plan. Dated: Tampa, Florida As of lan~', 1998 Respectfully submitted, OPTICAL TECHNOLOGIES, INC. ~h" By: Its: ~ RECOMM OPERATIONS, INC. ~~. ~ 9-;.--- ~ RECOMM ENTERPRISES, INC. ~~. ~cf ~~ 68 : '. RECOMM INTERNATIONAL DISPLAY CORP., LTD. By: Its: ~<~ RECOMM INTERNATIONAL DISPLAY LTD. By: ~~ "4 Its: ~. RECOMM INTERNATIONAL CORPORATION ~~. \f.7f;; '" RECOMM INTERNATIONAL DISPLAY CORPORATION ~~. ~'~L 69 r--.-, AUTOMATED TRAVEL CENTER, INC. ~~i ~~~~ OFFlCIAL COMMITTEE OF UNSECURED CREDITORS One of its attorneys Matthew N. Kleiman Kirkland & Ellis 200 E. Randolph Drive Chicago, IL 60601 PARTICIPATING LESSORS: One of the attorneys for Lease Partners Corporation Vincent Borst Askovnis & Borst 303 E. Wacker Drive, 10th Floor Chicago, IL 60601 70 . ... _... WI""' ,...\,1._.... ." ~c..\' 01 .~. ."'\. ".t,,, AUTOMATEDTRA VEL CENTER, INC. By: Its: omCIAL coMMITI'EE OF UNSECURED CREDITORS ,~ One uf its attorneys Matthew N. Kleiman Kirkland & Ellis 200 E. Randolph Drive C.hicago, IL 60601 PARTICIPATING LESSORS: One of the attorneys for Lease parmers Corporation Vinccnt Burst Askovnis & Borst 303 E. Wacker Drive, 10th Floor Chicago. IL 60601 70 01123/98 FRt 01: 16 (TX/RX:-;O 59571 ~ o~s _..-- 12-98 : 6:54f'M .-- -' se-.i 13Y:L.'\.1OlZ L. A. 1C'12- 312 861 02~5::28/~O AtrrOMATED TRAVEL CEN'l'EK. INC. By: Its: OFFICIAL COMlW lid: OF UNSECURED CREDITORS One uf its anomeya Matthew N. K1ciDlan Kirk1;md IL B11ia 200 E. Randolph Drive Chicago.IL 60601 PAR:.JjATING LESSORS: /~,CD ~ One of the attorneys for Lease panncn; Corporation Vim:.clll Borst AskoVDia &. Bom 303 E. WKm Drive, 10th Floor Chicago. IL 60601 70 .J~'\I' UI ".... !~.I\.'l.L . ... .;.._ ..,oJ ........ ......... .', -'-..""'.......~ One of the: attomeys for Partners, Inc. Michael K. McCrory Barnes & Thornburg 1313 Merchants Bank Building 11 S. Meridian Street Indianapolis, IN 46204 One of the attorneys for Colonial Paeific I .ea.~ing Robert Soriano Carlton Fields One Harbour Place P.O. Box 3239 Tampa, Florida 33601 One of the attomeys for Vanguard Financial Service Corp. Marlc Bernet Steams Weaver Miller Weissler Alhadeff Sitt=n, P .A. 401 East Jackson Street Suite 2200 Tampa, Florida. 33602 71 , , Sf)T B):Cf~E5C-fAXROO~ 1-26-98 ; 2:J8P~ ;CARLTO~.fIELDS-T~~~A- ._ 2' oJ One of the attorneys for Lease Partners, Inc. Michael K. McCrory Barnes &. Thornburg 1313 Merchants Bank Building 11 S. Meridian Streel Indianapolis, IN 46204 VI p-/frnrrrv- One of the anomeys for Colonial Pacific Leasing Robert Soriano Carlton Fields One Harbour Place P.O. Box 3239 Tampa. Florida 3360 I One of the,attorneys for Vanguard Financial Service Corp. Mark Bernet Stel11'ns Weaver Miller Weissler Alhadeff Sitterson,P.A. 401 East llIckson Street Suite 2200 Tampa, Florida 33602 71 .,,)L..fl U' .a.......''''.w.; JAN-22-1998 21:51 . " .40 ...... . - .-" ." 913107884731 One of the attomeys for Lease. PartJler5. Int. Michael K. McCrory Barnes &. Thornburg 1313 MerchantS Bank Building 11 S. Meridian Street Indianapolis, IN 46204 One of the attorneys for Colonial Pacific r ..ea.~ing Robert Soriano Carlton Fields One Harbour Place P.O. Box 3239 Tampa, Florida 33601 $~~._q-- One f the a eys for Vanguai'd Financial Service Corp. Marle Bernet StearnS Weaver Miller WeissIer Alhadeff SittcrSon. P .A. 401 East 1ackson Street Suite 2200 Tampa, Florida 33602 71 94% P.29 One of the attorneys for Finova Capital Corporation Edward M. Waller, Jr., Esq. Fowler, White, Gillen, Boggs, Villereal & Banker, P.A. 501 E. Kennedy Blvd. Suite 1700 Tampa, FL 33602 One of the attorneys for Republic Leasing Company, Inc. Julianne Farnswonh McNair Law Firm, P.A. 1301 Gervais St., 18th Floor Columbia, South Carolina 29201 One of the attorneys for Whitney National Bank William T. Finn Leann Opotowsky 1100 Poydras St. Suite 2700 New Orleans, LA 70163 72 One of the attomeys for Finova Capital Corporation Edward M. Waller. Jr.. Esq. Fowler, White, Gillen, Boggs. VilIereal & Banker, P.A. SOl E. Kennedy Blvd. Suite 1700 Tampa, FL 33602 ne of the llttOrneys for Republic Leasing Company, Inc. Julianne Farnswonh McNair Law Firm, P.A. 1301 Gervais St., 18th Floor Columbia, South Carolina 29201 One of the attorneys for Whitney National Bank William T. Pinn Leann Opotowsky 1100 Poydras S1. Suite 2700 New Orleans. LA 70163 72 One of the attorneys for FlDova Capital Corporation FAward M. Waller, Jr., Esq. Fowler, White, Gillen. Boggs. ViIlereal & Banker, P.A. 501 E. Kennedy Blvd. Suite 1700 Tampa, FL 33602 One of the attorneys for Republic Leasing Company, Inc. Julianne Farnsworth McNair Law FlItl1, P.A. 1301 Gervais St., 18th Floor Columbia, South Carolina 29201 ~~~ One: QC the attorneys fo Whitney National Bank William T. Finn Leann Opotowsky 1100 Poydras 51. Suite 2700 New Orleans, LA 70163 72 CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have caused a true and correct copy of the foregoing Fourth Amended Joint Plan of Reorganization of the Debtors, the Official Committee of Unsecured Creditors and Certain Leasing Companies under Chapter 11 of the Bankruptcy Code and attached exhibits to be served by U. S. Mail upon all parties on the attached service list this 26th day of January, 1998. FAtjw~f~y 73 David H. Cole Edmonds, Cole, Hargrave et al. One Nonh Hudson, Suite 200 Oklahoma City, OK 73102 Alan G. Crone Wilder, Crone Johnston Mason & Goodwin 5th Floor 8 South Third Memphis, TN 38103 Paul N. Davis Butler, Snow, O'Mara, Stevens & Cannada, PLLC 17th Floor, Deposit Guaranty Plaza 210 E. Capital Street P. O. Box 22567 Jackson, MS 39225-2567 Jeffrey W. Golan Barrack, Rodos & Bacine 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Frank M. Caprio Lanier Ford P. O. Box 2087 . Huntsville, AL 35804 Wesley L. Laird Laird, Woodard and Baker 301 Nonh College Street Opp, AL 36467 1.W. Doolin 802 S.W. "D" Avenue Lawton, OK 73501 SERVICE LIST Karen C. Dyer Barrett & Gravante Suite 325 200 E. Robinson Street Orlando, FL 32801 Judy D. Shapiro 13378 S.W. 128th Street Miami, FL 33186 Alfred A. Colby Ketchey Horan P. O. Box 500 Tampa, FL 33601-0500 Patrick Tinker, Office of the U. S. Trustee Suite 110 4919 Memorial Highway Tampa, FL 33634 lay Bender Suite 2000 420 N. 20th Street Birmingham, AL 35203-3208 Marsha Griffin Rydberg Suite 2700 100 Nonh Tampa Street Tampa, FL 33602 Rudy Hiersche 3250 Liberty Tower 100 North Broadway Oklahoma City, OK 73102 Eric 1. Breithaupt 1700 Financial Center S06 Nonh 20th Street Birmingham, AL 3S203 74 Dennis J. Levine P. O. Box 707 Tampa, FL 33601 Office of the Attorney General Economic Crimes Division c/o Henry Gill, Esq. Baris Lampert, Esq' Suite 520 2002 Nonh Lois Avenue Tampa, FL 33607 Robert GleM GleM Rassmussen & Fogarty First Union Center, Suite 1300 100 South Ashley Drive Tampa, FL 33602 A. 1. Stan Musial, Jr. Suite 750 . One Urban Center 4830 West KeMedy Blvd. Tampa, FL 33609 75 EXlllBIT A Exhibit A Discount Table Schedule of Discounts Remaining Payments Remaining Payments Due As Of 12/31/95 Due As Of 12/31/95 Settlement Discount For Leases With For Leases With Applied To PV Of Original Term Of Original Term Of Remaining Payments 48 Months 60 Months Due As Of 12/31/95 48 60 36.S1 % 47 S9 36.25% 46 S8 36.00% 45 57 35.7S% 44 56 35.49% 43 S5 3S.24% 42 54 34.98% 41 53 34.72% 40 52 34.45% 39 51 34.19% 38 50 31.21 % 37 49 30.94% 36 48 28.94% 3S 47 28.68% 34 46 26.83 % 33 45 26.34% 32 44 24.30% I 31 43 23.08% Schedule of Discounts Remaining Payments Remaining Payments Due As Of 12/31/95 Due As Of 12/31/95 Settlement Discount For Leases With For Leases With Applied To PV Of Original Tenn Of Original Tenn Of Remaining Payments 48 Months 60 Months Due As Of 12/31/95 30 42 21. 92 % 29 41 21.61 % 28 40 19.51 % 27 39 19.19% 26 38 18.41 % 2S 37 18.08% 24 36 17.73 % 23 35 17.39% 22 34 17.06% 21 33 16.71 % 20 32 16.36% 19 31 16.01 % 18 30 15.67% 17 29 15.32% 16 28 14.95% 15 27 14.60% 14 26 14.22% 13 25 13.87% 12 24 13.50% 11 23 13.14% 10 22 12.78% 9 21 12.38% r ~ Schedule of Discounts Remaining Payments Remaining Payments Due As Of 12/31/95 Due As Of 12/31/95 Settlement Discount For Leases With For Leases With I Applied To PV Of Original Term Of Original Term Of. Remaining Payments 48 Months 60 Months Due As Of 12/31/95 8 20 11.99% 7 19 11.60% 6 18 11.24% S 17 10.84% 4 16 10.40% 3 IS 10.00% 2 14 9.S5% I 13 9.00% EXlUBIT B EXHIBIT B PARTICIPATING LESSORS FINOV A Capital Corporation 18S0 Nonh Central Avenue Phoenix, AZ 85002 Attention: James Curtin, Esq. Facsimile No.: (602) 207-5036 Lease Partners Corporation 303 East Wacker Drive lOth Floor Chicago, IL 60601 Facsimile No.: (312) 938-4290 Lease Partners, Inc. 303 East Wacker Drive 10th Floor Chicago, IL 60601 Facsimile No.: (312) 938-4290 Tokai Financial Services, Inc. c/o Askounis & Borst 303 East Wacker Drive lOth Floor Chicago,IL 60601 Facsimile No: (312) 938-4290 Colonial Pacific Leasing , 76S9 Mohawk Street Post Office Box 1100 Tualatin, OR 97062-1100 Attention: James R. Adler Facsimile No.: (800) 937-6302 Vanguard Financial Service Corp. c/o Garfield & Merrill 211 W. Wacker Drive, 15th Floor Chicago, IL 60606 Attention: Deborah Ashen, Esq. Facsimile No.: (312) 332-1741 Republic Leasing Company, Inc. c/o Julianne Farnswonh McNair Law Firm, P.A. 1301 Gervais St., 18th Floor Columbia, SC 29201 Facsimile No.: (803) 376-2278 Whimey National Bank c/o William T. Finn Leann Opotowsky 1100 Poydras St. Suite 2700 New Orleans, LA 70163 Facsimile No.: (504) 585-3801 S1. James Bank & Trust Company c/o William T. Finn Leann Opotowsky 1100 Poydras S1. Suite 2700 New Orleans, LA 70163 Facsimile No.: (504) 58S-3801 Textron Financial Corp. and A vco Leasing Services, Inc. c/o Mark Bernet Stearns Weaver Miller Weiss1er Alhadeff & Sitterson, P .A. 401 East Jackson Street Suite 2200 Tampa. FL 33602 NationsCredit Business Services, Inc. c/o Mark Bernet Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. 401 East Jackson Street Suite 2200 , Tampa, FL 33602 GIC Liquidating Corp. formerly known as GIC Leasing Inc. c/o Howard S. Toland Haley, Sinagra & Perez, P.A. One Financial Plaza 100 Southeast Third Avenue Suite 1900 Fort Lauderdale, FL 33394 Facsimile No.: (9S4) 467-1372 Trans Leasing International, Inc. c/o Solove & Solove Dadeland Towers South, Suite 450 9SOO South Dadeland Boulevard Miami, FL 331S6 Facsimile No.: (305) 670-0599 Whiteville Bank c/o Robert Glenn Glenn, Rasmussen & Fogarty, P.A. 100 South Ashley Drive, Suite 1300 P.O. Box 3333 Tampa, FL 33601-3333 Facsimile No.: (813) 229-S946 First Bank Richmond, S.B. d/b/a First Interstate Financial Services, Inc. and/or First Federal Leasing c/o Michael Rosenstock Rosenstock Deegan & Strong, LLP 55 Maple Avenue Suite 106 Rockville Center, NY 11570 Facsimile No.: (516) 766-6630 First Commercial Bank of Memphis (formerly known as United American Bank of Memphis) c/o Robert Glenn Glenn, Rasmussen & Fogarty, P.A. 100 South Ashley Drive, Suite 1300 P.O. Box 3333 Tampa, FL 33601-3333 Facsimile No.: (813) 229-S946 Dana Commercial Credit Corporation c/o W. David Arnold Nathan & Roberts 644 Spitzer Building 520 Madison A venue Toledo,OH 43604-1307 Facsimile No.: (419) 2S5-7623 Pitney Bowes Credit Corporation 27 Waterview Drive Shelton, CT 06484-4361 Attn: Keith Williamson Facsimile No.: (203) 846-5630 Bank of Mississippi d/b/a First Continental Leasing successor in interest to Volunteer Bank c/o J. Patrick Caldwell Riley, Ford, Caldwell & Cork 207 Court Street Tupelo, MS 38802 Facsimile No.: (601) 842-9032 Copelco Capital, Inc. Copelco Funding Corp. IV Copelco Leasing Corp. c/o Steven Lippman Kipnis Tescher Lippman Valinsky & Kain One Financial Plaza Suite 2308 Fort Lauderdale, FL 33394 Facsimile No.: (954) 467-2264 Atel Business Credit, Inc. 23S Pine Street, 6th Boor San Francisco, CA 94104-2701 Attn: Vasco Morais Facsimile No.: (41S) 989-3796 _DOCUMENT I: LA02--499105.3;DATE:Ol/Zl/9&mME:14:lO- EXHIBIT C [INTENTIONALLY OMITTED] EXHlBIT D-l MERGER AGREEMENT . (''' EXHIBIT D-2 3JWll7 TN-STORE PROMOTIONS INC. PROMOTION A.ND ~RVTC.ING AG~RRMENT cnSTOMER: ~ ~ CSJ: SlaW Ebmw ~tnre 1"'\ y. COMPANY: IN' -.';TOJiF. PROMOTIONS INC. 1234 Summer Street Stamford, CotlJledic:ut 06901 203-324-4660 t nfl:ll'lNlTJONS: a. CUSTO^fER shall mean the lDdhidual or company cxecutinz or bound by th1f agreement who is &11 owuer, lessee, or Ucemee of all LED Board (the ''Baard''); b. KIOSK CUSTOMER .ball meaJl the lD.d1Ttdaal or company execudng or bouud h,. thL1 aveement, whJth mat be ameudcd IIpecificall,. fAr KiClllk C':ustilmcrs, who Is &11 O'lnler, lessee. or UCftlSee of. Kiosk (the "K1ack") C. COMPANY do.." DlC8llIN-STORE PROMOTIONS, me, the pro~da' of the pz'OlIUItlonaland tcchD1cal Kn'n as colltalDccl hcrdn. d, DBM.baIl mean a.e (5) JCUt commcdnl: on the "COIZIJDccement date" as deftDed herefD. eo CflMMl?NC1l:M1l:NT nA T1? man mean the ftrst de)' of the month 811reeedlug the Errectlve Date of tbe Plan.. .pedftecl in the "Realmm l"Ian nr Reo~nI7.Htlun" In Fcdcn1 BIUlIaupCq' Court for Middle District of Florida, Tampa Division. (, ANNTJ4T. ORD'F.R FORM llhalt me-an the booklet as rubmitted b~'lhe Company to the Customer for tho purpo.e of .electing the Castomcr'. message which "ill appear on the Board. . g, ANNUAL 0P110NS .haD. mean the options cont:ained in the ADnUDl Order Form fl'Om which the Customer may d100se to baTe prqgrammed into it, program me by the Compaay. h. CUS.XOMEJJ. PROGRAM ,ball mean that 1D!OrnwlOIl maintained b)' the Company for the p~e of creat~ the diskette to be used by the Customer in tbe Board. I. ANNUAL ORDER FORM MANUAL ( thc"M8I11W") shall meau (hat booklet proTided by the Company wbich set:! forth Comomer OpdoDS for lndh1dualli:ed messal:CS whJch tM Customrr may use on the Board. J. ADVERTISING MESSAGES shall mean thole messl.&cs submitted by the Company and to be included on the Roard. k. PROMOTIONAL MESSAGES shall mean those messqes submitted by the Complll1Y, to be focludcd (In the BQard, wltlch may be ftccompamed by en/lateral promotional material to be displayed on lite. Such promotional material may be information for the: Customer dcl'inlDg the product or ,ervice, or material. to be 'dixtrihuted h, or made available by the CUIltnmer to his customers 2. COMPANY SERVICES: During the Term of this ~. the Company Will provide to the Customer a monthly malllrq; of. computer di._ which ahall contain the ~ u. ordered by the Customer as well as ecrtafa AdTert1s1ng a.a.d PromoCioul Mena;es as dd'Uled herein. The Customer Ihallsubmit ita Amlaal O..der wifhID tblrty days from rec:efpt br Compaar, Additional modifications mq be Ip'lled to by the pttrtles III c:oatOl'llWlC'e 1'I'ttIa tile AmInal Order Form ~...n.1 The Compauy will be rapol1llble for the IOlic1tatloa and had1lllioD of the AdTertfsiq and PromodoDll1 Mcssa:= whkh are to be displayed aD the Board. In the event the Customer clec:Uues to putfclpate in a particular Promotional Program, the Customer IbaD decline by g1TfDg Dotlce by ftnt class maU to the Comp8D1 DO less than 'eYeD (7) claJ'S after rccchiag the said program from the Compauy. THE CUsrOMER MAY BEQtlEST TO DECLINE TO PARTICPATE IN A PARTTCTTr.AR ADVERTTSttMRNT OR PROMOTION FOR eAtlS!!:, SUCH CAUSE BEING DEFlNED IN HIS RE.JEcnON NOTICE, THE COMrANY RESER"'ES THE RIGHT TO REJECT A CUSTOMER'S REQUEST NOT TO ACCEPT ADVERTISING OR PROMOTI01\AL MATERIAL PROVIDED THAT THE COMPANY'S DECISION IS REASONABLE, MADE IN GOOD FAITH. AND NOTIFICA110N IS MADE TO THE CtllITOMER. Any and aU c.reatin product, Includln; but Dot limited to Advertising and Promotlanal Materials and GIlY computer 50ftware which may from time to time be pronckd by the Company. aba1l he the property of the Compan,. alld sball not be redistributed by the Cmtomcr or U1'f of Its qellt3 or as,ign~ with nut the cxprcu written conSCI11 of the ComplUl1. No alterations and or modificatioD5 of the conlcat or DJlY of the Advcrtbing or Promotional Progl"BIIlS or Materials will be permitted unle."~ expre."1 writtencon.1ent of the Company i~ provided. The Customer lIill be required to verifT compllan.ce ",'ith the terms of the Advertisin; and Promotional Pro{InIDS at the option or the Company. CncIT OF SERVICES: The CompaD1' will charge the Customer for lernec:& as follows: 1. For alterations to the Cu&tomen monthly procram beyond the aumber set forth in the schedule relatiJig thereto, as may from time to time be publisbed by the Comp8ay. The QItTent schedule call1 for a charl:e of 550 per chaDl:e for any changes cxcc:eclin: teu(10) per month Of tweaty five (25) in a calendar year. 2, The cost of shipping and repair of any Bo4rd not under warnnty or after the expinltlol1 of the Term of this qr~- RF.VE~'UE: The Company will use Its best efforts to .eIl to third parties advcrtisinc which will be dlspla,.ccl on the Boud. fIIbject 10 the Qastomen right &0 dccline as co.atained herein. Thirty per cent (301Jf.) or the gross reTeaue Crom ftdvertisaDeats rul1l1iDg 011 the LED board psld to the CoIllplUQ" IhaJ1 be .harcd by the Customcn participadll; 1a. the numiD; of the actrenislD; &Ad the Kiosk Customers 011 a per UU'"h1ne bats. lD the: evCDt a CaItOIlIa' dccJ1a.cs to partldpatc In accordance with , the col1dWoas as hereirlaet forth, the Customer ahaIlllot be entitled to receive Its per capita ..hare of the advert1slag reTeDues paid to the Company for that advertiJ1n& so refuRd. After the third amdvenary. the reveaue sharl.D.i as dcsaibed herem with respoct to the Customers sha11 be based on the actual advertising 011 the mdtvlclu41 Customer's Board. !ill revenues choU be '-CCOUl1ted for on a aM hallill and llhall be dflltribated on quarterly balM. {:lJSTOMRR'S mrrnzs So IOllg as the Customer retains posscsslon or the Board, the Cu~1omcr shall display the Board prominentlr within its store, CWitomer a",ees to opcnlte the Board pursuut to the: reasonable directive of the CompaDY which IDa1 iuclude but nOC be Umited to perindic ~ of the software and the display or exllhlteral advertising &I1d promot;onal m...terbl.ls whld1lWlY ~ free standln!: n'Om the Board, The Customer afl"umatlnly agrees that it ",UI operate the Board . condnuously c1uriDg operating hours. Customer shan reafftrm Its panicipaliun lit the request of the COMpany from time to time o.~ the Company may 110 r-equest at its sole discretion. The Company retlliDs the: right to phYlliadly Budlt the Customer to determine that the Board is being used. in cnmptiooc,e with lhis A&recmellt. The ClIStomer rccopizes that tho Adnrtising lIIld Promodonal mCSJllees are the iDtcUcc:tua1 propc::l1f of the Company and I2\lIY not be used, laid, eoptedt retrazueribed or otherwise displayed beyolld the terms of this or u)' other contract betwem the C1IItomer and the Comp&ll1. witlwut the: express written cOllS4lnt or the Compuy. The Cuftomer aftirmatinlyagrees that it wUI not d15p1a,.any adverdsiDc on the Boi.rd which may eompcte 'I'lith &I1Y messages thea diSplayed on the Board. The Company may detennlne what advertisia( is competing as referenced herein such determlnaDon being D1Ilde in a rt4SOuoblc mmmcr. In the event the Custnmer do~ not cure the dr-fault within the period 10 prescrIbed. then In that Cyc:t the CtI3tomer shall pay u aud for liqufdated ~e:s the sum of ODe thousand dollan ($1000). Said SDm Ls agreed to b1 the parties as It is c:xpl'U1ly recocnfzes that real damaGe to the COmpeD1'1 reputation and market Talue _add result. It is KIalowledgcd. that tile cal~OD of Rid amount would necessitate b1ll'demome partlcipatioa by the Cuatotncr and therefore the set sum ofUquidatcd damages Is fair and equitable. The liquidated damage remedy II in additicm to any other remedy which the Compal1Y may haTe as · re.<lult of other defaul~ h7 the Ca.~mer or othu rights the Compau11Dl11 possess as third perty bCZlc.f1dary or usignee of the ~ts of other partic:s. kiOSK CUSTOMF.R-'S DTIT'I1l'.C;: The KioIk Cutomcr. to qaaUt'y for I"C1'Cllue sbarinG, mllllt maintain ufe pollSCUlon a.od take .ppropriate care of the KIosk and meet hk obUptloD.t macler hit Lean Agreemel1t. OWNF.R~mP AND TTSEAGE The Company l& the owac:r of the afstfng disketttS and VJ.1 diskettes which are to b<: prondcd purRVJ.t to this agrcc:mem. and the Compaay hIlS tile _du.,ITC rigbL' to provide diskettes for the Boerd durin; the term of this ~<<mcat or IlIlY extension thereto, The Board call oot be wed u a display for lUly oChel' programs without the e1Cpr=~ written permissioD of the Company during the tel'm of tills AgreemeAt or allT U.teusioll thereto. 10 the C"ent of the tcnninatioD of Hili A~eD.t, the Comp:LllY retains all of its rights to enjoin the Customer's u.'1e of proprietary information. . At the end of this Ap-eement the C'u.stomcr lhall automatically rene,,, thi! agrecma1t for another five 1= unless canceling the ~ement by Dorlee in writing to the Company DiAetr (90) daYI prior to the end of,the Tenn. If the a;reemenr is Dot esunded the CompaQ)' shall ha,'e fin't rights of re!usa!ll'ith respect to any Dew qt"CCmcnts and shall have the opportunity to match allY new terms. DEFAULT In the event the Cu.t.omer does Ilot comply with the terms of this Asroement or modlfic:at.loll or addition hereto, the Customer shall be deemed to be in dc!ault. NOTICE OF DEFAULT In the event the Customer i:I in default, the Compan~' shall ~d notice of ~id default vi. fim dus mail d~bing the uture of said default and demandins cure thereof. In the event Customer falls to cure said default within thirty (30) days of the sCAding of said Ilot.lcc:, then the Company may exercise Its rights Lncluding the ript to cujoin the use ofthc: board under applieable lam. NO WAIVER BY COMPANY Even il, at the time oC a deeault, the Company does not require Immediate cure of said default, the Compan1 will maintlllD the ri!:ht to &eck a cure UDlcss said right Is affirmatively waived In writlna by the Company. MIsm T .A.1'olEOUS Tb1s ~mCDt Is dccmocl to be CDtucd Into In HilIsboroagh COUllty, Fl, and Is aD approved agreement "1 the Bankruptcy Court. AD)' dispute an,dns frmn this Agreement ~luill he hrnqht hefnre the RankrupcCy Conrt or other court of appropriate Jurisdictlon in HlUIborough County, The A;reements lUld the rights and nbll~tio115 of the pllrtlcs I'haJl he ~Tcmed by the tAl'l'l" of the State of Florida. For the CUstom.er for the COlnpllll.,. LL'vIITED W AR,R-\.. ""TY I\.STORE PRO~IOTIONS. I!'IC.. DELAWARE Corpomior.. ""'in! iu principii pl1c: of bUSln:s5 .. I::;. Sl'MMER STREET. STAMfORD. CT 06905 eSer,'icer-) "'''''1lLS me LED Displ.~, BOllds (me -Boucls") as foUo...s: J. r imiu,d ''':In''':lnt,". Sc:vice': ,,'z:nnu WI the Boarl1s covered under iu Promorion and Sc~;cift! Acrecmcnl ",'ill be fre: from defe:u for. period of sisry (60) lIlOllIIIs from dle d3.. of origill1l purcllasc. tf lbe Ser..icer h:s e.pend~ over one million doU.rs (S 1.000.000) in me p.~",enl of ""IT1ll\)' claims .n<: rel.lC~ "penses under dle limit.d Wunnry. includiog shippini CON. on tile csisWIJ BOlld!. Ihe 1I.'''t1nr~'- period ",ill be rcdu.~ 10 . period of .....my.fou, (2<) mollllls from lb: d3': of orii".:1 purel:u., If lb. Bouc!s do llO1 CDnform 10 mislim:I:: Wunnl)' durioJ tho "'.,.,..n:~' p:"oC (spc:ifi.d abo...). CUSlom.; slull notify S.rviccr in ..TilinJ of tho claimcd d.f.:u and d.".onstnt. 10 S.rviccr wisfaction WI said ckfc::u .u. cov.red by ws Umired Wunnry, Cuslomer musI be p.rticip..inJ in tho Promotion and S.tvicioJ Afl'=.m or Ille \\'uranl~' is no' valid. tf tho dcf.:u ... prope,ly rcponcd 10 Serviccr ",iwn Ill. "'L"T2Jlry period IS d:s::ibe~ .bo".. and tho d.fc:u lte of llleh type .nd llllUlC as 10 be covercd by ws \\'uranl~'. S:,..ie.. stull. 1I iu 0"'1\ cspcns:. furnish. rcpl..:m'llI BOl'c!s or. 1I S.rviccr's op:;on. ..;>1:::""'" p.ru for w d.f.:li... Boar:1s, Durin, the pe,iod of tho Wunnry. shipping sh.1I be 11 S"'.'i:"'s .:tpcns. an:! slull be shipped onl~' in ..corclanc: "'ith lb. dirc:rivcs of Ill. S::'\'icer. I~ Jfo.e: rr::i,'in! S:rvice,'s ",'rinc:'I appro\'al. After L"e ~'l:"'Ta.."1CY Ier:J'l cJ;lltCS. the ecst of shippl~g st..!: be tho Comp211Y's up.ns.. 1. Othu' imiu. !liE FOREGOI:-1G ts L" LIEU OF All OniER WA1l.R.~"''1lES. EXPRESS OR IMl'UED. l"Cll"DL"G Bt". ?'OT U\!1'TtD TO niE IMPLIED WARJt.......-ms OF MERCH.......,..>.Blun. A...."D flTlo,"ESS FOR A PARnCU1.AR PURPOSE. Servicer docs IlOI ,,'atram a,.inst cWn2'CS or ckfcas arisio, OUt of illlpropcr or abnol1llllusc or banI1Iilll of lb. Boards; ag.inst d.fccu or cWn21e! arising from improper insWluion (....Ile.. islsWlatioo is by pe's~ns oth.. wn S.rvic... iu prcdC<:cSsor or Vinccns 1V'f). .g.inst ddc:ts in BOlrcls or comp=":~u not orililllll~. pro"idcd. or 'l.iM damagcs rcsultinl from such non- orili..1 Bo..~s or eomponcnu. Servi"r passes on 10 CUSlom.. any "'until)' ....:.ivcd from lbc ftl2k.r of su:h BOlfd! or componcnu. This ....lT1nly .Iso dOC1 nol 'p;ll~' Ul Bauds upon ...hich Rp.irs ...'. I>c:n cfIO:I.d or all.mptcd by persons oth.. wn purs...", to wria:n aulllo~lion by S..'ic:r. Thos WlrnnlY docs nol .pp!y (or Bauds WI .re notll th< orilinlllocation of Custom:r unl:ss Scrvicer is so IlOliflCd .nd Ius approvcd. in ...,.itilll thc ...'" loation. such .ppro,..1 /lO1 10 be unrcasolllbly d.nicd. funllcr 1II. CuslOmer mUSllll&i\llliD insunnc.c 00 thc &lrds agaiM .lIl1lz.arcls includinC. bUlIlO\ limilcd 10: fir.. tIleft. and ....ndcd coveRle insur.lncc. In case of an ilIsw'ablc cWn21C. tile CUSlO\IICl' slllll cause tile Scrvicor to IqlIacc tbc Bo)ards lnd 10 be compc1lSllCll by tile insunn:. provid... 3. J::"(rluc,,-f' Obli.~rion. THIS w.>.RJt>.:-.-n'1S [,"(CLUSIVE. 1llc sol..nd ...Iusive ob/igllion of Scrviccr shall be 10 ;cp.ir or Rpl.cc m. d.fcctivc Boards in tile nunncr .nd for tile pcriod plllvidcd above. Setvicer stull not Illvc any olhcr oblilllion ",ilb rcspa:t 10 tile Boartls or any pan chcrcof. ...h.m:r based on eomraQ. IOn. striQ lilbility or olll.rwise. Under no circumsunccs. whether b...d on lbis limited W.mllty or o<hcrwise. stul) Ser..iccr be Ii.bl. for incide\llll. special. or cOlUcqucnti~1 d:l~;cs. ~. o,hf'r C\1~'f'mf'ntc. S."';C:'S c:nplo~'c:s or rc~rnengli.cs' OR....L OR OTHER w~~ ST." TEMEr-.S 00 ~OT cossnn'TE WAIlR....!'o"TlES. sllall DOl be tdied upon by Customer. llld ue DOl a pan o! the comra.. (or sale ot this limi..d warranry. S. rnfirf' Ohli..~rhm. This Limiled WatnIIll' NICS dlc CIllite obliCatioa o( Se",;'" wid\ rcspc:t lD lhc Jlouds. If any pan o( lhis t.imile~ Wunnry is dcIcmIincd to be void Of iIIeca!. 1llc =indet stall remain ill full (Otce and etfCCl. 'SOFTW.~R.E L1CE:\SE AGR.EE....CE;\T n,! Soh,,'''' Li<=:lS. ...gr.:m.m (" A,re:m.:u") is !IUd. and .ff..tiv. on th. .ff..tiv. d1t. o{ lh. Promotion .nd S.,,'icing AJre:mcnl .nd is by and betwe:n [n.Stor. Promotions refclTed to tl:r<in" tIl. C"De\c1or-,").nd the Customer r.f.lTed lQ herein U tho ("Lic:ns::') for pur;>as:! o( tl:is ...,r::m:nt.. Developcr h.ts d.,..lopcd and licensed from Vendes I.V.F. Inc. and lia:nscs lD wen iu soflw.re profram .0 be: \:Sed in th: Displ.y Board1 (th. -SofN-ar."). 1.ie::lS:: d.s:!:s .0 utili1c the Soflw... .nd is. .Cl:ordiag IQ the !'Tomauon and Scrvicinl Agr.:men:. r.quir.d 10 us: th. SofN-ar.. l':OU:, THEREFORE. in eonsid:,..tion o( th: mUNaI promisC.! set {onh h:r.in. Developer and Lic::u:: Jlr:-: as (0110...."$: I. Lkwr, Developcr h.,.by ,,..nlS lQ Liccnse: . pcrpcnul. non-cxclusi...... limited license IQ use the Soh........ on or {or th. 1.ED Displ.y Bo..ds (th: -Bo.rd1") as s.t fonh in this A,t=cDt and oth:-r JrTt:m::la be::....~:1 the Developer and Licensee. 2. Rf<trktionc. Lic::lS': sh.tl! net modi~'. copy. duplicat.. rc;>rodue.. licens. or sub.lie:ns. th. Soflw.... or u:ns1e: or cO:1\'tf th: Sor.""uc or any ri,hl in Ihc: Sotcware to any omu person or mil)' ~;thoUt th: prlnr "'Till.' cor..s.m n{ D.v.loper. Lic.ns.. sh.tll only use lIIe Soflw.r. in thc Boud1 .nd .t th. SIl. .~ .ddr.ss .s spe:iti.~ in thc Prnmo,ion .nd Servicing ...gr=elll unless p1mcd permiSSIon in ..'riting b~' th. D.v.loper. 1.ic.ns.. shall no. .her. modify or ch.tnge the Soliw..e. lbe License: bercin.crees w. the Soli,.,... and .11 associ.ted p.1t.lllS. c.oPynlh:s. tI'llde:llltts. tI'llde names. \l'2de secrftS &lid allier imell.::..1 propcrty ri,hlS .r. th. exclusive property .nd constitwc . valuable Inde ICCrct of Developer. License: shallllOl se=k '0 discover or IQ disclose &JIll o( the Inde sa:tCU by diwsembling. de:ompi1int or otherwise reyerse engine:ri1tJ of the Software. Th. sour:: cod: sh.1I not b. diStlosed or ....d. ....H.bl. nor should .ny .ne"'pt be: mad. by Lic:ns.. '0 d.v.lop or ob~in this information, Th. Lie:ns:: sh.tll DO' make copies or in any w.y It,ns{.r to . third p.ny .ny o{ the information CQn~incd in the Sotiware. the media in which ie is pruelue:l or the- lurd.....,u: on "ohieh it is used. ), [U, [n consid.'.tion (or the I"m of the licens. and the use of the SofN-are, Licensee .11'- IQ accqll and use the diskCllCS proyidc:d by the Dc:vcloper ill ao::conlan:e with die J'ramocjoa and Sc"icinC "crccmau. 'T1lm is no c= rot the usa,e o( the Software proviclcd die 1.ic:=sce is DOl in debull ...im respect lQ lIIe !'Tomodon and ScTvicinC Acreemcm. .. Y;:lf'T:mf'\'l')rTiIf~. D.v.loper hereby repr.seDlS .nd WalTlnlS 10 Lice= Wt Dc:vcloper is the owner of dlt: Soli,,"'" or o.her..'ise h.ts the rishe 10 'l'1tIllO ~ lhc riches SCllonll illlllis "'_' In lhe evem o{ .nr breach or thrctencd bre:ach or the (orqoins represcnwion and watnnry. 1.ice/ISC'C's sol. remed~' shall be: IQ require De,.loper IQ either: i) procure,.' Dndoper'J e.pense. the ri~hl'o use lIIe Soliw....,. or ii) replace the SoliWllre ot any pan lhcrcofdw is in breach allll replace il wi,h Soliw..e of comp,,,,bl. funaionalily w. does IIOl cause any breach. 5- \\.r'r~"!\ or Fun('tion::!.1iIY. ^, D.,.lo~.r ..'arnnu WI lhe Soft....r. shall perfonn in anllUl.rial respc::U accordine 10 th. D....!o~.rl spo:ifitolions tOnc.mill! Iht Sohwar. when used in Ill. approprial. Board. tn lit. .,.n: of any br.och or an.t.d br".ch of dlis ",..rnmy. Ueens=< shan promptly /lOury 0"'=10;:=: andrtlum Ill. Softwar.lo Dev.loper. Liccnstt's sol: rcno:ly' shall be W, o.,.loper lh.1l corrcc,th. SO,.,.....e so w, il OponlCS a=rdine '" dlis warn:uy, 'Thil ...",.m) shall not apply 10 dlc Sohwarc If modified by anyone or if used impn)perly or 011 an Ope:4:inr cn,,'iroament not approved by Developer. B. In tho .,'en: of an)' c1cf~ in dl. media upon wIIich dle Softwar. is provided V'i1CS. D=-elope: 1....11 provide Licc= a DeW copy of tbC Softwar.. 6. C;ofr\l:~rr 'A2inlf'"~n('f'. Ou::n. ~~e ..'arnn:) pe:Jod. Dev.loper shall provide", Liee= any 0<"'. COlTe':led or .~:~:=~ "<:lIon o( the Soft..'ar. as .r..,ed by Ikveloper. Such cnha=:ne.. shall ille1uclc all "'e~:;..."ons '0 tho Softwar. which inac.uc the speed. efficiency or cue of use of the Soft..,.... or add addilional capabiliues or fwlctionalil)' IllW Software. 7. h.m. 1" a'::I:on '0 all othe: amounu due hereunder. LicenSee shall also pay. or reimbune Devcloper IS ap~:c?ria::. all amouna due fo, property ux on the SOft......e and (or ules. use. e,",is< wes or ol~e: 1...1 ""'hith are meuurcd directly' b~' paymCllU made by Licens.. 10 Developer. In DO e',-e": Itoll: Lic::ue: be obliCated '" pay any tax paid on Ibe income of Dev:loper or paid for D:\ eicp::'s prl\'ileg~ of dcinc business. E. "'~'!""~!"'It" Di(t'''';~rr. DEVELOPER'S W.....AA.o\NTIES SET FORTH IN nns AGREEME"" AJ\E EXCLUSIVE "':-''0 ARE I:' LIEl: OF All OTHER WAAA...NTtES. EXPRESS OR IMPLIED. I~CLt:DI!'G BlI NOT LIMmD TO. THE IMPLIED WARRAt<1IES OF MERCH.o\:-,....SILm. .,,:-''0 Fm,"ISS FOR A PARTICtiLAR PURPOSE. 9 Li~i.~tion or Li:Jhilit'.. D,' ele;,<= ItoOl! nOI be responsible (or. and shall no. pay. any amoun' of incidenul. conse~uena.31 or other indirca c:bJr~les. whc1.hcr ba.scd. on Ion revenue or otherwise. tqardless 0'- ~ he:;;:: D,'eloper "'as ad,'iscd of dlc poslibiliry of sueh losses in ad..n:: or ..-hether L,cen,"1 C:..m is based on co..nct. Illlt, s:riCl habiliry. prodUClliabiliry 0' othe""is<. IO.~. M>' nolite required by Ibis Alrecmcm or liven ill collllCl1ion wilb i... WlI be Ul wrilinl UId lhall be .;ven 10 lhc appropnm pany by personal delivery or by ccnificd mail. poNCe prepaid. or re:ocnizcd ovemich' delivery services. J 1. (;o....rrnin.' :lVo.. Thll ^cr.::nen, shall be collSlt\led and cnforced in aa:ordallcc with Ihc la.... of &be swc of COM!':ti:ut. 11. ,"0 4(",i."m.n1. l'.ilhc: 'his .o\c,ecme.. nor any illlerl:Sl ill dlisAlrccmelll may be usitned by Uc:ms<:oe wilhouI the pr1cr express ..."tinen approyal or Developer. 13 Fir....l J.....~""t!'lt. This .~!rC'::ncnf tcnntn:u::1. lnd supc:sc::1es III prior undc:rsl.2ndin!s or llrecmc:u.s on the subJC:: mane:" hereof. This Arre:mcn: mJY be modific:t only b~' a funhcr wriling WI is duly cXC':Ufcd by bolll pI...ies. 141. ~f"'f'f".::Ibilit'" If In~' le:m ofws AJre:m.", is Ileld by I eou... o( eompell'lll jurisdiaion 10 be ilIvafid or unenforceabl.. then this Acre:mcm. iDcJudi"i all of tile rcmailli.al =. willl'C11'.ain in full force llld etfe::t as if sudl iavalid or unenforceable ICmI bad Dever been UIcluded. 15. RMldinp.. Headinc, used in tIIis Acre::nenl uc provided for COoVClliaICC ollly llld ShallllOl be used 10 constrUe: mcanin& or imem. II' \l,ITT!'<ESS WHEREOF. Developer and License: have c<=..-d ws Agr=cnl eff=ivc on tII: ~t: as lbo'" indicated. r I. f I . EXHIBIT "4" L1CE~/:;l"JC. ....GRF.'F:r...IENT LINi)ERSTi\NT)lN(i ~te'e" intl);1!; ()fthi" ;..Y2 eLl;- of ';';",,_1.- in the ye:lT 1996. BY N1D BETWEEN: \'E1'<-rF.S J.VJ. IN'-., ~ c.orpor:ltion duly ;ne"lll(ol~I<:c! untler flie Cana&! H"nne~~ CCI'l"'.-An"n ACt h~vlnl1 ;L< ,,{'fjc.c "nd princip~I"l.1c:r. "fl'~ness at 2323 H"lrctn. $1. Laurt.lll. t'tu,'incc of Quc-t..... J-l~S 1$3. herein "ctinS:1l\d re!'rr,:;cII"'<.I b~' Mr. hul R)'"n,lu prc~dent. MJ tefmed 10 heTelO as .I"'F .....'1) I~.~T()R E PRt)MOTWNS. INC. :. ~o'l"'eafiun <.Iul)' incorpontcd in the StIIlt: ('If Dds1V:.rc h:l";"l: it! "ffices in SUlm((lTd. cr :md refcrn:.J tn herein ns U\-Slure. \Vl-TF.RE,~S' JVF h:ls d"~lg:ned anc! buill the 8onrd. :ou<.l lhe Kiosl:s. alld de.clopc.J c='n "rnr""""" :,cof,\\,:l:e for the preparslIon o( di~l;ene~ iln.J CD's In he u....(I ie. prO:J.'lI1'inJ! me~saEe. th31 can hr. "se-d (In the E~uipmenl, and V.'l-TF.~F.AS: rv"F. in eorrupcmdencc ..-ith che P:Il'tIes 10 die ~lCY, hu infonnc,llhr. Pllrnes fnor 1V1"i ri;Ptt~ to che propricla'1' s()t'rI":l2'e were being infrinl):cd by Jteeornnl, alld tblal. ....bile J\'1' W:l~ willin!! to :llIoy,; che c:<.iron:: 1'1et,,'orlt fO utilize the ~Ufl\Yare in cheir e~uiplil(,lll J\lTins the prnaedinS" ofche bankTupt.:y. 1'I/F requested tJ",llhe (ull responsibility (Of sCI.i..:in~ the Nr.,w(lrk I:o~. :l.SSlgTled to In-Stnre. ."tI V.'HERE....S The p:lrue~ \l) the ba"kTup"Y proeeedin[!.s hll"e nul hun(.rcd the above re~ucS\. ~nd 1'_'''' rVF i~ prep:lrcd to :l:1 in an sl'I'rOpTl3le nunner 1(, peote':llI",;r Inlclleetual Property Rij;hl.<. :Ind 10 enter ,",0 tlll~ /'greemc:nl wilh L"l-SIOrC for opcrllllon~ d..rin~ Ine B~N;ntplCY ^~t'vn ..110 5111:>.<:<<uenllo lhe purcho.<e nfthc .~",,~,t~ by In.$lorc; and WHERE/'S: in-Slore rccosni:C6 the f'ropriet::ry Inlcllectu:ll PIClf"-'TIy R.i;,:hts of TvT.and is cnl<ring i,IIO Ihi. A~c:rrctllIO fceure the ..,;e of IVF's softwW'c. u il nv'" CXJSlS or as moditie6: and WHERE....S: In-Store ~c. Nf RCOi"ite th:lt Ihis is a Prdimin:uy ^~C'menl wbi~h defines intent :lnd ....111 i)e eonvef1cd inlo ~ Conlr~etal :1l1 e:lrl)' n:lle. NOW THEREFORE: I, JVF hereby snnu 10 In-S\Orc: Ihe cxelu.s;ve ri&hl:: 10 use its software lItld other IntelleelU:l! Pro!,e")' ,I' :.scC"ieins the cxistin!; Network Da.!-e, i.e_ those who ....ere sold B<J....Js fJl ((io""~ 1:>)' cor """re ~ervieed 1:0)' p.ccomm. :!. In-Slor'' ....11 pay 10 T.tF . Ro~..lt)' Fee "qll:llto <me dol1:u (SI.00) per mnnth !"-.,. Ru"r..I,... Kio.k s"rviced beSinninl! ""ith the m:tilinr.s one monlh after the date of Court Cuuruma,;U" of ch.:. purc~se of the l\Sset.~ hy In-~tnrc, E X H I BIT "B" UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DMSION fu~ ) ) OPTICAL TECHNOLOGIES, INC., ) RECOMM OPERATIONS, INC., ) RECOMM ENTERPRISES, INC., ) RECOMM INTERNATIONAL DISPLAY) CORP" INC., and AUTOMATED TRAVEL ) CENTER, INC., RECOMM INTERNATIONAL ) DISPLAY CORPORATION, RECOMM ) INTERNATIONAL DISPLAY, LTD., and ) RECOMM INTERNATIONAL CORPORATION,) ) Debtors and Debtors-in-Possession. ) Chapter 11 Case Nos. 96-00805-8Pl 96-01200-8Pl 96-0 120l-8P 1 96-01202-8Pl 96-0 1203-8P I 98-020134-8Pl 98-020135-8Pl 98-020136-8Pl Honorable Alexander L. Paskay ORDER CONFIRMING FOURTH AMENDED JOlNT PLAN OF REORGANlZATION OF DEBTORS, THE OFFICIAL COMMl'ITEE OF UNSECURED CREDITORS AND CERTAlN LEASING COMPANIES UNDER ~110FTHEBANKRUPTCYCODE On September 2, 1997, a hearing was held in the above-entitled cases before the undersigned United States Bankruptcy Judge in connection with confirmation of the Third Amended Joint Plan of Reorganization, as modified rThird Amended Plan"). Pursuant to the Court's Order of December 10, 1997, confirmation of the TItird Am~ded Plan was denied, with leave granted to the proponents of the Third Amended Plan to file another disclosure statement and plan of reorganization for this Court's consideration. On January 26, 1998 the proponents of the Third Amended Plan timely filed their Fourth Amended Joint Plan of Reorganization ("Fourth Amended Plan")!' without a disclosure statement. The Plan Proponents also filed a motion (the "Solicitation Motion") seeking an order that the Plan Proponents were not required to resolicit votes for the Fourth Amended Plan because such plan contlined modifications which attempted to address the l' Capitalized terms used in the Order and not otherwise defined, shall have the meanings ascribed to them in the Founh Amended Plan. Exhibit B obstacles to confirmation as set forth in the Coun's Order of December 10, 1997, and which did not materially and adversely impact the treatment of Claims of Creditors as compared to the Third Amended Plan. On February 12, 1998, the Coun entered an order granting the Solicitation Motion and determined that it was not necessary to resolicit votes on the Fourth Amended Plan because this Coun was pri~fied that the Fourth Amended Plan provided at least the same treatment for Creditors' Claims. Therefore, no new disclosure statement was to be sent to Creditors, no further voting was required, and votes previously cast concerning the Third Amended Plan are to be counted with respect to the Fourth Amended Plan. On February 26, 1998, the Court entered an order setting the hearing on . confirmation of the Fourth Amended Plan for April 29, 1998, and, among other things, required that (i) a summary (approved by the Court) of the changes from the Third Amended Plan be sent to all Creditors and (n) any party who wished to object to confirmation of the Fourth Amended Plan file such objection no later than April 24, 1998. On April 29, 1998, a hearing was held in the above-entitled cases before the undersigned United States Bankruptcy Judge in connection with confirmation of the Fourth Amended Plan and approval of the related transfers, compromises, executory contract and unexpimi lease assumptions 8nd ~ections, there appearing at the hearing, John D. Goldsmith of Trenam Kcmkcr Scharf Barkin Frye O'Neill & Mullis attorneys for the Debtors; Matthew N. K1~mlln of Kirkland & Ellis and Zala Forlzs, attorneys for the Official Committee of Unsecured Creditors (the "Committee"), Daniel M. PeIliccioni and Samuel B. T~lIC$()n of Katten Muchin & Zavis and Edward Waller.of Fowler, White, Gillen, Boggs V1l1area1 & Banker, P.A., attorneys for FINOVA Capital Corporation, JoJm R. McDonald of Robins, Kaplan, Miller & Ciresi, attorney~ for Colonial Pacific I _ang Corporation, Mark Bernet of Steams Weaver Miller Weiss!er Alhadeff & Settcrson, attorneys for Textron Financial COlp., Avec Leasing Services, Inc., NationsCredit Commercial Corporation and Vanguard Financial Service COlp., Vmcent T. Borst of Askounis & Borst, P.C., John Mueller of Smith Clark Delesie Bierley Mueller & Kadyk and Michael K. McCrory of Barnes & Thornburg for Lease Partners Corporation and Lease Partners, Inc., Brett Marks for Raymond Manklow and other parties in interest as set forth in the recorded transcript of the hearing. Having reviewed and considered the Fourth Amended Plan; the Disclosure Statement to Accompany Third Amended Joint Plan ofReorgani1ation (As Modified) (the "Disclosure Statement") which was approved on June 12, 1997 by the entry of the Amended Order Approving Disclosure Statement arid Fixing Time for filing Proof of 2 Claims and Acceptance or Rejections of Fourth Amended Plan, combined with notice thereof" (the wDisclosure Statement Order"); the Summary of the Fourth Amended Plan, which was approved by the Court on April 15, 1998; the various offers of proof, stipulations and agreements incorporated into the Fourth Amended Plan and/or read into the record at the hearing on Confirmation of the Fourth Amended Plan, including but not limited to, the Claims Purchase Agreement by and among the Participating Lessors identified on Exhibit A to such agreement and those lessees identified on Exhibit B to such agreement; the proposed merger and related documentation contemplated by the Fourth Amended Plan; oral and written motions to modify the Fourth Amended Plan and for cramdown and such other motions as were considered by the Coun in connection with the Confirmation of the Fourth Amended Plan; the Ballots cast accepting and rejecting the Fourth Amended Plan; Ballot summaries filed in conjunction with Confinnation of the Fourth Amended Plan; having considered the arguments of counsel ' and the entire n:cord in the R.eorganiDtion Cases; the Court makes the following findings of fact and conclusions of law regarding confirmation of the Fourth Amended Plan: FINDINGS OF FACT 1. At the hearing on confirmation on April 29, 1998, this Coun received as evidence, without objection, the following: (i) Transcript of hearing on confirmation of Third Amended Plan dated September 2, 1997 and Debtors' Motion for Substantive Consolidation and pleadings submitted in support thereof; (ii) Affidavits of Robert Aldrich artd Sandra.J:lraddock attached to Plan Proponents' Motion for Order that Resolicitation of Votes on Modified Plan will not be required; - (ill) Agreement and Plan of Merger dated as of April 28, 1998 between the Debtors and In-Store; (iv) The Claims Purchase Agreement by and among the Piuticipating Lessors identified on Exhibit A thereto and those lessees identified on Exhibit B thereto which was read into the record and provided to the Court at the Confirmation hearing; (v) Offer of Proof by In-Store inCluding the projections of In-Store attached to the Plan Summary; and . (vi) Section 1129. Offers of proof regarding f~ bases for confirmation under 3 2. To address the grounds stated by the Court for denying confirmation of the Third Amended Plan, certain changes and modifications were included in the Fourth Amended Plan. First, the Fourth Amended Plan includes the following debtors as Plan Proponents and requests confirmation of the Fourth Amended Plan with respect to such debtors; (i) Recomm International Corporation, (ti) Recomm International Display Corporation and (ill) Recomm International Display Ltd. (the "Additional Debtors"). Each of the Additional Debtors commenced a case under. Chapter 11 of the Bankruptcy Code on February 11, 1998. Both under the Fourth Amended Plan and by separate motion, the Plan Proponents requested that this Court substantively consolidate the estates of all of the Debtors, including those of the Additional Debtors. 3. This Coun held a hearing on a motion for summary judgment on substantive consolidation on Apri122, 1998. Pursuant to its order of April 30, 1998, this. Court granted the motion, ordering substantive consolidation of the estates of all of the Debtors, including those of the Additional Debtors. Accordingly, one of the grounds stated by the Court for denying confumation of the Third Amended Plan has been adequately cured in the Fourth Amended Plan. 4. Similar to the Third Amended Plan, the Fourth Amended Plan also provides that each of the Participating Lessors receive a release and injunction. However, this Court, in its order of December 10, 1997, held that the Plan Proponents had not satisfied certain of the factors i~tified in In re Master Mort~ll.l~e Investment Fund. Inc., 168 B.R. 930 (Bankr. W. Mo. 1994) with respect to the releases and injunctions in the Third Amended Plan. 5. - To addresL the Coun's concern in that regard, certain provisions were added by the Plan Proponents to the Fourth Amended Plan. Such provisions (together with an agreement among the Participating Lessors and certain "objecting lessees", as such term and such agreement are described herein) satisfy this Court as to those certain elements of Master Mort~a2e. Such modifications contained in the Fourth Amended Plan include: (i) the merger of the Reorganized Debtor and In-Store with the Reorganized Debtor being the surviving company; (ti) forgiveness by the Participating Lessors of $1 million of the outstanding debtor-in-possession financing. Accordingly, under the Merger Agreement by and among In-Store and the consolidated Debtors, among other things, In-Store will assume certain obligations of the Reorganized Debtor, including the .repayment of the Debtor-In-Possession financing, less $1 million; however, the maximum amount of such financing assumed by In-Store and the Reorganized 'Debtor shall not exceed $5 million; 4 (ill) a reduction of the interest rate on the Effective Date Amarages from sixteen percent per annum to twelve percent per annum for the period December 10, 1997 through the Confirmation Date of the Fourth Amended Plan; (iv) a five percent discount on the amount that any Participating Lessee may pay, should it elect to make the one-time cash payment of its Revised Principal Balance of the Lease, to completely satisfy itsobligatiotts under the Lease as set forth in the Fourth Amended Plan. 6. In addition, based on the testimony presented, the Participating Lessors made loans and other extensions of credit to the Debtors during the pendency of the Reorvn;-ntion Cases in an amount in excess of $3.5 million. These Loans enabled the Debtors to continue to operate their businesses, maintain the network of approrim:l~ly 12,000 Boards and make it possible for the business of the Debtors to be reorganized and continue to operate as a going concern. Based on the testimony of Robert Aldrich, Vice President of In-Store, the Court finds that the Debtor-in-Possession financing provided by the Participating Lessors was essential to the maintenance of the network and In- Store's offer to enter into a transaetion with the Debtors. 7. Under the Fourth Amended Plan, and based on the evidence presented at the Confirmation hearing, the Coun finds that the contributions of the Participating Lessors, including, but not limited to, the, discounts, modifications and other concessions on the Leases as set forth in the Fourth Amended Plan are a substantial contribution to the Debtors and to the Estates. 8. Based on the testimony of Teresa Mortensen, Vice President of FINOV A, Larry Braden, Chairman of the Committee and F. Michael Zovistoski, the Committee's financial advisor, the Court finds that, except as to the objecting lessees, the Participating Lessors will nQt provide the discounts described in the Fourth Amended Plan or modify the Leases as set forth in the Fourth Amended Plan and will not make the payments required of them in the Fourth Amended Plan if they do not receive the release and injunction in their favor as provided in the Fourth Amended Plan. 9. Based on the testimony of Robert Aldrich, the Court finds that In-Store will not enter into a transaction with the Debtors if the Leases are not modified as provided in the Fourth Amended Plan and if the releases and injunction provided in the Fourth Amended Plan are not granted, becallV! the litigation by certain of the L~sSH's against the Participating Lessors negatively impacts the Debtors' network of Boards and Kiosks, thereby depleting .the value of the network. Based on.the testimony of Kenneth Mann, the coun-approved broker for Debtors' Assets, no prospective purchaser was interested in purchasing Debtors' Assets without the ie1eases and injunction called for in 5 the Fourth Amended Plan. Mr. Mann testified that Debtors' Assets had no value without the releases and injunction. According to the testimony of Mr. Zovistoski, the Debtors' Assets liqll;<:l~ted at auction would bring less than $88,000. The Merger of the Debtors and In-Store is dependerlt on the releases and injunctions in the Fourth Amended Plan, ensures the maintenance of the going concern value of the Debtors and generates consideration in c:onnection with the Merger of approximately $6.5 million. The releases and injunction provided in the Fourth Amended Plan are essential to the reorganization. Without the releases and injunction, no plan of reorganization can be confirmed in the Reorganiz:aticm Cases. 10. The Lease modifications and the tennination of substantially all of the litigation among certain l~5ef'~, the Debtors and certain Lessors (the "Litigation"), except as specifically set forth in the Claims Purchase Agreement, which will result from . the gIaIlt of the releases and the issuance of the injunction set forth in the Fourth Amended Plan, are essential to the maintenance of the Debtors' network: and the future operation of the network by In-Store. 11. Based on the testimony presented at the Confirmation hearing, the Coun finds that the releases and injunction set fanh in the Fourth Amended Plan are essential to the Fourth Amended Plan, to the reorganiDti.on of the Debtors, to the maximization of the value of the Debtors' Assets, and to the merger of the Debtors with In-Store. 12. The Creditors in {'In"., C, D, E, F and H have voted overwhelmingly to accept the Fourth Amended Plan in accordance with 11 U.S.C. G 1126. 13, The Participating Lessors .have asserted indemnity claims against the Debtors with respect to the claims by the I ~~~~ asserted against the Participating Lessors. In addition, to their common law and contractual obligations, pursuant to the documents exc;cuted in connection with the Merger, the Debtors have certain indemnification ob1igations to the Participating Lessors. Based on the foregoing, there is an indemnity rc1ationship between the Participating Lessors and the Debtors. 14. Accordingly,pursuant to the modifications set forth in the Fourth Amended Plan, the evidence presented to this Court at the hearing on confirmation of the Fourth Amended Plan, and the withdrawal of the objections of certain lessees to Confirmation, the clements the Court requires to be satisfied under the Master Mort28l!e guidelines have been met, and, therefore, the release and injunction provision of the Fourth Amended Plan are approved (except as expressly set forth otherwise in the "Claims Purchase Agreement" described herein). 6 15. All known holders of Claims against and Interests in the Debtors, and all other Persons entitled to notice, were provided timely and proper notice in accordance with the Bankruptcy Code, the Bankruptcy Rules, the Disclosure Statement Order and all scheduling orders regarding the hearing to consider Confirmation of the Fourth Amended Plan pursuant to Section 1128 of the Bankruptcy Code and the Disclosure Statement and the approval of the transfers, compromises, and requests by the Debtors to reject unexpired leases and executory contracts as contemplated by the Fourth Amended Plan. 16. Solicitation packages were transmitted to all parties in interest entitled to vote on the 11tird Amended Plan in accordance with the Disclosure Statement Order. 17. The Fourth Amended Plan complies with the applicable provisions of the' Bankruptcy Code, including, without limitation, 11 U,S.C. ~ 1123(a). 18. The Claims in each of Classes C, D, E, F, and H, as modified, are substantially similar to the other Claims in each of such Cl;l~~5 and no credible evidence to the contrary was presented. 19. The classification of claims in Classes C, D, E, F and H was not done to control or gerrymander the vote in those Classes. No evidence was presented that the classification of Claims in the Fourth Am~ded Plan was done to gerrymander or control the vote of Claim Holders in any way. 20. The classification of Claims in Classes C, D, E, F and H complies with all applicable requirements of the Bankruptcy Code and the Bankruptcy Rules. 21. The Lessees and Equipment Owners of Boards and the Lessees and Equipment Owners of Kiosks classified in Ciasses c, D, E and H receive substantially similar treatment. 22, The Fourth Amended Plan provides that Class C and E Creditors and certain Class H Creditors are deemed to hold Allowed Claims in the amount listed in the Debtors' schedules and that Class D Creditors and certain Class H Creditors are deemed to hold Allowed Claims in an amount equal to the present value of the gross lease payments due and payable under their Leases as of December 31, 1995, based on a discount rate of 6%. Nothing in the Fourth Amended Plan prohibits any Creditor from filing a Proof of Claim. Thus, under the Fourth Amended Plan, Class C, D, E and H Creditors are permitted to file Proofs of Claim even though such filing, is not required to preserve their respective rights to the distributions described in the Fourth Amended Plan. Accordingly, the determination of the Allowed amount of the Class C, D, E and 7 H Claims, to the extent such determination is contained in the Fourth Amended Plan, complies with all applicable requirements of the Bankruptcy Code and the Bankruptcy Rules. 23. The Plan Proponents have complied with all applicable provisions of the Bankruptcy Code. 24. The Debtors, the Committee, the Participating Lessors, In-Store, and each of their respective officers, directors, partners, employees, members or agents, and each Professional, attorney, accountant, or other Professional employed by any of them have acted in good faith and in compliance with the applicable provisions of the Bankruptcy Code, including, without Jjm;~tion, 11 U.S.C. i 1125. 25. No evidence was presented that the Fourth Amended Plan was not proposed in good faith under 11 U.S.C. i 1129(a)(3). The Fourth Amended Plan has been proposed for a legitimate and honest purpose, in good faith and not by any means forbidden by law in compliance with 11 U.S.C. Section 1129(a)(3). 26. Payments made or to be made by the Plan Proponents or by any Person issuing securities or acquiring property under the Fourth Amended Plan, for services or for costs and expenses in or in connection with the Reorganization Cases, or in connection with the Fourth Amended Plan ,and incident to the Reorganization Cases, have been approved by, or are subject to the approval of, this Coun as reasonable. 27. The identity and affiliations of any individual proposed to serve, after Confirmation of the Plan, as a director, officer, or voting trustee of the Reorganized Debtor under the Fourth Amended Plan, have been fully disclosed; and the appointment to, or continuance in, such office -of each such individual is consistent with interests of holders of Claims against and Interests in eaCh of the Debtors and with public policy. Sandra Braddock and Robert Kellish shall resign as of the Effective Date as directors and officers of the Debtors. 28. The Fourth Amended Plan discloses the nature of the compensation to be paid to insiders of the Debtors. The Fourth Amended Plan provides that, subject to approval of the Coun, Robert Kellish and Sandra Braddock will receive payments in accordance with the terms of the agreement attached as Exhibit I to the Disclosure Statement. Any other arrangements between Mr. Kellish and Ms. Braddock and In-Store with respect to compensation are null and void. 29. No rates of the Debtors are subject to the approval of any governmental regulatory commission. . 8 30. As reflected in the testimony at the Confirmation hearing, including, but not limited to, that of Mr. Zovistoski and the liquidation analysis contained in the Disclosure Statement, as well as the indebtedness of the Debtors to the Lenders under the Financing Order, the members of impaired Classes have accepted the Fourth Amended Plan or will receive, as of the Effective Date of the Fourth Amended Plan, not less than they would receive in a liquidation under Chapter 7 of the Bankruptcy Code on such date. 31. ('111~"'S A and B are unimpaired and are deemed to have accepted the Fourth Amended Plan. With respect to impaired Classes of Claims entitled to vote on the Fourth Amended Plan, the Fourth Amended Plan lw been accepted in accordance with 11 U.S.C if 1126(c) and (d) by Classes C, D, E, F and H. Class G, the Holders of Interests, are deemed to have rejected the Fourth Amended Plan. Notwithstanding that, the Holders of Interests in Class G have consented to the treatment provided for Class G in the Fourth Amended Plan. 32. The Fourth Amended Plan provides for the tre:ltment of Administrative and Priority Claims in the manner required by 11 U.S.C, i 1129(a)(9). 33. At least one Class of Claims that is impaired under the Fourth Amended Plan lw accepted the Fourth Amended Plan, determined without including any acceptance of the Fourth Amended Plan by any Insider. 34. In-Store, the Reorganized Debtor and each of the Participating Lessors have the ability to make the payments and loans required of each of them, respectively, under the Fourth Amended Plan and the Participating Lessors have the ability to make the cash payments required of them in connection with Confirmation. 35. According to the testimony of Julie Gordon and Robert Aldrich, each a vice-president of In-Store, In-Store is a media company that sells in-store promotion and health related advertising and promotion to health care suppliers. In-Store is a start-up business created to enter into a transaetion with the Debtors. Because the merger has not closed and the Fourth Amended Plan lw heretofore not been confirmed, In-store has not heretofore signed any advertising contracts for placement of advertising on the Boards and Kiosks. Once the Fourth Amended Plan is confirmed and the merger is closed, In- Store will solicit advertising. In-Store expects to solicit and sign advertising agreements in the first months following the commencement of operations. This start-up period has been provided for in In-Store's budget and projections. 36. Based on the testimony of Julie Gordol,l, Vice President of Marketing of In-Store, and Dr. Neal M. Bums, an expert on marketing and advertising, the Court 9 finds that the Debtors' network of Boards and Kiosks is a valuable asset. Boards such as those included in the network represent effective advertising tools for pharmacists, veterinarians and opticians and have a significant value for independent pharmacists and manufacturers of health care products due to their ability to have an impact on consumer purchasing behavior at the "point of purchase". In-Store and Dr. Bums independently conducted and commissioned various surveys with respect to such in-store advertising. Dr. Bums determined that the network has value to advertisers and retailers in the intended markets. 37. The financial projections ofIn-5tore set forth in (i) Exhibit C to the Fourth Amended Plan, and (Ii) al;tJI"hM to the Summary of the Plan are based on estimates made by the incoxporators of In-Store, market studies and historic opeIating expenses of the Debtors and are based on the incoIpOrators' collective experience in the advertising. business and substantive experience in projecting advertising revenue. The financial projections include a reasonable analysis of (i) future net income, (Ii) future gross profits and (ill) future costs and expenses. 38. Based on the offer of proof from In-Store, the Coun finds that In-Store has obtained a line of credit to cover any reasonably projected working capital shortfalls. This line of credit is greater than the largest aggregate operating loss projected by In- Store in the first six months of operation and is reasonable. 39. The financial projections of In-Store are reasonable and demonstrate that the Fourth Amended Plan offers a reasonable prospect of success and is feasible. 40. The consideration as set forth in the Merger Agreement and the funds to be loaned by the Participating Lessors will be sufficient to permit all payments required under the Fourth Amended Plan. In-Store and the Reorganized Debtor will be able to ma.ke the payments required of them under the Fourth Amended Plan and the payments anticipated by In-Store's projections. 41. No evidence was presented that the Fourth Amended Plan was n~t feasible. 42. The Fourth Amended Plan has a reasonable prospect of success. The Plan Proponents have the means to effectuate the Fourth Amended Plan and confirmation of the Fourth Amended Plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the Debtors or any successor to the Debtors under the Fourth Amended Plan except as proposed in the Fourth Amen~ed Plan. 43. All fees payable under 28 U.S.C. 1.1930 have been or will be paid pursuant to Section II.B.1 of the Fourth Amended Plan on the Effective Date. 10 44. No holder of any Interest junior to the Holders of Interests in Class G will receive or retain any property under the Founh Amended Plan on account of such junior Interest. 45. There are no retiree benefits, as that term is defined in 11 U.S.C. ~ 1129(a)(13), maintained or established by the Debtors, and the Debtors have no obligation with respect to any such benefits, 46. The Fourth Amended Plan does not discriminate unfairly, and is fair and equitable, with respect to each Class of Claims or Interests that is impaired under. and has not accepted, the Fourth Amended Plan, including Class G pursuant to 11 U.S.C. I 129(b )(3)(B)(ti). 47. The principal purpose of the Fourth Amended Plan is not the avoidance of taxes or the avoidance of the application of Section 5 of the Securities Act of 1933 (15 U.S.C. ~ 77e). There has been no objection by any governmental unit asserting such a claim with respect to the Fourth Amended Plan. 48. Pursuant to Section 1145 of the Bankruptcy Code, the issuance of Reorganized Debtor Stock pursuant to the Plan, is exempt from the registration requirements of the Securities Act of 1933, as amended, and any state or local law requiring registration for the offer or sale, of a security. 49. The Reorganized Debtor Stock to be issued by the Reorganized Debtor pursuant to the Plan are being issued in exchange for a Claim against, or an Interest in, _ the Debtors in these Chapter 11 cases, within the meaning of Section 1145 of the Bankruptcy Code. 50. The Fourth Amended Plan satisfies all the mandatory requirements of 11 U.S.C. ~ 1123(a). Additional provisions contained in the Fourth Amended Plan are consistent with permissive plan provisions authorized by 11 U.S.C. ~ 1123(b). 51. Each of the conditions to Confirmation contained in Section XI.A. to the Fourth Amended Plan have been met or waived. 52. Entry into the Merger Agreement, the various Promotion and Servicing Agreements, and the other agreements attached to the Fourth Amended Plan in connection with the merger of the Debtors and In-Store are in the best interests of the Debtors, their Estates, and. the holders of Claims against or IntereSts in the Debtors and represent a reasonable exercise of the Debtors' business judgment. . 11 53. No executory contracts will be assumed pursuant to the Founh Amended Plan. The Advertising Contracts and all other executory contracts and unexpired leases, but not any Leases between the Participating Lessors and their Lessees, are rejected under the Fourth Amended Plan, to the extent that they have not otherwise been terminated or rejected. 54. Rejection of the unexpired leases and executory contracts of the Debtors is in the best interests of the Debtors, their Estates, and the holders of Claims against or Interests in the Debtors and represents a reasonable exercise of the Debtors' business judgment. 55. The Fourth Amended Plan provides for substantive consolidation of the Estates. In that regard, on the basis of the evidence before the Court, including the. testimony submitted and pleadings filed in connection with Confirmation and the Motion for Substantive Consolidation and Motion for Summary Judgment thereon, there is no credible evidence the Creditors relied solely on the credit of one Debtor, there is substantial identity among all of the Debtors including the Additional Debtors and consolidation is necessary to avoid harm to Creditors and for Creditors to realize benefits which would not otherwise be available to them, 56. The evidence presented to this Coun indicates that substantial additional factors approved by the Eleventh ~t Court of Appeals support substantive consolidation. 57. On the basis of the foregoing, this Coun finds that the evidence is clear and convincing that the substantive consolidation of the Estates under the Fourth Amended Plan is appropriate in the Reorganization Cases. 58. ~e Coun acknowledges that the Committee expressed strong reservations about the proposed claims purchase ("claims purchase") between the Participating Lessors and certain of their lessees. The Committee consistently strived to reach a global resolution for all creditors, as reflected in the terms of the Fourth Amended Plan. The Committee recognized that by selling their claims, some of the objecting lessees, though no longer creditors of the bankruptcy estates, could ultimately receive a better financial resolution of their respective claims against their leasing companies as compared to the treattnent of Participring I ..~- under the Plan. The Committee also understood that some of the objecting lessees might receive worse treattnent than similarly situated creditors under the Fourth Amended Plan, and that some objecting lessees might elect to be treated pursuant to $e terms of the Fourth Amended Plan. Th~ Committee was also concerned that the settlement with the objecting lessees was not disClosed to other creditors of the estates, and that the Committee did nOt have an opportunity to elicit the 12 views of its constituency with respect to this development. Under any alternative, the claims purchase raised profound and difficult issues that tested the Committee's support for the Fourth Amended Plan. 59. The Court further recognizes that nevertheless, the Committee concluded that the best interests of its constituency merited the Committee's continued support for the Fourth Amended Plan, as modified to include the newly provided additional 5 % cash- out discount available to all Participating L{'c....-:. The Committee continues to believe that a negotiated business resolution of these disputes is preferable to the uncertainty and expense of litigation. The Committee concluded that the interests of all cn:ditors- lessees, owners and trade creditors-were better served by seeking confirmation of the Fourth Amended Plan, as opposed to taking any other action that might jeopardize such a result. Accordingly, although mindful of the troublesome issues raised by the claims . purchase, the Committee supports and recommends confirmation of the Fourth Amended Plan. . 60. Such of the subsequent Conclusions of Law as are deemed to be Findings of Fact are hereby adopted as Findings of Fact. CONCLUSIONS OF LAW 61. Such of the foregoing Findings of Fact as are deemed to be Conclusions of Law are hereby adopted as Conclusions of Law. 62. This Coun has jurisdiction over all maners, including the releases and injunction provided in the Fourth Amended Plan, pursuant to 28 U.S.C. n 1334 and 157(a). All matters in connection with the Fourth Amended Plan and Confirmation are core proceedings under 28 U.S.C. ~ 157(b)(2), 63. The Court may issue the releases and injunction provided in the Fourth Amended Plan under 11 U.S.C. ~ 105 where it is warranted under the facts of the case. Matter of Munford, 97 F.3d 449 (11th Cir. 1996); In re Specialty BoUlt). Co., 3 F.3d 1043, 1047 (7th Cu. 1993); In re A.H. Robins. Co., 880 F.2d 694,702 (4tH Cir.).wI. ~ 493 U.S. 959, 110 S.Ct. 376 (1989); McArthur v. Johns Manville Corn., 837 F.2d 89, 93 (2nd Cir, 1988); In re Drexel Burnham Lnnbert Groun. Inc., 960 F.2d 285, 293 (2nd Cu. 1993) and 138 B.R. 723, m-m (Bankr. S.D.N. Y. 1992). The releases and injunction under Section 105 provided in the Fourth Amended Plan are ~5sary and appropriate to carry out the provisions of Chapter 11, particularly Sections 1123 and 1129. 'Section 105 permits the approval of the release and iSsuance,of the injunction . . . especially where, as here, the Release and Inj~ction provisions are an essential 13 . means of implementing the Fourth Amended Plan as provided in ~ 1123(a)(5). . . .' In re Drexel, 138 B.R. at m. 64. The Court may issue a third party release and an injunction where the facts and circumstances of the case warrant such issuance. In re Soecia1tv Equip. Co.; lll...R Master Mom3,fe Investment Fund. Inc., 168 B.R. 930, 934 (Bankr. W.D.Mo. 1984); In re Robins, JIIIIII, In re Drexel, JIIIIII. In re Davis, 730 F.2d 176 (5th Cir. 1984);.In re 48th Street S_lrttnuse Inc., 835 F.2d 427 (2nd Cir. 1987). The Coun must consider the facts, ci.rcumstanCeS and equities of each case in determining whether to grant the release and issue the injunction to third parties. The five factors in making the determination are (1) whether creditors overwhelmingly have voted to accept the plan, (2) whether the party Ieceiving the release has made a substantial contribution to the estates and the xeorganization, (3) whether the release and injunction are essential to the . plan, and (4) whether there is an identity of interest between the party Ieceiving the release and injunction and the Debtor and (5) whether the plan provides a mechanism for payment of all or substantially all of the claims affected by the injunction. ~ Mort~l!:e. ~. 65. 11 U.S.C. i 524(e) does not prohibit the issuance of third party releases and injunctions. 66. Based on the evidence ~ted at the Confirmation hearing, the foregoing findings, the Claims Purchase Agreement and the withdrawal of all objections by any lessee of these Debtors who timely filed and served an objection and/or was present at the hearing on April 29 , 1998, the issuance of the injunction and release of third parties in the Fourth Amended Plan under the specific facts of the Reorganization Cases is appropriate and is hereby authorized and approved. 67, ~ upon the evidence presented, the absence of any persuasive countervailing evidence, and the Findings of Fact set forth above, all of the provisions of 11 U.S.C. U 1129(a) and (b) have been satisfied. 68. The security interests and liens granted pursuant to the Fourth- Amended Plan, the post-COnfirmation Financing DocumentsZl and the Confirmation Order are valid and fully perfected by entry of the Confirmation Order. No secured party shall be required to file fin2ncU1g statements or other documents, or record or register any documents or agreements with any governmental entity, in any jurisdiction or take any ZI The Post-Confirmation'Financing Documents are those documents which evidence the loan from the Participating Lessors which In-Store agrees to assume pursuant to the Fourth Amended Plan. 14 other action (including obtaining possession) in order to validate, perfect or enforce the security interests and liens granted to them pursuant to the Fourth Amended Plan, the Post-Confirmation Financing Documents and the Confirmation Order. If any secured party, in its sole discretion, shall choose to file financing statements or other documents or record or register any documents or agreements or otherwise confirm perfection of such security interests and liens, the secured party shall be authorized to effect such filings, recordation or registration, and all such financing statements or similar evidence of perfection shall be deemed to have been filed, recorded or registered on the date of entry of the Confumation Order. NOW, THEREFORE, IT IS HEREBY ORDERED AS FOLLOWS: 1. The Fourth Amended Plan as modified as set forth herein is in all respects . hereby confirmed and approved in accordance with Section 1129 of the Bankruptcy Code. 2. All objections to Confirmation, including without limitation, the objections filed by (i) Certain Mississippi pharmacists and Veterinarians, (n) Certain Arkansas CreditorsIPlaintiffs, (ill) Certain Alabama Plaintiffs, (iv) Oklahoma Creditors/Plaintiffs, (v) Western Drug Distributors, Inc., and certain TexaS and New Mexico pharmacists, optometrists and veterinarians, (vi) Baycrest Animal Clinic, P.C., ~ il., (vii) Raymond Manklow, (viii) Certain Nationwide Pharmacists, ~ il., (IX) Cled T. Click, (x) Anthony V. Bass, O.D., P.C., et al., (xi) Douglas C. Clark, et al., (xii) Kenneth CaIpenter, et al., (xiii) Emerald Valley Veterinary Clinic, P.C" et al., and (xiv) Ollinger, have been withdrawn, are overruled or were waived by failure of the objecting party to appear at the Confirmation hearing. 3. The Merger Agreement, the Promotion and Servicing Agreement, the other documents attached to the Fourth Amended Plan and all other agreements, instruments and documents relating thereto and any amendments or modifications which are required or reasonably nect"~ry to consummate the transactions contemplated thereby (collectively, the "Merger Documents") in connection with the merger of the Debtors' and In-Store, are hereby authorized and approved, and the Estates and DCbtors may perform thereunder. 4, Subject to the satisfaction of the conditions precedent to the Merger Agreement, on or within 48 hours of the Effective Date, the Debtors are authorized and directed to close the merger (the "Merger") of the Debtors with In-Store as set fonh in the Merger Agreement and the other Merger Documents. In cOnjunction therewith and with Section 1142 of the Bankruptcy Code, the Debto~, In-Store, the Committee and the Participating Lessors are authorized and directed to execute any and all documents 15 substantially consistent with the Merger Documents which are nec~~ury or appropriate to consummate and effectuate the Merger. The Merger and the terms and conditions set forth in the Merger Documents are hereby authorized and approved pursuant to Section 1129 of the Bankruptcy Code. The entry of this Order shall act as the requisite authorization for the issuance of the Reorganized Debtor Stock in connection with the consummation of the Merger. S. All approvals and consents of the Debtors and their shareholders and partnerS as may be ~ssary to carry out the Plan and the actions authorized by this Order be, and they hereby are, deemed made or done. No further approval of the stockholders, partners or directors will be required to render legally effective the execution and delivery of the Merger Agreement or the consummation of either the . Merger or the other transactions contemplated thereby. 6. To the extent any inconsistencies exist among this Order, the Fourth Amended Plan, the Claims Purchase Agreement and the Merger Documents, the terms of this Order and the findings herein shall control over the Fourth Amended Plan, the Claims Purchase Agreement and all of the Merger Documents; provided that, as between the parties to the Claims Purchase Agreement, that Agreement shall control over this Order, the Fourth Amended Plan, and all of the Merger Documents. The Fourth Amended Plan shall control over the terms of all of the Merger Documents. 7, Except as otherwise provided in any provision of the Fourth Amended Plan, agreements entered into in connection therewith, the Post-Confirmation Fmancing Documents or the Confirmation Order, on the Effective Date all property of each Debtor's Estate, shall revest in the Reorganized Debtcr, free and clear of all Claims, liens, encumbrances and other interests of any Entity, except the liens, claims and encumbrances of the Participating Lessors under the Financing Order. The Reorganized Debtor may thereafter operate its business and may use, acquire and dispose of property without the supervision or approval by the Bankruptcy Court, free of any restrictions of the Bankruptcy Code, the Bankruptcy Rules, and the guidelines and requirements of the Office of the United States Trustee for the Middle District of Florida, other than those restrictions expressly imposed by the Fourth Amended Plan or the Confirmation Order, or agreements entered into in connection therewith. 8. The establishment of the Distribution Trust is hereby approved. De1ain Gray of Price Waterhouse is appointed as the Distribution Trustee and shall serve as such pursuant to an appropriate trUSt agreement (this -Distributio~ Trust Agreement-) as provided in the Fourth Amended Plan. The Distribution Trustee's duties shall be as provided in the Distribution Trust Agreement whi,ch.shall not be inconsistent with the Founh Amended Plan. In the event the Distribution Trustee wants to take an action that 16 is not provided for in the Distribution Trust Agreement or the Fourth Amended Plan, the Distribution Trustee shall seek approval of such action from the Court. The Distribution Trustee shall be paid pursuant to and only to the extent provided in the Fourth Amended Plan without the need for filing a fee application, and, in the event the Committee and the Participating Lessors do not consent to a request for payment of fees by the Distribution Trustee, the Distribution Trustee may seek Coun approval of such fees upon a proper application for such fees. In addition to any rights of inspection granted under applicable state law, the Distribution Trustee shall receive periodic financial statements as may be agreed between the parties and shall have reasonable access to In-Store's books and records to ensure that In-Store is in compliance with the provisions of the Promotion and Service Agreement regarding the distribution of advertising revenues. The Distribution Trustee is authorized to retain counsel in its discretion to pursue objections to claims and preference and fraudulent transfer actions against non-insider parties and parties not re1ated to the Debtors. The Committee is authorized to substitute another Distribution Trustee in place of Price Waterhouse as provided in the Fourth Amended Plan. 9, Except for those assets transferred pursuant to the Merger Documents on the Effective Date, title to all Assets of each Debtor, including, without Hmil2tion, causes of action and the other -Excluded Assets- (as defined in the Merger Agreement), shall be transferred to the Distribution Trust, free and clear of all liens, claims and encumbrances in accordance with Section l129 of the Bankruptcy Code, except the liens, claims and encumbrances of the Participating Lessors. 10. Pursuant to Section 1145 of the Bankruptcy Code, the issuance of the Reorganized Debtor Stock pursuant to the Fourth Amended Plan are exempt from.the registration requirements of Section 5 of the Securities Act of 1933, as amended, and any state or local law requiring registration for the-offer or sale of a security or registration or licensing of an issuer, underwriter, broker or dealer in, such Reorganization Securities. 11. Other than those LesSe<"s and Equipment Owners that timely elected not to be bound thereby and those lessees on Exhibit B attached to the Claims Purchase Agreement, all l~sSe<"s and Equipment Owners are bound by the Promotion and Servicing Agreement. 12. The provisions of the Fourth Amended Plan are and, on the Effective Date, the provisions of each of the Merger Documents and the Distribution Trust Agreement, shall be enforceable in accordance with their respective terms against, and shall bind, the Debtors, any entity issuing securities under the Fourth Amended Plan, any entity receiving property or securities under the Fourth Amended Plan, and any Holder 17 of a Claim against or Interest in any of the Debtors, including, in each case, all successors and assigns of any of the foregoing persons, whether or not the Claim or Interest is impaired under the Fourth Amended Plan and whether or not such Holder has accepted the Founh Amended Plan. 13. Except as otherwise provided in any provision of the Fourth Amended Plan and the agreements entered into in connection therewith, including without limitation the Merger Documents, the Post-Confirmation Financing Documents, the Distribution Trust Agreement or this Order, on the Effective Date, the Distribution Trustee is authorized to perform all of the functions provided for it in the Founh Amended Plan. 14. The provisions of the Fourth Amended Plan shall not apply to the Sellers identified in that c:crtain Claims Purchase Agreement dated as of April 29, 1998 (the. "Claims Purchase Agreement"), to the extent any such Seller becomes an Electing Seller, as that term is defined in the Claims Purchase Agreement, the termS of which are incorporated herein by reference. With respect to the Sellers, the provisions of the Claims Purchase Agreement shall supersede and replace the provisions of the Fourth Amended Plan. 15. It is further ordered that (1) the Reorganized Debtors shall preserve all documents and records of the Debtors for a period of at least one (1) year after the Effective Date of the Fourth Amended P~, and shall not destroy any such documents or records absent an order of this Court entered upon notice to counsel for the Electing Sellers, as that term is defined in the Claims Purchase Agreement; and (2) in the action presently pending before the U.S. District Court for the Middle District of Florida, Tampa Division styled In re Recomm International Dimlay. Inc.. Contract Liti5!:ation (MOL Docket No. 1118), the Reorganized Debtors shall cooperate with the reasonable discovery requests of such Electing Sellers. . ' 16. Except as specifically set fonh in the Founh Amended Plan, effective on the Effective Date: (i) all Persons, including, but not limited to, each of the Debtors and the Estates, each of the l("'~, each of the Participating Lessors, and all individuals or entities that had notice of the Reorganization Cases shall be deemed to unconditionally remise, release, and forever discharge the Participating Lessors, and each of them, and their past and present officers, directors, shareholders, employees, agents, attorneys, parents, subsidiaries, lIffiH"t...s, predecessors in interest (direct or indirect), successors and assigns, and the heirs, executors, tIUSteeS, "rlm;ni~trators, successors and assigns of any such Persons and 1=.nriri~ (hereinafter collectively the "Beleaserl Lessor Parties") but excluding, particularly, David Neff and any other such individual,who is a former employee, officer or director of both (a) the Debtors and (b) a Participating Lessor, of and from any and all manner of actions, causes ofaetion, suits, claims, counterclaims, 18 liabilities, obligations, defenses, and demands whatsoever, at law or in equity, if any, which any of them ever had, now has, or hereafter can, shall, or may claim to have against any of the Released Lessor Parties for or by reason of any cause, matter, or thing whatsoever, arising from the beginning of the world to the Effective Date, relating to the business or operations of the Debtors, the Leases and the Advertising Contracts, provided however, that each Participating Lessor covenants not to pursue any legal action against any assignor or any other party from which it obtained the Leases, or which was in any way involved in such Leases, that would in any fashion result in a Participating Lessee being subjected to suit or demand by such assignor or such other party arising out of or relating to any Lease in which a Participating Lessee claims an interest on the Effective Date, (il) without limiting the generality of the foregoing, the release from and by the Debtors and the Estates set fonh in this pangraph shall specifically include any and all. causes of action, claims, demands, defenses, set-offs and the like under Sections 502(d), 542, 547, 548, 549, S5G, 551 and 553 of the Bankruptcy Code, (ill) the Leases as modified are va1id and binding as between the Released Lessor Parties and Participating lesSl""~ only in accordance with their termS and the obligations of the Participating Lessees thereunder are not subject to any claims, demands, defenses, set-offs and counter<laims; provided that the foregoing provision should not be construed as an acknowledgement or admission by the I "'SI""~ as to the validity of the Leases as between any parties other than the Released Lessor Parties and the Participating Lessees, and, except as provided by the Fourth Amended Plan, this Release shall not affect the claims of the Les~s against any individual or entity resulting from either the Leases or any other lease, and (iv) each of the les5e'"s releases any causes of action, claims, suits, counterclaims, liabilities, obligations, defenses, and demands whatsoever, in law or in equity, if any, against the Released Lessor Parties with respect to the revised Leases resulting or arising out of actions, activities, or events occurring prior to the Confirmation Date, relating to the business or operations of the Debtors, the_.Leases and the Advertising Contracts. 17. Except as specifically set forth in the Fourth Amended Plan and except for the obligations of the Participating le55e'"5 under the modified Leases, effective on the Effective Date: (i) each of the Debtors and the Estates and each of the Pirlicipating Lessors shall be deemed to unconditionally remise, release, and forever discharge the Participating le5S1""~ and their past and present officers, directors, shareholders, employees, agents, attorneys, parents, subsidiaries, affiliates, successors and assigns, and the heirs, executors, trustees, administrators, successors and assigns of any such Persons and Entities (hereinafter collectively the "Rel~<HI Lessee Parties"); of and from any and all manner of actions, causes of action, suits, claims, counterclaims, liabilities, obligations, defenses, and'demands whatsoever, at law or in equity, if uy, (except as specifically set forth herein and except for the obligations of the Participating Lesyo.es under the modified Leases) which any of them ever had, now has, or hereafter can, shall, 19 or may claim to have against any of the Released Lessee Parties for or by reason of any cause, matter, or thing whatsoever, arising from the beginning of the world to the Effective Date, relating to the business or operations of the Debtors, the Leases and the Advertising Contracts and (n) without limiting the generality of the foregoing, the release from and by the Debtors and the Estates set forth in this Section shall specifically include any and all causes of action, claims, demands, defenses, set-offs and the like under Sections 502(d), 542, 547, 548, 549, 550, 551 and 553 of the Bankruptcy Code. 18. Except as specifically set forth in the Fourth Amended Plan, effective on the Effective Date, all Persons, including, but not limited to. all individuals or entities that had notice of the Reorganization Cases. each of the Debtors, Estates, Lessees and each of the Participating Lessors and each Creditor shall be deemed to unconditionally remise, release, and forever discharge the Committee and their attorneys and other professionals retained under Section 327 of the Bankruptcy Code, successors and assigns, and each of the officers, directors, and employees of the Debtors identified in Exhibit I attaChed hereto and the Debtors' attorneys and accountants retained in the Reorganization Cases under Section 327, and the heirs, executors, trustees, administrators, successors and assigns of any such Persons and Entities (hereinafter collectively the "Released Estate Parties"), of and from any and all manner of actions, causes of action, suits, claims, counterclaims, liabilities, obligations, defenses, and demands whatsoever, at law or in equity, if any, which any of them ever had, now has, or hereafter can, shall, or may claim to have against any of the Released'Estate Parties for or by reason of any cause, matter, or thing whatsoever, arising from the beginning of the world to the Effective Date, relating to the business or operations of the Debtors, the Leases and the Advertising Contracts. 19. Except as expressly.set fonh in the Fourth Amended Plan and except for the obligations of In-Store under the Fourth Amended Plan, the Confirmation Order, the post-confirmation financing documents, and the Merger Documents, effective on the Effective Date, each of the Debtors and the Estates and each of the Participating Lessors and each of the Participating US5e"'~ shall be deemed to unconditionally remise, release and forever discharge In-Store and its past and present officers, directors, shareholders, employees, agents, attorneys, parents, subsidiaries, affiliates, successors and assigns, and the heirs, executors, trustees, administrators, successors and assigns of any such person and entities that have been identified to the Participating Lessors, the Debtors and the Committee prior to the Effective Date (hereafter collectively the "Released In-Store Parties"); of and from any and all actions, causes of action, suits, claims, counterclaims, liabilities, obligations, defenses and demands whatsoever, at law or in equity, if any. which any of them ever hid.. now has or hereinafter can, shall, or may claim to have against any of the Released In-Store Parties for or by reason of any cause, matter, or thing whatsoever, arising from the beginning of the world to the Effective Date, relating 20 to the business or operations of the Debtors, the Leases and the Advertising Contracts, provided that the release by the Debtor and the Estates shall be effective only as of the Effective Tune as that term is defined in the Merger Documents. This release as so qualified shall include, but sha1l not be limited to, any amounts claimed to be owing from In-Store to the Estates for the period after the filing of the bankruptcy petition and before the Effective Date. 20. Without limiting the generality of the foregoing releases, all Persons, including but not limited to, each of the Debtors, the Estates, the l~s~, the Creditors, the Released Estate Parties and the Participating Lessors expressly release any and all " claims and defenses in connection with the matters released about which the parties do not know or suspect to exist in their favor, whether through ignorance, oversight, error, negligible or otherwise, and which, if known, would mat.erial1y affect their decision to enter into these releases, and to this end each of them, therefore, waives any and all rights under Section 1542 of the Civil Code of California (or any similar law, provision or statute of any state) which states in full as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor, " All Persons including but not limited to, each of the Debtors, the Estates, the Lessees, the Creditors, In-Store, and the Participating Lessors shall be deemed to have knowingly and willingly waived-the provisions of Section 1542 (or any similar law, provision or statute of any state) and acknowledges and agrees that this waiver is an essential and material term of the releases contained in this Fourth Amended Plan. Each party has been afforded the opportunity to review these releases with such parties' legal counsel, and such party understands and acknowledges the significance and consequence of these releases and of the specific waiver of Section 1542 of the Civil Code of California (or any similar law, provision or statute of any state), Notwithstanding anything else to the contrary, no claims of the Debtors, the Estates or of any person shall be released as against Jean Francois Vincens, Raymond Manklow, Kent Runnells, and the Hampton, Stoddard law firm. The Released Lessee Parties, the Released Lessor Parties, the Released Estate Parties and the Released In-Store Parties are collectively referred to herein as the "Released Parties. " 21. Except for the Tranche A DIP Financing, the Tranche B DIP Financing, the post-confirmation financing documents, and excq>t as otherwise provided in the 21 Fourth Amended Plan, and agreements entered into in connection therewith or the Confirmation Order: a. On the Effective Date, each Debtor shall be deemed discharged and released to the fullest extent permitted by section 1141 of the Bankruptcy Code from all Claims that arose prior to the Effective Date, including without limitation all Secured Claims and Unsecured Claims, and any interest accrued on such Claims from and after the Petition Date, against each Debtor and Debtor in Possession, or any of their assets or properties, and all debts of the kind specified in sections 502(g), 502(h) or 502(i) of the Bankruptcy Code. The discharge and release shall be effective in each case whether or not: (a) a proof of such Claim or Administrative Claim is Filed or deemed Filed pursuant to section 501 of the Bankruptcy Code, (b) the Claim or Administrative Claim is allowed pursuant to the Bankruptcy Code, or (c) the Holder of the Claim or Administrative Claim has acx:epted the Fourth Amended Plan; b. All Persons shall be permanently enjoined by section 524 of the Bankruptcy Code from asserting against the Reorganized Debtor, its successors, or its assets or properties any other and further Claims or Administrative Claims based upon any act or omission, transaCtion, or other activity of any kind or nature that occurred prior to the Confirmation Date. The discharge shall void any judgment against a Debtor or Reorganized Debtor at any time obtained to the extent that it relates to a Claim or Administrative Claim discharged; c. On or after the Effective Date, all Persons who have held, currently hold or may hold a Claim discharged or rerm;n:ltP1'l pursuant to the termS of the Fourth Amended Plan shall be permanently enjoined by section 524 of the Bankruptcy Code from taking any of the following actions on account of any such discharged Claim, except to the extent necessary to enforce the terms of this Fourth Amended Plan: (a) commencing. or continuing in any manner any action or other proceeding against a Debtor, Reorvn;7e<! Debtor, its successors, assets or properties; (b) enforcing, attaching, collecting or n:c:overing in any manner any judgment, award, decree or order against a Debtor, Reorganized Debtor, its successors, assets or properties; (c) creating, perfecting or enforcing any lien or encumbrance against a Debtor, Reorganized Oebtor, its successors, assets or properties; (d) asserting any setoff, right of subrogation or recoupment of any kind against any obligation due to a Debtor, Reorganized Debtor, its successors, assets or properties; or (e) commencing or continuing any action in any manner in any place that does not comply with or is inconsistent with the provisions of the Fourth Amended Plan or the Confirmation Order. Any Person violating such injunction may be liable for~tual damages, including costs and attorneys' fees and, in appropriate circumstances, punitive damages; 22 , d. On or after the Effective Date, all Persons who have held, currently hold or may hold a Claim discharged pursuant to the terms of the Fourth Amended Plan shall be permanently enjoined by section 524 of the Bankruptcy Code from commencing or continuing in any manner any action or other proceeding against any party on account of a Claim or cause of action that was property of the Estate, and all such Claims and causes of action shall remain exclusively vested in the Distribution Trustee to the extent such Claims and causes of action were vested in the respective Debtor in Possession; and e. The discharge, releases and injunction provided for herein shall not affect the right of any Person to ehforce the tenI1S of the Fourth Amended Plan or to commence any action or proceeding to collect the distributions required under the Founh Amended Plan. 22. As of the Effective Date, all Persons, including but not limited to, all L~5~S and all individuals or entities that had notice of the Reorganization Cases are permanently enjoined from asserting against the Rele3se<J Lessor Parties, the ReleacM Estate Parties and the R..l_voti In-Store Parties, and their successors, or their assets or properties any other or further claims or causes of action based upon any act or omission, transaction, or other activity of any kind or nature that occurred prior to the Effective Date. On and after the Effective Date, all Persons who have held, currently hold or may hold a claim or cause of action released punuant to the tenI1S of the Fourth Amended Plan are permanently enjoined from taking any of the following actions on account of any such released claim or cause of action, (a) commencing or continuing in any manner any action or other proceediJlg against a Distribution Trust, Distribution Trustee, Participating Lessor, Released Parties, their su~ssors, assets or properties; - (b) enforcing, attaching, collecting or recovering in any manner any judgment, award, decree or order against a Distribution Trust, Distribution Trustee, Participating Lessor, Released Parties, their successors, assets or properties; (c) creating, perfecting or enforcing any lien or encumbrance against a Distribution Trust, Distribution Trustee, Participating Lessor, their successors, assets, or properties, (d) asserting any setoff, right of subrogation or recoupment of any kind against any obligation due to a Distribution Trust, Distribution Trustee, Participating Lessor, Released Parties, their successors, assets or properties, or (e) commencing or continuing any action in any mariner in any place that does not comply with or is inconsistent with the provisions of the Fourth Amended Plan or the Confirmation Order. Any Person violating such injunction may be in contempt of court and may be liable for actual damages, including costs and attorneys' fees, 23. The foregoing releases and injunction shall be effective, in each case whether or not (a) a Proof of Claim or Proof of Interest based on such Claim, Administrative Claim, or Interest is Filed or deemed Piled pursuant to Section 501 of the 23 Bankruptcy Code, (b) a Claim, Administrative Claim, or Interest is allowed pursuant to the Bankruptcy Code, or (c) the holder of a Claim, Administrative Claim, or Interest has accepted the Fourth Amended Plan, 24. The requirements of the Fourth Amended Plan and the agreements entered into in connection therewith, including without limitation the Merger Documents and the Distribution Trust Agreement, are binding upon and govern the acts of, and are enforceable against, all Persons including, without limitation, all holders of Claims, Administrative Claims and Interests, all filing agents or officers, title agents or companies, recorders, registrars, lltlmini~trative agencies, governmental units and departments, agencies or officials thereof, secretaries of state, and all other Persons who may be required by law, the duties of their office, or contract to accept, file, register, record or release any documents or instruments, or who may be required to report or ' insure any title or state of title in or to any of the assets of the Debtors. 25, In consideration for the classifications, releases, distributions and other benefits provided under the Fourth Amended Plan, the provisions of the Fourth Amended Plan and the agreements read into the record at the Confumation hearing constitute a good faith resolution of all Claims or controversies pursuant to the Fourth Amended Plan. 26. None of the Debtors, the Committee, the Participating Lessors, In-Store, nor any of their respective officers, directors, partners, employees, members or agents, nor any Professional Persons, attorneys, accountants or other professionals employed by any of them, shall have or incur any liability to any Person for any act taken or omission made in good faith in connection with or related to formulating, implementing, issuing, executing, confirming, or consummating the Fourth Amended Plan (including soliciting acceptances or rejections thereof), the Disclosure Statement or any contract, instrument, security, release or other agreement or document entered into in connection with the Fourth Amended Plan, including without limitation of the Merger Documents, or in connection with or related to any distributions made pursuant to the Fourth Amended Plan, except as expressly provided in such contract, instrument, release or other agreement or document entered into in connection with the Fourth Amended Plan, including without limitation each of the Merger Documents and each of the Post- Confirmation Financing Documents. 1bis paragraph shall not, however, excuse or release any other Person with respect to any such activity (including, but limited to, activities relating to solicitations of acceptances or rejections of the Fourth Amended Plan). 27. Except for claims to enforce the Participating Lessors' obligations under the Fourth Amended Plan and this Order, the Distribution Trustee shall not pursue any 24 Claim. contention, cause of action, adversary proceeding or objection to Claim against any of the participating Lessors, including, without limitation, any objection to any Claim of any of the Participating Lessors on the ground that any of the Participating Lessors' Claims is unenforceable or with respect to any actions taken by any of the Lenders consistent with this Order. 28. The Fourth Amended Plan is modified to provide that the charters of each of the Debtors are hereby amended to prohibit the issuance of non-voting equity securities, As of the Effective Date, all Interests in the Debtors will be deemed canceled, annulled and of no further force and effect. 29. On the Effective Date, the obligations created by the Post-Confirmation Financing Documents are secured by valid and perf~ first priority security interests. and liens on the assets of In-Store and the Reorganized Debtor as described in such documents and subject to the permitted encumbrances authorized thereon, and each of the foregoing documents and agreements, including nonmaterial modifications thereto, are valid and binding obligations of In-Store and the ReoIVn;7ecj Debtor, fully enforceable in accordance with their terms; provided they do not substantially contradict the express terms of the Fourth Amended Plan. 30. The security interests and liens granted pursuant to the Fourth Amended Plan, the Merger Documents, the Post-Confirmation Financing Documents and this Order are valid and fully perfected by entry of this Order. No secured party, whether Participating Lessor or otherwise, shall be required to file financing statements or other documents, or record or register any documents or agreements with any governmental entity, in any jurisdiction- o~ any other action (including obtaining possession) in order to validate, perfect or enforce the security interests and liens granted to them pursuant to the Fourth Amended Plan, the Merger Documents, the Post-Confirmation Financing Documents and this Order. Any secured party, in its sole discretion, may choose to file financing statements or other documents or record or register any documents or agreements or otherwise confirm perfection of such security interests and liens, and any secured party is authorized to effect such filings, recordations or registration. All such financing statements or similar evidence of perfection shall be deemed to have been filed, recorded or registered on the date of entry of this Order. All officers charged with accepting any of the foregoing for filing are hereby ordered and directed to accept any of the foregoing for filing to be deemed filed as of the date of entry of this Confirmation Order. 31. The Estates and all of their assets and liabilities nave been ordered pooled and substantively consolidated into a single Estate. Aq Claims against any of the Debtors shall be deemed Claims against the consolidated Estate. No Creditor shall be entitled to 2S more than one recovery on account of a Claim against more than one of the Debtors' Estates and such Creditor's ttJ:;Overy against the consolidated Estate shall be so limited. Any and all intercompany claims and liabilities of any kind are eliminated. 32. Except as otherwise provided in the Fourth Amended Plan, in this or any prior order of this Bankruptcy Court, or in any contract, instrument, release, or other agreement or document entered into in connection with the Fourth Amended Plan or the Reorganization Cases, each executory contract or unexpired lease of a Debtor (which does not include Leases between the Participating Lessors and their respective Lessees) that is not or has not previously been assumed by order of this Bankruptcy Coun or is not assumed pursuant to this Order, including without limitation, (1) any Advertising Contracts, (2) all contracts, leases or agreements of any general or limited partnerships in which a Debtor was formerly a general partner, and (3) any contract or lease of a . Debtor that has expired by its own terms before the Confirmation Date, is hereby rejected as of the Effective Date. 33. Pursuant to Section IV.B.4 of the Fourth Amended Plan, if the rejection of an executory contract or unexpired lease pursuant to Section IV.B of the Fourth Amended Plan gives rise to a Claim by the other party or parties to such contract or lease, the Claim arising from the rejection shall be forever barred and shall not be enforceable against a Debtor, its successors or properties, unless a Proof of Claim is Filed within 30 days after the date of noti~ of entry of an order of the Bankruptcy Court rejecting the executory contract or unexpired lease, including, if applicable, this Order. 34. The Distribution Trustee or its designee or assignee or such other Person(s) as may be approved by the Bankruptcy Court shall act as Disbursing Agent(s) under the Fourth Amended Plan. In addition to those Persons set forth in. the Fourth Amended Plan, any such Disbursing Agent may, with the prior approval of the Committee, employ or contract with other Persons to assist in or to perform the distribution required. Each Disbursing' Agent shall serve without fidelity bond, and each third-party hired as a Disbursing Agent shall receive from the Distribution Trustee, on terms acceptable to the Distribution Trustee without approval of the Bankruptcy Coun, reasonable compensation for distribution services rendered pursuant to the Fourth Amended Plan and reimbursement of reasonable out-of-pocket expenses, including fidelity bond premiums, if required, incurred in connection with such services. The Distribution Trustee is authorized to pay appropriate retainers to any professionals retained by the Distribution Trustee or the Committee, to the extent the Distribution Trustee has funds available for such payments. 35. With respect to the Reorganization Cases of the Additional Debtors, Creditors holding a scheduled claim which is not listed as disputed, contingent or . 26 unliquidated as to amount may, but need not, file a proof of claim. However, Creditors of the Additional Debtors whose claims are scheduled as disputed, contingent or unliquidated as to amount and who desire to participate in the cases or share in any distribution must file their proofs of claim on or before July 15, 1998. Any creditor who desires to rely on the schedules has the responsibility for determining that the listing is accurate. Creditors who have already filed a proof of claim do not need to file another. 36. All claims or causes of action held by the Distribution Trustee shall be Filed within ninety days of the Effective Date. 37. All objections to Claims shall be Filed and served on the holders of such Claims by the later of (1) 180 days after the Effective Date, or (2) 180 days after the particular Proof of Claim has been filed, except as extended by an agreement between the claimant and the Committee or Distribution Trustee, or by order of the Bankruptcy Coun upon an application Ftled by the Committee or the Distribution Trustee. As provided in Section VI.K of the Fourth Amended Plan, notwithstanding any prior order of the Bankruptcy Coun or the provisions of Bankruptcy Rule 9019, the Committee or the Distribution Trustee may settle or compromise any Disputed Claim to the extent set forth in the Fourth Amended Plan. The Distribution Trustee may settle any action or Claim requiring a payment by the Distribution Trust or involving a payment to the Liquidating Trust in the amount of $50,000 or less without need of Bankruptcy Coun approval; provided however, the Distribution Trustee shall not settle any controVersy with any Insider regarding more than $10,000 or requiring a payment by the Liquidating Trust of more than $5,000 except by Bankruptcy Court approval of such settlement. 38. The oral and written motions of the Plan- Proponents to modify the Fourth Amended Plan are granted. Section XI.E is modified to provide that a confirmation order must be entered on or before June 1, 1998 and the Effective Date must occur on or before July 1, 1998. 39. Notice of the entry of this Order shaIl be mailed by the Plan Proponents to all holders of Claims against and Interests in the Debtors as of the Effective Date, and such other parties as are entitled to such notice pursuant to the Bankruptcy R:u1es. Such mailing shaIl occur within 20 days after the Effective Date, No publication of this Notice shaIl be required. Recordation of the Notice approved by this paragraph shall constitute constructive notice of the entry of this Order. 40. Pursuant to Section 1146(c) of the Bankruptcy Code, the creation of any mortgage, deed of trust or other security interest, including deeds of trust and financing statements granted by the Debtors and/or the In-Sto~, the making or assignment of any lease or sublease; or the making or delivery of any deed or other instrument of tranSfer 27 or merger under, in furtherance of, or in connection with the Fourth Amended Plan, including any deeds, bills of sale, deeds of trust, financing statements, or assignments executed in connection with the Fourth Amended Plan, agreements entered into in connection therewith, including without limitation the Sale Documents, or this Order, including the transfer of the Assets as provided in the Fourth Amended Plan, shall not be subject to any stamp tax or similar tax. 41. The Holders of Interests in the Debtors are not entitled to receive any payments from the In-Store or the Reorganized Debtor. Subject to court approval, Robert Kellish and Sandra Braddock are entitled to receive payments in accordance with the terms of the agreement attached as Exhibit I to the Disclosure Agreement. 42. All unclaimed distributions under Section X.C of the Fourth Amended Plan shall be fo.rfeited and such distributions together with, all interest earned therein and shall be distributed in accordance with the provisions of the Fourth Amended Plan. 43. As of the Effective Date, the pro>liminllry injltnction entered by the Bankruptcy Court in OJ)tical TechnolOlrles Inc.. et al. v. LeWd Pharmacy. me.. et al., Adversary Proceeding No. 96-202, on March 1, 1996 shall be dissolved. 44. The Debtors, the Committee, the Distribution Trustee, the Participating Lessors and In-Store are authorized and directed to take all actions necessary or appropriate to implement the Fourth Amended Plan, the Merger Documents and the Post- Confinnation Financing Documents in accordance with their respective terms, including, without limitation, to execute and deliver, or cause to be executed and delivered, the Merger Documents, the Post-Confinnation Financing Documents and the Merger..Irust Agreement and all agreements and documents contemplated ltnder or in connection with such documents. 28 45. This Bankruptcy Court hereby retains jurisdiction over the Reorganization Cases as set forth in Article XII. of the Fourth Amended Plan including, but not limited to, the enforcement (by any means necessary, including the use of the Coun's contempt powers, as appropriate) of this Order, the Claims Purchase Agreement and the Fourth Amended Plan, including, but not limited to, the releases and injunction contained herein and in the Fourth Amended Plan. DONE AND "/I "--"j /" ClA.d- . :;>..1k ORDERED at Tampa, Florida this ......:2: day of ,1998. u~~ ~ l-'/~ ALEXANDER L. PASKAY Chief Bankruptcy Judge 29 I Certify the foregoIng to be true and COrrect C CARL R oPY of the original . STEWARi. CLERK U. S. BANKRUPTCY COURT ---/..-L CiJ:;::Z ~ ^o/Yd' By _ ~~.) . Deputy Clerk EXHIBIT 1 Braddock, Sandra Pledger, Tracy Kellish, Bob Dortch, Susan Garcia, Lucy Wicker, Betsy Crimme, Danielle Burnside, Walter Willet, Leo Kirk, Greg Daly, Bryan Smith, Steve Pacich, Mark ~rk, Eric Smith, Rand Wells, Susan Wilder, David Finger, Tad Longno, Steve Turbiville, Albrey Willsey, Deanna Phillips, Steve Grindstaff, Beth EXHIBIT "C-l" ~BellAUanflc lIiCon Leasing Vr'dor Service Division VENDOR (NAME & ADDRESS) I I RECOMM INTERNATIONAL DISPLAY LTD. I~N~" .~ / ,I t8 f/JLj SCHEDUlE OF ~YMEIITS ~ONTHlY PAYMENTS OF $ 298 . 20 L ~ (opp/ltabIe west. be bltIed) EQUIPMENT DESCRIPTION: RECOMM VOX APOTHECARY Serial Number: '55~ EXCEPT AS OTHERWISE INDICATED BelOW: o QUARTERlY o OTHER ----PAYMENTS OF $ EQUIPMENT lOCATION IF OTHER THAN BelOW. (opp/ltabIelallestobebiled) ~YA8U AT SIUOOl OF THE lEASE [cIIIct 11III o SECIlRITYDEPOSIT PER PARAGRAPH 5 $ ~RST AND lAST - 0 - JOTAl PAYMENT $ 298 . 20 o OTHBI Dear lessee: We have written this lease in Plain language because we want you to fully understand its terms. Please read your copy of this lease carefully and feel free to uk us any questions you may have about it We use Ih8 wonIJ ~ and m!!: to mean the lessee Indicated below. The WOrds !!..!!!. and!!![ refer to the lessOr Indicated below. l. LEASE ASREEMEIIT: You agree to lease from us and we agree to lease to you the equipment listed above, which you agree will be used for business purposes only. You promise to pay us Ihi sum of all of the rental payments Indicated on the schedule above aridlor attached, which sum cai\.be calculated by multiplying the numtier of payments times the payment amount Indicated on the sChedule(s). 2. ORDERING EQUIPMEIIT: You request that we lUTIllQe delivery to you at your expense. lithe equipment hu not been delivered, Installed, and accepted by you within forty- five (45) days from the date that we ordel8d the equlllll18lll. we may on ten (to) days written notice to you termlnate the lease and our obligations to you. In the event that we have issued a purcllase contract or order for the llqIIlpment, you agree that the purchue order or contract Is acceptable to you. II you have entered Into a purchase contract for the equipment, you agree to us!gn It to us, effectIVe when we pay for the equipment . _ _. . . 3. NO WARRAIlTIES:WI n IaaInIlIII...... JlII.AS IS". WE MAKE NO YtlUlRANTlES. EXPRESS OR IMPlIED.INCI.UDII8 \\lUIRAII1IO OF RTNESS FOR A .PARllCUW PURPOSE OR ORDINARY USE IN CONIIECTIIN WITIOHISI.EKSE.IlIhe Vendor oranyone else hu made a representation or warranty to you u to the equipment or any other matler, you agree that any sucb representation or warranty shall not be binding onus, IIOr shall the breach of such relieve you of. orin any wrty affect. any of your Obligations to us under this lease. If the equipment Is not satisfactory for any reason, you shall make yo.ur claim only against the VendOr and you shall nevertlleIess pay us all rent payable under this lease. So long as you are not in default under any of the terms of this lease. we transfer to ~u any warranties made to lIS by the Vendor, minUfacturer or supplier. You understand and agree thatlhe Vendor, Its agents and emDlovees anllIOt aaents of ours,. nor are authorized to waive or chanGe any term or COndition. of this lease. YOU ASllCE THAT. REGARDlESS OF CAUSE. YOU WR.L IIOT ASSSlT AHY ClAIM WIIAT8tIEVEII A8AIIlST US FOR lOSS P80RTS YOU EXPECTEII TOIIAKE DR AHY OTHER DIRECT, SPECIAl DR IIlOIRECT DAMASE& If you have entered Into a maintenance agreement with ~ to the equipment and the cost 01 such maintenance agreement Is to be paid by us to the Vendor or someone elsft, then y,ou acknowledae thai ~ shall not be responsible lor Iha servbl. repairs, or maintenance of ail equipment, thal.we ani not a party to any sucn maintenance agreement, and even If you have a dispute regarding maintenance or service you will continue to pay us all rental ai1cf maintenance payments due under this leue and a}1 ~ules to this lease. . . , 4. NON.cANCEWBtE LEASE: ThIs lease canllOt be cantt!lflI:l by you. . SEE REVERSE SIDE fOR ADllITNlNAllBlMS AND COHIIlTIONS WHICH ARE PART OF THIS lEASE. ACCEPTED: 8Iif AlIInllc iICen I.ealag __lIIIIr 95 North Route 17 South, Paramus, NJ 07652 lfSS& 1FW.UlW.1WIEI /'6'.I1JatJS75' I'LI1t1E toHlla/rUI(!..v, /..vC... 'Lb 9 /Jt;;N /UJSG" I'LM!..13 .. ~~'-I.sl..G (!,v/YTBGI'V...AN{) PI( /rtJ/3 ::NO.i"7, LL1J~3g3 IlA1llt ~ /W/9:L lI' Tm.E ~. rrm=.~BllNNTSlWl.IIEUSBIfOIlllUSlNESS IIJIIIOS8 All AIEl TUI' . BY ~ IFfS1lIEUIIDI"._III~~~ ~~~ Tm.E PRIIT _ f'l..a A/ A ~ 0 L., Cl!) rY} UII/6' PERSOIW. GUARAIlTY 1 guarantee that the lessee Will make ali payments and pay all the olhei charges required under this lease when they are due and will perform all other obligations under the leue fully and promptly. I also agree that you may make other arrangements with the lessee and I wHl stili be responsible for those payments and other obligations. You. do not have to notify me if the lessee falls to meet all of its obligations under the lease. If lessee fails to meet all of its obligations, I will immediately pay in accordance wilh the default provisions of the lease all sums due under the original terms of the lease and will perform all other obligations of lessee under the leue. I will reimburse you lor all the expenses you incur in enforcing any of your rights against the lessee or me, including allomey lees. If this is a corporate guaranty, it is authorized by the Board of Directors of the guaranteeing corporation. If this is a partnership guaranty, ills authorized under the partnership agreement THIS GUARANTY SHAll BE GOVERNED BY THE lAWS OF THE SmTE OF NEW JERSEY. I AGREE AND CONSENT THAT THE COURT OF THE STm OF RORIOA FOR BROWARO COUNTY OR ANY FEDERAL DISTRICT, COURT HAVING JURISDICTION IN THAT COUNTY SHAlL HAVE JURISOlCnON AND SHAU BE PROPER LOCATION FOR THE DETERMINATION 'oF DISPUTES ARISING UNDER THIS tEASE. 1 agree and consent that you may serve me by registered or ce " mail. which wil e s iii . nt obtain jur' 'clion. I waive. trial by jury in any act~~ J. . I ' X /,.:. ,<:;I'U)A~ L . ~~ {l).c q\..-- WITNESS SlGNATUIlE DoIIBl P8lSOIlAI. GUAIWITOR SIGN.II\IftE DAIEIl X BY DAre--.lal \..q 1,. WlTMESS SIGNAIURf X DoIIBl f'6lS(IIlAL GUAIWITlIIt SIGHAIUAE DAlEO 5. TERM OF lEASE. AOMINISTRATlVE FEE: The lease term will start on the date that any equipment is'delivered to you or your agent rthe Commencement Datej and will continue until you have met all of your obligations under the lease. Advance ~entals are nO,t refuooable if the lease does not beGin for,any reason. The pa~mel)ts of rent are payable periodi~ly in advance as stated above or on any schedule to this lease. The first payment IS due on the Commencement Date. 'fou Will be notified In Writing If we change the date of your first payment. Thereafter, consecutive periodic payments will be due on the same day each period indicated on the reverse side. All payments will be made to us at our address on this lease. or at another address which we would designate in writing. Your Obligation to,pay rentaJs to us is unconditional. and is nol subject to any red!lCtion, set-off. defense, or counterclaim for any reason whatsoever. You authorize us to insert serial numbers and other Identification data about the equipment. as we/I as other omitted factual matters. If we accepted a security deposit from you, it will be held by us to secure your faithful performance of this lease, and it will be returned or applied as stated in Paragraph 14. You shall pay to us a one-time administrative fee of $25.00 (or, if we notify you, some alternative amount not 10 exceed $45,00) to reimburse us for our start-up administrative costs. &. ASSIGNMENT: Yau may naI nil, lI1nsfer, wlgn or subleau the equipment. We may, wIII1auI nalllYlng yuu, u1llSllgn or lnlllfer UIIa '- Ind IWIlIrIhlp IIIlhe equlPftlllll: and you agree lIIat If we do 10, lIIe new' IIIIlII' will bave lIie ame righlland benefltJ lIIat WI naw have. and tfIe new IIIIlII' will naI have to perform any III our obIlgaUlIllL Yau agree thallhe righll III the new lessor will naI be sublect to any cfall1l$, defensa orsllotts that you may have aglll1ll UI. However, any such wlgnment. SlIe. or lnIIIfer 0/ Uils lease or Iht equlpmlnt wlfl not relieve us of our obIlgaUons to yau under lids lease. 7. OWNERSHIP AND QUIET ENJOYMENT: We are lhe owner of the equipment and have title to the equipment. If any other person attempts to claim ownershir of the equipment by asserting that claim against you or through you, you agree. at your expense, to protect. and de,fen~ our title to the equipment. Further. you agree Iha~ you wil at all times keep the equipment free from any legal process or lien, wh~tsoever. and you shall give us ImlJ!edlate notice If .any legal process or lien IS asserted or made against the equipment. So long as you are not in default under any of the terms In thiS lease. we agree that you shall qUietly use and enloy the equipment. 8. CARE. USE AND LOCAnON: lOSS OF EQUIPMENT: You are responsible for installing and keeping the equipment in qood working order and repair. You are responsible for protecting the equipment from damage, except for ordinary wear and tear and from any other kind of loss while you have the equipment or while it is being delivered 10 you. Even if the equipment is dama~ed or I~st: you agree to continue to pay rent. You will keep. and use the equipment ~nly at your add~ shown above" and you, will only use it for bu~iness purposes and in compliance With all applicable laws. You will not make any alterations to lhe equipment WithOUt our prior written consent (which we Will not unreasonably Withhold), nor Will you permanently attach the equipment to your real estate. You agree that you will not remove the equipmenl from that address unless you get our written permission in advance. At the end of the term of lease, you will return the equipment to us, at your expense. S. TAXES AHO FEES: You agree to pay when due all taxes, fines and penalties relating to this lease. You also agree that we have the right each year to estimate the yearly personal property taxes that will be due for the equipmenl and that you will pay us the estimated taxes when we request payment. " we fay any of those taxes, fines or penalties for you, you agree to reimburse us on demand. You also agree that we have the right to sign your name to any document for the purpose 0 such filing, so long as the filing does not interfere with your right to use the equipment. 10. INDEMNITY: We are not responsible for any inl'uries or losses to you or any other person caused by the installation or use of the equipment. You agree to reimburse us for and to defend us against any claims for such losses or njuries. This indemnity shall continue even after the term 01 this lease has expired. II. INSURANCE: You agree 10 keep the equipment fully insured agail1llloss Until. you have met all your obligations under this lease. You agree to obtain a general public liability insurance policy, covering both personal injury and property damage, from anyone. who is acceptabli to us and to include us as an insured on the policy. You agree to provide us with certificates or other evidence of Insurance acceptable to us. If any insurance proceeds are paid as a result of any such loss or damage to the equipment, you agree that such insurance proceeds shall be paid to us 10 satisfy your rental obligations under this lease. " the equipment Is either lost or totally destroyed, and you are not in default uilder the terms of this lease, instead of continuing to pay us rent you have the option of paying us the then present value of both the unpaid flaIance of the remaining rent under this Lease and the value of our residuallnlerest in the equipment. eaCh computed with a discount rate of six (6%) percent per year. . 12. DEFAULT AHD REMEDIES: "y.ou do not pay rent when due or if you break any of your promises under this lease, or you become insolvent. assign your assets for the benefit of your creditors, or enter (voluntanly or involuntarily) a bankruptcy proceeding, you wiIi be in default If your default is caused by your failure to make any payment when due, we ean require that you return the equipment to us and pay to us the remaining balance of all of the rental payments due under this lease, present valued using a six (6%) percent per year discount rate. If you fail to return the equipmenl to us, in addition we can also require that you pay to us our residual Interest in the equipment. present valued as noted above. You also agree to pay us interest on all sums due us from the date of default until paid at the rate 01 one and one-half (1-1/2%) percent per month, but only to the extent permitted by law. " your default is caused by your breaking any of your other promises under this lease, we shall be entiUed to recover Irom you all damages caused by that tVpe of default We can also use any of the remedies available to us under the Uniform Commertial Code or any other law. If we refer this lease to an attorney for enforcement or collection, you agree to pay our reasonable allomey's fees of at least 20% of the remaining balance 01 ail the rental paymen\S, and actual costs. If we have to lake possession of the equipment. you agree to pay the cost of repossession, storing, shipping, repairing and selling the equipment. Although you agree that we are no! obliQated to do so, if we. decide to sell the equipment and we are able to sell the equipment for a price that exceeds the sum of (a) our cost of repossession and sale of the equipment and (blthe residual value of the equipment. present valued as calculated above, then we shall give you a credit for the amount of such excess. You agree that we do not have to notify you that we are selling the equipment. 13. OTHER RIGHTS: You agree that any delay or failure to enforce our rights under this lease does not prevent us from enforcing any rights at a later time. Both parties intend this lease to be a valid and legal dOCUlMl1l, and agree that if any part Is determined to be unenforceable, all other parts will remain in full force and effeclII lhis documenl is not found-to-lle a lease, then you granl,Us a security interest in the equipment You also give us the right to immediately file, at your expense, any Uniform Commercial Code ruCC'1 financing statements or related filings, as well as the right to sign your name to any such filings that we make. 14. REDELIVERY DF EQUIPMENT: In the event you do not decide 10 purchase the equipment~rdi to the terms of any Purchase Option Letter that we have issued to you, Ulcn when this lease expires, or is terminated earlier, you shaa d'1SCOnnect, property package for andretum the equipment, lreight prepaid,to us, in good repair, condition and WOrking order, normal wear and tear excepted, to a location designated by us. If upon expira or termination, y.ou do nol immediately return the equipment 10 us, at our option (a) we will arrange for removal of the equipment. and. you agree .to pay us an amount equal to two (2) paymen\S, or (b) the equipment will contiooe to be held and .Ieased by you for successlve one-year periods at the same rental In this lease subject jo the right of eithei party to tennln81e the lease upon tWelVe (12) months written notice, in which case you will immediatefy deliver the Equipment to us as stated in this paragraph. Provided you have fulfilled all of your obligations to us under this lease, we wHI either refund your security deposit wilhout Interest to you or ,at your direction apply It towards !fie purchase of the equipment , 15. WE CHAll6E: If any part of a payment Is not made by yau when due. you agree to pay us a late cf1a!'qe of ten (10'10) percent of each such late payment. but only to. the extent permitted by law. You agree to pay us thIi late charge noIlatei' than one month following the date that the ori(jinal payment was due. 18. ENTIRE A8IIEEMENT: CIWlllES: ThIs lease contains the entire agreement between you and us and it may not be altered, amended. modified, terminated or otherwise changed except in wriling and ,signed both by you and us. , 17. MISCEI.lAHEOUS: In the event you fall to comply with any part of this lease, we can, but we do not have to, lake any action necessary to effect your compliance upon ten (10) days prior wrillen notice 10 you. If we are required to pay any amount to obtain your compliance, the amount we pay plus all of our expenses in caUSing your compliance, shall beCome additional rent and shall be paid by ~ althe lime of the next due rental payment It any notices are required under this lease. they shall be sufficient II given personally or mailed to the address set forth in this lease certifl8d or registered mai.I, postage prepaid. This lease is for the bei1efit of and is bi~ing upon you and your personal representatives, successors and ,assigns. THIS LEASE SHAlL IE II_ WHEII ACCEPTED IN WRITING BY US AND SllAllIE 8QVER.IlEfIBY THE !MIS OF l1lE SllTE OF NEW JERSEY. PROVIDED NOWEVER.IN THE EVENT THIS LEASE OR AHY OF 111 PIIOVIS1Oa CAJlIlIT BE EIIRIllCEII UNDER THE !MIS OF THAT SllTE THEN l1lE IMS OF THE SllTE WHERE THE EQUIPMENT IS LOCATED SHAll. GOVERN. YOU AGREE THAT THE COURT OF THESllTE OF FUlRIIA FOR 8lIOYtUIlI COUNTY OR AllY FEDERAL DISTRICT COURT IfRIlIlG THE JURISDICTION IN THAT COUNTY SHAll. HNE JUIllSOlCT10N AND SHAll BE THE PROPER lOCATIOll FOR THE DETERMIIIA1lOII OF AllIIISI'UTES ARlSlNG UNDER THIS lEASE. You agree and consent that we may serve you by registered or certified mail. which shall be suffICient to obtain jurisdiction. Nothing stated in this lease Is intended to prevent us from commencing any action in any court haVing proper jurisdiction, You wm lr1al by lury In any acUon between us. . . 18. Ucc.ARTlClE2A PROVISIONS: You I!P1lI thalllda Iau Is a "A_ Lease" under Article 2A of the Unifarin Commercfal Code.lhat is. you Idlnawledge that: 131 WI did not select, manufaclun or supply lilt .pment, but we did IIlIdme lbe equipment for lease to yau; Ind lbl we hm glVIII yau lbe IIIme llllhe supplier llllbe equipment you 1r1leaslng II1IlIl us. The supplier Is sll Ior1Ii In ibis lease II'lIIIthe II1Jched schedule:We her1by naIIIy you that you may have rights under the supply c:onlnclIlnd that you may contxllhe supplier III' I dacrlplion of lfiou righll or any warnnlies. . . @ Bell Atlantic TriCon Leasing Bell Atlantic TriCon ~:asing Corpor:adon Uncoln Center 5iOl Wat Kennedy BoulCv:lrd, Suite 98+ T:unpll, PI. 33609 813 286-7+66 800 225-3277 Florid:! nx 813286-2617 ,. TO: Bell Atlantic TriCon Leasing Corporation In referenced to the attached lease between fJE.I'j /2.LJSG ;aLA ('-6 fJ4/fr?./Yi If (}. V N"1'_, and BELL ATLANTIC TRICON LEASING CORPORATION dated S /2--0 I =7 L " It Is understood and acknowledged that this lease Is non-cancelable for the term and that the payments under the lease are due unconditionally regardless of any representation either verbal or in writing which mayor may not have been made by the vendor of the equipment. PC,"//?A),-") GO P!.A (;.:.3 f7 h' 11 Q('Y'.I! ,:' y: /",.-c.. I Lessee ~~~~;C-~ ~~Llf./~\ Witness t! I " E X H I BIT "C-2" JRN 21 '00 15: 29 FR FINf"'q CAPITAL CORP. 480 636 6758 TO gr- "06393541 P.13/19 STATEMENT OF REVISED LEASE TERMS AND OmONS UNDER FOURm AMENDED PLAN ."'CORRECTED COpy"'* PENROSE PLACE PHARMACY IN 1208 Fleetwood Drive CARLISLE PA, 17013 June 30, 1998 The Founh Amended Joint Plan of Reorganization ("Plan") for Recomm International Display. Inc., Recomm lerations Inc. and various related entities was confmned by the United States Bankruptcy Coun on May 13, 1998. As you lY have read in the materials previously sent to you, the Plan provides you and other Participating Lessees with discounts j/or other concessions on your lease as set forth below. The Plan provides both the Panicipating Lessors (including FINOVA pital Corporation) and the Participating Lessees (including you) with a release and injunction prohibiting the commencement continuance of lawsuits brought by one against the other relating to events occurring prior to confitmation. The leases, :luding your lease. are held to be valid and binding and you are required to make payments on your lease as modified under : Plan. This statement describes your revised lease tenns and your payment options under your modified lease. Please read this rement carefully before selecting your payment option. Yau must make your payment election by completing the enclosed :ction Form and returning it to us' by July 30, 1998. It is the desire and intention of the Participating Lessors to make this llSition as easy as possible. You have the following payment options for your lease under the Plan: Option Number of Amount Due remaining Monthly Total to be Now momh1y payment Paid · amOlDlt 789.16 0 0.00 789.16 na na na na 1. LumD Sum: Pay the Revised Principal Balance. Effective Datil Arrearaga and any applicable $ale$ tax in cme lump sum to sads the Lease In full. 2. Pal' Past-Due Now aDd Pal' Ib.....lllder Over TIme: Pay the Effective Dare Arrearaie plus any applicable sales tax in one lump sum. tben make lIlODtbly paymems plus pay any app1kabIe sales tax for cunem re~ lease term until the RevIsed PrIDe' Balance is satisfied. 3. Pay Past-Due Now aDd Pay R-'lI4fer Over Time, CExteudecD: Pay the Effectiv~ Datil Arrearage plus any applicable sales tax in one lump smn. then sprCId """_inlng pll)1lll:rns plU$ any applicable sales tax over 60 months (for Di la Bomb or 72months (for Kioab). ~. Pay Over TIlDe: Spread Revised Principal Balan<:e. including the Effective Date Arrearage, over the current rem;,ining term and a 1icable sales tax, ). Pal' Over 1'ime CExtendedl:Spread Revised Principal Balance, including the Effective Date Arrearage, over 60 months for Display Boards or n months for Kioslcs and pay an licable sales taX. na na na na 0.00 3 1 265.00 44.67 839.67 0.00 5 1 159.00 53.72 848,72 The Tocal ~o be Paid is calculaced by mul~1plying che number of remaining monchly paymen~s by the ftOn~hly P~ymenc amoune plus ehe ~m~une now Que and 1ncludes 5ales ~ax. This calculacion assumes all pdVMent, 4re t1mely made over ehe rema1n1ng term of che revised lease. I aD l.e.1", 71071\44 J M" "" "'''' J.::>; ~'" t-t'< t- I NWH cAf'riFlL CMj5. 480 636 6758 TO 91."""%393541 P.14/19 ease note tiult not all options are avaJ1ablefor all leases. If "n/a" appears, you may not choose that option. The ,lion 1 balance shown reflects an additional 5"10 discount in addition to the Lease Discount Percentage already plied tp Jour lease balance unit..r the Plan. Option 1 also allows you 10 avoid future interest on your lease, and ~relore represents the maximum savings available to you under the Plan. These calculations reflect the reduced principal balance, reduced interest rate and other concessions provided you under the Plan. In some cases, the maximum monthly payment ($250 for Boards or $390 for Kiosks) or inimum monthly payment ($150 for Boards or $300 for Kiosks) will affect your available options. If you elect Option 1, your check for the appropriate Lump Sum amount should be enclosed with your ection Form. Following receipt of your election fonn selecting Option 1 and your check, we will send you a nfumation aCknOWledging that your Lease obligations have been satisfied in full. If you elect one of Options 2 through 5, your lease will be adjusted in order to reflect the revised contracmaI ms. If you do not make an election. you are deemed to have selected Option 4. If you elect Options 2 or 3, your eck for the appropriate Past Due Amount (see item E below) is due on July 30, 1998. Under Options 2 through 5, your first revised monthly payment is due in August 1998. If you do not include ur first monthly payment when you rerum the Election Form, you will be invoiced for payments due in August 98 and September 1998. The revised lease infonnation and.paymcnt options provided in this statement reflect all yments made through June 23, 1998. If you made any payment after June 23, 1998, you will receive credit for ur payment. Please mark your option choice on me enclOSed form and remm it to us in the enclosed envelope by ly 30, 1998. The Plan requires that any outstanding Personal Property Taxes on your Lease be' paid by July 30, 1998. Our ;aIds indicate that the amount of Personal Propeny Tax currently owed. by you is $0.00 (this total may include any imated billing for 1997 and/or 1998 if your STate has not assessed. the acmal amount as of yet). Regardless of whicb yment option you select, you must pay this property tax balance no later than July 30, 1998 (30 days after the fective Date). For your convenience. this payment can be included in me return envelope along with your ~ference election if you so desire. Finally, for your infonnation. under the terms of the Plan, we are providing you with the following ormation with. respect to the trcabnent of your lease under the PIan. Capiralized terms used in this statement have ! defInitions provided in the Plan. Please see the Plan for a detailed explanation of the terms of the revised Leases. A. Effective Balance of Lease B. Lease Discount Percentage C. Principal Payments scheduled to be made after 12/31/95 D. Revised Principal Balance of Lease E. Effective Date Arrearage of Lease F. Revised Monthly Lease Payment if term is UDch311ged G. Revised Monthly Lease payment if term is extended to 60 months (or 72 months in the case ofa Kiosk Lease) $ 1476.24 10,84% $ 1491.00 $ 783.67 $ 921.44 $ 265.00 S 159.00 If you require further information about the calculation of your payment options, please contact our customer vice department at (800) 839-9099. If you have other questions concerning me Plan, please call Andrew Connor. 'ormation Coordinator for me Official Committee of Unsecured Creditors, at 312-861-2000. e 2 on Lease 7102644 ..Jr..,.., i:::.r .,,,,, .L~''')1::l t-~ t-1NtJ\JA cAPTml...cORP. 480 636 6758 TO 91"'606393541 P.15/19 . ELECTION FORM Please mark below the option you wish to select. Select only one option. 1 Lump Sum 2 Pay Past-Due Now and Pay ll....ainder Over Time 3 . Pay Past-Due Now and Pay Remainder Over 'I'bne (Extended) 4 Pav Over Time 5 Pay Over Time <&tended) If you elect Option 1. please include a check for the appropriate amount in the same CJiveIopc. Under Options 2 through 5, your first revised monthly payment is due in August 1998. If you do not include your first monthly payment when you return the Election Form. you will be invoiced for payments due in August 1998 and September 1998. Please be aware that this document must be received by FINOVA on or before July 30, 1998 (30 days after Effective Dare) in order for your preference to be honored. If we do not receive your response indicating your preference by that date, you will be deemed to have selected option 4. When completed', mail the form (and your check, if selecting Option 1) to: ANDV A Capital Corporation Attn: Lease Administration 7272 East Indian ~chool Rei, Suite 410 Scottsdale, AZ 85251 PENROSE PLACE PHARMACY IN/Lease # 7102644 Ige 3 00 Lease 7102644 E X H I BIT "C-3" .~ ..- . --.....- FINO"A FINANCIAL INNOVATORS December 1-1. 1999 PENROSE PLACE PHARMACY IN 1208 Fleetwood Drive CARLISLE. PA 17013 Altn: RONALD COMUNE FINOVA CAPlTAl CORPORATION PORlFOUO MANAGEMENT 4800 NORtH SCOTTSDAlE ROAD SCOlTSDALE. AI 85251.7623 TEl 800 839 9099 FAX 480 636 6758 www.finova.com RE: Lease # 7102644R Dear PENROSE PLACE PHARMACY IN & RONALD COMUNE: Please be advised that the above-referenced lease agreement between FINOV A Capital Corpor. don, as lessor. PENROSE PLACE PHARMACY IN as lessee. and RONALD COMUNE. as personal guarantor 01 the obligations of PENROSE PLACE PHARMACY IN, has a past due amount of 5864.67. This past due amount includes the following: $792.14 $47.53 $25.00 ~ 5864,67 Due/Unpaid revised monthly lease rentals Sales/use taxes Late charges Personal Drooertv taxes. Total Past Due Amount FINOV A Capital Corporation must receive this payment at our offices within ten (10) days of the date of this letter in order to bring your account current. As you are aware. in 1998, the United States Bankruptcy Court for the Middle District of Florida. Judge Alexander Paskay, confirmed a plan of reorganization (the "Plan") in the consolidated cases captioned In Re: ODtical Technolo2ies. Inc. The Plan contained provisions which granted certain discounts and adjustments to lease balances for lessees of equipment manufactured by Recomm International Display Inc. (and related companies). The Plan and Confirmation Order also determined (I) that the Leases are valid and binding in accordance with their tenus (as modified by the Plan). and (2) that the obligations under the Leases (as modified by the Plan) are enforceable, and are not subject to any claims, demands, defenses, set-oftS or counterclaims arising out of actions, activities or events which took place before June 30. 1998. If payment for the full past due amount is not received in our office within ten days, the terms of the lease provide that FINOV A may accelerate and demand immediate payment of all payments required under the lease (as modified by the Plan). If FINOV A accelerates the payments due to your continuing default. the current accelerated amount that you, as lessee or personal guarantor. will be required to pay is 5951.14. In addition. if FINOV A brings legal action against you to enforce these obligations. you may also be liable for additional interest, late charges and attorneys' fees and expenses. Please remit payment to FINOV A at the above referenced address. mail station 3E60 within ten (10) days of the date of this letter to avoid any further collection efforts and/or legal recourse. If you have any questions. please feel free to Contact the undersigned at 480-636-5102. ;~~.k.~ "* rv J~ Sincerely, FINOV A Capital Corporation Jim 1. Searles A VP-Portfolio Manager E X H I BIT "D-l" LEASE AGREEMENT SCHElJULE OF PAYMENTS L /f Recomm Internati9nal Display Ltd. 7650 Courtney Campbell Causeway Suite 1050 Tampa, FL 33607 I )/"'1 jI.JJ~ ~MONTHL Y PAYMENTS OF $ :L Q ~ VENDOR I (applicable laxes 10 be billed) L ~ PAYABLE AT SIGNING OF THE LEASE (check one) i ~ ~RST MONTHS PAYMENT J./- 93 o OTHER EQUIPMENT DESCRIPTION: Q~jjJo~e.....- Recomm Interactive Kiosk System Serial Number. EQUIPMENT LOCA TlON IF OTHER THAN BELOW. Oear Lessee: We have wrttten this lease in p1ainlalllJlage because we want you 10 fully understand its lerms. Please read your copy oIlhis lease carefully and feel free 10 ask us any queslions you may have about it. We use Ihe words XlllI and XllIlt 10 mean the lessee indicaled below. The words Wi, ll&, andllll! refer to Ihelessorindicated below. You aulhorize us 10 add our name as Lessor after you have signed the document by stamping or printing our name in lhe appropriale place. 1. LEASE AGREEMENT: You agree to lease from lIS and we agree 10 lease 10 you lhe equipment listed above, which you agree will be used for business purposes only. You promise 10 pay us the sum of aM of lhe. renlal payments indicated on Ihe schedule above and/or attached, which sum can be calculated by multiplying the number 01 paymenls limes !he payment amount indicated on the schedule(s). 2. ORDERING EQUIPMENT: You request that we arrange delivery 10 you at your expense, II the equipment has nOl been detiv8led, installed, and accepted by you Wllhin forty.live (45) days from the dale that we ordered the equipment, we may on len (10) days wrttten nOlice to you lerminate1he lease and our oOIigalions 10 you. In Ihe evenllhal we have ISSUed a purchase contract or order for lhe equipment. you agree lhat the purchase order or conlract is acceptable 10 you. If you have enlered into a purchase contract for !he equipment. you agree 10 assign II to us. ellective when we pay lot equipment. 3. NO WARRANTIES: We are lusing the equipment to you . AS IS'. WE MAKE NO WARRANTIES, EXPRESS OR IMPUED, REGARDING ANY MATTER, INCLUDING BUT NOT UMlTED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR ORDINARY USE IN CONNECTION WITI! TItS LEASE. If Ihe Vendor or anyone else had made a representation or warranty to you as 10 the equipment or any ollter matter, you agr.. that-any such representation or warranty shal not be bindng on lIS,nor shalllhe b<each 0/ such relieve you d, or in any way affect, any d your olJIlgalions to us ~der litis lease. If the equipment is not satisfactory for any reason, you shall make your claim only againsllhe Vendor and you shaH never1heless pay lIS all rent payable under this tease. So Ioog as you are not in delauft under any of lite terms of litis lease, we lraft$fer to you any warranties made 10 us by lhe Vendor. manufacturer or supplier. You ~deIstand and agree that the Vendor, its agents and employ_ are not agents d OUIS, nor are lhey authorized to waive or change any lerm or conatJon o/Ihis lease. YOU AGREE THAT, REGARDLESS OF CAUSE. YOU WILL NOT ASSERT ANY CLAIM WHATSOEVER AGAINST US FOR LOSS OF PROmS YOU EXPECTEO TO MAKE OR ANY OTHER OIRECT, SPECIAL OR INDIRECT DAMAGES. If you have entered Into a maintenance agreement lWII1 respect to lite equipment and tlle cost of such maintenance aglHfllen11S 10 be paid by us 10 lite Vandor or someone else, then you acknowtedge that we shall nOl be responsillle for the service, repeiIS, or mainlenance d tlle equipment, that we are .nol a pany 10 any such maintenance agreement. and. even ~ you have a dispute regarding mainlenance or seMce you wi! continue to pay lIS all rental and maintenance payments due under !tis lease and all schedules tn litis leaM. 4. NON.cANCEllABlE LEASE: This lease cannot be canceled by you. RAM ACCEPTED: LESSOR ACaPml: TriCotI C'" CorJ.,I.oI_ 1511. RooM 17 ~ ,.,....1lI0lUZ 'Tr1Coa CaDIlal, IIIlIIt III GnyIIot... FlIIIIlI:III Co!pnllol' OATE: (THE UNllERSlGHEDceRTFU lliATnE EOUI'MEHT SlWJ.IEUSEDFOR8UStESS PUlPOSES Ale __ _T NO -~--_._-"'._~--. ::..~?1'2t'a..,,,,'U~ ,d~::C PERSOHAL GUMAIlT'f '''-IlU-......_wiI........__n,.,....._''''''"'___...__....,.......n..-.,.._ollIgIliansundor1he_.'''''nplQOlllif.'''''IlU___.. _._... 1IId_lIIdnotol_'..._..."'"...,__......-......._...'..bo'__"'__..._ollIgIlians"..""""""',.,~~_1he__."'_ II tumI ~ under 1M origiIW..... of.. IMIt Ind wi pwfatm II oiw obIigIIianI 01.... "* IN 11_. I wlive Il'/y.... 01 ~1I1O be . CI'dDf ollhl 1eIIII'....."..,... wtlidI tftIy .....,..,. CIII .. ......... ~ n I WIWt my n,.1D II-a dIim" N bInkrupIcy" of...... lor"., _1I111id '" "" lDyou in 1CCCIrdIlnc:I"''''''''''' ollnil ~.I wit NimIl&ntyou lor II Ill....... you incwilttnlarcing.., 01 yw.... ......... _." lilt. includInoj__.....io._guar&lllY..io_by..._ol_ol...~__........_guar&lllY,..__1he__.IAGAEE_r_~T'f~1E Sl&JECTTO nET!_ ANOCOHOmONS 01' SECTION 17 OF TItS LEASE. TItS llUNWITY SI<AU IE GOVERHEO ev nE LAWS OFnE STAT! OF AI'PIJCAIl! JIRSCICTION. ASOEFtED I< SECTlOll " , OGIOli..,,;o::oo.slNT THA7 nE COURT 01' lIE srAT! FOR nE CO\JlTY OF oIl'I'IJCAILE JIJlISDlCTION OR _ FEOEIW. OISTRICT COURT HAVING.....1SOlC11OH I<lliAT COUNTY 01' APPUCAIl.E JUNSllICT10N SIWJ. ..... 1JIlSDC"Ol....0 E~a~::zjj;;~;~~::;:--~.-i;~~:;4.~. X WlTNESSSKlHAlIJRE OA7EO X PERSON.... GUAAAHTOR SIGNA1IJRE. AN tlOMIlUAI. ;::Ar!D - -''J- " . ..".; ,1I1.t ...", ..;;; ;"'..tt ...;,:: 'j':;... . :';u -u~ :..;: v,:'.: _1t'li':J.11:ar-:; .:";~er '''p !-!.lSe, ~(jV,1rt~ "~l"'~"~ ,H~ "a{ .QP~:",('l.1DlfI I ...~ ~ast!~Op.s "01 JP.fJ!n 'or )ny "~.1Svn -....p f""Ie~s JI ~r'! lrF! :l.1v,lCle ~r~c-::::CJI;V r'!.:'/Jr;:e JS -~;J.:.,r: 'oJ'," .. :.. ::"" ~,;:'t~r.::itl 'i) ::--'~; !-!.~::;@ -"p. ':~: :}J'..:""l!r~' .]r1 :~p. {:J~r""'pr",e~p.r' ~Jle '''OUNlIl ~p. 'lOlIMa nNl':~u"~g! ,III ge :r.e jalp. 'Jt your ';r~: :.ayr-ert "':erea~er. ';;}:"'sP.t;~:;'J~ ":,-"8;:,.; ;:"i~:~"H~I:; ,VIII ;)f.! .~lJe ~)n ::-p. '~.lrre ;iJY JI ~C\t:~ Jar:au ~'CIC.:lieO or .r-P. .p.ver:;e j;r:P. ~II :JJymenlS 'NIII ~ ""'JCe '0 -'5 Jt vL;( JOCrnS$ on :~:$ :ease. .]f 11 lr.;ol"C1r ]Cdr9SS Nr:c;,: 'Ne ,yOl.:C ~:1::;r.:~J.:r! .' wrt:l'fj. '/!JlJt ilnhfj.1Ii0r1 ~O ;Jay 1!r'laJS:o :;$:$ ~;ncar:CIlIOI1JJ .\n05"ol SlJClec::o ,3.ry 'educ~lOn. set.vfl, delp.nse, or :alj;;Te(C~':llm rOf Jny "p.ason wnalSOever '/'JU Jul~ot:e JS'O ,:~s.w~ ....'.i.: '1:;:"~Hr:. wr. ;)lt~p.r df!r":WIC;Il:011 ,~[a .lDO\..1 t~,H ~QUlpmp.f". 1$ "Nell J:j .")I~p.r \)r.l~ed '.1C:Uill ;71arter$. If we ac::::elloo 1 sec~nry deJ,)Jsll :rom you. .t 'N1I1 tJe "a!d ':N ..lS :0 3ec~re 'lOur 'JI1..::;: :;~r;;'J',".1PCi:! or ~I~I::; ,ease. .1rld.1 'NIIl be ~e[umeO l}f Joohe<1 JS ~:a{eo:n Par.Jgi.1ch lJ You 5i13JI paV!O us a one-lime aClmlfl's:rJlrve tee 01 525,00:0 ~elmcurse '-'$ lor Jut 5:an..0 Jcmlr.:S:,7\;i'/F! ..,...... ....."~ o ASSIGNMENT: You may not sell,lransler, assign or sublease Ihe equopmenl. We may, withoul nOlnying you, sell, assign, transter, encumber or pledge Ihis lease, '" whole or in port, and ownerShip ollhe equipment; and you agree thaI if we do so, Ihe new lessor will have Ihe same rlghls and benefhs Ihat we now have, and Ihe new IeSSOl will not have 10 perlorm any 01 our obligalions. You agree that Ihe rights of the new lessor will nol be subject 10 any claims, defenses or selolfs thai you may have against us. However. any sucn assignmenl. sale, or transfer ollhis lease or the equipment Will not relieve us 01 our obligalions 10 you under this lease. I OWNERSHIP AND QUIET ENJOYMENT: We are Ihe owner ollhe equipment and "ave Ille 10 Ihe eqUipment. If any .,m., ;:erson anemots 10 cia"" ownersnlp 01 '~e eqUlomerl buy assemng :nal :IOlm agamsl you or through you. you agree. al your expe!1Se. 10 prolecl and defend our tllle 10 the eqUIpment. FunMr, you agree Ihal you will al all limes keeo the eCUloment ~ree 'rom any 'egal orocess or "en whalsoever, and you shall <pe US Immediate nOllce II any Iegat process or lien IS assened or made agall1sllhe equloment. So long as you are not In defaul under any 01 the tennsn :015 lease. we agree Ihal you shall qul911y use and enloy the equipment. a. CARE, USE AND LOCATION: LOSS OF EaUIPMENT: You are I1!sponslble lor mSlallirg and keep'rg 1M equpmenlln good wooorg order al'd I1!pair. You are responsible 'or 'rolectlng tM .oulpmem Iroin damage. exceollor Ordinary wear and lear and Irom any olher :~nd 01 loss while you have 1M equipment or while it IS being del~ered to you. E'l9n If Ihe equlpmenl 's damaged or 'OSlo you agree 10 conlinue 10' pay rent. You wlll keep and usa Ihe equipment only at your addl1!ss shown above, and you WIll orly use II lor bUSiness purposes and In compliance wllh all apclicaole :aws. You will not make any alle""lons 10 Ihe equipment WIthout our pnorwntten consent (whICh we will not unreasonably wllhhold), nor will you oermanently anach Ihe eqUipment to your l1!al eSlate, You agree Ihat you wlll not remove Ihe equipment Irom lhal acilress unless you gel our wrinen permission ins adVance. AI 1M end of Ihe lerm 01 lease. you will retum Ihe equipmenl to us. al your -:xoense. . 9. TAXES AND FEES: You agree 10 pay when due alllaxes.lines al'd penalties relating 10 this lease. 1M equipment or the rentals Mreunder. You also agree Ihat we nave Ihe ng/11 each yeano gSlimale Ihe yearly personal propeny laxes IhaI Wll be due lor Ihe equipment and Ihat you wil pay us Ihe estimated laxes when we request payment. II we pay any oll/1ose laxes, fines or penatlles cor you, you agree 10 rermburse us on demand. You also agree Ihal we have Ihe nghtlo s;gn your name 10 any document lor 1M purpose 01 such filing. so long as 1M lilirg does not "lIenere wuh your rlghl 10 use Ihe equipment. . 10. INDEMNITY: We are nol responsible lor any injuries 0( losses 10 you or any olher person relaling. in any maner whatsoever, 10 Ihe Equipment, You assume resoonsibllity 10( and agree 10 ,g.o us. our successor and assigns harmless from and against any al'd atlliabililles. losses. obligations, damages of any kind whatsoever, l1duding reasonable attorney's lees lor any larlul1! on your pan 10 penorm or comply wih any condition olltis lease. This indemnny shall cominue even aher 1M term of this lease has expired. II. INSURANCE: You agree 10 keep the eql.ipment fully insured agalnSl al hazards Il'CIueing but nee lmlled 10 fire. IMh and elllended coverage ;,surance. ul'lj you i':ave "..1 all YOlJl obligatIOns under Ihis lease. You agree 10 obtain a general public liabllKy insurance policy, covering belh pen<lnal injury and property damage, from anyone who is accelXable 10 us and 10 Incli.de us as an Insured on 1M policy. You agree 10 provide us with ceniflcales or OIMr evidence of Insurarce acC9fllable 10 us, II any insurance proceeds are paid as a resutt 01 any st.Ch OSS " damage 10 lhe goulpment. you agree that such insurarce proceeds shall be paid to us to satisly your remal obligallons under Ihis lease. If Ihe equrpment is eilher 10Sl 0( totally destroyeD, and you are not in defautt cr~er Ihe lerms Ollhis lease, instead 01 continl.ing to pay us rent you have Ihe option 01 oay'ng us 1M then pl1!sent value of both the unpaid balance of Ihe I1!mall1lng rem urder tl11s Lease am 1M 'Ialue of our residual interest in 1M eql.ipment . each computed with a discount rale 01 six (6%) percent per year. 12, DE F AUL T AND REMEDIES: If you do nee pay I1!nt when due or il you bnlak any of your promiseS under Ihis lease. or you become insolvent, assign your asseis lor Ihe benefll 01 your ;'edilors. or enter (voluntarily or involuntarily) a bankruplcy proceedirg, you will be in delautt. II your delault is caused by your farlure to make any payment when due. we can reqLlre Ihat you retum :he eouipment 10 us al'd pay 10 us Ihe remainirg balance of all ollhe runtal payments due under Ihis lease, Olesent valued using a six (6'l'.) percent per year discount rate. If you latllO return lhe equipment 10 us. in addition we can also require fhat you pay 10 us our residual Interesl in 1M equpment, present valued as noled above. You also agteeto pay us IntereSl on all sums due us lrom ;he date 01 defaull unlll paid at the rate 01 one and one-hatl (1.112%) percent per month. btA only 10 lhe extent permitted by law. II your de/auk is caused by your breaking a"f 01 your olher promIses under Ihis lease, we shaU be entitled 10 recover from you all damages caused by thai type of delautt. We can also use any 01 the remedies available to us under the Uriform Commen::at Code or a/rf olher law, If we reler this lease to an aItOmey fOl enlorcement or collection, you agree 10 pay our reasonable aItOmey's lees of at least 20% 01 Ihe rernairinq balance 01 allhe l'9!1lal paymerns. and actual costs. If we have 10 lake possession of the equipment. you agee 10 pay the COSl 01 repossession, storilg, shipping. repliring and selling the equipment. Although you iIlJrH that we are nol obligated to do so, if we decide to sell the equipment. and we art able to lid the equipment for a price IhIIlXcetds the Sl.lll 01 (a) our COil 01 repossession and sale ollhe eql.ipment and (bllhe residual value of the equipment. pltHnt valued as calclialld above, thtn we shaI give you a credk for tht amount 01 such excess. You iIlJrtI tl1aI we do not hlYllO notify you Ihal... are sellirg the equipment. t3. Ol'HEiR RIGHTS: You agrtl thai any delay or failure to erColCt our righls under Ihis lease dots noI pr8Y9nt us from enfon:ing any righ1s II a later tImt. Both panies intend lhis lease to be a 'Ialid al'd legal document, and agree lhat ij any pan is dtCermined to be unenfOlCtablt, all eeMr pans wil remain in luIllolCt and effect. II litis docI.ment is not found to be a least, tMn you grant us 11 security interest in the aquipment. You also give us the rigIt to immedaltly l1le, at your expense, any Uriform Comm.n:ial Code ('\JCC')Iinancir1g slaI9ments or reIaled fiings. as wel as thl right to sign your name to any such lilngs IhII we make. 14. REDELIVERY OF EQUIj)MENT: In the evert you do not decide to pun:hasa the equipment according to the lerms 01 any PureI1ast Oplion Lefterthllwe hava issuld 10 you.lhen when this lease expires. 01 is terminated earitr, you shaI disconntct, properly package for uanspor1ation. and retum the equipment. freiglt prepaid, to US, in good repair, condlion and wooorg ordsr. normal ...ear and telllXcepted, 10 a location designated by us. N upon upiration or terminallon, you do nol immediately return the equipment to US, at our option (a) we will atra/'9' lor ntmoval ollhe equipment and you agree 10 pay us an amount equal to l'Ml (2) paymentS, or (b) the equipment wil COntiI1llt 10 be held and 1.11S1d by you lor successive _..,ear periods althe same rentat in this iease subjecllo lhe right of Bithtr pany to Itrmirate the le858 upon !Welve ((2) months written nolice. in wIich case you wit immedialely deliver the Equipment 10 us as stated in 1M paragrap/l. Provided you have fuUDled all 01 your obligatio,. 10 US under this least, we will either refund your security deposit witItotA intelBSllo you or at yoU' dirtclion apply IItowanls the purcl8se allhe equipment. 15. LATE CHARGE: U a"f pan 01 apaynnt is not made by you when du., you agee to pay us a late cI1atge alteo(IO%) ptlQl1l 01 tad1 such late paynnt, btA only 10 the ext.nt pamitted by law. You agree to pay us tht late chstge noIlal. tl1an 0Ile month Iolowirg thl dat.lhal Origlrat paym.nt was due. 16. ENTIRE AGREEMENT; CHANGES: This lIase COItains the Intlre agretment betwttn you and us and I may not be altered, amended. modified. terminated or otherwlsl clw1ged except in writirg al'd signed belh by you and us,. 17. MISCEL~ANEOUS: In the event you lailto comply with any pan oltM 191$1, we can. but we do nol have to, lake any action -SI/'f 10 effect your compliance upon len (10) days pror ...rinen nolice to you. II we are required to pay any amolJ1l10 oblain your compliance. lhe amount we pay plus all 01 our expenses in causing your compliance, shall become addtionaJ rerl iII1d shall be paid by you at the orne of the nexl dw rerlal payment. II any notices 118 required under Ihis lease, they shall be sufficiant ij given ptI'SOnaIIy or mailed to the address sel forth in lhis lease by cenilied or registered mail, postage prepaid. This lease is for the benttit 01 and is bindirg upon you and yoU' ptI'SOnal representatives, successors and assigls.AS USED IN nilS PARAGRAPH 17, 'APPLICABLE JURISDICTION" MEANS niE STATE, AS MAY CHANGE FROM TIME TO TIME, WHERE T'HEHOLDER OFT'HE LESSOR'S INTEREST IN nilS LEASE MAINTAINS ITS PRINCIPAL OFFICE RESPONSIBLE FOR ADMINISTERING T'HIS LEASE. T'HIS LEASE SHALL BE BINDING WHEN ACCEPTED IN WRmNG BY US AND SHALL BE GOVERNED BY T'HE LAWS OF T'HE APPLICABLE JURISDtCTlON, PROVIDED HOWEVER, IN T'HE EVENT T'HIS LEASE OR ANY OF ITS fIl.lOVlSlONS CANNOT BE ENFORCED UNDER niE LAWS OF T'HA T STATE TliEN T'HE LAWS OF T'HE STATE WHERE T'HEEQUIPMENT IS LOCATED SHALL GOVERN. AS USED IN T'HIS PARAGRAPH 17, 'COUNTY OF APPLICABLE JURfSDICTION- lAEANS T'HE COUNTY WI'TliIN T'HE STATE, AS MAY CHANGE FROM TIME TO TIME. WHERE niE HOlDER OF T'HE LESSOR'S INTEREST IN .T'HIS LEASE MAINTAINS PRINCIPAL OFFICE RESPONSIBLE FOR ADMINISTERING T'HIS LEASE. YOU AGREE T'HAT T'HE COURT OF T'HE STATE FOR T'HE COUNTY OF APPlICABLE JURISDICi10H OR ANY FEDERAL DISTRICT COURT HAVING TliE JURISOICT1ON IN T'HA T COUNTY OF APPLICABLE JUR1S01CT1ON SHAU HAVE JUA1SDICTlON AND SHALL BE T'HE PROPER LOCATION FOR niE DETERMINATION OF AL~ DISPUTES ARISING UNDER T'HIS LEASE. You agltll and consent lhat we may S8MI you by regislered or ceniftld mail, wIich shall be slAfiClent to oaw junsdiclion. NOlhing Slated in this lease is intended 10. prevtnl us from commanding any aclion in any COUll haYirg proper jltisdl:tion. You waive trial by juty in any action between us. 18. UCC.ARTlCLE 2A PROVISIONS: You agrttthal this II.. i.1 rtN/1Ct Ltlst. under AIliclt 2A of tilt Uniform ComIlltrCiaI Code, Ihal is, you acknowlldge that: (a) WI did not seltct, manulactur. or supply the equipmtnl, bul we did purch..11It equipment 101 II.. to you; II\d (b) WI ha'lt given you tilt name of tilt supplier of the equipment you ....asing 'rom us. The supplier is setlorth in Ihis ItaH 01 on lilt allachtd schtdult. W. IItllby notify you Ihal you may have righlS undtr lilt supply contrlClS and that you may contact tilt iupplier lor a description ollhose rights or II'l'f wlnllllies. TO: Recomm's Designated Leasing Company In reference to the attached 1.... b-r '&':'f.j' 'f/.",~l:,'tRe'omm'. designated leasing company dated ~- - . (the "Lease'), it is understood and acknowledged that this Lease is non-cancellable for the term and that the payments under the Lease are due absolutely and unconditionally regard- less of any representation or warranty, whether verbal or in writing, made by any party, other than the written representations and warranty of the Lessor under the Lease. 'i1!:JrtJse;f)~f!~~)I, T~, Lessee ~Y)aJrL lv, CO~~n~ ~ Y:-~i'df:.0 ~ 'f~;'d.eY)"T B~:~ --"'-- ~)11 f21~d,J ess E X H I BIT "D-2" STATEMENT OF REVISED LEASE TERMS AND OPTIONS UNDER FOURTH AMENDED PLAN **CORRECTED COPY** PENROSE PLACE PHARMACY INC CARLISE P 1208 Fleetwood Drive CARLISLE PA, 17013 June 30, 1998 The Fourth Amended Joint Plan of Reorganization ("Plan") for Recomm International Display, Inc., Recomm Operations Inc. and various related entities was confirmed by the United States Bankruptcy Court on May 13, 1998. As you may have read in the materials previously sent to you, the Plan provides you and other Participating Lessees with discounts and/or other concessions on your lease as set fonh below. The Plan provides both the Participating Lessors (including FINOV A Capital Corporation) and the Participating Lessees (including you) with a release and injunction prohibiting the commencement or continuance of lawsuits brought by one against the other relating to events occurring prior to confirmation. The leases, including your lease, are held to be valid and binding and you are required to make payments on your lease as modified under the Plan. This statement describes -your revised lease terms and your payment options under your modified lease. Please read this statement carefully before selecting your payment option. You must make your payment election by completing the enclosed Election Form and returning it to us by July 30, 1998. It is the desire and intention of the Participating Lessors to make this transition as easy aspossible. You have the following payment options for your lease under the Plan: Option Number of Amount Due remaining I Monthly Total to be Now monthly payment Paid * a nts amount 18480.31 0 0.00 18480.31 16389.59 10 318.00 19593.09 I 23.50 1. Lump Sum: Pay the Revised Principal Balance. Effective Date Arrearage and any applicable sales tax in one lump sum to satis the Lease in full. 2. Pay Past.Due Now and Pay Remamder Over Time: Pay the I Effective Date Arrearage pIuS any applicable sales tax in one lump sum, then make monthly payments plus pay any applicabhi.sales tax for current remaining lease term until the Revised Princi al Balance is satisfied. 3. Pay Past.Due Now and Pay Remainder Over TIme (Extended): Pay the Effective Date Arrearage plus any applicable sales tax in one lump sum, then spread remaining payments plus any applicable sales tax over 60 months (for Dis la Boards) Or 72 months for Kioslcs). 4. Pay Over Time: Spread Revised Principal Balance, including the Effective Date Arrearage, over the current remaining term and a an a licable sales tax. 5. Pay Over Time (Extended): Spread Revised Principal Balance, including the Effective Date Arrearage, over 60 months for Display Boards or 72 months for Kioslcs and pay an a licable sales tax. 16389.59 10 I 318.00 23.50 19593.09 0.00 26056.82 0.00 27110.88 The Total to be Paid is calculated by multiplying che number of remaining monthly paymencs by croe monchly payment amount plus the amount now due and includes sales tax. This calculation 'a-ssumes all pa:..-ments are timely made over the remaining term of the revised lease. Page I of3 Lease 7161767 Ple.a$e note that not all options are ( 'lable for all leases. If "nla" appears 'u may not choose that option. The Option 1 balance shown reflects an additional 5% discount in addition to the Lease Discount Percentage already applied to your lease balance under the Plan. Option 1 also allows you to avoid future interest on your lease, and therefore represents the maximum savings available to you under the Plan, These calculations reflect the reduced principal balance, reduced interest rate and other concessions provided to you under the Plan. In some cases, the maximum monthly payment ($250 for Boards or $390 for Kiosks) or minimum monthly payment ($150 for Boards or $300 for Kiosks) will affect your available options. If you elect Option 1, your check for the appropriate Lump Sum amount should be enclosed with your Election Form. Following receipt of your election form selecting Option 1 and your check, we will send you a confirmation acknowledging that your Lease obligations have been satisfied in full. If you elect one of Options 2 through 5, your lease will be adjusted in order to reflect the revised contractual terms. If you do not make an election, you are deemed to have selected Option 4. If you elect Options 2 or 3, your check for the appropriate Past Due Amount (see item E below) is due on July 30, 1998. Under Options 2 through 5, your first revised monthly payment is due in August 1998. If you do not include your first monthly payment when you return the Election Form, you will be invoiced for payments due in August 1998 and September 1998. The revised lease information and payment options provided in this statement reflect all payments made through June 23, 1998. If you made any payment after June 23, 1998, you will receive credit for your payment. Please mark your option choice on the enclosed form and return it to us in the enclosed envelope by July 30, 1998. The Plan requires that any outstanding Personal Property Taxes on your Lease be paid by July 30, 1998. Our records indicate that the amount of Personal Property Tax currently owed by you is $0.00 (this total may include any estimated billing for 1997 and/or 1998 if your state has not assessed the actual amount as of yet). Regardless of which payment option you select, you must pay this property tax balance no later than July 30, 1998 (30 days after the Effective Date). For your convenience, this payment can be included in the return envelope along with your preference election if you so desire. Finally, for your information, under the terms of the Plan, we are providing you with the following information with respect to the treatment of your lease under the Plan. Capitalized terms used in this statement have the definitions provided in the Plan. Please see the Plan for a detailed explanation of t~e terms of the revised Leases. A. Effective Balance of Lease B. Lease Discount Percentage C. Principal Payments sch.eduled to be made after 12/31/95 D. Revised Principal Balance of Lease E. Effective Date Arrearage of Lease F. Revised Monthly Lease Payment if term is unchanged G. Revised Monthly Lease payment if term is extended to 60 months (or 72 months in the case of a Kiosk Lease) $ 19941.64 28,94% $ 13980.00 $ 18351.85 $ 15461.88 $ 413 AD $ 376.54 If you require further information about the calculation of your payment options, please contact uur I:ustomer service deparnnentat (800)839-9099. If you have other questions concerning the Plan, please call Andrew Connor, [nformation Coordinator for the Official Committee of Unsecured Creditors, at 312-86.1-2000. Page 2of3 LCJ'" 7161767 ELECTION FORM Please mark below the option you wish to select. Select only one option. 1 Lump Sum 2 Pay Past-Due Now and Pay Remainder Over Time 3 Pay Past-Due Now and Pay Remainder Over Time (Extended) 4 Pay Over Time 5 Pay Over Time (Extended) If you elect Option 1, please include a check for the appropriate amount in the same envelope. Under Options 2 through 5, your first revised monthly payment is due in August 1998. If you do not include your first monthly payment when you return the Election Form, you will be invoiced for payments due in August 1998 and September 1998. Please be aware that this document must be received by FlNOVA on or before July 30, 1998 (30 days after Effective Date) in order for your preference to be honored. If we do not receive your response indicating your preference by that date, you will be deemed to have selected option 4. When completed, mail the form (and your check, if selecting Option I) to: FINOV A Capital Corporation Attn: Lease Administration 7272 East Indian School Rd. Suite 410 Scottsdale, AZ 85251 PENROSE PLACE PHARMACY INC CARLISE P/Lease # 7162767 ~age 3of3 LOJ'O 7162767 E X H I BIT "D-3" December 14.1999 PENROSE PLACE PHARMACY IN 1208 Fleetwood Drive CARLISLE. PA 17013 Ann: RONALD COMUNE RE: Lease # 7162767R Dear PENROSE PLACE PHARMACY IN & RONALD COMUNE: Please be advised that the above-referenced lease agreement between FINOVA Capital Corporation, as lessor, PENROSE PLACE PHARMACY IN as lessee, and RONALD COMUNE. as personal guarantor of the obligations of PENROSE PLACE PHARMACY IN, has a past due amount of $7,534.80. This past due amount includes the following: $6,630.00 $397.80 $507.00 i: $7,534.80 Due/Unpaid revised monthly lease rentals Sales/use taxes Late charges Personal orooertv taxes. Total Past Due Amount FINOV A Capital Corporation must receive this payment at our offices within ten (10) days of the date of this letter in order to bring your account current. As you are aware, in 1998, the United States Bankruptcy Court for the Middle District of Florida, Judge Alexander Paskay, confinned a plan of reorganization (the "Plan") in the consolidated cases captioned In Re: Oatical Technolol!ies. Inc. The Plan contained provisions which granted certain discounts' and adjustments to lease balances for lessees of equipment manufactured by Recomm International Display Inc. (and related companies). The Plan and Confinnation Order also detennined (I) that the Leases are valid and binding in accordance with their tenns (as modified by the Plan), and (2) that the Obligations under the Leases (as modified by the Plan) are enforceable, and are not subject to any claims, demands, defenses, set-offs or counterClaims arising out of actions, activities or events which took place before June 30, 1998. If payment for .the full past due amount is not received in our office within ten days, the tenns of the lease provide that FINOV A may accelerate and demand immediate payment of all payments required under the lease (as . modified by the Plan). If FINOV A accelerates the payments due to your continuing default, the current accelerated amount that you, as lessee or personal guarantor, will be required to pay is $27,388.35. In addition, if FINOV A brings legal action against you to enforce these obligations, you may also be liable for additional interest, late charges and attorneys' fees and expenses. Please remit payment to FINOV A at the above referenced address, mail station 3E60 within ten (10) days of the date of this letter to avoid any further collection efforts and/or legal recourse. . If you have any questions, please feel free to contact the undersigned at 480-636-5 I 02. Sincerely, , FINOV A Capital Corporation Jim J. Searles A VP-Portfolio Manager E X H I BIT "E-l" ...' LEASE AGREEMENT SCHEDULE OF PAYMENTS L VENDOR Recomm International Display Ltd. . 7650 Courtney Campbell Causeway Suite 1050 Tampa, FL 33607 I LN) .;2 () --7-'LMONTHlYPAYMENTSOF$ ~q~ (spplicable1aXes to be billed) .-J PAYABLE AT SIGNING OF THE lEASE (check one) t?~ .,( FIRST MONTHS PAYMENT ,;J 9 f' o OTHER EQUIPMENT DESCRIPTION: Qlr. -L Recomm Vox Apolhecary System Serial Number: $10 EQUIPMENT lOCATION IF OTHER THAN BROW. Deer Lessee: We have writl8n IhIslease In plain language bec8use we W8I1l you to IutIy undenland i1s terms. Please IlllId your copy of IhIs lease Clll8fuUy end feel free to ask us lIlY questions you may have abaillll We use the words XlllLencI XJllj[ to mean the lessee IncfICBl8d below. TheWOlds D IlL and QIl[ refer 10 the lessor Indicated below. You authorize us 10 add our name as lessor after you have signed the document by 11amp!11Q or printing our name In fie IIfllXOIlriale place. 1. LEASE AGREEMENT: You agree to lease from us end we agree to lease to you the equfpmintlisted above, which you agree will be used for business purposes only. You promise 10 pey us the sum of en of the rental paymen1S Indicated an the schedule above end.I:lr allached. which sum can be ceIcuIated by multlplying fle number of paymanls times the payment amount indicated an the schedule(s). 2. ORDERINO EQUIPMENT: You requestlhal we enange delivery to you etyour expensa. If the equipment has not been delivered, Inslalled. end IlCC8pled by you wi1hin farty.live (45) days from fle date flat we ordered the equlpmen~ we may an ten (10) days writlen no.lice to you terminate flelease end OIX obIIgalions to you. h the evenl that we have Issued a purchase conllacl or order far fleequlpmen~ you agrs, lhaIthe plId1ese order or COl1\'act Is aoceplab/e to you. . you have enlered into a purmase conlrBcl for the equipment you agree 10 IIsign h to us, effecw, when we pay for equipn1enl . 3. NO WARRANTIES: W. 1..._lng the equipment to you "AS IS". WE UAI<E NO WARRANTIES, EXPRESS. OR IMPUED, REOARDING ANY MATTER, INClUDING BUT NOT UMITED TO WARRANTIES OF FITNESS FOR A PARt1CUI.AR PURPOSE OR ORDINARY USE IN CONNECTION WITH THIS LEASE. If the Vendor or anyone else had made a represenlalion or warrilnly to you as to lI1e equipment dr any ather metl8r, you agree flat lIlY such Rlflr&I8ntailn or warranty sl1ll not be binding an us, nor shaD the bread1 of such relieve you of, or In lIlY way aflect, lIlY of your obligations to us under IhIs lease. If the equipment Is not setlsfacloly for any reason, you shaH make your claim only against the Vendor and you shall nevertheless pay us all rent pe.yabIe under IhIs lease. Sa long as you 1/8 not In default under my of the lanns of flls lease. we transfer 10 you lIlY warranlles med. to us by the Vendor, menufacturer or supplIer. You undelll8nd end agree lhaIthe Vendor,lts agents end employees ere not egenfs of ours. nor 1/8 they authorized to waive or change any term or condibl of this I_a. YOU AGREE THAT, REGARDlESS OF CAUSE, YOU WU NOT ASSERT ANY ClAIM WHATSOEVER AGAINST US FOR LOSS OF PROFITS YOU EXPECTED TO MAKE OR ANY OTHER DIRECT. SPECIAl. OR INDIRECT DAMAGES..lf you have entered Into a maintenance agreement with respect 10 the equipment and the cost ohuch maintenance agreement Is to be paid by us to the Vendor or someone else. then you acknowledge that we sheD not be responsible for the 181Vice, repairs, or maln\enancle of the equipment, that we are natl perty to lIlY such maintenance agreemen~ end even If you have I dispUte regarding mllinlenance or I8lVice you wi contnue to pay us eI rental end maintenance payments due under flls lease end eB schedules 10 this lease. 4. NONoCANCEllABLE LEASE: This lease camot be canceled by you. P TH .sG,+c.~~(d~ 79-~b+he:1/'~ I :Z:11 d... t}- ~td.h+'''''''' h rh1.,~l.j WIlG ADDRESS ..t'l 0 ~ () q +~ .f' ~ . f-tt oS ~ C1v/~d/.e. II~ /Jr4.Vlf srATE)( 9,11/0 PlK)NEIIO.c1/t! I P 9 ~ ~01 ~.;2.;t. DATED: .3 ~ r-f 3 ACCEPTED: lESSOR ACCUtEIl: BeIIA6311l1c friODn lasIftc~.... 95 NOIlh RMS! T South, PUIlIIU!, NJ 07652 BY o(J.C..J..A~A4> er~ 11TlE . '? h 11 q 3.; 1 p CEIII1FIES llIArTllE ECUIPMEIIrSIIAIUE USED RlA IlUSlNESS I'UfIIOSS AND AaREESlIIAT 110 1I.1Il IlADEINWIITIlCI AHD SKlI/EIl BY SC7lII PARIIES.) DATE: PIINT IIAlIE ; ., PEASONALCl/AlWIrY 1"'........,....._ "'11110 ,_.. _oil JlIIIIIII'IIIIIId pay II '" oN durIN_ill UIllI...._........, ..... ......porbm II..... dlIGdCIlI_ fie.... U, 1IllI.....,.l1i. ....."'.. be 'panIf"_1lIl 1IId1lll"""_IIllIIIGl"..........I.......fIal'""...,.....--.--wl"..._IIIdI.....~.Ia'__IIllI_GlIIIg_'............,lI'l'b_....._"_,,..._.. ....duo_ fleOllgllll ......"..._IlllI.. perra. II -",.,.....,,--..-., .......,_...."... ..._".. "-"~..._...,..... ll.rtUt"ilI",,___.1lllI1 ........,~..IIo.d..~..--_""._Ia'.......poIdbr....'""b__w1"..IonntO/........I..r_'""Ia'...._flllI_b_dno..,"""'.."""'_""t. ~.Ierntt' fNt. .11I.1t._...".....It_....br~ -.,......,..,................BI1I.It.~....."..It............_..........._LIAGREEllIATTIl1SClIlAAAH1'/SIIAlI.IIl SUlJECTTOTIIE TEAIAS AII0 COIIlmOHSOF SECTION 170Fnas lJ!ASE.llISGUAAAIIlYSIIAlI.IE 00VEIIHal BY TIlE lAWS OFlIIE srmOF A'PUCA8I.E.RJRISllICl1OH, IS DEnlED IN IIECl10H 17.\ MlIIEEAHD CONSEHr THAT TIlE COURT OF TIlE srATE RlA TIlE COUHlY OF AI'PUCA8I,E.AlRIlDICI1OH OR ANt FEIl8W. DlSIRICT NG.lJREDICTlDH IN llIAT COUHIY OF APPUCA8I1 JUlIlSDI::Tl)N SIIAlI.IIAVE .AJIIISDICTlDN AND SII.IU. LOcA11ONRlA noNOFIlISPUlESARISIIICIUNllERTIl1SWS€. '_1lllI mtbrrogla""""" ......".....dd.."'_piIdIclon.'......lflIbyiIYln .., u" ...' -3 -o? - v 5. TERM OF LEASE, ADMINISTRATIVE FEE: The leaselerm will start on the date that lIlY equipment Is delivered to you or your egent ('the Commencemart Date1 and will continUe unlll you have met all of your obligations under the lease. Advance rentals are not refundable ~ lhe lease does not begin far lIlY reason. The paymerts 0/ rent are payable periodically In advance as slated above or on any schedule to this lease. The first payment is due an the Commencement Date. You will be notified In VtTitIng ~ we change the date of YOI.r first paymert. Theruafter, consBCUlNe periodic payments will be due on the same day of each period Indicated on the reverse side. All paymenta wm be made to us at Ol.r address an this lease. or at snather addrass which we would designate In writing. YOI.r obligation to pay rentals to us Is unconditional and Is not subject to lIlY reduction, set-off, defense, or counterclaim for aJIf reason whatsoever. You authorize us to Inssrt serial numbers and other identlflcatlon data abalJ the equipment, u wen u other omitted factual m,alters. " we acceJ1ed a secr.rily deposh from you, k win be held I7f us 10 secure your faitttul pertormance of this lease, and h will be retumed or applied u staled In Pl\Jagraph 14. You ahal pay 10 us a one-llme administrative fee of $25.00 to refmbllSe us for our starl-llp admlnislratlYe costs, 6, ASSIGNMENT: You may not sell, transfer, assign or sublesse the equipment. We may, without notifying you, seD, assign, transfer, encumber or pledge this lease,ln whale or In part, and ownership of the equipment; and you agree that H we do 10, the new lessor will hIVe the same rights and benelila that we now hsve, and the new lessor wRl not hsve to perform any of our obligations. You agree that the rights of tile new lessor will not be subject to any claims, defenses or setoffs thst you may hsve agslnst Ul. However, any such assignment, sale, or transfer of this lease or the equipment will not relieve us of our obllgstions to you under tills lease. 7. OWNERSHIP AND QUIET ENJOYMENT: We are the owner of the equlpmert and have thle to the equipment. W lIlY ather person aIIempts to claim ownership 0/ the equipment IxJy asserting that claim against you or through you, you agree, at your expense, to protect and defend our title to the e~lpment. Further, you agree that you will It allllmes keep the equlpmenl free from any legal process or lien whatsoever, end you shall give us Immed\ale notice H aJIf legal process or lien Is ssserted or made against the equipment. Sa long as you are not In defaul under any 0/ the terms In this lease, we agree that you shaD quietly use end enjoy the equipmert. 8. CARE, USE AND LOCATION: lOSS OF EQUIPMENT: You are I9Spanslble far Installl~ and keepI~ the eqLipment In goad warkl~ order and repair. You 818 responsible lor protecting the equipment from damage, except far ordinary wear and tear end from any other kind of lass while you have the equipmert or while h Is being deflVered to you. Even W the equipment Is damaged or Ios~ you agree to continue to pay rert You will keep and use the equlpmert only It your address shawn above. and you will any use ~ far buslness purposes and In compliance with aU applicable laws. You win not make any alterations to the equlpmert witho14 Ol.r prior written consent (Which we will not unreasonably withhold), nor will you permanently aIIach the e~lpmert to yoUI' real estate. You agree that you will not remavethe equlpmert from thai address unless you get our written pemissiln Ins advance. M.the end of the lerm of lease, you willretum the equipment to us, It your expense. 9. TAXES AND FEES: You agree to pay when due alllms, fines and penalties relating to this lease, the e~pment or the rentals hereunder. You also agree that we have the r1ght each yearto estimate the yearly personal pnlperty taxes that wil be due forthe equlpmert and that you wI1 pay us the estimated taxes when we request paymant "we pay aJIf of those taxes, fines or penal1las lor you, you agree to remburse us an demand. You ~Iso agree thai we have the right to sign your name to lIlY dacumert for the purpose of such 1iIIng, so long u the fin~ does not Irterfere with YOlK riglt to use the equlpmert.' 10. INDEMNITY: We are notrespanslble far lIlY Injuries or lasses to yoU or any ather person relating, In any matter whatsoever, to the Equlpmel't. YOUIlSSOOl8 mponsllillty for and agree to keep us. our successor and assigns hannIess from and agalnslaJlf and sllIabi1llIes,lasses, obl1gatlans, damages 0/ aJIf kind whalsoever, Includng reasonable attorneY's fees far any faUure on YOI.r part to pertonn or comply wlh lIlY candhlan of ~ lease. ThIs indemnity shall cantlnue even after the l8mI of this lease has explred. 11. INSURANCE: You agree to keep the eqLipinent fully InsLnd sgaInat II hazards InctudIng but not ImIled to lire, theft and extlnded coverage Insurance, urtl you have met aU your obligations under this lease. You agree to otnln I general pubi1c UabIIly Insurance polley, caverfng both personallr1urY end property damage, flllll1aJ1fone who Is acceJ1ab1eto us end to Include us as In insured an the polley. You ag188to provide us with C8ltIlIcates or ather evidence of InSUllllOllaccepl8ble to us. . lIlY Insurance proceeds III paid as I result d lIlY such lass or damage to the equipment, you agree thetsuch Insurance proceeds shall be paid to us to salIsfy your rental abI1gatIans underlhls~. H the equfpmlrt Is ellher last or tQlal1y destroyed, and yoU sre not In dlllault under the terms of this lease, Instead of contlnLing to pay us rent yoU have the o!tlan of paying us the then pl8sert value 0/ both the ~ balance of the remaining rent ~dertl'la leasl end the value of our residual Intel8Sl In the equipment, each camp14ed with a dlsaall1l rate of six (6%) percert peryear. 12. DEFAULT AND REMEDIES: If yoU do no! pay rent when due or. you break lIlY 0/ your promises under this lease, or you became Insalveli, assign your assail lor the benefd 0/ your craadors. or enter (valllllarlly or lnvaIurtarlly) a bankruptcy proceeding, you wiU be In default. "your defaUlts caused by your failUla la make lIlY payment when clJe. we can require that you retum Ihe equlpmert 10 us and pay to us thlremeirlng balance of all 01 the rental paymerts due under this lease, present valued llSirG I six (6%) percent per year cIscourt rate. W you faUto relum the e~lpment to us,ln addition we can also re~1re that you pay to us our raslduaIlnterest In the sqLipment, presert valued as noted above. You also agree to pay us Interest on aD sums due us lrom the data of default until paid at the rate of one end one-half (1- tfZ%) percent per morth, but only to thllextert permittld I7f law. . your delauh Is caused by your breaking aJIf of YOlK ather promises under this lease. we shalf be ertitled to I8COV8rfrom you aD damages caused by thlt type of default. We can also use lIlY 01 the remedies avalIablll to us under the Uriform Commen:1al Code or aJIf other law. W we refer this IeBSl to an altomey for enforcement or collectlan, you agree to pay Ol.r reasansble altomsy's fees of at least 20% of the remalrl~ balance 0/ dthe rental payments, and actual coslS. "we have to taka possesslan at the equlpmert, you al18e to pay the cost of repossesslan, stat'ng, shipping, repairing and leIIIng the equipment. Although you agl8llhat we are not obligated to do 10, . WI decide to seD the eqUlpmlnt, Ind we sre able to sell the equipment for I prlca thIIlXCMds the 111II of (s) our aasl 0/ ..possession end 1811 0/ the lqulpmenland (b) the I9Sldual vakle of the equipment, presert valued as *ulaled lbove, then wt shaD glvt you. credit forthe srnaunt d such excess. You agl1llllhet wt do not have to notify you that WI In slmng the equlpmert. :, 13. OTHER RIGHTS: You agree thll lIlY delsy orfalure to erlorca our rtglislllller this lease does not prevent us from enfordng lIlY rights at I faterdme. Bath parties Inland tl'la lease to be a valid and lagal dacumert, end agee thai. lIlY part ~ determined to be unenforcaable, aD alherparllwll remain In full farce end effact.lf this dacI.meIt Is not found to be I lease, then you grant us a seclrity Intel8Slln the equlpmert, You also give us the rlglt to inrnedIately file, It yoII' expense, lIlY Urform Commercial Code ('UCC") financing slatementa or related flings, as wel as the rIght to sign YOI.r name to any such filings that we ma](a. 14. REDELIVERY OF EQUIPMENT: In the evert you 00 not decide to pIRhase the equlpmertllCCOldl~ la the tenns of aJIf Pt.rd1ase OpIlan leUerthlt we have Issued to you,than when this lease expires, or Is tennlnated eerier, you shat dlscqnned, properly packags for trenspartalIan, end retum the equlpmert, freij1l prepaid, to us, In good repair, candllon end wartcIng Older, normal wear and lear excepled, to a location designated ~ us. . upon exprstlon or termination, yoU do not Immedlatsly return the equlpmert to us, II our aptian (a) WI wiW 8Il8ng& for removal oflhe e~ipmenl and you agree to pay us an arnall1leqtal to two (2) payments, 01' (b) the equipmert wil canlIJullo be held and leased by you far successive one-year perlads althe same reml In this lease stAljactlo the r1ght of ehher party to tennlnllethe lease upon twelve (12) months wrillen natIca, In which case you willmmediate\y deliver the Equipment to us as staled In this paragraph. Provided you hIVe fullilled ell of your obllgatfons to us under Ihls lease, wt wiD ehher refund yol.r S8CUliy deposit wIlhalJ lntel1lSt to you or It your dlrectlon apply k towards the pun:haSl a1lhe equipmert. 15. LATE CHARGE: W any pall 0/ I paymsnt Is not made by you when due, you al18e to pay us I fate charge 0/ ten (10%) percent 0/ each such \ale paymsnt, ilia only to the elller4 penritted by law. You agree to pay us the \ale charge nollater thin one molth folawlng the dale that original p&ymer4 was due. 16. ENTIRE AGREEMENT; CHANGES: ThIs lease corIaIns lhe entire agreernll1l between you and us and I may not be altered, amended, madilled, termlnaled or alhelWlse changed exceJ1 in wrhlng and signed bath by you end us. 17. MISCELLANEOUS: In the evert you laD to camplywith any part of this lease. we can, but we do not have to, taka aJIf don necassaryto efIect yourc:orJ1lUanca upanten (10) days prior written notica to you. W we are reqLired to pay any amalJ1t to obtain your compllanca, the amount we pay plus all of Ol.r expenses In causing yol.r campllanca, shaI became addtilnal rert end shall be paid I7f you at the time 0/ lhe next due relial paYment. . any notices are reqlired under IhIs lease, they shaI be sufficlert . given persanalt{ or mailed to the address set forflt In this lease by certKied or registered mall, postage prepaid. This lease Is lor the benerd of and Is bIndI~ upon you and your personal representadves, IUCC8SSOrs and asslp. AS USED IN THIS PARAGRAPH 17, "APPUCABLE JURISDICTION" MEANS THE STATE, AS MAY CHANGE FROM TlMETO TIME, WHERE THE HOLDER OF THE LESSOR'S INTEREST IN 1HIS ~SE MAINTAINS ITS PRINCIPAL OFFICE RESPONSIBLE FOR ADMINISTERING THIS lEASE. THIS LEASE SHALL BE BINDING WHEN ACCEPTED IN WRITING BY US AND SHALL BE GOVERNED BY THE LAWS OF THE APPUCABLE JURlSDICTlON, PROVIDED HOWEVER, IN THE EVENT THIS LEASE OR ANY OF ITS PROVISIONS CANNOT BE ENFORCED UNDER THE LAWS OF THAT STATE THEN THE LAWS OF THE STATE WHERE THE EQUIPMENT IS LOCATED SHALL GOVERN. AS USED IN THIS PARAGRAPH 17, "COUNTY OF APPUCABLE JURISDICTION" MEANS THE COUNTY WITHIN THE STATE, AS MAY CHANGE FROII TIME TO TIME, WHERE THE HOlDER OF THE LESSOR'S INTEREST IN THIS LEASE MAINTAINS PRINCIPAL OFACE RESPONSIBLE FOR ADMINISTERING THIS LEASE. YOU AGREE THAT THE COURT OF THE STATE FOR THE COUNTY OF APPLICABLE JURISDICTION OR ANY FEDERAL DISTRICT COURT HAVING THE JURISOICTlONIN THAT COUNTY OF APPlICABLE JURISDICTION SHALL HAVE JURlSDICl10N AND SHALL BE THE PROPER LOCATION FOR THE DETERMINATION OF ALL DISPUTES ARISING ~NDER THIS LEASE. You agree and consent that we may serve youl7f registered or certified mal, which shaI be slAflclenl to 01Uln turfsd1ctIan. Nothing stated In this lsase is Intended to prevert ui from commanding any action In any colli having proper jIIlslktlon. You walvell1al by ]uly In lIlY ai:tIan ~l\Y88n us. 18. UCc-ARTlCLE 2A PROVISIONS: You agr~ tIIat thlt 1iI.-1t I "Flnanc:e Las." UItder Article 2A of tha UnlIarm Commercial Cade, thll Is, you acknowledge that: (I) we did not S8lec~ manufacture or supply the equipment, blJ.t we dId purchase tha equipment for lease to YOUj and (b) we hlw given you the lIIIl\e 01 tha IUJlPller of tha equipment you lie leasing from us. The suppfl8l' Is set forth In thlt lease or on the sttached schedule. We hereby notify you Ihat you may hIVe rIghll under the supply contrlcts and that you msy conlactlhe supplier far a descripUon of those rights or any warranUes. TO: Recomm's Designated Leasing Company In reference to th. ..:a- /ease between.~" h ~~" ~6+h U9f ~ III ~f31i and Recomm's designated leasing company dated ~ ~ i; -., '3 , It S h+1 tJ Y) understood and acknowledged that this lease is non-cancelable for the term and that the .p ~ (( r M ~ " t. payments under the lease are due unconditionally regardle$s of any representation either t verbal or In writIng which may not have been made by the vendor of the equipment, ~~ lessee , , , B~~ (cf >>7' ;Vf.o. ~ ..' .' . E X H I BIT "E-2" , ,r-' TrllCDn TrtCcn Capital Cl::Il1Jor'Btlcn a GPe F/nandal Corporrufon company ASSUMPTION AGREEMENT This Agreement is made between TRICON CAPITAL, as Lessor,Scotchtown Apothecary Inc DBA Scotchtown Pharmacy, as Lessee(s), White,Shie1d, Inc., as Assignee, and Ronald Matteo, as Personal Guarantor ("PG"). WHEREAS, Lessee(s) wishes to assign its interest in Lease Number 7122527, dated 3/31/93, copy of which is annexed hereto; and WHEREAS, Assignee wishes to assume all of the terms, covenants and conditions of such Lease; and WHEREAS, Lessee(s) agrees to remain responsible for the obligations due under said Lease; and WHEREAS, PG agrees to remain responsible for his obligations tfnder his Personal Guarantee. NOW, THEREFORE, for and in consideration of the mutual covenants, conditions, stipulations, agreements and obligations hereinafter set forth, the parties agree as follows: 1. Lessee(s) hereby assigns, transfers and conveys to Assignee all its right, title and interest in the aforedescribed Lease and the equipment covered thereby. 2. Assignee hereby assumes all of the terms, covenants and conditions of said Lease and agrees to make payment of the rentals thereunder when due and to perform promptly all of the covenants, conditions and obligations contained therein. 3. Lessor hereby consents to the within assignment. 4. Lessee(s) agrees that the within assignment does not release Lessee(s) from any liability under the said Lease. 5. PG agrees that the within assignment does not release PG from any liability under his Personal Guarantee. 6. Assignee agrees to execute and deliver to Lessor Uniform CommerCial Code financing statements to further perfect Lessor's interest to the equipment under said Lease. BCJ[J Falrwtly 0r1Iie . SUte 300 0aer1IeId Beooch . R.. 33441 305.422.1900 FAx BCJ[JoC!3304479 '. .; .- ~rflCDn Tr1Ccn Capital Corporation /I GPe FtnIItrdtIJ CorportItton romJIIIny . 7. The unpaid balance ofrentals under said Lease is $9,542.40 payable in Thirty-two (32) consecutive monthly payments of $298.20 plus applicable sales/use tax, and the next monthly payment of rent is due7/31194. B' G e K TriCon (Lessor) ~~~{{f;! Scotchtown Pharmacy (Lessee) 'I! /.... ~te Shi~ (Assignee) hr~LuI Ro Matteo (personal Guarantor) Dated: cr r { ~ q'f Dated: pMv / Dated: t/It/~~ DalbOj,~ BOO ""'1rWey 0r1ve 0 SuIte 300 IleerneIct 8eooc:h . R. 3344\ 3CJS'422oI5lJO FAX BOOo23304479 E X H I BIT "E-3" STATEMENT OF REVISED LEASE TERMS AND OPTIONS UNDER FOURTH AMENDED PLAN **CORRECTED COPY** WHITE SHIELD INC 20 ERFORD RD P.O. BOX 623 LEMOYNE PA, 17043 June 30, 1998 The Fourth Amended Joint Plan of Reorganization ("Plan") for Recomm International Display, Inc., Recomm Operations Inc. and various related entities was confirmed by the United States Bankruptcy Court on May 13, 1998. As you may have read in the materials previously sent to you, the Plan provides you and other Participating Lessees with discounts and/or other concessions on your lease as set forth below. The Plan provides both the Participating Lessors (including FINOV A Capital Corporation) and the Participating Lessees (including you) with a release and injunction prohibiting the commencement or continuance of lawsuits brought by one against the other relating to events occurring prior to confirmation. The leases. including your lease, are held to be valid and binding and you are required to make payments on your lease as moditled under the Plan. This statement describes your revised lease terms and your payment options under your modified lease. Please read this statement carefully before selecting your payment option. You must make your payment election by completing the enclosed Election Form and returning it to us by July 30, 1998.. It is the desire and intention of the Participating Lessors to make this transition as easy as possible. You have the following payment options for your lease under the Plan: Option ! Number of Amount Due remaining Monthly Total to be Now monthly payment Paid · a ments amount 3768.36 0 0.00 3768.36 na na na na 1. Lump Sum: Pay the Revised Principal Balance, Effective Date Arrearage and any applicable sales tax in one lump sum to satis the Lease in full. 2. Pay Past-Due Now and Pay Remainder Over Time: Pay the Effective Date Arrearage plus any applicable sales tax in one lump sum, then make monthly payments plus pay any applicable sales tax for current remaining lease term until the Revised Princi aI Balance is satisfied. 3. Pay Past.Due Now and Pay Remainder Over Time (Extended): Pay the Effective Date Arrearage plus any applicable sales tax in one lump sum, then spread remaining payments plus any applicable sales tax over 60 months (for Dis la Boards) or 72 months (for Kiosks). 4. Pay Over Time: Spread Revised Principal Balance, including the Effective Dale Arrearage, over the current remaining term and a an a licable sales tax. 5. Pay Over Time (Extended): Spread Revised Principal Balance, including the Effective Date Arrearage, over 60 months for Display Boards or 72 months for Kiosks and pay an a Iicable sales tax. na na na na 0.00 16 1 4272.06 0.00 28 1 159.00 81.36 4533.36 The Total to be Paid is calculated by multiplying the number of rema1n1ng monthly payments by the monthly payment amount plus the amount now due and includes sales tax. This calculation assumes all payments are timely made over the remaining term of the revised lease. 'age 1 of 3 Lease Please note that not all options are :1.ilable for all leases. If "nla" appear.. JOU may not choose that option. The Option 1 balance shown reflects an additional 5% discount in addition to the Lease Discount Percentage already applied to your lease balance under the Plan. Option 1 also allows you to avoid future interest on your lease, and therefore represents the maximum savings available to you under the Plan, These calculations reflect the reduced principal balance, reduced interest rate and other concessions provided to you under the Plan. In some cases, the maximum monthly payment ($250 for Boards or $390 for Kiosks) or minimum monthly payment ($150 for Boards or $300 for Kiosks) will affect your available options. If you elect Option 1, your check for the appropriate Lump Sum amount should be enclosed with your Election Form. Following receipt of your election form selecting Option 1 and your check, we will send you a confirmation acknowledging that your Lease obligations have been satisfied in full. If you elect one of Options 2 through 5, your lease will be adjusted in order to reflecnhe revised contractual terms. If you do not make an election, you are deemed to have selected Option 4. If you elect Options 2 or 3, your check for the appropriate Past Due Amount (see item E below) is due on July 30, 1998. Under Options 2 through 5, your first revised monthly payment is due in August 1998. If you do not include your first monthly payment when you return the Election Form, you will be invoiced for payments due in August 1998 and September 1998. The revised lease information and payment options provided in this statement reflect all payments made through June 23, 1998. If you made any payment after June 23, 1998, you will receive credit for your payment. Please mark your option choice on the enclosed form and return it to us in the enclosed envelope by July 30, 1998. The Plan requires that any outstanding Personal Property Taxes on your Lease be paid by July 30, 1998. Our records indicate that the amount of Personal Property Tax currently owed by you is $0.00 (this total may include any estimated billing for 1997 and/or 1998 if your state has not assessed the actual amount as of yet). Regardless of which payment option yoiJ select, you must pay this property tax balance no later than July 30, 1998 (30 days after the Effective Date). For your convenience, this payment can be included in the return envelope along with your preference election if you so desire. Finally, for your information, under the terms of the Plan, we are providing you with the following lnformation with respect to the treatment of your lease under the Plan. Capitalized terms used in this statement have :he definitions provided in the Plan. Please see the Plan for a detailed explanation of the terms of the revised Leases. A. Effective Balance of Lease B. Lease Discount Percentage C. Principal Payments scheduled to be made after 12/31/95 D. Revised Principal Balance of Lease E. Effective Date Arrearage of Lease F. Revised Monthly Lease Payment if term is unchanged G. Revised Monthly Lease payment if term is extended to 60 months (or 72 months in the case of a Kiosk Lease) $ 4042.44 1~.22 % $ 4174.80 $ 3742.17 $ 4213.57 $ 265.00 $ 159.00 If you require further information about the calculation of your payment options, please contact our customer ;ervice department at (800) 839-9099. If you have other questions concerning the Plan,. please call Andrew Connor, :nformation Coordinator for the Official Committee of Unsecured Creditors, at 312-861-2000. 'age 2 of 3 Lease - ELECTION FORM Please mark below the option you wish to select. Select only one option. 1 Lump Sum 2 Pay Past-Due Now and Pay Remainder Over Time 3 Pay Past-Due Now and Pay Remainder Over Time (Extended) 4 Pay Over Time S Pay Over Time (Extended) If you elect Option 1, please include a check for the appropriate amount in the same envelope. Under Options 2 through 5, your first revised monthly payment is due in August 1998. If you do not include your first monthly payment when you return the Election Form, you will be invoiced for payments due in August 1998 and September 1998. Please be aware that this document must be received by FINOVA on or before July 30. 1998 (30 days after Effective Date) in order for your preference to be honored. If we do not receive your response indicating your preference by that date, you will be deemed to have selected option 4. When completed, mail the form (and your check, if selecting Option 1) to: FINOV A Capital Corporation Ann: Lease Administration 7272 East Indian School Rd, Suite 410 Scottsdale, AZ 85251 WHITE SHIELD INC/Lease # 7122527 e 3 of 3 Lease 7 E X H I BIT "E-4" " FIN07A FINANCIAL INNOVATORS D;cember 1-1. 1999 \\'HITE SHIELD INC P.O. BOX 623 LE:.10ThE. PA 17043 .-\[m: THOMAS TRITE FINQVA CAPITAL CORPORATION PORTFQUO MANAGEMENT 4800 NORTH SCOTTSDALE ROAD SCOTTSDAlE. AI. 85251,7623 TEl 800 839 9099 FAX 480 636 6758 W'WW. finoyo,com RE: Lease # 7122527R Dear WHITE SHIELD INC & THOMAS TRITE: Please be advised that the above-referenced lease agreement between FINOV A Capital Corporation. as lessor, WHITE SHIELD INC as lessee. and THOMAS TRITE. as personal guarantor of the obligations of WHITE SHIELD INC, has a past due amount 01'$4,597.07. This past due amount includes the following: 54.030.25 $241.82 $325.00 i: $4,597.07 DueiUnpaid revised monthly lease rentals Sales/use taxes Late charges Personal orooertv taxes. Total Past Due Amount Fr.-JOV A Capital Corporation must receive this payment at our offices within ten (10) days of the date of this letter in order to bring your account current. As you are aware, ,in 1998, the United States Bankruptcy Court for the Middle District of Florida, Judge Alexander Paskay, con finned a plan of reorganization (the "Plan") in the consolidated cases captioned In Re: ODtical Technoloeies. Inc. The Plan contained provisions which granted certain discounts and adjustments to lease balances for lessees of equipment manufactured by Recomm International Display Inc. (and related companies). The Plan and Confinnation Order also detennined (I) that the Leases are valid and binding in accordance with their tenns (as modified by the Plan). and (2) that the obligations under the Leases (as modified by the Plan) are enforceable, and are not subject to any claims, demands, defenses, set-otTs or counterclaims arising out of actions, activities or events which took place before June 30, 1998. If payment for the full past due amount is not received in our office within ten days, the tenns of the lease provide [hat FINOV A may accelerate and demand immediate payment of all payments required under the lease (as modified by the Plan). If FINOV A accelerates the payments due to your continuing default. the current accelerated amount that you, as lessee or personal guarantor. will be required to pay is S5.056.78. In addition, if FI~OV A brings legal action against you to enforce these obligations, you may also be liable for additional interest, late charges and attorneys' fees and expenses. Please remit payment to FINOV A at the above referenced address. mail station 3E60 within ten (10) days of the dale of this letter to avoid any further collection efforts and/or legal recourse. I f you have any questions, please feel free to contact the undersigned at 480-636-51 02. !~&-~~ \~~\ \ ,,~. ' /\\ ) Sincerely, FINOV A Capital Corporation Jim J. Searles A VP-Portfolio Manager EX H I BIT "F-l" LEASE AGREEMENT Recomm International Display Ltd. 7650 Courtney Campbell Causeway Suite 1050 Tampa, FL 33607 I ~MONTHlYPAYMENTSOF$ ";118,)-0 (applicable1aXes to be billed) VENDOR PAYABLE AT SIGNING OF THE LEASE (check one) ~ :OUIPMENT DESCRIPTION: )ty: ...L Recomm Vox Apothecary System Serial Number: :OUIPMENT lOCATION IF OTHER THAN BELOW. "ji?-FIRST MONTHS PAYMENT o OTHER ~1g I~C Jear Lessee: We have writUln 1IIis lease in plain language because we want you to fully understand its tanns. Please reed your copy of this lease carefully end feel free to ask us any questions IOU may have aIleut it. We use the wards XllU. and XllJj[ to mean the lessee indicated below. The wordS:do II&. and lIW: refer to the lessor indicated below. You au1ll0rize 1JS 10 add our name as -8Ssor after you heve signed 1IIe document l1t stamping or printing our name in 1IIe appropriate place. 1. LEASE AGREEMENT: You agree to lease from us and we agree to lease to you the equipment listed aIleve, which you agree will be used for business purposes only. You :>romise to pay us the sum of all of 1IIe rental payments indicated an 1IIe schedule above and/or attached, which sum can be calculated I7t multiplying 1IIe number of payments times 1IIe Jayment amount indicated on the schedule(s). . 2. ORDERING EQUIPMENT: You request thet we arrange delivery to you at your expense: K the equipment has not been delivered. installed, and accepted I7t you within forty-live :45) days fram 1IIe date 1IIat we ordered the equipmen~ we may on ten (10) days written notice to you terminate1lleleese and our obligations to you. In the event that we have issued a :lUrchase contract or order far 1IIe equipment. you agree that the purchase order or contract is acceptable 10 you. K you have entered inlo a purchase contract far the equipment, you agree to assign it to us, eKective when we pay far equipment. 3. NO WARRANTIES: W. ....I...lng thllqulpmentto you "AS IS". WE MAKE NO WARRANTIES, EXPRESS OR Ir.I'UED, REGARDING ANY MATTER, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR ORDINARY USE IN CONNECTION WITH THIS LEASE.1fihe Vendor or anyone else had made a representation or warranty to you as 101lle equipment or any 01ller matter, you agree that any such represen\atian or wenanty shsll not be binding on us, nor shall the breal:h of such relieve you of, or in any way effect, lIlY ofyourobligatians 10 us under this lease. If 1!1e equipment is not satisfactory far.ny reason, you shell make your claim only against the Vendor and you shall nevertheless pay us all rent payeble under this lease. Sa long as you are not in default under lIlY of 1IIeterrns of 1IIis lease, we transfer to you any warranties made to us I7t the Vendor, manufaclurer or supplier. YOI! understand end agree that the Vendor, its agents and employees ere not agents of ours. nor are they authorized to waive or change any term or condition of this lease. yOU AGREE THAT, REGARDLESS OF CAUSE, YOU WILL NOT ASSERT M4Y CLAIM WHATSOEVER AGAtlST US FOR LOSS OF PROFITS YOU EXPECTED TO MAKE OR ANY OTHER DIRECT, SPECIAL OR INDIRECT DAMAGES. If you heve entered into a maintenance agreement with respect to the equipmentw the cost of such maintenance agreement is to be paid I7t us to the Vendor or someone else. 1IIen you acknowledge that we shall not be responsible for the service, repairs, or maintenance of 1IIe equipment, that we are not a party to lIlY such maintenance agreemen~ end even if you have a dispute regarding maintenance or SeMce you will continue to pay us all rental end maintenance paymenls due under 1IIis lease and all schedules to this leese. 4. NONoCM4CEUABLE LEASE: This lease cannot be cancelled by you. R RSE SIDE F R A ITION T RMS M4D ACCEPTED: LESSOR ~ \ ~,~. B1~~ ~{'e..x.ti ~{"ClC)~ ~~. aJ}\O..ti ~~ ~1\W~ATe ~~. PHONENO.(8IS1 d5'\ -63,1...0 \,q,~~~ ZIP OATED: ,-( h /93 I . BY ~BtIIAllIl1llc ..... 85111rtt' TrlConl....'r_... IIiIatt J1,.., .=....~.,l-, '--llJo~ ~ (}4~4i4 e.r.~ ~;J193 TITLE DATE: PERSONAl. GUAIIAHTY I inl'OCablr gUIIIl1llo Ill'''' __.. _11I__.... por II ... _ cl\a'gn "",,001 under NIl... _Iloy............ """"" II.... obIgaIoro under...... Uy.... promplr. TH.pr...., "'" be I guatanIy of paym..t ..d perform....endnotol_.I...agr.....you may...... _ ....-_wi.. ..._....I..be'_oIliIelor ....paym_........obIIg_lwlI_lIIyporilacccrdlnoe......._IIICM.allof......1II Slm. due Ill. ... origNI """.01......'" wIIs-nll _ obIgelon. 01 __ unci_ ...,_, .Many d.... a rIgI1IIlo be I aodlla 01... -. ~'" a.lI _ may ..... .,oUt of IllS-lam.... ""__, ..d , ..... myrif1t 10 lie Id"'III_"'___oI..._lor any..... plidbym.loyou illCCClld"""wi" ...lImlIoI....pr....,.I.. '_Y"'..III...._Y"'ila.rlnenladng ..yol,... ~1I111_..._a..., Ind~ alklnty .....1I1i'lu OOfJXll'U ,...antf,ltll autlOl'lzecl by.... eo.d of 0Ir1dcr1 01.... gu.an..ng cupordcn.lf tlI.1I1. paI"'''- ~anlr, lllauflorlzed under f'lI,.... ......ll AGREE THAT THIS GUARANlY SHAlL BE SUBJECTTO THE TeRMS AHa CONOIl1ONS OF SECTION 17 OF THIS LEASE. THIS GUARANTY SHALL BE GOVERNED BY THE lAWS OF THE STATE OF APPUCAIU JURISllICTION. I>S DEFINEO IN SECTION 17.1 oIGREE ANIl CONSENT THAT THE COIM\T OF THE STAT THE COUNTY OF APPlICABLE JURISQlCTION OR ANY FEDERAL DISTRICT COURT HAVING JURISOlCTION IN THAT COUITY OF APPUCABlE JURlSOCTION SHAlL HAVE JURISDICTION AHa SHALL BE PROPER lOCA DElERMlNA DISPUTES ARISING UNllER THIS LEASE. 111I'.'" ...,Y"'lMy....... by '._ Or ,.-111001 mil, _ wil be ..._" _ ilfiodiclal. I ....~. by juy in ..yacl<in_ 8'/13 DATED X PERSONAl. GUARANTOR SIGNAllJRE, AN INDIVIDUAL DATED X WITNESS SIGNAllJRE 5. TERM OF LEASE. AOMINISTRATIVE FEE: The lease term will start on the date that any eQuipment is delivered to you or your agent ("the Commencement Datel and will continue until you have met all of your obligallons under the lease. Advance rentals are not refundable if the lease does not begin for any reason. the payments of rent are payable periodically in advance as stated above or on any schedule to this lease. The first payment is due on the Commencement Date. You will be notified in writing if we change the date of your first payment. Thereafter. consecutive periodic payments will be due on the same day each period indicated an the reverse side. All payments will be made to us at our address an this lease or at another address which we would designate in writing. Your obligation to pay rentals to us is unconditional and is not subject to any reduction. set-aft. defense or counterclaim for any reason whatsoever., You authorize us to insert serial numbers and other identific~tion data a~ut the eQuipment. as weU as other omifted factual matters. if we accepted a security deposit from you. It will be held by us to. secure your falthfullJtlrformance of this lease. and It will be returned or applied as stated .1". Paragraph 14. You shall pay to us a one-time administrative fee of $25.00 (or. If we notify you. some alternative amount not to exceed 545.00) to reimburse us for our start-up administrative costs. 6. ASSIGNMENT: You mlY nolnll. tnllller, IUlgn or sublean the equipment We mlY. wllhoul notifying you. sell. uslgn or transfer II1lsl1111 Ind lIWIleI1hlp of the equipment; Ind you Igree that II we do IG,the new 111IIOI' will hlvelhe ume r1ghls Ind benefits that we now hive, Ind the new 111IIOI' will not hive to per1ann Iny III our obIlPlIons. You Igree tI1Illhe rights III the new lessor will not be subject 10 Iny clllms. defenses or lIIoffsll1ll you mlY hive Iglinst us. However, Iny such IUlgnment. ule. or lnnIIer III Ifill Iau or the equipment will nal relieve us DI our obllgllions 10 you under !hilleale. 7. OWNERSHIP AND OUIET ENJOYMENT: We are the owner of the equipment and have title to the eQuipment. If any other person attempts to claim ownershir of the equipment by asserting that claim against you or through you. you agree. at your expense. to protect and defend our title to the equipment. Further. you agree that you wil at a/ltimes keep the eQuipment free trom any legal process or lien whatsoever, and you shall give us Immediate notice if .any legal process or lien is asserted or made iI!lainsl the. equipment. So long as you are not in default under any of the terms In thiS lease. we agree that you shall QUietly use and enJoy the equipment. 8. CARE. USE AND LOCATION: LOSS OF EOUIPMENT: You are responsible for installing and keeping the equipment in good working order and repair. You aremponsible lor protecting the eQuipment from damage. except for ordinary wear and tear and from any ather kind of loss while you have the equipment or while it is being delivered to you. Even if the equipment is damaged or lost. you agree to continue to pay rent. You will keep and use the eQuipment only at your address shawn above, and you win only use it far business purposes and in compliance with all applicable laws. You will not make any alterations to the equipment without our prior written consent (which we will not unreasonably withhold), nor will you permanently attach the equipment to your real estate. You agree that you will not remove the equipment from that address unless you get our written perrRlssion in advance. At the end of the term of lease. you will return the equipment to us. at your expense. 9. TAXES AND FEES: You agree to pay when due all taxes. fines and penalties relating to this lease. You also agree that we have the right each year to eslimate the yearly personal property taxes that will be due for the equipment and that you will pay us the estimated taxes when we reQuest payment. If we pay any of those taxes, fines or penalties far you. you agree to reimburse us on demand. You also agree that we have the right to sign your name to any document for the purpose of such filing. so long as the filing does not interlere with your right to use the eQuipment. 10. INOEMNITY: We are notresponsible for any injuries or lasses to you or any ather person caused by the installation or use of the equipment. You agree to reimburse us for and to defend us against any claims for such losses or InJunes. ThiS Indemmty shall conllnue even after the term of thiS lease has expired. 11.INSURANCE: You agree to keep the eQuipment fully insured against lass until you have met all your obligations under this lease. You agree to obtain a general public liability insurance policy. covering both personal injury and property damage. from anyone who is acceptable to us and to include us as an insured an the policy. You agree to provide us with certificates or other eVIdence of Insurance acceptable to us. If any Insurance proceeds are paid as a result of any such lass or damage to the equipment. you agree that such insurance proceeds shall be paid to us to satisly your rental obligations under this lease. If the equipment is either last or totally destroyed. and you are not in default under the terms of this lease. instead of continuing to pay us rent you have the option of paying us the then present value of bath the unpaid balance of lhe remaining rent under this Lease and the value of our residual interest in the eQuipment, each computed with a discount rate of six (6%) percent per year. 12. DEFAULT AND REMEDIES: If y.ou do not pay rent when due or if you break any of rour promises under this lease. or you became insolvent. assign your assets for the benefit of your creditors. or enter (voluntanly or involuntarily) a bankruptcy proceeding. you wil be in default. If your default is caused by your failure to make any payment when due. we can require that you return the equipment to us and pay to us the remaining balance of all of the rental payments due under this lease. present valued using a six (6%) percent per year discount rate. If you fail to return the equipment to us. in addition we can also reQuire that you pay to us our residual interest in the equipment. present valued as noted above. You also agree to pay us interest on all sums due us from the date of default until paid at the rate of one and one-half (1-112%) percent per month, but only 10 the extent perm~ted by law. If your default is caused by your breaking any of your ather promises under this lease. we shall be entitled to recover from you aJraamages caused by that type of default. We can also use any of the remedies available to us under the Uniform Commercial Code or any ather law. If we refer this lease to an attorney far enforcement or collection, you agree to pay our reasonable attorney's fees of at least 20% of the remaining balance of all the rental payments, and actual costs. If we have to take possession of the equipment, you agree to pay the cast of repossession, storing. shipping. repairing and selling the eQuipment. Although you agree that we are not obligated to do sa, if we decide to sell the equipment. and we are able to sell the equipment far a price that exceeds the sum of (a) our cost of repossession and sale of the equipment and (b) the residual value of the equipment. present valued as calculated above. then we shall give you a credit for the amount of such excess. You agree that we do not have to notify you that we are selling the equipment. 13. OTHER RIGHTS: You agree that any delay or failure to enforce our rights under this lease does not prevent us from enforcing any rights at a laler time. Bath parties intend this lease to be a valid and legal document. and agree that if any part is determined to be unenforceable. all other parts will remain in full farce and effecllf this document is not found to be a lease. then you grant us a security interest in the equipment. You also give us the right to immediately file, al your expense. any Uniform Commercial Code rUCCl financing statements or related filings. as well as the right to sign your name to any such filings that we make. 14. REDELIVERY OF EOUIPMENT: In the event you do not decide to purchase the equipment according to the terms of any Purchase Option Letter that we have issued to you, then when this lease expires, or is terminated earlier, you shall disconnect, properly package far transportation. and relurn the equipment freight prepaid, to us. in good repair. condition and working order. normal wear and tear excepted, to a location designated by us. If upon expiration or termination, you do not immediately return the equipment to us, at our option (a) we will arrange for removal of the eQuipment and you agree to pay us an amount equal to two (2) payments. or (b) the equipment will continue to be held and leased by you far successive one-year periods at the same rental in this lease subject to the right of either party to terminate the lease upon twelve (12) months written notice, in which case you will immediately deliver the Equipment to us as stated in this paragraph. Provided you have fulfilled all of your obligations 10 us under this lease, we will either refund your security deposit withouf interest to you or at your direction apply it towards the purchase of the eQuipment. 15. LATE CHARGE: If any part of a payment is not made by you when due. you agree to pay us a late charge of ten (10%) percent of each such late payment, but only to the extent permitted by law. You agree to pay us the late charge not later than one month following the date that the original payment was due. 16. ENTIRE AGREEMENT: CHANGES: This lease contains the entire agreement between you and us and it may not be altered, amended. modified, terminated or otherwise changed except in writing and signed both by you and us. t 7. MISCELLANEOUS: In the event you failto comply with lIlY part of tlis lease. we cal\ but we do not have to, taka lIlY action 118C&sSaJY to effect your compliance upon ten (10) clays prior written notice 10 you. ff we are Illquil1d to pay any smaunl to obtain your compliance. the amount we pay plus all of our expsn S8S in causing your complance, shall became addtianal rent end shall be paid by you althe time of the next due Illnlal payment. ff any notices are required under this lease, they shall be sufficient ff liven personally or mailed to the address set forth In tlis lease by certffied or Illgistel1d maR, postage plllpaid. TIis lease is far the benefit of end is binding upon you and your personal r&plllS8nlatives, SUCC8SSQ/S and assigns. AS USED IN THIS PARAGRAPH 17, "APPLICABLE JURISDICTION" MEANS THE STATE, AS MAY CHANGE FROM TIMETO TIME, WHERE THE HOLDER OF THE LESSOR'S INTEREST IN THIS LEASE MAINTAINS ITS PRINCII'AL OFFICE RESPONSIBLE FOR ADMINISTERING THIS LEASE. THIS lEASE SHAll BE BINDING WHEN ACCEPTED IN WRmNG BY US AND SHAlL BE GOVERNED BY THE LAWS OF THE APPliCABLE JURISDICTION, PROVIDED HOWEVER, IN THE EVENT THIS LEASE OR ANY OF ITS PROVISIONS CANNOT BE ENFORCED UNDER THE LAWS OF THAT STATE THEN THE LAWS OF THE STATE WHERE THE EQUIPMENT IS lOCATED SHAll GOVERN. AS USED IN THIS PARAGRAPH 17, "COUNTY OF APPLICABLE JURISDICTION" MEANS THE COUNTY WITHIN THE STATE, AS MAY CHANGE FROM TIME TO TIME, WHERE THE HOLDER OF THE LESSOR'S INTEREST IN THIS LEASE MAINTAINS PRINCIPAL OFFICE RESPONSIBLE FOR ADMINISTERING THIS LEASE. YOU AGREE THAT THE COURT OF THE STATE FOR THE COUNTY OF APPlICABLE JURISDICTION OR ANY FEDERAL DISTRICT COURT HAVING THE JURISDICTION IN THAT COUNTY OF APPLICABLE JURISDICTION SHAll HAVE JURISDICTION AND SHAll BE THE PROPER LOCATION FOR THE DETERMINATION OF ALL DISPUTES ARISING UNDER THIS lEASE. You agree and consent thai we may selVt you by registered or certffied mail, which s.hall be sufficienlto obtain jurisdIclion. Nothing stated in this lease is intended to prevent us from commanding any action In any court having proper jurisdiclian. You waive trial by jury In anyaclion between us. 18. UCC-ARTICLE 2A PROVISIONS: You Igr88 thltthis Ielse is I "Finlnce leIse" under Article 2A of the UnHarm Commercial Code; thlt Is, you acknowledge thlt: (I) we did nol select, manufacture or supply fhe equiprnen~ but we did purchlse the equipment for lease \0 you; and (h) we have given youlhe n.",. of the supplier 01 thuquipment you an leasing from us. l11e supplier IS set forth In this Ielse or an the atfschad schedule. We hereby notify you thlt you may hive rights under the supply ContrlctS and thlt you mlY contact the supplier for I description of those rights or any w.ranties. TO: Recomm's Designated leasing Company In reference to the att. achod I.as. betwaen ~~ ~C> \::,!,h. I:o<-<->,<-Ilw.,l ~N';J~ and Recomm's designated leasing company dated r... 't '3 . it is understood and acknowledged that this lease is non-cancelable for the term and that the payments under the lease are due unconditionally regardless of any representation either verbal or In writing which may not have been made by the vendor of the equipment. ~~ ~~tN1l.) ~.~.~. b~lY3~ot. tN0~ Lessee 61~ \)1) \ . E X H I BIT "F -2" ., . " TriCan ASSUMPTION AGREEMENT This Agreement is made between TRICON CAPITAL, as Lessor, Drexel Brook Drugs, as Lessee(s), White Shield, Inc., as Assignee, and Frank Gerolamo, as Personal Guarantor ("PG"). WHEREAS, Lessee(s) wishes to assign its interest in Lease Number 7123579, dated 04/16/93, copy of which is annexed hereto; and WHEREAS, Assignee wishes to assume all of the terms, covenants and conditions of such Lease; and WHEREAS, Lessee(s) agrees to remain responsible for the obligations due under said Lease; and WHEREAS, PG agrees to remain responsible for his obligations under his Personal Guarantee. NOW, THEREFORE, for and in consideration of the mutual covenants, conditions, stipulations, agreements and obligations hereinafter set forth, the parties agree as follows: 1. Lessee(s) hereby assigns, transfers and conveys to Assignee all its right, title and interest in the aforedescribed Lease and the equipment covered thereby. 2. Assignee hereby assumes all of the terms, covenants and conditions of said Lease and agrees to make payment of the rentals thereunder when due and to perform promptly all of the covenants, conditions and obligations contained therein. 3. Lessor hereby consents to the within assignment. 4. Lessee(s) agrees that the within assignment does not release Lessee(s) from any liability under the said Lease. 5. PG agrees that the within assignment does not release PG from any liability under his Personal Guarantee. 6. Assignee agrees to execute and deliver to Lessor Uniform Commercial Code financing statements to further perfect Lessor's interest to the equipment under said Lease. '-' . . -' "'TriCun 7. The unpaid balance of rentals under said Lease is $ 10,138.80 payable in Thirty-Four (34) consecutive monthly payments of $298.20, plus applicable sales/use tax, and the next monthly payment of rent is due 06/19/94. TR~N ~P~Pff A A ~~ By' YjtIJ<()/I(jf) Dated: tt I y4 lsa aras TriCon Capital (Lessor) .y~kt~{\ ~ 1BY~~ White 1 d, Inc. (Assignee) Dated: '\ - Co- q ~ - Dated: r/2i/'iY I .;:;~~ ~^J\ Dated: 9 - 6-<14- (Personal Guarantor) 8. This assignment will be accepted by Lessor upon return of the signed document and a check in the amount of $-0- covering the past due balance of the account. EX H I BIT "F-3" Sl'A TEMENT OF REVISED LEASE TERMS AND OPTIONS UNDER FOURTH AMENDED PLAN "''''CORRECTED COpy"'''' WHITE SHIELD INC 20 ERFORD RD P.O. BOX 623 LEMOYNE PA, 17043 June 30, 1998 The Fourth Amended Joint Plan of Reorganization ("Plan") for Recomm International Display, Inc.. Recomm Operations Inc. and various related entities was confirmed by the United States Bankruptcy Court on May 13, 1998. As you may have read in the materials previously sent to you, the Plan provides you and other Participating Lessees with discounts and/or other concessions on your lease as set forth below. The Plan provides both the Participating Lessors (including FINOV A Capital Corporation) and the Participating Lessees (including you) with a release and injunction prohibiting the commencement or continuance of lawsuits brought by one against the other relating to events occurring prior to confirmation. The leases, including your lease, are held to be valid and binding and you are required to make payments on your lease as modified under the Plan. This statement describes your revised lease terms and your payment options under your modified lease. Please read this statement carefuny before selecting your payment option. You must make your payment election by completing the enclosed Election Form and returning it to us by July 30, 1998. It is the desire and intention of the Participating Lessors to make this transition as easy as possible. Amount Due Monthly Total [0 be Now paymem Paid * amount 4652.72 0 0.00 4652.72 na na na na You have the following payment options for your lease under the Plan: Option 1. Lump Sum: Pay the Revised Principal Balance, Effective Date Arrearage and any applicable sales tax in one lump swrt to satis the Lease in full. 2. Pay Past-Due Now and Pay Remainder Over Time: Pay the Eftective Date Arrearage plus any applicable sales tax in one lump sum, then make monthly payments plus pay any applicable sales tax for current remaining lease term until the Revised Princi aI Balance is satisfied. 3. Pay Past-Due Now and Pay Remainder Over Time (Extended): Pay the Effective Date Arrearage plus any applicable sales tax in one lump sum, then spread remaining payments plus any applicable sales tax over 60 months (for Dis la Boards) or 72 months for Kiosks). 4. Pay Over Time: Spread Revised Principal Balance, including the Effective Date Arrearage, over the current remaining term and a an a licable sales tax. 5. Pay Over Time (Extended): Spread Revised Principal Balance, including the Effective Date Arrearage, over 60 months for Display Boards or 72 months for Kiosks and pay an a Iicable sales tax. na na 0.00 0.00 36 I na na 265.00 82.34 5382.34 159.00 89.43 5813.43 The Total to be Paid is calculated by multiplying the number of rema~n~ng monthly payments by the monthly payment amount plus the amount now due and includes sales tax. This calculation assumes all pai~ents are timely made over the remaining term of the revised lease. 'age 1 of 3 Lease 71 ~3579 Please note that not all options are ( 'lable for all leases. If "nla" appear~ JU may not choose that option. The Option 1 balance shown reflects an additional 5% discount in addition to the Lease Discount Percentage already applied to your lease balance under the Plan. Option 1 also allows you to avoid future interest on your lease, and therefore represents the maximum savings available to you under the Plan. These calculations reflect the reduced principal balance, reduced interest rate and other concessions provided to you under the Plan. In some cases, the maximum monthly payment ($250 for Boards or $390 for Kiosks) or minimum monthly payment ($150 for Boards or $300 for Kiosks) will affect your available options. If you elect Option 1, your check for the appropriate Lump Sum amount should be enclosed with your Election Form. Following receipt of your election form selecting Option 1 and your. check, we will send you a confirmation acknowledging that your Lease obligations have been satisfied in full. If you elect one of Options 2 through 5, your lease will be adjusted in order to reflect the revised contractual terms. If you do not make an election, you are deemed to have selected Option 4. If you elect Options 2 or 3, your check for the appropriate Past Due Amount (see item E below) is due on July 30, 1998. Under Options 2 through 5, your first revised monthly payment is due in August 1998. If you do not include your first monthly payment when you return the Election Form, you will be invoiced for payments due in August 1998 and September 1998. The revised lease information and payment options provided in this statement reflect all payments made through June 23, 1998. If you made any payment after June 23, 1998, you will receive credit for yourpayment. Please mark your option choice on the enclosed form and return it to us in the enclosed envelope by July 30, 1998. The Plan requires that any outstanding Personal Property Taxes on your Lease be paid by July 30, 1998. Our records indicate that the amount of Personal Property Tax currently owed by you is $0.00 (this total may include any estimated billing for 1997 and/or 1998 if your state has not assessed the actual amount as of yet). Regardless of which payment option you select, you must pay this property tax balance no later than July 30, 1998 (30 days after the Effective Date). For your convenience, this payment can be included in the return envelope along with your preference election if you so desire. Finally, for your information, under the terms of the Plan, we are providing you with the following nformation with respect to the treatment of your lease under the Plan. Capitalized terms used in this statement have he definitions provided in the Plan. Please see the Plan for a detailed explanation of the terms of the revised Leases. A. Effective Balance of Lease B. Lease Discount Percentage C. Principal Payments scheduled to be made after 12/31/95 D. Revised Principal Balance of Lease E. Effective Date Arrearage of Lease F. Revised Monthly Lease Payment. if term is unchanged G. Revised Monthly Lease payment if term is extended to 60 months (or 72 months in the case of a Kiosk Lease) $ 5146.52 15.67% $ 5367.60 $ 4620.38 $ 5278.14 $ 265.00 $ 159.00 If you require further information about the calculation of your payment options, please contact our customer ervice department at (800) 839-9099. If you have other questions concerning the Plan, please call Andrew Connor, nformation Coordinator for the Official Committee of Unsecured Creditors, at 312-861-2000. age 2 of3 Lease 7123579 ELECTION FORM Please mark below the option you wish to select. Select only one option. 1 Lump Sum 2 Pay Past-Due Now and Pay Remainder Over Time 3 Pay Past-Due Now and Pay Remainder Over Time (Extended) 4 Pay Over Time 5 Pay Over Time (Extended) If you elect Option 1, please include a check for the appropriate amount in the same envelope. Under Options 2 through 5, your fIrst revised monthly payment is due in August 1998. If you do not include your fIrst monthly payment when you return the Election Form, you will be invoiced for payments due in August 1998 and September 1998. Please be aware that this document must be received by FlNOVA on or before July 30, 1998 (30 days after Effective Date) in order for your preference to be honored. If we do not receive your response indicating your preference by that date, you will be deemed to have selected option 4. When completed, mail the form (and your check, if selecting Option 1) to: FINOV A Capital Corporation Attn: Lease Administration 7272 East Indian School Rd, Suite 410 Scottsdale, AZ 85251 WHITE SHIELD INC/Lease # 7123579 'age 3 of 3 Lease 7123579 EX H I BIT "F-4" December 14, 1999 WHITE SHIELD INC P.O. BOX 623 LEMOYNE, PA 17043 Attn: THOMAS TRITE RE: Lease # 7123579R Dear WHITE SHIELD lNe & THOMAS TRITE: Please be advised that the above-referenced lease agreement between FINOV A Capital Corporation, as lessor, WHITE SHIELD INCas lessee, and THOMAS TRITE, as personal guarantor of the obligations of WHITE SHIELD INC, has a past due amount ofS4,830.00. This past due amount includes the following: $4,250.00 $255.00 $325.00 i: $4,830.00 DuelUnpaid revised monthly lease rentals Sales/use taxes Late charges Personal orooertv taxes. Total Past Due Amount FINOV A Capital Corporation must receive this payment at our offices within ten (10) days of the date of this letter in order to bring your account current. As you are aware, in 1998, the United States Bankruptcy Court for the Middle District of Florida, Judge Alexander Paskay, confirmed a plan of reorganization (the "Plan") in the consolidated cases captioned In Re: Ootical Technolol!ies. Inc. The Plan contained provisions which granted certain discounts and adjustments to lease balances for lessees of equipment manufactured by Recomm International Display Inc. (and related companies). The Plan and Confinnation Order also detennined (I) that the Leases are valid and binding in accordance with their tenns (as modified by the Plan), and (2) that the obligations under the Leases (as modified by the Plan) are enforceable, and are not subject to any claims, demands, defenses, set-offs or counterclaims arising out of actions, activities or events which took place before June 30, 1998. If payment for the full past due amount is not received in our office within ten days, the terms of the lease provide that FINOV A may accelerate and demand immediate payment of all payments required under the lease (lis modified by the Plan). If FINOV A accelerates the payments due to your continuing default, the current accelerated amount that you, as lessee or personal guarantor, will be required to pay is $6,470.33. In addition, if FINOV A brings legal action against you to enforce these obligations, you may also be liable for additional interest, late charges and attorneys' fees and expenses. Please remit payment to FINOV A at the above referenced address, mail station 3E60 within ten (10) days of the date of this letter to avoid any further collection efforts and/or legal recourse. If you have any questions, please feel free to contact the undersigned at 480-636-5 102. Sincerely, FINOV A Capital Corporation Jim J. Searles A VP-Portfolio Manager EX H I BIT "G-l" LEASE AGREEMENT SCHEDULE OF PAYMENTS VENDOR Recomm International Display Ltd. 7650 Courtney Campbell Causeway Suite 1050 Tampa, Fl 33607 -, ~MONTHLYPAYMENTSOF$ 29f. ~ (applicable lSXes to be billed) ~ PAY ABLE AT SIGNING OF THE LEASE (check onel EOUIPMENT DESCRIPTION: Qty: -L- Recomm Vox Apolhecary System Serial Number: EOUIPMENT LOCATION IF OTHER THAN BaOW. )>67 FIRST MONTHS PAYMENT ;;1-9' 8"". ;;L.{!) o OTHER Desr lessee: We have wrinen lI1ill88se in pilin langL8g8 becauI. we want you 10 fully undersllnd its lerms. Pleese r&lId your colli' olthialeue carefully and feet free III ask UlI/lY ql*lianI you may haveaboul it We use1hewords XlIII and XlIIlI: to m8ll\ the 18IIee indicalld below. TheWOldsu,llI. end QllLraler to lhe 18IIor indicated below. You aull10rize us III add our nsmeas Lessor aher you have signed II1edocument by S18mp!ng or printing our name in lI1e appnlpriate plllCll. 1. LEASE AGREEMENT: You &Grae 10 lease lrom us end we agree 10 lease to you lI1e equipmenllisted above. which you agree will be used lor business purposes only. You promise 10 pay us the sum of all of lI1e rental payments indicaled an lI1e schedule sbove and/or attached, which sum can be calculaled by multiplying !he number 01 paym.",1s limes lI1e paymenl amount indicated an the schedIlle(sl. . 2. ORDERING EQUIPMeNT: You request that we arrange delivery 10 you al your expense. N lI1e equipment has nOI been delivered, ins18lled, and 8CC8pled by you within fany.1ive (45) days from lI1e dal. lI1at we orderecllhe equipmlll1I, we may an len (10) days wriuen nab 10 you lernunat. 111. lease and our allligalianllO you. In lhe evenlthat WI hsvelSSued a purchase conlract or order for lI1e equipment you agI88 lhallhe purthase order or contracl is aoceptable III you. N you have IIIlt8l8d into a purcbase contract far the equipment. you agree to assign illll us, eRective when WI pay for equipment. 3. NO WARRANTIES: W. I""...lnll th. equlpllllnl to yw "AS IS". WE MAXE NO WARRANTIES, EXPRESS OR 'II'UED. REGARDING ANY IlIA TTER, INa.UIllNG BUT NOT UMlTED TO WARRANTIES OF FITNESS FOR A PART1alUR PURPOSE OR ORDINARY USE IN CONNECTION WTTM llflS LEASE. IIl11e Vendor or anyon. else had made a represenlalon or warranty 10 you . III 111. equipmtnl or lIlY aII1er malltr, you IQt81lI1el lIlY such reprIH/l1IIlian or MInInty shaD naI be binding on Ul. nor shall the breech of such relieve you of. or in 8r'f way affect, ItI1 of your obligations III 41 under Ih. 1-. II 1he equipmenl is naI satislaClOly far any r_n. you shal maka your cIeirn only agllnt the Vendor and you shaft nevertheless PI/l'f us all renl payabI. under thll _.. Sa long . you 118 nat in dlfauR und.. lIlY of 1I1.lerms of lI1ialease, WI transfer 10 you ItI1 warranties mad. 10 us by the Vendor, . manufacllrer or supplier. You understand end agrM Iha1Iha Vendor, its IIGen1l andemplayNl are nolSgen1l or 011II. nor.,. they authorized to waive or chang. any IenlI or condition of M lease. YOU AGREE THAT. REGARDlESS OF CAUSE, YOU WU NOT ASSERT NN ClAIM WHATSOEVER AG~ST US FOR LOSS OF PROFITS YOU EXPECTED TO MAKE OR ANY OTHER DflECT, SPECiAl OR INDflECT DAMAGES. If you haw enlered inlO s mainttnancI Igreemenl with raspacllO the equipment and 111. CllIl 01 such mlintenanca ilGf88manl is to be paid by us to lhe Vendor or aameane else, !hen you adcnawtedgelhat we shd not be respansibll far 1he seNica, r8llIin. or mainlensnae 01 th. equipmant, thlt we 118 not S perty III any such maintenance &GreemeR!. and 8Y8n il you have a dispute ragarding mlllllenanca or seMae you witI continue III PI/l'f UI all rental and maintenance PI/l'fm_ due under lhis leese and an schedules toM leese. 4. NON.cAHCEUABLE LEASE: This Ieaae cannot be cancelled by you. R F AD N T PAR '!HI HCAL T7'I CA-i1lE. V '. On::.. .X>~ wlClvt.<J ~ Blll.JlG.lOllAESI .ih~'JU-v> fh) Q$.Vf) P7 6/ ():, 0 CtrI COUNTY STATi liP PHOIlE~ I ~ L.. L - Co . ClAT~ VJ -~ 3.. 't '5 ACCEPTED: LESSOR . W ~~IO!;r. T!'iCIJ' t~~"t COf7)f.1~;!"l,,~ .~. ACC'EpnO .. . 'J", ..~, P....t~,i!l. d .:''1.. 95 NOt't~ ~\r...:. .. ........'.. .~. IIY r# Ci1 LaO:: ~y., TITli lod,)..95 , IY X DATi: '1IIl1' NAIIJ I'SlSOHAL GUAIWlIl 1"'-",,_ 11I,11I _..,.......__ JlIf ...._ """"'l'OqIIted _ ..__ hy ...... _wII,...... _ .................-u,- "'....,. TIla,..""'lIIIIIllo. _ol_ ftl""....__naloI_.I...... """"'...,...._ ............. ..'_.....'..llo'_litIo Icr __ ....._otlIfMono.'.._.,JlIfll__.... ".IltIUlIl'..al....ol"'_" ....... "* IloqNi_ .,.. _ ......."".... II _..................._... _1........,dII......... llo..._..... _'_",,*, _._..., _..... oil.. __Iw_....' w......,ri;ll...".. .._...-...,_....._Icr""..... "'....,.., n_... ..._.....,.."",. ,..._"'" Icr.. .......,..._.._...""..""'....._..._...... -ill............ W..,..__,..IlI\',I"_.."'..._cl_cl............._...........I.._.,.....,.,,__.._oNp_~,_ THAT TMtS GUARAIIlY SHALl Bli suaacrTO TIfi TiAllI ANa COIlCfT1OM!I OF serlON t7 OF TlIS liASE. TMlSGUAIIAHlY SHALl. lIE llOVSAIED IV THE lAWS OF THE STATE OF APPUCAa.E..uIUSOlCTiON. AS OEflMED 'N KCllON 17.1_ AIIIlCOllSENT THAT THE COURT OF THE STATE F(lIl TIE COUIIlY 01' APPI.ICAII.i JURIlOIC1'IOfI Oft NlV FEOillAl. 0lS1lUCT COUAr HA_ .AlAIIOICTION IN Tl4AT COUNTY OF APPUCAa.E..uAlSQCl1ON SMALl. HAYE JURISllICllOII AHO SIlAU.IE 'AO~A lOCAlIOH F(lIl T1tE om_noHOI' OIlrllTiSAIt8IlGUNOEA THIS lEASE. I...... _ dill""'.... _......,..._..... ,..1. _wftllo.._ ."'...~.I WM otal by JIIl'in ""--"~ X WlT1fESS SK;NATUAE ClATED X PEASoN.ll. GUAlWlTOft SIGNATUAE. AN IlIOMlIUAl OATED x x .-..-....-......-.-.. ......-.-... nlnn 5 TERM OF LEASE. ADI.tINISTRATlVE FEE: The Ieasa lerm 'Mil s!a~ on Ihe date t~~t any aq:Jlpmem is aelivered to you or your ager,t phe Coounen:e""'r! Cate'] al'(j wll contll'lJe urell you cave mel ,i1 01 your obhgalions unCler the lease. Advan:e renlals anl rat reful'(jable il tre 'ease doas ral begin lor any reason. Tre payments of !lInl ere oayaole peradicaJiy In advance as staled Jbov. or on any seneoule 10 Ihls lease. The ""'t payment IS due on the Commen:ement Date. You 'Mil be notified In writing if WtI change Ire date of yo... hnn payment. Trereaner. consecutive perIOdic payments WIll be due on Ire same day of each panod indicated on the reverse Side. All payments 'Mil be made to us al our add",ss on th.. Ie.... or at another aadrass wIlieh we wouid aesllJnate In writing. Your otiigation to pay ",mals to us is urconditional al'(j IS rat subJeCt to a"'f reductcn, set-off. delense. or counterdaim lor a"'l reason whatsoever. You alAt'Onze us to insen sena! numbers and other identrticallOn data about lhe equipment. as well as other omlned factual man",s. II WtI acceJ:led a secunty deposd from you, I WIll be held b'f us 10 secure yaur laithlul pertormance of Ihls lease, al'(j "WIll be relumed or applied as slated In Pal1lgl1lp/1t4, You shaft pay to us a one.lime administrative lee 01 S25.oo to reimb~ us for our stan.up admirnstlatlVe costs. 6. ASSIGNMEHT: You may not sell,lransfer, lllign or sublease the equipment. W. may, without natKying you, sell, assign, transfer, encumber or pledge this INse, in whale or in part, and ownership of the equipment; and you agree that ~ WI do SO, the new leaor wil have the same' rights and benII~s thlt we now "IV., and the new IeSIor win nol "a'll! to perlorm any of OUI obligations. You agree lhat the rights of the new Iasor will not be sUbject to my claims, defenses or setons that you may hav. against us. HOWlV_, any such asslgmenl, sale, or transfer 01 this Ie_ or the equipment will nol relilve uS 01 our abllgatiOl1llo you under this lell.. 7 OWNERSHIP AND OUIET ENJOYIlENT: We are the owner of the equipment and have tile to Ihe eqLipment. II any other person anempts to claim OW1'l8IShip 01 the equipment buy assaning that claim against you or through you, you agree. at yo... .expense,l~ pllltlel al'd defend our tJlle 10 lhe aq:Jlpment. Funher. you agree that you will at alllimls kBep lhe equipment lree trom any legal process or hen whatsoever. and you shall give us Immedlale notlC8 If a"'f legal process or lien IS assened or made against thl eqUIpment. So long as you are not in dltau! ul'(jlr a"'l 01 the tlrms '" Ihls lease. we agree that you shaD quietly use and enloy lhe equipment 8. CARE, USE AND LOCATION: LOSS OF EQUIPMENT: You are responsiblelcr installing and kee~ng lhe equipment iI1 goad war'!ing otdllr and repair. You are responsiti. far protecting the equipment from damage. except for ordinary wear and tear and from a"'f other kind of loss while you have the equipment or whtle ~ is being delifered 10 you. Even ff Ihe equpment is damaged or lost. you agree 10 continue 10 pay rent. You will keep and use the equipment on~ 91 your address shawn above. and you will only use ~ lor busil1lss p.Jrpllses and in complisnce with all appicable laws. You will not make any alleralions to the equipment witOOlA 0'" prior written consent (which we willoot unreasonably withhold), nor will you permal1lnlly 9llach the equipmlnt 10 yoII' rill! estatl. You agree that you WIll nol remove the eqUipment from thai address unless you get 0'" written permlSScn1RS acttanctl. At the el'(j oIlhe term oIllsse, you win relum Ihe equipment to us. at yo... expense. 9. TAXES AND FEES: You agree to pay when due all laxes. fines and penalties relating to ttis lease, the lquipment Of the rentals hereunder. You IIsa agree that WtI have the righlllch yurto estimate the yearlf personal proparty taxas that will be due for the equipment and thal you will pay us the estim9led taxes when we reqU8S1 payment. II we pay any of those tues. lines or penalties lor you. you agree to reimbul1l8 us on demand. You also agree that WlI have the right 10 sign your name 10 any document far the purpose 01 such filing. sa long as IN filing does not intertere with yo... nghlto use the equipment. 10. INDEMNITY: We are oot responsitie far any injllies Of losses to you or any olher parson relating, in any matter whalsaever. to me Equilfner1. You usllTl8ll1SpoMlbility for and agrel to keep us, our successor al'(j assigns ";urnless from and against any and allliablities, lasses, otiigalions. damages oIa"'l kil'd wh9lSOlWII. including reasonlllte attorney's tees lor any failu.. on your part to partorm or comply with any cond~ion of tns lease. Thisindlmnity sI1all continue 8\'lIn altar tl'e tllm olttis use has Ixpired. 11. INSURANCE: You agree to keep lhe equipm8!1l fuly insured against II hazards including but noc imled to Ii... tl'eft and extlnded coverage tlSUlll1Cl, urel yau have mlt all YOJr otiigallonS under Ih.. IellSt. You agree to oblain a genlral pulllic liability ir8Ull11C1 policy. ClMlring bath personlll irjury and property damage, from anyone who.. ICCIJ:labll to us and to include us as an insured on Ire policy. You agree to provide us wiItIceniticales Of olherevidlra of inslRllC8 acceptable 10 us. II any insurance pnlC8eds all paid as alllSuft of any such loss or damage to lhe equipment. you agree mat such insurarc. plllC8eds shaM be paid 10 us 10 sstilly your flntal obligations under this 11ISt. If tl'e equipmere is Inl'er lost 01' 100ally desuayed. al'(j you III ral in delauh ul'(jer Ihe terms 01 this lease, instead of conllnLing to pay us rent you havethl oJ:lion 01 paying us tl'e INn pllsent valuI of balh thl unpaid balance of the ",maining IVnt under lhis Lease al'(j the value 01 our residual interest in the Iquipmlnt . lach complied with a discount rate of six (6%) parcenl per year. 12. DeFAULT AND REIlEDIES: If you do nat pay rent whln due or ~ you break at'Of 01 your promises under this lIllIS, or you become inso1v"",, assign yo... assets lor the berwln 01 your cnlditors. or ent", (voluntarily 01' invaIUr1arily) e bank/t4llcy pnlctl8ding, you will be in deleuft. II your dlfauh is caused b'f yourlailu.. to malla any paymer1 wten due, WtI can rvqLire mal you retum the equipmenl to us al'(j pay to us the remaining balance of all 01 the l1I/1laI paymlnts due under this lease, pressnl valued usirIg a six (6%) percenl per year (bcount ratl. n you fail 10 return the equipment to us, in addition WtI can also reqJire thet yau pay to us our residual inte",st in tl'e eqLipment. prlsent valued as ootid abova. You lisa agree to pay us intl"'al on all sums due us fltlm the oate of detaut until paid 91 the rale 01 one and one-half It-ll2%) peresnt permontl1, but only 10 tl'e extenl permitt.d by law. K yourdtlauJI is caused by yourb",aking any 01 yoll'othll pramisn ul'(jerthis lease, we shaH beer1lt1ed to "COVIrlrom you all damages caused by mil type of dtlauft. W.can also USI arry of the ..medlesavailable to us under the Umorm Commerciel Code or arrt olher law. If WtI refer th.. lease 10 an aItOmey till' eniarctll1tnt or collection. you agree to pay our reiSonabIt anomey's f_ of al Itasl 20% of the IIll1Iining balarce oIal the lIntal peyments, al'(j actual COSIS. II WlI hMto talla posseuion of thl equipmer1, you agree 10 pay the COal 01 flpllSMSlion, storing, shipping. repairing and seftlng the Iqupment. AIlhough YOJ agree that WlI III not ollligated to do so. ~ we decidl to sell ml equipmen, II'(j we 1/1 able to sell the. equpm.nt for a pricllhtI .xCleds tilt SIl1l ot tll our co'l'oI "poISeaion and sail 01 tilt eqLiptNnt al'(j (b) tt't residual valul Ollhlequlpment, pllsert valued as catclAaled abovt.lt'tn we shaft givl you a credft far the amaunl of such IICIA. You agree tl'al we do not nave to I'IOtlly you that we all slllling lhl equipmer1. 13. OTHER RIGHTS: You agree thal any dellY or lalurt to erlorce aurrighls \tIdIrth.. 1eaH dots not prevent us from Inforcing arry rights lIalalertlme. Bath partin intendll'is IIISt to be a valid al'(j legal dacurnert, and agee that ~ any pan is dstIrmil1ld to be unenlarcelllle. aM oll'er pens wilf remain in hAI farce and elfect. If this dacIITltr1 is noc found to be a lease, tt'tn you grant us a security inti rest in lhe equipmlr1. You also givlus thl riglt to immBdlately lilt, at yoII' expense, lIlY Uniform Commercial Cads ('UCC') lirM:ing statlmenu or related Iiings, as weI as ll'e right 10 sign your namlto any such filings mal WtI make. 14. REDELIVERY OF EOUIPUENT: In tl'e 8\'lIre you do nat decide to pun:hase lhe equipm.nt according to tl'e tlrms of any Purchase Option Lensrthat WI have issued to you.tl'8n when this 'ease expires. or is terminated earlllr. you shal dsconl1ld, property pscI<age for transpanation, and ilium the Iqupment.lreq,t prepaid, ta us. in goad ..pair, col'(jlton and war1cing ordsr, rcrmal wear al'(j tear excepted, to a iocation designalld b'fus. . upon expralion or termination, you do nat immedlallly return the equipmer110 us. at OUl optian (I) we wil1alllnglllor ..mavll of II'e equipment and you ag",e to pay us an amount equal to two (2) payments, or (b) the equipmer1 wi! contil1ll8to be held al'd leased by you far SUCClUivI one"l_ periods at the same lInlal in ImS lease subjecl to the right of I~her party to terminall the lease upon twelve (12) monthS written notice, n wtich case YOJ wiI immediatlly dllivlr 1118 EqJipmlnt to us as staled in tin paragraph. Provided you have Milled all a1 your obligations to ut. ul'(j8llhis 1_, WlI win Hl'er ..fund your security deposit witoo~ i1ltrlSllO you Of It your drtclian Ipply ft 10WIIds the p.Jrchue 01 the equipmenl. 15. LATE CHARGE: "a"'l part 01 a payment is 001 made by you when dul, you ageeto pay us I late cr~rge of lln(IO%) percent 01 uch s\X:h tall paymlnt. but only to lhe .xtent permittld by law. You agree to pay ..Ihe laI.charge not laIer1hanorw mor1h lalawingthe dale mal origil1ll payment was dUI. 16. ENTIRE AGREEIlENT; CHANGES: Ttis less. contains tl'e entill agreement belwIIln you and us and ~ may not be ahlred, amlnded. madhied. tlrminalld or Oll'erwist changed Ixcept In WIling al'(j signed bath b'f you Ind IlL 17. IlISCELLANEOUS: In the ever1 yau failta comply with any l*I ollln I.ase. we can, but WI do not have to, talla any action .-sart to efftcl your compliance upon ten (10) days prior writ1en ootice to you. " we are required to pey at'Of amcitr1IlO obtain your comJjlsnce. tl'e Imount WI pay plus all 01 our IXpenses in causing your campllarce. nil become addtlanal..r1 and shaI be paid by you at thl uml of lhe neXl due rlrlal payment. II any l10tices are lIqUired un~r this Ilase, they shal be sufficill1l ~ given palSOnallt or mailld 10 lhe eddrtss stI faf1h in this lease b'f clrtified or mgistlred mall, postagl prepaid. This lease is far tl18 bentflof and Is bil'(jing upon you Ind your persanslllpl8SentaliVls, successors and assigns. AS USED It '!MIS PARAGRAPIl 17, . APPliCABLE JURISDICTION"IlEANS '!ME STATE, AS IlA Y CHANGE FROM nilE TO T1IIE. WHERE '!ME HOLDER OF '!ME LESSOR'S ItTEREST It TliIS LEASE IIAINTAINS rrs PRINCIPAL OFFICE RESPONSIBLE FOR ADMIMISTERING nitS LEASE. nilS LEASE SHALL BE BINDING WHEN ACCEPTED IN WMlNG BY us ANO SHALL BE GOYERNED BY '!liE LAWS OF '!liE APPLICABLE JURlSDICTION. PROVIDED HOWEVER. IN '!liE EVENT '!MIS LEASE OR ANY OF rrs PROYISlONS CANNOT BE ENFORCED UNDER '!ME LAWS OF '!MAT STATE lliEN '!ME LAWS OF '!ME STATE WliEllE THE EQUIPllENT IS LOCATED SHALL GOYERN. AS USED IN THIS PARAGRAPH 17, .COUNtY OF APPLICABLE JURI!llllCmH" MEANS '!ME COUNTY WfTlilN '!ME STATE, AS MAY CHANGE FROM TIME TO TIllE, WHERE '!ME HOlDER OF '!ME LESSOR'S INTEREST IN '!MIS LEASE IlAINTAINS PRINCIPAL OFFICE RESPONSIBLE FOR ADlllNlSTERING '!MIS WSE. YOU AGREE THAT THE COURT OF 'OlE STATE FOR THE COUNTY OF APPl.lCABLE JUlllSDICT10ll OR ANY FEDERAL DISTRICT COURT HAYING THE JlJRISDICTION IN '!MAT COUNtY OF APPlICABLE JURISOICTION SHAll HAYE JURISDICTION AND SHALL BE '!ME PROPER LOCATION FOR '!ME DE TERUINA nON OF ALL DISPUTES ARISING UNDER TliIS LEASe. You agt1l8 al'(j consent thaI WI may seMI you by rtgisltred or cenlfi.d mail, wtich shaI be siAflcitnlto otxain jIXisdictian. Nothing stated in this lease is intended to pr9Ver1 us lrom commanding any action in lIlY COlli having proper jlliscflCtian. You WIivt trial by jury in any action betweln IlL 18. UCC-ARTICLE 2A PROVISIONS; You agr. that this Ie.. is I.F1nsoce Lt..- W1der Article 2A al the Urllarm Cammercill Code, Ihllls, youldUlowledge Ihat: (I) we didnal select, manutacture or SUJllIIy the equiprnlnl, but we did purchlMlht equijlmtnl for IelMlO you; IIId (b) WI haw given you 1118 name ollht ..pplilr al the equipment you..lelsing Irom us. The supplier is set forth in this IN. or 011 the attached schedule. W. htrIlly nolRy you thaI you may hm rlghll undtrlhe IUpllIy conII'aC1llI11C1 thll you may COIIlact the ..'nnl." Inr . daocrioUOII at those riQhll or "" warrantift. INTERNATIONAL DISPlAY LID. 'J To: Recomm's Designated Leasing Company In reference to the attached lease between f1EAcrh 0Ailt. L 911 C . and Recomm's designated leasing company dated '7 - ~ ~- <; ~ (the "Lease"), it is understood and acknowledged that this Lease is non-cancelable for the term and that the payments under the Lease are due absolutely and unconditionally regardless of any representation or warranty, whether verbal or in writing, made by; any party, other than the written representations and warranty of the Lessor under the Lease. t-t€fL Th Cft((.E_ ~9()C ' Lessee BY' .~ E X H I BIT "G-2" TriCon TrlCon Capital Corporation a GFC FtMlldal Corporalton campa", ASSUMPTION AGREEMENT This Agreement is made between TRICON CAPITAL, as Lessor, Health Care II Inc. as Lessee(s), and White Shield, Inc., as Assignee. WHEREAS, Lessee(s) wishes to assign its interest in Lease Number 7135542, dated 11/ 1/93, copy of which is annexed hereto; and WHEREAS, Assignee wishes to assume all of the terms, covenants and conditions of such Lease. WIIr:R:E~ Lc,,~~..(,,) !l~r'fY5 remaitl1.."pou"tbk fef Mle 9sligatigll8 due u~er said l..ea3e;.ami.>>.. ~~ ClN'<:~ NOW, THEREFORE, for and in consideration of the mutual covenants, conditions, stipulations, agreements and obligations hereinafter set forth, the parties agree as follows: 1. Lessee(s) hereby assigns, transfers and conveys to Assignee all its rights, title and interest in the aforedescribed Lease and the equipment covered thereby. 2. Assignee hereby assumes all of the terms, covenants and conditions of said Lease and agrees to make payment of the rentals thereunder when due and to perform all of the covenants, conditions and obligations contained therein. 3. Lessor hereby consents to the within assignment. . .. 4. ;;;:~:~.ag~~ dJAl the '~n ~~nment doe~~.. lO9SCe~S) rrom any haeihty uREier Hie 3aui LGas". Y I b....,.J) & 5. Assignee agrees to execute and deliver to Lessor Uniform Commercial Code financing statements to further perfect Lessor's interest to the equipment under said Lease. 6. The unpaid balance of rentals under said Lease is $12,823.00, payable in Forty- three (43) consecutive monthly payments of $298.20, plus applicable sales/use tax, and the next monthly payments if rent is due 4/1/94. This Agreement will be accepted by Lessor upon return of the properly executed document and a check in the amount of $1,491.00 covering the past due balance of the account. BOO ~ 0rMI . Sult11 30CI 0e0Ir1IeId EIlHIch . FI.. 3344l 3Q5.'lii!2.I9CIJ FAX BOO.Z3304479 Tri:C,on TliCon Capital ClJrporatlcn a GFC Financial Corporutton compatry -(By: White Shie (Assignee) July 5, 1994 eoc FerNeo.I 0rMI 0 SUtR 3lXl 0eIrfllIId SoIBch 0 R. 3344l 3CJ5N1C!ii!ol9CJO FAX eocoZ33_79 Dated: IO!1 ;s-{ 9 y Dated:~ Dated:' 0 h-~-jV E X H I BIT "G-3" S'lti.TEMENT OF REVISED LEASE n,nMS AND OPTIONS UNDER FOURTH AMENDED PLAN **CORRECTED COPY** WHITE SHIELD, INC. 20 ERFORD RD P.O. BOX 623 LEMOYNE PA, 17043 June 30, 1998 The Fourth Amended Joint Plan of Reorganization ("Plan") for Recomm International Display, Inc., Recomm Operations Inc. and various related entities was confirmed by the United States Bankruptcy Court on May 13, 1998. As you may have read in the materials previously sent to you, the Plan provides you and other Participating Lessees with discounts and/or other concessions on your lease as set forth below. The Plan provides both the Participating Lessors (including FINOV A Capital Corporation) and the Participating Lessees (including you) with a release and injunction prohibiting the commencement or continuance of lawsuits brought by one against the other relating to events occurring prior to confirmation. The leases, including your lease, are held to be valid and binding and you are required to make payments on your lease as modified under the Plan. This statement describes your revised lease terms and your payment options under your modified lease. Please read this statement carefully before selecting your payment option. You must make your payment election by completing the enclosed Election Form and returning it to us by July 30, 1998. It is the desire and intention of the Participating Lessors to make this transition as easy as possible. You have the following payment options for your lease under the Plan: Option Amount Due Monthly Total to be Now payment Paid * amount 5591.90 0.00 5591.90 na na na 1. Lump Sum: Pay the Revised Principal Balance, Effective Date Arrearage and any applicable sales tax in one Iwnp sum to satis the Lease in full. 2. Pav Past-Due Now and Pay Remainder Over Time: Pay the Effective Date Arrearage plus any applicable sales tax in one lump sum, then make monthly payments plus pay any applicable sales tax for current remaining lease term until the Revised Princi al Balance is satisfied. 3. Pay Past-Due Now and Pay Remainder Over Time (Extended): Pay the Effective Date Arrearage plus any applicable sales tax in one Iwnp sum, then spread remaining payments plus any applicable sales tax over 60 months (for Dis la Boards) or 72 months (for Kiosks), 4. Pay Over Time: Spread Revised Principal Balance, including the Effective Date Arrearage, over the current remaining term and a an a licable sales tax. 5. Pay Over Time (Extended): Spread Revised Principal Balance, including the Effective Date Arrearage, over 60 months for Display Boards or 72 months for Kiosks and pay an a Iicable sales tax. na na na na 0.00 26 1 250.00 168.66 6668.66 0.00 49 I 150.00 65.14 7415.14 The Total to be Paid is calculated by multiplying the number of remaining monthly payments by the monthly payment amount plus the amount now due and includes sales tax. This calculation assumes allpaymencs are timely made over the remaining term of the revised lease. 'age 1 of 3 Lease 7135'542 Please note that not all options are I :Lable for all leases. If "nla" appear: JU may not choose that option. The Option 1 balance shown reflects an additional 5% discount in addition to the Lease Discount Percentage already applied to your lease balance under the Plan. Option 1 also allows you to avoid future interest on your lease, and therefore represents the maximum savings available to you under the Plan. These calculations reflect the reduced principal balance, reduced interest rate and other concessions provided to you under the Plan. In some cases, the maximum monthly payment ($250 for Boards or $390 for Kiosks) or minimum monthly payment ($150 for Boards or $300 for Kiosks) will affect your available options. If you elect Option 1, your check for the appropriate Lump Sum amount should be enclosed with your Election Form. Following receipt of your election form selecting Option 1 and your check, we will send you a confirmation acknowledging that your Lease obligations have been satisfied in full. If you elect one of Options 2 through 5, your lease will be adjusted in order to reflect the revised contractual terms. If you do not make an election. you are deemed to have selected Option 4. If you elect Options 2 or 3, your check for the appropriate Past Due Amount (see item E below) is due on July 30, 1998. Under Options 2 through 5, your first revised monthly payment is due in August 1998. If you do not include your first monthly payment when you return the Election Form, you will be invoiced for payments due in August 1998 and September 1998. The revised lease information and payment options provided in this statement reflect all payments made through June 23, 1998. If you made any payment after June 23, 1998, you will receive credit for your payment. Please mark your option choice on the enclosed form and return it to us in the enclosed envelope by fuly 30, 1998. The Plan requires that any outstanding Personal Property Taxes on your Lease be paid by July 30, 1998. Our 'ecords indicate that the amount of Personal Property Tax currently owed by you is $0.00 (this total may include any ~stimated billing for 1997 and/or 1998 if your state has not assessed the actual amount as of yet). Regardless of which Jayment option you select, you must pay this property tax balance no later than July 30, 1998 (30 days after the ::ffective Date). For your convenience, this payment can be included in the return envelope along with your )reference election if you so desire. Finally, for your information, under the terms of the Plan, we are providing you with the following nformation with respect to the treatment of your lease under the Plan. Capitalized terms used in this statement have he defmitions provided in the Plan. Please see the Plan for a detailed explanation of the terms of the revised Leases. A. Effective Balance of Lease B. Lease Discount Percentage C. Principal Payments scheduled to be made after 12/31/95 D. Revised Principal Balance of Lease E. Effective Date Arrearage of Lease F. Revised Monthly Lease Payment if term is unchanged G. Revised Monthly Lease payment if term is extended to 60 months (or 72 months in the case of a Kiosk Lease) $ 6228.80 17.06% $ 6560.40 $ 5886.21 $ 6753.24 $ 250.00 $ 150.00 If you require further information about the calculation of your payment options, please contact our customer ervice department at (800) 839-9099. If you have other questions concerning the Plan, please call Andrew Connor, nformation Coordinator for the Official Committee of Unsecured Credit9fs. at 312-861-2000. 'age 2 of 3 Lease 7135542 ELECTION FORM Please mark below the option you wish to select. Select only one option. 1 Lump Sum' 2 Pay Past-Due Now and Pay Remainder Over Time 3 Pay Past-Due Now and Pay Remainder Over Time (Extended) 4 Pay Over Time 5 Pay Over Time (Extended) If you elect Option 1, please include a check for the appropriate amount in the same envelope. Under Options 2 through 5, your first revised monthly payment is due in August 1998. If you do not include your first monthly payment when you return the Election Form, you will be invoiced for payments due in August 1998 and September 1998. Please be aware that this document must be received by FlNOVA on or before July 30, 1998 (30 days after Effective Date) in order for your preference to be honored. If we do not receive your response indifating your preference by that date, you will be deemed to have selected option 4. When completed, mail the form (and your check, if selecting Option 1) to: FINOY A Capital Corporation Ann: Lease Administration 7272 East Indian School Rd, Suite 410 Scottsdale, AZ 85251 WHITE SHIELD, INC.lLease # 7135542 'age 3 of3 L~as~ 71355~1 E X H I BIT "G-4" E X H I BIT "H-l" I~- - .u" ,,1ZIIt LEASE AGREEMENT I Recomm International Display Ltd. 7650 Courtney Campbell Causeway Suite 1050 Tampa, FL 33607 I 7/5Y' '9.10 .=t.tMONTHlY PAYMENTS OF S 5'tt,,46 (applieatllt tnas 10 OQ IJiII<lQ) VENOOA L -' PAYABLE Ai SIGNING OF THe LEASe (check one) EQUIPMENT OeSCRIPTlON: Oty: .fJ.. Recomm Vox Apothecary System Serial Number. eQUIPMeNT LOCATION IF OTHE I I Dear L~ee: We have written !his lease in plain languaoe tleCaUM we walll you 10 fully undelSland ita tenns, Please read your cap Illilltass cat y an~ !HIITH to ask us any qunlions you may have 8boul1t. We use the wanls ml aM _10 mean ,he IMI8Ilrdcattld balow. Th. WOI'dI WI, I.IiL and llU( reler to Ille Iessar indcaled balow. You autlIOrill uS to add our name as Lessor after you have SIgned tile document by IIlmping or prin/ng our name in 1111 epptOplIate place. 1. LeAS!! AGRE!!MENT: You &gee to Ieue from us an~ '" agree to Ie.. to you lilt tqlipmant wd aIlcMI, whil:II you agree wiN be used lor business putpOtU only. You promise 10 pay us IhI aum at al at tll8 tenlal payrn.ms IndIcaIld an lIIe sclIeciIJe above II1O'or aead'led, wnid'l _ c.I ba calaJlaltld by II\IlIIiplying lhe humber at paymel1ts limes \I'It payment atnOUI\I indlCattld an Ill. SCR<<lL4'II~ 2. ORDERING EQUIPMENT: You requeeI thai we arrange datJ.1'f to you at yaut axpense. r lIIe equipment his nat be<<1 dellYMd, in$\aIItd, ancl acoIllIad by you witlin fany.live (45) days from the dale Illl! we ofdelld the equipment. wt may on t.n (10) days wrll1sn nalic8to you tenninale 1he INse and our obligalionslo 'fOJ. In thl Mnt \1'181 WI have issued a purchase conuaa or OI'dIr far the eqUpmen1, 'fOJ 1gee lhsl the ~ oralr or caIIlract is acctptalllt to you. ~ you haw tntered ilto a putd1ue canlrac:l far Ihe equipnltnt, you agree to assiQn it to us, efftcliYt whtn we pay far ~ent. 3. NO WARRANTlI!S: W. areleallng tile equipment to you 'M IS'. WE MAKE NO WARRANTIES, EXPR!SS OR IMPUED, REGARDING ANY MArtER, INCLUDING SUT NOT UMlTED TO WARRANTIES OP FITNESS I'OR A PARTICULAR PURPOSE OR ORDINARY use IN CONNECTION WITH THIS WSE. ~ Ille Vendor or anyOll8 eIsa had made a reprtS8R!aliOn Of warra~ 10 )'OIl as to Illt equipmllll 01 any a1IIer 1111II<<. lW agree \hll lIlY sud'l ~an Of wanaNy anal not III binding on us. nor shell the bread1 at suc:n relilve you 01, Of in any way atftcl, any at your allIigalianllO ullIlderlhfs lease. W lhe ~ is nol catislactory tar any reason, you shaM malte your clain only against Ille VendOl and you shall flI'IlJrtI1etess pay us an rent payable under this 1._ SO long at you III not in dell1Ul under lIlY of !he \em1s at l/lis 1Nat, we transftf 10 you any warranties made to us by Ille ven~o', manlhdurer Of supplier. You undel1llnd and agree tnat Il. Vtndar,ltS agtnlI and ernpIayMl are nOl ageru aI 0llf1. nor Il'IIIley luIl1Ol1Zed 10 waIYI or ~nge any Illnn or condItion oIlhis Ita... yO\) AGREE THAT, REGAAOLESS OF CAUSE, YOU WILL NOT MSERT IJlY CLAIM WHATSOevER AGAINST US FOR LOSS OF PROFITS YOU EXPECTEO TO MAKe OFt IJlY OTHER DIRECT, SPECIAL OR INDIRECT OAMAGES. ~ you hM antndinla a l1lIlnItnance lQleemenl wilI'I respect tollle equlptnll1l and I/lI coat ctsuch maimltlance ag~ent is to ba paid by us 10 Ihe Vendor or someone else, then you acMawIedgt tllalwt enad nol be respanslbIa far 1IIa seMel, re.. or mai1lenance aI the eqUpment. lIlat... are nOl a pany 10 any sud'l mainlenance agreement. and even W you have a cfspJle fe9IIld1ng mlirlt_ or ssMct you will comInuelo Ply us aM renlIl tIIld mainlalVll1C8 payments dve unci., INs Ilass and all scnO<lUIt$ to thillaaae. 4. NON-CANCELLABL!! LEASE: This I.... cannaI be CII1CeIed by you. SERRI TM ~ [)It FlIIST MONTHS PAYMENT n OTHER ~(~ ACaPlElll TriCtI Ca. ear,.,... ~ 11.11'* 17 SIlO. ,..-.llIWI "TriC4lI Ctpllal c.,oratlott, IUIlIIInIII, _"I TrfCDI CtoilaI, . lalt aI ~nd flnlllClal er,ntJon' ACCEPTED: LESSOR 1)",r1=: oW ~<a~ ..cl~ TlTU! ~/~//t9'1 ~WJ.17/Z.7(d~_Cft/6-____ OATlO: 7-1~-~4. IlV PAINT 1WI1_ . _.. _Al.CUAlWn'l I mMalllr 9<W............ Ios... wiI_ ._........,.,..lIIo__~_INO__~"...'*'"IllII...DI'fomo.._.OIiaIIIono_...""'.....,....~. 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II\' ......01._ '"". _ wiI '" _........ jINdcioft.,...... ...........,.. MPtlCliaftlllftfOCl'IllL X W_SIOHI.M! OI\T!O x ._.........___ l'eJ\SON"l GUOIlAHTOA SoGI<ATUAli. AHINOMllJAL OI\T!O _ '"n .0' ~ .,,,. .~. .... -"I~. ' Ie'..' ;::::.:~.:i:c"'o;.;'-;p.' ....p ....~~e ~r:'I.l~Y~ 'PI"]:'.: l~ oal ':l' _,,"'r:,IO'~ i .~p. ~.1se ;CP.S "Cf :-:~t~ lor .1I1V 'o.JSQr' -.....p :"1'1~~''1~ ~r "'0," ~r~ ~l'1J~~~ :).J':.1:";:::Jliv ," .:\:'"ii':C! J$ ;:;::.1(; .;'," ," :' . .,. : "RC~,.,~'J :~,~ l--!:tsP. -'~p.' ~.: ~':\'r."lJ": S1l,!-! .:.. ....p CJ"',,;,p~'cer-F!r~ :,ltP vcL;....1I1 ~~ .~Ol:hea .n -N1':::~<J f NP. .:~,1rge :,'"'-e (;J:~ :}t fOt,;f' ,'0;; :avr-~'~. -~er~;r~~':::~:jt'("'::'j~ ,,'."";.;.,; ~\',,-e":'; .'/lli:::e ,::";fo!~n ....e ~,1r':'1e,~.1y Jl "!r\C:1 ;)fo!rlOQ '1'l1a.:.t:el1,Jr" '''p. '~ver'je ~;:'::e '\';1 ~aymef1!s 'Nul ':e ,"':"Jde 'OJ5 1t o:..r .Iccress on '~'''S easp.. Jf 11 Jrc!;,p.r JCC~~SS Hr';;," ^'~ ^,Ot.;{~ :;";,::.";;:,-l" "W:'~'~ 'IOU JCI'0.i1.\)!1 :0 ).lY '~pl.1IS '0 'JS ,$ ;,;r'CO'~Ci!ion.1J .ire :; ~o, ';uOlec: :0 Jr.y'ecuc:!Or:. set.oll. deler.se. or ~OI.:~!tUr.:Jlm 'cr lr:y "9350/1 ...,rJtsoever V")U ,1LH'or'~~ JS ';) rS2~ ",,:,,': 'l:,::1:;f!r-:; ]r'~ .Jlhf-lfCenll!lc:llIon \~fJ .100Ll '~p. ~aUlome!:r. JS ....ell j,j J"...er JfT":rrted 'ac:ual ~JttefS. II 'Ne JCCBPlea J sP.C:.Jr':y C!:!OOSII :rcr.1 you. 1 "N1l1 :e "e!d ~ JS ~O sec:;rp. your ':'lIli'IL: :;r!"or."r;JI1C~ o)r :~IS :AJSe. Jr1d :1 'Nul hp. rp.lumeC I}r JOOlu:!('! as 5iJ,led :" ?J('Jg~:10h 1 J, You snJl1 oay to iJS a one.lIme acmlnlstratlve :p.e at S25.~O :0 relmc~:se ;,,;s ~O( Jur ~iJrh..Olcrr1lf"1S::"J.ti'/P. ~...'''' '"'8- ASSIGNMENT: You may not sell, transler, assign 0( sublease the equipment. We may, Without notifYing you, .ell, assign, transfer, encumber or pledge Ihis lease, in whole or In part. and ownership 01 Ihe equipment: and you agree that if we do so, the new lessor will have the same rights and !lenelh that we now have, and the new IessO( will not have to perform any 01 our obligations. You agree that the rights 01 the new I.essor Will not !le.sUbl9ct to any claims, defenses or seto"s that you may have against us. However, any such assignment, sale, or transfer of this lease or the equipment w1l1 not relieve us of our obligations to you under thIS lease. ; OWNERSHIP AND QUIET ENJOYMENT: We are the owner 01 the gqUlpment and have t"le to Ihe gqlJlpment II any oth.r person anemplS 10 claIm ownersnlO 01 'he gqlJlpmert buy asse":"g :ral O:Jim against you or through you. you agree. al your expense. :0 prolect and del end our !llIe 10 Ihe equIpment. Funher. you agree thai you wlil al allumes :<eeo Ire epulpment !ree Irom any !egal process or Iren whalsoever. and you shall 9"'e us Immediale nOllce II ar"f legal process or Iren IS assened or made agalnsllhe equIpment So long as you are not In delau" ul'der any 01 :r,e tems ,n :n,s 'elSe. we agree Ihal you shaU puielly use and enloy Ihe gqUlpment 9. CARE, USE AND LOCATION: LOSS OF EOUIPMENT: You are msponslble lor Installing and keeptng Ihe equIpment in good worklng oroer al'd mpmr. You are msponsible lor prolectlng the .c",cment Irom damage. except lor ordinary wear and tear 3l1d Irom arrt olher <lnd 01 loss ..hlie you have lhe gqulpment or wnlle illS beIng delivered to you. :',en If Ihe gqUlpmenl 's damaged or ,CSt. you agree to ccnllnue to pay rent. You WIll keep ana usa Ihe eqUIpment only at your addmss shown above, and you WIll only use it lor bUSiness purposes and in compliance with all applicabl9 'aws. Youwlil nOI ,'!lake arrt alterations to Ihe gquipment Without our prior wrinen consent (whiCh we ..II rol unreasonably withhOld), nor will you permanently anach the equipment to your ..eal estale. vou agree Ihat you WIll not remove the equipment Irom that address unless you get our wrrnen permissIOn ins advance. At the el'd ollhe term of lease. you will relum the equipment to us. at your sxoense. 9. r AXES AND FEES: You agree 10 pay when due all taxes. lines al'd penalties relating 10 thIS lease. lhe equipment or Ihe mntals hereunder. You also agree thai we have Ihe right each year to mmate Ihe yearly personal prapeny laxes that Will be due lor the equipment and that you will pay us Ihe estimated laxes when we rgquest payment. II we pay 3l1Y 01 those laxes. fines or penalties lor you. you agree 10 rell'nburse us on demand. You also agree that we have the right 10 sign your name to any document lor the purpose of such filing, so long as the filing does not intertere with your:"'ghtlo use the gquipment. 10. INDEMNITY, We are nol responsible for any iniuries or losses to you or any other person relaling, in arrt matter whatsoever. 10 the equipment. You assume responslbi/ity lor al'd agree 10 <eep us. our successor al'd assigns hannless Irom al'd against arrt al'd all !iabolities. losses. obligalions. damages 01 arrt kind whatsoever, including reasonable anomey's lees lor any lai/ure on your oan to perlorm or comply w!h at'rf condition ollhis lease. This indemrnty shall continue even aner the term 01 this lease has eXpired. II. INSURANCE: You agree to keep the equipment fully Insured agalnsl al hazards ireluding but not imited to lire. lhen and extended coverage 'r.surance. unt~ you have met all your obligallOns under thrs lease. You agree 10 oaain a general public liabilly insurance policy, covering both personal injury and propeny damage, lrom arrtone whO IS acceplable to us and 10 IncI..de us as an insumd on Ihe policy. You agree to provide us with certilicares 0( other &vIdence 01 insuraree acceptable to us. ~ arrt insurance proceeds are paid as a result 01 arrt s:.ch 'oss Jr damage 10 the eculpment. you agree Ihat such insuraree proceeds shall be paid 10 us :0 salrsly your rental obligations under this lease. II :he gqulpment is either last or totally destroyea. al'd you are not In ~elault coder Ihe terms ollhrs lease. Instead 01 continUing 10 pay us rent you have Ihe oplian 01 paying us the lhen present value of both Ihe unpaid balanca 01 the mma",ng lInl under lhis Lease a'" the 'lalue 01 our resldual,ntemst in Ihe eqUipment. each computed WIth a discount rate of SIX (6%) percent per year. 12. DEFAULT AND REMEDIES: II you do not pay mnt when due or il you bmak arrt 01 your promises under this lease. or you become insolvent. assi.". your assels lor Ihe benelll at your c,'edltors. or enter (voluntanly or Involuntanly) a bankruptcy proceeding, you WID be in delault. If your default is caused by your ,.,Ium to make any paymenl when due. we can reqUire Ihat you relum Ire eoUlpment 10 us al'd pay to us Ihe remaIning balance 01 all ollhe rental payments due ul'der this lease, present valued using a six (6%) percent per year discount rate. II you laillO relum the eculpment 10 us. in addilion we can also require lhat you pay 10 us our residual interest in lhe equipment. present valued as noted above. '(ou also agree 10 Ply us Interest on all sums due us lram Ihe date 0/ default until paid atlhe rate alone and one-l1all (l.t/2o/.) percent per month, but only to the extent permlned by law. If your defaun is caused by your bmaking at?f 01 your other promises under this lease. we shall be entifled 10 mcoverlrom you all damages caused by that type of default. We can also use arrt of Ihe remedies available 10 us underlhe Uhl10rm Commercial Code or any clher law. II we reler this lease to an attomey 10( enforcement or collection, you agree to pay our reasonable anomey's lees 01 at leUl20% ollhe remairing balara of althe rentaf payments, ard ac:ual COSIS. 11 we have to lake possession 01 the equipmenl, you agrelto pay Ihl cost 01 repoS$8ssian. stomg, shipping, repairing and selling thl equpmlnt. Although you agree Ihal we are not obligated 10 do so, if WI decide 10 sell thl equipment, and we art abll to sell the equpment for a price that exceeds Ihl sum of (al our cost 01 repossession and sail 01 the equipment and (b) lhe res dual value ollhe equipment, presenl valued as calculated above. than we shall give you a Cledl far thl amount 01 such excess. You agree that we do not haYI 10 rotily you that we art s8lling the equipment. 13. OTHER RIGHTS: You agree that any delay or faiure 10 erlan:e our rights under Ihis lease does not prevent us from enfOrcing arrt rights at a latarUml. 80th plllils inland lhis lease to be a vald al'd legal document, al'd agree lhat il arty pan is delermined to be ur-.nforceable, all other pstts will remain in lull farce and effect If this document is not 10\l1d to be a lease, then you grant us a security interest in Ihe equipment. You also give us Ihe right to inlmediately file, at your expense. at?f Umarm Commercial Code ('UCC')linancing statements or related Iiings. as wel as the right 10 sign your name to at'rf st.eh flings that we make. t4. REDELIVERY OF EOUIPMENT: In the evenl you do not decidl to purchase the equipmenl accordirY,lto the terms 01 arty Purchase Oplian Lener that we have issued 10 you, then when this !ease expires, or is lermrnated earlier, you shaa disconnect, praperIy Pickage lor transpanatian. and retum the squipment, freiglt prepaid, to us, in goad repair, condkian and wartcing ordsr, normal 'Near al'd lear excepted, 10 a location designated by us. W upon expiration or tell11ination. you do not immediately retum the equipmlnt to us, at our opeian (a) we ..II arrange lor removal 01 the equipment and you agme 10 pay us an amount equal 10 two (2) payments, or (blthe equipmenl WlI cantil1tJ8 to be held and leased by you far SlJCC8SSive one-yaar pariods at the same rental in this lease subject 10 Ihe nght 01 ellher paIty 10 lelTl1inate the lease upon twelve (12) months written notice, in wlich oase you wi. immediately deliver Ihe Equipment 10 us as stated in this paragraph. P ravided you have lullilled all 01 your obligations 10 us ul'der this least. we will either refund your stCUnty deposit withOlA inleresllo you or at yoIX direction apply 1I10wards the purchast oIlhe equipment. Ii LATE CHARGE: ~ any Plrt of a payment is not made by you when dus, you agree 10 Ply us a late charge alien (10%) percent 01 each st.eh late payment, bI4 only to the extenl permined by law. You agree 10 pay us Ihe latl charge not later !haIi one monlh foiawirY,lthe dati that original paymlnt wu dUI. 16. ENTIRE AGREEMENT; CHANGES: Ths lease contains the entire agreement between you and us 3I1d k may nol be altlred, amended. modified, Ilrminated or otherwisl changed eXC8~ in writing al'd signed both by you and us. 17. MISCELLANEOUS: In the event you fail to comply with arty pan 01 lhis lease, we can. but we do not have ta,lake at'rf action necesW'( to effect your compliance upon tert (101 days prer wntten nollce to you. II we are required to pay any atnO\I1t to obtain your compliance. the amount we Ply plus all 01 our expenses in causing your compliance, shall became additional ren! and shall be paid 'r:f you at the lime of Ihe next due renral payment. ~ arty notices arl required under Ihis lease, they shall be sulficienl if given Plrsonally or mailed to Ihe address S8l fonh in this lease by cemfied or mgislemd mail, postage prepaid. This lease is lor the benefit of and is bil'ding upon you al'd yoIX peBOnal representalives. successors and assigns. AS USED IN THIS PARAGRAPH t 7, "APPLICABLE JURISDICTION" MEANS THE STATE, AS MAY CHANGE FROM TIME TO TIME, WHERE THE HOLDER OF THE LESSOR'S INTEREST IN THIS LEASE MAINTAINS rrs PRINCIPAL OFFICE RESPONSIBLE FOR ADMINISTERING THIS LEASE. THIS LEASE SHALL BE BINDING'WHEN ACCEPTED IN WRmNO BY US AND SHALL BE GOVERNED BY THE LAWS OF THE APPLICABLE JURISDICTION, PROVIDED HOWevER, IN THE evENT THIS LEASE OR ANY OF rrs PROVISIONS CANNOT BE ENFORCED UNDER THE LAWS OF THAT STATE THEN THE LAWS OF THE STATE WHERE THE EOUIPMENT IS LOCATED SHALL GOVERN. AS USED IN THIS PARAGRAPIf 17, .COUNTY OF APPliCABLE JURISDICTION" MEANS THE COUNTY WrTHlN THE STATE, AS MAY CHANGE FROM TIME TO TIME, WHERE THE HOlDER OF THE LESSOR'S INTEREST IN THIS LEASE MAINTAINS PRINCIPAL OFFICE RESPONSIBLE FOR ADMINISTERING THIS LEASE. YOU AGREE THAT THE COURT OF THE STATE FOR THE COUNTY OF APPlICABLE JURISDICTION OR ANY FEDERAL DISTRICT COURT HAVING THE JURISDICTION IN THAT COUNTY OF APPlICABLE JURISDICTION SHALL HAVE JURISOlCTlON AND SHALL BE THE PROPER LOCATION FOR THE OErERMINA TlON OF ALL DiSpuTES ARISING UNDER THIS LEASE. You agree al'd oonsent that we may selVe you by registered or certified mail which shail be slificient to otxain jlXisdiction. NOlhlng stated in Ihis leasl is intended 10 pravenl us from commanding atfy action in at?f court havirY,l ~per jlXisdiction. You waive lrial by ju'Y in arty action between us. t 8. UCC.ARTlCLE 2A PROVISIONS: You agree thaI this lea. is I "FiI1al1CllLea." under Articta 2A of lhe UnHarm Commercial Code, that is, youlcknawlldge that: (al we did not select, manufacture or supply the equipment, but we did purch_the equiprnenllor Ie_ to you; Illd (b) we have given you tha naml of lhe supplilt' of the equipment you are leasing "am us. The supplier is sel forth in this least or an the attached schedule. We hereby natHy you that you may have righls under lhe supply contracts and thlt you may contact the .oplier lor a description 01 those rights or illY warrmties. III --'- ..... -- - TO: Recomm's Designated Leasing Company In reference to the attached lease ~een/J.{~;;J;.If1J17;i,., and. Recomm's designated leasing company dated ....\1 ))l\ (the "Lease'), it is understood and acknowledged that this Lease is non-cancellable for the term and that the payments under the Lease are due absolutely and unconditionally regard- less of any representation or warranty, whether verbal or in writing, made by any party, other than the written representations and warranty of the Lessor under the Lease. Lessee ~k',~ A.~\~ B~C;;Z- ~tiP E X H I BIT "H-2" SlATEMENT OF REVISED LEASE TEKMS AND OPTIONS UNDER FOURTH AMENDED PLAN **CORRECTED COPY** WHITE SHIELD INC P.O. BOX 623 LEMOYNE PA, 17043 June 30, 1998 The Fourth Amended Joint Plan of Reorganization ("Plan") for Recomm International Display, Inc.. Recomm Operations Inc. and various related entities was confirmed by the United States Bankruptcy Court on May 13, 1998. As you may have read in the materials previously sent to you, the Plan provides you and other Participating Lessees with discounts and/or other concessions on your lease as set forth below. The Plan provides both the Participating Lessors (including FINOV A Capital Corporation) and the Participating Lessees (including you) with a release and injunction prohibiting the commencement or continuance of lawsuits brought by one against the other relating to events occurring prior to confirmation. The leases, including your lease, are held to be valid and binding and you are required to make payments on your lease as modified under the Plan. This statement describes your revised lease terms and your payment options under your modified lease. Please read this statement carefully before selecting your payment option. You must make your payment election by completing the enclosed Election Form and returning it to us by July 30, 1998. It is the desire and intention of the Participating Lessors to make this transition as easy as possible. You have the following payment options for your lease under the Plan: I. Lump Sum: . Pay the Revised Principal Balance, Effective Date Arrearage and any applicable sales tax in one lump sum to satis the Lease in full. Pay Past-Due Now and Pay Remainder Over Time: Pay the Effective Date Arrearage plus any applicable sales tax in one lump sum, then make monthly payments plus pay any applicable sales tax for current remaining lease term until the Revised Princi aI Balance is satisfied. 3. Pay Past.Due Now and Pay Remainder Over Time (Extended): Pay the Effective Date Arrearage plus any applicable sales tax in one lump sum, then spread remaining payments plus any applicable sales tax over 60 months (for Dis la Boards) or 72 months (for Kiosks). 4. Pay Over Time: Spread Revised Principal Balance, including the Effective Date Arrearage, over the current remaining term and a an a Iicable sales tax. 5. Pay Over Time (Extended): Spread Revised Principal Balance, including the Effective Date Arrearage, over 60 months for Display Boards or 72 months for Kiosks and pay an a licable sales tax. 8521.61 Total to be Paid * Option Amount Due Now 852l.61 na na na na na na na na 0.00 41 I 262.50 132.78 10895.28 0.00 60 197.56 11853.60 The Total to be Paid is calculated by multiplying the number of remaining monthly payments b~ che monchl~ payment amount plus the amount now due and includes sales tax. This calculation assumes all payments are timely, made over the remaining term of the revised lease. Page 1 of 3 Lease 715-1917 Please note that not all options are ( 'lable for all leases. If "nfa" appears IU may not choose that option. The Option 1 balance shown reflects an additional 5% discount in addition to the Lease Discount Percentage already applied to your lease balance under the Plan. Option 1 also allows you to avoid future interest on your lease, alld therefore represents the maximum savings available to you under the Plan. These calculations reflect the reduced principal balance, reduced interest rate and other concessions provided to you under the Plan. In some cases, the maximum monthly payment ($250 for Boards or $390 for Kiosks) or minimum monthly payment ($150 for Boards or $300 for Kiosks) will affect your available options. If you elect Option 1, your check for the appropriate Lump Sum amount should be enclosed with your Election Form. Following receipt of your election form selecting Option 1 and your check, we will send you a confirmation acknowledging that your Lease obligations have been satisfied in full. If you elect one of Options 2 through 5, your lease will be adjusted in order to reflect the revisedcontracrua1 terms. If you do not make an election, you are deemed to have selected Option 4. If you elect Options 2 or 3, your check for the appropriate Past Due Amount (see item E below) is due on July 30, 1998. Under Options 2 through 5, your first revised monthly payment is due in August 1998. If you do not include your first monthly payment when you return the Election Form, you will be invoiced for payments due in August 1998 and September 1998. The revised lease information and payment options provided in this statement reflect all payments made through June 23, 1998. If you made any payment after June 23, 1998, you will receive credit for your payment. Please mark your option choice on the enclosed form and return it to us in the enclosed envelope by fuly 30, 1998. The Plan requires that any outstanding Personal Property Taxes on your Lease be paid by July 30, 1998. Our 'ecords indicate that the amount of Personal Property Tax currently owed by you is $61.20 (this total may include any ~stimated billing for 1997 and/or 1998 if your state has not assessed the actual amount as of yet). Regardless of which Jayment option yo].! select, you must pay this property tax balance no later than July 30, 1998 (30 days after the ~ffective Date). For your convenience, this payment can be included in the return envelope along with your lreference election if you so desire. Finally, for your information, under the terms of the Plan, we are providing you with the following nformation with respect to the treatment of your lease under the Plan. Capitalized terms used in this statement have he definitions provided in the Plan. Please see the Plan for a detailed explanation of the terms of the revised Leases. A. Effective Balance of Lease B, Lease Discount Percentage C. Principal Payments scheduled to be made after 12/31/95 D. Revised Principal Balance of Lease E. Effective Date Arrearage of Lease F. Revised Monthly Lease Payment if term is unchanged G. Revised Monthly Lease payment if term is extended to 60 months (or 72 months in the case of a Kiosk Lease) $ 8841.87 24.30% $ 8946.00 $ 8542.97 $ 9894.28 $ 262.50 $ 197.56 If you require further information about the calculation of your payment options, please contact our customer ervice department at (800) 839-9099. If you have other questions concerning the Plan, please call Andrew Connor, nformation Coordinator for the Official Committee of Unsecured Creditors, at 312-861-2000. age 2 00 Lease 7154917 ELECTION FORM Please mark below the option you wish to select. Select only one option. 1 Lump Sum 2 Pay Past-Due Now and Pay Remainder Over Time 3 Pay Past-Due Now and Pay Remainder Over Time (Extended) 4 Pay Over Time 5 Pay Over Time (Extended) If you elect Option I, please include a check for the appropriate amount in the same envelope. Under Options 2 through 5, your first revised monthly payment is due in August 1998. If you do not include your first monthly payment when you return the Election Form, you will be invoiced for payments due in August 1998 and September 1998. Please be aware that this document must be received l7y FINOVA on or before July 30, 1998 (30 days after Effective Date) in order for your preference to be honored. If we do not receive your response indicating your preference l7y that date, you will be deemed to have selected option 4. When completed, mail the form (and your check, if selecting Option 1) to: FlNOV A Capital Corporation Attn; Lease Administration 7272 East Indian School Rd, Suite 410 Scottsdale, AZ 85251 WHITE SHIELD INC/Lease # 7154917 Page 3 of 3 L~as~ 7154917 E X H I BIT "H-3" December 14. 1999 WHITE SHIELD INC P.O. BOX 623 LEMOYNE, PA 17043 Attn: THOMAS TRITE RE: Lease # 7154917R Dear WHITE SHIELD INC & THOMAS TRITE: Please be advised that the above-referenced lease agreement between FINOV A Capital Corporation, as lessor, WHITE SHIELD INC as lessee, and THOMAS TRlTE, as personal guarantor of the obligations of WHITE SHIELD INC, has a past due amount of $4,848.70. This past due amount includes the following: S4,250.00 $212.50 S325.00 $61.20 S4,848.70 DuelUnpaid revised monthly lease rentals Sales/use taxes Late charges Personal orooertv taxes. Total Past Due Amount FINOV A Capital Corporation must receive this payment at our offices within ten (10) days of the date of this letter in order to bring your account current. As you are aware, in 1998, the United States Bankruptcy Court for the Middle District of Florida, Judge Alexander Paskay. confirmed a plan of reorganization (the "Plan") in the consolidated cases captioned In Re: Ootical Technolol!ies. Inc. The Plan contained provisions which granted certain discounts and adjustments to lease balances for lessees of equipment manufactured by Recomm International Display Inc. (and related companies). The Plan and ConfinnationOrder also detennined (I) that the Leases are valid and binding in accordance with their tenns (as modified by the Plan), and (2) that the obligations under the Leases (as modified by the Plan) are enforceable, and are not subject to any claims, demands. defenses, set-offs or counterclaims arising out of actions, activities or events which took place before June 30, 1998. If payment for the full past due amount is not received in our office within ten days, the tenns of the lease provide that FINOV A may accelerate and demand immediate payment of all payments required under the lease (as modified by the Plan). If FINOV A accelerates the payments due to your continuing default, the current accelerated amount that you, as lessee or personal guarantor. will be required to pay is SI2,137.35. In addition, if FINOV A brings legal action against you to enforce these obligations, you may also be liable for additional interest, late charges and attorneys' fees and expenses. Please remit payment to FINOVA at the above referenced address, mail station 3E60 within ten (10) days of the date of this letter to avoid any further collection efforts and/or legal recourse. If you have any questions, please feel free to contact the undersigned at 480-636-5 102. Sincerely, FINOV A Capital Corporation Jim J. Searles A VP-Portfolio Manager E X H I BIT "1-1" LEASE AGREEMENT r Recori'lm International Display Ltd. 7650 Courtney Campbell Causeway Suite 1050 Tampa, FL 33607 I 7/5f./ '910 .=u::.MONTHLY PAYMENTS OF $ 5'tt.. 46 (appliCatllt taus to Del Cill8a) VENOOR L ~ PAYABLE A1 SIGNING OF THE LEASE (check ane) EQUIPMENT DESCRIPTION: oty.!i Aecomm Vax Apothecary System Serial Number. EQUIPMENT LOCATION IF OTHE I . I I Dear Lessee: We have written lhis lease in plain IMguage cecavM we WIllI ~ 10 fully undIlIland ils tenns. Please readyaur cap tni6least cat and tHllrH 10 ask UI any qunlions you may have abcxlI It, We use lI1e ~ :QI and lIlIlIC to _Ills '"'" IndIcaled beIaw. The wotds _ 1& Ind llII refer to the Ies5ar indcated belOw. You aullIOrIu USIa add our name as Lasser after you /lave signed tnl dac:I.m8nl by Slllll1l*l1l or IlfI1*1o our nsme in ....lIppIOpIta.. place. 1. L!ASI! AGRI!I!MI!NT: You a~ Illleuelrarn us and we "-10 leaN to you .,. eqUpmentlltled atlaY8, ~ you agree will be used klr bIltiMss puIJlOH8 only. You II"''''1lI 10 pay \lithe I\lllI 01 al of lhe renlalpayrn_ IndIcaIld an the sdlllOJle IIlove and/or 1IIId'l. 1iIlk:ft NIl ClW'Ibt calculated by IIIIlIIipIyi1g lhe illInber 01 paymlllls limn Ill. paymtnl amount IndICaled on III scnaclUI(I~ ' 2. ORDERING EQUIPMENT: You request tIlll we arrange iialNtry to ~ alyour expense. 11he eqUpnenl has nat be<<! daIYere4. inStlIlItd, and acctpIed /l'f you willin faIty-five (45) dej$/ram the dele lhIll we 0Itte," the equipment, we may on len(10) days wrtlI8n nalIce 10 you lerminalll1he _1I1d aur oCIlQalions 10 you. In Ih. _ lIlat WI have issued a putdlaM conusa or ordIr tar 1I1e eqUpmen1, you IgIU that lhe purd'lueonltt or COIltraCl is aoceptalllllO you. W you havt _red Irto a purthue contract lor the equipIl.nt, you agile 10 3Jign ~ 10 us, efllCllve when we pay lor equ~ 3. NO WARRAN11I!S: Wt are ....llllIIlh. equlpmentlO you 'AS IS', WE MAKE NO WARRANTIES, elCPRI!SS OR IMPUED. RICARDING ANY MATTER; INCLUDING SUT NOT UMITI!D TO WARRANT1!S 01' FITNESS !'OR A PARTICULAR PURPOSE Oft ORDINARY US! IN CONNI!CTION W\lll THIS LEASE. r the Vendor or anyaIIt tlI8 had made a r8Pltstn!al1an tit -1!lY 10 you as to tlWI 8qIipmant or any OlIler 1llIlIer, you agree th&l lIlY IUCh ~ or WlIl'lIIlly IIlaIlIOlllt lIIndIng an us. nor shllIllhe bmc:ll of Slldl rIlisvt you cI, or in any way sff~any 01 yru abIlga1ianIlO us undet t1Is Ieue. I the~ Is noccallslactary tar any reason, you $hill make your dUn only ageinll the VtnclOt ancl you shaI nevertheless pay us aM rllRl payable un<ler tills 1-. So long as ~l/IlIOl in de/IUllllder lIlY 01 thetenns oIlhis.1ea8t, 'lit ttIn8Itr 10 You any wtIIanlits made 10 us by !hI VendOt, mMUladurer or tupllIIer. You undel1llnd ~ agllt tIIaIllt VendOr, "' agenlI and emplayttll/lllOllQllU of OUII, not IIWihey lUtharIzed to *4lvt or CIlange any tann or cand1ian oIlhis leaN. YOU AGRee THAT, AEGAAOl!SS OF CAUSS, YOU WILL NOT ASSERT Nrf CWM WHATSOEVER AGAINST US FOR LOSS OF PROFITS YOU EXPECTeo TO MAKE OR Nrf OlliER DIRecT, sPecIAl. OR INDIRecT DAMAGES. r ~ have entar8d IncD i malnltnlnce agreemenl willi. ""*' 10'" equlpmtnl and Ih8 COlI elm maintl/lanct Ig,"",ent is to bt peid by us 10 1I1e Vendor ar someone else, then you adlnawIedge 1llIl.... tIld nocbt ~I lot the sal\'ict, 18pel/1i or mal'1ienanc:e of lhe eqUpmetC. IIlatlVt art llO\ a pany 10 any $Ud'l mai11enance lOI"fRlnt. and IVIR K you hIVe I cI8IMt regelding 1!laInl_ or seMce you wII COI1IInut 10 pay usllll1f1lll and maInlenence payments due under II'is II'" and all sd'leclUlts 10 Ihit Itase. 4. NON-CANCI!LlABLI! LI!ASE: This ,.... ~ be cenceIed by you. SR S 0( FlRSTMONTHSPAYMENT ~, 40 n OTHER ~T"'Callilllc..,.,... . ~ ......17,.., ,....,1I01W 'TriC4I capilli Corporatloll, ... ..... _~I TrfQlI CIPitII. a i,1t Gl GrIyIIciu.~ financial CarpnllillI' o~_ 7-1~-~-4. ACCEPTED: LESSOR flY ,I/(J. ~ <0 ~ ..cl ~ 1lTU! ~h//~V' ......,IWII_ ._.. OArt=: x wmcss SlQHAlIJM IlATeO x _..__.___ I'eJ\SON.Il GuARANTOR SoGllA~. AHINllMOllAI. llAno PWIIllW. ClIWWIT'r . 1.........,.._ "",......wiI_ 11_ ""'lIlY.'" .1IlOf..............-IiI__." lltOltInll...",*",,, _......._..._ "''''''IfOIIIIdr. T1lio,....., _10. ,..,...,0I0Il"'I"' .,,;-...,...._I.._...,..,..,__..__......._InIlI...IO_IOI__...._lIQIIaojooo.lwil.....OOIly,.,...-wloIl...__oI~._.. .... --... .....-.....- ""'''''-''_''''-01__'''-' 1_"_"lIf* ".. ._01..._-..".,__,..,......_....__.1041 ._,,,,,"'I'l,,....-_"'___oI..._Ior""_oall"....,..io_...................,.I.._,..IOI....._...,......ill_..,oI,..,........_...., -,...,'..., i",,,. _GUlf...... __lrt.......oI~oI............__...I................,.1 il__"',-, ~ IAGAEETMAT1IIIGIIAAAHlYSHALl.1e SUlJ!CTTtl ne _.\NO OOIClIl1ONSCI' S/ICTlOIl17 Cl'TltSl!AR.lIIS CIJNW(fV SHALl. SEGO'/ENlE08VTHe.lAW8 OFlMi sr'Tli OF .lPfltICAll.!JlASIlICT1ON.ASOUIlCO II SECTION 17,'1oGM& AHQCQH$UIT THAT TliI! COllllT CI' ne SlAT! _ 'Il1eCOUlm' CI' AI'I'UCAIl.I ~ OIUNT l'tOeM. 0ISlNCT COI.llT 1iO._ AAl8llICTION III nu.T coum QlI AI'I'I.ICAU JUIlISIlICT10II SIW.l.IiO.\/t AJAISOICllQIO.oNO Sl..LUa: _\OCATIONFOIl Tl<li ~TlOHOI'IlI8I'U1U _ _'lIIS l!AR.1_"'_ "",......, _ "" '1'.......- mtiI. __.. _. _ ...-"...... ....Of"". ., 1CtiM.......... ' , -. . '''''J . .,.. ....". 'j'" ."'C i.<.J,r:;' IVI..o, ..>, ...o.1YI ~'-,. .~er~1:~2r -=::f":;~l.::":;'/~ ....,;.;.,; :.;.r,:-e!':3 "~Iil:::e .~L:A en '~e "3,1r.1e ;~.1y JI 'tt\J,;:l ;}Hnod "'(1It;,l:eC o:~ '~p. '~ver'je );Ge. ~H ;:}aymenrs 'Nul be .~Jde '0 :JS]I OL..r ,Iccress on ~~'S e~p.. .J~ 11 .!rCI:"er lCCP3SS Hr';;.: WR NOL::I~ ;";..";:';1:1'! :' ~lf:t'~'0 'JOll JCI!(}.'iI,tJl' :0 iJ.1Y '~r~IJIS :0 US ,5 iJl'Cor.CltiOn.11 ,w.c 5 "01 $UOlec: :0 Jr.y 'eductton, set.oll, defer.5B. or ::Ol.;~tRrl.~.1tm ~cr Jny '9J50n wr.al$Oever V')U JLlror':~ JS '0 r5~r': "":'1': '1:,r1:~f!r,; ..1I'U iJIt'lPfCeflllhc:lllOn C<l1.1 .100t..l '~f! ~QUlpmel~1. JS ,vetl .1..i JI~p.r omrned 'ac:ual ,'T.Jcters. II 'Ne acce~ea J sP.C:Jr':y ceoosll :rcm you. t "Hlil :e "eld '"::f JS :0 5eC:Jm yUU( 'JI!~fl.;l i!'~or:r:JflC;!~.)r ::--.15 :p.JSe, Jr'1{j :I'Nlll bp. rerUnleO I)r ,lcoIu!C as SIJled:1I ?Jr:!.grJOh lJ. You snJllpay to us a one-lime aommlslrauve lee 01 S25,:a:o relmo;,;rse:";$ ~or JU( ~iJrt.~D ,!crmns:,"JII'1P. '~'~\SSIGNMENT: You may not sell,lr~nsler. assign or sublease Ihe equipment. We may, wllhout notifying you, sell. assi~n, Iransler, encumber or pledge Ihis lease, in whole or In art. ~nd ownership 01 the equipment; and you agree Ihat il we do sa, Ihe new lessor w,lI have Ihe same righlS and benelns Ihat we now have, and Ihe new lessor will not h~ve to erform ~ny of our obligations. You agree Ihat the rights ollhe new lessor w,lI not be. SUbJect to any clams, defenses or setoffs Ihat you may have against us. However, any such ssignmenl, sale, or Ir~nsler of this lease or the equipment w,lI not reheve us of our obligations to you under Ih,s lease. ; OWNERSHIP AND QUIET ENJOVMENT: We are [he owner ~f lhe eqUipment and have tIle 10 Ihe eqUIpment. [I any olher person anempts [0 claim ownersnlo of me equipmee[ buy assemeg oat "31m acatnS! you or Ihrough you, you agree, at your expense, :0 protecl and oefend our litle [0 Ihe equipment. Funher. you agree Ihal you Will al all tll11es 'eep the equipment Iree Irem any legal 'Ocess or I~n wr.atsoever, and you shall !JIve us immediate nOllce If a"f legal process or lien IS assened or made agall1st Ihe eqUIpment. So long as you are not In delaul under any of :he lerms In :s 'eJse, we agree 11'..1 you sha" qulel~ use and enJoy Ihe eqUipment . . . . 8. CARE, USE AND LOCATION: LOSS OF EQUIPMENT: You are responSIble for Installing and keeplng the eqUlpmenlln goad warl<lng order and repalr, You are responsible lor protllCllng the :",omenl Irom damage, except lor Ordinary wear and lear and Irom a"f olher 'Ind 01 loss 'NIlde you have lhe equipment or while it IS being delivered 10 you. ::'/en II [he equipment IS damaged or SI. you agree 10 continue to pay rert. You Will keep aro uselhe equipment on~ at your address shown above. and you WIll only use it lor bUSIness purposes and.in compJianca With all applicable ws. Youwlil nOI make any altetallons 10 the equipment WIthout our poor wnnen consent (whICh we ..,11 nol unreasonably Wllhhold), nor WIll you permanent~ anach Ihe equipment to your :ual aSlate. lU agree that you WIll not remove lhe equipment IrOm lhat address unless you gel our wrinen perrrission ins advance. AI the end of Ihe term at leasl. you will retum [he equipment to us, at YOut roense. g. TAXES AND FEES: You agree to pay when due all taxes, fines and pena/1ies relating to this lease,lhe equipment orrhe rentals ~r9Under. You also agree that we have the righteachyearro ;i!mate the yearly personal property taxes that wiU be due for the equipment and lhat you will pay us the estimated laxes when we request payment. II we pay any 01 those faxes. lines or penalties r you. you agree to reimburse us on demand. You also agree that we have the right to sign your name to any document lor lhe purpose of such liIing, sa long as the liIing does not interlere wilh lur::'ght to uselhe equipment. 10. INDEMNITY: We are not responsible lor any injuries ot Iossas to you or any other person relating, in any matter whatsoever, to lhe Equipment. You assume responsibility lor and agree 10 !.p us. our successor and assigns harmless from and against any and alf liatili"es, losses. obligations, damages at any kind 'Nhalsoever, including reasonable attomay's lees lor any laHuie on ,ur can 10 perlorm or comply wlh any condition 01 this lease. This indemroty shall continue even after the term 01 this lease has expired. II. INSURANCE: You agree 10 keep [he eqUIpment hlly lI1Surad against al hazards irduding but not imiled to fire. fheft and extended coverage ;,sIJrance. unt! you have met aU your ~igalions under th~ lease. You agree to otiain a general public liabilky insurance policy, covering belh personal i~UlY and propeny damage, from anyone whO is acceltable to us and to incli.<le us ; an insured on the policy. You agree 10 provide us with centtitates or olher 8V1dence 01 insurarce accaptable 10 us. If any insurance proceeds are paid as a resu" 01 any s:.ell loss Jf damage to the IUlpmen!. you agree that such insurarce procaeds shall be paid 10 us :0 sallsly your rental obligations under this lease. If Ihe equipmert IS eilher lost ot tDlally destroyed, and you are not In defau" 'der Ihe terms of th~ lease, inslead 01 continuing 10 pay us rent you have the oltion 01 paying us the lhen present value 01 both Ihe unpaid balanca of Ihe rema"'~g :unt urder this Lease an:] the lue 01 our reSidual inlerest in the equipment, each compt.Ced with a discount tate at SIX (6%) percent per year. 12. DEFAULT AND REMEDIES: If you do not pay rent when due or if yoo break any 01 YOut promises under this lease, or you become insolvent, assi<;/' your assets lor [he benefit 01 yout !dilotS. or enter (voluntanly Or involuntarily) a bankruptcy proceeding, yoo will be in delaul!.1I your delault is caused by YOlJ' failure 10 make any paymenl'Nl':en CUe. we can reqUIre Ihat you rerum ! eouipment 10 us and pay 10 us Ihe rematning balance 01 all at the :enlal payments due under Ihis lease, present valued using a six (6%) percent per year discourt rate. If you fail to return the :uipment to us. in addition we can also require lhal you pay to us our residual interest in the eqt.ipment, preSlrt valued as noted above. '(00 also agree 10 pay us inlerest on all sums due us lrom ! dale 01 delauit until paid a1the rate of one and one-l1a1l (1- t 12%) percent per month, bLC only to lhe extert permined by law. If your defauft is caused by 'ft1Jr breaking any at your olher promISes derlhis lease, we shall be entitled 10 recoverlrom you all damages caused by that type 01 defaun. We can also use a,." 01 the remedies available to us undllrthe Umorm Commercial Code or any 1fr law. If we reler Ih~ lease 10 an attomey lot enfortem8nt or coUectlan. you agree to pay aUI' reasonable anarney's lees 01 at leis! 20% 01 the remairing baJarce at allhe rental paymenrs. and :ual costs. If we have to lake possassian ollhe equipmert, you agree to pay Ihe cost 01 rapoSSlSSian. SlOMg. shipping. repairing and selling the eqt.ipmlnl. Although you agree that we ue nol ligated 10 do so, if WI decide 10 sill the equipmert. and we are able to SIft the equipment fot a price lhII exc"ds the sum 01 (a) our cost 01 :epossessian and sale at the equipment and (b) the lidual value of the equipment, present valued as calcUaled above, then WI nil give you a credk for the amount at such IXcaSS. You agree that WI do not have to no1ily you ihat 'loll are sslUng I equipment. 13, OTHER RIGHTS: You agree that any delay orfalure to e,,0/'C8 our rights lJ'Ider this lease does not prevent us lrom enfo~ng any rights aI a later time. Both panies intend tM lease to be a lid and legal document, and agreelhal il any part is determined 10 be unenfolCesble, all other pIllS will remain illulllorce and etIect. If this dacumertis not lound 10 be a lelS8,lhen 'ft1J grant us ;ecurity intlrest in the equipmert. You also give us the right 10 mmedately file, at YOlJ' expense, any Umarm Commercial Code ('\JCC') finarcilg statements or related filngs, as wel as the right sign YOut name 10 any such iiings thai we make. 14, REDELIVERY OF EQUIPMENT: In the evert you do rot decide 10 purchaseihe equipme/t according to the lerms of any Purchase Oplian Laner that WI have issued to you,then when this lse expires. or is terminated earler, you shallisconned, properly package lor transportation. and retum lhe equipment, lraigll prej:8id. to us, in goad I1pair, cond~ian and war1dng order, normal 'ar and leat excepled, to a location designated by us. K upon expiration or lermination, you do not immedlatllly rerum the equipmert to us, at our oplian la) WI will atrangl (or. removal ollhe uipment and you agree 10 pay us an amount equal to IWO 12) payments, ot (b) the equipmert wil continue to be held and leased by you for successive one.year periods at the same rental in Ihis lsa subject to the right 01 either paity to lerminate the lease upon twelve (12) months written notice, il wtich case you wil immedialllly deliver the Equipment 10 us as stated in 1M paragraph. lvidad you have lulfilled all 01 your obligations 10 us under iIIis lease, we wiil either :elund yoUI' S8CIlrity deposit without merest to 'ft1J ot al YOlJ' dni:tian apply k towards the pul'Cliase at the uipmert. 15. LATE CHARGE: K any pan of a paymenl is not made by you when cIuI, you agree to pay us a late charge at ten (IOT.1 percenl at each such laIe payment, bU only to the extert panrittedby ,. You agree to pay us Ihelatl charge naliater thaIi one month folawing lhe dale that origineJ payment was due. 16. ENTIRE AGREEMENT; CHANGES: This lease cortains the entire agreement between you and US and ~ may not be ane:ed, amended, modified, tlrmi1aled ot OlhelWisl changed Ixce!X wrling and signed bath by you and us. 17. MISCELLANEOUS: In iIIe evert you tail to comply with any part 01 1M leUl, we can. but WI do not have to, take any action R8C8SS4fY to elflCl your compliance upon ten ( 10) dlys prior IlIen notICe to you. K we are required to pay any amount to obIain your compliance, the amount.... pay plus all 01 our expenses in causing yolJ' compliance, shaIt~me additional IIrt and shall paid by you at Ihelime at Ihe next due rertaJ payment. If any notices are reqLired under this lease, iIIay shaJl be sulficient ij given pal10nefly or mailed 10 the addIIss HI lanh in iIIis.lease by 11tied or registered mail, postage prepaid. This lease is for the benefn of and is birding upon you and your pet'SOnll representitives. succesSors and as. AS USED IN THIS PARAGRAPH , "APPLICABLE JURISDICTION" MEANS THE STATE,AS MAY CHANGE FROM TIME TO TIME, WHERE THE HOLDER OF THE LESSOR'S INTEREST IN THIS LEASE MAINTAINS ITS IINCIPAL OFFICE RESPONSIBLE FOR ADMINISTERIN.G THIS LEASE, THIS LEASE SHALL BE BINDING'WHEN ACCEPTED IN WRmNG BY US AND SHALL BE GOVERNED BY THE WS OF TH E APPLICABLE JURISDICTION, PROVIDED HOWEVER, IN THE EVENT 1ll1S LEASE OR ANY oms PROVISIONS CANNOTBE ENFQRCeo UNDER THE LAWS OF THAT 'ATE lllEN lllE LAWS OF THE STATE WHERE lllE EQUIPMENT IS LOCATED SHALL GOVERN. AS useD IN THIS PARAGRAPH 17. "COUNTY OF APPliCABLE JURISDICTION" :ANS 1:HE COUNTY WITHIN THE STATE, AS MAY CHANGE FROM TIME TO TIllE, WHERE THE HOlDER OF lllE LESSOR'S INTEREST IN TliIS LEASE MAINTAINS PRINClPAL 'FICE RESPONSIBLE FOR ADMINISTERING THIS LEASE. YOU AGREE THAT THE COURT OF THE STATE FOR lllE COUNTY OF APPlICABLE JURISDICTION OR ANY FEDERAL iTRICT COURT HAVING lllE JURISDICTIOH IN THAT COUNTY OF APPlICABLE JURISDICTION SHAU HAVE JURISDICTION AND SHALL BE THE PROPER LOCATION FOR THE :TERMINATION OF ALL DISPUTES ARISING UNDER THIS LEASE. You agree and consent lhal WI may SllVe you by registered ot cenifled mail, wtich shall be slilicient lootxain jurisdiclian. ihing Slated in iIIis lease is intended 10 prevert us lrom commandilg any aaian in any court haYing proper j,,;sdictian. You WIive IriaI by jul'f in any action between us. 1 e. UCC-ARTlCLE 2A PROVISIONS: You agr.. thaI this lea. is a "FinaRCll Least" under Articlt 2A of the Uniform Commercill Code,thlt is, you aclcnowledge thaI: (a) we did not eet, manulacture or supply the equipment, but we did purchuethe equipment lor Ie_ to you; II1d (b) we haw given you the 1IIIIl. 01 the supplie{ 0/ lhe squipment you .eleasing m us. The supplier is SIt farthin this lease or an the anached schedule. We hereby notify you that you may have rights under the Sl/pply contracts II1d thlt you may contact the Jplier lor a description at those rights or ..y warranties. _ TO: Recomm's Designated Leasing Company In reference to the attached I.... ~en Ll?bf:.\9~~Ii~, and. Recomm's designated leasing company dated ....\1 \\l' (the "Lease'), it is understood and acknowledged that this Lease is non-cancellable for the term and that the payments under the Lease are due absolutely and unconditionally regard- less of any representation or warranty, whether verbal or in writing, made by any party, other than the written representations and warranty of the Lessor under the Lease. l-tJ'rut(l", ~ held :ry,~ , Lessee ~k'I~ A.~,\o- B~U2-~"p E X H I BIT "1-2" STATEMENT OF REVISED LEASE TERMS AND OPTIONS UNDER FOURTH AMENDED PLAN **CORRECTED COpy** WHITE SHIELD INC P.O. BOX 623 LEMOYNE PA, 17043 June 30, 1998 The Fourth Amended Joint Plan of Reorganization ("Plan") for Recomm International Display, Inc.. Recomm Operations Inc. and various related entities was confirmed by the United States Bankruptcy Court on May 13, 1998. As you may hive read in the materials previously sent to you, the Plan provides you and other Participating Lessees with discounts and/or other concessions on your lease as set forth below. The Plan provides both the Participating Lessors (including FINOV A Capital Corporation) and the Participating Lessees (including you) with a release and injunction prohibiting the commencement or continuance of lawsuits brought by one against the other relating to events occurring prior to confirmation. The leases, including your lease, are held to be valid and binding and you are required to make payments on your lease as moditied under the Plan. This statement describes your revised lease terms and your payment options under your modified lease. Please read lhis statement carefully before selecting your payment option. You must make your payment election by completing the enclosed Election Form and returning it to us by July 30, 1998. It is the desire and intention of the Participating Lessors to make this transition as easy as possible. You have the following payment options for your lease under the Plan: Number of I Option Amount Due remaining , MontWy TOlalto be ! Now monthly payment Paid * payments amount 1. Lump Sum: Pay the Revised Principal Balance, Effective ! Date Arrearage and any applicable sales tax in one lump sum 8602.77 I 0 0.00 8602.77 to satisfy the Lease in full. . . I , 2. Pav Past.Due Now and Pay Remainder Over Time: Pay the I Effective Dale Arrearage plus any applicable sales tax in one i na na na na lump sum, then make monthly payments plus pay any applicable sales tax for current remaining lease term until the Revised Principal Balance is satisfied. , 3. Pay Past-Due Now and Pay Remainder Over Time (Extended): Pay the Effective Date Arrearage plus any na na na na applicable sales tax in one lump sum, then spread remaining I i payments plus any applicable sales tax over 60 months (for Display Boards) or 72 months (for Kiosks). , I 4. Pay Over Time: Spread Revised Principal Balance, including I ! ! I the Effeclive Dale Arrearage, over the current remaining term 0.00 , 41 265.00 10999.04 I I and Dav anv applicable sales tax. ! . I 134.04 5. Pay Over Time (Extended): Spread Revised Principal i Balance, including the Effective Date Arrearage, over 60 0.00 I 60 i 199.44 11966.40 I months for Display Boards or 72 months for Kiosks and pay I I I any aDPIicable sales tax. I , The Total to be Paid is calculated by multiplying the number of remaining monthly payments by the monthly payment amount plus the amount -now due and includes sales tax. This calculation assumes all pa~ents are timely made ove~ the remaining term of the revised lease. Page 1 of 3 L~as~ 715.+918 nease flUt/! mat nut uu upnon5 are ti-~ttliDle Jor allleiises. IJ "iila" appears '?umay not choose that option. The Option 1 balance shown reflects an ...lditional 5% discount in addition to l,.", Lease Discount Percentage already applied to your lease balance under the Plan, Option 1 also allows you to avoid future interest on your lease, and therefore represents the maximum savings available to you under the Plan. These calculations reflect the reduced principal balance, reduced interest rate and other concessions provided to you under the Plan. In some cases, the maximum monthly payment ($250 for Boards or $390 for Kiosks) or minimum monthly payment ($150 for Boards or $300 for Kiosks) will affect your available options. If you. elect Option 1, your check for the appropriate Lump Sum amount should be enclosed with your Election Fonn. Following receipt of your election fonn selecting Option 1 and your check, we will send you a confinnation acknowledging that your Lease obligations have been satisfied in full. If you elect one of Options 2 through 5, your lease will be adjusted in order to reflect the revised contractual terms. If you do not make an election, you are deemed to have selected Option 4. If you elect Options 2 or 3, your check for the appropriate Past Due Amount (see item E below) is due on July 30, 1998. Under Options 2 through 5, your first revised monthly payment is due in August 1998. If you do not include your first monthly payment when you return the Election Form, you will be invoiced for payments due in August 1998 and September 1998. The revised lease infonnation and payment options provided in this statement reflect all c>ayments made through June 23, 1998. If you made any payment after June 23, 1998, you will receive credit for your payment. Please mark your option choice on the enclosed fonn and return it to us in the enclosed envelope by fuly 30, 1998. The Plan requires that any outstanding Personal Property Taxes on your Lease be paid by July 30, 1998. Our 'ecords indicate that the amount of Personal Property Tax currently owed by you is $0.00 (this total may include any :stimated billing for 1997 and/or 1998 if your state has not assessed the actual amount as of yet). Regardless of which )ayment option you select, you must pay this property tax balance no later than July 30, 1998 (30 days after the :::ffective Date). For your convenience, this payment can be included in the return envelope along with your )reference .e1ection if you so desire. Finally, for your infonnation, under the tenns of the Plan, we are providing you with the following nfonnation with respect to the treatment of your lease under the Plan. Capitalized tenns used in this statement have he definitions provided in the Plan. Please see the Plan for a detailed explanation of the tenns of the revised Leases. A. Effective Balance of Lease B. Lease Discount Percentage C. Principal Payments scheduled to be made after 12/31/95 D. Revised Principal Balance of Lease E. Effective Date Arrearage of Lease F. Revised Monthly Lease Payment if tenn is unchanged G. Revised Monthly Lease payment if tenn is extended to 60 months (or 72 months in the case of a Kiosk Lease) $ 8841.87 24.30 % $ 8946.00 $ 8542.97 $ 9894.28 $ 265.00 $ 199.44 If you require further information about the calculation of your payment options, please contact our customer ervice department at (800) 839-9099. If you have other questions concerning the Plan, please call Andrew Connor, nformation Coordinator for the Official Committee of Unsecured Creditors, at 312-861-2000. age 2 of 3 Lease 715-1918 ELECTION FORM Please mark below the option you wish to select. Select only one option. 1 Lump Sum 2 Pay Past-Due Now and Pay Remainder Over Time 3 Pay Past-Due Now and Pay Remainder Over Time (Extended) 4 Pay Over Time 5 Pay Over Time (Extended) If you elect Option 1, please include a check for the appropriate amount in the same envelope. Under Options 2 through 5, your first revised monthly payment is due in August 1998. If you do not include your first monthly payment when you return the Election Form, you will be invoiced for payments due in August 1998 and September 1998. Please be aware that this document must be received by FINOVA on or before July 30, 1998 (30 days after Effective Date) in order for your preference to be honored. If we do not receive your response indicating your preference by that date, you will be deemed to have selected option 4. When completed, mail the form (and your check, if selecting Option 1) to: FlNOV A Capital Corporation Attn: Lease Administration 7272 East Indian School Rd, Suite 410 Scottsdale, AZ 85251 WHITE SHIELD INC/Lease # 7154918 'age 3 of 3 L~as~ 7154918 E X H I BIT "1-3" December 14. 1999 WHITE SHIELD INC P.O. BOX 623 LEMOYNE. PA 17043 Altn: THOMAS TRITE RE: Lease # 71 54918R Dear WHITE SHIELD INC & THOMAS TRITE: Please be advised that the above-referenced lease agreement between FINOV A Capital Corporation, as lessor, WHITE SHIELD INC as lessee, and THOMAS TRITE. as personal guarantor of the obligations of WHITE SHIELD INC, has a past due amount of $4,830.00. This past due amount includes the following: $4.250.00 $255.00 $325.00 $- $4,830.00 DuelUnpaid revised monthly lease rentals Sales/use taxes Late charges Personal DroDertv taxes. Total Past Due Amount FINOV A Capital Corporation ml1st.receive.this payment at our offices within ten (10) days of the date of this letter in order to bring your account current. As .you are aware, ih 1998, the United States Bankruptcy Court for the Middle District of Florida, Judge Alexander' Paskay,"confinned a plan of reorganization (the "Plan") in the consolidated cases captioned In Re: Ootical Technolol!ies. Inc. The Plan contained provisions which granted certain discounts and adjustments to lease balances for lessees of equipment manufactured by Recomm International Display Inc. (and related companies). The Plan and Confinnation, Order also detennined (I) that the Leases are valid and binding in accordance with their tenns (lI$ modified by the Plan), and (2) that the obligations under the Leases (as modified by the Plan) are enforceable, and are not subject to any claims, demands, defenses, set-offs or counterclaims arising out of actions, activities or events which took place before June 30, 1998. If payment for the full past due amount is not received in our office within ten days, the tenns of the lease provide that FINOV A may accelerate and demand immediate payment of all payments required under the lease (as modified by the Plan). If FINOV A accelerates the payments due to your continuing default, the current accelerated amount that you. as lessee or personal guarantor, will be required to pay is S12,181.58. In addition, if FINOV A brings legal action against you to enforce these obligations, you may also be liable for additional interest, late charges and attorneys' fees and expenses. Please remit payment to FINOV A at the above referenced address, mail station 3E60 within ten (10) days of the date of this letter to avoid any further collection efforts and/or legal recourse. If you have any questions, please feel free to contact the undersigned at 480-636-5102. Sincerely, FINOV A Capital Corporation Jim J. Searles A VP-Portfolio Manager ~1 'i' ~ ~ ;. ~ ~ ~ ~ Ct)h. . <<j 0 ~J c;.C V I ' :tJtp ~-f. ~ ~ (') :B c: ~ - -0 CD "'0 S2 9] ::u Zc-- I CI"l.l':: -.0 -<~" !:::C7 :::.. ~O ::r --0 ,~ > c:: ~, z ~ l~ o " "-i "r t?'7;;:;1 ~~!? 1.._,'<::> =;3 "~I~ j ?:> :IJ :-::..-(') (5fn -, ~ F:\FlLES\DA T AFILE\Gcndoc_cur\878713.pra.l/cny C'rtated: OS/22/0211:53:53AM Revised: OS/2210202:07:52 PM 8787.\3 FINOV A CAPITAL CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. PENROSE PLACE PHARMACY, INC., RONALD COMUNE and WHITE SHIELD, INC., Defendants NO. 02-1740 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Enter the appearance of MARTSON DEARDORFF WILLIAMS & OTTO on behalf of Defendant White Shield, Inc. in the above matter. Defendant White Shield, Inc. hereby demands a twelve juror jury trial in the above captioned action. By Ge ge B. Faller, Jr., I.D. No. 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendant White Shield, Inc. " ., CERTIFICATE OF SERVICE I, Christina N. Yost, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Barry W. Kreng1e, Esquire DOLCHIN, SLOTKIN & TODD, P.C. One Commerce Square, 24th Floor 2005 Market Street Philadelphia, PA 19103 Penrose Place Pharmacy, Inc. 1208 Fleetwood Drive Carlisle, P A 17013 Ronald Comune 1208 Fleetwood Drive Carlisle, P A 17013 MARTSON DEARDORFF WILLIAMS & OTTO By ~a- Itp. Christina N. Yost Ten East High Street Carlisle, P A 17013 (717) 243-3341 Dated: May 22, 2002 , " (') 0 0 C 1') -I-'j ~.: :Jt -OeD ~1~ [IJ [T": -< Z_J.. N ZCH ~~~:,.' c...~, ~C) ::>'Jt ~C) ;t;:O :.:::> :::; c: ~ (:;) ~ -< SHERIFF'S RETURN - REGULAR CASE NO: 2002-01740 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FINOVA CAPITAL CORPORATION VS PENROSE PLACE PHARMACY INC ETA SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon PENROSE PLACE PHARMACY INC the DEFENDANT at 1450:00 HOURS, on the 15th day of April , 2002 at CUMBERLAND CO SHERIFF'S OFFICE ONE COURTHOUSE SQ CARLISLE, PA 17013 by handing to RON COMUNE, PHARMACIST a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 .00 .00 10.00 .00 28.00 ~~rv~~. R. Thomas Kline Sworn and Subscribed to before 05/01/2002 DOLCHIN SLOT~t TOD By: ""- me this /7 - day of ~, ,;)lj-JJ.J, A.D. ~, - 0. jp"liJ, ), A~A~ J r thonotary , SHERIFF'S RETURN - REGULAR CASE NO: 2002-01740 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FINOVA CAPITAL CORPORATION VS PENROSE PLACE PHARMACY INC ETA SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon COMUNE RONALD the DEFENDANT , at 1450:00 HOURS, on the 15th day of April at CUMBERLAND CO SHERIFF'S OFFICE ONE COURTHOUSE SQ , 2002 CARLISLE, PA 17013 by handing to RON COMUNE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 .00 .00 10.00 .00 16.00 r~~tC~~ R. Thomas Kline 05/01/2002 DOLCH IN SLOTKI Sworn and Subscribed to before By: "\ .... me this 17 - day of ~ ;Juv;b A.D. ~ (2 JHd/" , ~ othonotary , SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-01740 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FINOVA CAPITAL CORPORATION VS PENROSE PLACE PHARMACY INC ETA R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: WHITE SHIELD INC but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of DAUPHIN County, Pennsylvania, to serve the within COMPLAINT & NOTICE On May 1st , 2002 , this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: Docketing Out of County Surcharge Mileage Dep Dauphin Co 6.00 9.00 10.00 11.04 29.25 65.29 05/01/2002 DOLCHIN SLOTKIN So an~ ..::c~_~:.-_7 _?c~-~...__/ R. 'Thomas Kline Sheriff of Cumberland County TODD Sworn and subscribed to before me this /'7~ .21>1J)... ~1''' day of ~. A.D. (;:, \-,,, I Q.. ~"1 prothonotar . @iih::e of tq~ ~1r~xiff Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor J. Daniel Basile Chief Deputy Michael W. Rinehart Assistant Chief Deputy Dauphin County Harrisburg, Pennsylvania 171 0 I ph: (717) 255-2660 fax: (717) 255-2889 Jack Lotwick Sheriff Commonwealth of Pennsylvania County of Dauphin FINOVA CAPITAL CORPORATION vs Sheriff's Return WHITE SHIELD INC No. 0979-T - -2002 OTHER COUNTY NO. 02-1740 AND NOW:April 22, 2002 COMPLAINT WHITE SHIELD INC to ELIZBETH GRASSMYER, SECRETARY of the original at 9:22AM served the within upon by personally handing 1 true attested copy(ies) COMPLAINT and making known to him/her the contents thereof at 2854 NORTH 2ND ST HBG, PA 17110-0000 Sworn and subscribed to before me this 23RD day of APRIL, 2002 C-. (/Jf'M4uu PROTHONOTARY So Answers, JKtlf~ Sheriff of Dauphin County, Pa. By ~hv ~ Deputy Sh riff Sheriff's Costs: $29.25 PD 04/22/2002 RCPT NO 163258 KENLEY In. The Court of Common Pleas of Cumberland County, Pennsylvania Finova Capital Corporation VS. Penrose Place Pharmacy Inc, White Shield, Inc. et al SERVE : No. 02 1740 civil Now, April 1,8, 2002 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do hereby deputize the Sheriff of Dauphin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. r~~<:~ Sheriff ofCumherland County. PA Affidavit of Service Now, ,20 , at 0' clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sheriff of County. PA Sworn and subscribed before me this day of , 20_ COSTS SERVlCE MILEAGE AFFIDAVlT $ $ R. THOM^,S KLINE SheriH 'i." ot Q[.UInbe ., '{\ .r;. l'r \:l '-"- (G'"4: tSY ",. .:=. .'!;> 0 ~. :.... ___-"';:0..." .;...;: , :~. =~~~1.~~'~'~';%,. ", 'J_~' ",';: -' ..... ". -,- .. .:. ~" -~. .~'- RONNY R. ^,NDE~S( Chiel Depury '~I \ EDWARD L. SCHORPP Solicitor OFFICE OF THE SHERIFF ?AT~ICIA ^'. SHATT Real Estate Deputy "'I :T<l ~ One Courthouse Square Carlisle, Pennsylvania 17013 To: Postmaster ~7~ Agency Control No. Date: ~"'/<?""d~ Address Information Request Please Furnish this agency with the new address, if available, for the following individual or verify whether the: address given below is one at which mail for this individual is currently being delivered. If the following address is a post office box. please furnish the street address as recorded on the bo><holder's application fonn. . c(/,'~ L/ ..... "., c./(!' f.i</C- . Name: A./4, /f. ~ Last Known Address: M C~ /Gn::/ ~ ~(.,.~/'Z..-'- I certify the address information for this individual is required for the perforrnance of this agency's official duties. .. }?Z?4/ (Signature of Agency Official) ~V/7 5/7t:u /5C (Title) ~!!i~ '11:1: FOR POST OFF1CE USE ONLY () MAIL IS DELIVERED TO ADDRESS GIVEN ( ) NOT KNOWN AT ADDRESS GfVEN ()MOVED, LEHNO FORWARDrNG ADDRESS () NO SUCH ADDRESS ( ) OTHER (SPECIFY): NEW ADDRESS ~g5"l N dI-JOS+-' ~li JlQ.tS h. ~ "4 1111 i) BOXHOLDER'S STREET ADDRESS Agency Return Address PostmarkIDate Stamp Address Infor-mation Request (Require:d Format) Exhibit 352.44b ',\