EXHIBIT 10.6
AUTO & EQUIPMENT LEASING BY FLEX, INC.
0000 XXXXX 00XX XXXX XXXXXX, XXXXX 000
XXXXX, XXXXXXXX 00000
EQUIPMENT LEASE
AUTO EQUIPMENT LEASING BY FLEX, INC. (hereinafter called "Lessor") for
valuable consideration, the receipt of which is hereby acknowledged, hereby
leases to HEARTSOFT SOFTWARE, INC. AND XXXXXXXX XXXXX, 3101 N. HEMLOCK
CIRCLE, BROKEN ARROW, OK, (hereinafter called "Lessee"), the following
described property, in Schedule "A", attached hereto and made part of this
agreement (hereinafter called the "Equipment"), upon the following terms and
conditions:
1. Lessee agrees that the equipment shall be delivered to Lessee and
shall remain there, and not be removed by Lessee at any time during the term
of this lease without the prior written consent of Lessor.
2. The title to the aforesaid described property in Schedule "A" shall
remain in the Lessor, the Lessee having only the right to possession and the
use thereof during the term of this lease except as otherwise provided herein:
3. The lease of said property shall be for a term of 36 months on the
following basis:
The sum of $4,575.00 shall be paid upon execution of this
lease, as payment of the first month installment. On the
12th day of March , 1998, and on the 12th day of each and
every month during the term of this lease, the sum of
$4,575.00 shall be paid. Should Lessee make all the said
monthly payments as required on or before the due date, with
no default, then at the expiration of said term, the Lessee
shall have the option to purchase the equipment for $500.00
by notifying the Lessor of the same, not less than thirty
(30) days prior to the expiration of the term of this lease.
4. Lessee promises and agrees to pay all specified lease installments
in advance on the date designated for the payment herein without demand.
Said lease installments shall be payable at the office of Lessor, or to such
other person and/or place as Lessor may from time to time designate in
writing.
5. EARLY TERMINATION AND DEFAULT.
(a) Provided the lease is not in default, and has been in effect a
minimum of six months, the lease may be terminated prior to its scheduled
termination by giving a 15-day written notice and purchases the equipment at
the purchase option. Price set forth above under the term described below.
(b) The remaining amount owed is calculated by adding any past due
monthly payments and past due interest owed; any official fees and taxes
imposed in connection with
lease termination and fixed monthly lease charges for the remaining schedule
lease term, discounted to rebate any unearned lease charges based on
actuarial method which will be figured taking into consideration depreciation
charges and total lease charges.
6. Lessor may inspect the equipment at any time; and Lessee agrees to
keep it is first class condition and repair at Lessee's expense and house the
same in suitable shelter; and not to sell or otherwise dispose of his
interest therein or in any equipment or accessories attached thereto.
7. Lessee assumes the entire risk of loss or damages to the equipment,
whether or not covered by insurance, and no such loss shall relieve the
Lessee of its obligations hereunder. Lessee agrees to keep the equipment
insured to protect all interests of Lessor, at Lessee's expense against all
risks of loss or damage from any cause whatsoever for not less than the
unpaid balance of the lease payments due hereunder or the then current value
of said equipment, whichever is higher, and in addition shall purchase
insurance in an amount reasonable under the circumstances to cover the
liability of Lessor for public liability and property damage. Said insurance
policies and the proceeds therefrom shall be the sole property of Lessor and
Lessor shall be named as an insured in all said policies and as sole loss
payee in the policies insuring the equipment. The proceeds of such
insurance, whether resulting from loss or damage or return premium or
otherwise, shall be hereunder at the option of Lessor.
8. No title or right in said equipment shall pass to Lessee except the
rights herein expressly granted. Plates or other markings will be affixed to
or placed on said equipment by Lessor or at Lessor's request, by Lessee at
Lessee's expense indicating that Lessor is the owner thereof and Lessee will
not remove the same. Said equipment shall always remain and be deemed
personal property even though attached to realty. All replacements,
accessories or capital improvements ________ placed in or upon said equipment
shall become a component part thereof and title thereto shall be immediately
vested in Lessor and shall be included under the terms hereof. The Lessee
agrees that the Lessor is authorized, at its option, to file financing
statement(s) or amendments thereto without the signature of the Lessee with
respect to any or all of the leased property, or if a signature is required
by law, then the Lessee appoints Lessor as Lessee's attorney-in-fact to
execute any such financing statement(s) and further agrees to reimburse the
Lessor for the expense of any such filing(s).
9. LESSOR HAS NOT AND WILL NOT MAKE ANY REPRESENTATION, WARRANTY OR
COVENANT, EXPRESS OR IMPLIED ON WHICH LESSEE MAY RELY, WITH RESPECT TO THE
MERCHANTABILITY, FITNESS, CONDITION, DURABILITY OR SUITABILITY FOR LESSEE'S
PURPOSE OF THE EQUIPMENT IN ANY RESPECT, OR ANY OTHER REPRESENTATION,
WARRANTY OR COVENANT, EXPRESS OR IMPLIED, ALL OF WHICH ARE HEREBY EXPRESSLY
DISCLAIMED BY LESSOR. ALL EQUIPMENT SHALL BE ACCEPTED AND LEASED BY LESSEE
"WHERE IS, AS IS AND WITH ALL FAULTS" AND LESSOR SHALL NOT BE RESPONSIBLE FOR
ANY PATENT OR PATENT DEFECTS THEREIN OR ANY DAMAGES RESULTING THEREFROM.
LESSOR WILL, HOWEVER, TAKE ANY STEPS REASONABLY WITHIN ITS POWER TO MAKE
AVAILABLE TO LESSEE ANY MANUFACTURER'S OR SIMILR WARRANTY APPLICABLE TO THE
EQUIPMENT. IN ANY EVENT, LESSOR SHAL NOT BE LIABLE TO LESSEE FOR ANY
LIABILITY, LOSS OR DAMAGE, INCLUDING CONSEQUENTIAL OR INCIDENTAL DAMAGES,
CAUSED OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, BY THE EQUIPMENT, OR
ANY INADEQUACY THEREOF, OR
DEFICIENCY OR DEFECT THEREIN, OR BY ANY INCIDENT WHATSOEVER IN CONNECTION
THEREWITH.
10. Lessee shall not assign, mortgage or hypothecate this lease or any
interest herein or sublet said equipment without the prior written consent of
the Lessor. Any assignment, mortgage, hypothecation or sublease by Lessee
without such consent shall be void.
11. Lessee agrees to us, operate and maintain said equipment in
accordance with all laws; to pay all licensing or operating fees for said
equipment; to keep the same free of levies, liens and encumbrances; to show
the equipment as "leased equipment" on Lessee's personal property tax
returns; to pay Lessor a sum equal to all personal property taxes assessed
against the equipment, which sum Lessor shall remit to the taxing authority,
to pay all other taxes, assessments, fees and penalties, which may be levied
or assessed on or in respect to said equipment or its use or any interest
therein, or lease payments thereon, including but not limited to all federal,
state and local taxes, however, designated, levied or assessed upon the
Lessee and Lessor or either of them or said equipment, or upon the sale,
ownership, use or operation thereof. Lessor may pay such taxes and other
amounts and may file such returns on behalf of Lessee if Lessee fails to do
so as herein provided. On written request from Lessor, Lessee agrees to
reimburse Lessor for reasonable costs incurred in collecting any taxes,
assessments or fees for which Lessee is liable hereunder and remitting the
same to the appropriate authorities.
12. In the event the Lessee shall default in the payment of any lease
payments, additional lease payments, or any other sums due hereunder for a
period of ten 910) days, or in the event of any default of breach of terms
and conditions of this lease, or any other lease between the parties hereto,
or if any execution or process shall be issued in any action or proceeding
against the Lessee, whereby the said equipment may be taken or distrained, or
if a proceeding in bankruptcy, receivership or insolvency shall be instituted
by or against the Lessee or its property, or if the Lessee shall enter into
any agreement or composition with its creditors, breach any of the terms of
any loan or credit agreement, or default thereunder or if the condition of
the Lessee's affairs shall so change as to, in the Lessor's opinion, impair
the Lessor's security or increase the credit risk involved, then and in that
event the Lessor shall have the right to (1) retake immediate possession of
its equipment without any Court Order or other process of law and for such
purpose the Lessor may enter the same therefrom with or without notice of its
intention to do same, without being liable to any suit or action or other
proceedings by the Lessee. Lessor may, at its option, sell the equipment at
public or private sale for cash or on credit and may become the purchaser at
such sale. The Lessee shall be liable for arrears or lease payments hereunder
and under any other lease between the parties, if any; for any other charges
due from Lessee hereunder and under any other lease between the parties, for
expense of retaking possession, and the removal of the equipment, and court
costs, in addition to the balance of the lease payments provided for herein,
or in any lease payment hereof, as well as for the balance of lease payments
due and to become due under any other lease between the parties, less the net
proceeds of the sale of said equipment, after deducting all costs of taking,
storage, repair and sale; and/or (2) accelerate the balance of lease pyments
payable hereunder and under any other lease between the parties, thereby
requiring prepayment of this lease and any other lease between the parties
with all such lease payments and charges due and payable forthwith upon such
notice of acceleration and demand for payment, the Lessee nevertheless
remaining and being liable for the return of the equipment and any loss or
destruction of, or injury to, the equipment in the same manner as herein
provided. The foregoing rights shall be in addition to and in limitation of
the
rights of a Secured Party, as set forth in the Uniform Commercial Code of
the applicable jurisdiction. Should Lessee fail to make such payment after
this notice and demand, Lessor shall be entitled to institute appropriate
legal proceedings against Lessee with the Lessee being responsible for said
lease payments, charges, expenses and attorney fees, if allowed by law. In
the event the Lessor shall exercise any of its rights as above set forth,
Lessee shall be obligated to pay, as interest, a sum equal to
[THERE MAY BE A PAGE MISSING] under any other lease in default by
reason hereof or otherwise, or until all arrears of lease payments are
satisfied, provided said interest payments are allowed by law, and if not
allowed by law, the maximum rate of interest permissible in the applicable
jurisdiction. The rights granted the Lessor herein shall be cumulative and an
action upon one shall not be deemed to constitute an election or waiver of
the other right of action to which Lessor may be entitled. All sums as
hereinabove stated shall become immediately due and payable to be construed
as liquidated damages rather than a penalty provision. Lessee hereby waivers
trial by jury.
14. The omission by the Lessor at any time to enforce any default or
right reserved to it, or to require performance of any of the terms,
covenants or provisions hereof by the Lessee at any time designated, shall
not be a waiver of any such default or right to which the Lessee is entitled,
nor shall it in any way affect the right of the Lessor to enforce such
provisions thereafter. The Lessor may exercise all remedies simultaneously,
pursuant to the terms hereof, and any such action shall not operate to
release the Lessee until the full amount of the lease payments due and to
become due and all other sums to be paid hereunder have been paid.
15. If the Lessee does not exercise its option to purchase the
equipment as provided in number three above, the Lessee shall return the
equipment, freight prepaid to Lessor, at the end of the term hereof, at the
place from which the equipment was shipped, in as good condition as exists at
the commencement of the term, reasonable wear and tear in respect thereto
accepted.
WITNESS our hands and seals this 12th day of February, 1998.
AUTO & EQUIPMENT LEASING BY FLEX, INC. BY: /s/ authorized representative
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LESSOR
HEARTSOFT SOFTWARE, INC. BY: /s/ Xxxxxxxx Xxxxx
------------------------ -----------------------------
XXXXXXXX XXXXX BY: /s/ Xxxxxxxx Xxxxx
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EQUIPMENT Date: 2/12/98
SCHEDULE "A"
The Equipment Schedule "A" is to be attached to and become part of that
Equipment Lease by and between the undersigned lessee and Auto & Equipment
Leasing by Flex, Inc., Tulsa, OK dated:
QUANTITY MODEL NUMBER EQUIPMENT DESCRIPTION
1 486 SX66Mhz PC w/240 MB Xxxx Xxxxx, 0XX XXX,
00" SVGA Monitor, 2 Multiplexer Cards, 2 SVGA
Graphics Cards, Controller Card, CD
1 486 DX 120Mhz w/1.3G Hard Drive, 32 MB RAM, Triple
CD Changer, 17" Color Monitor
1 Hewlett Packard 4L Laser Printer
5 Discourse Technologies Studycom Concentrator
20 Discourse Technologies Studycom Student
Workstations
1 Magnavox 2 Head VCR
3 AT&T 3-Line Phones
1 Norstar Meridan 616 KSU w/4 Norstar M7208 Phones
1 Apple Macintosh Performa 630CD Computer
1 Apple Macintosh Performa 630CD Computer
1 Apple Laserwriter Select 360 Laser Printer
1 Apple Computer Speakers
3 Global Village 28.8 v.34 Data/Fax Xxxxx
0 Xxx Xxxxxxxxx
0 Xxx Xxxxx
0 Xxx 0 Drawer File Cabinet
1 Oak Printer Stand
1 Oak Conference Table
0 Xxx Xxxxxx
0 Xxx Xxxx Table
20 Black Stack Chairs
6 6' Folding Tables
2 Chair Mats
1 Executive Chair
1 Oak Executive Desk
10 8' Tables
This Equipment Schedule "A" is hereby verified as correct by the undersigned
Lessee, who acknowledges receipt of a copy.
Lessor: Lessee:
Auto & Equipment Leasing by Flex, Inc. Heartsoft Software, inc.
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Signature Signature: Xxxxxxxx Xxxxx, CEO
