EXHIBIT 10.78
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 (INDIVIDUAL), 0000 X.
XXXXXXX XXXXXX, XXXXXX XXXXX, XX 00000 (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 the lease, except as is otherwise provided herein:
3. The lease of said property shall be for a term of 24 months on the
following basis:
The sum of $3,467.00 shall be paid upon execution of this lease,
as payment of the first month installment. On the 15TH day of
NOVEMBER, 2001 , and on the 15TH day of each and every month
during the term of this lease, the sum of $3,467.00 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 $1000.00 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 terms
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 in 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 made to or 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 SIMILAR WARRANTY APPLICABLE TO THE EQUIPMENT. IN ANY EVENT,
LESSOR SHALL 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 use, 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 (10) 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 distained, 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 payments 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 one and one-half (1 1/2%)
percent per month, or any part thereof, on the aggregate unpaid lease
payments due hereunder or 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 provide 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 4TH
day of OCTOBER, 2001
AUTO & EQUIPMENT LEASING BY FLEX, INC.
(LESSOR) BY /s/ Xxx Xxxxxxxx
---------------------------
HEARTSOFT SOFTWARE, INC. XXXXXXXX XXXXX (INDIVIDUAL)
(LESSEE) (LESSEE)
BY /s/ Xxxxxxxx Xxxxx BY /s/ Xxxxxxxx Xxxxx
------------------------------------ --------------------------
EQUIPMENT SCHEDULE "A"
Date: 10/4/01
This 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, Oklahoma dated: Oct. 4, 2001
---------------------------------------------------------------------------------------------------------------------------
QUANTITY MODEL NUMBER EQUIPMENT DESCRIPTION SERIAL NO.
---------------------------------------------------------------------------------------------------------------------------
1 486 SX66Mhz PC w/240 MB Xxxx
Xxxxx, 0XX XXX, 00" SVGA
Monitor, 2 Multiplexer Cards,
2SVGA Graphics Cards,
Controller Card, CD 486 DX 120
Mhz w/ 1.3 MB RAM, Triple CD
Changer,
1 17" Color Monitor
1 Hewlett Packard 4L Laser Printer
5 Discourse Technologies Studycom Concentrator
Discourse Technologies Studycom Student
20 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 6' Tables
2 30x60 cubicle w/ Binder Bin, Lights & File Drawers
48x60 cubicle w/ Binder Bin, Lights & File
1 Drawers includes 10'x15' computer lab work area
1 Printer Table
30x72 cubicle w/ Binder Bin, Lights, & File
1 Drawers
1 Privacy Panel for Manager's station
1 30x55 cubicle w/ Binder Bin, Lights & File Drawers
2 DK Series Pedestal Desk; 24x72 Dark Oak
2 Series 10600 Rt return Desk 24x48 Dark Oak
1 Series 10600 Storage Credenza 36x72 Dark Oak
2 Series 10600 Desk 36x72 Dark Oak
1 American Themes Conference Table
1 American Themes End Table
2 M7641LL/A G4 PowerMac
1 Quark Express
2 Adobe Illustrator
2 G-P3850 Epic PC System
1 128mg Memory
1 C500 Accr
2 5BW250 C700 Compaq Presario
1 P1565T HP Brio BA210
6 PL7 17" Monitors
1 Windows NT 5 Client Server
1 C6427E HP Deskjet Printer
3 G4 DIMM 128 Memory
17 G4 DIMM 128 Memory
1 Photoshop 5.5
1 PC-100 128mg DIMM
2 PowerMac G4 400 w/64mg upgrade
5 PL7 Monitors
4 USB Floppy Drive External
2 Iomega USB External Drive
1 Adobe Manager Deluxe 4.6
1 935C Deskjet
1 Flat Panel Speakers w/Subwoofer
1 250mg SUB Zip Drive
1 30.0gb External Firewire Hard Drive
17 IMac 64mg SO-DIMM SDRAM
1 PC-100 SDRA DIMM 128mg
1 Sony PC
1 Mac G4 Cube
2 Steelcase Avenir cubicles
10 Burgundy chairs
1 Whiteboard 5ft
2 Steelcase task chairs
1 Retrospect Advanced Driver Kit
20 SDX2-50C 500/100GB AIT@ 8MM Tape Carts
1 AIT2 Sony 4-Cart Autoloader 400GB 9380264
3 DV IMac Blueberry Computers
3 Stylus Color 670 Epson Printers
1 Entra Pass Access Control System
Auto & Equipment Leasing by Flex, Inc.
(LESSOR) /s/ Xxx Xxxxxxxx
----------------
Heartsoft Software, Inc.
(LESSEE) /s/ Xxxxxxxx Xxxxx
------------------
Xxxxxxxx Xxxxx (Individual)
(LESSEE) /s/ Xxxxxxxx Xxxxx
------------------
ADDENDUM TO EQUIPMENT LEASE
This Addendum is a part of that certain Equipment Lease (EQUIPMENT LEASE)
BETWEEN AUTO & EQUIPMENT LEASING BY FLEX, INC. ("COMPANY") and HEARTSOFT
SOFTWARE, INC., AND XXXXXXXX XXXXX (INDIVIDUAL), 0000 XXXXX XXXXXXX XXXXXX,
XXXXXX XXXXX, XX 00000 ("LESSEE") dated OCTOBER 04, 2001 re:
That equipment which is listed on the Schedule A dated: OCTOBER 4, 2001 which
correlates directly to the EQUIPMENT LEASE of the same date.
1. TRANSFERRANCE OF INTEREST. Upon termination of the EQUIPMENT LEASE (and with
all monthly lease payments having been remitted without default), COMPANY may
transfer its interest in the leased equipment to LESSEE for the agreed upon
residual pricing as set forth in the EQUIPMENT LEASE (PARA 3). LESSEE shall
notify COMPANY of its intentions and method(s) of purchasing the leased
equipment no less than 30 (thirty) days prior to the termination of the
EQUIPMENT LEASE. The following conditions apply:
a. LESSEE agrees to purchase leased equipment at agreed upon pricing of
$1000.00 (AS SET FORTH IN THE EQUIPMENT LEASE) upon termination of the EQUIPMENT
LEASE or,
b. LESSEE agrees to compensate COMPANY the difference between the
repurchase price stated above (paragraph 1.a.) and FAIR MARKET VALUE at the time
of EQUIPMENT LEASE termination. FAIR MARKET VALUE shall be determined by the
higher value of a minimum of three (3) bids from qualified interested parties OR
the price at which the leased equipment is sold (IF AT OR ABOVE QUALIFIED BIDS).
ACCEPTED AND AGREED UPON this 4TH DAY
OF OCTOBER, 2001
AUTO & EQUIPMENT LEASING BY FLEX, INC.
--------------------------------------
(COMPANY)
BY /s/ Xxx Xxxxxxxx
-------------------
HEARTSOFT SOFTWARE, INC
-----------------------
(LESSEE)
BY /s/ Xxxxxxxx Xxxxx
-------------------
XXXXXXXX XXXXX (INDIVIDUAL)
----------------------------
(LESSEE)
BY /s/ Xxxxxxxx Xxxxx
-------------------
ADDENDUM TO
LEASE CONTRACT
This Addendum is a part of that certain Equipment
Lease Contract between AUTO
AND EQUIPMENT LEASING BY FLEX, INC., 0000 X. 00XX XXXX XXXXXX, XXXXX 000, XXXXX,
XX 00000 ("LESSOR") and HEARTSOFT SOFTWARE, INC., AND XXXXXXXX XXXXX
(INDIVIDUAL), 0000 X. XXXXXXX XXXXXX, XXXXXX XXXXX, XX 00000 ("LESSEE") dated
OCTOBER 4, 2001.
In Accordance With the provisions of the above Equipment Lease
IT IS AGREED that the leased equipment will neither be sold nor sub-let without
written notification and permission of Lessor by Lessee.
IT IS AGREED that LESSEE shall provide LESSOR with a "STATEMENT OF LOCATION" on
a semi-annual basis regarding the leased equipment listed on the Schedule A. If
said equipment is located at the Lessee's place of business, a simple statement
to that effect will suffice. Equipment shall not be transported out of the State
of Oklahoma (FOR PURPOSES OF DOING BUSINESS ON A REGULAR BASIS) without a
written request from Lessee.
IT IS AGREED that LESSEE shall be responsible to provide all necessary
maintenance to leased equipment (WHETHER OR NOT UNDER FACTORY OR EXTENDED
WARRANTY MAINTENANCE CONTRACTS).
ACCEPTED AND AGREED UPON this 4TH DAY
OF OCTOBER, 2001
AUTO & EQUIPMENT LEASING BY FLEX, INC.
--------------------------------------
(LESSOR)
BY /s/ Xxx Xxxxxxxx
--------------------
HEARTSOFT SOFTWARE, INC.
------------------------
(LESSEE)
BY /s/ Xxxxxxxx Xxxxx
-------------------
XXXXXXXX XXXXX (INDIVIDUAL)
-----------------------------
(LESSEE)
BY /s/ Xxxxxxxx Xxxxx
--------------------
