Case 3:16-cv-00438-PK Document 522 Filed 09/05/17 Page 1 of 6 Troy Greenfield, OSB #892534 Email: tgreenfield@schwabe.com Joel A. Parker, OSB #001633 Email: jparker@schwabe.com Jeffrey S. Eden, OSB #851903 Email: jeden@schwabe.com Alex 1. Poust, OSB #925155 Email: apoust@schwabe.com Andrew J. Lee, OSB #023646 Email: ajlee@schwabe.com Lawrence R. Ream (Admitted Pro Hac Vice) Email: lream@schwabe.com Schwabe, Williamson & Wyatt, P.C. Pacwest Center 1211 SW 5th Ave., Suite 1900 Portland, OR 97204 Telephone: 503.222.9981 Facsimile: 503.796.2900 Ivan B. Knauer (Admitted Pro Hac Vice) Email: knaueri@pepperlaw.com Brian M. Nichilo (Admitted Pro Hac Vice) Email: nichilob@pepperlaw.com Pepper Hamilton, LLP 600 14th Street, NW, Suite 500 Washington, DC 20005 Telephone: 202.220.1219 Facsimile: 202.220.1665 Attorneys for the Receiver for Defendants AEQUITAS MANAGEMENT, EEC; AEQUITAS HOLDINGS, EEC; AEQUITAS COMMERCIAL FINANCE, EEC; AEQUITAS CAPITAL MANAGEMENT, INC.; AEQUITAS INVESTMENT MANAGEMENT, EEC IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION SECURITIES AND EXCHANGE COMMISSION, V. Plaintiff, AEQUITAS MANAGEMENT, LLC; AEQUITAS HOLDINGS, LLC; AEQUITAS COMMERCIAL FINANCE, LLC; AEQUITAS No. 3:16-cv-00438-PK DECLARATION OF BRAD FOSTER IN SUPPORT OF RECEIVER S MOTION (1) FOR APPROVAL OF PROPOSED SETTLEMENT OF DELL FINANCIAL SERVICES, L.L.C. S ASSERTED LIEN; and (2) TO LIQUIDATE CERTAIN Page I - DECLARATION OF BRAD FOSTER IN SUPPORT OF RECEIVER S MOTION RE: THE DELL SETTLEMENT AND CERTAIN COMPUTER EQUIPMENT AND COMMERCIALLY AVAILABLE SOFTWARE PDX\129912\2I5141\AJL\21326466.1
Case 3:16-cv-00438-PK Document 522 Filed 09/05/17 Page 2 of 6 CAPITAL MANAGEMENT, INC.; AEQUITAS INVESTMENT MANAGEMENT, EEC; ROBERT J. JESENIK, BRIAN A. OLIVER; and N. SCOTT GILLIS, Defendants. COMPUTER EQUIPMENT AND COMMERCIALLY AVAILABLE SOFTWARE I, Brad Foster, declare as follows: 1. I am employed by FTI Consulting, Inc. ( FTI ) as Managing Director, Corporate Finance. FTI was retained by Ronald Greenspan, the duly appointed receiver ( Receiver ) for the Receivership Entity.* On August 30, 2016, the Court authorized Larissa Gotguelf and me to act on behalf of the Receiver with respect to the powers and duties of the Receiver provided in the Final Receivership Order, provided such actions were undertaken with the prior written consent of the Receiver ( Gotguelf/Foster Authorization Order ) [Dkt. 245]. 2. Pursuant to that authorization and the Receiver s written consent, I have undertaken the actions, formulated the opinions, and exercised the judgment described in this declaration. As used hereafter in this declaration, the term Receiver includes myself, acting pursuant to that authority, as well as the Receiver s attorneys. The statements I make in this declaration are based on my personal knowledge or information conveyed to me by those acting within the scope of their duties to the Receiver. 3. The Receiver has, among other tasks, endeavored to determine the nature, location, and value of all Receivership Property and directed others in such tasks. 4. As part of these efforts, the Receiver has determined that Receivership Property includes computer equipment and software over which Dell Financial Services, L.L.C. ( DFS ) asserts liens. 5. Aequitas Commercial Finance, EEC ( ACF ) and DFS entered into a transaction. No. 6626692 (the Master Agreement ), which became effective on August 3, 2012, for the ' Capitalized terms not otherwise defined in this declaration shall have the meanings ascribed to them in the Order Appointing Receiver entered on April 14, 2016 [Dkt. #156] (the Final Receivership Order ). Page 2 - DECLARATION OF BRAD FOSTER IN SUPPORT OF RECEIVER S MOTION RE: THE DELL SETTLEMENT AND CERTAIN COMPUTER EQUIPMENT AND COMMERCIALLY AVAILABLE SOFTWARE PDX\ 129912\215141 \AJL\21326466.1
Case 3:16-cv-00438-PK Document 522 Filed 09/05/17 Page 3 of 6 purpose of enabling further secured financial transactions. A true and correct copy of the Master Agreement is attached hereto as Exhibit A. 6. Pursuant to the Master Agreement, ACF and DFS later entered into the following transactions, which I reference further in this declaration: a. Transaction 001-6626692-501 ( Agreement 501 ); b. Transaction 001-6626692-502 ( Agreement 502 ); c. Transaction 001-6626692-503 ( Agreement 503 ); d. Transaction 001-6626692-506 (the Subject Agreement ); e. Transaction 001-6626692-509 ( Agreement 509 ); f Transaction 001-6626692-516 ( Agreement 516 ); and g. Transaction 001-6626692-517 ( Agreement 517 ). 7. 8. A true and correct copy of the Subject Agreement is attached hereto as Exhibit B. In communications with DFS, DFS has asserted a lien pursuant to the Master Agreement and Subject Agreement over certain items set forth in the Subject Agreement ( Asserted Lien ). 9. The Receiver and its professionals have expended reasonable (but significant) time, effort, and funds to investigate DFS s Asserted Lien. The Receiver denies the enforceability of the Asserted Lien because, among other issues: (a) assets listed in the Subject Agreement were not owned by ACF but were instead owned by other entities that are now deemed part of the Receivership Entity; (b) some items listed in the Subject Agreement are not objectively identifiable; (c) some items listed in the Subject Agreement are not within the Receiver s possession, custody, or control; (d) the Subject Agreement in some instances referenced invoices or items to which no security interest could attach; and (e) some items listed in the Subject Agreement were tenant improvements abandoned to the landlord. The Receiver acknowledges that the Receivership Entity is currently using assets listed in the Subject Agreement that have associated dollar amounts totaling $70,069.16, and also acknowledges that Page 3 DECLARATION OF BRAD FOSTER IN SUPPORT OF RECEIVER S MOTION RE: THE DELL SETTLEMENT AND CERTAIN COMPUTER EQUIPMENT AND COMMERCIALLY AVAILABLE SOFTWARE PDX\129912\215141\AJL\21326466,1
Case 3:16-cv-00438-PK Document 522 Filed 09/05/17 Page 4 of 6 the Receivership Entity has possession of certain other assets listed in the Subject Agreement that have associated dollar amounts totaling $135,861.43. The listed values do not account for depreciation. 10. Although the Receiver believes that there may be valid defenses to the Asserted Lien, the Receiver has determined that it is in the best interests of the Receivership Estate and all of its stakeholders to resolve this claimed lien for a reasonable sum while allowing DFS to assert any claim in excess of the settlement amount in the claims procedure. 11. In part because computer equipment depreciates more quickly than some other types of assets, the Receiver concluded that it is in the Receivership Entity s best interests to resolve the Asserted Lien without awaiting the claims process. 12. In good faith, the Receiver negotiated a possible resolution of the Asserted Lien with DFS. The Receiver is seeking approval of that proposed resolution, a true and correct copy of which is attached hereto as Exhibit C (the Agreement to Release Lien ). 13. In the exercise of the Receiver s discretion and business judgment, the Receiver believes that the Agreement to Release Lien, which compromises a disputed lien over assets in use by the Receivership Entity as well as further assets in the Receiver s possession, is in the best interests of the Receivership Entity and stakeholders. 14. The Receiver has inventoried the computer equipment and commercially available software within the Receiver s possession, custody, and control. Pursuant to the Receiver s discretion and business judgment, the Receiver has concluded that: (a) (b) Some of the computer equipment and commercially available software has resale value. Some of the computer equipment and commercially available software is no longer in use by the Receivership Entity and is not likely to be put to future use. Page 4 - DECLARATION OF BRAD FOSTER IN SUPPORT OF RECEIVER S MOTION RE: THE DELL SETTLEMENT AND CERTAIN COMPUTER EQUIPMENT AND COMMERCIALLY AVAILABLE SOFTWARE PDX\129912\215I41\AJL\21326466,I
Case 3:16-cv-00438-PK Document 522 Filed 09/05/17 Page 5 of 6 (c) Computer equipment and commercially available software are depreciating assets. 15. The Receiver believes, in the exercise of the Receiver s discretion and business judgment, the Agreement to Release Lien represents a fair compromise that is in the best interests of the Receivership Entity s investors and creditors for at least three reasons: (a) DFS has indicated that it will litigate to enforce its Asserted Lien, which includes assets that are currently in use by the Receivership Entity. (b) Litigation creates inherent uncertainties and, as such, litigating these matters exposes Receivership Property to expenses and burdens while providing uncertain results. (c) Awaiting the claims process to litigate DFS s Asserted Lien hinders the Receiver s ability to monetize the assets of the Receivership Entity. The Receiver s primary focus to date has been the stabilization of the Receivership Entity to preserve value and facilitate asset monetization. Monetizing the Receivership Entity s computer equipment and commercially available software is more practical and economical after any asserted liens have been resolved. Moreover, such assets are depreciating, making it prudent to monetize such assets without further delay. 16. If the Agreement to Release Lien is approved, performance of that agreement will result in the Receiver having possession of computer equipment and commercially available software: (a) that is not in use hy the Receivership Entity and which use is not anticipated in the future; (b) that, following reasonable investigation, appears to be held free and clear of any known or asserted lien; and (c) for individual assets, the value, if any, is depreciating. Thereafter, the Receiver believes that, in the exercise of its business judgment and discretion, it is in the best interests of the Receivership Entity and its stakeholders to liquidate such assets. Page 5 - DECLARATION OF BRAD FOSTER IN SUPPORT OF RECEIVER S MOTION RE: THE DELL SETTLEMENT AND CERTAIN COMPUTER EQUIPMENT AND COMMERCIALLY AVAILABLE SOFTWARE PDX\129912\215141\AJL\21326466.1
Case 3:16-cv-00438-PK Document 522 Filed 09/05/17 Page 6 of 6 {mciudin ) cornmerc 1 wnich anv /\ DFS). die gj n'lhis C'ourl or aerccmon! with a party asserting 'ui'ilier order ( ei\'cr \vi! aliv available software within die not set! or oinero >vceci ver lien dispose of computer equipment or 1 s jtosschsion. cusiouy. or ccmtrol over Aureemcni 502. lien is known to be asscrlco, m.diidiiie, DOS's asserlcd hens under Aureement 5()e. Agree ment 509. AgrcenierU 5It), or Agrecmciil 51 /. h [( rs' Dated dns.1 r. V of August..A., J ids ' OSlCi\ h'fanauine Director, (.,'orporate lonance i C ornsuliing, Inc. On neir I I oi die ikcccivcr. Donald Is (jreenspan I OXa.:C 0 ' AVA SSAAAMiW.t 1)1:0 AP.A't'iON or IK Ai) tu ISTbR IN StSldS'lRT OI' RdCdd Vidk'S MO 1 ION KJ a 'll Ur t)l.d,,l AD OOMMdROAfdA' SDlTtJ ii N AN!) OR raain Or M! PR koijlpmrn'!'" LABIA. SOLA WAR!.W.AWOi I
Case 3:16-cv-00438-PK Document 522-1 Filed 09/05/17 Page 1 of 4 MASTER LEASE AGREEMENT NO. EFFECTIVE DATE: August 03, 2012 LESSOR: DELL FINANCIAL SERVICES L.L.C. LESSEE:AEQUITAS COMMERCIAL FINANCE, LLC Payment Address: Mailing Address: Principal Address: PO Box 99355 12234 N. IH-35, Bldg. B 5300 MEADOWS RD STE 400 Chicago, Illinois 60693 Austin, TX 78753 LAKE OSWEGO, OR 97035 Fax: Attention: This Master Lease Agreement ("Agreement"), effective as of the Effective Date set forth above, is between the Lessor and Lessee named above. Capitalized terms have the meaning set forth in this Agreement. 1. LEASE. Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the equipment ( Products ), software, services or fees described in any lease schedule ( Schedule ). Each Schedule shall incorporate by reference the terms and conditions of this Agreement and contain such other terms as are agreed by Lessee and Lessor. Each Schedule signed or otherwise authenticated by Lessee and Lessor shall constitute a separate lease of Products ("Lease"). In the event of any conflict between the terms of a Schedule and the terms of this Agreement, the terms of the Schedule shall prevail. Lessor reserves all rights to the Products not specifically granted to Lessee in this Agreement or in a Schedule. Execution of this Agreement does not create an obligation of either party to lease to or from the other. 2. ACCEPTANCE DATE; SCHEDULE. (a) Subject to any right of return provided by the Product seller ( Seller ), named on the Schedule, Products are deemed to have been irrevocably accepted by Lessee upon delivery to Lessee s ship to location ( Acceptance Date ). Lessee shall be solely responsible for unpacking, inspecting and installing the Products. (b) Lessor shall deliver to Lessee a Schedule for Products. Lessee agrees to sign or otherwise authenticate and return each Schedule by the later of the Acceptance Date or 5 days after Lessee receives a Schedule from Lessor. If the Schedule is not signed or otherwise authenticated by Lessee and returned to Lessor within the time provided in the prior sentence, then upon written notice from Lessor and Lessee s failure to cure within 5 days of such notice, Lessor may require the Lessee to purchase the Products by paying the Product cost charged by the Seller, plus any shipping charges, Taxes and Duties (defined below) and interest at the Overdue Rate (defined below) accruing from the date the Products are shipped through the date of payment. If Lessee returns any leased Products in accordance with the Seller s return policy, it will notify Lessor. When Lessor receives a credit from Seller for the returned Product, the Schedule will be deemed amended to reflect the return of the Product and Lessor will adjust its billing records and Lessee s invoice for the applicable Lease. In addition, Lessee and Lessor agree that a signed Schedule may be amended by written notice from Lessor to Lessee provided such notice is (i) to correct the serial (or service tag) number of Products or (ii) to adjust the related Rent (defined below) on the Schedule (any increase up to 15% or any decrease) caused by any change made by Lessee in Lessee s order with the Seller, or any change in the Product cost charged by the Seller. 3. TERM. The initial term ( Primary Term ) for each Lease shall begin on the date set forth on the Schedule as the Commencement Date ( Commencement Date ) and continue for the number of months set forth in the Schedule. The period beginning on the Acceptance Date and ending on the last day of the Primary Term, together with any renewals or extensions thereof, is defined as the Lease Term. The Lease is non-cancelable by Lessee. 4. RENT; TAXES; PAYMENT OBLIGATION. (a) The rental payment amount ("Rent") and the payment period for each installment of Rent ( Payment Period ) shall be stated in the Schedule. A prorated portion of Rent, calculated on a 30-day month, 90-day quarter or 360- day year as appropriate, for the period from the Acceptance Date to the Commencement Date shall be added to the first payment of Rent. All Rent and other amounts due and payable under this Agreement or any Schedule shall be paid to Lessor in lawful funds of the United States of America at the payment address set forth above or at such other address as Lessor may designate from time to time in writing. Whenever Rent and other amounts payable under a Lease are not paid when due, Lessee shall pay interest on such amounts at a rate equal to the lesser of 1-1/2% per month or the highest rate permitted by applicable law ( Overdue Rate ). Rent shall be due and payable whether or not Lessee has received an invoice showing that such Rent is due. (b) Each Lease shall be a net lease. In addition to Rent, Lessee shall pay sales, use, property, added value or other taxes, fees, levies or assessments (collectively, Taxes ), and customs, duties or surcharges on imports or exports (collectively, "Duties") plus all expenses incurred in connection with Lessor s purchase of the Products, including but not limited to shipment, delivery, installation, and insurance. Unless Lessee provides Lessor with a tax exemption certificate acceptable to the relevant taxing authority prior to Lessor s payment of such Taxes, Lessee shall pay Lessor all Taxes upon demand by Lessor. Unless otherwise set forth in the Schedule and where applicable, Lessee agrees to pay a periodic personal property tax fee ( PPT Fee ) calculated by Lessor as a prorated portion of the annual estimated property tax assessed by the applicable taxing authority on the Products during the Lease Term. The PPT Fee shall be payable with each installment of Rent. (c) LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER AMOUNTS WHEN DUE AND TO OTHERWISE PERFORM AS REQUIRED UNDER THIS AGREEMENT AND EACH SCHEDULE SHALL BE ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM, INTERRUPTION, DEFERMENT OR RECOUPMENT FOR ANY REASON WHATSOEVER WHETHER ARISING OUT OF ANY CLAIMS BY LESSEE AGAINST LESSOR, SELLER, OR THE SUPPLIER OR MANUFACTURER OF THE PRODUCTS, TOTAL OR PARTIAL LOSS OF THE PRODUCTS OR THEIR USE OR POSSESSION, OR OTHERWISE. If any Product is unsatisfactory for any reason, Lessee shall make its claim solely against the Seller of such Product (or the Licensor in the case of Software, each as defined below) and shall, nevertheless, pay Lessor or its assignee all amounts due and payable under the Lease. 5. LICENSED MATERIALS. Software means any operating system software or computer programs included with the Products (collectively, Software ). Licensed Materials are any manuals and documents, end user license agreements, evidence of licenses, including, without limitation, any certificate of authenticity and other media provided in connection with such Software, all as delivered with or affixed as a label to the Products. Lessee agrees that this Agreement and any Lease (including the sale of any Product pursuant to any purchase option) does not grant any title or interest in Software or Licensed Materials. Any use of the terms "sell," "purchase," "license," "lease," and the like in this Agreement or any Schedule with respect to Software shall be interpreted in accordance with this Section 5. 6. USE; LOCATION; INSPECTION. Page 1 of 4 v08252008 EXHIBIT A Page 1 of 4
Case 3:16-cv-00438-PK Document 522-1 Filed 09/05/17 Page 2 of 4 Lessee shall: (a) comply with all terms and conditions of any Licensed Materials; and (b) possess and operate the Products only (i) in accordance with the Seller s supply contract and any service provider s maintenance and operating manuals, the documentation and applicable laws; and (ii) for the business purposes of Lessee. Lessee agrees not to move Products from the location specified in the Schedule without providing Lessor with at least 30 days prior written notice, and then only to a location within the United States and at Lessee s expense. Without notice to Lessor, Lessee may temporarily use laptop computers at other locations, including outside of the United States, provided Lessee complies with the United States Export Control Administration Act of 1979 and the Export Administration Act of 1985, as those Acts are amended from time to time (or any successor or similar legislation). Provided Lessor complies with Lessee s reasonable security requirements, Lessee shall allow Lessor to inspect the premises where the Products are located from time to time during reasonable hours after reasonable notice in order to confirm Lessee s compliance with its obligations under this Agreement. 7. RETURN. At the expiration or earlier termination of the Lease Term of any Schedule, and except for Products purchased pursuant to any purchase option under the Lease, Lessee will (a) remove all proprietary data from the Products and (b) return them to Lessor at a place within the contiguous United States designated by Lessor. Upon return of the Products, Lessee s right to the operating system Software in returned Products will terminate and Lessee will return the Products with the original certificate of authenticity (attached and unaltered) for the original operating system Software. Lessee agrees to deinstall and package the Products for return in a manner which will protect them from damage. Lessee shall pay all costs associated with the packing and return of the Products and shall promptly reimburse Lessor for all costs and expenses for missing or damaged Products or operating system Software. If Lessee fails to return all of the Products at the expiration of any applicable Lease Term, the Lease Term with respect to the Products that are not returned shall continue to be renewed as described in the Schedule. 8. RISK OF LOSS; MAINTENANCE; INSURANCE. (a) From the date the Products are delivered to Lessee s ship to location until the Products are returned to Lessor s designated return location or purchased by Lessee, Lessee agrees: (i) to assume the risk of loss or damage to the Products; (ii) to maintain the Products in good operating condition and appearance, ordinary wear and tear excepted; (iii) to comply with all requirements necessary to enforce all warranty rights; and (iv) to promptly repair any repairable damage to the Products. For the Lease Term, Lessee shall ensure that the Products are (i) covered by a manufacturer approved maintenance agreement, or (ii) with Lessor s prior consent, self maintained in accordance with the standards set forth herein. At all times, Lessee shall provide the following insurance: (i) casualty loss insurance for the Products for no less than the Stipulated Loss Value (defined below) naming Lessor as loss payee; and (ii) liability insurance with respect to the Products in an amount as required by Lessor, naming Lessor as an additional insured. Upon Lessor s prior written consent, Lessee may provide this insurance pursuant to Lessee s existing self insurance policy. Lessee shall either provide Lessor with an annual certificate of third party insurance or a written description of its self insurance policy, as applicable. The certificate of insurance will provide that Lessor shall receive at least ten (10) days prior written notice of any material change to or cancellation of the insurance policy. Lessee may make other alterations, additions or improvements to Products provided that any alteration, addition or improvement shall be readily removable and shall not materially impair the value or utility of the Product. Upon the return of any Product to Lessor, any alteration, addition or improvement that is not removed by Lessee shall become the property of Lessor, free and clear of all liens and encumbrances. 10. REPRESENTATIONS AND WARRANTIES OF LESSEE. (a) Lessee represents, warrants and covenants to Lessor at the time Lessee enters into this Agreement and each Schedule that: (i) Lessee is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and in all jurisdictions with respect to which its ownership or its conduct of business or leasing of property requires such qualification; (ii) The execution and delivery of and performance under this Agreement, any Schedules, Certificates of Incumbency or other documents related to a Lease ( Documents ) to which Lessee is a party have been authorized by all necessary action, and have been executed and delivered on Lessee's behalf by persons duly authorized in that regard. The Documents constitute legal, valid and binding agreements of Lessee, enforceable against Lessee in accordance with their respective terms except as limited by bankruptcy or other similar laws; (iii) The execution and delivery of or performance under the Documents do not contravene Lessee s charter or bylaws or any law, regulation, order, writ, decree, judgment, or other form of prohibition of which Lessee is aware is binding on it or its assets; and does not and will not contravene the provisions of, or constitute a default under, or result in the creation of a lien upon the Products under any material indenture, mortgage, contract, or other instrument to which it is a party or by which it or its assets are bound; (iv) To the best of Lessee s knowledge, there is no action, suit or proceeding pending or, to the knowledge of Lessee, threatened in any court or tribunal or before any competent authority against Lessee or any of its property or assets which challenges the Documents or any of the transactions contemplated hereunder or which may have a material adverse effect on the financial condition or business of Lessee; and (v) The financial statements and other information furnished and to be furnished to Lessor by Lessee are and shall be true and correct in all material respects, and since the date that such financial statements or information were prepared, there has not been any material adverse change in Lessee s business or condition, financial or otherwise. (b) If any person guarantees payment or performance by Lessee of any liabilities or obligations of Lessee under this Agreement or any Schedule (a "Guarantor"), the preceding representations, warranties and covenants shall be deemed to be made by Lessee on behalf of such Guarantor as if such Guarantor were named in addition to Lessee therein. 11. WARRANTY ASSIGNMENT; EXCLUSION OF WARRANTIES; LIMITATION OF LIABILITY; FINANCE LEASE. (a) Provided no Event of Default has occurred and is continuing, Lessor assigns to Lessee for the Lease Term the benefit of any Product warranty and any right of return provided by any Seller. (b) If the Products are lost, stolen, destroyed, damaged beyond repair or in the event of any condemnation, confiscation, seizure or expropriation of any Products ( Casualty Products ), Lessee shall promptly (i) notify Lessor of the same, and (ii) pay to Lessor the Stipulated Loss Value for the Casualty Products. The Stipulated Loss Value of any Product is an amount equal to the sum of (a) all Rent and other amounts then due and owing (including interest at the Overdue Rate from the due date until payment is received) under the Lease, plus (b) the present value of all future Rent to become due under the Lease during the remainder of the Lease Term, plus (c) the present value of the estimated in place Fair Market Value of the Product at the end of the Primary Term as determined by Lessor. Each of (b) and (c) shall be calculated using the discount rate of the Federal Reserve Bank of Chicago on the Commencement Date of the applicable Schedule. 9. ALTERATIONS. Lessee shall, at its expense, make such alterations to Products during the Lease Term as are legally required or provided at no charge by Seller. (b) LESSEE ACKNOWLEDGES THAT LESSOR DID NOT SELECT, MANUFACTURE, SUPPLY OR LICENSE ANY PRODUCT AND THAT LESSEE HAS MADE THE SELECTION OF PRODUCTS BASED UPON ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE ON STATEMENTS MADE BY LESSOR OR ITS AGENTS. LESSOR LEASES THE PRODUCTS AS-IS AND MAKES NO WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. LESSEE HEREBY WAIVES ANY CLAIM IT MIGHT HAVE AGAINST LESSOR OR ITS ASSIGNEE FOR ANY LOSS, DAMAGE OR EXPENSE CAUSED BY OR WITH RESPECT TO ANY PRODUCTS. (c) IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY SCHEDULE OR THE SALE, LEASE OR USE OF ANY PRODUCTS, EVEN IF LESSOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES Page 2 of 4 v08252008 EXHIBIT A Page 2 of 4
Case 3:16-cv-00438-PK Document 522-1 Filed 09/05/17 Page 3 of 4 AND EVEN IF LESSEE ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. (d) Lessee agrees that it is the intent of both parties that each Lease qualify as a statutory finance lease under Article 2A of the Uniform Commercial Code ( UCC ). Lessee acknowledges either (i) that Lessee has reviewed and approved any written supply contract covering the Products purchased from the Seller for lease to Lessee or (ii) that Lessor has informed or advised Lessee, in writing, either previously or by this Agreement, that Lessee may have rights under the supply contract evidencing the purchase of the Products and that Lessee should contact the Seller for a description of any such rights. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A of the UCC. 12. EVENTS OF DEFAULT. It shall be an event of default hereunder and under any Schedule ("Event of Default") if: (a) Lessee fails to pay any Rent or other amounts payable under this Agreement or any Schedule within 15 days after the date that such payment is due; (b) Any representation or warranty made by Lessee or any Guarantor to Lessor in connection with this Agreement, any Schedule or any other Document is at the time made materially untrue or incorrect; (c) Lessee fails to comply with any other obligation or provision of this Agreement or any Schedule and such failure shall have continued for 30 days after notice from Lessor; (d) Lessee (i) is generally not paying its debts as they become due or (ii) takes action for the purpose of invoking the protection of any bankruptcy or insolvency law, or any such law is invoked against or with respect to Lessee or its property and such petition is not dismissed within 60 days; or (e) Lessee or any Guarantor is in default under any other lease, contract, or obligation now existing or hereafter entered into with Lessor or Seller or any assignee of Lessor. 13. REMEDIES. shall have no further obligations with respect to such Lease. All rights of Lessor are cumulative and not alternative and may be exercised by Lessor separately or together. 14. QUIET ENJOYMENT. Lessor shall not interfere with Lessee's right to possession and quiet enjoyment of Products during the relevant Lease Term, provided no Event of Default has occurred and is continuing. Lessor represents and warrants that as of the Commencement Date of the applicable Schedule, Lessor has the right to lease the Products to Lessee. 15. INDEMNIFICATION. Lessee shall indemnify, defend and hold Lessor, its assignees, and their respective officers, directors, employees, representatives and agents harmless from and against all claims, liabilities, costs or expenses, including legal fees and expenses (collectively, "Claims"), arising from or incurred in connection with this Agreement, any Schedule, or the selection, manufacture, possession, ownership, use, condition, or return of any Products, including Claims for personal injury, death or damage to property and, to the extent Lessee is responsible, Claims related to the subsequent use or Disposition of the Products or any data in or alteration of the Products. This indemnity shall not extend to any Claim caused solely by the gross negligence or willful misconduct of Lessor. Lessee shall be responsible for the defense and resolution of such Claim at its expense and shall pay any amount for resolution and all costs and damages awarded against or incurred by Lessor or any other person indemnified hereunder; provided, however, that any person indemnified hereunder shall have the right to participate in the defense of such Claim with counsel of its choice and at its expense and to reasonably approve any such settlement. Lessee shall keep Lessor informed at all times as to the status of the Claim. 16. OWNERSHIP; LIENS AND ENCUMBRANCES; LABELS. As between Lessor and Lessee, title to Products (other than any Licensed Materials) is and shall remain with Lessor. Products are considered personal property and Lessee shall, at Lessee's expense, keep Products free and clear of liens and encumbrances of any kind (except those arising through the acts of Lessor) and shall immediately notify Lessor if Lessor s interest is subject to compromise. Lessee shall not remove, cover, or alter plates, labels, or other markings placed upon Products by Lessor, Seller or any other supplier. 17. NON PERFORMANCE BY LESSEE. (a) Upon an Event of Default under any Schedule, all of Lessee s rights (including its rights to the Products), but not its obligations thereunder, shall automatically be cancelled without notice and Lessor may exercise one or more of the following remedies in its sole discretion: (i) require Lessee to return any or all Products as provided in Section 7 and/or if requested by Lessor, assemble the Products in a single location designated by Lessor granting Lessor the right to enter the premises where such Products are located for the purpose of repossession; (ii) sell, lease or otherwise dispose of any or all Products (as agent and attorney-in-fact for Lessee to the extent necessary) upon such terms and in such manner (at public or private sale) as Lessor deems advisable in its sole discretion (a "Disposition"); (iii) declare immediately due and payable as a pre-estimate of liquidated damages for loss of bargain and not as a penalty, the Stipulated Loss Value of the Products in lieu of any further Rent, in which event Lessee shall pay such amount to Lessor within 10 days after the date of Lessor s demand; or (iv) proceed by appropriate court action either at law or in equity (including an action for specific performance) to enforce performance by Lessee or recover damages associated with such Event of Default or exercise any other remedy available to Lessor in law or in equity. (b) Lessee shall pay all costs incurred by Lessor in connection with an Event of Default, including reasonable legal fees and expenses, and all costs related to the repossession, transportation, re-furbishing, storage and Disposition of any or all Products ( Default Expenses ). In the event Lessor recovers proceeds from its Disposition of the Products, Lessor shall credit such proceeds (net of Default Expenses) against the owed Stipulated Loss Value. Lessee shall remain liable to Lessor for any deficiency. With respect to this Section, to the extent the proceeds of a Disposition (net of Default Expenses) exceed the Stipulated Loss Value owed under the Lease, or if Lessee has paid Lessor the Stipulated Loss Value, the Default Expenses and all other amounts owing under the Lease, Lessee shall be entitled to such excess and If Lessee fails to perform any of its obligations hereunder or under any Schedule, Lessor shall have the right but not the obligation to effect such performance and Lessee shall promptly reimburse Lessor for all out of pocket and other reasonable expenses incurred in connection with such performance, with interest at the Overdue Rate. 18. NOTICES. All notices shall be given in writing and, except for billings and communications in the ordinary course of business, shall be delivered by overnight courier service, delivered personally or sent by certified mail, return receipt requested and shall be effective from the date of receipt unless mailed, in which case the effective date will be 4 Business Days after the date of mailing. Notices to Lessor by Lessee shall be sent to: Dell Financial Services L.L.C., Legal Department, One Dell Way, Round Rock, TX 78682, or such other mailing address designated in writing by Lessor. Notice to Lessee shall be to the address on the first page of this Agreement or such other mailing address designated in writing by Lessee. 19. ASSIGNMENT. (a) LESSEE MAY ASSIGN THIS AGREEMENT OR ANY SCHEDULE, OR SUBLEASE ANY PRODUCT(S) WITH THE PRIOR WRITTEN CONSENT OF LESSOR (SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD). LESSOR, AT ITS SOLE DISCRETION, MAY ASSESS AN ADMINISTRATIVE FEE FOR ANY APPROVED ASSIGNMENT OR SUBLEASE. No assignment or sublease shall in any way discharge Lessee s obligations to Lessor under this Agreement or any Schedule. (b) Lessor may at any time and without notice, but subject to the rights of Lessee, transfer, assign, or grant a security interest in any Product, this Agreement, any Schedule, or any rights and obligations hereunder or thereunder, in whole or in part. Page 3 of 4 v08252008 EXHIBIT A Page 3 of 4
Case 3:16-cv-00438-PK Document 522-1 Filed 09/05/17 Page 4 of 4 (c) Subject to the foregoing, this Agreement and each Schedule shall be binding upon and inure to the benefit of Lessor, Lessee and their successors and assigns. 20. GOVERNING LAW; JURISDICTION AND VENUE; WAIVER OF JURY TRIAL. THIS AGREEMENT AND EACH SCHEDULE SHALL BE GOVERNED BY ILLINOIS LAW WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND, TO THE EXTENT APPLICABLE, THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. LESSEE CONSENTS TO THE JURISDICTION OF ANY FEDERAL COURT LOCATED IN COOK COUNTY, ILLINOIS, AND WAIVES ANY OBJECTION TO VENUE, AND FURTHER WAIVES ANY RIGHT TO A TRIAL BY JURY. 21. MISCELLANEOUS. (a) The headings used in this Agreement are for convenience only and shall have no legal effect. This Agreement shall be interpreted without any strict construction in favor of or against either party. (b) The provisions of Sections 5, 10, 11(b), 11(c), 11(d), 15, 20 and 21 shall continue in full force and effect even after the term or expiration of this Agreement or any Schedule. (c) Failure of Lessor at any time to require Lessee's performance of any obligation shall not affect the right to require performance of that obligation. No term, condition or provision of this Agreement or any Schedule shall be waived or deemed to have been waived by Lessor unless it is in writing and signed by a duly authorized representative of Lessor. A valid waiver is limited to the specific situation for which it was given. (d) Lessee shall furnish such financial statements of Lessee and any Guarantor (prepared in accordance with generally accepted accounting principles) and other financial information, Certificates of Incumbency or other documents related to a Lease as Lessor may from time to time reasonably request. (e) If any provision(s) of this Agreement is deemed invalid or unenforceable to any extent (other than provisions going to the essence of this Agreement) the same shall not in any respect affect the validity, legality or enforceability (to the fullest extent permitted by law) of the remainder of this Agreement, and the parties shall use their best efforts to replace such illegal, invalid or unenforceable provisions with an enforceable provision approximating, to the extent possible, the original intent of the parties. (f) Unless otherwise provided, all obligations hereunder shall be performed or observed at the respective party s expense. (g) Lessee shall take any action reasonably requested by Lessor for the purpose of fully effectuating the intent and purposes of this Agreement or any Schedule. The parties intend for each Lease to constitute a true lease under the UCC and all applicable laws; however, if any Lease is determined to be other than a true lease, Lessee hereby grants to Lessor a first priority security interest in the Products and all proceeds thereof. Lessee acknowledges that by signing this Agreement, Lessee has authorized Lessor to file any financing statements or related filings as Lessor may reasonably deem necessary or appropriate. Lessor may file a copy of this Agreement or any Schedule in lieu of a financing statement. (h) This Agreement and any Schedule may be signed in any number of counterparts each of which when so executed or otherwise authenticated and delivered shall be an original but all counterparts shall together constitute one and the same instrument. To the extent each Schedule would constitute chattel paper as such term is defined in the UCC, no security interest may be created through the transfer or control or possession, as applicable, of a counterpart of a Schedule other than the original in Lessor s possession marked by Lessor as either Original or Counterpart Number 1. order to reduce the unpaid time price balance, any amount deemed interest shall, to the fullest extent permitted by applicable law, be amortized and spread uniformly throughout the Lease Term. (j) This Agreement and the Schedules hereto between Lessor and Lessee set forth the entire agreement between the parties and supersede and merge all prior written or oral communications, understandings, or agreements between the parties relating to the subject matter contained herein. Except as permitted herein, this Agreement and any Schedule may be amended only by a writing duly signed or otherwise authenticated by Lessor and Lessee. (k) If Lessee delivers this signed Master Lease, or any Schedule, amendment or other document related to the Master Lease (each a Document ) to Lessor by facsimile transmission, and Lessor does not receive all of the pages of that Document, Lessee agrees that, except for any pages which require a signature, Lessor may supply the missing pages to the Document from Lessor s database which conforms to the version number at the bottom of the page. If Lessee delivers a signed Document to Lessor as an e-mail attachment, facsimile transmission or by U.S. mail, Lessee acknowledges that Lessor is relying on Lessee s representation that the Document has not been altered. Lessee further agrees that, notwithstanding any rule of evidence to the contrary, in any hearing, trial or proceeding of any kind with respect to a Document, Lessor may produce a tangible copy of the Document transmitted by Lessee to Lessor by facsimile or as an e-mail attachment and such signed copy shall be deemed to be the original of the Document. To the extent (if any) that the Document constitutes chattel paper under the Uniform Commercial Code, the authoritative copy of the Document shall be the copy designated by Lessor or its assignee, from time to time, as the copy available for access and review by Lessee, Lessor or its assignee. All other copies are deemed identified as copies of the authoritative copy. In the event of inadvertent destruction of the authoritative copy, or corruption of the authoritative copy for any reason or as the result of any cause, the authoritative copy may be restored from a backup or archive copy, and the restored copy shall become the authoritative copy. At Lessor s option, this electronic record may be converted into paper form. At such time, such paper copy will be designated or marked as the authoritative copy of the Document. EXECUTED by the undersigned on the dates set forth below, to be effective as of the Effective Date. AEQUITAS COMMERCIAL FINANCE, LLC Lessee BY: NAME: TITLE: DATE: DELL FINANCIAL SERVICES L.L.C. Lessor BY: NAME: TITLE: DATE: Christopher Stevens Manager IT Shared Services 8/03/2012 (i) If any Lease is determined to be a lease intended as security, in no event shall Lessee be obligated to pay any time price balance differential in excess of the maximum amount permitted by applicable law (as specified herein or the state where the Products are located, whichever law permits the greater amount). In the event Lessor shall receive anything of value under a Lease that is deemed interest which would exceed the maximum amount of interest allowed under the law, the excess amount shall be applied to the reduction of the unpaid time price balance or shall be refunded to Lessee. In Page 4 of 4 v08252008 EXHIBIT A Page 4 of 4
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Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 1 of 35 SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS REGARDING ASSERTED LIEN This Settlement Agreement and Release (the Agreement ) is entered into by and between Dell Financial Services, LLC ( DFS ), a Delaware entity (hereinafter referred to as DFS ) and receiver Ronald F. Greenspan (the Receiver ) on behalf of Aequitas Commercial Finance, LLC ( ACF ), an Oregon entity, and the Receivership Entity, as more defined below in Securities and Exchange Commission v. Aequitas Management, LLC; Aequitas Holdings, LLC; Aequitas Commercial Finance, LLC; Aequitas Capital Management, Inc.; Aequitas Investment Management, LLC; Robert J. Jesenik; Brian A Oliver; and N. Scott Gillis, Case No. 3:16-cv- 00438-PK (the Action ), pending in United States District Court, District of Oregon, Portland Division (the Court ). Subject to approval by the Court, this Agreement resolves a dispute between DFS and ACF regarding the Asserted Lien, as defined below. I. RECITALS 1. ACF and DFS entered into a transaction, No. 6626692 (the Master Agreement ), which became effective on August 3, 2012. 2. In conjunction with the Master Agreement, DFS caused a U.C.C. financing statement to be filed with the Secretary of State for the State of Oregon on or about August 8, 2012 (the Financing Statement ), covering computer equipment, peripherals, and other equipment wherever located, financed under and described in the Master Agreement. 3. Pursuant to the Master Agreement, ACF and DFS later entered into the following transactions, which are referenced herein: a. Transaction 001-6626692-501 ( Agreement 501 ); b. Transaction 001-6626692-502 ( Agreement 502 ); c. Transaction 001-6626692-503 ( Agreement 503 ); d. Transaction 001-6626692-506, (the Subject Agreement ); e. Transaction 001-6626692-509 ( Agreement 509 ); f. Transaction 001-6626692-516 ( Agreement 516 ); and g. Transaction 001-6626692-517 ( Agreement 517 ). 4. On March 10, 2016, the U.S. Securities and Exchange Commission (the SEC ) filed an action in the Court, against ACF, certain affiliates of ACF, and certain individuals in the Action. 51557133.1-1- Page 1 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 2 of 35 5. In order to marshal and preserve the assets of named entity defendants in the Action (collectively, the Receivership Defendants ), the Court entered an order (the Receivership Order ) appointing Ronald F. Greenspan as Receiver. As specified in the Receivership Order, the Court appointed the Receiver for the Receivership Entity, which consists of the Receivership Defendants (including ACF) and certain affiliated entities set forth on Exhibit A to the Receivership Order. 6. DFS asserts that, under the terms of the Subject Agreement, it is owed $1,224,865.18. DFS further asserts a lien pursuant to the Master Agreement and Subject Agreement over certain assets set forth in the Subject Agreement ( Asserted Lien ). 7. The Receiver denies the Asserted Lien, but acknowledges that it is currently using assets listed in the Subject Agreement that have associated dollar amounts totaling $ 70,069.16, and acknowledges that the Receivership Entity has possession of certain other assets listed in the Subject Agreement that have associated dollar amounts totaling $135,861.43. DFS disputes the Receiver s assertions, other than the Receiver s acknowledgment that the Receivership Entity is currently using certain assets listed in the Subject Agreement. 8. In order to avoid the costs and risks of further litigation regarding the Asserted Lien, DFS and the Receiver have now agreed to compromise the Asserted Lien for the sum of $100,000 upon the terms and conditions set forth in this Agreement, with the parties to retain further rights as set forth in the Agreement below, including specifically DFS s right to file a claim in the Action as set forth below in paragraph 2(d) (the 506 Termination Claim ). 9. Pursuant to the Receivership Order, the Receiver is authorized to compromise and/or settle this dispute with Court approval. II. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Receiver and DFS hereby stipulate and agree as follows: 1. Recitals Incorporated. The recitals set forth above are incorporated herein by reference. 2. Consideration. a. DFS s will release any asserted security interests that it holds as a result of the Subject Agreement. Attached hereto as Exhibit 1 is a fully executed U.C.C. 3 financing statement amendment ( Financing Statement Amendment ), which form has been approved by the Receiver and DFS. This Agreement does not address or release DFS s asserted security interest in collateral securing Agreements 502, 503, 509, 516, or 517. b. Within three (3) business days after Court approval of this Agreement, the Receiver will pay DFS $100,000 (the Settlement Payment ) on behalf of the 51557133.1-2- Page 2 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 3 of 35 Receivership Entity, which amount will: (i) be consideration for DFS s release of its Asserted Lien; and (ii) reduce the amount of DFS s claim arising from the Subject Agreement against the Receivership Estate by $100,000. c. Upon confirmation that DFS has received Settlement Payment in collected and indefeasible funds, DFS will promptly confirm the foregoing to the Receiver s counsel, after which the Receiver is authorized to cause the Financing Statement Amendment to be filed on DFS s behalf with the Oregon Secretary of State (and any other state wherein DFS filed or does file a financing statement in conjunction with the Master Agreement). d. DFS may file a claim arising from the Subject Agreement in the Action and seek treatment of that claim consistent with the treatment of other unsecured creditors, as such treatment shall be determined by this Court under an approved Receiver s Plan of Distribution. e. DFS agrees that Agreement 501 was paid in full by the Receivership Entity on or about June 23, 2017, and, consequently, the Receivership Entity holds any assets listed on Agreement 501 free and clear of any lien by DFS that formerly arose from Agreement 501. f. DFS agrees the Receivership Entity is current on the following four agreements and their associated schedules (collectively, the Remaining Agreements ) and the Receiver agrees that the Receivership Entity will continue to make payments to DFS under the terms of the Remaining Agreements until such time as each agreement is fully performed or the Court, after notice and hearing, orders otherwise: Agreement 502 Agreement 503 Agreement 509 Agreement 517 The parties Agreement does not modify the Remaining Agreements or otherwise limit any party s rights pursuant to the Remaining Agreements. This Agreement also does not limit any party s rights in the Action in relation to the Remaining Agreements. g. In relation to Agreement 516, the Receiver represents that it has requested CarePayment Technologies, Inc. execute an Assignment and Assumption Data Form provided to the Receiver by DFS and attached hereto as Exhibit 1. The Receiver and DFS agree that, following the execution and submission of that form by the Receiver and CarePayment Technologies, Inc. in relation to Agreement 516 in a manner satisfactory to DFS, DFS will, in the ordinary course, execute an Assignment and Assumption contract as identified in Exhibit 2. Until CarePayment Technologies, Inc. is assigned and assumes Agreement 516 by mutual agreement of the Receiver, CarePayment Technologies, Inc. and DFS, the Receiver and DFS agree that the terms set forth in subparagraph (f) in relation to the Remaining Agreements also apply to Agreement 516. 51557133.1-3- Page 3 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 4 of 35 3. Agreement Subject to Court Approval. This Agreement is subject to approval by the Court by entry of an order of the Court approving this Agreement in form and substance acceptable to the Receiver and DFS. The Receiver represents that he will promptly move for such approval of the Agreement. If this Agreement is not approved by the Court for any reason: this Agreement shall be without effect; all of the rights, remedies, claims, and defenses that the Receiver (on behalf of the Receivership Entity generally and ACF specifically) and DFS have against one another shall be preserved as if this Agreement did not exist; and this Agreement shall not be offered nor admitted into evidence, nor be subject to a court taking judicial notice hereof. 4. Mutual Release. a. The Release. The Receiver (on behalf of the Receivership Entity generally and ACF specifically) and DFS hereby release each other from all claims, demands, causes of action, actions, rights, liabilities, contract obligations, damages, attorneys fees, costs, torts, suits, debts, sums of money, accountings, reckonings, bills, covenants, controversies, agreements, promises, variances, trespasses, extents and executions whatsoever, at law or in equity or otherwise, whether direct or indirect, known or unknown, which the Receiver (on behalf of the Receivership Entity generally and ACF specifically) may have against one another, or have at any time heretofore owned or held, against the persons and entities they are releasing or any of them, in any capacity, based on, arising out of, or relating in any way to the Asserted Lien (collectively the Release ). Notwithstanding the foregoing, the Release does not include and the parties shall retain any and all rights, claims, and defenses in relation to Agreement 502, Agreement 503, Agreement 509, Agreement 516, Agreement 517, and the 506 Termination Claim. b. No Release of the Terms of this Agreement. Notwithstanding the foregoing, the Release shall not extend to any claims that arise out of this Agreement and the required performance of the terms herein by the Receiver (on behalf of the Receivership Entity generally and ACF specifically) and DFS. c. Breadth of Release. The Release extends to and inures to the benefit of the Receiver (on behalf of the Receivership Entity generally and ACF specifically), DFS, and the following Additional Released Parties affiliated with those released hereunder: all of their past and present shareholders, members, owners, managers, membermanagers, officers, directors, agents, employees, representatives, partners, attorneys, accountants, insurers, employee benefit plans, parents, subsidiaries, affiliates, predecessors, successors, transferees, assigns, purchasers and related entities thereof, and all past and present shareholders, officers, directors, agents, employees, marital communities, representatives, partners, attorneys, and accountants of any of those persons and entities. d. Binding Effect of Release. This Release shall bind the Receiver (on behalf of the Receivership Entity generally and ACF specifically) and DFS as well as 51557133.1-4- Page 4 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 5 of 35 their respective officers, directors, receivers, trustees, insurers, marital communities, successors, subrogees, transferees, and assigns to the maximum extent allowable by law. e. Release of Unknown Claims. The Receiver (on behalf of the Receivership Entity generally and ACF specifically) and DFS represent, warrant, and agree that: (i) they understand they are releasing potentially unknown claims; (ii) these releases are fairly and knowingly made; and (iii) THE RECEIVER (ON BEHALF OF THE RECEIVERSHIP ENTITY GENERALLY AND ACF SPECIFICALLY) AND DFS SPECIFICALLY ALLOCATE THE RISK OF ANY MISTAKE BY ANY PARTY IN ENTERING INTO THIS AGREEMENT TO THE PARTY OR PARTIES WHO LATER CLAIM THEY WERE MISTAKEN. f. No Avoidance. This Agreement is being entered into in good faith, the transactions contemplated are for reasonably equivalent value and fair consideration, are an exchange and receipt of contemporaneous value between the parties, and shall not be, and the order of the Court approving this transaction shall provide that, the transactions consummated hereunder shall not be subject to avoidance, rescission, clawback, or otherwise reversed, for any reason, under any federal or state law, or equitable principles. g. Effective Date of Release. The Release shall become effective on the date the Settlement Payment check clears the financial institution upon which the Settlement Payment check is drawn. 5. No Admission of Liability. The parties expressly enter into this Agreement for the purpose of avoiding the expense and risk of further litigation. This Agreement is not and may not be construed as an admission or acknowledgment of liability or wrongdoing on the part of the Receiver (on behalf of the Receivership Entity generally and ACF specifically) or DFS, each of which denies any and all liability. 6. General Terms. a. Entire Agreement. This Agreement sets forth the full and complete agreement of the Receiver (on behalf of the Receivership Entity generally and ACF specifically) and DFS with respect to its subject matter, and there is no mistake of law or fact with respect to this Agreement. This Agreement supersedes and replaces any earlier representations, inducements, promises, settlements, compromises, agreements, or understandings, written or oral, between the parties hereto with respect to each party s claims. This Agreement may not be amended, modified, or revoked except by means of a supplemental writing that is signed by the party against whom the amendment, modification, or revocation is to be enforced. b. Binding Agreement. This Agreement is binding on the parties and their respective successors, legal representatives, and assigns and on any other persons, including all parties in interest in the Action, claiming a right or interest through the parties with respect to the Asserted Lien. 51557133.1-5- Page 5 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 6 of 35 c. No Third Party Benefit. No other person or entity, other than the parties to this Agreement, is intended to be released from liability to any party, nor is any other person or entity intended to benefit in any way from this Agreement. d. Parties To Bear Own Fees and Costs. The Receiver (on behalf of the Receivership Entity generally and ACF specifically) and DFS shall assume responsibility for the payment of their own attorneys fees, costs, and expenses in this matter, including the negotiation of this Agreement and the legal work associated with obtaining the entry of an Order approving this Agreement by the Court. e. Governing Law and Venue. This Agreement has been executed under and shall be construed in accordance with the laws of the State of Oregon and the laws of federal common law receiverships. If there is any litigation or other proceeding to enforce or interpret any provision of this Agreement, jurisdiction shall be in the Court. f. Attorneys Fees and Costs. In the event of any suit, action, or arbitration to interpret or enforce the provisions of this Agreement, the prevailing party, as defined in ORS 20.077, shall be entitled to an award of its reasonable attorneys fees, costs, and expenses incurred in such action or arbitration and in any appeal therefrom, in addition to all other remedies afforded the prevailing party. g. Notices. All notices hereunder shall be effective upon receipt, shall be in writing, and shall be sent by U.S. certified mail, overnight courier, hand delivery, mailgram, facsimile, telegram, or telex as follows: If to the Receiver: If to DFS: SCHWABE WILLIAMSON & WYATT 1211 SW 5th Avenue, Suite 1900 Portland, OR 97204 Attn: Andrew J. Lee ajlee@schwabe.com SUSSMAN SHANK 1000 SW Broadway, Suite 1400 Portland, OR 97205 Attn: Howard M. Levine hlevine@sussmanshank.com and STREUSAND, LANDON & OZBURN LLP 811 Barton Springs Road Suite 811 Austin, TX 78704 Attn: Sabrina L. Streusand Streusand@slollp.com 51557133.1-6- Page 6 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 7 of 35 h. Construction. The rule of construction that an agreement is to be construed against the drafting party is not to be applied in interpreting this Agreement. The parties acknowledge that they have each read this Agreement, that they understand its meaning and intent, and that this Agreement has been executed voluntarily. i. Severability. The invalidity of all or any part of any section of this Agreement shall not render invalid the remainder of this Agreement to the extent it represents the intent of the parties in all material respects if interpreted without the invalid provision. j. Counterparts. This Agreement may be executed in one or more counterparts, each of which is to be deemed an original. All counterparts may be consolidated into one agreement, binding on all the parties. k. Representation Regarding Authority to Execute Agreement. The Receiver (on behalf of the Receivership Entity generally and ACF specifically) represents that he has the power and authority to enter into this Agreement and provide the Release to DFS upon approval of this Agreement by the Court. DFS represents that the individual signing this Agreement on behalf of DFS has the power and authority to enter into this Agreement and provide the Release to the Receiver (on behalf of the Receivership Entity generally and ACF specifically) and DFS. l. Representation by Counsel. The Receiver (on behalf of the Receivership Entity generally and ACF specifically) and DFS are each represented by counsel and have consulted with their counsel regarding the terms and legal meaning of this Agreement. IN WITNESS WHEREOF, the undersigned executed this Agreement as of the dates noted below, to be effective upon the entry of an order approving this Agreement by the Court. The Receivership Entity, including Aequitas Commercial Finance, LLC, an Oregon entity By: Dated: Ronald F. Greenspan, as Receiver on behalf of the Receivership Entity, including Aequitas Commercial Finance, LLC Dell Financial Services, LLC ( DFS ), a Delaware entity By: Dated: Printed Name: Its: 51557133.1-7- Page 7 of 35
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Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 9 of 35 Page 9 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 10 of 35 UCC FINANCING STATEMENT AMENDMENT FOLLOW INSTRUCTIONS A. NAME & PHONE OF CONTACT AT FILER (optional) B. E-MAIL CONTACT AT FILER (optional) C. SEND ACKNOWLEDGMENT TO: (Name and Address) THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY 1a. INITIAL FINANCING STATEMENT FILE NUMBER 1b. This FINANCING STATEMENT AMENDMENT is to be filed [for record] (or recorded) in the REAL ESTATE RECORDS Filer: attach Amendment Addendum (Form UCC3Ad) and provide Debtor s name in item 13 89271485 2. TERMINATION: Effectiveness of the Financing Statement identified above is terminated with respect to the security interest(s) of Secured Party authorizing this Termination Statement. 3. ASSIGNMENT (full or partial): Provide name of Assignee in item 7a or 7b, and address of Assignee in item 7c and name of Assignor in item 9 For partial assignment, complete items 7 and 9 and also indicate affected collateral in item 8 4. CONTINUATION: Effectiveness of the Financing Statement identified above with respect to the security interest(s) of Secured Party authorizing this Continuation Statement is continued for the additional period provided by applicable law 5. PARTY INFORMATION CHANGE: Check one of these two boxes This Change affects Debtor or Secured Party of Record AND Check one of these three boxes to: CHANGE name and/or address: Complete Item 6a or 6b; and item 7a or 7b and item 7c 6. CURRENT RECORD INFORMATION: Complete for Party Information Change provide only one name (6a or 6b) 6a. ORGANIZATION S NAME ADD name: Complete item 7a or 7b, and item 7c DELETE name: Give record name to be deleted in item 6a or 6b OR 6b. INDIVIDUAL S SURNAME FIRST PERSONAL NAME ADDITIONAL NAME(S)/INITIAL(S) SUFFIX 7. CHANGED OR ADDED INFORMATION: Complete for Assignment or Party Information Change provide only one name (7a or 7b) (use exact, full name; do not omit, modify, or abbreviate any part of the Debtor s name) 7a. ORGANIZATION S NAME OR 7b. INDIVIDUAL S SURNAME INDIVIDUAL S FIRST PERSONAL NAME INDIVIDUAL S ADDITIONAL NAME(S)/INITIAL(S) 7c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY 8. COLLATERAL CHANGE: Also check one of these four boxes: ADD collateral DELETE collateral RESTATE covered collateral ASSIGN collateral Indicate collateral: The only deleted collateral is the computer equipment, peripherals, and other equipment (collectively Equipment ) and software and services (collectively Software ) identified on Exhibit 1 hereto that was specifically financed under Lease Schedule No. 001-6626692-506 of the Master Lease Agreement ( MLA ) as defined in the UCC-1 Financing Statement No. 89271485 filed on August 8, 2012. The foregoing collateral deletion does not affect any lien interest Dell Financial Services ( DFS ) holds under the MLA and any other schedule associated with the MLA, which lien interests DFS continues to assert until or unless released by a separate UCC-3 financing statement amendment effectuating the release of that interest or as otherwise ordered by the United States District Court, District of Oregon, Portland Division in Securities and Exchange Commission v. Aequitas Management, LLC; Aequitas Holdings, LLC; Aequitas Commercial Finance, LLC; Aequitas Capital Management, Inc.; Aequitas Investment Management, LLC; Robert J. Jesenik; Brian A Oliver; and N. Scott Gillis, Case No. 3:16-cv-00438- PK. 9. NAME OF SECURED PARTY OF RECORD AUTHORIZING THIS AMENDMENT: Provide only one name (9a or 9b) (name of Assignor, if this is an Assignment) If this is an Amendment authorized by a DEBTOR, check here and provide name of authorizing DEBTOR 9a. ORGANIZATION S NAME Dell Financial Services L.L.C. OR 9b. INDIVIDUAL S SURNAME FIRST PERSONAL NAME ADDITIONAL NAME(S)/INITIAL(S) SUFFIX 10. OPTIONAL FILER REFERENCE DATA: 404 FILING OFFICE COPY UCC FINANCING STATEMENT AMENDMENT (FORM UCC3) (Rev. 06/13) EXHIBIT 1 Page 1 of 21 Page 10 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 11 of 35 Instructions for National UCC Financing Statement AMENDMENT (Form UCC3) Please type or laser-print this form. Be sure it is completely legible. Read and follow all Instructions, especially Instruction 1a; correct file number of initial financing statement is crucial. Fill in form very carefully; mistakes may have important legal consequences. If you have questions, consult your attorney. Filing office cannot give legal advice. When properly completed, send Filing Office Copy, with required $15.00 fee to Secretary of State Corporation Division/UCC Section 255 Capitol St. NE, Ste. 151 Salem, Oregon 97310. Rejected filings are subject to the non-refundable processing fee. ITEM INSTRUCTIONS A and B. To assist filing offices that might wish to communicate with filer, filer may provide information in item A and item B. These items are optional. C. Complete item C if filer desires an acknowledgment sent to them. Always complete items 1a and 9. 1a. File Number. Enter file number of initial financing statement to which this Amendment relates. Enter only one file number. In some states, the file number is not unique; in those states, also enter in item 1a, after the file number, the date that the initial financing statement was filed. 1b. If this Amendment is to be filed in the real estate records or in any other filing office where the name of current Debtor is required for indexing purposes, check the box in item 1b and enter Debtor name in item 13 of Amendment Addendum (Form UCC3Ad). Complete item 13 in accordance with instructions on Amendment Addendum (Form UCC3Ad). If Debtor does not have an interest of record, enter the name and address of the record owner in item 16 of Amendment Addendum (Form UCC3Ad). Note: Show purpose of this Amendment by checking box 2, 3, 4, 5, or 8 (in items 5 and 8 you must check additional boxes); also complete items 6, 7, and/or 8 as appropriate. Some, but not all filing offices accept multiple actions on an Amendment. Filing offices that accept multiple actions may charge an additional fee. Some filing offices that accept multiple actions may only index one of the actions requested. Consult the administrative rules of the designated filing office to determine the extent to which multiple actions will be accepted, indexed, and the applicable filing fees for multiple actions. 2. Termination. To terminate the effectiveness of the identified financing statement with respect to the security interest(s) of authorizing Secured Party, check box in item 2. See Instruction 9 below. 3. Assignment. To assign (1) some or all of Assignor s right to amend the identified financing statement, or (2) the Assignor s right to amend the identified financing statement with respect to some (but not all) of the collateral covered by the identified financing statement: Check box in item 3 and enter name of Assignee in item 7a or 7b; always enter the Assignee s mailing address in item 7c. Also enter name of Assignor in item 9. If assignment affects the right to amend the financing statement with respect to some (but not all) of the collateral covered by the identified financing statement, check the ASSIGN collateral box and indicate the particular collateral covered in item 8. 4. Continuation. To continue the effectiveness of the identified financing statement with respect to the security interest(s) of authorizing Secured Party, check box in item 4. See Instruction 9 below. 5-7. Party Information Change. To indicate a party information change, check this box; also check additional boxes (as applicable) and complete Items 5, 6, and/or 7 as appropriate. To change the name and/or address of a party (items 5, 6, and 7): Check box in item 5 to indicate whether this Amendment relates to a Debtor or Secured Party of record; and check the CHANGE name and/or mailing address box in item 5 and enter name of affected party (current record name) in item 6a or 6b; and repeat or enter the new name in item 7a or 7b; always enter the party s mailing address in item 7c. To add a party (items 5 and 7): Check box in item 5 to indicate whether this Amendment relates to a Debtor or Secured Party of record; and check the ADD name box in item 5 and enter the added party s name in item 7a or 7b; always enter the party s mailing address in item 7c. For additional Debtors or Secured Parties, attach Amendment Additional Party (Form UCC3AP), using correct name format. To delete a party (items 5 and 6): Check box in item 5 to indicate whether this Amendment relates to a Debtor or Secured Party of record; and check the DELETE name box in item 5 and enter the deleted party s name in item 6a or 6b. 8. Collateral Change. To indicate a collateral change, check this box; also check additional box (as applicable) and describe the change in item 8. If space in item 8 is insufficient, continue collateral description in item 14 of Amendment Addendum (Form UCC3Ad). Do not include social security numbers or other personally identifiable information. To add collateral: Check the ADD collateral box in item 8 and indicate the additional collateral. To delete collateral: Check the DELETE collateral box in item 8 and indicate the deleted collateral. A partial release is a DELETE collateral change. To restate covered collateral description: Check the RESTATE covered collateral box in item 8 and indicate the restated collateral. To assign the right to amend the financing statement with respect to part (but not all) of the collateral covered by the identified financing statement: Comply with Instruction 3 above and check the ASSIGN collateral box in item 8. If, due to a full release of collateral, filer no longer claims a security interest under the identified financing statement, check box in item 2 (Termination) and not a box in item 8 (Collateral Change). 9. Name of Authorizing Party. Enter name of party of record authorizing this Amendment. In most cases, the authorizing party is the Secured Party of record. If this is an Amendment (Assignment), enter Assignor's name in item 9a or 9b. If this is an Amendment (Termination) authorized by a Debtor, check the box in item 9 and enter the name of the Debtor authorizing this Amendment in item 9a or 9b. If this Amendment (Termination) is to be filed or recorded in the real estate records, also enter, in item 12 of Amendment Addendum (Form UCC3Ad), the name of Secured Party of record. If there is more than one authorizing Secured Party or Debtor, enter additional name(s) in item 14 of Amendment Addendum (Form UCC3Ad). 10. Optional Filer Reference Data. This item is optional and is for filer's use only. For filer's convenience of reference, filer may enter in item 10 any identifying information that filer may find useful. Do not include social security numbers or other personally identifiable information. EXHIBIT 1 Page 2 of 21 Page 11 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 12 of 35 EXHIBIT 1 TO UCC-3 (AEQUITAS COMMERCIAL FINANCE CORPORATION/DFS) PO 13-1563 3yr onsite PO 13-1561 3yr onsite PO 13-1556 Applecare PO 13-1562 3yr onsite PO 13-1557 ED+ TV PO 14-1570 B Mercer Laptop PO 14-1571 D. Brown Laptop PO 14-1575 Laptop PO 14-1574 Laptop PO 14-1573 Aruba Access Point PO 14-1573 Aruba Access PO 14-1577 Dock Stand PO 14-1577 T44OP I7 PO 14-1580 Laptop Ferguson PO 14-1581 AppleMBP PO 14-1578 Apple MBA PO 14-1571 3yr onsite PO 14-1570 3yr onsite PO 14-1573 1yr NBO Sup PO 14-1578 Applecare PO 14-1575 3yr onsite PO 14-1574 3yr onsite PO 14-1582 AppleMBP PO 14-1577 Testunit PO 14-1577 3yr Onsite PO 14-1581 Applecare PO 14-1580 3yr onsite JAN14 SERVICES PO 14-1584 Apple MBP PO 14-1573 Aruba PO 14-1582 Applecare PO 14-1584 Applecare PO 14-1590 Brash Laptop PO 14-1589 S Brown Laptop PO 14-1590 8GB DDR3 PO 14-1589 8GB DDR3 PO 14-1590 LCD LIFT EXHIBIT 1 Page 3 of 21 Page 12 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 13 of 35 PO 14-1590 3YR ONSITE PO 14-1589 3YR ONSITE PO 14-1592 APPLE MBA PO 14-1594 APPLE MBA PO 14-1594 APPLECARE PO 14-1592 APPLECARE PO 14-1602 APPLE MBA PO 14-1601 APPLE MBA PO 14-1604 APPLE MBA PO 14-1604 APPLECARE PO 14-1602 APPLECARE PO 14-1601 APPLECARE PO 14-1603 LAPTOP WILKIE PO 14-1609 LAPTOP SLAVIN PO 14-1611 APPLE MBP PO 14-1611 APPLECARE PO 14-1612 LVO W540 PO 14-1613 APPLE MBP PO 14-1613 APPLECARE PO 14-16?? LVO T440P PO 14-16?? ULTRA DOCK PO 14-1600 ULTRA DOCK PO 14-1603 ULTRA DOCK PO 14-1605 YEEAM PO 14-1600 3YR ONSITE PO 14-1603 3YR ONSITE PO 14-1617 LVO T440P PO 14-1617 DOCK/3YR ONSITE PO 14-1615 LACIE 2TB USB PO 14-1615 LACIE 2BIG PO 14-1612 4YR ONSITE PO 14-1613-B 3YR ONSITE PO 14-1613 Replacement PO 14-1617 Monitor PO 14-1620 Apple MBP PO 14-1623 T440P PO 14-1622 T440P PO 14-1620 Applecare PO 14-1626 T440P EXHIBIT 1 Page 4 of 21 Page 13 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 14 of 35 PO 14-1622 3YR ONSITE PO 14-1623 3YR/MONITOR PO 14-1626 3YR ONSITE PO 14-1628 T440P PO 14-1629 T440P PO 14-1628 3YR ONSITE PO 14-1629 3YR ONSITE MAR14 SVCS PO 14-1633 T440P PO 14-1637 T440P PO 14-1639 T440P PO 14-1633 Dock PO 14-1633 3yr Onsite PO 14-1628 Monitor FILE CABINET PO 14-1637 3YR ONSITE PO 14-1639 3YR ONSITE PO 14-1638 APPLE MBA PO 14-1650 APPLE MBA PO 14-1650 APPLECARE PO 14-1641 APPLECARE PO 14-1641 APPLE MBA PO 14-1641 APPLE/LVO PO 14-1645 T440P PO 14-1646 T440P PO 14-1647 T440P PO 14-1654 T440P PO 14-1638 APPLECARE PO 14-1653 APPLECARE PO 14-1655 APPLECARE PO 14-1641 4YR ONSITE PO 14-1645 3YR ONSITE PO 14-1646 DOCK PO 14-1647 DOCK PO 14-1645 DOCK PO 14-1654 DOCK PO 14-1660 T440P PO 14-1637 MONITORS EXHIBIT 1 Page 5 of 21 Page 14 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 15 of 35 PO 14-1639 MONITORS PO 14-1645 MONITORS PO 14-1646 3YR/MONITOR PO 14-1647 MONITORS PO 14-1654 3YR ONSITE PO 14-1660 3YR ONSITE P14-1647 3YR ONSITE PO 14-1663 T440P PO 14-1656 APPLECARE APR14 BILLING PO 14-1656 APPLE MBA PO 14-1669 APPLE MBP PO 14-1671 VSTUDIO PO 14-14669 APPLECARE PO 14-1654 MONITOR PO 14-1660 MONITOR PO 14-1673 IPAD PO 14-1666 T440P PO 14-1665 APPLECARE PO 14-1663 3YR ONSITE PO 14-1665 MAC MINI PO 14-1667 T440P PO 14-1668 T440P PO 14-1681 T440P PO 14-1677 T440P PO 14-1678 T440P PO 14-1675 APPLECARE PO 14-1675 APPLE MBP/VSTUDIO PO 14-1673 APPLECARE PO 14-1665 CRUCIAL 16GB KIT PO 14-1680 T440P PO 14-1679 T440P PO 14-1668 3YR ONSITE PO 14-1667 3 YR ONSITE PO 14-1666 3YR ONSITE PO 14-1676 T440P PO 14-1677 3YR ONSITE PO 14-1678 3YR ONSITE PO 14-1681 3YR ONSITE EXHIBIT 1 Page 6 of 21 Page 15 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 16 of 35 PO 14-1676 3YR ONSITE PO 14-1680 3YR ONSITE PO 14-1679 3YR ONSITE PO 14-1691 T440P PO 14-1691 CRUCIAL 8GB PO 14-1690 T440P PO 14-1690 CRUCIAL 8GB PO 14-1689 T440P PO 14-1692 T440P PO 14-1681 CRUCIAL 8GB PO 14-1677 CRUCIAL 8GB PO 14-1678 CRUCIAL 8GB PO 14-1676 CRUCIAL 8GB PO 14-1689 CRUCIAL 8GB PO 14-1697 T440P PO 14-1698 DOCK SUPPLIES PO 14-1692 CRUCIAL 8GB PO 14-1679 CRUCIAL 8GB PO 14-1680 CRUCIAL 8GB PO 14-1703 EPSON 1YR PO 14-1703 EPSON PL PO 14-1710 T440P PO 14-1683 POWERDSINE PO 14-1691 3 YR ONSITE PO 14-1710 3 YR ONSITE PO 14-1703 EPSON 1YR PO 14-1703 EPSON PL PO 14-1684 POWERDSINE PO 14-1698 T440P PO 14-1708 T440P PO 14-1709 T440P PO 14-1711 T440P PO 14-1698 3 YR ONSITE PO 14-1697 3 YR ONSITE PO 14-1689 3 YR ONSITE PO 14-1692 3 YR ONSITE PO 14-1690 3 YR ONSITE PO 14-1714 T440P PO 14-1713 T440P EXHIBIT 1 Page 7 of 21 Page 16 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 17 of 35 PO 14-1715 T440P PO 14-1708 3YR ONSITE PO 14-1709 3 YR ONSITE PO 14-1711 3 YR ONSITE PO 14-1718 3 YR ONSITE PO 14-1713 3 YR ONSITE PO 14-1715 3 YR ONSITE PO 14-1714 3 YR ONSITE PO 14-1724 T440P PO 14-1726 T440P PO 14-1725 T440P PO 14-1718 AQUOS PO14-1724 3YR ONSITE PO 14-1726 3 YR ONSITE PO 17-1725 3 YR ONSITE PO 14-1743 APPLE MBP PO 14-1740 3YR SUPPORT PO 14-1743 APPLECARE PO 14-1737 3 YR ONSITE PO 14-1734 3 YR ONSITE PO 14-1732 APPLECARE PO 14-1731 3 YR ONSITE PO 14-1731 T440P PO 14-1734 T440P SHORETEL PHONES PHNS NEW CONF ROOMS SHORETEL PHONES PO 14-1738 MONITOR STANDS PO 14-1732 APPLE MBP PO 14-1740 AQUOS TV PO 14-1772 3 YR ONSITE PO 14-1757 3 YR ONSITE PO 14-1772 T440P PO 14-1763 T440P PO 14-1757 T440P PO 14-1756 T440P PO 14-1756 APPLECARE PO 14-1777 MBP PO 14-1777 APPLECARE EXHIBIT 1 Page 8 of 21 Page 17 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 18 of 35 PO 14-1778 MBP PO 14-1778 APPLECARE PO 14-1779 MBP PO 14-1779 APPLECARE PO 14-1754 SHARP AQUOS PO 14-1756 3YR ONSITE PO 14-1763 3YR ONSITE PO 14-1755 MBP PO 14-1737 INTERNS T440P PO 14-1750 IT SUPPLIES PO 14-1774 IT SUPPLIES PO 14-1762 T440P PO 14-1773 T440P PO 14-1749 APPLECARE PO 14-1749 APPLE MBA PO 14-1751 APPLECARE PO 14-1751 IPAD PO 14-1751 IPAD AIR PO 14-1752 APPLECARE PO 14-1752 IPAD MINI PO 14-1752 IPAD MINI PO 14-1752 IPAD MINI PO 14-1761 APPLECARE PO 14-1766 APPLECARE PO 14-1766 IPAD PO 14-1768 APPLECARE PO 14-1773 3YR ONSITE PO 14-1774 IT SUPPLIES PO 14-1775 APPLECARE PO 14-1768 IPAD AIR PO 14-1768 IPAD AIR PO 14-1762 3YR ONSITE PO 14-1776 MBP PO 14-1776 APPLECARE PO 14-1775 APPLE MBP PO 14-1767 SURFACE PRO PO 14-1765 MONITOR/STANDS PO 14-1761 APPLE MBP PO 14-1705 SURFACE PRO EXHIBIT 1 Page 9 of 21 Page 18 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 19 of 35 PO 14-1704 SURFACE PRO PO 14-1774 MONITOR SHORETEL PHN/SUPPORT PO 14-1754 3YR SUPPORT PO 14-1790 T440P PO 14-1780 T440P PO 14-1780 3 YR ONSITE PO 14-1782 T440P PO 14-1782 3YR ONSITE PO 14-1789 T440P PO 14-1788 T440P PO 14-1790 3YR ONSITE PO 14-1788 3YR ONSITE PO 14-1789 3YR ONSITE PO 14-1794 ERGOTRON PO 14-1792 APPLECARE PO 14-1792 APPLE MBP PO 14-1803 APPLE SUPPLIES PO 14-1804 APPLE MBP PHNS/EXT/LIC/SUPPORT PHNS/EXT/LIC/SUPPORT PO 14-1806 APPLE MBP PO 14-1806 APPLECARE 3YR PO 14-1804 APPLECARE PO14-1813 APPLECARE 3YR PO 14-1813 APPLE MAC MINIS PO 14-1816 APPLECARE PO 14-1816 APPLE MBP PO 14-1829 T440P PO 14-1826 T440P PO 14-1831 APPLE BTO MBP PO 14-1828 T440P PO 14-1827 T440P PO 14-1830 T440P PO 14-1823 APPLE BTO MBP PO 14-1823 APPLECARE 3YR PO 14-1819 BTO APPLE MBP PO 14-1819 APPLECARE 3YR PO 14-1824 SURFACE PRO EXHIBIT 1 Page 10 of 21 Page 19 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 20 of 35 PO 14-1825 SURFACE PRO PHONE/SUPPORT PHONES/SUPPORT PO 14-1826 LVO T440P PO 14-1826 LVO 3YR PO 14-1829 LVO 3YR PO 14-1836 T440P PO 14-1845 APPLECARE PO 14-1847 LVO 3YR ONSITE PO 14-1847 T440P PO 14-1836 3YR ONSITE PO 14-1842 APPLECARE PO 14-1856 LVO ULTRA DOCK PO 14-1845 APPLE MBP PO 14-1845 APPLE MBP PO 14-1839 APPLECARE 3YR PO 14-1839 APPLECARE PO 14-1855 APPLE MBP PO 18-1855 APPLECARE PO 14-1839 APPLE MBP PO 14-1839 APPLE MBP PO 14-1846 LVO 3YR ONSITE PO 14-1851 SURFACE PRO PO 14-1840 3YR ONSITE PO 14-1841 3YR ONSITE PO 14-1845 APPLECARE PO 14-1837 3YR ONSITE PO 14-1838 3YR ONSITE PO14-1840 LVO ULTRA DOCK PO 14-1840 LVO T44OP PO 14-1841 LVO T440P PO 14-1841 LVO TP ULTRA DOCK PO 14-1842 APPLECARE 3YR PO 14-1846 LVO T440P PO 14-1848 T440P PO 14-1848 LVO 3YR ONSITE PO 14-1850 SURFACE PRO PO 14-1850 SURFACE PRO PO 18-1851SURFACE PRO EXHIBIT 1 Page 11 of 21 Page 20 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 21 of 35 PO 14-1814 T440P PO 14-1817 3YR ONSITE PO 14-1824 SURFACE PRO PO 14-1825 SURFACE PRO PO 14-1827 LVO ONSITE 3YR PO 14-1828 LVO 3YR ONSITE PO 14-1830 LVO 3YR ONSITE PO 14-1831 APPLECARE 3YR PO 14-1837 T440P PO 14-1838 T440P PO 14-1859 ARUBA PO 14-1860 BATTERY BACKUPS PO 14-1854 SURFACE PRO PO 14-1854 SURFACE WARRANTY PO 14-1830 CREDIT PO 14-1864 PRO WARRANTY PO 14-1861 POWER SUPPLY PO 14-1864 SURFACE PRO PO 14-1842 APPLE MBP PO 14-1842 APPLE MBP PO 14-1874 SURFACE PRO PO 14-1869 SHARP AQUOS PO 14-1874 PRO WARRANTY PO 14-1856 3YR ONSITE PO 14-1856 LVO T440P PO 14-1826 LVO 3YR PO 14-1875 SURFACE/SUPPLIES PO 14-1859 ARUBA PO14-1875 WARRANTY PO 14-1869 3YR LCDTV PO 14-1871 3 YR ONSITE PO 14-1871 T440P PO 14-1871 T440P LATITUDE E7440 LATITUDE E7440 SUITE CARD READER TNEDP125 PO14-1878 APPLECARE PO14-1878 APPLE MBP PO14-1879 SURFACE PRO EXHIBIT 1 Page 12 of 21 Page 21 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 22 of 35 PO14-1879 WARRANTY PO14-1882 SURFACE PRO PO14-1882 WARRANTY PO14-1883 WARRANTY PO14-1883 SURFACE PRO PO14-1888 APPLE MBA PO14-1888 APPLECARE PO 14-1881 SURFACE PRO PO 14-1881 WARRANTY PO 14-1887 SURFACE PRO PO 14-1887 WARRANTY 3 YR ONSITE T440P STOCK T440P PO 14-1898 50% DEPOSIT MT HOOD REMODEL AEQUITAS FIBER 2015 JAN15 4TH FLOOR PHONES/SUPPORT SOUNDMASKING PROJECT 4TH FLR PO 15-1936 T440P PO 15-1927 FORTINET PO 15-1928 APC NYC PO 15-1913 SURFACE PRO PO 14-1897 SURFACE PRO PO 15-1922 SURFACE PRO PO 15-1936 T440P PO 15-1936 3YR ONSITE PO 15-1927 FORTINET PO 14-1901 MAC MINI PO 15-1927 FORTINET PO 14-1897 WARRANTY PO 15-1913 WARRANTY PO 15-1922 WARRANTY PO 14-1901 APPLECARE ADDITIONAL EQUIPMENT PHONES PO 14-1893 APPLE MBP PO 15-1932 SURFACE PRO EXHIBIT 1 Page 13 of 21 Page 22 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 23 of 35 PO 14-1894 APPLE MBP PO 15-1931 SURFACE PRO PO 15-1911 APPLE MBA PO 14-1893 APPLECARE PO 15-1931 WARRANTY PO 15-1932 WARRANTY PO 14-1894 APPLECARE PO 15-1911 APPLECARE PO 15-1923 APPLE MBP PO 14-1896 APPLE MBA PO 14-1904 APPLE MBA PO 15-1923 APPLECARE PO 14-1896 APPLECARE PO 14-1904 APPLECARE PO15-1953 SURFACE PRO PO15-1953 SURFACE PRO WARRANTY PO15-1958 SURFACE PRO DOCK PO15-1954 SURFACE PRO PO15-1954 SURFACE PRO WARRANTY PO15-1957 POLYCOM PO 15-1964 APPLE MBA PO 15-1965 APPLE MBA PO 15-1945 IPAD MINI PO 15-1945 APPLECARE PO 15-1967 APPLE MBP PO 15-1967 APPLECARE PO 15-1971 APPLE MBP PO 15-1971 APPLECARE PO 15-1964 APPLECARE/ADAPTER PO 15-1965 APPLECARE PO 15-1973 APPLE MBP PO 15-1973 APPLECARE NY CONFERENCE ROOM AV MT SHASTA CONF ROOM AV PO15-1982 APC SMARTUPS PO 15-1985 APPLE MBP PO 15-1988 APPLE MBP PO 15-1989 ARUBA PO15-1984 VEEAM NYC EXHIBIT 1 Page 14 of 21 Page 23 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 24 of 35 PO 15-1985 APPLECARE PO 15-1988 APPLECARE PO15-1998 LVO M93P PO15-2008 PHONES PO 15-1927 FORTINET PO15-1993 LATITIDE E7440 PHONES/SUPPORT PO15-2001 FORTINET NYC PHONES/SUPPORT PO 15-2014 MACBOOK PRO PO 15-2014 APPLECARE PO 15-2013 LVO T440P PO 15-2017 APC SMART PO 15-2007 LVO T440P PO 15-2006 LVO T440P PO 15-2007 3 YR ONSITE PO15-2007 3YR ONSITE PO 15-2015 MACBOOK PRO 15 PO15-2013 LVO 3YR PO 15-2001 FORTINET PO 15-2022 LVO TS PO 15-2015 APPLECARE A/C DOOR NYC KEYPAD DOOR RELEASE NYC PO15-2007 LVO T440P PO15-2006 LVO 3YR PO 15-2006 LVO 3YR PO 15-2024 3.0 DRIVE BUNDLE PO15-2028 APC SMART-UPS PO 15-2022 LVO DOCK PO15-2035 T440P, DOCK PO15-2028 APC NETCARD/SUPPLIES PO15-2033 T440P PO 15-2036 APPLE MBP PO 15-2036 APPLECARE 3YR PO 15-2039 DOCK PO 15-2035 3YR ONSITE PO 15-2033 3YR ONSITE PO15-2042 APPLE MBA EXHIBIT 1 Page 15 of 21 Page 24 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 25 of 35 PO15-2043 APPLE MBP PO15-2034 T440P PO15-2043 APPLECARE 3YR PO15-2034 3 YR ONSITE PO15-2042 APPLECARE 3YR PO15-2050 APPLE MBP PO15-2050 APPLECARE 3YR PO15-2039 T440P PO15-2044 POWERDSINE PO15-2047 APPLE MBP PO15-2055 LVO T440P PO15-2047 APPLECARE PO15-2055 APPLECARE PO15-2039 LVO 3 YR ONSITE PO15-2055 3 YR ONSITE 4TH FLR BRDRM PO15-2061 APPLE MBP PO15-2059 DOCK PO15-2060 DOCK PO15-2061 APPLECARE LOBBY SIGNAGE LOBBY SIGNAGE CONF ROOM IPAD DISPLAYS PO15-2052 AQUOS LED PO15-2051 AQUOMOTION PO15-2054 APPLE MBP PO15-2066 LVO TP DOCK PO15-2065 LVO TP DOCK PO15-2051 3YR SUPPORT PHONES/SUPPORT PO15-2067 LVO TP DOCK PO15-2068 DOCK PO15-2059 T440P PO15-2060 T440P PO15-2066 T440P PO15-2065 T440P PO15-2065 3YR ONSITE ICON 600 VIDEO SYSTEM SHARP 60IN LED DISPLAY EXHIBIT 1 Page 16 of 21 Page 25 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 26 of 35 PO 14 1565 WRLS 3000 BLTRR PO 14 1569 Mini Dock PO 14 1572 Monitors PO 14 1579 Monitors PO 14 1576 IT Supplies PO 14 1575 Crucial/Start tech PO 14 1574 Crucial/Startech PO 14 1579 Monitors PO 14 1583 IT supplies PO 14 1586 Monitors PO 14 1591 Headsets PO 14 1586 IT Supplies PHONES/SUPPORT PO 14 1598 IT SUPPLIES PO 14 1593 IT SUPPLIES PO 14 1593 BLACKBOX PO 14 1597 IT SUPPLIES PO 14 1595 IT SUPPLIES PO 14 1608 IT SUPPLIES PO 14 1607 WIFI CPYT SHORETEL PHONES BASIC DOCKS PO 14 1614 IT SUPPLIES PO 14 1609 IT SUPPLIES PO 14 1624 IPAD 2 PO 14 1610 IT Supplies PO 14 1621 Replcmnt battery PO 14 1630 Hard drive PO 14 1632 IT Supplies PO 14 1634 Apple MBP PO 14 1635 Samsung 840 PO 14 1640 IT Supplies PO 14 1636 Monitor/cable Replacement monitor PO 14 1632 Belkin zero 6 Phones/support PO 14 1657 IT SUPPLIES PO 14 1649 IT SUPPLIES PO 14 1649 MONITORS EXHIBIT 1 Page 17 of 21 Page 26 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 27 of 35 PO 14 1659 IT SUPPLIES PO 14 1640 IT SUPPLIES PO 14 1670 IT SUPPLIES PO 14 1670 IT SUPPLIES PO 14 1674 IT SUPPLIES PO 14 1685 IT SUPPLIES PO 14 1682 IT SUPPLIES STACKING CABLE 3M CUSTOMER KIT PO 14 1688 VSTUDIO/SUPPLIES PO 14 1712 IT SUPPLIES PO 14 1727 IT SUPPLIES PO 14 1739 IT SUPPLIES PO 14 1744 IT SUPPLIES PO 14 1747 IT SUPPLIES PO 14 1704 COVER PO 14 1705 COVER PO 14 1704 SURFACEPRO PWRSUP PO 14 1705 SURFACEPRO PWRSUP PO 14 1730 IT SUPPLIES PO 14 1739 IT SUPPLIES PO 14 1754 IT SUPPLIES PO 14 1764 IT SUPPLIES PO 14 1750 IT SUPPLIES PO 14 1766 IPAD PO 14 1750 IT SUPPLIES PO 14 1768 IPAD AIR PO 14 1781 IT SUPPLIES PO 14 1787 IT SUPPLIES PO 14 1781 IT SUPPLIES PO 14 1802 IT SUPPLIES NETWORK CABLES PO14 1808 IT SUPPLIES PO 14 1810 IT SUPPLIES PO 14 1807 IT SUPPLIES PO 14 1651 MONITORS/STANDS PO 14 1719 IT SUPPLIES PO14 1812 IT SUPPLIES PO14 1811 IT SUPPLIES EXHIBIT 1 Page 18 of 21 Page 27 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 28 of 35 PO 14 1833 IT SUPPLIES PO 14 1820 IT SUPPLIES PO 14 1815 SURFACE PRO DOCK PO 14 1822 IT SUPPLIES PO 14 1810 IT SUPPLIES PO 14 1815 SURFACE PRO PO 14 1819 IT SUPPLIES PO 14 1810 HEADSET PO 14 1857 IT SUPPLIES PO 14 1843 IT SUPPLIES PO 14 1849 SURFACE PRO PO 14 1863 IT SUPPLIES PO 14 1858 IT SUPPLIES PO 14 1852 IT SUPPLIES PO 14 1858 IT SUPPLIES PO 14 1868 KEYBOARD/MOUSE AC ADAPTER PO14 1873 NETWORK CABLES ADAPTER PO 14 1875 SURFACE/SUPPLIES PO 14 1870 TV CARTS PO14 1877 MONITOR PO 18 1867 POWER STRIPS PO 14 8176 HP LASERJET PO 14 8176 HP LASERJET PO 14 1880 IT SUPPLIES PO 14 1884 DISPLAY CABLES PO 14 1880 IT SUPPLIES PO 14 1892 IT SUPPLIES PO 15 1921 LVO DOCKS PO 15 1930 DOCKS/SUPPLIES PO 15 1934 IT SUPPLIES PO 15 1908 IT SUPPLIES PO 14 1903 MONITORS PO 15 1912 ELITE DISPLAY PO 15 1944 IT SUPPLIES PO 15 1905 PANDUIT/TRIPP LITE PO 15 1915 IT SUPPLIES PO 15 1942 NYC OFFICE EXHIBIT 1 Page 19 of 21 Page 28 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 29 of 35 PO 15 1926 IPAD MINI PO 14 1892 MAGSAFE PO 15 1938 IT SUPPLIES PO 14 1900 HEADSET PO 14 1890 16GB KIT PO 15 1938 IT SUPPLIES PO 15 1935 HEADSET PO 14 1902 CABLES PO 14 1889 IT SUPPLIES PO 14 1905 PANDUIT PO 15 1908 IT SUPPLIES PO 15 1934 IT SUPPLIES PO 15 1939 NYC OFFICE PO 14 1889 HEADPHONES PO 15 1914 STARTECH PO 15 1945 APPLE AV PO 15 1940 FORTINET PO 14 1884 BELKIN PO 15 1944 IT SUPPLIES PO 15 1939 NYC OFFICE PO 15 1939 BLACKBOX PLAT PO 15 1921 LVO DOCK PO 15 1921 LVO DOCK PO15 1959 MONITORS PO 15 1959 MONITORS PO 15 1969 WYSE THIN IVEY PO 15 1968 IT SUPPLIES PO 15 1966 IT SUPPLIES PO 15 1972 IT SUPPLIES PO 15 1970 DOCKS/CABLES PO 15 1951 MONITOR PO 15 1969 WYSE IVEY PO 15 1974 50FT HDMI NY IT SUPPLIES PO 15 1991 MONITORS NY PO 15 1990 IT SUPPLIES NY PO 15 1976 MONITOR/16GB KIT PO15 1951 MONITORS PO 15 1981 IT SUPPLIES EXHIBIT 1 Page 20 of 21 Page 29 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 30 of 35 PO15 1997 IT SUPPLIES PO15 1995 IT SUPPLIES PO15 1994 IT SUPPLIES PO15 1992 HEADSET PO15 1994 ADAPTER PO15 1990 DOCK STATION NY PO15 1972 REPLACEMENT RAM PO 15 2000 IT SUPPLIES NY PO 15 2000 IT SUPPLIES NY PO 15 2009 IT SUPPLIES PO 15 2010 IT SUPPLIES PO 15 2013 DOCKS PO15 2009 HEADSET PO 15 2016 STARTECH PO 15 2018 NETWORK CABLES PO 15 2018 NETWORK CABLES PO 15 2019 IT SUPPLIES PO 15 2026 APPLE IPAD HARD DISK CARTRIDGE PO 15 2023 SENSOR PO 15 2029 30FT CAT6 PO 15 2030 SUPPLIES PO 15 2032 BATT/ADPT/HEADSET PO 15 2022 LVO DOCK PO15 2031 MONITORS PO15 2028 IT SUPPLIES PO15 2028 APC NETCARD/SUPPLIES PO15 2028 LEVITON 75 FT VELCRO PO15 2046 IT SUPPLIES PO15 2047 CAT6 PO15 2049 CARTRIDGE PO15 2053 MOUNT PO15 2057 SUPPLIES PO15 2062 IT SUPPLIES *24028-001\EQUIPMENT LIST FROM SCHEDULE 506 (02611562X7AC43) (002).DOCX (02613375);1 EXHIBIT 1 Page 21 of 21 Page 30 of 35
Case 3:16-cv-00438-PK Document 522-3 Filed 09/05/17 Page 31 of 35 Thank you for your recent inquiry and request to assign your rights and obligations under accounts financed with Dell Financial Services L.P. (DFS). Enclosed you will find the appropriate forms needed to process your request. t The Assignee must be credit approved and the existing DFS account(s) is in good payment standing with DFS before an Assignment and Assumption (A&A) contract will be prepared and sent to you. This contract requires the signature of both the current DFS customer and the new Assignee. Before completing the enclosed documentation, we would like to ensure that the A&A process is appropriate for your business particular situation. Please review the following list and check the situation that matches your current situation. Your selection will determine the appropriate form to complete. Assignment & Assumption is Required Please complete the A&A Doc A Purchase or Transfer of Assets Between Two Business Entities (Company NOT Purchased). Example: ABC Company buys/receives the DFS financed equipment of XYZ Company. ABC Company must assume XYZ's DFS obligations through the A&A process. A Purchase of a Company with DFS Financed Equipment. Example: ABC Company buys XYZ Company (with DFS financed equipment). ABC Company must assume XYZ's DFS obligations through the A&A process. A Merger Resulting in a Company Name Change. Example: ABC Company merges with XYZ Company (with DFS financed equipment) forming a new entity called ZZZ Company. ZZZ Company must assume XYZ's DFS obligations through the A&A process. Sole Proprietorships With a Change in Ownership (Company Name Change is Irrelevant). Example: A sole proprietor, Joe Smith, owns ABC Company (with DFS financed equipment). Joe sells ABC Company to Brenda Johnson. Brenda Johnson needs to assume Joe's DFS obligations through the A&A process (even if ABC Company s name is unchanged). Assignment & Assumption is Not Required A Merger of Two Business Entities That Does Not Result in a Legal Company Name Change. Example: ABC Company (with DFS financed equipment) merges with XYZ Company forming a new entity that retains the ABC Company name. No action is needed. EXHIBIT 2 Page 1 of 5 Page 31 of 35