Exhibit 10.23
INSTALLMENT PAYMENT AGREEMENT
Customer: All American
Semiconductor, Inc.
Address: 16115 NW 52nd Ave. Software Documents: Two (2) independent
Miami, FL 33014 Schedules each dated
June 30, 2004 to the
Software License and
Services Agreement
dated June 30, 2004.
State of
Incorporation: Delaware IPA Effective Date: July 28, 2004.
Total Payment Amount: $1,083,875.00 (excludes
IPA Fee Category any taxes, which are payable directly to
PeopleSoft)
Payment Schedule:
License Fee: $[*]
$216,775.00 is due and payable on
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January 1, 2005.
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"Pre-paid Services" $216,775.00 is due and payable on
-----------
April 1, 2005.
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Support: $[*] $216,775.00 is due and payable on
-----------
July 1, 2005.
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Training: $[*] $216,775.00 is due and payable on
-----------
October 1, 2005.
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$216,775.00 is due and payable on
-----------
January 1, 2006.
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Total Fee: $[*] The Maturity Date of this IPA is January 1, 2006.
This Installment Payment Agreement ("IPA") is made as of the IPA Effective Date
above between the Customer named above ("Customer") and Siemens Financial
Services, Inc., with its principal place of business at 170 Wood Avenue South,
Iselin, NJ 08830 ("Payee") with respect to the following facts: Customer and
PeopleSoft USA, Inc. ("PeopleSoft") have entered into a Software License and
Services Agreement as of the date above ("License and Services Agreement") in
connection with the licensing of certain software products ("Licensed
Software"), services, and Pre-paid Services to Customer as specified on the
Schedule(s) referenced above ("Schedule" or "Schedules") and attached to the
License and Services Agreement. The License and Services Agreement, any Addenda,
Amendments, and Schedules attached thereto and specified above herein are
collectively referred to as the "Software Documents". Pursuant to the Software
Documents, Customer is obligated to pay PeopleSoft the Total Fee described above
("Total Fee"), plus all applicable taxes. Payee and Customer have agreed that
instead of Customer making the payments as described in the Software Documents,
Payee shall satisfy Customer's payment obligation of the fees payable to
PeopleSoft in connection with the Software Documents, and in consideration of
such payment, Customer shall make installment payments ("Payments") to Payee as
set forth in the above Payment Schedule ("Payment Schedule"). It is hereby
acknowledged that the sum of the Payments ("Total Payment Amount") may exceed
the amount PeopleSoft receives from Payee.
The parties agree to the following:
1. Promise to Pay. FOR VALUE RECEIVED, at the time and place, and in the manner,
provided below, Customer promises to pay to the order of Payee the Payments as
set forth in the above Payment Schedule. Upon a Payment Default (as defined in
Section S (i)), such overdue Payment shall bear interest at the rate of 12% per
annum (calculated on the basis of a 360-day year and actual days elapsed) until
paid. Customer acknowledges and agrees that Payee, at its sole discretion, upon
thirty (30) days prior written notice to Customer, may transfer or assign this
IPA to another entity or entities (other than to PeopleSoft) ("Assignee"), and
from and after the date to do so set forth in such notice, Customer will make
all Payments then due and unpaid and thereafter becoming due hereunder to said
Assignee.
2. Payments; Application of Credit. All Payments due hereunder are payable as
set forth herein. Notwithstanding any other provisions of this IPA, interest,
fees and the like shall not exceed the maximum rate permitted by applicable law.
The final Payment under this IPA shall be due and payable on the
* This confidential portion has been omitted and filed separately with the
Securities and Exchange Commission.
Maturity Date as set forth herein. All applicable sales and/or use taxes shall
be paid directly to PeopleSoft. For purposes of this paragraph 2, the following
terms shall have the following meanings: (a) "Credit" shall mean an amount which
(i) is finally determined by a court of competent jurisdiction to be due
from PeopIeSoft to Customer on account of a breach or default by PeopleSoft
under the Software Documents, or (ii) is voluntarily agreed upon by PeopleSoft
as a credit to Customer in settlement of an alleged breach or default by
PeopIeSoft under the Software Documents, (b) "IPA Balance" shall mean the
present value of all remaining amounts due hereunder at the time a Credit is
issued, calculated using the interest rate implicit in the transaction
contemplated hereby. In the event Customer becomes entitled to a Credit, such
Credit shall (x) be remitted by PeopleSoft to Payee for application against, or
satisfaction of, the IPA Balance, and (y) to the extent it exceeds the IPA
Balance, be remitted by PeopleSoft to Customer. Any such Credit shall be applied
first to payment of any expenses or fees due Payee pursuant to paragraph 7 and
the balance shall be applied to payments due hereunder in inverse order of
maturity. The receipt by Payee of a Credit which is less than the IPA Balance
shall not relieve the Customer from the obligation of making the next scheduled
installments of payments due hereunder. The failure of PeopleSoft to remit any
Credit to Payee shall not excuse or otherwise affect Customer's obligations to
Payee hereunder.
3. Absolute Obligation. Customer agrees that it will not assert against Payee or
Assignee any claim or defense that it may have against PeopleSoft. The Customer
agrees its obligations to pay amounts due under this IPA to Payee or Assignee
are absolute and unconditional, non-refundable and non-cancelable, and are not
subject to any defenses, setoffs or counterclaims that it may have against
PeopleSoft, regardless of whether or not (i) the Licensed Software performs or
does not perform in accordance with the Software Documents (ii) PeopleSoft or
Customer has breached any of its warranties or other covenants under the
Software Documents, (iii) the licenses granted pursuant to the Software
Documents and/or any maintenance, support, Pre-paid Services or other services
provided thereunder have been revoked or otherwise terminated for any reason or
(iv) the License and Services Agreement has expired or been terminated for any
reason. Upon PeopleSoft's delivery of the Software to Customer, Customer accepts
such Software for the purposes of this IPA. Any other specific acceptance
criteria specified in the Software Documents shall be solely between Customer
and PeopleSoft, and shall in no way affect Customer's absolute obligations under
this IPA. In the event of any default by PeopleSoft under the Software
Documents, Customer's sole remedy shall be against PeopleSoft. CUSTOMER
ACKNOWLEDGES THAT PAYEE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE
LICENSED SOFTWARE, SERVICES, OR PRE-PAID SERVICES COVERED BY THE SOFTWARE
DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE OR OF MERCHANTABILITY. CUSTOMER HEREBY WAIVES ANY CLAIM
(INCLUDING ANY CLAIM BASED ON STRICT OR ABSOLUTE LIABILITY IN TORT) THAT IT MAY
HAVE AGAINST PAYEE FOR ANY LOSS DAMAGE (INCLUDING, WITHOUT LIMITATION, LOSS OF
PROFITS, LOSS OF DATA OR SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGE)
OR EXPENSE CAUSED BY THE LICENSED SOFTWARE OR ANY SERVICES OR PRE-PAID SERVICES
COVERED BY THE SOFTWARE DOCUMENTS, EVEN IF PAYEE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE, LOSS, EXPENSE OR COST. CUSTOMER ACKNOWLEDGES THAT
PAYEE DID NOT SELECT, MANUFACTURE, DISTRIBUTE OR LICENSE THE SOFTWARE OR PROVIDE
ANY SERVICES ASSOCIATED WITH PRE-PAID SERVICES COVERED BY THE SOFTWARE DOCUMENTS
AND THAT THE CUSTOMER HAS MADE THE SELECTION OF SUCH SOFTWARE BASED UPON ITS OWN
JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE ON STATEMENTS MADE BY PAYEE OR ITS
AGENTS.
4. Representations, Warranties and Covenants. Customer represents, warrants and
covenants to Payee that (i) the Customer is a corporation in good standing under
applicable state law; (ii) this IPA is a legal, valid and binding obligation of
Customer and enforceable against Customer in accordance with its terms; (iii)
the execution, delivery and performance of the IPA will not violate or create a
default under any law (including any applicable usury law), regulation,
judgment, order, instrument, agreement or charter document binding on the
Customer's property; (iv) the IPA has been duly authorized, executed and
delivered by Customer; (v) each signatory on behalf of Customer of this IPA has
the authority to bind
Customer to this IPA; (vi) any and all information furnished to Payee is and
will be true and correct and any financial statements furnished will be prepared
in accordance with generally accepted accounting principles (GAAP); (vii)
Customer shall comply with all applicable laws, regulations and orders relating
to this IPA; (viii) Customer shall pay when due all applicable fees, taxes and
governmental charges (including without limitation, interest and penalties) of
any nature imposed upon or relating to any item of Licensed Software, Pre-paid
Services or this IPA (other than income taxes) or shall be timely contesting
same; and (ix) Customer shall execute a Termination Rights Amendment to the
License and Services Agreement in the form as attached to this IPA. Any transfer
or assignment of Customer's obligations under this IPA shall require Payee's
prior written consent. A transfer shall include a change in majority ownership
or control of Customer. Customer agrees to promptly execute any ancillary
documents and take further actions as Payee may reasonably request, including,
but not limited to, assignment notifications and certificates of authorization.
Customer agrees to provide Payee copies of Customer's publically disclosed
balance sheet, income statement and other financial reports as Payee may
reasonably request. Customer agrees that the Software Documents will not be
altered, modified, changed or amended by Customer without Payee's prior written
consent.
5. Default. Each of the following events shall constitute a "Default" (i)
Customer fails to pay when due all or any portion of amounts payable hereunder,
and such failure is not cured within ten (10) days of Customer's receipt of
written notice thereof ("Payment Default"); (ii) any representation or warranty
made by Customer or any guarantor in this IPA proves to be false in any material
respect when made or Customer fails to perform any covenant contained in this
IPA and such breach of representation and warranty or covenant is not cured
within thirty (30) days of Customer's receipt of written notice of such breach;
(iii) Customer or any guarantor shall cease doing business as a going concern or
transfer all or a substantial part of its assets; or become or be adjudicated
insolvent or bankrupt, admit in writing its inability to pay its debts as they
become due, or Customer or any guarantor shall institute any bankruptcy,
insolvency, reorganization, dissolution, liquidation or any such proceeding is
instituted against Customer or any guarantor and is not dismissed within sixty
(60) days; (iv) any judgment, writ, warrant or attachment or execution of
similar process is issued or levied against a substantial part of Customer's
property in an amount in excess of $1,000,000, and is not adequately bonded off,
and remains unsatisfied for sixty (60) days, or (v) Customer's license to use
any Licensed Software or right to receive any services under the Software
Documents is canceled, terminated or suspended following default by Customer
under the Software Documents.
6. Remedies. Upon the occurrence of any Default, Customer agrees that Payee may
(a) declare the remaining Payments discounted at the rate implicit in this IPA
(including any overdue Payments), together with any accrued interest on overdue
Payments, immediately due and payable in full, without further notice, demand,
or protest; (b) solely upon the occurrence of a Payment Default, require
PeopleSoft to immediately terminate the Software Documents, revoke all Licensed
Software under such Software Documents and terminate the provision of all
services to Customer contemplated by such Software Documents and (c) exercise
all rights and remedies available to Payee under the terms of this IPA or any
other applicable laws or agreements. Upon written instruction from Payee given
to Customer after the occurrence of a Payment Default (other than as a result of
acceleration as a result of a default pursuant to Sections 5(a)(ii) through (iv)
of this IPA hereunder) by Customer, Customer agrees to immediately cease using
the Licensed Software, to deinstall and delete all copies of Licensed Software
from any computer systems owned or controlled by Customer or used for Customer's
benefit. Customer further agrees to provide a certificate signed by a Customer
officer who is responsible for Customer's information systems attesting to such
cessation of use and maintenance, deinstallation and deletion of Licensed
Software.
7. General. In addition to the rights and remedies set forth in this IPA, upon
the occurrence of Default by Customer, Payee may exercise any other rights and
remedies available at law or in equity to enforce the performance by Customer of
its obligations under this IPA or to recover damages for a breach hereof. No
delay or omission on the part of Payee in exercising any right hereunder shall
operate as a waiver of such right or of any other right under this IPA or under
any other document or instrument executed or delivered in connection with this
IPA. All notices, requests, demands and other communications shall be delivered
by fax or mail to each party at the address as set forth herein. This IPA will
be construed and enforced in accordance with and governed by, the laws of the
State of New Jersey, without regard to conflict of law principles. CUSTOMER
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING FROM OR RELATED TO
THIS IPA AND SUBMITS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
IN THE STATE OF NEW JERSEY, IN ANY ACTION ARISING FROM OR RELATED TO THIS IPA.
This IPA constitutes the entire understanding between the parties either oral or
in writing with respect to the payment of the amounts owing hereunder and
supersedes all prior oral or written understandings. If any term, provision,
covenant or restriction of this IPA is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this IPA will remain in full force and effect and
in no way will be affected, impaired or invalidated. No term or provision of
this IPA may be amended, waived, discharged or terminated except by a written
instrument signed by Payee and Customer. All obligations of Customer under this
IPA shall survive any termination of the licenses relating to the Licensed
Software. The undersigned agree that, on demand of the other party, each shall
execute and deliver any instrument, furnish any information, or perform any
other act reasonably necessary or convenient to carry out the provisions of this
IPA. In addition to all other sums payable hereunder, Customer shall pay all
reasonable out-of-pocket expenses incurred by Payee, including fees and
disbursements of counsel, in connection with collection and/or other enforcement
proceedings resulting therefrom or in connection therewith. Customer agrees that
Payee or Assignee may treat executed faxes or photocopies delivered to Payee or
Assignee as original documents. Time is of the essence in the performance of
this IPA.
IN WITNESS WHEREOF, the parties hereto have executed this IPA, as of the date
first written above.
ALL AMERICAN SEMICONDUCTOR, INC. SIEMENS FINANCIAL SERVICES, INC.
By: /s/ BRUCE M. GOLDBERG /s/ KENNETH G. SULLIVAN
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Authorized Signature Authorized Signature
Bruce M. Goldberg as President & CEO Vice President of Credit and Operations
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Printed Name and Title Printed Name and Title