EFTA Document EFTA01295413

NAME SEARCHED: JeeperS, Inc PWM 81S-RESEARCH performed due diligence research in accordance with the standards set by AML Compliance for your business. We completed thorough searches on your subject name(s) in the required databases and have attached the search results under the correct heading below. Significant negative media results may require escalation to senior business, Legal and Compliance management. Also, all accounts involving PEPs must be escalated. Search: Result: Click here for results: Reviewer Comments (as necessary): RDC 0 No Hit 0 Not Required El Hit I. RDC Results No RDC alert (Please see attached) PCR No Hit 0 Not Required H. PCR Results No PCR alert (Please see attached) 0 Hit BIS 0 Yes PA4 No III. Negative Media There was no information found 0 Not Requital IV. Non-Negative Media There was no information found V. Other Langone Media There was no information found obtEl Results? 0 Yes 0 No 0 Not Required vi. Da Result Found(please see attached) Smartlinx Results? 0 Yes 0 No 0 Not Required VII. Smartlinx Result Found(please see attached) Court Cases 0 Review by Legal May be Required C) No Results 0 Search not required VIII. Court Cases Result Found(please see attached) Prepared by: Urvashi Lavania Date:09/03/2013 Research Analyst Instructions: I. Review and confirm that all results are returned for your client. 2. Please note that you are still required to perform any Martindale-Hubbell search (if applicable) on each search subject. We have attached the web link below for your convenicnce:Martindak-Hubbellhttp://www.martindak.corn/xp/Martindale/home.xml 3. As needed, provide comment for any negative results. 4. If applicable, please obtain clearance from Compliance for all alerts. 5. Save any changes you make to this document and attach file to your 1CYC. Please note: Submission of a signed KYC is your confirmation that you have fully reviewed the research documents. For internal use only SONY GM_00054620 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) CONFIDENTIAL OB-SDNY-0017444 EFTA210165190 EFTA01295413 OFAC RESULTS RDC: 11526390 No Match Found 6716633 Jeepers, Inc Country:Virgin Islands, U.s. PCR: C20130918689934 Jeepers, Inc 6716633 NCA customised Auto-Closed No-Hit 04/09/2013 BIS RESULTS Negative Media: There was no information found Non-Negative Media: There was no information found Other Language Media: There was no information found Public Records: 1 OF 3 RECORD(S) FOR INFORMATIONAL PURPOSES ONLY Copyright 2013 LexisNexis a division of Reed Elsevier Inc. All Rights Reserved. Subject Summary Name Address JEEPERS. INC. 60 HICKORY DR WALTHAM. MA 02451-1013 Name Variations/DBAs # Name Variations 1. JEEPERAL, INC. 2. JEEPERS FRANCHISE INC. 3. JEEPERS HOLDING CORP. 4. JEEPERS INCORPORATED 5. JEEPERSI. INC. 6. JEEPERSL, INC. Phone Summary - 20 records found For internal use only CONFIDENTIAL -PURSUANT TO FED. R.QQN(F IDENTIAL County/FIPS SDNY_GM_00054621 DB-SDNY-0017445 EFTA_00165191 EFTA01295414 Page 2 # Telephone Number 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19 20 Addresses - 17 records found # Address Dates County MSA 1. 60 HICKORY DR 12/15/1998 - MIDDLESEX Boston, MA-NH - WALTHAM, MA 02451 7/22013 1120 2. 60 HICKORY DR 5 3/1996 - MIDDLESEX Boston, MA-NH - WALTHAM. MA 02451 10/22/1997 1120 3. 5800 BALTIMORE NATIONAL 9/1992 - BALTIMORE Baltimore, MD - PIKE CATONSVILLE. MD 21228 7/2009 0720 4. 800 SOUTH ST 355 2/19/1991 - MIDDLESEX Boston, MA-NH - WALTHAM, MA 02453 722013 1120 5. 800 SOUTH ST 6/10/2004 - MIDDLESEX Boston. MA-NH - WALTHAM. MA 02453 5/13/2013 1120 6. 800 SOUTH ST 480 11/28/2005 - MIDDLESEX Boston, MA-NH - WALTHAM, MA 02453 3/2/2006 1120 7. 800 SOUTH ST 35 2002 - MIDDLESEX Boston, MA-NH - WALTHAM, MA 02453 2002 1120 8. 63 SOUTH AVE 2/26/1998 - MIDDLESEX Boston, MA-NH - BURLINGTON, MA 01803 4/4/2011 1120 9. 8321 CONCORD MILLS BLVD 1/17/1999 - CABARRUS Charlotte- CONCORD, NC 28027 7/2013 Gastonia-Rock Hill, NC-SC - 1520 10. 2525 CLEANLEIGH DR 9/1992 - BALTIMORE Baltimore, MD - PARKVILLE, MD 21234 0720 For internal use only SDNY_GM_00054622 CONFIDENTIAL - PURSUANT TO FED. R.QPN(F IDENTIAL DB-SDNY-00 17446 EFTA 00165192 EFTA01295415 # Address Dates 2/26/2010 County Page 3 MSA 11. 166 LAFAYETTE RD 11/25/1998 - ESSEX Boston. MA-NH - SALISBURY, MA 01952 1120 7/2013 12. 6711 RITCHIE HWY 9/1992 - ANNE ARUNDEL Baltimore, MD - GLEN BURNIE. MD 21061 0720 1/22/2013 13. WALTHAM, MA 02451 3/12/2004 - MIDDLESEX Boston. MA-NH - 1120 6/7/2006 14. 20070 W 151ST ST 5/1997 - JOHNSON Kansas City, MO- OLATHE, KS 66061 KS - 3760 10/24/2011 15. 17677 TORRENCE AVE 11/1998 - COOK Chicago. IL - LANSING, IL 60438 1600 1/2008 16. PO BOX 8238 6/2006 - NUECES Corpus Christi, CORPUS CHRISTI, TX 78468 TX -1880 10/17/2006 17. SOUTH ST 2/18/2011 - MIDDLESEX WALTHAM, MA 02453 8/22)2012 Profile Information - 9 records found 1: JEEPERS FRANCHISE INC. Company Name: JEEPERS FRANCHISE INC. Date Of Incorporation: 6/10/2004 State Of Incorporation: MA Charter Number: 000869922 Status Of Incorporation: INACTIVE 2: JEEPERS FRANCHISE INC. Company Name: JEEPERS FRANCHISE INC. Date Of Incorporation: 6/10/2004 State Of Incorporation: MA Charter Number: 000869922 Status Of Incorporation: INACTIVE 3: JEEPERS FRANCHISE INC. Company Name: JEEPERS FRANCHISE INC. Date Of Incorporation: 6/10/2004 State Of Incorporation: MA Charter Number: 000869922 Status Of Incorporation: INACTIVE 4: JEEPERS: INC. Company Name: JEEPERS: INC. Date Of Incorporation: 3/212000 Charter Number: 000698836 Status Of Incorporation: INACTIVE 5: JEEPERS: INC. For internal use only SDNY_GM_00054623 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17447 EFTA_00I65193 EFTA01295416 Page 4 5: JEEPERS: INC. Company Name: JEEPERS: INC. Date Of Incorporation: 3/23/2000 Charter Number: 000698836 Status Of Incorporation: INACTIVE 6: JEEPERS: INC. Company Name: JEEPERS: INC. Date Of Incorporation: 3/2312000 Charter Number: 000698836 Status Of Incorporation: INACTIVE 7: JEEPERS HOLDING CORP. Company Name: JEEPERS HOLDING CORP. Date Of Incorporation: 12/15/1998 State Of Incorporation: MA Charter Number: 000639586 Status Of Incorporation: INACTIVE 8: JEEPERS HOLDING CORP. Company Name: JEEPERS HOLDING CORP. Date Of Incorporation: 12/15/1998 State Of Incorporation: MA Charter Number: 000639586 Status Of Incorporation: INACTIVE 9: JEEPERS HOLDING CORP. Company Name: JEEPERS HOLDING CORP. Date Of Incorporation: 12/15/1998 State Of Incorporation: MA Charter Number: 000639586 Status Of Incorporation: INACTIVE Executives -15 records found # Name Titles 1. ALMARAZ, JENNIE TREASURER, CONTROLLER, CONTROLLER 2. ALMARAZ. JENNIE TREASURER 3. NADINE CEO, CEO, PRESIDENT, PRESIDENT 4. CONNOLLY. , MARY-ELISE PRESIDENT. PRESIDENT, SECRETARY 5. CONNOLLY. MARY-ELISE SECRETARY 6. DAVIS. JOMATHAN OWNER, OWNER 7. DEVINE, JOHN PRESIDENT 8. EAGAN, PAT MANAGER 9. EL, HAGE CHAIRMAN 0 10. ELHAGE. NABIL PRESIDENT. TREASURER 11. EL-HAGE, NABIL OWNER, PRESIDENT, PRESIDENT, PRESIDENT, TREASURER 12. HAGE, EL CHAIRMAN 0 13. RAGE, NABIL E PRESIDENT 14. MARSH. NORMAN HUMAN RESOURCES EXECUTIVE. SALES EXECUTIVE, MANAGER 15. SANGINARIO, KENNETH J TREASURER Registered Agents - 3 records found # Name Address 1. C T CORPORATION SYSTEM 155 FEDERAL ST STE 700 BOSTON, MA 02110- 1727 2. MARYELISE CONNOLLY 800 SOUTH ST STE 355 WALTHAM. MA 02453- 1457 3. NADINE BARDURY 800 SOUTH ST STE 355 WALTHAM, MA 02453- For internal use only SDNY_GM_00054624 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0017448 EFTA 0(1165194 EFTA01295417 Page 5 # Name Address 1457 Industry Information - 9 records found Industry Numbers SIC Codes: 5511 Car & Truck Dealers, New & Used 5621 WOMENS READY-TO-WEAR STORES 5812 Restaurants 5900 MISCELLANEOUS RETAIL STORES 7929 ENTERTAINERS & ENTERTAINMENT GRPS 7993 Amusement Devices, Coin-Operated 7996 Amusement Parks 7999 Amusement & Recreation Services, N 8351 Child Day Care Services Company ID Numbers - 6 records found Company ID Numbers FEINs: Sec. of State Charter No(s): MA, 000639586 MA, 000698836 MA. 000869922 Judgments and Liens - 25 records found 1: MD Judgments and Liens Filings Debtor Information Original Name: JEEPERS Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453.1457 Debtor Company Name: JEEPERS Tax Id Debtor Information Original Name: JEEPERS OF MD INC Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453.1457 Debtor Company Name: JEEPERS OF MD INC Creditor Information Name: STATE OF MARYLAND Filing Information Jurisdiction: MD Amount: $15,425 Original Filing Date: 5/8/2008 Filing 1 Number: 24L08003730 Type: STATE TAX LIEN Book: 32 Page: 73 Agency: BALTIMORE CITY CIRCUIT COURT Agency State: MD Agency County: BALTIMORE (CITY) 2: OH Judgments and Liens Filings Debtor Information Original Name: HERD. JOEY Address: 800 SOUTH ST STE WALTHAM, MA 02453-1478 Debtor For internal use only SDNY_GM_00054625 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17449 EFTA_00165195 EFTA01295418 Page 6 2: OH Judgments and Liens Filings Name: HERD. JOEY Debtor Information Original Name: JEEPERS Address: 800 SOUTH ST STE WALTHAM. MA 02453-1478 Debtor Company Name: JEEPERS Tax Id: Creditor Information Name: VALPAK OF CLEVELAND Filing Information Jurisdiction: OH Amount: $846 Original Filing Date: 12/28/2006 Filing 1 Number: 06CVI03370 Type: SMALL CLAIMS JUDGMENT Agency: EUCLID MUNICIPAL Agency State: OH Agency County: CUYAHOGA 3: MA Judgments and Liens Filings Debtor Information Original Name: JEEPERS INC Address: 800 SOUTH ST STE 480 WALTHAM. MA 02453-1491 Debtor Company Name:alliC Tax Id: Creditor Information Name: FERRARO FOODS INC Filing Information Jurisdiction: MA Amount: $82,793 Original Filing Date: 9/26/2006 Filing 1 Number: 200651CV000271 Type: CIVIL JUDGMENT Agency: WALTHAM DIVISION DISTRICT COURT #51 Agency State: MA Agency County: MIDDLESEX 4: MD Judgments and Liens Filings Debtor Information Original Name: JEEPERS Address: 800 SOUTH ST WALTHAM. MA 02453-1478 Debtor Company Name: JEEPERS Tax Id: Debtor Information Original Name: JEEPERS OF MD INC Address: 800 SOUTH ST WALTHAM, MA 02453-1478 Debtor Company Name: JEEPERS OF MD INC Creditor Information Name: STATE OF MARYLAND Filing Information Jurisdiction: MD Amount: $158,266.01 Original Filing Date: 8/31/2006 For internal use only SDNY_GM_00054626 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-00 17450 EFTA_00165196 EFTA01295419 Page 7 4: MD Judgments and Liens Filings Case Number: SL-06005615-2006- Status: UPDATES MAY BE PRESENT ELSEWHERE IN THIS REPORT. CHECK THE COURT FOR THE CURRENT STATUS Filing 1 Number: 06-5615 Type: STATE TAX LIEN Agency: MARYLAND CIRCUIT COURT Agency State: MD Agency County: BALT CITY 5: MA Judgments and Liens Filings Debtor Information Original Name: JEEPERS INC Address: 800 SOUTH ST WALTHAM. MA 02453-1478 Debtor Company Name: JEEPERS INC Tax Id il lErinformation Name: TUDOR INSURANCE CO Filing Information Jurisdiction: MA Amount: $19.924 Original Filing Date: 6/12/2006 Filing 1 Number: 200651CV000008 Type: CIVIL JUDGMENT Agency: WALTHAM DIVISION DISTRICT COURT #51 Agency State: MA Agency County: MIDDLESEX 6: MA Judgments and Liens Filings Debtor Information Original Name: JEEPERS INC Address: 800 SOUTH ST STE 480 WALTHAM, MA 02453.1491 Debtor Company Name: JEEPERS INC Tax Id: Creditor Information Name: UNIQUE INDUSTRIES INC Filing Information Jurisdiction: MA Amount: $9.369 Original Filing Date: 6/6/2006 Filing 1 Number: 200651CV000267 Type: CIVIL JUDGMENT Agency: WALTHAM DIVISION DISTRICT COURT #51 Agency State: MA Agency County: MIDDLESEX 7: PA Judgments and Liens Filings Debtor Information Original Name: JEEPERS Address: 8321 CONCORD MILLS BLVD CONCORD, NC 28027.6460 Debtor Company Name: JEEPERS Creditor Information Name: SLUSH PUPPIE TRI STATE. INC. For internal use only SDNY_GM_00054627 CONFIDENTIAL - PURSUANT TO FED. R.cON(F IDENTIAL DB-SDNY-0017451 EFTA_00165197 EFTA01295420 Page 8 7: PA Judgments and Liens Filings Filing Information Jurisdiction: PA Amount: $650 Original Filing Date: 2/22/2006 Filing 1 Number: CV000006906 Type: CIVIL NEW FILING Agency: BEAVER CTY DIST JUSTICE-36-3-03 Agency State: PA Agency County: BEAVER 8: PA Judgments and Liens Filings Debtor Information Original Name: JEEPERS Address: 8321 CONCORD MILLS BLVD CONCORD. NC 28027-6460 Debtor Company Name: JEEPERS Creditor Information Name: SLUSH PUPPIE TRI STATE INC Filing Information Jurisdiction: PA Original Filing Date: 2/22/2006 Release Date: 5/23/2006 Filing 1 Number: CV000006906 Type: CIVIL DISMISSAL Agency: BEAVER CTY DIST JUSTICE-36.3.03 Agency State: PA Agency County: BEAVER 9: PA Judgments and Liens Filings Debtor Information Original Name: JEEPERS Address: 8321 CONCORD MILLS BLVD CONCORD. NC 28027-6460 Debtor Company Name: JEEPERS Creditor Information Name: SLUSH PUPPIE TRI STA , TE INC. Filing Information Jurisdiction: PA Amount: $650.67 Original Filing Date: 2/22/2006 Case Number: CV-00000069-2006-VG Status: UPDATES MAY BE PRESENT ELSEWHERE IN THIS REPORT. CHECK THE COURT FOR THE CURRENT STATUS Filing 1 Number: CV-0000069-06 Agency State: PA Agency County: BEAVER 10: MD Judgments and Liens Filings Debtor Information Original Name: JEEPERS OF INC Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453.1457 Debtor Company Name: JEEPERS OF INC Tax Id Ior tformation For internal use only SDNY_GM_00054628 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-00 17452 EFTA_00165198 EFTA01295421 Page 9 10: MD Judgments and Liens Filings Original Name: JUNGLE JIMS PLAYLANDS SVCORP TRU Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Debtor Company Name: JUNGLE JIMS PLAYLANDS SVCORP TRU Creditor Information Name: PR GEORGES CO MD Filing Information Jurisdiction: MD Amount: $17,947 Original Filing Date: 12/14/2005 Release Date: 11/14/2011 Filing 1 Number: 050200276982005 Type: SMALL CLAIMS JUDGMENT RELEASE Agency: PRINCE GEORGES DISTRICT COURT Agency State: MD Agency County: PRINCE GEORGES 11: NC Judgments and Liens Filings Debtor Information Original Name: JEEPERS Address: 800 SOUTH ST STE 480 WALTHAM, MA 02453.1491 Debtor Company Name: Tax Id: Debtor Information Original Name: JEEPERS OF GASTONIA INC Address: 800 SOUTH ST STE 480 WALTHAM. MA 02453-1491 Debtor Company Name: JEEPERS OF GASTONIA INC Tax Id Ligrliormation Name: STATE OF NORTH CAROLINA Filing Information Jurisdiction: NC Amount: $569 Original Filing Number: 2005M001005 Original Filing Date: 11/28/2005 Release Date: 3/2/2006 Filing 1 Number: 2005M001005 Type: STATE TM LIEN RELEASE Agency: GASTON COUNTY SUPERIOR COURT Agency State: NC Agency County: GASTON 12: MD Judgments and Liens Filings Debtor Information Original Name: JEEPERS OF INC Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453.1457 Debtor Company Name: JEEPERS OF INC Tax Id: IIMI LIMr Information Name: PR GEORGES CO MD Filing Information Jurisdiction: MD Amount: $16,265 Original Filing Date: 9/7/2005 For internal use only SDNY_GM_00054629 CONFIDENTIAL - PURSUANT TO FED. R.Q11;)N(F IDENTIAL DB-SDNY-00 17453 EFTA_00165199 EFTA01295422 Page 10 12: MD Judgments and Liens Filings Filing 1 Number: 050200276982005 Type: CIVIL NEW FILING Agency: PRINCE GEORGES DISTRICT COURT Agency State: MD Agency County: PRINCE GEORGES 13: OH Judgments and Liens Filings Debtor Information Original Name: JEEPERS INC Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453.1457 Debtor Company Name: JEEPERS INC Tax Id: I MPlormatIon Name: CDC RANDALL PARK MALL TRUST Filing Information Jurisdiction: OH Amount: $250.000 Original Filing Date: 10/17/2003 Filing 1 Number CV03501132 Type: CIVIL JUDGMENT Agency: CUYAHOGA COUNTY COMMON PLEAS Agency State: OH Agency County: CUYAHOGA 14: FL Judgments and Liens Filings Debtor Information Original Name: JEEPERS INC Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Debtor Company Name: JEEPERS INC Tax Id: Creditor Information Name: PLAY TIME TOYS INC Filing Information Jurisdiction: FL Amount: $7,249 Original Filing Date: 2/20/2003 Number: Type: Book: Page: Agency: Agency State: Agency County: Filing 1 CCO035273 CIVIL JUDGMENT 6805 4455 ORANGE COUNTY CIRCUIT COURT FL ORANGE 15: FL Judgments and Liens Filings Debtor Information Original Name: JEEPERS INC Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Debtor Company Name: Tax Id: formation For internal use only SDNY_GM_00054630 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0017454 EFTA_00 165200 EFTA01295423 Page I 1 15: FL Judgments and Liens Filings Name: PLAY TIME TOYS INC Filing Information Jurisdiction: FL Original Filing Date: 1/3/2003 Filing 1 Number: 48CC2003000052 Type: CIVIL NEW FILING Agency: ORANGE COUNTY CIRCUIT COURT Agency State: FL Agency County: ORANGE 16: SANGAMON COUNTY, Original Name: Address: Company Name: Tax Id: Original Name: Address: Company Name: Tax Id: Jurisdiction: Amount: Original Filing Date: Filing State: Case Number: ILLINOIS Judgments and Liens Filings Debtor Information JEEPERS 800 SOUTH ST STE 355 WALTHAM. MA 02453 FEIN:04-3331674 JEEPERS OF ILLINOIS INC 800 SOUTH ST STE 355 WALTHAM, MA 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Debtor JEEPERS omution JEEPERS 800 SOUTH ST STE 355 WALTHAM, MA 02453 FEIN:04-3331674 JEEPERS OF ILLINOIS INC 800 SOUTH ST STE 355 WALTHAM, MA 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Debtor JEEPERS OF ILLINOIS INC Filing Information SANGAMON COUNTY. ILLINOIS $208,826.79 5/2/2002 IL 2004R13499 Filing 1 Number: 2002R23728 Date: 3/22/2004 Type: ILLINOIS TAX RELEASE Agency State: IL 17: IL Judgments and Lien Original Name: Address: s Filings Debtor Information JEEPERS 800 SOUTH ST STE 355 WALTHAM, MA 02453.1457 Debtor Company Name: Tax Id: Original Name: Address: Company Name: Tax Id: Debtor Information JEEPERS OF IL INC 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Debtor amp IL INC Original Name: Address: Company Name: Tax Id: Name: JEEPERS or Information JEEPERS OF ILLINOIS INC 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Debtor JEEPERS OF ILLINOIS INC Creditor Information STATE OF ILLINOIS For internal use only SDNY_GM_00054631 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0017455 EFTA_00165201 EFTA01295424 Page I2 17: IL Judgments and Liens Filings Filing Information Jurisdiction: IL Amount: $208,826 Original Filing Number: 2002R23728 Original Filing Date: 5/22002 Release Date: 3/22/2004 Filing 1 Number: Type: Page: Agency: Agency State: Agency County: Number: Type: Page: Agency: Agency State: Agency County: 2004R13499 STATE TAX LIEN RELEASE 231 SANGAMON RECORDER OF DEEDS IL SANGAMON Filing 2 2002R23728 STATE TAX LIEN 523 SANGAMON RECORDER OF DEEDS IL SANGAMON 18: Judgments and Liens Filings Debtor Information Original Name: JEEPERS Address: 60 HICKORY DR WALTHAM. MA 02451-1013 Debtor Company Name: M. Tax Id: Debtor Information Original Name: JEEPERS OF NYACK INC Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor Company Name: JEEPERS OF NYACK INC Creditor Information Name: WORKERS COMPENSATION BOARD OF NYS Filing Information Amount: $1,250 Original Filing Date: 1/30/2002 Case Number: 81502 Filing 1 Type: JUDGMENT Agency State: NY 19: PA Judgments and Liens Filings Debtor Information Original Name: JEEPERS, INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor Company Name: JEEPERS, INC Tax Id: nformation Name: KANE BUILDERS. INC Filing Information Jurisdiction: PA Amount: $23,989.54 Original Filing Date: 3/27/2001 Case Number: SC-00050702-2001- Status: UPDATES MAY BE PRESENT ELSEWHERE IN THIS REPORT. CHECK THE COURT FOR THE CURRENT STATUS Filing 1 For internal use only SDNY_GM_00054632 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17456 EFTA 00165202 EFTA01295425 Page 13 19: PA Judgments and Liens Filings Number: 01 50702 Type: CIVIL SUIT Agency: COURT OF COMMON PLEAS Agency State: PA Agency County: DELAWARE 20: TX Judgments and Liens Filings Debtor Information Original Name: JEEPERS INC Address: 60 HICKORY DR WALTHAM. MA 02451-1013 Debtor Company Name: Tax Id: or Information Name: DELL MARKETING L P Filing Information Jurisdiction: TX Amount: $88,194 Original Filing Date: 10t24/2000 Number: Type: Book: Page: Agency: Agency State: Agency County: Filing 1 253065 CIVIL JUDGMENT 371 746 TRAVIS COUNTY COURT-AUSTIN TX TRAVIS 21: Judgments and Liens Filings Debtor Information Original Name: JEEPERS INC Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor Company Name: JEEPERS INC Tax Id: itor Information Name: TROY PILTZ Filing Information Amount: $2,019 Original Filing Date: 8/14/2000 Case Number: 0051SC0685 Filing 1 Type: JUDGMENT Agency State: MA 22: PA Judgments and Liens Filings Debtor Information Original Name: JEEPERS INC Address: 60 HICKORY DR WALTHAM. MA 02451-1013 Debtor Company Name: M. Tax Id: Creditor Information Name: DELTRONIC LABS INC Address: 120 LIBERTY LN CHALFONT. PA 18914.1820 Filing Information Jurisdiction: PA Original Filing Date: 2/28/2000 Case Number: SC-00001203.2000- For internal use only SDNY_GM_00054633 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17457 EFTA 00165203 EFTA01295426 Page 14 22: PA Judgments and Liens Filings Status: UPDATES MAY BE PRESENT ELSEWHERE IN THIS REPORT, CHECK THE COURT FOR THE CURRENT STATUS Filing 1 Number: 00-01203 Type: CIVIL SUIT Agency: COURT OF COMMON PLEAS Agency State: PA Agency County: BUCKS 23: NJ Judgments and Liens Filings Debtor Information Original Name: JEEPERS INC Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor IFPPPPC me' Company Name• Tax I Debtor rmation Original Name: JEEPERS OF JERSEY GARDENS INC Address: 60 HICKORY DR WALTHAM. MA 02451-1013 Debtor Company Name: JEEPERS OF JERSEY GARDENS INC Debtor Information Original Name: JEEPERS OF NJ INC Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor Company Name: JEEPERS OF NJ INC Debtor Information Original Name: JOHN DOE Name: Original Name: Address: Name: SSN: Original Name: Address: Name: Original Name: Address: Company Name: Original Name: Name: Name: Jurisdiction: Amount: Original Filing Date: Case Number: Status: Debtor DOE. JOHN Debtor Information KENNETH J SANGINARIO 60 HICKORY DR WALTHAM. MA 02451-1013 Debtor SANGINARIO. KENNETH J Debtor Information NABIL EL-HAGE 60 HICKORY DR WALTHAM. MA 02451-1013 Debtor ELHAGE. NABIL Debtor Information NJ METROMALL URBAN RENEWAL INC 20 S 3RD ST COLUMBUS, OH 43215-4206 Debtor NJ METROMALL URBAN RENEWAL INC Debtor Information RICHARD ROE Debtor ROE, RICHARD Creditor Information C RAIMONDO & SONS CONSTRUCTION Filing Information NJ $1,105,000 1/13/2000 SL-00000201-2000- UPDATES MAY BE PRESENT ELSEWHERE IN THIS REPORT: CHECK THE COURT FOR THE CURRENT STATUS Filing 1 For internal use only SDNY_GM_00054634 CONFIDENTIAL - PURSUANT TO FED. R.ctQN(F IDENTIAL DB-SONY-00 17458 EFTA 00165204 EFTA01295427 Page IS 23: NJ Judgments and Liens Filings Number: L 000201 00 Type: CIVIL SUIT Agency: NEW JERSEY SUPERIOR COURT LAW DIVISION Agency State: NJ Agency County: UNION 24: Judgments and Liens Filings Debtor Information Original Name: JEEPERS INC Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor Company Name: JEEPERS INC Tax Id: Creditor Information Name: DETROIT NEWSPAPER Filing Information Amount: $7.993 Original Filing Date: 9/14/1999 Case Number: 9951CV0595 Filing 1 Type: JUDGMENT Agency State: MA 25: COOK COUNTY, ILLINOIS - 6TH MUNICIPAL DISTRICT Judgments and Liens Filings Original Name: Address: Company Name: Original Name: Address: Name: Name: Jurisdiction: Amount: Original Filing Date: Filing State: Case Number: Date: Type: Agency State: Debtor Information JEEPERS 17677 TORRENCE LANSING. IL 60438-4839 SWENTO; STEVE 17677 TORRENCE LANSING. IL 60438-4839 17677 TORRENCE AVE LANSING. IL 60438-4839 Debtor JEEPERS Debtor Information JEEPERS 17677 TORRENCE LANSING. IL 60438-4839 SWENTO: STEVE 17677 TORRENCE LANSING, IL 60438.4839 17677 TORRENCE AVE LANSING, IL 60438-4839 Debtor SWENTO, STEVE Creditor Information ADLER, HERBERT Filing Information COOK COUNTY. ILLINOIS - 6TH MUNICIPAL DISTRICT $130 8/30/1999 IL 99M6 0004170 Filing 1 2/3/2000 DISMISSED JUDGMENT IL UCC Liens - 100 records found 1:AZ UCC LIEN FILING Debtor Information Debtor 1 Name: JEEPERS INC Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor 2 Name: JEEPERS INC Address: 63 SOUTH AVE BURLINGTON. MA 01803-4903 For internal use only SDNY_GM_00054635 CONFIDENTIAL - PURSUANT TO FED. R.ctc;IN(f IDENTIAL DB-SDNY-00 17459 EFTA_00 165205 EFTA01295428 Page 16 1:AZ UCC LIEN FILING Debtor 3 Name: JEEPERS! INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Secured 1 Name: FLEET NATIONAL BANK Address: 1 FEDERAL ST BOSTON. MA 02211-0001 Secured 2 Name: LEASING TECHNOLOGIES INTERNATIONAL INC Address: 221 DANBURY RD WILTON. CT 06897-4007 Secured 3 Name: LEASING TECHNOLOGIES INTERNATIONAL. INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Assignee Information Name: FLEET NATIONAL BANK Address: 1 FEDERAL ST MC MAOFD07A BOSTON, MA 02211-0001 Filing Information Original Filing Number: 1051281 Original Filing Date: 1/29/1999 Filing 1 Filing Type: AMENDMENT Pages: 100 Filing Number: 1051281 Filing Date: 9/5/2000 Expiration Date: 1/29/2005 Filing 2 Filing Type: ASSIGNMENT Filing Date: 6/1/1999 Filing Number: 1051281 Filing 3 Filing Type: INITIAL FILING Filing Date: 1/29/1999 Filing Number: 1051281 Filing Offices Address: 1760 W WASHINGTON AVE PHOENIX, AZ 85007 Filing Agency: SECRETARY OF STATE UCC DIVISION Collateral Information Description: 01/29/1999 1051281 - EQUIPMENT 2:AZ UCC LIEN FILING Debtor Information Debtor 1 Name: JEEPERS INC Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor 2 Name: JEEPERS INC Address: 63 SOUTH AVE BURLINGTON, MA 01803-4903 Debtor 3 Name: JEEPERS! INC. Address: 60 HICKORY DR WALTHAM. MA 02451-1013 Secured Party Information Secured 1 Name: FLEET NATIONAL BANK Address: 1 FEDERAL ST BOSTON. MA 02211-0001 Secured 2 Name: LEASING TECHNOLOGIES INTERNATIONAL INC Address: 221 DANBURY RD WILTON. CT 06897.4007 Secured 3 Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON, CT 06897.4007 For internal use only SDNY_GM_00054636 CONFIDENTIAL - PURSUANT TO FED. R.CCANI(E IDENTIAL DB-SDNY-00 17460 EFTA_00 165206 EFTA01295429 Page 17 2:AZ UCC LIEN FILING Assignee Information Name: FLEET NATIONAL BANK Address: 1 FEDERAL ST MC MAOFD07A BOSTON. MA 02211-0001 Filing Information Original Filing Number: 1051282 Original Filing Date: 1/29/1999 Filing 1 Filing Type: AMENDMENT Pages: 100 Filing Number: 1051282 Filing Date: 9/5/2000 Expiration Date: 1/29,2005 Filing 2 Filing Type: ASSIGNMENT Filing Date: 6/1/1999 Filing Number: 1051282 Filing 3 Filing Type: INITIAL FILING Filing Date: 1/29/1999 Filing Number: 1051282 Filing Offices Address: 1700 W WASHINGTON AVE PHOENIX, AZ 85007 Filing Agency: SECRETARY OF STATE UCC DIVISION Collateral Information Description: 01/29/1999 1051282 - EQUIPMENT 3:AZ UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 4:DE UCC LIEN FILING Debtor Information JEEPERSL INC. 60 HICKORY DR WALTHAM. MA 02451-1013 Secured Party Information IMPERIAL BANK 226 AIRPORT PKWY SAN JOSE. CA 95110-1004 Filing Information 01021809 6/23/1998 INITIAL FILING 6/23/1998 01021809 Filing Offices 1700 W WASHINGTON AVE PHOENIX, AZ 85007 SECRETARY OF STATE UCC DIVISION Collateral Information 06/23/1998 01021809 - ACCOUNTS RECEIVABLE INCLUDING PROCEEDS AND PRODUCTS,CHATTEL PAPER INCLUDING PROCEEDS AND PRODUCTS,ACCOUNT(S) INCLUDING PROCEEDS AND PRODUCTS:FIXTURES INCLUDING PROCEEDS AND PRODUCTS:EQUIPMENT INCLUDING PROCEEDS AND PRODUCTS:INVENTORY INCLUDING PROCEEDS AND PRODUCTS.GENERAL INTANGIBLE(S) INCLUDING PROCEEDS AND PRODUCTS,CONTRACT RIGHTS INCLUDING PROCEEDS AND PRODUCTS:NEGOTIABLE INSTRUMENTS INCLUDING PROCEEDS AND PRODUCTS:PARTNERSHIP INTERESTS Debtor Information Name: JEEPERS! INC. Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. For internal use only SDNY_GM_00054637 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0017461 EFTA_00 165207 EFTA01295430 Page 18 4:DE UCC LIEN FILING Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 5:DE UCC LIEN FILING 221 DANBURY RD WILTON, CT 06897-4007 Filing Information 4295798 5 10/15/2004 INITIAL FILING 10/15/2004 4295798 5 Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 10/15/2004 4295798 5 - EQUIPMENT LEASED:COMPUTER EQUIPMENT LEASED Debtor Information Name: JEEPERS' INC. Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL INC. Address: 221 DANBURY RD WILTON, CT 06897-4007 Filing Information Original Filing Number: 4296262 1 Original Filing Date: 10/15/2004 Filing Type: INITIAL FILING Filing Number: 4296262 1 Filing Date: 10/15/2004 Contract Type: LEASE Filing Offices Address: FEDERAL & DUKE OF YORK STS DOVER. DE 19901 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 10/15/2004 4296262 1 - EQUIPMENT LEASED:COMPUTER EQUIPMENT LEASED:FIXTURES LEASED 6:DE UCC LIEN FILING Debtor Information Name: JEEPERS! INC. Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Filing Information Original Filing Number: 4296266 2 Original Filing Date: 10/15/2004 Filing Type: INITIAL FILING Filing Date: 10/15/2004 Filing Number: 4296266 2 Filing Offices Address: FEDERAL & DUKE OF YORK STS DOVER. DE 19901 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 10/15/2004 4296266 2 - COMPUTER EQUIPMENT LEASED:EQUIPMENT LEASED 7:DE UCC LIEN FILING Debtor Information Name: JEEPERS! INC. Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information For internal use only SDNY_GM_00054638 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17462 EFTA 00165208 EFTA01295431 Page 19 7:DE UCC LIEN FILING Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 8:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 9:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 10:DE UCC LIEN FILING LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON. CT 06897-4007 Filing Information 4296270 4 10/15/2004 INITIAL FILING 10/15/2004 4296270 4 Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 10/15/2004 4296270 4 - EQUIPMENT LEASED Debtor Information JEEPERS' INC. 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL INC. 221 DANBURY RD WILTON, CT 06897-4007 Filing Information 4296274 6 10/15/2004 INITIAL FILING 10/15/2004 4296274 6 Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 10/15/2004 4296274 6 - COMPUTER EQUIPMENT LEASED:EQUIPMENT LEASED:FIXTURES LEASED Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON. CT 06897-4007 Filing Information 4296278 7 10/15/2004 INITIAL FILING 10/15/2004 4296278 7 Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 10/15/2004 4296278 7 - EQUIPMENT LEASED Debtor Information Debtor 1 Name: JEEPERS' INC. Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453.1457 Debtor 2 Name: JEEPERS! INC.. For internal use only SDNY_GM_00054639 CONFIDENTIAL - PURSUANT TO FED. R.WN(F IDENTIAL DB-SDNY-00 17463 EFTA 00165209 EFTA01295432 Page 20 10:DE UCC LIEN FILING Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: Description: 11:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 12:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL INC. 221 DANBURY RD WILTON. CT 06897-4007 Filing Information 4296280 3 10/15/2004 Filing 1 AMENDMENT 1/11/2005 5014385 0 Filing 2 INITIAL FILING 10/15/2004 4296280 3 Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information Collateral 1 01/11/2005 5014385 0 - EQUIPMENT Collateral 2 10/15/2004 4296280 3 - EQUIPMENT LEASED Debtor Information JEEPERS' INC. 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL. INC. 221 DANBURY RD WILTON. CT 06897-4007 Filing Information 4296285 2 10/15/2004 INITIAL FILING 10/15/2004 4296285 2 Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 10/15/2004 4296285 2 - EQUIPMENT LEASED Debtor Information JEEPERS' INC. 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON. CT 06897-4007 Filing Information 4296290 2 10/15/2004 INITIAL FILING 10/15/2004 4296290 2 Filing Offices FEDERAL & DUKE OF YORK STS DOVER. DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information For internal use only SDNY_GM_00054640 CONFIDENTIAL - PURSUANT TO FED. R.CCANI(E IDENTIAL DB-SDNY-00 17464 EFTA 00165210 EFTA01295433 Page 21 12:DE UCC LIEN FILING Description: 10/15/2004 4296290 2 - EQUIPMENT LEASED 13:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 14:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 15:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 16:DE UCC LIEN FILING Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON. CT 06897.4007 Filing Information 4296295 1 10/15/2004 INITIAL FILING 10/15/2004 4296295 1 Filing Offices FEDERAL & DUKE OF YORK STS DOVER. DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 10/15/2004 4296295 1 - EQUIPMENT LEASED Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453.1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON, CT 06897-4007 Filing Information 4296304 1 10/15/2004 INITIAL FILING 10/15/2004 4296304 1 Filing Offices FEDERAL & DUKE OF YORK STS DOVER. DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 10/15/2004 4296304 1 - EQUIPMENT LEASED Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON. CT 06897.4007 Filing Information 4296307 4 10/15/2004 INITIAL FILING 10/15/2004 4296307 4 Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 10/15/2004 4296307 4 - EQUIPMENT LEASED For internal use only SDNY_GM_00054641 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SDNY-00 17465 EFTA_00 I 6521 I EFTA01295434 Page 22 16:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 17:DE UCC LIEN FILING Name: Address: Name: Address: Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Filing Type: Filing Date: Filing Number: Filing Type: Filing Date: Filing Number Filing Type: Filing Date: Filing Number Address: Filing Agency: Description: Description: Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON, CT 06897-4007 Filing Information 4296308 2 10/15/2004 INITIAL FILING 10/15/20O4 4296308 2 Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 10/15/2004 4296308 2 - EQUIPMENT LEASED Debtor Information Debtor 1 JEEPERS' INC 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Debtor 2 JEEPERS) INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL. INC. 221 DANBURY RD WILTON, CT 06897-4007 Assignee Information GLOBAL ENTERTAINMENT VENTURES, LLC 153 N MAIN WESTON, MA 02493 Filing Information 4296398 3 10/15/2004 Filing 1 ASSIGNMENT 9/19/2006 6323725 2 Filing 2 AMENDMENT 9/14/2006 6317973 6 Filing 3 AMENDMENT 9/13/2006 6317068 5 Filing 4 INITIAL FILING 10/15/20O4 4296398 3 Filing Offices FEDERAL & DUKE OF YORK STS DOVER. DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information Collateral 1 09/14/2006 6317973 6 - VEHICLES.EQUIPMENT Collateral 2 09/13/2006 6317068 5 - EQUIPMENT:VEHICLES Collateral 3 For internal use only SDNY_GM_00054642 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0017466 EFTA 00165212 EFTA01295435 Page 23 17:DE UCC LIEN FILING Description: 10/15/2004 4296398 3 - EQUIPMENT 18:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 19:DE UCC LIEN FILING Name: Address: Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 20:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON. CT 06897.4007 Filing Information 3306601 9 11/20/2003 INITIAL FILING 11/20/2003 3306601 9 Filing Offices FEDERAL & DUKE OF YORK STS DOVER. DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/202003 3306601 9 - UNSPECIFIED Debtor Information Debtor 1 JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Debtor 2 JEEPERS) INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information FLEET NATIONAL BANK 1 FEDERAL STREET MC MAOFD07A BOSTON, MA 02211-0001 Filing Information 3306605 0 11/20/2003 INITIAL FILING 11/20/2003 3306605 0 Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/20/2003 3306605 0 - UNSPECIFIED Debtor Information JEEPERS' INC. 800 SOUTH ST STE 355 WALTHAM. MA 02453.1457 Secured Party Information FIRST UNION NATIONAL BANK. AS AGENT 1339 CHESTNUT ST PHILADELPHIA, PA 19107-3519 Filing Information 3306610 0 11/20/2003 INITIAL FILING 11/20/2003 3306610 0 Filing Offices FEDERAL & DUKE OF YORK STS DOVER. DE 19901 SECRETARY OF STATE/UCC DIVISION For internal use only SDNY_GM_00054643 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17467 EFTA 00165213 EFTA01295436 Page 24 20:DE UCC LIEN FILING Collateral Information Description: 11/20/2003 3306610 0 - UNSPECIFIED 21:DE UCC LIEN FILING Debtor Information Debtor 1 Name: JEEPERS! INC. Debtor 2 Name: JEEPERS! INC. Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information Secured 1 Name: GLOBAL ENTERTAINMENT VENTURES. LLC Secured 2 Name: IMPERIAL BANK Address: 226 AIRPORT PKWY SAN JOSE, CA 95110-1004 Assignee Information Name: GLOBAL ENTERTAINMENT VENTURES. LLC Address: 153 NORTH AVE WESTON. MA 02493-2032 Filing Information Original Filing Number: 1168287 6 Original Filing Date: 12/12/2001 Filing 1 Filing Type: CONTINUATION Filing Date: 126/2006 Filing Number: 6423089 2 Filing 2 Filing Type: INITIAL FILING Filing Date: 12/12/2001 Filing Number: 1168287 6 Filing Offices Address: FEDERAL 8 DUKE OF YORK STS DOVER, DE 19901 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 12/12/2001 1168287 6 - ALL ASSETS 22:DE UCC LIEN FILING Debtor Information Debtor 1 Name: JEEPERS! FRANCHISE, INC. Debtor 2 Name: JEEPERS! FRANCHISE. INC. Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information Secured 1 Name: GLOBAL ENTERTAINMENT VENTURES. LLC Secured 2 Name: IMPERIAL BANK Address: 226 AIRPORT PKWY SAN JOSE, CA 95110-1004 Assignee Information Name: GLOBAL ENTERTAINMENT VENTURES. LLC Address: 153 NORTH AVE WESTON, MA 02493-2032 Filing Information Original Filing Number: 1168369 2 Original Filing Date: 127122001 Filing Type: Filing Date: Filing Number Filing 1 CONTINUATION 12/5/2006 6423208 8 Filing 2 For internal use only SDNY_GM_00054644 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17468 EFTA 00165214 EFTA01295437 Page 25 22:DE UCC LIEN FILING Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 23:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 24:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number Address: Filing Agency: Description: 25:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number INITIAL FILING 12/12/2001 1168369 2 Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 12/12/2001 1168369 2 - ALL ASSETS Debtor Information JEEPERS' INC. 800 SOUTH ST STE 355 WALTHAM. MA 02453.1457 Secured Party Information MOSS DISTRIBUTING. INC. 1801 GUTHRIE AVE DES MOINES, IA 50316-2735 Filing Information 1166348 8 11/13/2001 INITIAL FILING 11/13/2001 1166348 8 Filing Offices FEDERAL & DUKE OF YORK STS DOVER. DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/13/2001 1166348 8 - EQUIPMENT Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL INC. 221 DANBURY RD WILTON. CT 06897.4007 Filing Information 1159066 5 11/5/2001 INITIAL FILING 11/5/2001 1159066 5 Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/05/2001 1159066 5 - EQUIPMENT LEASED Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON. CT 06897-4007 Filing Information 1159067 3 11/5/2001 INITIAL FILING 11/5/2001 1159067 3 For internal use only SDNY_GM_00054645 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-0017469 EFTA_00 165215 EFTA01295438 Page 26 25:DE UCC LIEN FILING Address: Filing Agency: Description: 26:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 27:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 28:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Filing Offices FEDERAL & DUKE OF YORK STS DOVER. DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/05/2001 1159067 3 - EQUIPMENT LEASED Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON, CT 06897.4007 Filing Information 1159069 9 11/5/2001 INITIAL FILING 11/5/2001 1159069 9 Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/05/2001 1159069 9 - EQUIPMENT LEASED Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON. CT 06897.4007 Filing Information 1159074 9 11/5/2001 INITIAL FILING 11/5/2001 1159074 9 Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/05/2001 1159074 9 - EQUIPMENT LEASED Debtor Information JEEPERS' INC. 800 SOUTH ST STE 355 WALTHAM. MA 02453.1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON, CT 06897-4007 Filing Information 1159079 8 11/5/2001 INITIAL FILING 11/5/2001 1159079 8 Filing Offices FEDERAL & DUKE OF YORK STS DOVER. DE 19901 SECRETARY OF STATE/UCC DIVISION For internal use only SDNY_GM_00054646 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17470 EFTA 00165216 EFTA01295439 Page 27 28:DE UCC LIEN FILING Collateral Information Description: 11/05/2001 1159079 8 - EQUIPMENT LEASED 29:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 30:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 31:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: Debtor Information JEEPERS' INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453.1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON, CT 06897-4007 Filing Information 1159080 6 11/5/2001 INITIAL FILING 11/5/2001 1159080 6 Filing Offices FEDERAL 8 DUKE OF YORK STS DOVER. DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/05/2001 1159080 6 - EQUIPMENT LEASED Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON. CT 06897-4007 Filing Information 1159082 2 11/5/2001 INITIAL FILING 11/5/2001 1159082 2 Filing Offices FEDERAL & DUKE OF YORK STS DOVER. DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/05/2001 1159082 2 - EQUIPMENT LEASED Debtor Information JEEPERS' INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON. CT 06897.4007 Filing Information 1159083 0 11/5/2001 INITIAL FILING 11/5/2001 1159083 0 Filing Offices FEDERAL 8 DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/05/2001 1159083 0 - EQUIPMENT LEASED For internal use only SDNY_GM_00054647 CONFIDENTIAL - PURSUANT TO FED. R.CCANI(E IDENTIAL DB-SDNY-0017471 EFTA 00165217 EFTA01295440 Page 28 32:DE UCC LIEN FILING Debtor Information Name: JEEPERS! INC. Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Filing Information Original Filing Number: 1159091 3 Original Filing Date: 11/5/2001 Filing Type: INITIAL FILING Filing Date: 11/5/2001 Filing Number: 1159091 3 Filing Offices Address: FEDERAL & DUKE OF YORK STS DOVER, DE 19901 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 11/05/2001 1159091 3 - COMPUTER EQUIPMENT LEASED,EQUIPMENT LEASED 33:DE UCC LIEN FILING Debtor Information Name: JEEPERS! INC. Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL. INC. Address: 221 DANBURY RD WILTON, CT 06897-4007 Filing Information Original Filing Number: 1159095 4 Original Filing Date: 11/5/2001 Filing Type: INITIAL FILING Filing Date: 11/5/2001 Filing Number: 1159095 4 Filing Offices Address: FEDERAL & DUKE OF YORK STS DOVER, DE 19901 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 11/05/2001 1159095 4 - EQUIPMENT LEASED 34:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Number: Filing Date: Contract Type: Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON. CT 06897-4007 Filing Information 1159099 6 11/5/2001 INITIAL FILING 1159099 6 11/5/2001 LEASE Filing Offices Address: FEDERAL & DUKE OF YORK STS DOVER, DE 19901 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Count: 00001 Description: 11/05/2001 1159099 6 - COMPUTER EQUIPMENT LEASED.FIXTURES LEASED:EQUIPMENT LEASED For internal use only SDNY_GM_00054648 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-00 17472 EFTA 00165218 EFTA01295441 Page 29 35:DE UCC LIEN FILING Debtor Information Name: JEEPERS! INC. Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Filing Information Original Filing Number: 1159102 8 Original Filing Date: 11/5/2001 Filing Type: INITIAL FILING Filing Date: 11/5/2001 Filing Number: 1159102 8 Filing Offices Address: FEDERAL & DUKE OF YORK STS DOVER, DE 19901 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 11/05/2001 1159102 8 - COMPUTER EQUIPMENT LEASED,EQUIPMENT LEASED 36:DE UCC LIEN FILING Debtor Information Name: JEEPERS! INC. Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL. INC. Address: 221 DANBURY RD WILTON, CT 06897-4007 Filing Information Original Filing Number: 1159108 5 Original Filing Date: 11/5/2001 Filing Type: INITIAL FILING Filing Date: 11/5/2001 Filing Number: 1159108 5 Filing Offices Address: FEDERAL 8 DUKE OF YORK STS DOVER, DE 19901 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 11/05/2001 1159108 5 -EQUIPMENT LEASED 37:DE UCC LIEN FILING Debtor Information Name: JEEPERS! INC. Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Filing Information Original Filing Number: 1159113 5 Original Filing Date: 11/5/2001 Filing Type: INITIAL FILING Filing Date: 11/5/2001 Filing Number: 1159113 5 Filing Offices Address: FEDERAL & DUKE OF YORK STS DOVER. DE 19901 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 11/05=01 1159113 5 - EQUIPMENT LEASED 38:DE UCC LIEN FILING Debtor Information Name: JEEPERS! INC. For internal use only SDNY_GM_00054649 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SDNY-00 17473 EFTA 00165219 EFTA01295442 Page 30 38:DE UCC LIEN FILING Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Number: Filing Date: Contract Type: Address: Filing Agency: Description: 39:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Number Filing Date: Contract Type: Address: Filing Agency: Description: 40:DE UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Number Filing Date: Contract Type: Address: Filing Agency: Description: 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON. CT 06897-4007 Filing Information 1159116 8 11/5/2001 INITIAL FILING 1159116 8 11/5/2001 LEASE Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/05/2001 1159116 8 - COMPUTER EQUIPMENT LEASED.EQUIPMENT LEASED Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON. CT 06897-4007 Filing Information 1159125 9 11/5/2001 INITIAL FILING 1159125 9 11/5/2001 LEASE Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/05/2001 1159125 9 - COMPUTER EQUIPMENT LEASED;EQUIPMENT LEASED Debtor Information JEEPERS! INC. 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL. INC. 221 DANBURY RD WILTON. CT 06897-4007 Filing Information 1159131 7 11/5/2001 INITIAL FILING 1159131 7 11/5/2001 LEASE Filing Offices FEDERAL & DUKE OF YORK STS DOVER, DE 19901 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/05/2001 1159131 7 - COMPUTER EQUIPMENT LEASED.EQUIPMENT LEASED For internal use only SDNY_GM_00054650 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-00 17474 EFTA_00 165220 EFTA01295443 Page 31 41:DE UCC LIEN FILING Debtor Information Name: JEEPERS! INC. Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Filing Information Original Filing Number: 1159138 2 Original Filing Date: 11/5/2001 Filing Type: INITIAL FILING Filing Date: 11/5/2001 Filing Number: 1159138 2 Filing Offices Address: FEDERAL & DUKE OF YORK STS DOVER, DE 19901 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 11/05/2001 1159138 2 - COMPUTER EQUIPMENT LEASED,EQUIPMENT LEASED 42:DE UCC LIEN FILING Debtor Information Name: JEEPERS! INC. Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 Secured Party Information Secured 1 Name: BANKERS TRUST CO., N.A. Address: 453 7TH ST DES MOINES, IA 50309-4110 Secured 2 Name: MOSS DISTRIBUTING, INC. Address: 1801 GUTHRIE AVE DES MOINES, IA 50316-2735 Filing Information Original Filing Number: 1136495 4 Original Filing Date: 10/10/2001 Filing Type: INITIAL FILING Filing Date: 10/10/2001 Filing Number 1136495 4 Filing Offices Address: FEDERAL & DUKE OF YORK STS DOVER, DE 19901 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 10/10/2001 1136495 4 - EQUIPMENT 43:IL UCC LIEN FILING Debtor Information Debtor 1 Name: CONCORDE GREEN SHOPPING CENTER Address: 91 NORTH AVE GLENDALE HEIGHTS, IL 60139-3496 Debtor 2 Name: JEEPERS INC Address: 17677 TORRENCE AVE LANSING. IL 60438-4839 Debtor 3 Name: LANSING SQUARE Address: 4516 N HARLEM AVE CHICAGO, IL 60706-4712 Secured Party Information Name: INNOVATIVE CONCEPTS IN ENTERTAINMENT INC Address: 10123 MAIN ST CLARENCE, NY 14031-2164 Filing Information Original Filing Number: 004367052 Original Filing Type: UCC-1 FINANCING STATEMENT Original Filing Date: 4/6/2001 For internal use only SDNY_GM_00054651 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SDNY-00 17475 EFTA_00 I 6522 I EFTA01295444 Page 32 43:IL UCC LIEN FILING Pages: 1 Expiration Date: 4/6/2006 Collateral Information Description: 04/06/2001 004367052 - EQUIPMENT 44:IL UCC LIEN FILING Debtor Information Name: JEEPERS INC Address: 63 SOUTH AVE BURLINGTON. MA 01803-4903 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL INC Address: 221 DANBURY RD WILTON. CT 06897.4007 Filing Information Original Filing Number: 004147617 Original Filing Type: UCC-1 FINANCING STATEMENT Original Filing Date: 1/25/2000 Filing Type: AMENDMENT TO A SECURED PARTY Pages: 1 Filing Number: 004279352 Filing Date: 10/6/2000 Expiration Date: 1/25/2005 Collateral Information Description: 10/06/2000 004279352 - EQUIPMENT 45:IL UCC LIEN FILING Debtor Information Name: JEEPER INC Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Secured 1 Name: CENTRE CAPITAL INVESTORS II LTD PARTNERSHIP Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK. NY 10112.0015 Secured 2 Name: CENTRE CAPITAL OFFSHORE INVESTORS II LTD PARTNERSHIP Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Secured 3 Name: CENTRE CAPITAL TAX EXEMPT INVESTORS II LTD PARTNERSHIP Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112.0015 Secured 4 Name: CENTRE CAPITAL TAX EXEMPT INVESTORS II LTD PARTNERSHIP Address: 877 SUPREME DR BENSENVILLE, IL 60106-1106 Secured 5 Name: CENTRE COINVESTMENT LTD PARTNERSHIP Address: 877 SUPREME DR BENSENVILLE, IL 60106-1106 Secured 6 Name: CENTRE PARALLEL MANAGEMENT PARTNERS LTD PARTNERSHIP Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Secured 7 Name: CENTRE PARALLEL MANAGEMENT PARTNERS LTD PARTNERSHIP Address: 877 SUPREME DR BENSENVILLE. IL 60106-1106 Secured 8 Name: CENTRE PARTNERS COINVESTMENT LTD PARTNERSHIP Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK. NY 10112-0015 Secured 9 Name: NAMCO CYBERTAINMENT INC Address: 877 SUPREME DR BENSENVILLE, IL 60106-1106 Secured 10 Name: STATE BOARD OF ADMIN OF FLORIDA %CENTRE PARALLEL MGMNT PRTS LP Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 For internal use only SDNY_GM_00054652 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-00 17476 EFTA_00 165222 EFTA01295445 Page 33 45:IL UCC LIEN FILING Original Filing Number: Original Filing Type: Original Filing Date: Filing Type: Pages: Filing Number: Filing Date: Expiration Date: Description: 46:IL UCC LIEN FILING Name: Address: Name: Address: Name: Address: Name: Address: Name: Address: Name: Address: Name: Address: Name: Filing Information 004010683 UCC-1 FINANCING STATEMENT 3/26/1999 ASSIGNMENT TO A SECURED PARTY 3 004169429 2/22/2000 3/26/2004 Collateral Information 02/22/2000 004169429 - CONTRACT RIGHTS Debtor Information JEEPERS INC 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Secured 1 CENTRE CAPITAL INVESTORS II LTD PARTNERSHIP 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112.0015 Secured 2 CENTRE CAPITAL OFFSHORE INVESTORS II LTD PARTNERSHIP 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Secured 3 CENTRE CAPITAL TAX EXEMPT INVESTORS II LTD PARTNERSHIP 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Secured 4 CENTRE PARALLEL MANAGEMENT PARTNERS LTD PARTNERSHIP 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Secured 5 CENTRE PARTNERS COINVESTMENT LTD PARTNERSHIP 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Secured 6 NAMCO CYBERTAINMENT INC 877 SUPREME DR BENSENVILLE, IL 60106-1106 Secured 7 STATE BOARD OF ADMIN OF FLORIDA %CENTRE PARALLEL MGMNT PRTN LP Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Filing Information Original Filing Number: 003955789 Original Filing Type: UCC-1 FINANCING STATEMENT Original Filing Date: 12/10/1998 Filing Type: ASSIGNMENT TO A SECURED PARTY Pages: 5 Filing Number: 004169430 Filing Date: 2/22/2000 Expiration Date: 12/10/2003 Collateral Information Description: 02/22/2000 004169430 - INVENTORY .WITH PRODUCTS 47:IL UCC LIEN FILING Debtor Information Name: JEEPERS INC Address: 60 HICKORY DR WALTHAM. MA 02451-1013 Secured Party Information Name: GLOBAL ENTERTAINMENT VENTURES LLC Address: 153 NORTH AVE WESTON, MA 02493-2032 Filing Information For internal use only SDNY_GM_00054653 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SONY-00 17477 EFTA_00 165223 EFTA01295446 Page 34 47:IL UCC LIEN FILING Original Filing Number: Original Filing Type: Original Filing Date: Filing Type: Pages: Filing Number: Filing Date: Expiration Date: Filing Type: Pages: Filing Number: Filing Date: Expiration Date: Description: Description: 48:IL UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Type: Original Filing Date: Pages: Expiration Date: Description: 49:IN UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number Address: Filing Agency: Description: 003869897 UCC-1 FINANCING STATEMENT 6/23/1996 Filing 1 PARTIAL RELEASE 2 004384981 5/14/2001 6/23/2003 Filing 2 ASSIGNMENT TO A SECURED PARTY 2 004384980 5/14/2001 6/23/2003 Collateral Information Collateral 1 05/14/2001 004384981 - ACCOUNTS RECEIVABLE. INVENTORY. CONTRACT RIGHTS CHATTEL PAPER. GENERAL INTANGIBLE WITH PROCEEDS.WITH PRODUCTS Collateral 2 05/14/2001 004384980 - ACCOUNTS RECEIVABLE, INVENTORY, CONTRACT RIGHTS CHATTEL PAPER. GENERAL INTANGIBLE WITH PROCEEDS,WITH PRODUCTS Debtor Information JEEPERS INC 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information NAMCO CYBERTAINMENT INC 877 SUPREME DR BENSENVILLE, IL 60106-1106 Filing Information 003745189 UCC-1 FINANCING STATEMENT 9/29/1997 9/29/2002 Collateral Information 09/29/1997 003745189 - EQUIPMENT Debtor Information JEEPERS! INC. 60 HICKORY DR WALTHAM. MA 02451-1013 Secured Party Information IMPERIAL BANK 226 AIRPORT PKWY SAN JOSE, CA 95110-1004 Filing Information 2279516 9/13/1999 INITIAL FILING 9/13/1999 2279516 Filing Offices 302 W WASHINGTON ST RM E-018 INDIANAPOLIS, IN 46204 SECRETARY OF STATE/UCC DIVISION Collateral Information 09/13/1999 2279516 - CHATTEL PAPER;PRODUCTS AND PROCEEDS,GENERAL For internal use only SDNY_GM_00054654 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17478 EFTA_00 165224 EFTA01295447 Page 35 49:IN UCC LIEN 50:IN UCC LIEN FILING FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 51:KS UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Pages: Filing Number: Filing Date: Expiration Date: Address: Filing Agency: Description: 52:KS UCC LIEN FILING Name: Address: Name: Address: Name: Address: Original Filing Number: Original Filing Date: INTANGIBLE(S);INVENTORY;FIXTURES;EQUIPMENT;ALL ASSETS;REAL PROPERTY:CONTRACT RIGHTS:ACCOUNTS RECEIVABLE Debtor Information JEEPERS' INC. 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information IMPERIAL BANK 226 AIRPORT PKWY SAN JOSE. CA 95110-1004 Filing Information 2279517 9/13/1999 INITIAL FILING 9/13/1999 2279517 Filing Offices 302 W WASHINGTON ST RM E-018 INDIANAPOLIS, IN 46204 SECRETARY OF STATE/UCC DIVISION Collateral Information 09/13/1999 2279517 - ACCOUNTS RECEIVABLE:CONTRACT RIGHTS:PRODUCTS AND PROCEEDS:INVENTORY:REAL PROPERTY:GENERAL INTANGIBLE(S)ALL ASSETS:FIXTURES:CHATTEL PAPER:EQUIPMENT Debtor Information JEEPERS INC 20070 W 151ST ST OLATHE, KS 66061-7229 Secured Party Information INNOVATIVE CONCEPTS IN ENTERTAINMENT INC 10123 MAIN ST CLARENCE. NY 14031-2164 Filing Information 5080940 12/6/2001 INITIAL FILING 2 5080940 12/6/2001 12/6/2006 Filing Offices 120 SW 10TH AVE TOPEKA. KS 66612 SECRETARY OF STATE/UCC DIVISION Collateral Information 12/06/2001 5080940 - EQUIPMENT Debtor Information Debtor JEEPERS! INC. 63 SOUTH AVE BURLINGTON, MA 01803-4903 Debtor 2 JEEPERS! INC. 20070 W 151ST ST OLATHE. KS 66061-7229 Secured Party Information INNOVATIVE CONCEPTS IN ENTERTAINMENT, INC. 10123 MAIN ST CLARENCE. NY 14031-2164 Filing Information 4604690 4/6/2001 For internal use only SDNY_GM_00054655 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17479 EFTA_00 165225 EFTA01295448 Page 36 52:KS UCC LIEN FILING Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 53:KS UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Pages: Filing Number Filing Date: Expiration Date: Address: Filing Agency: Description: 54:KS UCC LIEN FILING Name: Address: Name: Address: Name: Address: Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number Filing Type: Pages: Filing Number Filing Date: INITIAL FILING 4/6/2001 4604690 Filing Offices 301 SW 10TH AVE TOPEKA. KS 66612 SECRETARY OF STATE/UCC DIVISION Collateral Information 04/06/2001 4604690 - EQUIPMENT Debtor Information JEEPERS INC 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information NAMCO CYBERTAINMENT INC 877 SUPREME DR BENSENVILLE, IL 60106-1106 Filing Information 2520509 1/8/1999 INITIAL FILING 4 2520509 1/8/1999 1/8/2004 Filing Offices 301 SW 10TH AVE TOPEKA, KS 66612 SECRETARY OF STATE/UCC DIVISION Collateral Information 01/08/1999 2520509 - EQUIPMENT AND PRODUCTS Debtor Information Debtor 1 JEEPERS INC 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor 2 JEEPERS!. INC. 63 SOUTH AVE BURLINGTON. MA 01803-4903 Secured Party Information Secured 1 FIRST UNION NATIONAL BANK, AS AGENT 1339 CHESTNUT ST PHILADELPHIA, PA 19107-3519 Secured 2 LEASING TECH INTL INC 221 DANBURY RD WILTON. CT 06897-4007 Assignee Information FIRST UNION NATIONAL BANK 1339 CHESTNUT ST PHILADELPHIA, PA 19107-3519 Filing Information 2488565 9/9/1998 Filing 1 AMENDMENT 9/7/2000 3962230 Filing 2 ASSIGNMENT 2 2578421 8/3/1999 For internal use only SDNY_GM_00054656 CONFIDENTIAL - PURSUANT TO FED. R.CCIN(F IDENTIAL DB-SDNY-00 17480 EFTA 00165226 EFTA01295449 Page 37 54:KS UCC LIEN FILING Expiration Date: Filing Type: Pages: Filing Number: Filing Date: Expiration Date: Address: Filing Agency: Description: Description: 55:KS UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Pages: Filing Number Filing Date: Expiration Date: Address: Filing Agency: Description: 56:KS UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Pages: Filing Number Filing Date: 9/9/2003 Filing 3 INITIAL FILING 2 2488565 9/9/1998 9/9/2003 Filing Offices 301 SW 10TH AVE TOPEKA, KS 66612 SECRETARY OF STATE/UCC DIVISION Collateral Information Collateral 1 08/03/1999 2578421 - EQUIPMENT Collateral 2 09/09/1998 2488565 - COMPUTER EQUIPMENT:EQUIPMENT Debtor Information JEEPERS INC 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information IMPERIAL BK 226 AIRPORT PKWY SAN JOSE. CA 95110-1004 Filing Information 2466610 6/23/1998 INITIAL FILING 3 2466610 6/23/1998 6/23/2003 Filing Offices 301 SW 10TH AVE TOPEKA, KS 66612 SECRETARY OF STATE/UCC DIVISION Collateral Information 06/23/1998 2466610 - EQUIPMENT INCLUDING PROCEEDS AND PRODUCTS:FIXTURES INCLUDING PROCEEDS AND PRODUCTS:ACCOUNT(S) INCLUDING PROCEEDS AND PRODUCTS.CHATTEL PAPER INCLUDING PROCEEDS AND PRODUCTS:GENERAL INTANGIBLE(S) INCLUDING PROCEEDS AND PRODUCTS,INVENTORY INCLUDING PROCEEDS AND PRODUCTS:ACCOUNTS RECEIVABLE INCLUDING PROCEEDS AND PRODUCTS:CONTRACT RIGHTS INCLUDING PROCEEDS AND PRODUCTS.NEGOTIABLE INSTRUMENTS INCLUDING PROCEEDS AND PRODUCTS:PARTNERSHIP INTERESTS Debtor Information JEEPERS INC 60 HICKORY DR WALTHAM. MA 02451-1013 Secured Party Information NAMCO CYBERTAINMENT INC 877 SUPREME DR BENSENVILLE, IL 60106-1106 Filing Information 2391056 9/29/1997 INITIAL FILING 2 2391056 9/29/1997 For internal use only SDNY_GM_00054657 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0017481 EFTA 00165227 EFTA01295450 Page 38 56:KS UCC LIEN FILING Expiration Date: 9/29/2002 Filing Offices Address: 301 SW 10TH AVE TOPEKA. KS 66612 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 09/29/1997 2391056 - EQUIPMENT 57:MA UCC LIEN FILING Debtor Information Debtor 1 Name: JEEPERS', INC. Address: 63 SOUTH AVE BURLINGTON. MA 01803-4903 Debtor 2 Name: JEEPERS. INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL INC. Address: 221 DANBURY RD WILTON. CT 06897.4007 Filing Status Description: ACTIVE Filing Information Original Filing Number: 00686727 Original Filing Type: UCC-1 ORIGINAL Original Filing Date: 1/5/2000 Filing 1 Filing Type: AMENDMENT Description: ACTIVE Filing Number: 00741589 Filing Date: 9/5/2000 Filing 2 Description: ACTIVE Filing Number: 00686727 58:MD UCC LIEN FILING Debtor Information Name: JEEPERS! INC Address: 5800 BALTIMORE NATIONAL PIKE CATONSVILLE. MD 21228-1308 Secured Party Information Name: INNOVATIVE CONCEPTS IN ENTERTAINMENT, INC. Address: 10123 MAIN ST CLARENCE, NY 14031-2164 Filing Information Original Filing Number: 00000181103347 Original Filing Date: 12/6/2001 Filing Type: INITIAL FILING Filing Number: 00000181103347 Filing Date: 12/6/2001 Expiration Date: 12/6/2006 Filing Offices Address: 301 W PRESTON ST BALTIMORE, MD 21201 Filing Agency: UCC DIVISION Collateral Information Description: 12/06/2001 00000181103347 - EQUIPMENT 59:MD UCC LIEN FILING Debtor Information Name: JEEPERS! INC. Address: 5800 BALTIMORE NATIONAL PIKE CATONSVILLE. MD 21228-1308 Secured Party Information Name: INNOVATIVE CONCEPTS IN ENTERTAINMENT. INC. Address: 10123 MAIN ST CLARENCE, NY 14031-2164 For internal use only SDNY_GM_00054658 CONFIDENTIAL - PURSUANT TO FED. R.WIN(F IDENTIAL DB-SDNY-00 17482 EFTA_00 165228 EFTA01295451 Pace 39 59:MD UCC LIEN FILING Original Filing Number: Original Filing Date: Filing Type: Filing Number: Filing Date: Expiration Date: Address: Filing Agency: Description: 60:MD UCC LIEN FILING Name: Address: Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Number: Filing Date: Expiration Date: Address: Filing Agency: 61:MD UCC LIEN FILING Filing Information 00000181079551 4/6/2001 INITIAL FILING 00000181079551 4/6/2001 4/6/2013 Filing Offices 301 W PRESTON ST BALTIMORE, MD 21201 UCC DIVISION Collateral Information 04/06/2001 00000181079551 - EQUIPMENT Debtor Information JEEPERS! INC. 63 SOUTH AVE BURLINGTON, MA 018034903 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL. INC. 221 DANBURY RD WILTON. CT 06897.4007 Assignee Information FIRST UNION NATIONAL BANK. AS AGENT 1339 CHESTNUT ST PHILADELPHIA, PA 19107-3519 Filing Information 39100000032933 1/4/2001 AMENDMENT 39100000032933 9/6/2000 10/29/2010 Filing Offices 301 W PRESTON ST BALTIMORE, MD 21201 UCC DIVISION Debtor Information Debtor I Name: JEEPERS! INC. Address: 63 SOUTH AVE BURLINGTON, MA 01803-4903 Debtor 2 Name: JEEPERS) INC. Address: 63 SOUTH AVE BURLINGTON. MA 01803-4903 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Assignee Information Name: FEET NATIONAL BANK Address: 1 FEDERAL ST BOSTON. MA 02110-2012 Filing Information Original Filing Number: 39100000038112 Original Filing Date: 1/4/2001 Filing Type: AMENDMENT Filing Number 39100000038112 Filing Date: 9/6/2000 Expiration Date: 12/42010 Filing Offices Address: 301 W PRESTON ST BALTIMORE, MD 21201 Filing Agency: UCC DIVISION 62:MD UCC LIEN FILING For internal use only SDNY_GM_00054659 CONFIDENTIAL - PURSUANT TO FED. R.CCANI(E IDENTIAL DB-SDNY-00 17483 EFTA_00 165229 EFTA01295452 Pace 40 62:MD UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 63:MD UCC LIEN FILING Debtor Information JEEPERS' INC. 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information IMPERIAL BANK 226 AIRPORT PKWY SAN JOSE, CA 95110-1004 Filing Information 39100000054082 3/18/1999 INITIAL FILING 3/18/1999 39100000054082 Filing Offices 301 W PRESTON ST BALTIMORE, MD 21201 SECRETARY OF STATE/DEPARTMENT OF ASSESSMENT AND TAXATION/UCC DIVISION Collateral Information 03/18/1999 39100000054082 - CHATTEL PAPER INCLUDING PROCEEDS AND PRODUCTS:GENERAL INTANGIBLE(S) INCLUDING PROCEEDS AND PRODUCTS,FIXTURES INCLUDING PROCEEDS AND PRODUCTS;ACCOUNT(S) INCLUDING PROCEEDS AND PRODUCTS Debtor Information Debtor 1 Name: JEEPERS INC Address: 60 HICKORY DR WALTHAM. MA 02451-1013 Debtor 2 Name: JEEPERS INC. Address: 60 HICKORY DR WALTHAM. MA 02451-1013 Secured Party Information Secured 1 Name: CENTRE CAPITAL INVESTORS II, L.P. Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Secured 2 Name: CENTRE CAPITAL TAX-EXEMPT INVESTORS II, L.P. Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Secured 3 Name: CENTRE PARTNERS COINVESTMENT, L.P. Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Secured 4 Name: NAMCO CYBERTAINMENT INC Address: 877 SUPREME DR BENSENVILLE, IL 60106-1106 Secured 5 Name: NAMCO CYBERTAINMENT INC. Address: 877 SUPREME DR BENSENVILLE, IL 60106-1106 Assignee Information Name: CENTRE PARALLEL MANAGEMENT PARTNERS, L.P. Address: 30 ROCKEFELLER PI2 STE 5050 NEW YORK. NY 10112-0015 Filing Information Original Filing Number: 39100000039057 Original Filing Date: 12/10/1998 Filing 1 Filing Type: ASSIGNMENT Filing Number: 39100000039057 Filing Date: 2/22/2000 Expiration Date: 6/302006 Filing 2 Filing Type: INITIAL FILING Filing Date: 12/10/1998 For internal use only SDNY_GM_00054660 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17484 EFTA 00165230 EFTA01295453 Page 41 63:MD UCC LIEN FILING Filing Number: 39100000039057 Filing Offices Office 1 Address: 301 W PRESTON ST BALTIMORE, MD 21201 Filing Agency: SECRETARY OF STATE/DEPARTMENT OF ASSESSMENT AND TAXATION/UCC DIVISION Office 2 Address: 301 W PRESTON ST BALTIMORE, MD 21201 Filing Agency: UCC DIVISION Collateral Information Description: 12/10/1998 39100000039057 - EQUIPMENT AND PROCEEDS 64:MD UCC LIEN FILING Debtor Information Name: JEEPERS! INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Assignee Information Name: FLEET NATIONAL BANK Address: 1 FEDERAL STREET MC MAOFD07A BOSTON. MA 02211-0001 Filing Information Original Filing Number: 39100000038112 Original Filing Date: 12/4/1998 Filing Type: INITIAL FILING Filing Date: 12/4/1998 Filing Number: 39100000038112 Filing Offices Address: 301 W PRESTON ST BALTIMORE, MD 21201 Filing Agency: SECRETARY OF STATE/DEPARTMENT OF ASSESSMENT AND TAXATION/UCC DIVISION Collateral Information Description: 12/04/1998 39100000038112 - EQUIPMENT 65:MD UCC LIEN FILING Debtor Information Debtor 1 Name: JEEPERS! INC Address: 63 SOUTH AVE BURLINGTON, MA 01803-4903 Debtor 2 Name: JEEPERS! INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Secured 1 Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON, CT 06897-4007 Secured 2 Name: LEASING TECHNOLOGIES, INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Assignee Information Assignee 1 Name: FLEET NATIONAL BANK Address: 1 FEDERAL ST BOSTON, MA 02211-0001 Assignee 2 Name: FLEET NATIONAL BANK Address: ONEFEDERAL STREET MC MAOFDO7 BOSTON, MA Filing Information Original Filing Number: 39100000038635 Original Filing Date: 12/4/1998 For internal use only SDNY_GM_00054661 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-001748S EFTA_00165231 EFTA01295454 Page 42 65:MD UCC LIEN FILING Filing 1 Filing Type: AMENDMENT Filing Number: 39100000038635 Filing Date: 10/6/2000 Expiration Date: 12/4/2010 Filing 2 Filing Type: INITIAL FILING Filing Date: 12/4/1998 Filing Number: 39100000038635 Filing Offices Address: 301 W PRESTON ST BALTIMORE, MD 21201 Filing Agency: SECRETARY OF STATE/DEPARTMENT OF ASSESSMENT AND TAXATION/UGC DIVISION Collateral Information Description: 12/04/1998 39100000038635 - COMPUTER EQUIPMENT.FIXTURES 66:MD UCC LIEN FILING Debtor Information Name: JEEPERS! INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL. INC. Address: 221 DANBURY RD WILTON. CT 06897.4007 Assignee Information Name: FIRST UNION NATIONAL BANK. AS AGENT Address: 1339 CHESTNUT ST PHILADELPHIA, PA 19107-3519 Filing Information Original Filing Number: 39100000032933 Original Filing Date: 10/29/1998 Filing Type: INITIAL FILING Filing Date: 10/29/1998 Filing Number: 39100000032933 Filing Offices Address: 301 W PRESTON ST BALTIMORE, MD 21201 Filing Agency: SECRETARY OF STATE/DEPARTMENT OF ASSESSMENT AND TAXATION/UGC DIVISION Collateral Information Description: 10/29/1998 39100000032933 - COMPUTER EQUIPMENT:VEHICLES 67:MI UCC LIEN FILING Debtor Information Debtor 1 Name: JEEPERS!, INC. Address: 63 SOUTH AVE BURLINGTON, MA 01803-4903 Debtor 2 Name: JEEPERSI INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Filing Information Original Filing Number: D472927 Original Filing Date: 1/29/1999 Filing 1 Filing Type: AMENDMENT Filing Date: 6/29/2001 Filing Number: 0792430 Filing 2 Filing Type: INITIAL FILING Filing Date: 1/29/1999 For internal use only SDNY_GM_00054662 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17486 EFTA_00 165232 EFTA01295455 Page 43 67:MI UCC LIEN FILING Filing Number: D472927 Filing Offices Address: 430 W ALLEGAN LANSING, MI 48918 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 01/29/1999 D472927 - EQUIPMENT 68:MI UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Debtor Information JEEPERS INC 60 HICKORY DR WALTHAM. MA 02451-1013 Secured Party Information NAMCO CYBERTAINMENT INC 877 SUPREME DR BENSENVILLE. IL 60106-1106 Filing Information D454766 12/14/1998 INITIAL FILING 12/14/1998 0454766 Filing Offices Address: 430 W ALLEGAN LANSING, MI 48918 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 12/14/1998 D454766 - EQUIPMENT 69:MI UCC LIEN FILING Debtor Information Debtor 1 Name: JEEPERS! INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor 2 Name: JEEPERS!, INC. Address: 63 SOUTH AVE BuRLINGTON, MA 01803-4903 Debtor 3 Name: JEEPERS), INC. Address: 63 SOUTH AVE BURLINGTON. MA 01803-4903 Secured Party Information Secured 1 Name: FLEET NATIONAL BANK Address: 1 FEDERAL ST BOSTON, MA 02211-0001 Secured 2 Name: FLEET NATIONAL BANK Address: 1 FEDERAL ST BOSTON, MA 02211-0001 Filing Information Original Filing Number: 99239B Original Filing Date: 11/30/1998 Filing 1 Filing Type: CONTINUATION Filing Date: 9/7/2000 Filing Number: D692295 Filing 2 Filing Type: INITIAL FILING Filing Date: 11/30/1998 Filing Number: 992398 Filing Offices Address: 430 W ALLEGAN LANSING, MI 48918 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 11/30/1998 99239B - EQUIPMENT For internal use only SDNY_GM_00054663 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17487 EFTA 00165233 EFTA01295456 Page 44 70:MI UCC LIEN FILING Name: Address: Name: Address: Name: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Address: Filing Agency: 71:MI UCC LIEN FILING Debtor Information Debtor 1 JEEPERS INC. 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor 2 JEEPERS' INC. 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information COMERICA BANK Assignee Information GOOD CONSULTING LLC 0-21 FENNESSEY ST SW GRAND RAPIDS. MI 49534-6707 Filing Information 0148831 9/9/1998 Filing 1 CONTINUATION 5/26/2011 2011076402-7 Filing 2 ASSIGNMENT 9/23/2008 2008147829-0 Filing Offices Office 1 7064 CROWNER DR LANSING, MI 48909 UNIFORM COMMERCIAL CODE SECTION Office 2 PHYSICAL ADDRESS UNKNOWN LANSING, MI 48909 UNIFORM COMMERCIAL CODE SECTION Debtor Information Debtor 1 Name: JEEPERS! INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor 2 Name: JEEPERSI, INC. Address: 63 SOUTH AVE BURLINGTON, MA 01803-4903 Secured Party Information Secured 1 Name: FIRST UNION NATIONAL BANK. AS AGENT Address: 1339 CHESTNUT ST PHILADELPHIA, PA 19107-3519 Secured 2 Name: LEASING TECHNOLOGIES INTERNATIONAL INC. Address: 221 DANBURY RD WILTON, CT 06897-4007 Assignee Information Name: FIRST UNION NATIONAL BANK. AS AGENT Address: 1339 CHESTNUT ST PHILADELPHIA. PA 19107-3519 Filing Information Original Filing Number: D418830 Original Filing Date: 9/9/1998 Filing 1 Filing Type: AMENDMENT Filing Date: 9/5/2000 Filing Number: D691285 Filing 2 Filing Type: ASSIGNMENT Filing Date: 8/5/1999 For internal use only SDNY_GM_00054664 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17488 EFTA_00165234 EFTA01295457 Page 45 71:MI UCC LIEN FILING Filing Number: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: Description: 72:MI UCC LIEN FILING Name: Address: Name: Address: Name: Address: Name: Address: Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Filing Type: Filing Date: Filing Number: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: Description: 73:MI UCC LIEN FILING O551043 Filing 3 INITIAL FILING 9/9/1998 O418830 Filing Offices 430 W ALLEGAN LANSING. MI 48918 SECRETARY OF STATE/UCC DIVISION Collateral Information Collateral 1 08/05/1999 D551043 - COMPUTER EQUIPMENT,EQUIPMENT Collateral 2 09/09/1998 D418830 - COMPUTER EOUIPMENT;EQUIPMENT Debtor Information Debtor 1 JEEPERS! INC. 60 HICKORY DR WALTHAM. MA 02451-1013 Debtor 2 JEEPERS! INC. 60 HICKORY DR WALTHAM. MA 02451-1013 Debtor 3 JEEPERS!, INC. 63 SOUTH AVE BURLINGTON. MA 01803-4903 Secured Party Information Secured 1 FIRST UNION NATIONAL BANK, AS AGENT 1339 CHESTNUT ST PHILADELPHIA, PA 19107-3519 Secured 2 LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON, CT 06897-4007 Assignee Information FIRST UNION NATIONAL BANK. AS AGENT 1339 CHESTNUT ST PHILADELPHIA, PA 19107-3519 Filing Information D418831 9/9/1998 Filing 1 AMENDMENT 9/5/2000 D691284 Filing 2 ASSIGNMENT 8/3/1999 O549899 Filing 3 INITIAL FILING 9/9/1998 O418831 Filing Offices 430 W ALLEGAN LANSING, MI 48918 SECRETARY OF STATE/UCC DIVISION Collateral Information Collateral 1 08/03/1999 D549899 - COMPUTER EQUIPMENT:EQUIPMENT Collateral 2 09/09/1998 O418831 - COMPUTER EOUIPMENT;EQUIPMENT For internal use only SDNY_GM_00054665 CONFIDENTIAL - PURSUANT TO FED. R.cON(f IDENTIAL DB-SDNY-00 17489 EFTA 00165235 EFTA01295458 Page 46 73:MI UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 74:MI UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number Address: Filing Agency: Description: 75:MI UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number Address: Filing Agency: Description: Debtor Information JEEPERS! INC. 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information IMPERIAL BANK 226 AIRPORT PKWY SAN JOSE, CA 95110-1004 Filing Information 95318B 6/23/1998 INITIAL FILING 6/23/1998 95318B Filing Offices 430 W ALLEGAN LANSING, MI 48918 SECRETARY OF STATE/UCC DIVISION Collateral Information 06/23/1998 95318B - CHATTEL PAPER INCLUDING PROCEEDS AND PRODUCTS,PARTNERSHIP INTEREST INCLUDING PROCEEDS AND PRODUCTS:NEGOTIABLE INSTRUMENTS INCLUDING PROCEEDS AND PRODUCTS:CONTRACT RIGHTS INCLUDING PROCEEDS AND PRODUCTS:ACCOUNTS RECEIVABLE INCLUDING PROCEEDS AND PRODUCTS:INVENTORY Debtor Information JEEPERS! INC. 60 HICKORY DR WALTHAM. MA 02451-1013 Secured Party Information NAMCO CYBERTAINMENT INC. 877 SUPREME DR BENSENVILLE, IL 60106-1106 Filing Information D316406 12/16/1997 INITIAL FILING 12/16/1997 D316406 Filing Offices 430 W ALLEGAN LANSING. MI 48918 SECRETARY OF STATE/UCC DIVISION Collateral Information 12/16/1997 D316406 - EQUIPMENT Debtor Information JEEPERS! INC. 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information NAMCO CYBERTAINMENT INC. 877 SUPREME DR BENSENVILLE, IL 60106-1106 Filing Information D285496 9/30/1997 INITIAL FILING 9/30/1997 D285496 Filing Offices 430 W ALLEGAN LANSING, MI 48918 SECRETARY OF STATE/UCC DIVISION Collateral Information 09/30/1997 D285496 - EQUIPMENT For internal use only SDNY_GM_00054666 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17490 EFTA_00 165236 EFTA01295459 Page 47 76:MI UCC LIEN FILING Debtor Information Name: JEEPERS INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Name: NAMCO CYBERTAINMENT INC. Address: 877 SUPREME DR BENSENVILLE, IL 60106-1106 Assignee Information Assignee 1 Name: CENTRE CAPITAL INVESTORS II, L.P. Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Assignee 2 Name: CENTRE CAPITAL OFFSHORE INVESTORS II. L.P. Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Assignee 3 Name: CENTRE CAPITAL TAX-EXEMPT INVESTORS II, L.P. Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK. NY 10112-0015 Assignee 4 Name: CENTRE PARALLEL MANAGEMENT PARTNERS, L.P. C/O CENTRE PARALLEL MANAGEMENT PARTNERS, L.P. Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Assignee 5 Name: CENTRE PARTNERS COINVESTMENT. L.P. Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Assignee 6 Name: STATE BOARD OF ADMINISTRATION OF FLORIDA, C/O CENTRE PARALLEL MANAGEMENT PARTNERS, L.P. Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK. NY 10112-0015 Filing Information Original Filing Number: O454766 Filing Type: ASSIGNMENT Filing Date: 2/22/2000 Filing Number: 11290C Filing Offices Address: 430 W ALLEGAN LANSING, MI 48918 Filing Agency: SECRETARY OF STATENCC DIVISION Collateral Information Description: 02/22/2000 11290C - EQUIPMENT 77:NC UCC LIEN FILING Debtor Information Name: JEEPERS INC. Address: 8321 CONCORD MILLS BLVD CONCORD. NC 28027-6460 Secured Party Information Name: INNOVATIVE CONCEPTS IN ENTERTAINMENT, INC. Address: 10123 MAIN ST CLARENCE. NY 14031-2164 Filing Information Original Filing Number: 20010553844F Original Filing Date: 12/6/2001 Filing Type: INITIAL FILING Filing Date: 12/6/2001 Filing Number: 20010553844F Filing Offices Address: 300 N SALISBURY ST. LEGIS OFF BLDG RALEIGH, NC 27603 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 12/06/2001 20010553844F - EQUIPMENT 78:NC UCC LIEN FILING Debtor Information For internal use only SDNY_GM_00054667 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SDNY-0017491 EFTA_00 165237 EFTA01295460 Page 48 78:NC UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 79:NC UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 80:NC UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: JEEPERS, INC. 8321 CONCORD MILLS BLVD CONCORD. NC 28027-6460 Secured Party Information INNOVATIVE CONCEPTS IN ENTERTAINMENT. INC. 10123 MAIN ST CLARENCE, NY 14031-2164 Filing Information 20010033898 4/6/2001 INITIAL FILING 4/6/2001 20010033898 Filing Offices 300 N SALISBURY ST, LEGIS OFF BLDG RALEIGH, NC 27603 SECRETARY OF STATE/UCC DIVISION Collateral Information 04/06/2001 20010033898 - EQUIPMENT Debtor Information JEEPERSI, INC. 63 SOUTH AVE BURLINGTON, MA 01803-4903 Secured Party Information LEASING TECHNOLOGIES INTERNATIONAL, INC. 221 DANBURY RD WILTON, CT 06897-4007 Filing Information 20000085482 8/22/2000 INITIAL FILING 8/22/2000 20000085482 Filing Offices 300 N SALISBURY ST, LEGIS OFF BLDG RALEIGH, NC 27603 SECRETARY OF STATE/UCC DIVISION Collateral Information 08/22/2000 20000085482 - EQUIPMENT Debtor Information JEEPERS, INC. 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information IMPERIAL BANK 220 AIRPORT PKWY SAN JOSE, CA 95110-1003 Filing Information 199990295 9/15/1999 INITIAL FILING 9/15/1999 199990295 Filing Offices 300 N SALISBURY ST, LEGIS OFF BLDG RALEIGH, NC 27603 SECRETARY OF STATE/UCC DIVISION Collateral Information 09/15/1999 199990295 - ACCOUNTS RECEIVABLE INCLUDING PROCEEDS AND PRODUCTS;EQUIPMENT INCLUDING PROCEEDS AND PRODUCTS,GENERAL INTANGIBLE(S) INCLUDING PROCEEDS AND PRODUCTS,CONTRACT RIGHTS INCLUDING PROCEEDS AND PRODUCTS,CHATTEL PAPER INCLUDING PROCEEDS AND PRODUCTS.NEGOTIABLE INSTRUMENTS INCLUDING PROCEEDS AND PRODUCTSACCOUNT(S) INCLUDING PROCEEDS AND For internal use only SDNY_GM_00054668 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0017492 EFTA_00 165238 EFTA01295461 Page 49 80:NC UCC LIEN FILING PRODUCTS,FIXTURES INCLUDING PROCEEDS AND PRODUCTS.INVENTORY INCLUDING PROCEEDS AND PRODUCTS 81:NJ UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 82:NY UCC LIEN FILING Debtor Information JEEPERS. INC. 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information IMPERIAL BANK 223 AIRPORT PKWY SAN JOSE, CA 95110 Filing Information 1845413 6/23/1998 INITIAL FILING 6/23/1998 1845413 Filing Offices STATE CAPITOL TRENTON. NJ 08608 SECRETARY OF STATE/UCC DIVISION Collateral Information 06/23/1998 1845413 - CONTRACT RIGHTS INCLUDING PROCEEDS AND PRODUCTS:EQUIPMENT INCLUDING PROCEEDS AND PRODUCTS,GENERAL INTANGIBLE(S) INCLUDING PROCEEDS AND PRODUCTS,CHATTEL PAPER INCLUDING PROCEEDS AND PRODUCTS.ACCOUNT(S) INCLUDING PROCEEDS AND PRODUCTS:FIXTURES INCLUDING PROCEEDS AND PRODUCTS:INVENTORY INCLUDING PROCEEDS AND PRODUCTS.NEGOTIABLE INSTRUMENTS INCLUDING PROCEEDS AND PRODUCTS:ACCOUNTS RECEIVABLE INCLUDING PROCEEDS AND PRODUCTS Debtor Information Debtor 1 Name: JEEPERS! INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor 2 Name: JEEPERSI, INC. Address: 63 SOUTH AVE BURLINGTON, MA 01803-4903 Secured Party Information Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Filing Information Original Filing Number: 00004125 Original Filing Date: 1/6/2000 Filing 1 Filing Type: AMENDMENT Filing Date: 8/22/2000 Filing Number: 00164047 Filing 2 Filing Type: INITIAL FILING Filing Date: 1/6/2000 Filing Number 00004125 Filing Offices Address: 162 WASHINGTON AVE ALBANY, NY 12210 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 01/06/2000 00004125 - EQUIPMENT 83:NY UCC LIEN FILING For internal use only SDNY_GM_00054669 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17493 EFTA 00165239 EFTA01295462 Page 50 83:NY UCC LIEN FILING Debtor Information Debtor 1 Name: JEEPERS INC Address: 60 HICKORY DR WALTHAM. MA 02451-1013 Debtor 2 Name: JEEPERS INC. Address: 60 HICKORY DR WALTHAM. MA 02451-1013 Secured Party Information Secured 1 Name: NAMCO CYBERTAINMENT INC Address: 877 SUPREME DR BENSENVILLE, IL 60106-1106 Secured 2 Name: NAMCO CYBERTAINMENT INC. Address: 872 SUPREME DR BENSENVILLE, IL 60106-1107 Assignee Information Name: CENTRE CAPITAL INVESTORS II, L.O. Address: 30 ROCKEFELLER PLZ STE 5050 NEW YORK, NY 10112-0015 Filing Information Original Filing Number: 98265949 Original Filing Date: 12/18/1998 Filing 1 Filing Type: ASSIGNMENT Filing Date: 2/22/2000 Filing Number: 00034822 Filing 2 Filing Type: INITIAL FILING Filing Date: 12/18/1998 Filing Number: 98265949 Filing Offices Address: 162 WASHINGTON AVE ALBANY, NY 12210 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 12/18/1998 98265949 - EQUIPMENT ALL AND PRODUCTS 84:NY UCC LIEN FILING Debtor Information Debtor 1 Name: JEEPERS. INC. Address: 63 SOUTH AVE BURLINGTON. MA 01803-4903 Debtor 2 Name: JEEPERSI. INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Secured 1 Name: FLEET NATIONAL BANK Address: 1 FEDERAL ST BOSTON. MA 02211-0001 Secured 2 Name: LEASING TECHONOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Assignee Information Name: FLEET NATIONAL BANK Address: 1 FEDERAL ST BOSTON, MA 02211-0001 Filing Information Original Filing Number: 98252226 Original Filing Date: 11/30/1998 Filing 1 Filing Type: AMENDMENT Filing Date: 9/5/2000 Filing Number: 00171794 Filing 2 For internal use only SDNY_GM_00054670 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SONY-00 17494 EFTA 00165240 EFTA01295463 Page 51 84:NY UCC LIEN FILING Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 85:NY UCC LIEN FILING INITIAL FILING 11/30/1998 98252226 Filing Offices 162 WASHINGTON AVE ALBANY. NY 12210 SECRETARY OF STATE/UCC DIVISION Collateral Information 11/30/1998 98252226 - EQUIPMENT ALL Debtor Information Debtor 1 Name: JEEPARSI INC. Address: 60 HICKORY DR WALTHAM. MA 02451-1013 Debtor 2 Name: JEEPERS! INC. Address: 60 HICKORY DR WALTHAM. MA 02451-1013 Debtor 3 Name: JEEPERSL. INC. Address: 63 SOUTH AVE BURLINGTON, MA 01803-4903 Secured Party Information Secured 1 Name: FIRST UNION NATIONAL BANK, AS AGENT Address: 1339 CHESTNUT ST PHILADELPHIA. PA 19107-3519 Secured 2 Name: LEASING TECHNOLOGIES INTERNATIONAL. INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Assignee Information Name: FIRST UNION NATIONAL BANK AS AGENT Address: 1339 CHESTNUT ST PHILADELPHIA, PA 19107-3519 Filing Information Original Filing Number: 98229695 Original Filing Date: 10/29/1998 Filing 1 Filing Type: AMENDMENT Filing Date: 9/5/2000 Filing Number: 00171799 Filing 2 Filing Type: ASSIGNMENT Filing Date: 3/24/1999 Filing Number: 99058349 Filing 3 Filing Type: INITIAL FILING Filing Date: 10/29/1998 Filing Number: 98229695 Filing Offices Address: 162 WASHINGTON AVE ALBANY, NY 12210 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 10/29/1998 98229695 - EQUIPMENT:COMPUTER EQUIPMENT 86:NY UCC LIEN FILING Debtor Information Debtor 1 Name: JEEPERS! INC. Address: 60 HICKORY DR WALTHAM. Debtor 2 Name: JEEPERS. INC. Address: 60 HICKORY DR WALTHAM. Debtor 3 MA 02451-1013 MA 02451-1013 For internal use only SDNY_GM_00054671 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-00 17495 EFTA_00165241 EFTA01295464 Page 52 86:NY UCC LIEN FILING Name: JEEPERS, INC. Address: 63 SOUTH AVE BURLINGTON. MA 01803-4903 Secured Party Information Secured 1 Name: FIRST UNION NATIONAL BANK, AS AGENT Address: 1339 CHESTNUT ST PHILADELPHIA, PA 19107-3519 Secured 2 Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON, CT 06897-4007 Assignee Information Name: FIRST UNION NATIONAL BANK AS AGENT Address: 1339 CHESTNUT ST PHILADELPHIA, PA 19107-3519 Filing Information Original Filing Number: 98229697 Original Filing Date: 10/29/1998 Filing 1 Filing Type: AMENDMENT Filing Date: 9/5/2000 Filing Number: 00171802 Filing 2 Filing Type: ASSIGNMENT Filing Date: 3/24/1999 Filing Number: 99058348 Filing 3 Filing Type: INITIAL FILING Filing Date: 10/29/1998 Filing Number: 98229697 Filing Offices Address: 162 WASHINGTON AVE ALBANY, NY 12210 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 10/29/1998 98229697 - COMPUTER EQUIPMENT;EQUIPMENT 87:NY UCC LIEN FILING Debtor Information Name: JEEPERS INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Name: IMPERIAL BANK Address: 226 AIRPORT PKWY SAN JOSE, CA 95710-1004 Filing Information Original Filing Number: 98134898 Original Filing Date: 6/24/1998 Filing Type: INITIAL FILING Filing Date: 6/24/1998 Filing Number: 98134898 Filing Offices Address: 162 WASHINGTON AVE ALBANY, NY 12210 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 06/24/1998 98134898 - CONTRACT RIGHTS INCLUDING PROCEEDS AND PRODUCTS:ACCOUNTS RECEIVABLE INCLUDING PROCEEDS AND PRODUCTS:EQUIPMENT INCLUDING PROCEEDS AND PRODUCTS:GENERAL INTANGIBLE(S) INCLUDING PROCEEDS AND PRODUCTS.INVENTORY INCLUDING PROCEEDS AND PRODUCTS,CHATTEL PAPER INCLUDING PROCEEDS AND PRODUCTS,ACCOUNT(S) INCLUDING PROCEEDS AND PRODUCTS:FIXTURES INCLUDING PROCEEDS AND PRODUCTS:NEGOTIABLE INSTRUMENTS INCLUDING PROCEEDS AND PRODUCTS For internal use only SDNY_GM_00054672 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17496 EFTA_00 165242 EFTA01295465 Page 53 88:NY UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 89:NY UCC LIEN FILING Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 90:NY UCC LIEN FILING Name: Address: Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: Debtor Information JEEPERS INC. 60 HICKORY DR WALTHAM. MA 02451-1013 Secured Party Information NAMCO CYBERTAINMENT 877 SUPREME DR BENSENVILLE, IL 60106-1106 Filing Information 98104404 5/15/1998 INITIAL FILING 5/15/1998 98104404 Filing Offices 162 WASHINGTON AVE ALBANY. NY 12210 SECRETARY OF STATE/UCC DIVISION Collateral Information 05/15/1998 98104404 - EQUIPMENT Debtor Information JEEPERS' INC. 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information NAMCO CYBERTAINMENT INC 877 SUPREME DR BENSENVILLE, IL 60106.1106 Filing Information 98037631 2/23/1998 INITIAL FILING 2/23/1998 98037631 Filing Offices 162 WASHINGTON AVE ALBANY, NY 12210 SECRETARY OF STATE/UCC DIVISION Collateral Information 02/23/1998 98037631 - EQUIPMENT Debtor Information Debtor 1 JEEPERSI 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor 2 JEEPERSI OF NYACK, INC. 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information EKLECCO 4 CLINTON SO SYRACUSE, NY 13202 Filing Information 97180716 8/29/1997 INITIAL FILING 8/29/1997 97180716 Filing Offices 162 WASHINGTON AVE ALBANY, NY 12210 SECRETARY OF STATE/UCC DIVISION Collateral Information 08/29/1997 97180716 - INVENTORY INCLUDING PROCEEDS AND For internal use only SDNY_GM_00054673 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17497 EFTA 00165243 EFTA01295466 Page 54 90:NY UCC LIEN FILING PRODUCTS:FIXTURES INCLUDING PROCEEDS AND PRODUCTS.ACCOUNTS RECEIVABLE INCLUDING PROCEEDS AND PRODUCTS;EQUIPMENT INCLUDING PROCEEDS AND PRODUCTS 91:NY UCC LIEN FILING Debtor Information Debtor 1 Name: JEEPERS Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor 2 Name: JEEPERSI OF WALDEN. INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Name: PYRAMID COMPANY OF BUFFALO Address: 4 CLINTON SD SYRACUSE. NY 13202 Filing Information Original Filing Number: 97169658 Original Filing Date: 8/14/1997 Filing Type: INITIAL FILING Filing Date: 8/14/1997 Filing Number: 97169658 Filing Offices Address: 162 WASHINGTON AVE ALBANY, NY 12210 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 08/14/1997 97169658 - EQUIPMENT INCLUDING PROCEEDS AND PRODUCTS.INVENTORY INCLUDING PROCEEDS AND PRODUCTS,ACCOUNTS RECEIVABLE INCLUDING PROCEEDS AND PRODUCTS:FIXTURES INCLUDING PROCEEDS AND PRODUCTS 92:OH UCC LIEN FILING Name: Address: Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Number: Filing Date: Expiration Date: Filing Type: Filing Number: Filing Date: Expiration Date: Address: Filing Agency: 93:OH UCC LIEN FILING Name: Debtor Information JEEPERS! INC 60 HICKORY DR WALTHAM. MA 02451-1013 Secured Party Information IMPERIAL BANK 226 AIRPORT PKWY SAN JOSE. CA 95110-1004 Assignee Information GLOBAL ENTERTAINMENT VENTURES, LLC 153 NORTH AVE WESTON, MA 02493-2032 Filing Information AP0242826 5/24/2000 Filing 1 ASSIGNMENT 20011720640 6/18/2001 5/24/2005 Filing 2 INITIAL FILING AP0242826 5/24/2000 5/24/2005 Filing Offices 30 E BROAD ST COLUMBUS, OH 43215 SECRETARY OF STATE/UCC DIVISION Debtor Information JEEPERS INC For internal use only SDNY_GM_00054674 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SDNY-00 17498 EFTA_001 65244 EFTA01295467 Page 55 93:0H UCC LIEN FILING Address: Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Number: Filing Date: Expiration Date: Filing Type: Filing Number: Filing Date: Expiration Date: Address: Filing Agency: 94:0H UCC LIEN FILING Name: Address: Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Number: Filing Date: Expiration Date: Filing Type: Filing Number: Filing Date: Expiration Date: Address: Filing Agency: 95:UT UCC LIEN FILING Name: Address: Name: Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information NAMCO CYBERTAINMENT INC 877 SUPREME DR BENSENVILLE. IL 60106-1106 Assignee Information CENTRE CAPITAL INVESTORS II LP 30 ROCKEFELLER PLZ STE 5050 NEW YORK. NY 10112-0015 Filing Information AP0106680 12/10/1998 Filing 1 ASSIGNMENT 20000540163 2/22/2000 12/10/2003 Filing 2 INITIAL FILING AP0106680 12/10/1998 12/10/2003 Filing Offices 30 E BROAD ST COLUMBUS. OH 43215 SECRETARY OF STATE/UCC DIVISION Debtor Information Debtor 1 JEEPERS' INC 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor 2 JEEPERS! INC 63 SOUTH AVE BURLINGTON, MA 01803-4903 Secured Party Information FLEET NATIONAL BANK 1 FEDERAL ST BOSTON. MA 02211-0001 Filing Information AP0101092 11/30/1998 Filing 1 AMENDMENT 20002520019 9/5/2000 11/30/2003 Filing 2 INITIAL FILING AP0101092 11/30/1998 11/30/2003 Filing Offices 30 E BROAD ST COLUMBUS, OH 43215 SECRETARY OF STATE/UCC DIVISION Debtor Information JEEPER! INC. 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information IMPERIAL BANK 226 AIRPORT PKWY SAN JOSE, CA 95110-1004 Filing Information For internal use only SDNY_GM_00054675 CONFIDENTIAL - PURSUANT TO FED. R.cON(F IDENTIAL DB-SDNY-00 17499 EFTA_001 65245 EFTA01295468 Page 56 95:UT UCC LIEN FILING Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 96:UT UCC LIEN FILING Name: Address: Name: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number Address: Filing Agency: 97:UT UCC LIEN FILING Name: Address: Name: Address: Name: Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number Address: Filing Agency: 98609167 6/23/1998 INITIAL FILING 6/23/1998 98609167 Filing Offices 160 EAST 300 SOUTH SALT LAKE CITY. UT 84111 DEPARTMENT OF COMMERCE/UCC DIVISION Collateral Information 06/23/1998 98609167 - EQUIPMENT INCLUDING PROCEEDS AND PRODUCTS,FIXTURES INCLUDING PROCEEDS AND PRODUCTS.ACCOUNT(S) INCLUDING PROCEEDS AND PRODUCTS:CHATTEL PAPER INCLUDING PROCEEDS AND PRODUCTS:GENERAL INTANGIBLE(S) INCLUDING PROCEEDS AND PRODUCTS:INVENTORY INCLUDING PROCEEDS AND PRODUCTSACCOUNTS RECEIVABLE INCLUDING PROCEEDS AND PRODUCTS:CONTRACT RIGHTS INCLUDING PROCEEDS AND PRODUCTS.NEGOTIABLE INSTRUMENTS INCLUDING PROCEEDS AND PRODUCTS:PARTNERSHIP INTEREST Debtor Information Debtor 1 JEEPERS, INC. 60 HICKORY DR FL 5 WALTHAM. MA 02451-1013 Debtor 2 JUNGLE JIMS PLAYLAND OF UTAH Secured Party Information MOUNTAIN COIN MACHINE DIST 3753 S STATE ST SALT LAKE CITY. UT 84115-4812 Filing Information 97-582650 10/22/1997 TERMINATION 6/15/2000 97-582650 Filing Offices 160 EAST 300 SOUTH SALT LAKE CITY, UT 84111 UCC DIV Debtor Information Debtor 1 JEEPERS, INC 60 HICKORY DR FL 5 WALTHAM. MA 02451-1013 Debtor 2 JUNGLE JIMS PLAYLAND OF UTAH 60 HICKORY DR FL 5 WALTHAM. MA 02451-1013 Secured Party Information MOUNTAIN COIN MACHINE DIST 3753 S STATE ST SALT LAKE CITY, UT 84115-4812 Filing Information 97582650 10/22/1997 INITIAL FILING 10/22/1997 97582650 Filing Offices 160 EAST 300 SOUTH SALT LAKE CITY, UT 84111 DEPARTMENT OF COMMERCE/UCC DIVISION For internal use only SDNY_GM_00054676 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17500 EFTA_00165246 EFTA01295469 Page 57 97:UT UCC LIEN FILING Collateral Information Description: 10/22/1997 97582650 - EQUIPMENT 98:UT UCC LIEN FILING Debtor Information Name: JEEPERS, INC Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Name: MOUTAIN COIN MACHINE DIST Address: 3753 S STATE ST SALT LAKE CITY, UT 84115-4812 Filing Information Original Filing Number: 97575024 Original Filing Date: 8/12/1997 Filing Type: INITIAL FILING Filing Date: 8/12/1997 Filing Number: 97575024 Filing Offices Address: 160 EAST 300 SOUTH SALT LAKE CITY, UT 84111 Filing Agency: DEPARTMENT OF COMMERCE/UCC DIVISION Collateral Information Description: 08/12/1997 97575024 - EQUIPMENT INCLUDING PROCEEDS AND PRODUCTS 99:VA UCC LIEN FILING Debtor Information Debtor Name: JEEPERS! INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Debtor 2 Name: JEEPERS!, INC. Address: 63 SOUTH AVE BURLINGTON. MA 01803-4903 Secured Party Information Secured 1 Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Secured 2 Name: LEASING TECHNOLOGIES INTERNATIONAL, INC. Address: 221 DANBURY RD WILTON. CT 06897-4007 Filing Information Original Filing Number: 000106 7187 Original Filing Date: 1/6/2000 Filing 1 Filing Type: AMENDMENT Filing Date: 8/22/2000 Filing Number: 000822 7167 Filing 2 Filing Type: INITIAL FILING Filing Date: 1/6/2000 Filing Number: 000106 7187 Filing Offices Address: OLD FINANCE BLDG CAPITOL SQUARE RICHMOND, VA 23219 Filing Agency: SECRETARY OF THE COMMONWEALTH/UCC DIVISION Collateral Information Description: 01/06/2000 000106 7187 - EQUIPMENT 100:VA UCC LIEN FILING Debtor Information Name: JEEPERS' INC. Address: 60 HICKORY DR WALTHAM, MA 02451-1013 Secured Party Information Name: IMPERIAL BANK For internal use only SDNY_GM_00054677 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-0017501 EFTA 00165247 EFTA01295470 Page 58 100:VA UCC LIEN FILING Address: Original Filing Number: Original Filing Date: Filing Type: Filing Date: Filing Number: Address: Filing Agency: Description: 226 AIRPORT PKWY SAN JOSE, CA 95110-1004 Filing Information 980624 7868 6/24/1998 INITIAL FILING 6/24/1998 980624 7868 Filing Offices OLD FINANCE BLDG CAPITOL SQUARE RICHMOND, VA 23219 SECRETARY OF THE COMMONWEALTH/UCC DIVISION Collateral Information 06/24/1998 980624 7868 - NEGOTIABLE INSTRUMENTS INCLUDING PROCEEDS AND PRODUCTS:ACCOUNTS RECEIVABLE INCLUDING PROCEEDS AND PRODUCTS;ACCOUNT(S) INCLUDING PROCEEDS AND PRODUCTS:FIXTURES INCLUDING PROCEEDS AND PRODUCTS.CONTRACT RIGHTS INCLUDING PROCEEDS AND PRODUCTS:EQUIPMENT INCLUDING PROCEEDS AND PRODUCTS,GENERAL INTANGIBLE(S) INCLUDING PROCEEDS AND PRODUCTS:CHATTEL PAPER INCLUDING PROCEEDS AND PRODUCTS:PARTNERSHIP INTEREST.INVENTORY INCLUDING PROCEEDS AND PRODUCTS Real Property - 26 records found 1: Assessment Record for ANDERSON County, TX Owner Information WEINBERG & SANDOLOSKI 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 MIDDLESEX Property Information W LACY ST PALESTINE, TX 75801 ANDERSON B Name: Address: County/FIPS: Address: County/FIPS: Data Source: Legal Information Assessor's Parcel R29119 Number: Assessed Value: Market Land Value: Total Market Value: Assessment Information $3325 $3325 $3325 2: Assessment Record for ANDERSON County, TX Owner Information WEINBERG & SANDOLOSKI 800 SOUTH ST STE 355 WALTHAM, MA 02453.1457 MIDDLESEX Property Information W LACY ST PALESTINE. TX B Name: Address: County/FIPS: Address: Data Source: Legal Information Assessor's Parcel R29119 For internal use only SDNY_GM_00054678 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-0017502 EFTA_00 I 6524.8 EFTA01295471 Page 59 Number: Assessed Value: Market Land Value: Total Market Value: 3: Assessment Record for Name: Address: County/FIPS: Address: Data Source: Assessment Information $3325 $3325 $3325 ANDERSON County, TX Owner Information WEINBERG 8 SANDOLOSKI 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 MIDDLESEX Property Information W LACY ST PALESTINE, TX 8 Legal Information Assessor's Parcel R29119 Number: Assessment Information Assessed Value: $3325 Market Land Value: $3325 Total Market Value: $3325 4: Assessment Record for ANDERSON County, TX Owner Information WEINBERG 8 SANDOLOSKI 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 MIDDLESEX Property Information W LACY ST PALESTINE. TX Name: Address: County/FIPS: Address: Data Source: Legal Information Assessor's Parcel R29119 Number: Assessed Value: Market Land Value: Total Market Value: Assessment Information $3325 $3325 $3325 5: Assessment Record for ANDERSON County, TX Owner Information Name: Address: County/FIPS: Address: W LACY ST Data Source: Legal Information For internal use only SDNY_GM_00054679 CONFIDENTIAL - PURSUANT TO FED. R.QQN(FIDENTIAL DB-SONY-00 17503 EFTA_00 165249 EFTA01295472 Page 60 Assessor's Parcel R29119 Number: Assessment Information Assessed Value: $3320 Market Land Value: $3320 Total Market Value: $3320 6: Assessment Record for MONTGOMERY County, MD Owner Information Name: CONROY, JOHN M Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 County/FIPS: MIDDLESEX Property Information Address: 700 HUNGERFORD DR ROCKVILLE, MD 20850-1724 County/FIPS: MONTGOMERY Data Source: B Legal Information Assessor's Parcel 04-00144650 Number: Recording Date: 12/30/1988 Book/Page: 8636/92 Assessment Information Assessed Value: $4946166 Market Land Value: $1905300 Market Improvement $3552900 Value: Total Market Value: $5458200 7: Assessment Record for MONTGOMERY County, MD Owner Information CONROY JOHN M 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 MIDDLESEX Property Information 700 HUNGERFORD DR ROCKVILLE, MD 20850-1724 MONTGOMERY B Name: Address: County/FIPS: Address: County/FIPS: Data Source: Assessor's Parcel Number: Recording Date: 12/30/1988 Book/Page: 8636/92 Assessment Information Assessed Value: $1080066 Market Land Value: $1140800 Market Improvement $100 Value: Legal Information 04-00144661 For internal use only SDNY_GM_00054680 CONFIDENTIAL - PURSUANT TO FED. R.CCIN(FIDENTIAL DB-SONY-00 17504 EFTA_00 165250 EFTA01295473 Page 61 Total Market Value: $1140900 8: Assessment Record for ANDERSON County, TX Owner Information Name: Address: County/FIPS: Address: Data Source: WEINBERG 8 SANDOLOSKI 800 SOUTH ST STE 355 WALTHAM, MA 02453.1457 MIDDLESEX Property Information W LACY ST 8 Legal Information Assessor's Parcel R29119 Number: Assessment Information Assessed Value: $3320 Market Land Value: $3320 Total Market Value: $3320 9: Assessment Record for Name: Address: County/FIPS: Address: County/FIPS: Data Source: Assessor's Parcel Number: MARICOPA County, AZ Owner Information JUNGLE JIMS PLAYLANDS OF AZ INC 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 MIDDLESEX Property Information 4961 W BELL RD PHOENIX. AZ 85053 MARICOPA B Legal Information 3169489 Assessment Information Assessed Value: $5165 Total Market Value: $20665 10: Assessment Record for MARICOPA County, AZ Owner Information Name: Address: County/FIPS: Address: County/FIPS: Data Source: JUNGLE JIMS PLAYLANDS OF AZ INC 800 SOUTH ST STE 355 WALTHAM, MA 02453.1457 MIDDLESEX Property Information 4961 W BELL RD PHOENIX, AZ 85053 MARICOPA 8 Legal Information Assessor's Parcel 3169489 Number: Assessment Information For internal use only SDNY_GM_00054681 CONFIDENTIAL - PURSUANT TO FED. R.QPN(F IDENTIAL DB-SONY-00 17505 EFTA_00165251 EFTA01295474 Page 62 Assessed Value: $5165 Total Market Value: $20665 11: Assessment Record for MONTGOMERY County, MD Owner Information Name: CONROY JOHN M Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453.1457 County/FIPS: MIDDLESEX Property Information 700 HUNGERFORD DR ROCKVILLE, MD 20850-1724 MONTGOMERY B Address: County/FIPS: Data Source: Legal Information Assessor's Parcel 04-00144650 Number: Recording Date: 12/30/1988 Book/Page: 8636192 Assessment Information Assessed Value: $4434133 Market Land Value: $1905300 Market Improvement $3552900 Value: Total Market Value: $5458200 12: Assessment Record for MONTGOMERY County, MD Owner Information Name: CONROY, JOHN M Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 County/FIPS: MIDDLESEX Property Information Address: 700 HUNGERFORD DR ROCKVILLE, MD 20850.1724 County/FIPS: MONTGOMERY Data Source: B Legal Information Assessor's Parcel 04-00144661 Number: Recording Date: 12/30/1988 Book/Page: 8636/92 Assessment Information Assessed Value: $1019233 Market Land Value: $1140800 Market Improvement S100 Value: Total Market Value: $1140900 13: Assessment Record for MONTGOMERY County, MD Owner Information Name: CONROY JOHN M For internal use only SDNY_GM_00054682 CONFIDENTIAL - PURSUANT TO FED. R.QQN(FIDENTIAL DB-SONY-00 17506 EFTA_00I 65252 EFTA01295475 Page 63 Address: County/FIPS: Address: County/FIPS: Data Source: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 MIDDLESEX Property Information 700 HUNGERFORD DR ROCKVILLE, MD 20850-1724 MONTGOMERY B Legal Information Assessor's Parcel 04-00144650 Number: Recording Date: 12/30/1988 Book/Page: 8636/92 Assessment Information Assessed Value: $3922100 Market Land Value: $1587700 Market Improvement $2334400 Value: Total Market Value: $3922100 14: Assessment Record for MONTGOMERY County, MD Owner Information Name: CONROY JOHN M Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 County/FIPS: MIDDLESEX Property Information 700 HUNGERFORD DR ROCKVILLE. MD 20850-1724 MONTGOMERY B Address: County/FIPS: Data Source: Legal Information Assessors Parcel 04-00144661 Number: Recording Date: 12/30/1988 Book/Page: 8636/92 Assessment Information Assessed Value: $958400 Market Land Value: $958300 Market Improvement $100 Value: Total Market Value: $958400 15: Assessment Record for MARICOPA County, AZ Owner Information Name: JUNGLE JIMS PLAYLANDS OF AZ INC Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 County/FIPS: MIDDLESEX Property Information Address: 4961 W BELL RD PHOENIX, AZ 85053 County/FIPS: MARICOPA For internal use only SDNY_GM_00054683 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-0017507 EFTA 00165253 EFTA01295476 Page 64 Data Source: B Legal Information Assessor's Parcel 3169489 Number: Assessment Information Assessed Value: $5280 Total Market Value: $21122 16: Assessment Record for MONTGOMERY County, MD Owner Information Name: CONROY JOHN M Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 County/FIPS: MIDDLESEX Property Information Address: 700 HUNGERFORD DR ROCKVILLE. MD 20850-1724 County/FIPS: MONTGOMERY Data Source: B Legal Information Assessor's Parcel 04-00144650 Number: Recording Date: 12/30/1988 Book/Page: 8636/92 Assessment Information Assessed Value: $3750066 Market Land Value: $1587700 Market Improvement $2334400 Value: Total Market Value: $3922100 17: Assessment Record for MONTGOMERY County, MD Owner Information Name: CONROY, JOHN M Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 County/FIPS: MIDDLESEX Property Information Address: 700 HUNGERFORD DR ROCKVILLE, MD 20850-1724 County/FIPS: MONTGOMERY Data Source: B Assessor's Parcel Number: Recording Date: Book/Page: Assessed Value: Market Land Value: Market Improvement Legal Information 04-00144661 12/30/1988 8636/92 Assessment Information $943166 $958300 $100 For internal use only SDNY_GM_00054684 CONFIDENTIAL - PURSUANT TO FED. R.CCANI(EIDENTIAL DB-SONY-00 17508 EFTA 00165254 EFTA01295477 Page 65 Value: Total Market Value: $958400 18: Assessment Record for MONTGOMERY County, MD Owner Information Name: CONROY JOHN M Address: 800 SOUTH ST STE 355 WALTHAM, MA 02453.1457 County/FIPS: MIDDLESEX Property Information 700 HUNGERFORD DR ROCKVILLE, MD 20850-1724 MONTGOMERY B Address: County/FIPS: Data Source: Legal Information Assessor's Parcel 04-00144650 Number: Recording Date: 12/30/1988 Book/Page: 8636192 Assessment Information Assessed Value: $3750066 Market Land Value: $1587700 Market Improvement $2334400 Value: Total Market Value: $3922100 19: Assessment Record for MONTGOMERY County, MD Owner Information Name: CONROY, JOHN M Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 County/FIPS: MIDDLESEX Property Information Address: 700 HUNGERFORD DR ROCKVILLE, MD 20850.1724 County/FIPS: MONTGOMERY Data Source: B Legal Information Assessor's Parcel 04-00144661 Number: Recording Date: 12/30/1988 Book/Page: 8636/92 Assessment Information Assessed Value: $943166 Market Land Value: $958300 Market Improvement $100 Value: Total Market Value: $958400 20: Assessment Record for OAKLAND County, MI Owner Information Name: JEEPERS For internal use only SDNY_GM_00054685 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0017509 EFTA 00165255 EFTA01295478 Page 66 Name: Address: County/FIPS: Address: County/FIPS: Data Source: Assessor's Parcel Number: Assessed Value: JEEPERS OF AUBURN HILLS 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 MIDDLESEX Property Information 4240 BALDWIN RD AUBURN HILLS, MI 48326-1267 OAKLAND 8 Legal Information 99-00-099-175 Assessment Information $532390 21: Assessment Record for OAKLAND County, MI Owner Information JEEPERS' 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 MIDDLESEX Property Information 4240 BALDWIN RD AUBURN HILLS, MI 48326-1267 OAKLAND Name: Address: County/FIPS: Address: County/FIPS: Data Source: Legal Information Assessor's Parcel 99-00-099-175 Number: Assessed Value: Assessment Information $750000 22: Assessment Record for OAKLAND County, MI Owner Information JEERERS. INC 800 SOUTH ST STE 35 WALTHAM, MA 02453-1478 MIDDLESEX Property Information 21500 NORTHWESTERN I-WY SOUTHFIELD, MI 48075-5018 OAKLAND Name: Address: County/FIPS: Address: County/FIPS: Data Source: Legal Information Assessor's Parcel 99-62-076-490 Number: Assessed Value: Assessment Information $515540 23: Assessment Record for MONTGOMERY County, MD Owner Information Name: CONROY. JOHN M Address: 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 For internal use only SDNY_GM_00054686 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-0017510 EFTA_00 165256 EFTA01295479 Page 67 County/FIPS: Address: County/FIPS: Data Source: Assessor's Parcel Number: Recording Date: Book/Page: Assessed Value: Market Land Value: Market Improvement Value: Total Market Value: MIDDLESEX Property Information 700 HUNGERFORD DR ROCKVILLE, MD 20850-1724 MONTGOMERY Legal Information 04-00144650 12/30/1988 8636/92 Assessment Information $3406000 $1587700 $1818300 $3406000 24: Assessment Record for MONTGOMERY County, MD Owner Information CONROY. JOHN M 800 SOUTH ST STE 355 WALTHAM. MA 02453-1457 MIDDLESEX Property Information 700 HUNGERFORD DR ROCKVILLE. MD 20850-1724 MONTGOMERY B Name: Address: County/FIPS: Address: County/FIPS: Data Source: Legal Information Assessors Parcel 04-00144661 Number: Recording Date: 12/30/1988 Book/Page: 8636/92 Assessment Information Assessed Value: $912700 Market Land Value: $912600 Market Improvement $100 Value: Total Market Value: $912700 25: Assessment Record for MONTGOMERY County, MD Owner Information CONROY, JOHN M 60 HICKORY DR WALTHAM. MA 02451-1013 MIDDLESEX Property Information 700 HUNGERFORD DR ROCKVILLE, MD 20850-1724 MONTGOMERY Name: Address: County/FIPS: Address: County/FIPS: Data Source: For internal use only SDNY_GM_00054687 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0017511 EFTA_00 165257 EFTA01295480 Page 68 Legal Information Assessor's Parcel 04-00144650 Number: Recording Date: 12/30/1988 Book/Page: 8636/92 Assessment Information Assessed Value: $3406000 Market Land Value: $1587700 Market Improvement $1818300 Value: Total Market Value: $3406000 26: Assessment Record for MONTGOMERY County, MD Owner Information CONROY. JOHN M 60 HICKORY DR WALTHAM, MA 02451-1013 MIDDLESEX Property Information 700 HUNGERFORD DR ROCKVILLE. MD 20850-1724 MONTGOMERY Name: Address: County/FIPS: Address: County/FIPS: Data Source: B Legal Information Assessor's Parcel 04-00144661 Number: Recording Date: 12/30/1988 Book/Page: 8636/92 Assessment Information Assessed Value: $912700 Market Land Value: $912600 Market Improvement $100 Value: Total Market Value: $912700 Professional Licenses - 3 records found 1: Professional License Licensee Information Company Name: JEEPERS Address: License Information Profession or Board: CARNIVAL/AMUSEMENT SAFETY License Type: COMPANY License Number: 2001000228 2: Professional License Company Name: Address: Profession or Board: License Type: License Number: Licensee Information JEEPERS • License Information CARNIVAL/AMUSEMENT COMPANY 2001000228 For internal use only SDNY_GM_00054688 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-0017512 EFTA_00 165258 EFTA01295481 Page 69 3: Professional License Company Name: Address: Name: Profession or Board: License Type: License Number: Licensee Information JEEPERS' INC. License Information ATTORNEYS ATTORNEY 561189 Business Associates - 50 records found # Name Address 1. 1THE JEEPERS OF OLATHE 20070 W 151ST ST OLATHE. KS 66061-7229 2. AAFFORDABLE FUNITURE CTR 166 LAFAYETTE RD SALISBURY, MA 01952-1507 3. AAFFORDABLE FURNITUR 166 LAFAYETTE RD SALISBURY, MA 01952-1507 4. AAFORDABLE FURNITURE & TRADE CENTER 166 LAFAYETTE RD SALISBURY, MA 01952-1507 5. ADAMS-RUSSELL, INC. 63 SOUTH AVE MS 228 BURLINGTON. MA 01803-4903 6. AFFORD A MOVE 166 LAFAYETTE RD SALISBURY. MA 01952-1507 7. AFFORDABLE MOVING SYSTEMS INC 166 LAFAYETTE RD SALISBURY, MA 01952-1507 8. ARUNDEL COOLING AND HEATING 5800 BALTIMORE NATIONAL PIKE CATONSVILLE, MD 21228.1308 9. BIG LOTS 2525 CLEANLEIGH DR PARKVILLE, MD 21234-6809 10 BRENTWOOD GLASS COMPANY, INC. 166 LAFAYETTE RD SALISBURY. MA 01952-1507 11. CHILDREN'S PLACE OUTLET THE 8321 CONCORD MILLS BLVD CONCORD, NC 28027-6460 12. CITY LIFE CARDS & GIFTS 5800 BALTIMORE NATIONAL PIKE CATONSVILLE, MD 21228.1308 13. CLINSOFT, INC. BURLINGTON, MA 14. CONCENTRIC VISIONS BURLINGTON. MA 15. CONCORDE GREEN SHOPPING CENTER 91 NORTH AVE GLENDALE HEIGHTS, IL 60139-3496 16. CURRIER-SMITH CORPORATION 63 SOUTH AVE BURLINGTON, MA 01803-4903 17. D. I. C. O. LEASING, INC. 166 LAFAYETTE RD SALISBURY, MA 01952-1507 18. DANIEL A. GRAF AND JANET E. GRAF, TRUSTEES 166 LAFAYETTE RD OF PLUM BUSH REAL SALISBURY. MA 01952-1507 19. DAVID J. HARDY CONSTRUCTION CO 5800 BALTIMORE NATIONAL PIKE CATONSVILLE, MD 21228-1308 20. DICO CONTAINERS 166 LAFAYETTE RD SALISBURY, MA 01952-1507 21. DICO LEASING. INC. 166 LAFAYETTE RD SALISBURY, MA 01952-1507 22. DOMAIN MANUFACTURING, CORP. 63 SOUTH AVE BURLINGTON. MA 01803-4903 23. DOWNEAST SERVICES INCORPORATED 166 LAFAYETTE RD SALISBURY, MA 01952-1507 24. EAT, LLC 166 LAFAYETTE RD SALISBURY, MA 01952-1507 25. EFORCE 63 SOUTH AVE BURLINGTON, MA 01803-4903 26. FELLOWS PLUMBING & HEATING, IN 5800 BALTIMORE NATIONAL PIKE For internal use only SDNY_GM_00054689 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0017513 EFTA 00165259 EFTA01295482 # Name Page 70 Address CATONSVILLE, MD 21228-1308 27. GRAF BROS. LEASING. INC. 166 LAFAYETTE RD SALISBURY, MA 01952-1507 28. I-KINETICS, INC. 63 SOUTH AVE BURLINGTON, MA 01803-4903 29. IROBOT CORP. 63 SOUTH AVE BURLINGTON. MA 01803-4903 30. J & C TRUCKING & DEMO 166 LAFAYETTE RD SALISBURY, MA 01952-1507 31. JEEPERS CHILDRES ENTERTAINMENT CENTER 8321 CONCORD MILLS BLVD CONCORD, NC 28027-6460 32. JEEPERS INC 91 NORTH AVE GLENDALE HEIGHTS, IL 60139-3496 33. JEEPERS OF ILLINOIS INC 60 HICKORY DR WALTHAM. MA 02451-1013 34. JEEPERS OF KANSAS INC 20070 W 151ST ST OLATHE. KS 66061-7229 35. JEEPERS OF WALDEN. INC. 60 HICKORY DR WALTHAM, MA 02451-1013 36. JEEPERS! OF NORRIDGE II, INC. 63 SOUTH AVE BURLINGTON, MA 01803-4903 37. JEEPERS! OF NORTH CAROLINA, INC. 8321 CONCORD MILLS BLVD CONCORD. NC 28027-6460 38. JEEPERS, INC. 60 HICKORY DR WALTHAM, MA 02451-1013 39. JEEPERS) OF BALTIMORE PARKWAY INC. 2525 C LEANLEIGH DR PARKVILLE, MD 21234-6809 40. JEEPERS) OF GLEN BURNIE. INC. 63 SOUTH AVE BURLINGTON, MA 01803-4903 41. JEEPERSJINC. 17677 TORRENCE AVE LANSING, IL 60438-4839 42. JUNGLE JIM'S PLAYLAND 739 FORT UNION BLVD MIDVALE, UT 84047-2348 43. JUNGLE JIM'S PLAYLANDS OF ARIZONA, INC. 60 HICKORY DR WALTHAM, MA 02451-1013 44. JUNGLE JIM'S PLAYLANDS OF KANSAS, INC OLATHE, KS 45. KEURIG INCORPORATED 63 SOUTH AVE BURLINGTON, MA 01803-4903 46. KORN FERRY INTERNATIONAL 63 SOUTH AVE BURLINGTON, MA 01803-4903 47. LAHEY CLINIC BURLINGTON, MA 48. LANSING SOVARE 4516 N HARLEM AVE HARWOOD HEIGHTS, IL 60706-4712 49. M. A C. O. M., INC 63 SOUTH AVE BURLINGTON, MA 01803-4903 50. MERIDEL INCORPORATED 20070 W 151ST ST OLATHE, KS 66061-7229 Person Associates - 22 records found # Name Address 1. ALMARAZ, JENNIE 800 SOUTH ST STE 355 WALTHAM, MA 02453-1457 2. ALMARAZ, JENNY 800 SOUTH ST WALTHAM, MA 02453-1478 3. BARDURY, NADINE 800 SOUTH ST WALTHAM, MA 02453-1478 4. CONNOLLY, MARY-ELISE 50 WHITTEMORE RO NEW TON, MA 02458-2106 5. CONNOLLY, MARY-ELISE 800 SOUTH ST WALTHAM, MA 02453-1478 For internal use only SDNY_GM_00054690 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-0017514 EFTA _00 165260 EFTA01295483 # Name Page 71 Address 6. DAVIS, JOMATHAN 5800 BALTIMORE NATIONAL PIKE CATONSVILLE. MD 21228-1308 7. DEVINE, JOHN 20070 W 151ST ST OLATHE. KS 66061-7229 8. DUFTEN, MARK 800 SOUTH ST 9. EAGAN. PAT WALTHAM, MA 02453-1478 10. EAGAN, PATRICK 20070 W 151ST ST OLATHE, KS 66061-7229 11. EL, HAGE 20070 W 151ST ST OLATHE. KS 66061-7229 12. ELHAGE. NABIL 60 HICKORY DR WALTHAM, MA 02451-1013 13. EL-RAGE, NABIL 153 NORTH AVE WESTON. MA 02493-2032 14. EVANCHO, CLIFTON 60 HICKORY DR FL 5 WALTHAM, MA 02451-1013 15. EVEANCHO, CLIFTON 60 HICKORY DR FL 5 WALTHAM, MA 02451-1013 16. HAGE. EL 20070 W 151ST ST OLATHE. KS 66061-7229 17. RAGE, NABIL E 60 HICKORY DR FL 5 WALTHAM. MA 02451-1013 18 MARSH, NORMAN 5800 BALTIMORE NATIONAL PIKE CATONSVILLE, MD 21228-1308 19. MEDIN, STEVE 267 MOODY ST STE 209 WALTHAM. MA 02453-5234 20. PURNELL. FASON 6711 RITCHIE FfWY GLEN BURNIE, MD 21061-2315 21. SANGINARIO, KENNETH J 21 LYNBROOK RD SOUTHBOROUGH, MA 01772-1427 22. STEVE. MEDIN 267 MOODY ST WALTHAM, MA 02453-5234 Sources - 360 records found All Sources Business Contacts Business Finder Corporate Filings Experian Business Reports IRS Form 5500 Liens and Judgments Professional Licenses Property UCC Lien Filings 360 Source Document(s) 89 Source Document(s) 116 Source Document(s) 3 Source Document(s) 15 Source Document(s) 2 Source Document(s) 25 Source Document(s) 3 Source Document(s) 26 Source Document(s) 81 Source Document(s) Important: The Public Records and commercially available data sources used on reports have errors. Data is sometimes entered poorly, processed incorrectly and is generally not free from defect. This system should not be relied upon as definitively accurate. Before relying on any data this system supplies. it should be independently verified. For Secretary of State documents, the following data is for information purposes only and is not an official record. Certified copies may be obtained from that individual state's Department of State. Your DPPA Permissible Use is: Debt Recovery/Fraud Your GLBA Permissible Use is: Legal Compliance Copyright® 2013 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. 2 OF 3 RECORD(S) For internal use only SDNY_GM_00054691 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-0017515 EFTA 00165261 EFTA01295484 Page 72 FOR INFORMATIONAL PURPOSES ONLY Copyright 2013 LexisNexis a division of Reed Elsevier Inc. All Rights Reserved. Subject Summary Name Address JEEPERS. INC. 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 Name Variations/DBAs # Name Variations 1. JEEPERS. INC Phone Summary -1 records found # Telephone Number 1 (480) 446-7700 Addresses - 2 records found # Address Dates County MSA 1. 1127 N SCOTTSDALE RD 1/1996 - MARICOPA Phoenix-Mesa, TEMPE. AZ 85281 AZ -6200 8/6/2009 2. 621 WINDSPIRIT CIR 2/21/2007 - YAVAPAI PRESCOTT, AZ 86303 Phone County/FIPS 6/4/2007 Profile Information - 5 records found 1: JEEPERS, INC. Company Name: JEEPERS. INC. Date Of Incorporation: 2/21/2007 State Of Incorporation: AZ Charter Number: 13464693 Duration: PERPETUAL Status Of Incorporation: AD-DISSOLVED-FILE ANNUAL REPORT Corporation Structure: BUSINESS 2: JEEPERS, INC. Company Name: JEEPERS. INC. Date Of Incorporation: 2/21/2007 State Of Incorporation: AZ Charter Number: 13464693 Duration: PERPETUAL Status Of Incorporation: DELINQUENT ANNUAL REPORT Corporation Structure: BUSINESS 3: JEEPERS, INC. Company Name: JEEPERS, INC. Date Of Incorporation: 2/21/2007 State Of Incorporation: AZ Charter Number: 13464693 Duration: PERPETUAL Status Of Incorporation: ACTIVE Corporation Structure: BUSINESS 4: JEEPERS, INC. Company Name: JEEPERS, INC. For internal use only SDNY_GM_00054692 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SDNY-0017516 EFTA_00 165262 EFTA01295485 Page 73 4: JEEPERS, INC. Date Of Incorporation: 2/21/2007 State Of Incorporation: AZ Charter Number: 13464693 Duration: PERPETUAL Status Of Incorporation: ACTIVE 5: JEEPERS, INC. Company Name: JEEPERS, INC. Date Of Incorporation: 2/21/2007 State Of Incorporation: AZ Charter Number: 13464693 Duration: PERPETUAL Status Of Incorporation: ACTIVE Corporation Structure: BUSINESS Executives - 2 records found # Name 1. ALLARD. BOB 2. SPAULDING, ANDREW Registered Agents - 2 records found # Name 1. BOB ALLARD 2. BOB ALLARD Industry Information - 2 records found Industry Numbers SIC Codes: Titles DIRECTOR, CONTACT MANAGER Address 1127 N SCOTTSDALE RD TEMPE. AZ 85281-1728 621 WINDSPIRIT CIR PRESCOTT, AZ 863036711 7993 Amusement Devices, Coin-Operated 7996 Amusement Parks Company ID Numbers - 1 records found Company ID Numbers Sec. of State Charter No(s): AZ, 13464693 Business Associates - 25 records found # Name Address 1. AUTO JUNCTION BENZ 8 BEEMERS 1127 N SCOTTSDALE RD TEMPE. AZ 85261-1728 2. BAMCIS INC 621 WINDSPIRIT CIR PRESCOTT, AZ 86303.6711 3. CAFE LA SERRE 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 4. CATHERINE A CONTADINO 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 5. CATHERINE A HICKEY 1127 N SCOTTSDALE RD TEMPE, AZ 85281.1728 6. CONTADINO, CATHERINE A. 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 7. CREDIT UNION LEASING 8 SALES, INC. 1127 N SCOTTSDALE RD TEMPE, AZ 85281.1728 8. DIANE SIMONIS 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 9. GDM HOLDINGS LLC 621 WINDSPIRIT CIR PRESCOTT, AZ 86303.6711 10. GEORGE S HICKEY 1127 N SCOTTSDALE RD TEMPE, P2 85281.1728 For internai use only SDNY_GM_00054693 CONFIDENTIAL - PURSUANT TO FED. R.QPN(F IDENTIAL DB-SDNY-0017517 EFTA 0(1165263 EFTA01295486 Page 74 # Name Address 11. GREGORY SCOTT HICKEY 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 12 HICKEY AUTO WHOLESALE 1127 N SCOTTSDALE RD TEMPE. AZ 85281-1728 13. HICKEY, CATHERINE A 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 14. HICKEY. GEORGE S. 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 15. HICKEY, GREGORY SCOTT 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 16. JAMES EVELD 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 17. JEEPERS, INC. 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 18. KEN SIMONIS 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 19. LEASING RENTAL CAR INC 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 20. PRO-MOTOR SALES. LEASING, RENTAL CAR, 1127 N SCOTTSDALE RD INC. TEMPE, AZ 85281-1728 21. PROMOTORS SALES CO 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 22. PRO-MOTORS SALES CO 1127 N SCOTTSDALE RD TEMPE. AZ 85281.1728 23. TEMPE CAR CO 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 24. TOPLESS CUSTOM 4X4 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 25. U-HAUL CO 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 Person Associates - 2 records found # Name 1. ALLARD, BOB 2. SPAULDING, ANDREW Sources - 15 records found All Sources Business Contacts Business Finder Corporate Filings Experian Business Reports Address 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 1127 N SCOTTSDALE RD TEMPE, AZ 85281-1728 15 Source Document(s) 5 Source Document(s) 7 Source Document(s) 1 Source Document(s) 2 Source Document(s) Important: The Public Records and commercially available data sources used on reports have errors. Data is sometimes entered poorly, processed incorrectly and is generally not free from defect This system should not be relied upon as definitively accurate. Before relying on any data this system supplies. it should be independently verified. For Secretary of State documents. the following data is for information purposes only and is not an official record. Certified copies may be obtained from that individual state's Department of State. Your DPPA Permissible Use is: Debt Recovery/Fraud Your GLBA Permissible Use is: Legal Compliance Copyright® 2013 LexisNexis. a division of Reed Elsevier Inc. All rights reserved. 3 OF 3 RECORD(S) FOR INFORMATIONAL PURPOSES ONLY For internal use only SDNY_GM_00054694 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-0017518 EFTA_00 165264 EFTA01295487 Page 75 Copyright 2013 LexisNexis a division of Reed Elsevier Inc. All Rights Reserved. Subject Summary Name Address Phone County/FIPS JEEPERS. INC 709 1/2 SOUTHWEST BLVD None Listed CLINTON. NC 28328-4636 Name Variations/DBAs # Name Variations 1 JEEPERS. INC. Addresses -1 records found # Address 1. 709 1/2 SOUTHWEST BLVD CLINTON, NC 28328 Dates 10/15/2001 - 11/13/2007 Profile Information - 6 records found 1: JEEPERS, INC. Company Name: JEEPERS, INC. Date Of Incorporation: 11/3/1989 State Of Incorporation: NC Charter Number: 0258208 Duration: PERPETUAL Status Of Incorporation: MULTIPLE Corporation Structure: BUSINESS CORPORATION 2: JEEPERS, INC. Company Name: JEEPERS. INC. Date Of Incorporation: 11/3/1989 State Of Incorporation: NC Charter Number: 0258208 Duration: PERPETUAL Status Of Incorporation: MULTIPLE Corporation Structure: BUSINESS CORPORATION 3: JEEPERS, INC. Company Name: JEEPERS. INC. Date Of Incorporation: 11/3/1989 State Of Incorporation: NC Charter Number: 0258208 Duration: PERPETUAL Status Of Incorporation: MULTIPLE Corporation Structure: BUSINESS CORPORATION 4: JEEPERS, INC. Company Name: JEEPERS, INC. Date Of Incorporation: 11/3/1989 State Of Incorporation: NC Charter Number: 0258208 Duration: PERPETUAL Status Of Incorporation: MULTIPLE Corporation Structure: BUSINESS CORPORATION 5: JEEPERS, INC. Company Name: JEEPERS, INC. County SAMPSON For internal use only MSA SDNY_GM_00054695 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0017519 EFTA_00 165265 EFTA01295488 Page 76 5: JEEPERS, INC. Date Of Incorporation: 11/3/1989 State Of Incorporation: NC Charter Number: 0258208 Duration: PERPETUAL Status Of Incorporation: MULTIPLE Corporation Structure: BUSINESS CORPORATION 6: JEEPERS, INC. Company Name: JEEPERS. INC. Date Of Incorporation: 11/3/1989 State Of Incorporation: NC Charter Number: 0258208 Duration: PERPETUAL Status Of Incorporation: MULTIPLE Corporation Structure: BUSINESS CORPORATION Registered Agents -1 records found # Name Address 1. ROSEMAN. C E 709 1t2 SOUTHWEST BLVD CLINTON. NC 28328- 4636 Company ID Numbers - 1 records found Company ID Numbers Sec. of State Charter No(s): NC, 0258208 UCC Liens -1 records found 1:NC UCC LIEN FILING Debtor Information Name: JEEPERS INC Address: 709 1/2 SOUTHWEST BLVD CLINTON, NC 28328-4636 Secured Party Information Name: GAYLE FASHIONS INC Address: RR 6 CLINTON, NC 28328 Filing Information Original Filing Number: 0700478 Original Filing Date: 7/25/1990 Filing Type: INITIAL FILING Pages: 4 Filing Number: 0700478 Filing Date: 7/25/1990 Expiration Date: 7/25/1995 Filing Offices Address: 300 N SALISBURY ST, LEGIS OFF BLDG RALEIGH, NC 27603 Filing Agency: SECRETARY OF STATE/UCC DIVISION Collateral Information Description: 07/25/1990 0700478 - FIXTURES SPECIFIED;EOUIPMENT SPECIFIED Business Associates - 4 records found # Name Address 1. CARDINAL CHEMICALS 709 1/2 SOUTHWEST BLVD CLINTON, NC 28328-4636 2. COASTAL AGRO BUSINESS 709 1/2 SOUTHWEST BLVD CLINTON, NC 28328-4636 3. DODGER INDUSTRIES INC CLINTON. NC 4. JEEPERS. INC. 70912 SOUTHWEST BLVD CLINTON, NC 28328-4636 For internal use only SDNY_GM_00054696 CONFIDENTIAL - PURSUANT TO FED. R.WN(F IDENTIAL DB-SONY-00 17520 EFTA_00 165266 EFTA01295489 Page 77 Sources - 5 records found All Sources Business Finder Corporate Filings UCC Lien Filings 5 Source Document(s) 3 Source Document(s) 1 Source Document(s) 1 Source Documents) Important: The Public Records and commercially available data sources used on reports have errors. Data is sometimes entered poorly, processed incorrectly and is generally not free from defect. This system should not be relied upon as definitively accurate. Before relying on any data this system supplies, it should be independently verified. For Secretary of State documents, the following data is for information purposes only and is not an official record. Certified copies may be obtained from that individual state's Department of State. Your DPPA Permissible Use is: Debt Recovery/Fraud Your GLBA Permissible Use is: Legal Compliance Copyright® 2013 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. D&B: RETURN Copyright 2013 Dun & Bradstreet, Inc. Executive Affiliations JEEPERS INC 800 SOUTH ST STE 480 WALTHAM, MA 02453-1491 USA LENGTH: 22 words DUNS NUMBER: 78-106-8291 EXECUTIVE: MARY E CONNOLLY, PRESIDENT - EXECUTIVE LANGUAGE: ENGLISH LOAD-DATE: August 26, 2013 LEGAL RESULTS: Court Cases: For internal use only SDNY_GM_00054697 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-0017521 EFTA_00 165267 EFTA01295490 Page 2 2013 U.S. Dist. LEXIS 40263, * LOADMAN GROUP, L.L.C., et al., PLAINTIFFS, vs. BANCO POPULAR NORTH AMERICA, DEFENDANT. CASE NO. 4:10cv1759 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION 2013 U.S. Dist. LEXIS 40263 March 19, 2013, Decided March 19, 2013, Filed PRIOR HISTORY: Loadman Group, L.L.C. v. Banco Popular N. Am., 2013 U.S. Dist. LEXIS 40267 (N.D. Ohio, Mar. 19, 2013) CORE TERMS: summary judgment, environmental, site, remediation, metal, lender, loan agreement, promissory estoppel, oral contract, citation omitted, statute of frauds, checklist, contract claims, genuine, satisfactory, escrow, oral promise, quotation marks, misrepresentation, speculative, non-moving, mortgage, real estate, authorization, completion, closure, lease, breach of contract, written contracts, superseded COUNSEL: fl i For Loadman Group, L.L.C., A limited liability company organized under the laws of Delaware, Tamara Miles Ogier, Trustee, other, Eric J. Loadman, Plaintiffs: Vincent J. Restauri, Jr., LEAD ATTORNEY, Baden, PA; David K. Schaffner, New Philadelphia, OH. For Banco Popular North America, A subsidiary of Popular International Bank, Inc., a corporation organized under the laws of Puerto Rico, Defendant: James S. Wertheim, Kimberly Y. Smith-Rivera, McGlinchey Stafford - Cleveland, Cleveland, OH. JUDGES: HONORABLE SARA LIOI. UNITED STATES DISTRICT JUDGE. OPINION BY: SARA LIOI OPINION MEMORANDUM OPINION AND ORDER (Resolving Doc. No. 35) Before the Court is defendant's motion for summary judgment (Doc. No. 35), plaintiffs' opposition (Doc. No. 45), and defendant's reply (Doc. No. 51). For the reasons discussed below, the Court GRANTS defendant's motion for summary judgment. I. BACKGROUND For internal use only SDNY_GM_00054698 CONFIDENTIAL - PURSUANT TO FED. R.CCANI(EIDENTIAL DB-SDNY-00 17522 EFTA_00165268 EFTA01295491 Page 3 2013 U.S. Dist. LEXIS 40263, * A. Procedural History On August 10, 2010, Loadman Group, L.L.C. ("Loadman Group") and Eric J. Loadman ("Loadman") filed a complaint based on diversity jurisdiction against defendant Banco Popular North America ("defendant" or "Banco"). (Doc. No. 1.) The complaint alleged various state law claims stemming from Banco's decision not to close on a r21 Small Business Administration ("SBA") insured loan to Loadman and Loadman Group. (Id. at 1.) Loadman and Loadman Group filed an amended complaint on May 3, 2011, alleging claims for breath of oral and written contracts (Count 1), breach of the duty of good faith and fair dealing (Count 2), willful misconduct and intentional misrepresentation (Count 3), intentional infliction of emotional distress (Count 4), and negligent misrepresentation (Count 5). (Doc. No. 19.) Plaintiffs seek compensatory and punitive damages, interest, costs, and attorney's fees. 1 Count 1 of the amended complaint is divided into three subparts (A. B. and C). Count 1(A) alleges breach of an oral contract promising no undue delay in closing. (Doc. No. 19 at 155.) Court 1(8) alleges breach of an oral promise with regard to satisfaction of certain environmental conditions. (Id. at 156.) Count 1(C) alleges breach of a written contract arising from a loan commitment letter. ye at 157.) On July 26, 2011, Loadman filed a Voluntary Petition for Chapter 7 Bankruptcy in the United States Bankruptcy Court for the Northern District of Georgia: On April 2, 2012, Banco moved for summary judgment, arguing, in part, that in r31 light of the bankruptcy filing, plaintiffs lacked standing to pursue their claims in this Court. In their opposition to summary judgment, plaintiffs conceded Loadman no longer had standing to pursue this action, but argued substitution of the bankruptcy trustee would remedy the defect. 2 In his bankruptcy, Loadman listed his co-plaintiff in this action, Loadman Group, as a corporation in which he had ownership, but indicated it had no assets. On Schedule B. he listed this lawsuit as an asset or potential asset of his estate. On June 13, 2012, the bankruptcy court granted a motion by the bankruptcy trustee to employ plaintiffs' counsel in this action as special counsel to the trustee to pursue Loadman's claims pending before this Court. (Doc. No. 48-1 at 1561.) On July 3, 2012, this Court granted plaintiffs' unopposed motion to substitute Tamara Miles Ogier, Trustee ("Trustee"), as a party plaintiff in place of plaintiff Loadman and deemed the previously filed opposition brief to summary judgment as filed by the Trustee and Loadman Group (collectively "plaintiffs").' The parties thereafter completed briefing on the summary judgment motion, which included two additional motions by defendant: r4] one (Doc. No. 52) to strike the affidavit of Loadman that plaintiffs attached to their opposition, and another (Doc. No. 53) to strike the affidavit of Frank Coco ("Coco") that plaintiffs attached to their opposition and the supplemental affidavit from Coco that plaintiffs sought leave to file. In a Memorandum Opinion and Order filed contemporaneously with this Memorandum Opinion and Order (Doc. No. 64), the Court granted plaintiff leave to file Coco's supplemental affidavit, construed defendant's motions to strike as objections pursuant to Rule 56, and sustained defendant's objections in part. Defendant's motion for summary judgment is now ripe for disposition. For internal use only SDNY_GM_00054699 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-00 17523 EFTA_00 165269 EFTA01295492 Page 4 2013 U.S. Dist. LEXIS 40263, * 3 In light of the substitution of the Trustee. to the extent the present motion seeks summary judgment on the grounds that Loadman lacks standing to pursue this action. that portion of the motion is DENIED as MOOT. See Doughtie v. Ashland. Inc.. No. 03-2073 Ml/A. 2005 U.S. Dist. LEXIS 43549. 2005 WL 1140736 (W.D. Tenn. May 12 2005) (substitution of bankruptcy trustee for named plaintiff mooted standing issue). B. Factual Background In 2007, Loadman became interested in purchasing Allred Metal Stamping Works, Inc. ("Allred Metal"), a metal stamping business ['5] located in North Carolina. (Doc. No. 37 [Loadman Dep. April 1, 2011) at 715.) He retained Frank Coco ("Coco") as his financial advisor and, in late 2007, they approached Joe Wojtowicz ("Wojtowicz") of Banco about obtaining the SBA loans for the purchase. (Id. at 694, 710, 713, 745.) The loans were conditioned upon the environmental status of two adjacent parcels of real estate on which Allred Metal was located: 1305 Old Thomasville Road ("Old Thomasville Road property") and 1990 Bethel Drive ("Bethel Drive property"). As early as January 3, 2008, an environmental risk assessment, or Phase I inspection, had indicated there could be environmental problems on both properties, requiring a follow-up Phase II assessment. (Id. at 723-24, 734, 736.) On February 7, 2008, Banco issued a loan prequalification letter to Loadman for an SBA real estate acquisition loan. (Id. at 745-46; Doc. No. 35-1 [Loadman Dep. Ex. at 331.) The letter explained that Loadman's request for financing had been pre-qualified for the SBA "504 program." (Doc. No. 37 at 748; Doc. No. 35-1 at 331.) The letter further explained that the SBA "504 program" is a co-lending program wherein a lender makes a first mortgage, [' 6] and the SBA provides a second mortgage, via the services of a Certified Development Company ("CDC"). (Doc. No. 37 at 748-49; Doc. No. 35-1 at 331.) The purpose for the CDC's involvement was to work with the lender and the SBA to handle the SBA loan application approval and documentation process for the second mortgage to the lender. (Doc. No. 37 at 749-50, 755.) Loadman testified he understood the letter was a nonbinding proposal, not a commitment to lend, and that it did not contain all of the terms and conditions of the loan. (Doc. No. 37 at 755.)4 He accepted the proposal on February 27, 2008. (Id.; Doc. No. 35-1 at 333.) 4 The letter states as follows: This proposal is for discussion purposes only. It does not represent a commitment to lend on the part of the Lender. If the proposal meets with your approval, it is then subject to credit approval by the Lender and the SBA. and the execution and delivery of all documents and information required by the Lender and the SBA in form and substance satisfactory to the Lender and the SBA (Doc. No. 35-1 at 332.) In March 2008, Loadman sought alternative financing from another bank because he felt Banco was taking too long. (Doc. No. 37 at 717.) ['7] He returned to Banco, however, after a conversation with Wojtowicz and Banco's Matthew Putnam ("Putnam"), in which he asserts they promised lower interest rates and fees and that the loan would close within 20 to 30 days. (Id. at 728-30, 764.) Coco, Loadman's financial advisor, participated in that For internal use only SDNY_GM_00054700 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17524 EFTA_00 165270 EFTA01295493 Page 5 2013 U.S. Dist. LEXIS 40263, * conversation as well, but he testified Putnam did not promise anything with regard to how fast or slow the loan would close, promising only his "best effort." (Doc. No. 39 [Coco Dep.] at 1224-25.) Coco testified Wojtowicz had no authority to decide if a loan would close at all and that he explained this to Loadman. (Id. at 1215.) On April 9, 2008, Banco sent Loadman a commitment letter. (Doc. No. 37 at 756; Doc. No. 35-1 [Loadman Dep. Ex. G] at 336.) In it, Banco offered Loadman and his "Corporation to be Formed," "at the Bank's sole discretion, the following credit facility which is subject to, but not limited to, the terms and conditions set forth herein." (Doc. No. 35-1 at 336.) The letter proposed two first mortgage "504" loans, two second "504" "bridge" loans to be repaid by the SBA, and one SBA 7(a) loan. (Id. at 336-46.) The letter referenced "[a]dditional loan requirements" attached [' 8] as a "Closing Needs Checklist" ("checklist"),' which included certain conditions that would need to be satisfied prior to loan closing.* (Id.) 5 The commitment letter stated, in relevant part: 9. . . . Additional loan requirements are attached to this commitment letter as "Closing Needs Checklist." These reilLirements are based on initial documentation received with your loan application. Additional conditions may be required as the loan closing process proceeds. 10. This loan Is further subject to Bank receipt and approval, In Its sole discretion, of a fully executed SBA Authorization for Debenture Guaranty. The Borrower(s) and Guarantor(s) agree to provide any additional information as required pursuant to the program and have full knowledge that the proposed loans cannot dose without receipt of a fully executed SBA Authorization for Debenture Guaranty (Doc. No. 35-1 at 347) (bold in original). 6 The checidist included the following pertinent conditions: 13. Satisfactory Environmental site assessment starting with a Phase II located at 1305 Old Thomasville Road. High Point. North Carolina 27260. (DONE) 14. Satisfactory Environmental site assessment starting with a Phase II located rin at 1993 Bethel Drive. High Point. North Carolina 27260 18. Closing. (sic) of the loan is conditioned upon prior receipt and review of fully executed SBA Authorization for Debenture Guarantee from an acceptable CDC. 19. SBA Loan Authorization (Doc. No. 35-1 at 356-57.) On April 11, 2008, a nearly identical commitment letter superseded the April 9 commitment letter. (Doc. No. 37 at 761; Doc. No. 35-1 [Loadman Dep. Ex. H] at 358.) A July 31, 2008 commitment letter eventually superseded the April 11 letter; it identified the "Corporation to be Formed" as Loadman Group, but was otherwise essentially identical to the prior letter. (Doc. No. 37 at 772-73; Doc. No. 35-1 [Loadman Dep. Ex. I] at 375.) Loadman accepted the terms of each of those letters. (Doc. No. 37 at 757, 761-62.) As described in the February 7, 2008 prequalification letter, throughout this process, it was the role of the CDC to obtain SBA approval of the 504 loans. (Doc. No. 37 at 751.) The CDC representative working on Loadman's loans was Ralph Ansell ("Ansell") of the CDC Self-Help Ventures Fund. (Id. at 752, 833; Doc. No. 38 at [Ansell Dep.] 980.) Ansell testified that the SBA's 504 loan program required use of an [' 1 0] intermediary CDC, but CDCs do not have the authority to speak for the SBA, which has the "final say" on approving loans and could impose additional conditions. (Doc. No. 38 at 980-81, 987-88, For internal use only SDNY_GM_00054701 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SONY-00 17525 EFTA_00165271 EFTA01295494 Page 6 2013 U.S. Dist. LEXIS 40263, * 992.)' He further stated that a 504 loan needed approval from the CDC's credit committee before submission to the SBA. (Id. at 1005.)* 7 Loadman testified, how ever. that he believed Ansell spoke for the SBA and that An sel! had told him the SBA had approved the 504 loans (Doc. No. 37 at 800, 833, 916.) 8 In contrast. Ansel' stated that an SBA 7(a) loan allowed a bank with a Preferred Lender Program ("PLP") status to bind the SBA directly rather than going through a CDC. (Doc. No. 38 at 987-88. 991.) In a transaction involving both types of loans. however, he indicated that a lender would typically process them together to avoid situations in which one was approved while the other was denied (Id at 990.) In or around May or June 2008, a Phase II environmental assessment was performed on the real estate. (Loadman Dep. Feb. 21, 2012, Doc. No. 40 at 1356, 1377; Burkart Aff., Doc. No. 45-3 at 1468.) During the course of the Phase II investigation, petroleum was found in the soil of the Old Thomasville riii Road property. (Doc. No. 37 at 813-14.) That contamination required specific steps toward remediation. (Id. at 902; Doc. No. 39 at 1248; Doc. No. 40 at 1358.)' 9 John Burkart (eurkart"). an environmental expert from LandAmerica who worked with Allred Metal on a remediation plan. summarized those steps in an email to Allred Metal, as follows: 1. Completion of the LSA [Limited Site Assessment] report maybe near August 2008 since we must get all the certified mad to al the property owners within 1503 feet of the site. We are working on getting all this into right 2. The site will be listed with NCDENR (North Carolina Department of Environmental and Natural Resources] as a high risk site due to water supply wells adjacent to the site. 3. Therefore a Comprehensive Site Assessment (CSA) or Phase II LSA must be completed next(.) this [sic] involves more monitoring wells and sampling to verify the plume configuration at the site. 4. Completion of a remedial action plan to reduce the petroleum impact to below NCDENR action level. 5. Monitor the site and eventually obtain closure with NCDENR (could be two years or five years before dowse can be granted by NCDENR)j.] (Doc. No. 37 at 839-4Q el 2) Doc. No. 35-1 at 426.) Burkart suggested reserving $100,000 to complete the tasks, but qualified that his estimate "may change following completion of the LSA and CSA." (Doc. No. 35-1 at 426.) Beginning July 4, 2008 through August 4, 2008, Banco provided Loadman with four updated checklists of documents that still needed to be obtained prior to the loan closing, including completion of a satisfactory environmental Phase II assessment for both properties." (Doc. No. 37 at 780-81, 797-801, 808; Doc. No. 35-1 at 390, 399, 408, 417.) 10 Although petroleum was initially foul only on the Old Thomasville Road property, Ansell indicated that the CDC and SBA required confirmation that the chine had not migrated to the Bethel Road site. (Doc. No. 38 at 1079-80.) The updated checklists provided. in relevant part, that the following conditions needed to be met prior to loan dosing: 13. Satisfactory Environmental site assessment starting with a Phase II located at 1305 Old Thomasville Road, High Point. North Carolina 27260. Received - (Environment issues pending - Escrow for remedation required - Site Closure from NCDENR pending -- SBA Approval required) 14. Satisfactory Environmental site [13] assessment starting with a Phase II located at 1990 Bethel Drive, High Point, North Carolina 27260 Received — (Environment issues pending — Escrow for remediation required — Site Closure from NCDENR pending -- SBA Approval required) (Doc. No. 35 at 397-98. 406-07. 415.16. 424-25) (emphasis retained). For internal use only CONFIDENTIAL — PURSUANT TO FED. R.CON(F IDENTIAL SDNY_GM_00054702 DB-SDNY-00 17526 EFTA_00 165272 EFTA01295495 Page 7 2013 U.S. Dist. LEXIS 40263, * As of August 4, 2008, the date of the last checklist, there still was no site closure letter from the state environmental agency, no SBA approval, and Banco had not waived either condition. (Doc. No. 37 at 8O9.) In an August 5, 2008 email, Ansell explained to Banco what was needed before the loans could be presented to the CDC's own credit committee. The necessary items included a state approved remediation plan and escrow by Allred Metal sufficient to cover the costs of that remediation, the amount of which would need to be approved by the state. (Doc. No. 38 at 1040-43; Doc. No. 35-3 at 478.)" Ansell further stated that, "Completion of the CAP (Corrective Action Plan] could take an extended period of time." (Doc. No. 35-3 at 478.) Coco testified that "the burden of remediation is on the borrower-HI but that, in this case, the seller, Allred Metal, had accepted that burden, among others. ["14] (Doc. No. 39 at 1250.) Loadman testified that no one ever asked him for any of the additional documents that Ansell identified in his email to Banco and that, instead, Banco told him all he needed to do to obtain CDC and SBA approval was to have an indemnity agreement in place and funds in escrow sufficient to cover the costs of remediation. (Doc. No. 37 at 794.) 11 Ansell stated that the CDC would not even consider finding the 504 loans until: 1) the LSA was completed and submitted to the NCDENR; 2) the NCDENR issued its official risk classification; 3) the CSA was completed and submitted to the NCDENR and a follow up risk classification determined by the NCDENR: 4) assuming the risk classification remained 'high or intermediate," preparation of a Corrective Action Plan ("CAP') officially quantifying the projected remediation costs and schedule. which must then be submitted to, and approved by. the NCDENR; 5) escrow by the sellers of 150% of the remediation cost as 'quantified in the CAP' and "approved by the NCDENR": and 6) execution of an SBA indemnification agreement by the sellers. (Doc. No. 35-3 at 478.) On or about August 11, 2008, Banco's Diane Gallion ("Gallion") issued a letter [9 5] to Loadman denying the loans due to his "inability to meet the conditions" of the original commitment letter, which included the requirement that the property be free of environmental contamination and acceptable to Banco and the SBA. (Doc. No. 37 at 856- 57; Doc. No. 35-1 at 427.) She noted that, according to the environmental expert retained by Allred Metal, remediation could take years and, due to that timeframe and the associated risk, Banco could not close the loan. (Id.) She stated, "These decisions are based on both the Bank and the regulations for the SBA 504 program." (Id.)i2 12 Gallion testified that, based on her experience. she knew any letter issued by the SBA would provide a caveat that any adverse change affecting the business could cause the SBA not to pay off the bridge loans. (Doc. No. 36 (Gallion Dep.) at 671.) She testified that an adverse change was not limited to environmental concerns, but could be potentially anything, including changes in 'personal, business, or affiliated industries, the companies they own, their financial condition, their structure, change in the market value of the property. anything that was germane to the original credit decision." (Id. at 629-30.) rim If the SBA determined that there was such a change. it could "choose not to participate," leaving Banco 'at risk until the SBA wires money." (Id.) In this case, she indicated that the remediation was "a big concern" because of all the unknovms associated with it, and because the lengthy time required increased the prospect that an adverse change would °cos. potentially leaving Banco fully at risk, (Id. at 631. 659.) She explained that she and Banco operated in 'minimizing, reducing. or eliminating anything that's a risk,' and, for that reason, they would not close loans where there was an unquantifiable risk that could prevent the SBA's participation. (Id. at 669.) Ansell agreed with Gallion's assessment. testifying that, in most instances, the SBA would want to have the remediation completed and a "no further action letter from the state. (Doc. No. 38 at 1087-88.) In the "yen/ unlikely" evert that the loan was approved prior to remediation, there was 'no way' the funds would be dispersed. (Id. at 1051-52.) Me stated that was "a real risk for a lender because it could "end) ) up with the entire deal" if something happened to make the SBA decide not to pay off the bar*. (Id. at 1051.52. 1085-86.) For internal use only SDNY_GM_00054703 CONFIDENTIAL - PURSUANT TO FED. R.ctc;IN(f IDENTIAL DB-SDNY-00 17527 EFTA_00 165273 EFTA01295496 Page 8 2013 U.S. Dist. LEXIS 40263, * On ri 1 n or about August 13, 2008, Gallion proposed a possible alternative method whereby Loadman could lease the real estate until the remediation was completed, at which time a new loan could be pursued for the real estate. (Doc. No. 35-1 at 428-29; Doc. No. 37 at 860-61.)x° Loadman testified it was his understanding that the lease alternative was intended "to expediate [sic] [the process] rather than waiting for all the other things to happen." (Doc. No. 37 at 860.) 13 Regarding that suggestion. Ansell testified that both "the bank and the CDC were looking for ways to do the deal in the light of the environmental consideration." (Doc. No. 38 at 1048.) Loadman testified that, as late as August 14, 2008, however, Banco's in-house attorney, Kristina Rozek ("Rozek"), Banco's Wojtowicz, and the CDC's Ansell each assured him the original deal could still go forward, so long as he obtained a remediation plan, indemnity agreement, and escrow. (Id. at 869.) According to Loadman, Ansell purportedly further assured him that the SBA would not have a problem lending to him even without a "no further action letter" from the state. (Id. at 919.) Additionally, according to Loadman, Rozek told him she was in (9 8] charge of the closing, the closing was happening, and Gallion had no right to cancel the loan. (Id.) On August 19, 2008. Loadman emailed to Ansell and Banco a draft Limited Site Assessment ("LSA") report prepared by Allred Metal's environmental expert. Loadman stated that he wanted to purchase the Bethel Drive property because the draft LSA said it was clean. (Doc. No. 38 at 1052-53; Doc. No. 35-3 at 482.)" 14 Both Banco and Ansell noted that the draft LSA did not, in fact. declare Bethel Drive dean. (Doc. No. 38 at 1049-50: Doc. No. 35-3 at 483.) Ansel added: "I don't believe SBA will approve anything until the Comprehensive Site Assessment (CSA) is performed and the extent of the contamination is known to include a determination about whether the Bethel property has been impacted and what the likely cost of remediation might be." (Doc. No. 35-3 at 483.) On August 25, 2008, Banco again explained to Loadman that it would not proceed with any real estate loan because of the environmental issues, but if he wanted to lease the property, he should provide the lease terms. (Doc. No. 37 at 863; Doc. No. 35-1 at 430- 31.) A few days later, Gallion explained the "current loan is withdrawn. If r 1 9] you put a new deal together we will respectfully consider." (Doc. No. 37 at 876; Doc. No. 35-1 at 432.) Loadman never submitted anything to Banco showing he had obtained lease agreements or alternative financing for the real estate. (Doc. No. 37 at 877.) Furthermore, through the end of August 2008, the state had not approved a comprehensive site assessment, a corrective action plan, or the length of time, extent, and cost of remediation. (Doc. No. 35-5 at 499.) According to Ansell, plaintiffs also failed to meet other loan conditions, including a fully executed authorization for debenture guarantee from the CDC and SBA approval. Ansell testified that because of the failure to meet these conditions, the loans were never submitted to the SBA for approval and were never submitted to the CDC's credit committee. (Doc. No. 38 at 977-79, 1005, 1007.)* Subsequently, Loadman bought into For internal use only SDNY_GM_00054704 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17528 EFTA_00 165274 EFTA01295497 Page 9 2013 U.S. Dist. LEXIS 40263, * another company but was unsuccessful, leaving him with personal debts. (Doc. No. 40 [Loadman Dep. III at 1348-51.) He then filed this action in August 2010 against Banco. 15 AnseII testified. We never were able to get full information about the environmental condition of the property. . . . Wine never could get r20] a full accounting of just how serious that problem was." (Doc. No. 38 at 978-79.) 'You know, the thing I would not wart to do as a CDC would be to submit a case to the SBA which has unresolved issues." (Id. at 1006.) II. LAW AND ANALYSIS A. Summary Judgment Standard of Review Under Fed. R. Civ. P. 56(a), when a motion for summary judgment is properly made and supported, it shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252. The party opposing the motion may not rely merely on allegations or denials in its own pleading; rather, by affidavits or materials in the record, they must set out specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(c)(1). ["21] A movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of an essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Rule 56(c)(4) requires "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Mere conclusory allegations "are not evidence and are not adequate to support a motion for summary judgment." Miller v. Aladdin Temp--Rite, LLC, 72 Fed. Appx. 378, 380 (6th Cir. 2003) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888. 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990)). Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. Moreover, "the trial court no longer has a duty to search the entire record to establish that [-22] it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co.. 886 F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito--Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034, 274 U.S. App. D.C. 340 (D.C. Cir. 1988)). The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established which create a genuine issue of material fact. Fulson v. City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992). The non-movant must show more than a scintilla of evidence to overcome summary judgment; For internal use only SDNY_GM_00054705 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-00 17529 EFTA_00 165275 EFTA01295498 Page 10 2013 U.S. Dist. LEXIS 40263, * it is not enough for the non-moving party to show there is some metaphysical doubt as to material facts. Id. In ruling on a motion for summary judgment, the court may not take into account credibility, the weight of the evidence, or the drawing of inferences from the facts. Anderson, 477 U.S. at 255. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. "[I]l the evidence is such that a reasonable jury could return a verdict for the nonmoving party," summary judgment is improper. Id. at 248. Accordingly, for the purposes of deciding this motion, and where communicated properly under Rule 56, plaintiffs' account of p23] the facts must be accepted as true. B. Consent to Summary Judgment In the first amended complaint, plaintiffs assert nine claims against defendant. In response to defendant's motion for summary judgment, plaintiffs consent to summary judgment on six of the nine claims, as follows: Count 1(B) alleging an oral contract created by Rozak's representations, Count 2 alleging breach of the duty of good faith and fair dealing, Count 3 alleging willful misconduct and intentional misrepresentation, Count 4 alleging intentional infliction of emotional distress, and Count 5 alleging negligent misrepresentation. By failing to dispute (and actually consenting to) Banco's motion for summary judgment as to these claims and the materials offered in support thereof, plaintiffs have not carried their burden under Rule 56(c) and, therefore, defendant is entitled to summary judgment on these claims. Travelers Cas. & Sur. Co. of Am. v. J.O.A. Const. Co., Inc., 479 Fed. Appx. 684, 692 (6th Cir. 2012) (citing Fed. R. Civ. P. 56(e)(2)-(3)). Accordingly, defendant's motion for summary judgment as to these claims is GRANTED.'•All that remains therefore for the Court's analysis are defendant's arguments respecting ['24] plaintiffs' remaining claims for breach of contract (Counts 1(A) and 1(C)) and for promissory estoppel, alleged in paragraph 58 of plaintiffs' first amended complaint. 16 At page 1427 of their opposition brief, plaintiffs also purport to consent to summary judgment as to their "alternative" promissory estoppel claim; however, at page 1453. plaintiffs argue against summary judgment on this claim. Accordingly, given plaintiffs equivocation, the Court will address this clan) infra. C. Plaintiffs Have Not Carried Their Burden as to Damages Defendant moves for summary judgment as to plaintiffs' breach of contract claims (Counts 1(A) and 1(C)) on the grounds that, without expert testimony (which plaintiffs have failed to offer) (Doc. No. 35 at 260), plaintiffs cannot establish with reasonable certainty their claimed "equity/profit" damages resulting from their inability to purchase Allred Metal. Plaintiffs respond that since Banco was ready to lend Loadman "$6 million based on its own due diligence reports, [which] were in turn based on independent appraisals of Allred Metal Stamping's assets[,]" Banco cannot now claim those estimates are speculative or that a jury could not reasonably find r251 that Loadman's "lost equity" on the day of closing fell between $4 million and $10 million. (Doc. No. 45 at 1454.) Further, plaintiffs assert they will prove damages by calling Kozak at trial. (Id.) For internal use only SDNY_GM_00054706 CONFIDENTIAL - PURSUANT TO FED. R.cON(F IDENTIAL DB-SONY-00 17530 EFTA_00 165276 EFTA01295499 Page 11 2013 U.S. Dist. LEXIS 40263, * "In this diversity case, Ohio law determines the elements of damages [that] plaintiffs must prove, and the quantum and type of evidence necessary to prove them." Anchor v. O'Toole, 94 F.3d 1014, 1020 (6th Cir. 1996) (citation omitted). To establish a breach of contract claim in Ohio, a plaintiff must prove the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff. Savedoff v. Access Grp., 524 F.3d 754, 762 (6th Cir. 2008). "Damages are an essential element of a breach of contract claim." Oak Rubber Co. v. Bank One, N.A., 214 F. Supp. 2d 820, 831 (N.D. Ohio 2002) (granting summary judgment on breach of contract claim where there was no evidence of damages) (citing Doner v. Snapp. 98 Ohio App. 3d 597, 600-01, 649 N.E.2d 42 (Ohio Ct. App. 1994); Anchor, 94 F.3d at 1020 (6th Cir. 1996)). Once challenged on summary judgment, a plaintiff must come forward with competent, credible evidence to create a question of fact as to the existence of damages. C26] Bemmes v. Public Emps. Ret. Sys., 102 Ohio App. 3d 782, 789-90, 658 N.E.2d 31 (Ohio Ct. App. 1995). As a general rule. an injured party cannot recover damages for breach of contract beyond the amount that is established by the evidence with reasonable certainty. and generally. courts have required greater certainty in the proof of damages for breach of contract than in tort. . . . The damages awarded for a breach of contract should place the injured party in as good a position as it would have been in but for the breach. Such compensatory damages. often termed expectation damages, are limited to actual loss. which loss must be established with reasonable certainty. Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App. 3d 137, 144, 684 N.E.2d 1261 (Ohio Ct. App. 1996) (internal quotation marks and citations omitted). See also Moriarty v. Equisearch Servs., Inc., 443 F. App'x 64, 66-67 (6th Cir. 2011) (citing Textron, 115 Ohio App. 3d at 137, and affirming district court's grant of summary judgment where plaintiff failed to prove damages). To successfully assert a claim for lost profits, a plaintiff must demonstrate that the profits were within the contemplation of the parties at the time of execution, that the ['27] loss of profits is the reasonable result of the breach. and that the profits are not remote and speculative. . . . There must be more than a conclusory statement as to the amount of lost profits. An explanation of how that sum was determined is required. Lost profits must be substantiated by calculations based on facts available or in evidencer.] otherwise they are speculative and uncertain. Textron, 115 Ohio App. 3d at 146 (internal quotation marks and citations omitted). Here, plaintiffs' proof of damages rests entirely on the affidavits of Loadman and Coco, which, as discussed in the Court's ruling on defendant's objections thereto (see Memorandum Opinion and Order at Doc. No. 64), must, in relevant part, be disregarded on summary judgment as speculative, not based on personal knowledge, not based on evidence in the record, inadmissible hearsay, and improper lay opinion testimony. Moreover, the memo presented as an exhibit to Coco's affidavit—prepared in large part by Kozak—contains various charts, graphs, and figures, but does not state the equity value of Allred Metal, nor do plaintiffs offer deposition or affidavit testimony from Kozak, or any other admissible evidence, to explain 28] the purpose of the memo or otherwise explain the calculations contained therein. Further, the memo is admittedly a summary of information obtained from third party source documents not in the record. Consequently, any calculations derived therefrom are merely speculative. See JGR, Inc. v. Thomasville Furniture Indus., Inc., 370 F.3d 519, 525 (6th Cir. 2004). Accordingly, because plaintiff has failed to offer sufficient admissible evidence showing damages resulting from the alleged breaches of contract, such as the value of Allred Metal to Loadman or the amount of profit he expected to earn at closing, Banco is entitled to summary judgment as to plaintiffs' For internal use only SDNY_GM_00054707 CONFIDENTIAL - PURSUANT TO FED. R.WN(F IDENTIAL DB-SDNY-0017531 EFTA_00 165277 EFTA01295500 Page 12 2013 U.S. Dist. LEXIS 40263, * breach of contract claims. Semmes, 102 Ohio App. 3d at 789-90; Fed. R. Civ. P. 56(c)(1)(B) and (e). D. Plaintiffs' Oral Contract Claim is Barred by Ohio's Statute of Frauds Even if plaintiffs had presented sufficient admissible evidence to create a genuine issue of material fact regarding expectation or lost profit damages, their claim for breach of an oral contract fails for the additional reason that it is barred by Ohio's statute of frauds. Ohio Rev. Code § 1335.02(6) states that "(n]o party to a loan agreement may bring an action r29] on a loan agreement unless the agreement is in writing and is signed by the party against whom the action is brought or by the authorized representative of the party against whom the action is brought." Ohio Rev. Code § 1335.02(B) (emphasis added). Ohio Rev. Code § 1335.02(C) further states: Mhe terms of a loan agreement subject to this section. including the rights and obligations of the parties to the loan agreement, shall be determined solely from the written loan agreement. and shall not be varied by any oral agreements that are made or discussions that occur before or contemporaneously with the execution of the loan agreement. Any prior oral agreements between the parties are superseded by the loan agreement. Ohio Rev. Code § 1335.02(C). Count 1(A) of the first amended complaint alleges that Banco entered into an enforceable oral contract to loan Loadman the money to purchase Allred Metal without "undue delay," except if "something extraordinary were uncovered in due diligence." (Doc. No. 19 at 155- 56.) In exchange for this oral promise, Loadman ostensibly agreed to forgo seeking financing from Community South or any other lender, purportedly losing the $15,000.00 he paid in fees r30] to Community South. Plaintiffs allege Banco assured Loadman that the environmental issues were routine and not extraordinary and, therefore, Banco was contractually obligated to make a loan agreement with Loadman and its refusal to do so was a breach of the parties' oral contract." 17 Count 1(3) alleges the existence of an additional oral contract created by representations made by Bamo's outside counsel. Plaintiffs have consented to summary judgment on this claim. However. even if they had not consented to surnmary judgment on this claim. it would also be barred by the statute of frauds for the reasons discussed infra. Plaintiffs argue without citation that the statute of frauds does not apply to loan "commitment letters," which they contend are not "loan agreements," and that the foregoing oral promise is thus enforceable. However, the definition of "loan agreement" contained in § 1335.02(A)(3) expressly includes "commitments": "Loan agreement" means one or more promises, promissory notes. agreements, undertakings. security agreements, mortgages, or other documents or commitments, or any combination of these documents or commitments, pursuant to Mich a financial institution loans or r31] delays, or agrees to loan or delay, repayment of money, goods, or anything of value, or otherwise extends credit or makes a financial accommodation. Ohio Rev. Code § 1335.02 (emphasis added). Here, the alleged oral promise predates the commitment letter and seeks to vary its terms by adding a provision that Banco would expedite the loan process in exchange for the exclusive right to lend the money and, For internal use only SDNY_GM_00054708 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SDNY-00 17532 EFTA_00 165278 EFTA01295501 Page 13 2013 U.S. Dist. LEXIS 40263, * therefore, the alleged oral agreement is superseded by the commitment letter. Accordingly, pursuant to § 1335.02(C), plaintiffs' claim is statutorily barred. Even if this claim were not barred by the statute of frauds, it fails for the additional reasons raised by defendant. First, plaintiffs have failed to present any evidence that the purported oral contract was ever even formed. In fact, Coco testified at his deposition that "everybody knew" that Wojtowicz had no authority to make lending decisions for Banco (Doc. No. 39 at 1215, 1224), and Loadman testified that he had "no idea" who was ultimately responsible for approving the SBA loans (Doc. No. 37 at 743-44). Further, any evidence of this alleged oral promise is barred by the parol evidence rule, which "prohibits the consideration p32] of evidence as to anything which happened prior to or simultaneously with the making of a contract which would vary the terms of the agreement." Hanlin-Rainaldi Const. Corp. v. Jeepers, Inc., 2004 Ohio 6250, 2004 WL 2674628, at *5 (2004) (internal quotation marks and citations omitted). Plaintiffs' argument that the commitment letter did not address the terms of the alleged oral contract is unavailing. "Intentions not expressed in the writing are deemed to have no existence and may not be shown by parol evidence." Aultman Hosp. Ass'n v. Cmty. Mut. Ins. Co., 46 Ohio St. 3d 51, 53, 544 N.E.2d 920 (1989) (citation omitted). E. Plaintiffs' Promissory Estoppel Claim is Barred by the Existence of a Written Contract In the alternative, plaintiffs seek to enforce the same oral exclusivity agreement alleged in Count 1(A) under a promissory estoppel theory. Additionally, in their brief in opposition to summary judgment, plaintiffs now assert Loadman relied on promises relative to "Banco's expectations about acceptable old-gas station Phase II problems." (Doc. No. 45 at 1453.) To establish a claim for promissory estoppel under Ohio law, a plaintiff must establish the existence of a clear and r331 unambiguous promise upon which it would be reasonable and foreseeable to rely and actual reliance on the promise to the detriment of one who relied. Cox v. True N. Energy, 524 F. Supp. 2d 927, 946 (N.D. Ohio 2007); Patrick v. Painesville Commer. Props., 123 Ohio App. 3d 575, 583, 704 N.E.2d 1249 (Ohio Ct. App. 1997). However, "Ohio law bars a promissory estoppel claim when there is an express contract between the parties." Keating v. Am.'s Wholesale Lender, No. 1:11 CV 593, 2011 U.S. Dist. LEXIS 65532, 2011 WL 2471732, at *4 (N.D. Ohio June 21, 2011) (citing Hughes v. Oberholtzer, 162 Ohio St. 330, 335. 123 N.E.2d 393 (1954)). "Promisory [sic] estoppel is not available as a remedy where the legal relationship between the parties is governed by a valid and enforceable contract." Id. (citations omitted). Here, the existence of a written contract (the loan commitment letter) bars plaintiffs' promissory estoppel claim. Moreover, plaintiffs cannot circumvent the statute of frauds by recharacterizing their claim as one for promissory estoppel: (Ohio) (c)duns generally apply the promissory-estoppel exception to the statute of frauds defense only in narrow circumstances. In addition to asserting the claim as a separate cause of action, in order for promissory p341 estoppel to apply, there must be either a misrepresentation that the statute of fraud's requirements have been complied with or a promise to make a memorandum of the agreement. HAD Enters. v. Galloway, 192 Ohio App. 3d 133, 145, 2011 Ohio 57, 948 N.E.2d 473 (Ohio Ct. App. 2011) (internal quotation marks and citations omitted). Plaintiffs have For internal use only SDNY_GM_00054709 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17533 EFTA_00 165279 EFTA01295502 Page 14 2013 U.S. Dist. LEXIS 40263, * neither alleged nor put forth sufficient, competent evidence that either occurred in this case. Accordingly, defendant is entitled to summary judgment on plaintiffs' promissory estoppel claim. F. Breach of Fiduciary Duty Plaintiffs' opposition brief to summary judgment argues their breach of fiduciary duty claim should also survive summary judgment. A review of the first amended complaint, however, reveals plaintiffs alleged no such claim; further, there is nothing in their complaint to put defendant on notice of such a claim. Plaintiffs cannot expand their claims at the summary judgment stage to assert new theories of recovery. Bridgeport Music, Inc. v. WB Music Corp.., 508 F.3d 394, 400 (6th Cir. 2007). "A non-moving party plaintiff may not raise a new legal claim for the first time in response to the opposing party's summary judgment motion. At the summary judgment stage, the [' 35] proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Rule 15(a)." Tucker v. Union of Needletrades, Indus. & Textile Emps., 407 F.3d 784, 788 (6th Cir. 2005) (internal quotation marks and citation omitted). Plaintiffs "had the information on which to base these claims in [their] initial Complaint, or [they] could have amended [their] complaint early on in this litigation," and, therefore, the Court may properly refuse to consider plaintiffs' breach of fiduciary duty claim. Id. (citations omitted); see also Stemler v. City of Florence, 126 F.3d 856, 872 (6th Cir. 1997) (affirming the district courts refusal to consider a new claim raised for the first time on summary judgment because the plaintiff had been "free to seek leave to amend her complaint"). III. CONCLUSION For all of the foregoing reasons, defendant's motion for summary judgment (Doc. No. 35) is GRANTED, and this case is DISMISSED.'° 18 Defendant's motion for judgment on the pleadings (Doc. No. 61) is therefore DENIED as MOOT. IT IS SO ORDERED. Dated: March 19, 2013 /s/ Sara Lioi HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE For internal use only SDNY_GM_00054710 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SONY-00 17534 EFTA_00 165280 EFTA01295503 Page 15 376 III. App. 3d 599, *; 876 N.E.2d 129, **; 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 CHICAGO EXHIBITORS CORPORATION, Plaintiff-Appellee, v. JEEPERS! OF ILLINOIS, INC, JEEPERS! INC., HARVEY SWENTO and CHERRY SWENTO, Defendants-Appellants. (Harvey Swento and Cherry Swento, Cross-Plaintiffs; Jeepers! of Illinois, Inc., and Jeepers! Inc., Cross-Defendants). No. 1-06-3313 APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION 376 III. App. 3d 599; 876 N.E.2d 129; 2007 III. App. LEXIS 962; 315111. Dec. 129 August 30, 2007, Decided August 30, 2007, Opinion Filed SUBSEQUENT HISTORY: Released for Publication November 9, 2007. PRIOR HISTORY: [-I] Appeal from the Circuit Court Of Cook County. Honorable Ronald F. Bartkowicz Judge Presiding. DISPOSITION: Affirmed. CASE SUMMARY: PROCEDURAL POSTURE: Defendant guarantors appealed orders by the Circuit Court Of Cook County (Illinois) that granted plaintiff owner's motion in limine to bar them from presenting evidence relating to an alleged increase in the risk they had assumed under the personal guaranty and awarding the owner attorney fees and costs. OVERVIEW: The owner's predecessor leased a space in a shopping center to the guarantor's company. and the guarantors agreed to guaranty the payment of rent and other obligations. Thereafter, the guarantors twice transferred all interest in the business to other entities. The second entity's parent company agreed to indemnify the guarantors for any losses that they might incur as a result of their personal guaranty The owner entered into a new agreement with the second entity that modified and added certain provisions to the lease. That agreement was not executed by the guarantors. Thereafter. the owners sued the second entity. the parent company, and the guarantors to recover payment for unpaid rent and repair to the leased premises. The appellate court found that none of the For internal use only SDNY_GM_00054711 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-00 17535 EFTA_00165281 EFTA01295504 Page 16 376 III. App. 3d 599, *; 876 N.E.2d 129, ea; 2007 III. App. LEXIS 962. ***, 315 III. Dec. 129 changes in the agreement constituted a material change in terms so as to release them from their personal guaranty. The personal guaranty specifically provided that it would remain intact regardless of changes and modifications to the lease. The guarantors waived their purported defenses by failing to raise them before the trial court. There was nothing unconscionable about the enforcement of the personal guaranty. OUTCOME: The orders were affirmed. CORE TERMS: lease, tenant, landlord, personal guaranty, guarantor's, guaranty, rent, modification, limine, fun, leased, discharged, estoppel, space, extensions of time, covenant, material changes, materially, Amendment to Lease, evidence relating, unpaid rent, affirmative defenses, executory accord, satisfaction, successor, reaffirm, eviction, entity, pool, rent payment LexisNexis(R) Headnotes Civil Procedure > Pretrial Matters > Motions in Limine > Appeals Civil Procedure > Pretrial Matters > Motions in Limine > Exclusion of Evidence [HN11 A motion in limine is addressed to a trial court's inherent power to admit or exclude evidence, and, generally, appellate courts will not disturb the trial court's ruling on a motion in limine absent a clear abuse of discretion. However, the trial court must exercise its discretion within the bounds of the law. Civil Procedure > Appeals > Standards of Review> De Novo Review Civil Procedure > Appeals > Standards of Review> Fact & Law Issues [HN2] Where a trial court's exercise of discretion relies on an erroneous conclusion of law, review is de novo. Contracts Law > Types of Contracts > Guaranty Contracts [HN3] In Illinois, the general principle applies that a guarantor is not released unless the essentials of the original contract have been changed and the performance required of the principal is materially different from that first contemplated. Unless there is some material change in the business dealings between the debtor and the creditor-guarantee and some increase in the risk undertaken by the guarantor, the obligation of the guarantor is not discharged. Contracts Law > Types of Contracts > Guaranty Contracts [HN4) Whether a guarantor is exposed to an increase in the risk it originally undertook is a key variable in determining whether there has been a material change in a guaranty agreement. Contracts Law > Types of Contracts > Guaranty Contracts [HN5] A guarantor takes a risk in exchange for a benefit; when events beyond the guarantor's control dramatically increase the risk, the assumptions upon which the contract was founded are undercut. The principle that a substantial increase in risk discharges the For internal use only SDNY_GM_00054712 CONFIDENTIAL - PURSUANT TO FED. R.ctON(FIDENTIAL DB-SDNY-00 17536 EFTA 0016528? EFTA01295505 Page 17 376 III. App. 3d 599, *; 876 N.E.2d 129, **; 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 guaranty rests on the assumption that guarantors would not ordinarily tolerate a substituted increase in risk without seeking something in return. Contracts Law > Performance > Accord & Satisfaction [HN61An executory accord is an agreement to accept at some future time a stipulated performance as satisfaction of an obligation. Contracts Law > Performance > Accord & Satisfaction [HN7J An executory accord is unenforceable and will not bar enforcement of the original obligation unless: (1) the creditor has clearly accepted the new promise of future performance, itself, and not the ultimate performance of it, as satisfaction, and (2) the new promise is based upon new consideration. COUNSEL: For Appellants: Law Offices of Mark D. Belongia, LLC, of Chicago (Mark D. Belongia, of counsel). For Appellee: Wildman, Harrold, Allen & Dixon, LLP, of Chicago (Thomas J. Matyas and Matthew M. Garrett, of counsel). JUDGES: PRESIDING JUSTICE QUINN delivered the opinion of the court. NEVILLE and MURPHY, JJ., concur. OPINION BY: QUINN OPINION ["`132] [*601] PRESIDING JUSTICE QUINN delivered the opinion of the court: This case arises out of a personal guaranty executed by defendants Harvey and Cherry Swento (the Swentos) in favor of plaintiff Chicago Exhibitors Corporation (CEC). Pursuant to the personal guaranty, the Swentos agreed to guaranty the payment of rent and other obligations owed to CEC by a certain tenant. After the tenant failed to pay rent and make other payments, CEC filed a complaint against the tenant and the Swentos as guarantors. The circuit court granted plaintiffs motion in limine to exclude the Swentos from presenting evidence relating to an alleged increase in the risk assumed by the Swentos. The court subsequently granted a directed verdict on liability against the Swentos and the matter proceeded to trial on ['"2] the issue of damages. The jury found GEC's damages to be $ 246,588.33 and a verdict in that amount was entered against the Swentos. The court subsequently awarded CEC attorney fees and costs. The Swentos appeal from the circuit court's order granting plaintiffs motion in limine to bar the Swentos from presenting evidence relating to an alleged increase in the risk they had assumed under the personal guaranty and from the circuit court's order awarding CEC attorney fees and costs. On appeal, the Swentos contend that: (1) the circuit court erred in granting plaintiff's motion in limine where the subsequent agreement between plaintiff and the tenant presented material changes under the lease which should have discharged the Swentos from their obligations as guarantors; (2) the circuit court erred in granting a directed verdict, which denied the Swentos their opportunity to present their affirmative For internal use only SDNY_GM_00054713 CONFIDENTIAL - PURSUANT TO FED. R.ctit;IN(FIDENTIAL DB-SDNY-00 17537 EFTA_00 165283 EFTA01295506 Page 18 376 III. App. 3d 599, *; 876 N.E.2d 129, ea; 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 defense of estoppel by waiver; and (3) the circuit court should have found it unconscionable to hold the Swentos liable under an agreement to which they were not a party. For the following reasons, we affirm. I. Background CEC is the owner of a shopping center in Des Plaines, Illinois, and leases r*31 spaces in the shopping center to commercial tenants. On July 8, 1991, CEC's predecessor, Rubloff, Inc. (Rubloff), as agent for the beneficiary of American National Bank and Trust Company of Chicago Trust No. 14834 (Land Trust), entered into a lease agreement (the lease) as landlord with Swento & Company, Inc., as tenant of "Space 13" at the shopping center. Swento & Company, Inc., which was owned [*6O2] and operated by the Swentos, was in the business of family fun entertainment as a franchise business that included an indoor amusement park which specialized in holding birthday parties with rides, games and a restaurant. The lease term was for 129 months from the date of the lease and the lease contained a financing contingency period that expired on August 8, 1991. Contemporaneous to the execution of the lease, to induce the landlord to enter into the lease with Swento & Company, Inc., the Swentos executed a personal guaranty that provided for their joint and several liability for all of the tenant's obligations under the lease. The personal guaranty provided that the Swentos guaranteed "the payment of all Rent and other charges to be paid by Tenant and the performance by Tenant of all the [*am] terms, conditions, covenants and agreements of the said Lease and the [Swentos] promis[e] to pay all the Landlord's expenses, including reasonable attorneys' fees and costs, incurred by the Landlord in enforcing all obligations of Tenant under the Lease or incurred by Landlord in enforcing this guaranty." The personal guaranty also provided: r133) "This guaranty is irrevocable, absolute, present. continuing and unconditional, and the obligation of (the Swentos) shag not be released or affected by (a) any extensions of time. indulgences or modifications vitich Landlord may extend with Tenant in the performance of said Lease; (b) any failure of Landlord to enforce any of the conditions of said Lease: (c) any assignment of the Lease by Tenant: or (0) any consent which Landlord may give to such assignment." In addition, the personal guaranty provided that the "guaranty shall also inure to the benefit of Landlord's successors, assigns, and legal representatives." On August 7, 1991, the parties executed a "First Amendment to Lease," in which the financing contingency period was extended to October 1, 1991. Pursuant to the amendment, all other terms of the lease remained the same. The amendment also [**.5] provided: "Harvey Swento and Cherry L. Swento have executed this First Amendment to Lease to reaffirm their obligations under that certain Personal Guaranty dated as of July 8. 1991. in favor of Landlord." On January 24, 1992, the parties executed a "Second Amendment to Lease," which changed the total square footage of the leased space by reducing the size of the rented area. The amendment also reduced the fixed minimum rent, annualized gross sales base, initial monthly estimated "CAM" payments, initial monthly estimated tax payment, and For internal use only SDNY_GM_00054714 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17538 EFTA_00 165284 EFTA01295507 Page 19 376 III. App. 3d 599, *; 876 N.E.2d 129, **; 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 tenant's proportionate share, as defined in the lease. Pursuant to ['6O3] the amendment, all other terms of the lease remained the same. The second amendment also contained the same paragraph as the first amendment, in which the Swentos "reaffirmed their obligation under that certain Personal Guaranty dated as of July 8, 1991, in favor of Landlord." Also on January 24, 1992, the Swentos transferred all interest in their business, Swento & Company, Inc., to a new entity also operated by them, Family Fun Enterprises, Ltd. (Family Fun). Family Fun, as assignee, assumed all obligations under the lease of Swento & Company, Inc., as assignor. Harvey Swento executed [***6] the assignment on behalf of both Swento & Company, Inc., and Family Fun. Under the assignment, all terms of the lease remained the same. On February 24, 1992, the parties executed a "Third Amendment to Lease," which extended the dates for the commencement and completion of tenant's work and provided for tenant's electrical service modification. Under the amendment, the new opening date for Family Fun was extended to April 7, 1992, and all other terms of the lease remained the same. The amendment also provided: "Harvey Swento and Cherry L. Swento have executed the Third Amendment to Lease solely as guarantors of the Lease and not as parties to the Lease to reaffirm their obligations under that certain Personal Guaranty dated as of July 8. 1991 in favor of Landlord." In 1996, title to the property in which the leased space was located was conveyed from the Land Trust to plaintiff CEC, together with all rights, title, and interest of the Land Trust under the lease. On February 18, 1997, the Swentos assigned and transferred all of their rights, title and interest as the limited partners in Family Fun to another company, Jeepers! of Illinois, Inc. (Jeepers Illinois). Also, on February 18, [*..7] 1997, Jeepers! Inc. (Jeepers), as parent company to Jeepers Illinois, entered into an indemnification agreement. Under the indemnification agreement, Jeepers agreed to indemnify the Swentos [**134] for any and all losses they may incur as a result of their personal guaranty. On December 26, 1997, the Swentos assigned all of their rights, title and interest as the sole general partner of Family Fun to Jeepers and Jeepers Illinois, pursuant to a general partner interest assignment. On March 25, 1998, Family Fun was dissolved by its new owners, and Jeepers and Jeepers Illinois succeeded to the interest of and assumed all obligations under the lease. On February 17, 2000, CEC, Jeepers, and Jeepers Illinois executed a "Fourth Amendment to Lease." In the amendment, the parties acknowledged that Jeepers and Jeepers Illinois, as the tenant, had defaulted in its obligations under the lease by failing to pay CEC, as [*604] the landlord, rental amounts totaling $ 126,561.73. The parties also stated in the amendment that CEC was not willing to consent to the transfer of interests in Family Fun to Jeepers Illinois unless the unpaid rent was paid in full and Jeepers, as parent company, executed a personal guaranty. [**8] The amendment also included the following provision with regard to the Swentos' personal guaranty of the lease: For internal use only SDNY_GM_00054715 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-00 17539 EFTA_00 165285 EFTA01295508 Page 20 376 III. App. 3d 599, *; 876 N.E.2d 129, **; 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 "Each of the guarantors of the lease, being Harvey Swento and Cherry L. Swento (the 'Original Guarantors'). has executed this Agreement to acknowledge and agree to the terms set forth herein and the guaranty obligations imposed upon each of them hereby. and to ratify, reaffirm and confirm their joint and several obligations under and pursuant to that certain Personal Guaranty of Lease dated as of July 8. 1991. in favor of the Landlord." Subsequently, Jeepers Illinois again failed to meet its rent payment obligations and on November 8, 2000, CEC filed a forcible eviction and detainer action. On December 15, 2000, CEC obtained an agreed order of possession for the premises against Jeepers Illinois. The order terminated Jeepers Illinois' right of possession of the premises under the lease and granted a money judgment to CEC for amounts due and owing under the lease. The order also provided that CEC would cancel the eviction proceedings with respect to the premises if Jeepers Illinois complied with certain conditions contained in the possession order, including, without limitation, [nil] paying those sums due and owing to CEC as rent under the lease for the month of January 2001, by January 15, 2001. Jeepers Illinois failed to pay the rental amounts due CEC by January 15, 2001. On January 26, 2001, CEC and Jeepers Illinois entered into an "Agreement to Reinstate Right of Possession" (the Agreement). Pursuant to the Agreement, CEC agreed to extend the deadline for Jeepers Illinois to pay the overdue rent under the lease and permitted Jeepers Illinois to maintain possession of the leased premises so long as it met the extended deadline. The Agreement provided that Jeepers Illinois would receive an extension of time for the payment of the January rent until January 26, 2001, and an extension of time for the payment of the February 2001 rent until February 9, 2001. The Agreement stated: "Landlord is not willing to grant Tenant's requests unless Tenant enters into this Agreement (and timely and fully satisfies and performs each of Tenant's covenants and obligations herein), and uNess Tenant causes all of the Guarantors to ratify and confirm this Agreement." The Agreement also provided the following: (1) a modification of section 19.01 of the lease, dealing with notice requirements; r""10] (2) an addition [" 605] of section 19.23 to the lease, which required the tenant to ("135] execute an estoppel certificate upon request to acknowledge the parties' respective rights under the lease; (3) an addition of section 19.24 to the lease, which required the delivery of current financial statements to the landlord; (4) an addition of section 19.25 to the lease, which waived the parties' rights to a jury trial and objections to venue in the event of litigation arising out of the lease; and (5) an addition of a covenant by the tenant that the lease is valid, in full force and effect, and that the tenant does not have any defense, claim or offset right against the landlord as of the date the Agreement was executed. The Agreement was not signed by the Swentos. Following the Agreement, Jeepers Illinois again became delinquent in its rent payment obligations under the lease. After the lease expired in June 2002 and Jeepers Illinois vacated the leased space at the shopping center, Jeepers Illinois failed to return the leased space in the condition required by the lease. On September 20, 2002, CEC filed a complaint seeking to recover payment for unpaid rent and repair to the leased premises. The complaint [""1 1] named Jeepers Illinois as the tenant, and Jeepers and the Swentos as guarantors under the lease. On June 28, 2006, after counsel for Jeepers Illinois and Jeepers had withdrawn its representation of those entities, the circuit court granted CEC's motion for summary judgment against Jeepers Illinois and Jeepers for unpaid rent obligations. The court also For internal use only SDNY_GM_00054716 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-0017S40 EFTA_00 165286 EFTA01295509 Page 21 376 III. App. 3d 599, *; 876 N.E.2d 129, **; 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 granted new counsel leave to appear on behalf of the Swentos and denied the Swentos' motion to continue the trial, which was scheduled for August 7, 2006. On July 19, 2006, the Swentos filed their fourth amended affirmative defenses, which included an additional third affirmative defense that the Swentos were discharged of their obligations under the personal guaranty when CEC entered into the Agreement on January 26, 2001, because the Agreement included changes to the lease that materially increased the risk that the Swentos had previously agreed to guaranty. On August 7, 2006, prior to trial, CEC presented a motion in limine to exclude the Swentos from presenting evidence relating to an alleged increase in risk that released them from their personal guaranty under the lease. In its motion, CEC argued that, as a matter of law, none of r..12] the June 26, 2001, Agreement provisions could have materially increased the risk assumed by the Swentos so as to discharge their obligations under the personal guaranty. CEC asserted that none of the essential terms of the original lease, such as the amount of rent, were changed by the Agreement and the performance required of the tenant remained the same. Rather, CEC asserted that by providing the ["6O6] tenant with the opportunity to cure its default and enter a repossession agreement. CEC substantially mitigated the damages that otherwise would have been caused by the tenant's breach. On August 8, 2001, the circuit court granted CEC's motion in limine to exclude evidence relating to an alleged increase in risk incurred by the Swentos. The parties then agreed that the only remaining issue to be determined by the jury was the extent of CEC's damages. The circuit court therefore granted a directed verdict on liability against the Swentos and the matter proceeded to trial on the issue of damages. The jury found CEC's damages for unpaid rent and property damage to be $ 246,588.38, and a verdict in that amount was entered against the Swentos. A corresponding judgment for property damages was (***13] also entered against Jeepers Illinois and Jeepers, in addition to the r1361 previous judgment entered against those entities for unpaid rent. The circuit court also entered judgment in the Swentos' favor and against their co-guarantor Jeepers, under the separate indemnification agreement that the Swentos had entered into with Jeepers. Subsequently, on October 23, 2006, the circuit court granted GEC's request for attorney fees. The Swentos filed a notice of appeal challenging the circuit court's August 8, 2006, order granting CEC's motion in limine and the court's October 23, 2006, order granting CEC's request for attorney fees. II. Analysis A. Motion In Limine On appeal, the Swentos first contend that the circuit court erred by granting CEC's motion in limine to exclude evidence relating to an alleged increase in risk where the Swentos argue that they were unaware of the Agreement and the Agreement constituted a material change under the lease which should have discharged the Swentos' obligations as guarantors. 1. Standard of Review [I-IN1] "A motion in limine is addressed to the trial court's inherent power to admit or exclude evidence," and, generally, this "court will not disturb the trial court's ['**14] ruling For internal use only SDNY_GM_00054717 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0017541 EFTA_00 165287 EFTA01295510 Page 22 376 III. App. 3d 599, *; 876 N.E.2d 129, 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 on a motion in limine absent a clear abuse of discretion." Beehn v. Eppard, 321 III. App. 3d 677, 680, 747 N.E.2d 1010, 254 III. Dec. 598 (2001), citing People v. Williams, 188 III. 2d 365, 369, 721 N.E.2d 539, 242 III. Dec. 260 (1999). "However, a trial court must exercise its discretion within the bounds of the law." Beehn, 321 III. App. 3d at 680. [HN2] Where a trial court's exercise of discretion relies on an erroneous conclusion of law, as the Swentos claim, our review is de novo. Beehn, 321 III. App. 3d at 680-01. 2. Modifications to the Lease The Swentos argue that the circuit court erred by granting the r6071 motion in limine and finding as a matter of law that the Agreement was not material enough to discharge the Swentos' obligations as guarantors of the lease. [HN3] In Illinois, the general principle applies that "a guarantor is not released unless the essentials of the original contract have been changed and the performance required of the principal is materially different from that first contemplated." Roels v. Drew Industries, Inc., 240 III. App. 3d 578, 581, 608 N.E.2d 411, 181 III. Dec. 338 (1992). "Unless there is some material change in the business dealings between the debtor and the creditor-guarantee and some increase in the risk undertaken by the guarantor, the obligation of the [".15] guarantor is not discharged."' Roels, 240 III. App. 3d at 582, quoting Essex International, Inc. v. Clamage, 440 F.2d 547, 550 (7th Cir. 1971). [HN4] "Whether a guarantor is exposed to an increase in the risk it originally undertook is a key variable in determining whether there has been a material change in the guaranty agreement." Roels, 240 III. App. 3d at 582; Zirp-Bumham, LLC v. E. Terrell Associates, Inc., 356 III. App. 3d 590, 606, 826 N.E.2d 430, 292 III. Dec. 289 (2005). [FIN5] "A guarantor takes a risk in exchange for a benefit: when events beyond the guarantor's control dramatically increase the risk, the assumptions upon which the contract was founded are undercut." Roels, 240 III. App. 3d at 582. "The principle that a substantial increase in risk discharges the guaranty rests on the assumption that guarantors would not ordinarily ("137] tolerate a substituted increase in risk without seeking something in return." Roels, 240 III. App. 3d at 582. Here, the Swentos assert that several clauses in the Agreement exposed them to an increase in the risk that they originally undertook under the lease. These clauses include: (1) section 19.01, which was amended to provide that notices to the tenant would be sent to its office in Massachusetts ["*16] rather than the office of its predecessor in Houston; (2) section 19.23, which required the tenant to provide, upon request, an estoppel certificate stating that the lease is still in effect, that rent is paid to a certain date or describing any defaults, that the tenant occupies the leased space, and that the tenant has no claims against the landlord; (3) section 19.24, which required tenant and its parent company to provide financial statements to the landlord upon the landlord's written request; (4) section 19.25, which provided that the parties agreed that all actions arising in connection with the lease shall be determined in the state and federal courts of Illinois and the parties also agreed to waive their right to a jury trial; (5) paragraph 8, in which the tenant agreed that "the Lease is valid, and in full force and effect without default by Landlord, and that Tenant does not have any defense, claim or offset right against Landlord as of the date hereof ['6O8] Except as otherwise modified by this Agreement, For internal use only SDNY_GM_00054718 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17542 EFTA 00165288 EFTA01295511 Page 23 376 III. App. 3d 599, *; 876 N.E.2d 129, **; 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 the terms and provisions of the Lease are hereby ratified, reaffirmed and confirmed." (Emphasis added.) We find that, contrary to the Swentos' argument, none of these changes rin in the Agreement constituted a material change in terms so as to release the Swentos from their personal guaranty. None of these clauses altered the performance required by the tenant, such as the amount of rent owed under the lease, the terms of lease, or the basic relationship between the tenant and landlord. In addition, the waiver of any defenses against the landlord was only as of the date of the Agreement. The Swentos, nonetheless, argue that their obligation under the personal guaranty was discharged by the assignment of the tenant's obligations under the lease to successor tenants and ultimately Jeepers Illinois. The Swentos assert that when they transferred the Jeepers franchise back to Jeepers Illinois and assigned all assets and liabilities to Jeepers Illinois, the asset pool available to the business creditors of the tenant significantly changed. The Swentos maintain that on March 25, 1998, when Jeepers and Jeepers Illinois dissolved Family Fun, which was the Swentos' family business operating the franchise, the Swentos' amount of risk changed because the Swentos were no longer guarantying that the entity they exercised direct control over would satisfy the lease agreement. rug The Swentos rely on Bernardi Bros., Inc. v. Great Lakes Distributing, Inc., 712 F.2d 1205 (7th Cir. 1983), in support of their argument. In Bernardi Bros., the owner of a car wash took out a bank loan and had it guaranteed. The borrower later incorporated his business and changed its name, but the pool of assets that secured the loan remained the same. The guarantor later sought to escape liability due to the incorporation and name change. The court applied Illinois law and held that because the economic relationship between the parties had not changed, the incorporation and name change did not materially alter the contract and did not discharge the loan. Bernardi Bros., 712 F.2d at 1207-08. Here, the Swentos argue that following the reasoning Bernardi Bros., where a change in corporate form does diminish the pool of assets available to its creditors, the risk ['•138] posed to the guarantors is necessarily increased and justified the discharge of the guarantors' obligations. The Swentos maintain that when the debtor changed from being the Swentos themselves, to their franchisor, Jeepers, the pool of assets changed and the risk to the Swentos as guarantors substantially increased. However, the [un] Swentos agreed to the assignment of the tenant's interests to Jeepers Illinois. This assignment was expressly recognized by the "Fourth Amendment to ['6O9] Lease." The fourth amendment, which was signed by both Harvey and Cherry Swento, also contained a statement that the Swentos: "ratify, reaffirm and confirm their joint and several obligations under and pursuant to that certain Personal Guaranty of Lease dates as of July 8, 1991, in favor of the Landlord." The record therefore indicates that the Swentos agreed to guaranty the obligations of Jeepers Illinois as assignee of the lease. Where guarantors assent to such changes in the contract, the guarantors will not be released. See Roels, 240 III. App. 3d at 583. We further find that the Swentos' arguments ignore the fact that the language of the personal guaranty specifically provided that the guaranty would remain intact regardless of changes and modifications to the lease, including extensions of the lease. The personal guaranty provided: For internal use only SDNY_GM_00054719 CONFIDENTIAL - PURSUANT TO FED. R.WN(F IDENTIAL DB-SDNY-0017543 EFTA_00 165289 EFTA01295512 Page 24 376 III. App. 3d 599, *; 876 N.E.2d 129, **; 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 "This guaranty is irrevocable, absolute. present. continuing and unconditional. and the obligation of (the Swentos) shall not be released or affected by (a) any extensions of time. indulgences or modifications r"2O] which Landlord may extend with Tenant in the performance of said Lease: (b) any failure of Landlord to enforce any of the conditions of said Lease: (c) any assignment of the lease by Tenant; or (d) any COMM which Landlord may give to such assignment." The personal guaranty further provided that the "guaranty shall also inure to the benefit of Landlord's successors, assigns, and legal representatives." In light of the express provisions of the guaranty, we find that by agreeing that their obligation would continue even if the landlord granted extensions of time to the tenant or otherwise modified the lease, the Swentos granted the landlord the right to make such extensions or modifications without impairing the validity of the guaranty. See Zirp-Bumham, 356 III. App. 3d at 605 (where language of original guaranty provided that the guarantor "guarantee[d] the landlords, its successors and assigns, the prompt and full payment of all Rent,' 'notwithstanding any amendment, addition, assignment, sublease, transfer, renewal, extension or other modification of the Lease,"' (emphasis omitted) the guarantor was not relieved from personal liability due to an allegedly erroneous listing of [..21] the trustee and landlord on a second reaffirmation of the guaranty because the landlord did not require the guarantor's reaffirmation to receive the benefit of the original guaranty under the language of that original guaranty). We therefore conclude that the Swentos were not discharged from the guaranty due to the modifications contained in the Agreement. B. Affirmative Defense of Estoppel by Waiver The Swentos next contend that the circuit court erred in granting ["610] CEC's motion for a directed verdict where it denied the Swentos the opportunity to present their affirmative defense of estoppel by waiver. The Swentos argue that CEC is estopped from seeking a judgment against the Swentos where CEC entered into the Agreement solely with Jeepers and Jeepers ['"139] Illinois that superceded the lease. The Swentos maintain that neither CEC's forcible eviction and detainer action nor the Agreement contemplated the Swentos as guarantors to the lease and CEC should be prevented from reverting to the 1991 personal guaranty. In the alternative, the Swentos argue that CEC and Jeepers Illinois entered into an executory accord that prevents CEC from attempting to collect the same debt from the Swentos as a ("1'22] nonparty to that accord. CEC argues that the Swentos waived these purported defenses by failing to raise them before the trial court. We agree. The record shows that the Swentos' counterclaim and affirmative defenses included promissory estoppel, in which the Swentos alleged that CEC was estopped from asserting its rights under the lease because it broke off negotiations to extend the lease for an additional time period after Jeepers Illinois failed to pay overdue rent. However, the Swentos did not present to the circuit court the estoppel by waiver arguments that they advance on appeal and these arguments are therefore waived. See Robidoux v. Oliphant, 201 III. 2d 324, 344, 775 N.E.2d 987, 266 III. Dec. 915 (2002). Waiver aside, we find that the Swentos arguments are without merit. The Swentos first assert that CEC is estopped from seeking a judgment against the Swentos, where CEC entered into the Agreement solely with Jeepers and Jeepers Illinois and where CEC did not name the Swentos in the forcible eviction and detainer action, ignores the fact that, as already discussed, the personal guaranty's language provided that the guaranty would For internal use only SDNY_GM_00054720 CONFIDENTIAL - PURSUANT TO FED. R.c2C;IN(F IDENTIAL DB-SDNY-00 17544 EFTA_00 165290 EFTA01295513 Page 25 376 III. App. 3d 599, *; 876 N.E.2d 129, **; 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 remain intact regardless of changes and modifications to the lease. In light of [***23] the express provisions of the guaranty, the Swentos were not discharged by the subsequent Agreement and CEC was not required to receive a reaffirmation by the Swentos in the Agreement to receive the benefit of the original guaranty. See Zirp-Burnham, 356 III. App. 3d at 605-06. The Swentos' second claim, that the Agreement constituted an executory accord that satisfied the tenant's obligation under the lease, is also without merit. [HN6] "An 'executory accord' is an agreement to accept at some future time a stipulated performance as satisfaction of an obligation." Collection Professionals, Inc. v. Logan, 296 III. App. 3d 959, 964, 695 N.E.2d 1344, 231 III. Dec. 225 (1998). [HN7] "[A]n executory accord is unenforceable and will not bar enforcement of the original obligation unless: (1) the creditor has clearly accepted the new promise of future performance, itself, and not the ultimate performance of it, as satisfaction, and (2) the new promise r611] is based upon new consideration." Collection Professionals, Inc., 296 III. App. 3d at 964. Here, the Agreement specifically provided in paragraph 8 that "Tenant covenants and agrees that the Lease is valid, and in full force and effect" and that "the terms and provisions of the Lease are hereby ["*"24] ratified, reaffirmed and confirmed." The Agreement further provided, in paragraph 2,: "Tenant covenants and agrees that the time extensions described in this Paragraph 2 do not and shall not constitute a waiver, modification or abrogation of Tenant's obligations under the Lease to timely and fully pay to Landlord all other Rent amounts when due during the Term and to otherwise timely and fully perform all covenants and obligations described in the Lease during the Term," ("140] The Agreement therefore did not provide that CEC accepted a new promise of future performance as satisfaction for the tenant's obligations under the lease, but, rather, the Agreement consisted of an extension of time and modifications of the lease. The parties also agreed in the Agreement that the lease remained in full force and effect. In addition, any promise to provide a release of the original lease would not have been based upon new consideration because Jeepers Illinois already owed the overdue rent payments to CEC pursuant to the lease and did not provide new consideration. We therefore conclude that there is nothing in the record demonstrating that CEC intended to accept the Agreement as satisfaction for the ["**25] tenant's obligations under the lease. C. Unconsionability The Swentos lastly contend that it is unconscionable to hold them liable under the Agreement because they were not parties to the Agreement and had no knowledge of the Agreement. Contrary to the Swentos' assertion, the circuit court found them liable pursuant to the terms of the personal guaranty, in which they expressly agreed to be jointly and severally liable for the tenant's obligations under the lease. GEC's claims in this case were based on Jeepers Illinois' failure to make rent payments as obligated under the lease and its failure to return the leased premises to the condition required by the lease. As previously discussed, the Agreement did not materially alter the obligations of the tenant so as to discharge the Swentos from their obligations under the personal guaranty. In addition, the personal guaranty granted the landlord the right to make extensions or modifications, such as those provided in the Agreement, without impairing the validity of For internal use only SDNY_GM_00054721 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0017545 EFTA_00165291 EFTA01295514 Page 26 376 III. App. 3d 599, *; 876 N.E.2d 129, **; 2007 III. App. LEXIS 962, ***; 315 III. Dec. 129 the personal guaranty. Therefore, we find nothing unconscionable about the enforcement of the personal guaranty in this case. Ill. Conclusion [1.612] For the above reasons, we affirm the r**26] judgment of the circuit court. Affirmed. NEVILLE and MURPHY, JJ., concur. For internal use only SDNY_GM_00054722 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-00 17546 EFTA_00 165292 EFTA01295515 Page 27 2004 Ohio 6250, *; 2004 Ohio App. LEXIS 5682, ** Hanlin-Rainaldi Construction Corp., Plaintiff-Appellant, v. Jeepers!, Inc., Defendant-Appellee. No. 03AP-851 COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY 2004 Ohio 6250; 2004 Ohio App. LEXIS 5682 November 23, 2004, Rendered PRIOR HISTORY: r*ii C.P.C. No. 02CVH-5622 DISPOSITION: Judgment affirmed. CASE SUMMARY: PROCEDURAL POSTURE: Appellant construction company sought review of a judgment of the Franklin County Court of Common Pleas (Ohio). which granted partial summary judgment in favor of appellee indoor animated theme park operator in the company's action. which alleged wrongful withholding of payments. breach of contract, and unjust enrichment. Summary judgment was granted to the company on several of the withholding payment claims and the breach of contract claim. OVERVIEW: The park operator entered into a lease agreement to operate a park The operator also entered into agreements with the construction company for work on the specific leasehold. and with a general contractor. However. the company filed a lien against the leasehold for unpaid fees Thereafter. the parties entered into a settlement agreement Upon the operator's failure to pay under the settlement. the company filed suit against the operator and others. and another settlement was entered into. The company again sued the operator. The trial court granted summary judgment for the company on two unpaid notes and for breach of contract. and for the operator on one note and for unjust enrichment. On appeal. the court found that North Carolina substantive law applied The company's claim that there was a modification or waiver of the release language in the settlement agreement was not properly reviewable, as it was not raised in the trial court. The language of the settlement agreement plainly and unambiguously discharged the operator from its obligation under one note, and accordingly, the court was not free to entertain the company's claim that a release was not the parties' intent. OUTCOME: The court affirmed the judgment of the trial court. For internal use only SDNY_GM_00054723 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17547 EFTA_00 165293 EFTA01295516 Page 28 2004 Ohio 6250, a; 2004 Ohio App. LEXIS 5682, ea CORE TERMS: summary judgment, settlement agreement, assignment of error, reply brief. parol evidence rule, matter of law, construction projects, upfit, leasehold, plainly, movant, reply, choice of law, reasonable basis, novo, subsequent conduct, wrongfully withheld, contractor, discharged, assign, procedural law, applicable law, substantial relationship, fundamental policy, material interest, leave to file, genuine issues, initial burden, citations omitted, unambiguous LexisNexis(R) Headnotes Contracts Law > Contract Conditions & Provisions > Forum Selection Clauses [HN11 The Supreme Court of Ohio has held that the law of the state chosen by the parties to govern their contractual rights and duties will be applied unless either the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or application of the law of the chosen state would be contrary to the fundamental policy of a state having a greater material interest in the issue than the chosen state and such state would be the state of the applicable law in the absence of a choice by the parties. Civil Procedure > Federal & State Interrelationships > Choice of Law > General Overview [HN2] Traditional choice of law principles provide that the law of the forum state governs on procedural matters. Civil Procedure > Appeals > Briefs [HN3] A reply brief is merely an opportunity to reply to the brief of appellee. A reply brief may not raise new assignments, which were omitted from an appellant's original brief, especially where leave to file a new assignment was not sought from the appellate court. Civil Procedure > Appeals > Reviewability > Preservation for Review [HN4] Issues not raised in a lower court and not there tried and which are completely inconsistent with and contrary to the theory upon which appellants proceeded below cannot be raised for the first time on review. Civil Procedure > Summary Judgment > Appellate Review > Standards of Review Civil Procedure > Appeals > Standards of Review> De Novo Review [HN5] Appellate review of a lower courts granting of summary judgment is de novo. De novo review means that an appellate court uses the same standard that a trial court should have used, and the appellate court examines the evidence to determine whether as a matter of law no genuine issues exist for trial. Civil Procedure > Summary Judgment > Standards > Appropriateness Civil Procedure > Summary Judgment > Standards > Genuine Disputes Civil Procedure > Summary Judgment > Standards > Materiality [HN6] Summary judgment is proper when a movant for summary judgment demonstrates: (1) no genuine issue of material fact exists; (2) the movant is entitled to judgment as a For internal use only SDNY_GM_00054724 CONFIDENTIAL - PURSUANT TO FED. R.QC;IN(F IDENTIAL DB-SDNY-00 17548 EFTA_00 165294 EFTA01295517 Page 29 2004 Ohio 6250, *; 2004 Ohio App. LEXIS 5682, ** matter of law; and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Ohio R. Civ. P. 56. Civil Procedure > Summary Judgment > Burdens of Production & Proof > Movants Civil Procedure > Summary Judgment > Standards > Appropriateness Civil Procedure> Summary Judgment > Standards > Genuine Disputes [HN7] Under Ohio R. Civ. P. 56(C), a movant bears the initial burden of informing a trial court of the basis for the motion and identifying those portions of the record demonstrating the absence of a material fact. Once a movant discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Rule 56, with specific facts showing that a genuine issue exists for trial. Contracts Law > Contract Interpretation > Parol Evidence > General Overview Evidence > Documentary Evidence > Parol Evidence [HN8] The parol evidence rule is not a rule of evidence but of substantive law. It prohibits the consideration of evidence as to anything which happened prior to or simultaneously with the making of a contract which would vary the terms of the agreement. Generally, the parol evidence rule prohibits the admission of evidence to contradict or add to the terms of a clear and unambiguous contract. Contracts Law > Contract Interpretation > Parol Evidence > General Overview [HN9] Under North Carolina law, when the language of a contract is clear and unambiguous, construction of the agreement is a matter of law for a court, and the court cannot look beyond the terms of the contract to determine the intentions of the parties. Therefore, it must be presumed the parties intended what the language used clearly expresses, and the contract must be construed to mean what on its face it purports to mean. Contracts Law > Contract Interpretation > General Overview [HN10] Under North Carolina law, where the provisions of a contract are plainly set out, a court is not free to disregard them and a party may not contend for a different interpretation on the ground that it does not truly express the intent of the parties. COUNSEL: Bricker & Eckler, LLP, and James J. Hughes, Ill, for appellant. Porter, Wright, Morris & Arthur, LLP, Jack R. Pigman, Jay A. Yurkiw and Bryan R. Faller, for appellee. JUDGES: PETREE, J. KLATT and WRIGHT, JJ., concur. OPINION BY: PETREE OPINION For internal use only SDNY_GM_00054725 CONFIDENTIAL - PURSUANT TO FED. R.ctc;IN(f IDENTIAL DB-SONY-0017549 EFTA_00 165295 EFTA01295518 Page 30 2004 Ohio 6250, a; 2004 Ohio App. LEXIS 5682, ea (REGULAR CALENDAR) APPEAL From the Franklin County Court of Common Pleas. PETREE, J. [' P1] Plaintiff-appellant, Hanlin-Rainaldi Construction Corporation ("Hanlin-Rainaldi"), appeals from a judgment of the Franklin County Court of Common Pleas that granted partial summary judgment in favor of defendant-appellee, Jeepersl, Inc. ("Jeepers"). For the following reasons, we affirm. [' P2] Jeepers owns and operates indoor animated theme parks that are designed to serve families with children who are 12 years old or younger. Within these indoor animated theme parks are amusement park rides, soft play areas, skill games, and family dining. [' P3] In August 1999, Jeepers and Concord Mills Limited Partnership ("Concord Mills") entered into a ten-year lease agreement with the intention that Jeepers would operate a business establishment at a leasehold in Concord Mills Mall in Concord, North Carolina. [*1'2] Under this agreement, after Jeepers satisfied conditions precedent, Concord Mills apparently agreed to pay Jeepers an allowance for construction improvements. [' P4] In August 1999, Jeepers also entered into an agreement with Hanlin-Rainaldi, an Ohio corporation that Jeepers apparently had retained on several previous occasions for other construction projects. According to this agreement, Jeepers agreed to pay $ 1,100,000 to Hanlin-Rainaldi for upfitting the leasehold at Concord Mills Mall. r P5] Effective August 1999, Jeepers also contracted with Win & Associates, Inc. Min & Associates"), a general contractor in North Carolina. According to this agreement, Jeepers appointed Win & Associates to be the general contractor for the Concord Mills Mall project and directed them to use Hanlin-Rainaldi as the major prime contractor for the Concord Mills Mall project. The project agreement between Jeepers and Win & Associates also required, among other things, that Jeepers: (1) assign its agreement with Hanlin-Rainaldi to Win & Associates for the purpose of satisfying North Carolina licensing and permit requirements; (2) pay the contract sum as provided in its agreement with Hanlin-Rainaldi ["3] directly to Hanlin-Rainaldi; and (3) pay a management fee to Win & Associates. [' P6] Jeepers, however, failed to pay Hanlin-Rainaldi for services rendered, thereby breaching its agreement with Hanlin-Rainaldi. To perfect its interest, Hainlin-Rainaldi filed a lien in North Carolina against the leasehold. [' P7] In May 2000, desiring to settle any and all claims resulting from the construction project that the parties had against each other, Jeepers and Hanlin-Rainaldi entered into a settlement agreement, wherein Jeepers acknowledged it owed $ 708,084 to Hanlin- Rainaldi. Pursuant to this agreement, Jeepers promised to pay $ 440,000 upon execution of the agreement, with the remaining balance to be paid by: (1) a promissory note in the amount of $ 160,000 ("Note 1"); and (2) a cognovit note in the amount of $ 108,084. In exchange, Hanlin-Rainaldi agreed to release the lien against the leasehold at Concord Mills Mall. I Jeepers has correctly observed that the copy of the May 2000 agreement in the record was not signed or dated by Hanlin- Rainaldi and lacked some exhibits that were referenced in the settlement agreement. (Jeepers' Reply Memorandum in Support For internal use only SDNY_GM_00054726 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17550 EFTA_00 165296 EFTA01295519 Page 31 2004 Ohio 6250, a; 2004 Ohio App. LEXIS 5682, n of Its Motion for Summary Judgment, at 4.) Nevertheless, before the trial court. Jeepers did not affirmatively deny that 4 was a party to this settlement agreement. nor did it move to stnke this copy of the purported settlement agreement. See, generally, Churchwell v. Red Roof Inns, Inc. (Mar. 24. 1998). Franklin App. No. 97APE08-1125. at M. 1. 1998 Ohio App. LEXIS 1122. r.41 2 According to Jeepers, Hanlin-Rainaldi did riot remove its ken until after Hanlin-Rainaldi filed suit in North Carolina and another settlement agreement in August 2001 was executed_ (Jeepers Reply Memorandurn in Support of Its Motion for Summary Judgment, at 4 In. 3.) r P8] Jeepers failed to pay the $ 440,000 that it promised to pay upon execution of the May 2000 settlement agreement. Thereafter, Hanlin-Rainaldi sued Jeepers, Concord Mills, and Win & Associates in a North Carolina court. rP9] Additionally, although Jeepers made payments towards satisfying its obligation under Note 1, which continued until 2002, r Jeepers ultimately failed to totally satisfy its obligation under Note 1. Jeepers did, however, satisfy the cognovit note. 3 According to Hanlin-Rainaldi. Jeepers failed to make a monthly payment on April 15, 2002, and then failed to make any subsequent payments. (Affidavit of Kristy Krull, Comptroller of Hanlin-Rainaldi, dated October 30, 2002, at P7.) Jeepers admits it made payments in January and February 2002. (Reply Memorandum of Defendant Jeeperst, Inc. in Support of its Motion For Summary Judgment, at 7. fn. 8.) r5] r P10] In August 2001, Hanlin-Rainaldi, Jeepers, and Concord Mills entered into a settlement agreement to resolve disputed claims. Concurrent with the execution of this settlement agreement, Jeepers executed two promissory notes to Hanlin-Rainaldi in the amount of $ 165,000 ("Note 2") and $ 75,000 ("Note 3"), respectively. Additionally, concurrent with the execution of the second agreement, Concord Mills agreed to put $ 75,000 in escrow for the benefit of Jeepers to be disbursed to Hanlin-Rainaldi after it released its lien and dismissed its lawsuit. Hanlin-Rainaldi acknowledges that it received the $ 75,000 that was held in escrow; however, according to Hanlin-Rainaldi, Jeepers defaulted on Notes 2 and 3. r P11] On May 20, 2002, Hanlin-Rainaldi sued Jeepers in the Franklin County Court of Common Pleas, asserting five causes of action, that Jeepers: (1) wrongfully withheld payment under Note 1 and was liable for all amounts due under this note; (2) wrongfully withheld payment under Note 2 and was liable for all amounts due under this note; (3) wrongfully withheld payment under Note 3 and was liable for all amounts due under this note; (4) materially breached the agreement r.6] of August 2001 and was liable for the balances due under Notes 2 and 3; and (5) had been unjustly enriched and was liable in an amount equal to the outstanding balances that were due under Notes 1, 2, and 3. Jeepers answered the complaint, wherein it admitted to executing the notes but generally denied other allegations in the complaint. r P12] Hanlin-Rainaldi later moved for summary judgment as to all claims. Jeepers opposed this motion. r P13] Later, Jeepers moved for summary judgment concerning Hanlin-Rainaldi's claims that arose under the August 2001 agreement and Notes 2 and 3, claiming that the agreement and Notes 2 and 3 were executed under economic duress. In the alternative, For internal use only SDNY_GM_00054727 CONFIDENTIAL - PURSUANT TO FED. R.cON(F IDENTIAL DB-SDNY-0017551 EFTA_00 165297 EFTA01295520 Page 32 2004 Ohio 6250, *; 2004 Ohio App. LEXIS 5682, ** Jeepers sought judgment relating to Note 1, claiming that the agreement discharged Jeepers of this debt. Hanlin-Rainaldi opposed Jeepers' motion for summary judgment. r P14] On April 1, 2003, the trial court rendered a decision, wherein it granted in part and denied in part Hanlin-Rainaldi's motion for summary judgment and granted Jeepers' motion for summary judgment; however, this decision was later vacated. Pursuant to Civ.R. 53 and local rule, the trial court r 7] later referred the matter to a magistrate for a mediation conference. After reaching an impasse, the matter was referred for further motion practice and trial preparation. r P151 On July 24, 2003, the trial court rendered judgment wherein it granted in part and denied in part both Hanlin-Rainaldi's and Jeepers' motions for summary judgment. In its judgment, the trial court found in favor of Hanlin-Rainaldi concerning its claims that Jeepers breached the August 2001 agreement and was liable to Hanlin-Rainaldi under Notes 2 and 3. However, the trial court found in favor of Jeepers as to Hanlin-Rainaldi's claims that Jeepers failed to satisfy its obligation under Note 1 and Jeepers was unjustly enriched. From this judgment, Hanlin-Rainaldi appeals and asserts a single assignment of error: The trial court erred as a matter of law in applying the parol evidence rule to bar evidence of Appellee's subsequent conduct r P16] In its reply brief, Hanlin-Rainaldi alternatively asserts: The trial court erred as a matter of law by failing to consider evidence of Appellee's subsequent payments on the note to show intent and meaning, including whether such conduct constituted rit] a modification or waiver of the terms of the release language in the settlement agreement. r P17] We will first address which substantive law and procedural law apply to this cause. r P113] [HN1] The Supreme Court of Ohio has held: The law of the state chosen by the parties to govern their contractual rights and duties will be applied bless either the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or application of the law of the chosen state would be contrary to the fundamental policy of a state having a greater material interest in the issue than the chosen state and such state would be the state of the applicable law in the absence of a choice by the parties. Schulke Radio Productions, Ltd. v. Midwestern Broadcasting Co. (1983), 6 Ohio St.3d 436, 6 Ohio B. 480, 453 N.E.2d 683, syllabus; see, also, Jarvis v. Ashland Oil, Inc. (1985), 17 Ohio St.3d 189, 17 Ohio B. 427, 478 N.E.2d 786, syllabus; Restatement of the Law 2d, Conflict of Laws (1971) 561, Section 187. Accord Torres v. McClain (2000), 140 N.C. App. 238, 241, 535 S.E.2d 623, quoting Behr v. Behr (1980), 46 N.C.App. 694, 696, 266 S.E.2d 393, ("9] citing Restatement of the Law 2d, Conflict of Laws (1971) 561, Section 187 (stating that "the parties' choice of law is generally binding on the interpreting court as long as they had a reasonable basis for their choice and the law of the chosen State does not violate a fundamental policy of the state of otherwise applicable law."). r P19] Section 91. of Hanlin-Rainaldi, Jeepers, and Concord Mills' August 2001 agreement provides that: "This Agreement shall be governed by the laws of the State of North Carolina." In this case, North Carolina is the locus of Jeepers' leasehold and the For internal use only SDNY_GM_00054728 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17552 EFTA_00 165298 EFTA01295521 Page 33 2004 Ohio 6250, *; 2004 Ohio App. LEXIS 5682, ** construction project, and we find it is the forum with the most significant contacts to the case. Accordingly, we conclude North Carolina has a substantial relationship to the settlement agreement, and there exists a reasonable basis for the parties' choice of law provision in their contract. Furthermore, based upon our review of the record, we cannot conclude that Ohio would have a greater material interest than North Carolina in the outcome of this case. Accordingly, we conclude North Carolina substantive law applies to the August 2001 agreement. r P20] Furthermore, because [HN2] traditional choice r10] of law principles provide that the law of the forum state governs on procedural matters, Keeton v. Hustler Magazine, Inc. (1984), 465 U.S. 770, 778, fn. 10, 104 S. Ct. 1473, 79 L. Ed. 2d 790; Lawson v. Valve- Trol Co. (1991), 81 Ohio App.3d 1, 4, 610 N.E.2d 425, jurisdictional motion overruled, 61 Ohio St. 3d 1422, 574 N.E.2d 1092; Restatement of the Law 2d, Conflict of Laws (1971) 350, Section 122, we conclude Ohio procedural law applies to this cause. r P211 In its reply brief, Hanlin-Rainaldi has asserted an alternative assignment of error, namely, that the August 2001 agreement was modified or, alternatively, that release language in this agreement was waived. r P22] [HN3) "[A] reply brief is merely an opportunity to reply to the brief of appellee. * * * A reply brief may not raise new assignments, which were omitted from appellant's original brief, especially where leave to file a new assignment was not sought from this court." Calex Corp. v. United Steelworkers of America (2000), 137 Ohio App.3d 74, 80, 738 N.E.2d 51, dismissed, appeal not allowed, 89 Ohio St. 3d 1465, 732 N.E.2d 998; see, also, Trout v. Ohio Dept riii of Edn., Franklin App. No. 02AP-783, 2003 Ohio 987, at P26; Belcher v. Ohio State Racing Comm., Franklin App. No. 03AP-786, 2004 Ohio 1278, at P18, appeal not allowed, 103 Ohio St. 3d 1405, 2004 Ohio 3980, 812 N.E.2d 1288; Julian v. Creekside Health Ctr., Mahoning App. No. 03MA21, 2004 Ohio 3197, at P81; Tipp City v. Watson, Miami App. No. 02CA43, 2003 Ohio 4836, at P28; Brouse v. Old Phoenix Natl. Bank of Medina (1985), 25 Ohio App. 3d 9, 10, fn. 1, 25 Ohio B. 38, 495 N.E.2d 42; Sheppard v. Mack (1980), 68 Ohio App.2d 95, 97, fn. 1, 427 N.E.2d 522. See, also, App.R. 16(A)(3) and (C). r P23] Additionally, [HN4] "issues not raised in the lower court and not there tried and which are completely inconsistent with and contrary to the theory upon which appellants proceeded below cannot be raised for the first time on review." Republic Steel Corp. v. Cuyahoga Cty. Bd. of Revision (1963), 175 Ohio St. 179, 192 N.E.2d 47, syllabus; see, also, State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections (1992), 65 Ohio St.3d 175, 177, 602 N.E.2d 622 (observing that "appellant cannot change the theory of his case and present these new arguments r 12] for the first time on appeal"); Shaffer v. OhioHealth Corp., Franklin App. No. 03AP-102, 2004 Ohio 63, at P13; State ex rel. Phillips v. Capots (Sept. 22, 1994), Franklin App. No. 94APE04-499, 1994 Ohio App. LEXIS 4142, citing Miller v. Wikel Mfg. Co., Inc. (1989), 46 Ohio St.3d 76, 78, 545 N.E.2d 76. r P24] In the instant case, although this court granted Hanlin-Rainaldi's motion for leave to file a reply brief, Hanlin-Rainaldi did not seek leave to assert an alternative assignment of error in its reply brief. Additionally, before the trial court, Hanlin-Rainaldi did not raise whether Jeepers' payments on Note 1 following the August 2001 agreement constituted a modification or waiver of the release language in the settlement agreement. Accordingly, For internal use only SDNY_GM_00054729 CONFIDENTIAL - PURSUANT TO FED. R.cON(F IDENTIAL DB-SDNY-00 17553 EFTA_00 165299 EFTA01295522 Page 34 2004 Ohio 6250, *; 2004 Ohio App. LEXIS 5682, ** we conclude that Hanlin-Rainaldi's alternative assignment of error as asserted in its reply brief is improperly raised. Therefore, finding that Hanlin-Rainaldi's alternative assignment of error is improperly raised, we decline to address it. r P25] [HN5] Appellate review of a lower court's granting of summary judgment is de novo. Mitnaul v. Fairmount Presbyterian Church, 149 Ohio App.3d 769, 2002 Ohio 5833, at P27, 778 N.E.2d 1093. " r 13) 'De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial.' " Id., quoting Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 701 N.E.2d 1023, citing Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St.2d 116, 119-120, 413 N.E.2d 1187, certiorari denied (1981), 452 U.S. 962, 101 S. Ct. 3111, 69 L. Ed. 2d 973. r P26] [FINS] Summary judgment is proper when a movant for summary judgment demonstrates: (1) no genuine issue of material fact exists; (2) the movant is entitled to judgment as a matter of law; and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St. 3d 181, 183, 1997 Ohio 221, 677 N.E.2d 343. ITV] [HN7] Under Civ.R. 56(C), a movant bears the initial burden of informing the trial court of the basis for the motion r 14] and identifying those portions of the record demonstrating the absence of a material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 1996 Ohio 107, 662 N.E.2d 264. Once a movant discharges its initial burden, summary judgment is appropriate if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial. Id.; Vahila v. Hall (1997), 77 Ohio St.3d 421, 430, 1997 Ohio 259, 674 N.E.2d 1164; Civ.R. 56(E). r P28] In its assignment of error, Hanlin-Rainaldi asserts the trial court erred when it applied the parol evidence rule to bar Jeepers' subsequent conduct when determining that the August 2001 agreement released Jeepers of its obligations under Note 1. r P29] [HN8] '"The parol evidence rule is not a rule of evidence but of substantive law.... It prohibits the consideration of evidence as to anything which happened prior to or simultaneously with the making of a contract which would vary the terms of the agreement.'" Thompson v. First Citizens Bank & Trust Co. (2002), 151 N.C.App. 704, 708- 709, 567 S.E.2d 184, quoting Harrell v. First Union Natl. Bank (1985), 76 N.C.App. 666, 667, 334 S.E.2d 109, 110, ("15] affirmed (1986), 316 N.C. 191, 340 S.E.2d 111. Accord Ed Schory & Sons, Inc. v. Society Natl. Bank (1996), 75 Ohio St. 3d 433, 440, 1996 Ohio 194, 662 N.E.2d 1074; Natl. City Bank, Akron v. Donaldson (1994), 95 Ohio App.3d 241, 244-245, 642 N.E.2d 58. "'Generally, the parol evidence rule prohibits the admission of evidence to contradict or add to the terms of a clear and unambiguous contract."' Thompson, supra, at 709, quoting Hansen v. DHL Laboratories (1994), 316 S.C. 505, 508, 450 S.E.2d 624, affirmed (1995), 319 S.C. 79, 459 S.E.2d 850. Accord Citicasters Co. v. Bricker & Eckler, L.L.P., 149 Ohio App.3d 705, 2002 Ohio 5814, at P7, 778 N.E.2d 663. For internal use only SDNY_GM_00054730 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-00 17554 EFTA_00 165300 EFTA01295523 Page 35 2004 Ohio 6250, a; 2004 Ohio App. LEXIS 5682, ** [P30] Based upon our review, we find that the trial court did not expressly apply the parol evidence rule when it construed the August 2001 agreement. Therefore, we find Hanlin-Rainaldi's contention that the trial court improperly applied the parol evidence rule is misplaced. r P31] However, to the extent that Hanlin-Rainaldi asserts that the trial court misconstrued or misapplied, or both, the agreement, as between Hanlin-Rainaldi and Jeepers, we review de novo the trial court's [**16] determination. r P32] [HN9] "Under North Carolina law, 'when the language of the contract is clear and unambiguous, construction of the agreement is a matter of law for the court[,] and the court cannot look beyond the terms of the contract to determine the intentions of the parties.'" Financial Services of Raleigh, Inc. v. Barefoot (2004), 163 N.C.App. 387, 594 S.E.2d 37, 42, quoting Piedmont Bank & Trust Co. v. Stevenson (1986), 79 N.C.App. 236, 240, 339 S.E.2d 49, (internal citations omitted), affirmed per curiam, 317 N.C. 330, 344 S.E.2d 788; see, also, Helms v. Schultze (2003), 161 N.C.App. 404, 409, 588 S.E.2d 524. Therefore, " 'it must be presumed the parties intended what the language used clearly expresses, and the contract must be construed to mean what on its face it purports to mean.' " Barefoot, at 43, quoting Hartford Acc. & Indem. Co. v. Hood (1946), 226 N.C. 706, 710, 40 S.E.2d 198 (internal citations omitted). [P33] According to section 5a. of the August 2001 agreement: Harlin, and its parent, subsidiary. and affiliate corporations, and their respective shareholders. [—in partners. directors, officers. employees. insurers. representatives. and agents. and their respective heirs. successors, and assigns, hereby release and discharge Jeepers and Concord Mills, and each of their parent, subsidiary, and affiliate corporations, and their respective shareholders. partners, directors, officers, employees. insurers, representatives. subcontractors. suppliers. and agents, and their respective heirs, successors, and assigns, and from any and all obligations. liabilities. damages. claims. costs. expenses. and attorneys' fees (whether known or unknown) arising out of or relating in any manner to the upfit of the Jeepers' facilities in the Concord Mills Mall and in Southfield. Michigan. [T34] Furthermore, pursuant to section 9c. of the agreement: "This Agreement represents the entire agreement between the Parties with respect to the settlement of the dispute between them, and it supersedes all prior discussions, representations, and/or negotiations. This Agreement shall not be amended except in a writing signed by both of the Parties." [P35] Thus, applying the plain language of the agreement, we must determine whether Jeepers' obligation under Note ["18] 1 is an obligation, liability, claim, or cost that arises out of or relates in any manner to the upfit of Jeepers' facility in the Concord Mills Mall. r P36] Jeepers' obligation under Note 1 arose pursuant to a May 2000 agreement. Under this agreement, Hanlin-Rainaldi and Jeepers expressly desired to settle any and all claims against each other that resulted from the construction project in Concord, North Carolina. Pursuant to this agreement, Jeepers executed Note 1. [1:137] Accordingly, we conclude that Jeepers' obligation under Note 1 relates to the upfit of Jeepers' facility in the Concord Mills Mall, and it is an obligation that arises out of or relates to the upfit of the construction project in the Concord Mills Mall. [*P38] Because Jeepers' obligation under Note 1 arises out of or relates to the upfit of the construction project in the Concord Mills Mall, we further conclude, as a matter of law, that For internal use only SDNY_GM_00054731 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SONY-00 17555 EFTA_00 165301 EFTA01295524 Page 36 2004 Ohio 6250, a; 2004 Ohio App. LEXIS 5682, ** section 5a. of the August 2001 agreement applies and releases Jeepers from its obligation under Note 1. See, generally, Barefoot, supra, at 42, citing Chemimetals Processing, Inc. v. Schrimsher (2000), 140 N.C.App. 135, 138, 535 S.E.2d 594 [""19] (applying principles governing interpretation of contracts when construing a release); Adder v. Holman & Moody, Inc. (1975), 288 N.C. 484, 492, 219 S.E.2d 190. rP391 Nevertheless, Hanlin-Rainaldi asserts that it was not the parties' intention that Jeepers' obligation under Note 1 would be discharged by the August 2001 agreement. (P40] [HN10] Under North Carolina law, "where the provisions of a contract are plainly set out, the court is not free to disregard them and a party may not contend for a different interpretation on the ground that it does not truly express the intent of the parties." Dixon, Odom & Co. v. Sledge (1982), 59 N.C.App. 280, 284, 296 S.E.2d 512, citing Taylor v. Gibbs (1966), 268 N.C. 363, 150 S.E.2d 506. (P411 Here, section 5a. of the August 2001 agreement plainly and unambiguously discharges Jeepers' obligation under Note 1. Finding that this provision of the contract is plainly set out, we are not free to disregard it on the grounds that it does not truly express the parties' intent. (P42] Accordingly, Hanlin-Rainaldi's argument that it was not the parties' intention that Jeepers' obligation ("20] under Note 1 would be discharged by the August 2001 agreement is unpersuasive. (P43] Therefore, having concluded that Hanlin-Rainaldi's contention that the trial court erred when it applied the parol evidence rule to bar Jeepers' subsequent conduct is misplaced and having concluded that section 5a. of the August 2001 agreement plainly and unambiguously applies to discharge Jeepers' obligation under Note 1, we therefore overrule Hanlin-Rainaldi's sole assignment of error. (P44] Accordingly, having overruled Hanlin-Rainaldi's sole assignment of error, and having found that Hanlin-Rainaldi's alternative assignment of error in its reply brief was improperly raised, we therefore affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. KLATT and WRIGHT, JJ., concur. WRIGHT, J., retired of the Supreme Court of Ohio, assigned to active duty under authority of Section 6(C), Article IV. Ohio Constitution. *** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY*" SUPREME COURT CIVIL SUITS FOR NEW YORK COUNTY, NEW YORK CASE-NAME: D.B. ZWIRN & CO., L.P. , DBZ GP, LLC, ZWIRN HOLDINGS, LLC AND DANIEL ZWIRN v. For internal use only SDNY_GM_00054732 CONFIDENTIAL - PURSUANT TO FED. R.cf;;?N(F IDENTIAL DB-SONY-00 17556 EFTA_00 165302 EFTA01295525 Page 37 D.B. ZWIRN & CO., L.P. v. FINANCIAL TRUST COMPANY, INC. FINANCIAL TRUST COMPANY, INC. AND JEEPERS, INC. STATUS: DISPOSED ON 07/23/2010, OTHER FINAL DISP. (PRE-NOTE) ACTION: E-FILED OTHER COMMERCIAL REQUEST FOR JUDICIAL INTERVENTION: 07/02/2010 INDEX-NUMBER: 6505822010 JUDGE: LOWE, RICHARD B. III PLAINTIFF ATTORNEY: LANKLER SIFFERT & WOHL LLP 500 FIFTH AVENUE - 33RD FLR. NEW YORK, NEW YORK 10110 1-212 921-8399 For internal use only SDNY_GM_00054733 CONFIDENTIAL - PURSUANT TO FED. R.crtAl(E IDENTIAL DB-SDNY-0017557 EFTA_00 165303 EFTA01295526 Page 38 GACHITORENA, BRIAN, INFANT v. JEEPERS & JEEPERS, INC. *** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY*** SUPREME COURT CIVIL SUITS FOR ROCKLAND COUNTY, NEW YORK CASE-NAME: GACHITORENA, BRIAN, INFANT GUARDIAN EILEEN O'ROURKE v. JEEPERS & JEEPERS, INC. STATUS: DISPOSED ON 04/25/2005; OTHER SETTLEMENT PRE-NOTE ACTION: OTHER TORTS NEGLIGENCE REQUEST FOR JUDICIAL INTERVENTION: 11/07/2003 INDEX-NUMBER: 0075722002 JUDGE: GEORGE M. BERGERMAN PLAINTIFF ATTORNEY: DONALDSON, CHILLIEST ETAL 103 E. 125TH ST. STE 1102 W YORK 10035 DEFENDANT ATTORNEY: GORDON & SILBER 355 LEXINGTON AVE. 7TH FL. NEW YORK. N.Y. 10017 For internal use only SDNY_GM_00054734 CONFIDENTIAL - PURSUANT TO FED. R.cf;;)INE IDENTIAL DB-SDNY-0017558 EFTA_00 165304 EFTA01295527 Page 39 ROMAN, RUBEN N., BY HIS v. JEEPERS, INC., PYRAMID *** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY*** SUPREME COURT CIVIL SUITS FOR ROCKLAND COUNTY, NEW YORK CASE-NAME: ROMAN, RUBEN N., BY HIS FATHER AND LEGAL GUARDIAN, RUBEN ROMAN. v. JEEPERS, INC., PYRAMID MANAGEMENT GROUP, INC., AND EKLECCO, INC. STATUS: DISPOSED ON 06/01/2006; SETTLED BEFORE TRIAL ACTION: OTHER TORTS NEGLIGENCE REQUEST FOR JUDICIAL INTERVENTION: 08/20/2003 NOTE OF ISSUE FILED: 05/03/2004 INDEX-NUMBER: 0086462002 JURY REQUESTED BY: PLAINTIFF JUDGE: ALFRED J. WEINER PLAINTIFF ATTORNEY: JAN H. RILEY 501 WEST145 STREET NEW YORK, NY 10031 DEFENDANT ATTORNEY: MARC D. ORLOFF,P.C., 55 MAIN STREET,BOX 386 GOSHEN N.Y. 10924 For internal use only SDNY_GM_00054735 CONFIDENTIAL - PURSUANT TO FED. R.cf;;?FilE IDENTIAL DB-SDNY-0017559 EFTA_00 165305 EFTA01295528 Page 40 CIVIL SUITS FROM MARYLANDMARYLAND DISTRICT COURT • * • THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY" • CIVIL SUITS FROM MARYLAND MARYLAND DISTRICT COURT Defendant: JEEPERS, INC. Plaintiff: CINTAS. CORPORATION Plaintiff Address: CINTAS, CORPORATION 3951 DARTMOUTH COURT FREDERICK, MD 21703 Plaintiff Attorney: LIPPMAN, JEFFREY M WEINSTOCK, FRIEDMAN,ETAL 4 RESERVOIR CIRC,2ND FLR BALTIMORE, MD 21208 Number: 0702-001450-2007 Vendor Number: DS-00001450-2007 Date: 1/17/2007 Filing Type: CIVIL SUIT Case Type: CONTRACT Amount: $ 6,832 Status: OPEN County Filed: MONTGOMERY Place Filed: MARYLAND DISTRICT COURT Description: CIVIL SUITS ADDITIONAL SUBJUDGMENTS EXIST; SEARCH THE VENDOR NUMBER MICHAEL CARDIERI, Claimant v. JEEPERS, INC., Employer; For internal use only SDNY_GM_00054736 CONFIDENTIAL - PURSUANT TO FED. R.cr1M(E IDENTIAL DB-SDNY-0017560 EFTA_00 165306 EFTA01295529 Page 41 2006 VA Wrk. Comp. LEXIS 1044, * HANOVER INSURANCE COMPANY, Insurer VWC FILE NO. 218-93-35 Virginia's Workers' Compensation Commission 2006 VA Wrk. Comp. LEXIS 1044 November 16, 2006 CORE TERMS: claimant, doctor, pain, cervical, symptom, pre-injury, sedentary, specialist, ongoing, lumbar, syndrome, treating, medical evidence, recommended, subjective, evaluated, part-time, diagnosed, temporary total disability, industrial accident, physical therapy, return to work, exaggeration, work-related, dysfunction, diagnostic, capability, depression, myofascial, traumatic COUNSEL: Keith L. Kimball, Esquire, Colgan, Kimball and Carnes, 4456 Corporation Lane, Suite 330, Virginia Beach, VA 23462, for the Claimant. Jimese P. Sherrill, Esquire, Jordan, Coyne and Savits, L.L.P., 10509 Judicial Drive, Suite 200, Fairfax, VA 22030, for the Defendants. JUDGES: COMMISSIONER TARR, COMMISSIONER DIAMOND, AND COMMISSIONER DUDLEY OPINIONBY: DUDLEY OPINION: r The employer has requested Review of the Deputy Commissioners April 19, 2006, Opinion resuming temporary total disability benefits. n1 It assigns error to the finding that it failed to prove that the claimant was capable of returning to his pre-injury employment. Finding no error, we affirm. n1 The claimant did not appeal the denial of his claim requesting payment for an MRI scan; therefore, we will omit facts pertaining to this issue. ----------------End Footnote-------- --------- -- On May 13, 2004, the claimant sustained a compensable injury by accident to his head, neck, shoulder, back, and hip. The employer paid ongoing temporary total disability benefits and medical benefits. On March 17, 2005, the employer filed an Application for Hearing seeking termination of the temporary total disability award. It alleged that Dr. David G. Goss, orthopedic surgeon, released the claimant to pre-injury employment effective March 15, 2005. For internal use only SDNY_GM_00054737 CONFIDENTIAL - PURSUANT TO FED. R.CON(F IDENTIAL DB-SDNY-0017561 EFTA_00165307 EFTA01295530 Page 42 2006 VA Wrk. Comp. LEXIS 1044, At the Hearing, the claimant testified that on the day of his accident, he fell from a ladder and struck his head, neck, and left side of his body on the floor. He stated that r2j his pre-injury duties involved maintaining equipment, motors, plumbing, and electrical components at an indoor amusement park, which required him to lift items weighing 75 to 100 pounds. The claimant denied that he had returned to work since the accident. He did not recall being released to perform light duty in the fall of 2004. The claimant acknowledged that he attempted for a half day to perform a job offered by the employer, but said that he could not perform the job due to his "agony." He remembered that Dr. Goss informed him in March 2005 that he could return to full duty. The claimant explained that he did not return to work for the employer, because he felt that he could not perform his pre-injury job. Lucille Cardieri, his wife, testified that since the accident, he could not perform his typical, heavy household chores. The claimant testified that he looked for employment that did not involve much physical labor, even before his release, and that he found a part-time job working as a manager in May 2005. He ceased this job, because his condition worsened, and he could not lift, bend, or fulfill other required physical activities. The claimant stated that he tried to locate r3] other appropriate work thereafter, and that he registered with the Virginia Employment Commission in May 2005. He said that he looked for any employment within his limitations. The pertinent medical record reflects that Dr. Kirsten A. Santianni, family practitioner, began treating the claimant shortly after his injury by accident. Dr. Santianni assessed that as a result of the fall, he suffered: (1) cervical, trapezius, thoracic, and lumbar muscle spasms and pain; (2) left leg weakness and paresthesias; (3) tinnitus; and (4) left arm paresthesias. Dr. Santianni referred the claimant to various specialists. Dr. James D. Dillon, neurosurgeon, consulted with the claimant in July 2004 and concluded that he suffered a closed head injury with a cerebral concussion, possibly a skull injury, and a traumatic cervical strain. Dr. Dillon did not recommend surgery. Dr. Donald E. LaMarche, Jr., neurologist, monitored the claimant's ongoing complaints and diagnosed a cervical strain. Dr. LaMarche advised against surgery. A functional capacity evaluation (FCE) performed in August 2004 found that the claimant functioned at a sedentary/light physical demand level. The evaluator concluded that he did r'4] not demonstrate the capability to perform his pre-injury employment, "relative to high degree of self-limiting performance based on subjective pain patterns." Dr. Goss began treating the claimant in November 2004, and diagnosed multi-level cervical disc protrusions and congenital lumbar stenosis. The doctor prescribed physical therapy, and periodically removed him from work or returned him with modifications. In December 2004, Dr. LaMarche agreed with Dr. Goss' return of the claimant to sedentary, part-time work. The claimant reported to Dr. LaMarche on January 11, 2005, that his return to work was unsuccessful and caused much pain. As a result, the doctor excused him from employment. On January 12, 2005, Dr. Santianni issued a prescription note stating that the claimant should not perform any work. She wrote that employment aggravated his condition and increased his pain. For internal use only SDNY_GM_00054738 CONFIDENTIAL - PURSUANT TO FED. R.ctON(F IDENTIAL DB-SDNY-00 17562 EFTA_00 165308 EFTA01295531 Page 43 2006 VA Wrk. Comp. LEXIS 1044, * On February 10, 2005, Dr. Goss prescribed four additional weeks of physical therapy, and stated that, "I have placed the claimant back to full duty as of March 14, 2005," after the completion of therapy. The doctor indicated that: "The claimant will return to full duty and we will see how things go." Dr. LaMarche r51 evaluated the claimant on February 15, 2005, and noted that: "I wrote him a note to release him to work for 3/14/2005, as Dr. Goss did. The claimant says he will try it for a day, but he knows that it will not work for him." Dr. LaMarche commented that he found no clear etiology for the claimant's discomfort, but that he had no reason to doubt his sincerity. The claimant saw Dr. Goss on March 15, 2005, and reported a multitude of ongoing orthopedic complaints. The doctor reported that he was released to full duty, but that the employer no longer had a job for him. Dr. Goss proposed another FCE, and stated that: "I will still keep the claimant at full duty but the FCE will help guide future decisions." The claimant underwent another FCE on April 14, 2005, and Dr. Goss reviewed the results on April 19, 2005. The doctor noted that: "As expected the claimant's FCE shows a lack of ability to perform full duty." The FCE reported that he showed significant symptom exaggeration and not a full effort. Dr. Goss agreed to keep the claimant at "sedentary duty per his FCE," and predicted that he would progress his work-related capabilities after four more weeks of physical therapy. On May 17, ['6] 2005, Dr. Goss concluded that he had nothing further to offer the claimant and referred him to a pain management specialist. The doctor recommended continued sedentary duty, and considered this restriction to be permanent until he saw a pain management physician and perhaps had another FCE. Dr. Goss commented that he 'Would not mind a full duty release at this point," based on the claimant's lack of full effort at the FCE. Regardless, the doctor left the decision to the pain management specialist. Dr. Goss issued a disability slip indicating that the sedentary-duty restrictions were temporary until the claimant reached maximum medical improvement on June 1, 2005. Pursuant to Dr. Goss' referral, Dr. Donald Holzer, neurologist, evaluated the claimant on June 18, 2005. Dr. Holzer concluded that he suffered cervical myofascial pain dysfunction syndrome with underlying disc herniations, cervical and lumbar radiculopathy, lumbar myofascial pain dysfunction syndrome with underlying lumbar spondylosis, post- traumatic syndrome secondary to his head trauma, and depression over his chronic pain and inability to function. The doctor stated that these problems were directly and causally related rij to the claimant's industrial accident. Dr. Holzer proposed a TENS unit, consultation with a pain psychologist, cervical epidural steroid injections, and medications. The doctor recommended that: "The claimant cease working entirely at the present time, as he clearly is having extreme difficulties functioning, even in a part-time capacity and this will allow us an opportunity to assess fully the therapies proposed above." On July 5, 2005, the claimant returned to Dr. Goss, who repeated that he had no treatment to offer, and that he had deferred treatment and work restrictions to the physiatrist. The doctor expressed doubt that the symptoms were as severe as he conveyed during his clinic visits. Dr. Holzer monitored the claimant's ongoing symptoms throughout the summer of 2005. For internal use only SDNY_GM_00054739 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17563 EFTA_00 165309 EFTA01295532 Page 44 2006 VA Wrk. Comp. LEXIS 1044, On August 23, 2005, the claimant underwent an independent medical examination by Dr. Mark A. Ross, physiatrist. He informed Dr. Ross about the accident, his treatment, and that he had not improved since the injury. The claimant complained of suffering constant pain, ranging from a level six to ten, humming in his head, dizziness, imbalance, and difficulty walking, standing, lifting, bending, and concentrating. ["8JHe advised Dr. Ross that he could not work, because he frequently had to lie down. The doctor interviewed the claimant, reviewed his diagnostic studies, and read his medical records. Dr. Ross concluded that the claimant had no diagnoses resulting from the work-related accident, and that: "There are continued pain complaints but there is no supportable medical basis for the diagnosis of a physical injury." Dr. Ross dismissed the claimant's subjective complaints as unreliable and not supported by objective findings. He similarly opined that much medical treatment had been excessive and unnecessary as responsive to the unsubstantiated subjective complaints. Dr. Ross stated that ongoing treatment was not required, since the claimant's complaints and physical examination findings were not credible. The doctor concluded that he could return to full, unrestricted duty and that no medical evidence supported restrictions. Dr. Ross suggested that the claimant likely had a psychological/behavioral component to explain his ongoing alleged symptoms. The doctor recommended evaluation for a mild traumatic brain injury, since this might be "the only alternate explanation" for his "relentless pursuit [' 9] of physical remedy" for his "nonexistent physical problems." Dr. Ross immediately issued a revision to clarify that his report of August 23, 2005, contained a typographical error, and should convey that he "did not see" the claimant's subjective complaints. By letter dated October 14, 2005, Dr. Holzer restated the claimant's history and his original treatment of him. He noted that he had reviewed Dr. Ross' evaluation and some reports from other treating physicians, such as Dr. Goss. Dr. Holzer maintained his opinion that as a result of the industrial accident, the claimant suffered cervical and lumbar myofascial pain dysfunction syndrome, post-traumatic syndrome secondary to his head trauma, and depression. The doctor assessed, with a reasonable degree of medical certainty, that the work-related injuries were causally related to his current problems and total disability. Dr. Holzer emphasized that the claimant had demonstrated objective findings on examination and diagnostic studies. The doctor acknowledged that he had preexisting degenerative disease in his cervical area. However, Dr. Holzer stressed that before the accident, the claimant was asymptomatic and capable of working. No] The doctor maintained, with a reasonable degree of medical certainty, that: "The claimant remains disabled totally from his work, as a direct result of the injury in question and due to the above diagnoses, which are clearly related to his injury." Dr. Scott W. Sautter, neurospsychologist, evaluated the claimant on December 7, 2005, to assess whether he suffered a mild traumatic brain injury or psychogenic component to his report of symptoms. Dr. Sautter concluded that the test data revealed poor testing, and that "his performance of slightly better than chance is atypical," which suggested poor effort or exaggeration of symptoms. The doctor opined that the evaluation was invalid, and not a representation of the claimant's true abilities, and that his personality assessment suggested somatization. Dr. Sautter diagnosed: (1) a probable cognitive disorder, most likely secondary to his mood disorder and complaints of chronic pain; (2) major depression; (3) tendency to somatosize symptoms; and (4) complaints of For internal use only SDNY_GM_00054740 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17564 EFTA_00165310 EFTA01295533 Page 45 2006 VA Wrk. Comp. LEXIS 1044, * chronic pain. Dr. Sautter recommended that the claimant "consider evaluation for return to work" and begin working part-time. On January 5, 2005, Dr. Ross wrote an addendum to his [11] initial report, upon reviewing Dr. Sautter's conclusions of December 7, 2005. He retained his opinion that no medical basis existed to prevent the claimant from resuming gainful employment. Dr. Ross issued a Second Addendum on January 11, 2006, and addressed the recent reports from Dr. Sautter and Dr. Holzer. He maintained his previous opinions. The Deputy Commissioner was persuaded by the opinions of Dr. Goss and Dr. Holzer, and found that the employer failed to prove that the claimant was released to his pre-injury employment. The Deputy Commissioner emphasized that Dr. Goss' release was invalid, and at most, "fleeting," and he afforded little weight to Dr. Ross' conclusion that the claimant was completely recovered from his injuries. On Review, we find no reversible error in this weighing of the medical evidence. "Any medical opinion offered into evidence 'is not necessarily conclusive, but is subject to the commission's consideration and weighing."' Farmington Country Club v. Marshall, 47 Va. App. 15, 26, 622 S.E.2d 233, 239 (2005), quoting Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991). p12] "The probative weight to be accorded medical evidence is for the Commission to decide; and if it is in conflict with other medical evidence, the Commission is free to adopt that view 'which is most consistent with reason and justice."' Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d 267, 269 (2000), quoting CDS Const. Services v. Petrock, 218 Va. 1064, 1070, 243 S.E.2d 236, 240 (1978). The extensive medical record reflects that numerous specialists have evaluated and treated the claimant. In the fall of 2004 and into the spring of 2005, Dr. Goss rendered opinions about his ability to work. The doctor periodically limited the claimant's work capabilities and removed him completely from all work. In January 2005, Dr. Goss began predicting that he would return to regular duty in March 2005. After evaluation on March 15, 2005, he released the claimant to full duty and advised that he awaited the result of the FCE to "guide future decisions." Within one month, he participated in the FCE, and the evaluator concluded that he had the capacity to perform sedentary work. Dr. Goss acknowledged ['3] that the report indicated the claimant's significant symptom exaggeration and failure to give full effort. Regardless, the doctor restricted him to sedentary duty. Dr. Goss maintained this restriction until the claimant began treating with a pain management specialist. At this point, he deferred work restrictions to the decision of the pain management specialist, Dr. Holzer. Dr. Holzer completely removed the claimant from employment, diagnosed multiple complaints, and causally related his disability and symptoms to the industrial accident. He emphasized that the examinations and diagnostic studies evinced objective problems. Given this evidence, the Deputy Commissioner reasonably afforded more weight to the opinions of the treating physicians over the contrary conclusions of Dr. Ross. We agree with the employer's arguments that some physicians have released the claimant to work at least some form of employment, and that the FCE reported his sub-maximal effort. However, he presented evidence of other physicians who treated and monitored his For internal use only SDNY_GM_00054741 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17565 EFTA_00 653 I EFTA01295534 Page 46 2006 VA Wrk. Comp. LEXIS 1044, condition, reviewed his records, and excused him from work. Further, any release from Dr. Goss or other treating physician has been to sedentary [94] duty, as reflected by the FCE, not his pre-injury employment. For the reasons stated, the Opinion below is AFFIRMED. The attorney's fee to be deducted from accrued compensation and paid to Keith L. Kimball, Esquire, is hereby increased to a total of $3,200. This matter is hereby removed from the Review docket. APPEAL This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days of receipt. Legal Topics: For related research and practice materials, see the following legal topics: Labor & Employment LawDisability & Unemployment InsuranceDisability BenefitsGeneral OverviewWorkers' Compensation & SSDIAdministrative ProceedingsEvidenceMedical EvidenceWorkers' Compensation & SSDICompensabilitylnjuriesPreexisting Conditions For internal use only SDNY_GM_00054742 CONFIDENTIAL - PURSUANT TO FED. R.QQN(F IDENTIAL DB-SDNY-00 17566 EFTA 00165312 EFTA01295535