Exhibit 10.27
VENDOR PROGRAM AGREEMENT
THIS VENDOR PROGRAM AGREEMENT ("Agreement") is dated as of July 21, 2004
by and between GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
("GECC"), with an address at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Fax number 000-000-0000, Attn.: Manager of Operations, GE Vendor Financial
Services - DVF, and MOBIUS MANAGEMENT SYSTEMS, INC., a Delaware corporation
("Mobius"), with its principal place of business and address at 000 Xxx Xxxx
Xxxx, Xxx, XX 00000, Fax number (000) 000-0000, Attn.: Xxxxxxx Xxxxxxxx, Chief
Financial Officer; together with their respective successors and assigns.
Mobius and GECC are entering into this Agreement with the principal
objective of providing a customer financing capability via the assignment of
Software License Payments (as defined in Section 1) from Mobius to GECC to
support the licensing of certain software products manufactured or distributed
by Mobius (the "Program").
NOW THEREFORE, in consideration of the above premises and of the
representations, warranties and agreements contained herein, the parties hereby
agree as follows:
1. DEFINITIONS.
(a) "Account Documents" means such properly completed and duly executed
documentation as GECC shall reasonably require in order to finalize a
Transaction and to pay the Purchase Price to Mobius, including but not limited
to the original License Agreement and Financing Addendum between Mobius and the
Customer in substantially the same form as attached hereto as Exhibit "A," and
an original Assignment Agreement between Mobius and GECC in substantially the
same form as attached hereto as Exhibit "B" and incorporated herein. (b)
"Agreement" means this Vendor Program Agreement and any riders, addenda, and
written amendments hereto. (c) "Application" means information regarding a
prospective Customer and any other information required by GECC to evaluate a
proposed Transaction. (d) "Customer" means a qualified customer of Mobius who is
an obligor under a Mobius License Agreement. (e) "Default by GECC" means a
material breach by GECC of any term or condition of this Agreement beyond any
applicable grace or cure period. (f) "Default by Mobius" means a material breach
by Mobius of any term or condition of this Agreement or of any License Agreement
beyond any applicable grace or cure period. (g) "Event of Cancellation" means
(i) a Material Adverse Change in financial condition, business or operations of
Mobius since the date of this Agreement or of a Customer since the date of the
related Application, or (ii) the occurrence of an event which causes a
representation made by Mobius under this Agreement or by a Customer under a
License Agreement or the related Financing Addendum to be false in any material
respect when made or, although true when made, not to be true at the time the
Software and Services are accepted by such Customer, or (iii) a Default by
Mobius, or (iv) notification by such Customer to Mobius or to GECC of its intent
to cancel all or any part of such Transaction or to refuse to accept any part of
the Software or Services, or (iv) any change in the majority ownership or
control of Customer. (h) "Financing Addendum" means the addendum to the License
Agreement which obligates the Customer to remit to GECC the Software License
Payments under the terms and conditions specified therein. (i) "License
Agreement" means a contract between Mobius and a Customer, which evidences the
Customer's obligation to pay the Software License Payments. (j) "Material
Adverse Change" means a significant negative change of Mobius or GECC from the
date of this Agreement or of a Customer from the date of the related Application
in its financial condition or its properties, assets, business, operations or
business prospects, all as reasonably determined by GECC in the sole exercise of
its credit discretion. (k) "Net Book Value" with respect to a License Agreement
means: (i) all accrued and unpaid amounts then due under the applicable License
Agreement, plus (ii) all remaining amounts which shall become due under the
applicable License Agreement, discounted to present value at the applicable
Negotiated Discount Rate, plus (iii) any out-of-pocket expenses (including
actual attorney's fees and taxes imposed on the Software) incurred by GECC with
respect thereto. (l) "Purchase Price" means the present value of the aggregate
Software License Payments, discounted at the Negotiated Discount Rate applicable
thereto (or any non-Negotiated Discount Rate previously approved by GECC in
writing). (m) "Service Fees" means the fees charged by Mobius to a Customer
under a License Agreement for the provision of Services and which shall be paid
by the Customer directly to Mobius. (n) "Services" means any and all of the
software maintenance and support services described in the applicable License
Agreement. (o) "Software" means Mobius's proprietary computer programs
(including any accompanying documentation, manuals, upgrades, releases,
databases, enhancements and instructions), plus any accompanying hardware
security devices and third party software and documentation. (p) "Software
License" means the license to the Software granted by Mobius to a Customer under
a License Agreement. (q) "Software License Payments" means the payments
scheduled to be made under a License Agreement pertaining to the Software
License, which Customer obligation has been assigned to GECC. (r) "Negotiated
Discount Rate" means the rate of interest established by GECC at which GECC
discounts the
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Purchase Price to be paid for a Transaction. (s) "Termination Event" means a
Default by GECC, which is not cured within thirty (30) days following receipt of
written notice, or a Default by Mobius, which is not cured within thirty (30)
days following receipt of written notice, or a Material Adverse Change of GECC
or Mobius. (t) "Transaction" means the financing by GECC of a Software License,
the Software License Payments under which are evidenced by a License Agreement
and Financing Addendum and assigned to GECC.
2. ORIGINATING TRANSACTIONS. GECC and Mobius agree that, provided that no
Termination Event has occurred and is continuing, GECC may elect from time to
time to enter into Transactions to finance the Software Licenses of Customers.
While Mobius agrees to extended payments under its License Agreements, nothing
contained herein shall require Mobius to attempt to dissuade those prospective
Customers who have elected to purchase the Software License and Service Fees for
cash. Mobius shall provide GECC with the right of first refusal to purchase and
take assignment of Customer extended payments, provided Mobius has designated
the associated License Agreement for assignment.
3. REVIEW. Mobius will cause a prospective Customer to complete and deliver
to GECC any information required to complete an Application. Upon receipt, GECC
will review the information and either approve or reject the Application at its
sole discretion, and will use its best efforts to notify Mobius of its
determination and of the Negotiated Discount Rate within five (5) business days
of receipt of the Application. Upon notification and Mobius's acceptance of the
relevant Negotiated Discount Rate, Mobius will deliver to GECC the Account
Documents for any approved Application that is signed by the Customer.
4. CONDITIONS OF APPROVAL. Approvals for all Applications will remain valid
for a period of sixty (60) days, unless extended by GECC in its sole discretion.
GECC may revoke its approval of an Application and, if so, it shall transfer to
Mobius any right, title or interest which it acquired in such Application if (a)
GECC does not receive the Account Documents within sixty (60) days after the
date GECC notifies Mobius of its approval of such Application; or (b) prior to
the payment by GECC of the applicable Purchase Price, GECC determines, in its
good faith judgment, that an Event of Cancellation has occurred and is
continuing. Upon revocation of its approval of an Application, pursuant to this
Section 4, GECC shall have no further liability to Mobius in connection with the
proposed Transaction.
5. FUNDING. Provided that GECC has not revoked its approval of an Application
pursuant to Section 4 and that the amount requested to be funded does not exceed
the amount approved for such Application, GECC will pay Mobius the Purchase
Price of the applicable Transaction within one (1) business day (or such other
period as the parties mutually determine) following GECC's receipt of (i) the
Account Documents, (ii) any independent Customer verification, acceptance and
confirmation of the payment terms within the Account Documents as reasonably
required by GECC, (iii) appropriate UCC-1 Financing Statements evidencing the
sale to GECC of the Software License Payments, and (iv) appropriate evidence
that the individual executing the License Agreement on behalf of the Customer
was so empowered by the Licensee. Although both parties shall use their
respective best efforts to obtain/secure items (i) through (iv) in a timely
manner, GECC alone shall determine, in the sole but reasonable exercise of its
credit/legal discretion, whether such items have been deemed satisfied for the
purposes of funding.
6. NEGOTIATED DISCOUNT RATE. (a) As provided in Section 3, GECC will provide
Mobius with the Negotiated Discount Rate used to calculate the Purchase Price
for each Transaction at the time it notifies Mobius of its approval of the
relevant Application. (b) Following consultation between the Relationship
Managers (as defined in the next Section) or their delegates and upon GECC's
written approval, GECC may also approve a Purchase Price, which is calculated at
a rate other than the current Negotiated Discount Rate. (c) GECC will honor the
Negotiated Discount Rate (and any non- Negotiated Discount Rate previously
approved in writing by GECC) for each Application submitted by Mobius which
predates the effective date of a new Negotiated Discount Rate, provided that the
Account Documents are received by GECC within fifteen (15) days (or any longer
period agreed to by GECC) after the date of approval of such Application.
7. GENERAL ADMINISTRATIVE SERVICES; RELATIONSHIP MANAGERS; SERVICING. (a)
GECC will provide general administrative services in connection with
Transactions, including credit investigation, documentation review, billing and
collecting. GECC will work with Mobius's financial organization to structure new
Transactions and otherwise support the Program and Mobius's sales efforts. GECC
personnel will be available to answer Customer inquiries relating to the Program
or Transactions on business days between the hours of 8:30 a.m. and 5:00 p.m.,
Central Standard Time. GECC will endeavor to resolve (or forward to Mobius for
resolution) all Customer complaints related to Transactions within forty-eight
(48) hours of receipt and, failing that, endeavor to keep the affected Customer
informed of the progress toward resolution on a regular basis; provided,
however, that nothing in this
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Section 7 shall require GECC to resolve or endeavor to resolve any Customer
complaints related to Software, Software Licenses or Services, which shall
remain the sole responsibility of Mobius. (b) GECC may without notice to Mobius:
(i) amend or restructure any Transaction, defer, renew or extend the time for
payment or performance or grant any other indulgence to a Customer, or (ii) make
settlements or compromises in connection therewith. GECC's and Mobius's rights
and obligations hereunder shall remain unaffected by any such activity. (c)
Mobius hereby irrevocably appoints GECC its attorney-in-fact to endorse or sign
Mobius's name on all checks received by GECC with regard to Software License
Payments. (d) Mobius and GECC will each appoint a Relationship Manager to
supervise the Program and to serve as the primary management contact between
Mobius and GECC under the Program. The Relationship Managers will be charged
with monitoring and managing the relationship between Mobius and GECC, and
ensuring compliance with the terms of this Agreement.
GECC hereby agrees to:
(1) provide each Customer with an invoice of the Software License
Payments due under the applicable License Agreement and Financing
Addendum within a reasonable time prior to each due date therefor,
and to maintain a record of such invoices and all billing activity
associated therewith;
(2) collect all Software License Payments due under the License
Agreements and Financing Addenda as and when the same shall become
due and payable;
(3) send late notices to the Customer;
(4) notify Mobius of any Customer defaults under any Software License
within fifteen (15) days after becoming aware thereof;
(5) maintain records of collection efforts;
(6) maintain and store the License Agreement with adequate safeguards
against loss, theft, vandalism and casualty; and
(7) process requests for extensions, modifications, upgrades, feature
additions, payoffs and rewrites.
(8) continue to act as the interface with Mobius customers whose payment
obligations have been assigned to GECC after any further assignment
of rights by GECC discussed in Section 13 herein.
(9) upon request, provide Mobius, as reasonably required by Mobius, with
documentation to support GECC's sales/use tax remittances or
documented reasons for non-remittances, in connection with any audit
by a related taxing body.
In addition, GECC shall (i) xxxx and collect from the Customer all taxes
which may be due or become due under any Software License with respect to the
Software, and (ii) unless the Customer is the party obligated to do so under
such Software License, file all related returns, statements and other
documentation with the appropriate taxing bodies. Mobius shall indemnify and
hold harmless GECC, on or after the date of any assignment made hereunder, for
any fines and/or penalties incurred solely as a result of any error by Mobius in
its tax treatment of any Software License prior to assignment thereof to GECC,
as determined by a related taxing body.
Mobius hereby agrees to
(1) provide Customer with an invoice of the Service Fees due under the
License Agreements within a reasonable time prior to each due date
therefor, maintain a record of such invoices and all billing
activity associated therewith, and collect all such payments as and
when the same shall become due and payable; and
(2) notify GECC of any Customer defaults under any Software License
within fifteen (15) days after becoming aware thereof.
In addition, Mobius shall (i) xxxx and collect from the Customer all taxes
which may be due or become due under any Software License with respect to the
Service Fees, and (ii) unless the Customer is the party obligated to do so under
such Software License, file all related returns, statements and other
documentation with the appropriate taxing bodies.
8. REPRESENTATIONS AND WARRANTIES OF MOBIUS. Mobius hereby represents,
warrants and covenants to GECC, its successors and assigns, as of the date
hereof, of the related Application and throughout the term of any Transaction,
that:
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(a) Mobius is a duly organized and validly existing corporation and has full
power to enter into this Assignment and to carry out the transactions
contemplated hereby. (b) The execution and delivery of this Assignment and the
performance by Mobius of the transaction contemplated hereby have been duly
authorized by all necessary corporate action. (c) This Assignment constitutes a
legal, valid and binding obligation of Mobius enforceable in accordance with its
terms. (d) Neither the execution of this Assignment nor the consummation of the
transactions contemplated hereby will constitute (i) a violation or default of
any statute, rule, or decree of any court, administrative agency or governmental
body to which Mobius is or may be subject, or (ii) a material default with
respect to any material indenture, loan agreement or other agreement to which
Mobius is bound. (e) Mobius possesses and will maintain throughout the term of
the Account Documents adequate licenses and permits to grant the Software
Licenses described in the Account Documents. (f) Each Software License and each
applicable Account Document constitutes the genuine, legal, valid, and binding
obligation of Mobius, enforceable in accordance with its terms, and Mobius will
not amend any portion of a Software License or an Account Document in any manner
which could adversely affect GECC's ability to receive Software License Payments
due thereunder, without GECC's prior written consent. (g) To Mobius's knowledge,
each applicable Account Document constitutes the genuine, legal, valid, and
binding obligation of the applicable Customer, enforceable in accordance with
its terms. (h) To Mobius's knowledge, in all documents where Mobius is
responsible for obtaining the Customer's signature, the signature of the named
Customer is genuine, the individual signing on behalf of the Customer holds the
office set forth below his signature, and Mobius shall turn over to GECC valid
written evidence of authority on behalf of the individual executing each
applicable Account Document, to the extent that same has been provided by
Customer to Mobius. (i) There are and will be no agreements between Mobius or
its agents and any Customer in connection with the Account Documents, except as
contained in (i) the applicable Software License Agreement and/or (ii) any
agreement relating to services and/or consulting which is not financed by GECC,
the breach or default of which by either Mobius or its agents will not adversely
impact the Customer's obligations to GECC under the applicable Account
Documents, and no express or implied warranties have been or will be made by
Mobius or its agents to any Customer, except as contained therein. (j) Mobius
will immediately remit to GECC any Software License Payments which it may
receive from a Customer in connection with the Account Documents. (k) Mobius
either owns or has the right to license the Software; the Software does not
infringe or violate any patent, copyright, trade secret or other intellectual
property right of any other person, partnership or entity; prior to assignment
to GECC, Mobius has not previously assigned the Software License or Software
License Payments to any other person, partnership or entity, and upon assignment
thereof and upon the filing of a UCC-1 financing statement in the appropriate
filing offices, GECC's ownership interest in the Software License Payments and
security interest in and to the Software License shall have priority over all
other interests (including liens and security interests) thereto to the extent
that a security interest in the Software License Payments can be perfected by
such filing and GECC has filed such financing statement, except solely to the
extent priority liens/interests may exist in the Software License and Software
License Payments arising by operation of law for taxes, assessments or
government charges not yet due. (l) The Software has been delivered to and
accepted by the named Customer, in accordance with the standard terms and
conditions outlined in the applicable Account Documents. Mobius will license,
service and maintain the Software and otherwise perform its obligations in
compliance with the terms of the applicable Account Documents. Mobius has no
obligations remaining unperformed under the Software License Agreement which in
any way would create a defense to payment thereunder on the part of the
Customer. (m) Subject to the provisions of Section 7 hereunder, all sales, use,
or property taxes applicable to the value, sale or use of the Software assessed
or imposed prior to the time GECC pays the applicable Purchase Price, will have
been paid or will be timely remitted by Mobius to the appropriate taxing
authority and Mobius will on request provide GECC with proof of such payment as
promptly as possible. (n) There are no suits or proceedings pending or, to the
knowledge of Mobius, threatened in any court or before any regulatory
commission, or other administrative or governmental agency against or affecting
Mobius, which could reasonably be expected to materially impair Mobius's ability
to perform its obligations hereunder or in connection with any Account
Documents. (o) In the event that Mobius is no longer publicly held, it will
promptly deliver to GECC such information concerning Mobius's financial or other
condition as GECC may reasonably request, and will deliver to GECC within one
hundred twenty (120) days of the close of each fiscal year, its balance sheet
and profit and loss statement (including the consolidated taxpayer group of
which it is a part), certified by a recognized firm of public accountants, and,
within ninety (90) days of the close of each fiscal quarter, its quarterly
financial report, certified by its Chief Financial Officer.
As used in this Section 8, "knowledge" shall mean the actual knowledge of any
Mobius employees having continuing responsibility for the administration of the
Account Documents and communicated to the Mobius Relationship Manager.
9. REPRESENTATIONS AND WARRANTIES OF GECC. GECC hereby represents, warrants
and covenants to Mobius, its successors and assigns, as of the date hereof, of
the related Application and throughout the term of any
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Transaction, that: (a) GECC is a duly organized and validly existing corporation
and has full power to enter into this Agreement and to carry out the
transactions contemplated hereby. (b) The execution and delivery of this
Agreement and the performance by GECC of the transactions contemplated hereby
have been duly authorized by all necessary corporate action. (c) This Agreement
constitutes a legal, valid and binding obligation of GECC enforceable in
accordance with its terms. (d) Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will constitute (i) a
violation or default of any statute, rule, or decree of any court,
administrative agency or governmental body to which GECC is or may be subject,
or (ii) a material default with respect to any indenture, loan agreement or
other agreement to which GECC is bound. (e) All documents relating to a
Transaction to which GECC is a party or by which it is bound will be genuine,
legal, valid and binding obligations of GECC, enforceable in accordance with
their terms. (f) GECC will honor any agreements made by GECC with any Customer
in connection with any Transaction. (g) There are no suits or proceedings
pending or, to the knowledge of GECC, threatened in any court or before any
regulatory commission, or other administrative or governmental agency against or
affecting GECC, which could materially impair GECC's ability to perform its
obligations hereunder or in connection with any Transaction. (h) GECC will
immediately remit to Mobius any payments which it may receive from a Customer
that pertain to Service Fees.
10. LICENSE AGREEMENT DEFAULTS.
Upon the occurrence of an event of a default or breach by a Customer under the
Account Documents past any applicable cure and/or grace period, Mobius
acknowledges that all rights of such Customer under the applicable Account
Documents shall be automatically transferred to GECC, and Mobius shall, upon the
prior written consent and instruction of GECC, immediately terminate the
Software License granted to such Customer and/or cease to perform any Services
on behalf of such Customer which have not yet been performed under the
applicable Account Documents. In this context, "Services" shall mean any and all
of the software maintenance services described in the applicable License
Agreement. Mobius shall hold GECC harmless for any claims, suits, actions or
proceedings against GECC as a result of Mobius's failure to obtain such prior
consent. Mobius acknowledges that GECC shall be free to pursue such Customer for
amounts owed by such Customer to GECC under the applicable Account Documents
which relate to the Software License financed by GECC. Mobius shall cooperate
with any reasonable requests from GECC, which enable GECC to enforce its rights
against such Customer pursuant to this paragraph. Mobius shall not re-license
software products to a Customer with an uncured event of default or breach for a
period of two (2) years from such default or breach.
11. INDEMNIFICATION.
If (i) Mobius breaches any representation, warranty or covenant herein in any
material respect; (ii) Mobius fails to perform its obligations in and under the
Transaction in any material respect; (iii) any Customer fails to make payments
due to GECC under the Transaction as a result of Mobius's failure to perform its
obligations in any material respect under the License Agreement or Financing
Addendum (including a breach in any material respect of any agreement or
warranty therein); (iv) any representation or warranty made herein or any of the
documents related hereto by Mobius is false or misleading in any material
respect; (v) any applicable Account Document shall prove not to be genuine,
legal, valid or binding as against the Customer; (vi) the signature of the named
Customer shall prove to not be genuine, or the individual executing any
applicable Account Document did not have the requisite authority to bind the
Customer; then GECC may require that Mobius repurchase the affected Transaction
for a cash amount equal to the then Net Book Value thereof, and upon demand from
GECC, Mobius will promptly do so. The warranty in the preceding sentence is
exclusive and in lieu of any other warranty whether express, implied or
statutory.
Mobius shall indemnify and hold harmless GECC, its officers, directors,
employees and agents, from any losses, claims, liabilities, demands and
expenses, including without limitation reasonable attorneys' fees, arising out
of any third party claim based on (i) any breach by Mobius of its
representations, warranties or obligations hereunder or under any License
Agreement financed by GECC, (ii) any failure to perform any covenant, agreement
or obligation to be performed by or on behalf of Mobius hereunder or under any
License Agreement financed by GECC, or (iii) any misrepresentation by any
employee or agent of Mobius to any Customer as to the commitment of GECC to
enter into any Transaction. GECC shall indemnify and hold harmless Mobius, its
officers, directors, employees and agents, from any losses, claims, liabilities,
demands and expenses, including without limitation reasonable attorneys' fees,
arising out of any third party claim arising from a proven or mutually
acknowledged breach by GECC of the representations, warranties or covenants made
by GECC under this Agreement. All indemnities and obligations under this Section
shall survive the expiration or termination of this Agreement and the expiration
or termination of any Transaction until the expiration of the statute of
limitations applicable to the matter for which indemnity is sought, and shall be
payable promptly upon presentation of an invoice from the indemnified party
therefor. However, neither party will be liable under this section to the extent
that any
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loss, claim, liability, demand or expense is found in final judgment by a court
of competent jurisdiction to have resulted from the gross negligence or
intentional misconduct of the other party. NO PARTY SHALL BE LIABLE FOR ANY
PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER OR FOR
LOST PROFITS, FOR ANY REASON WHATSOEVER, IN CONNECTION WITH THIS AGREEMENT
(INCLUDING, WITHOUT LIMITATION, PURSUANT TO THIS SECTION). Mobius's total
cumulative liability arising out of or relating to this Agreement, whether in an
action in contract or tort or otherwise, shall in no event exceed the amount of
money being financed by GECC in the applicable Account Documents under which any
such claim or liability arises, less amounts actually received by GECC from or
on behalf of the applicable Customer with respect thereto.
12. TERM AND TERMINATION. This Agreement shall be effective upon execution by
GECC and Mobius and shall continue from such effective date until terminated by
either party pursuant to the provisions hereof. This Agreement may be terminated
by either party for any reason upon ninety (90) days' prior written notice.
Either party may terminate this Agreement immediately upon written notice to the
other party if a Termination Event shall have occurred and be continuing. Upon
termination of this Agreement, the obligations of the parties with respect to
Transactions not funded by GECC shall cease, but all obligations with respect to
Transactions which have been funded by GECC shall survive. If this Agreement is
terminated following the occurrence of a Termination Event, the terminating
party shall have the right to seek any and all additional remedies as may be
available in law or in equity, except where an exclusive remedy is expressly set
forth.
13. ASSIGNMENT OF RIGHTS. Mobius may assign its rights to receive payment
hereunder to any other party, without GECC's prior written consent. GECC may,
without prior written consent, assign any of its rights hereunder or under any
Transaction to any party, and may in connection therewith securitize or
syndicate its rights under such License Agreement and Financing Addendum. Except
as provided herein, the rights and obligations of GECC and Mobius under this
Agreement may not be assigned without the prior written consent of the other
party. Any attempted assignment in conflict with this Section shall be
considered void and of no effect.
14. CONFIDENTIALITY. From time to time GECC or Mobius may provide non-public
business, financial or other information to the other party including, but not
limited to, Account Documents, License Agreements and information regarding
Mobius's customers, in connection with this Agreement. GECC and Mobius will take
reasonable steps to preserve the confidential nature of such information and to
prevent its disclosure to third parties. Such information shall not be
considered confidential if (i) it is already in the public domain, or (ii) it is
obtained from an independent source who is not legally bound to refrain from
such disclosure, or (iii) it is independently developed by the receiving party.
GECC and Mobius will fulfill their obligations hereunder if they exercise the
same degree of care to preserve and safeguard such confidential information as
they use to preserve and safeguard their own confidential information, but in
any event either party shall exercise at least a reasonable degree of care with
respect to such confidential information. GECC and Mobius may disclose
confidential information to their respective affiliates, and confidential
information relating to a specific Transaction and the related License Agreement
may be disclosed by GECC to its representatives and agents, in the event that
such Transaction is referred for collection, and to any purchaser or
administrator, in the event that such License Agreement is syndicated or
securitized, provided that the receiving party agrees to be bound by the terms
hereof. Nothing herein shall be deemed to prohibit disclosure of confidential
information that is required by law, so long as the disclosing party, so far as
practicable, consults with the other party prior to such disclosure and takes
such steps as the other party may reasonably request to mitigate the effect of
such disclosure. The obligations of confidentiality set forth in this Section 12
shall remain in effect for two years from date of disclosure.
15. MISCELLANEOUS. (a) GECC and Mobius acknowledge that they are separate
entities, each of which has entered into this Agreement for independent business
reasons. (b) This Agreement constitutes the entire agreement between Mobius and
GECC concerning the subject matter hereof. (c) Mobius waives any failure or
delay by GECC in enforcing any right hereunder or under any Transaction or
against the Software or Software License. Mobius shall not make any collections
or repossessions on any Transaction (other than for maintenance or upon the
expiration of the term of the applicable Software License Agreement) except with
GECC's prior written consent. This Agreement incorporates all terms and
conditions relating to purchase of Transactions by GECC and may not be modified
except by written agreement duly executed by each of the parties hereto. Mobius
waives notice of acceptance hereof, presentment, protest and demand, and notice
of protest, demand, and dishonor on the Transactions. The remedies hereunder are
cumulative, and any and all thereof may be exercised in lieu of or in addition
to each other, any remedies at law or in equity, unless otherwise expressly set
forth herein. (d) Notices to Mobius or GECC under this Agreement shall be deemed
to have been
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given if sent by recognized overnight delivery or certified mail, return receipt
requested. (e) The parties agree that this Agreement shall be governed by and
construed in accordance with the laws (including, but not limited to, Section
5-1401 of the New York General Obligations Law) of the State of New York (f) If
at any time any provision of this Agreement is held by any court of competent
jurisdiction to be illegal, void or unenforceable, such provision shall be
changed and interpreted to accomplish the objectives of such provision to the
greatest extent possible under applicable law but such provision shall not
impair the enforceability of any other provision of this Agreement. (g) This
Agreement constitutes the entire agreement between the parties concerning the
subject matter hereof. (h) In the event there is any conflict between this
Agreement and any ancillary agreements with respect to any Software, Software
Licenses or Services, the terms and conditions of this Agreement shall control.
(i) THE PARTIES WAIVE, THE EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS HEREUNDER.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized representatives as of the date first above
written.
MOBIUS MANAGEMENT SYSTEMS, INC. GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxxx Print Name: Xxxx Xxxxxxxxxx
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Title: Senior VP of Finance & CFO Title: Attorney-in-Fact
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Exhibit A
FINANCING ADDENDUM
To Exhibit _____dated_____________ to License Agreement with___________________
dated_____________, as amended from time to time ("License").
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Licensee Name: Mobius Management Systems, Inc. ("Mobius")
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Address: 000 Xxx Xxxx Xxxx
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Xxx, XX 00000
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Tel: Tel: 000-000-0000
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Fax: Fax: 000-000-0000
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In connection with the potential assignment by Mobius of certain of its rights,
but none of its obligations, under the License, to General Electric Capital
Corporation ("Assignee") for financing purposes, Mobius and Licensee wish to
clarify and amend certain terms and conditions contained in the License. For
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Licensee agrees that Mobius may assign to Assignee its rights to all or a
portion of software license fees due and to become due under the License.
The portion of such fees that may be assigned to Assignee are set forth in
the Payment Schedule on page 2 of this Financing Addendum ("Payment
Amounts"). Licensee agrees that, notwithstanding any other provision of the
License, the Payment Amounts specified hereunder have been fully earned by
Mobius and Assignee upon acceptance of the software. Licensee shall, in
accordance with the terms of this Financing Addendum ("Agreement") and on
instructions from Mobius, pay to Assignee such Payment Amounts due and to
become due without deduction, offset, counterclaim or defense as against
Assignee, notwithstanding any other term to the contrary in the License or
any other agreement between Mobius and Licensee, including, but not limited
to, any cancellation or early termination provisions, for convenience or
otherwise, and regardless of whether or not (i) the software performs or
does not perform in accordance with the License (ii) Mobius or Licensee has
breached any of its warranties or other covenants under the License, (iii)
the rights granted pursuant to the License and/or any maintenance or support
provided thereunder have been revoked or otherwise terminated for any reason
or (iv) the License has expired or been terminated for any reason. Licensee
further agrees, in the event of any such assignment, (i) that such Payment
Amounts are absolute, unconditional and non-cancelable with respect to
Assignee, (ii) that Assignee shall not be chargeable with or assume any of
the obligations or liabilities of Mobius, (iii) to make and/or settle
directly with Mobius all warranty, service, or other claims with respect to
the software and/or related services provided by Mobius pursuant to the
License, and (iv) that all unassigned obligations/payments with respect to
the License, including but not limited to maintenance and/or support
payments due thereunder, shall remain unchanged and in full force and
effect. Mobius agrees that assignment of Payment Amounts does not affect any
of Mobius's obligations under the License, including any obligations it may
have to provide services.
2. For any payment due which is not received within thirty (30) days of its due
date, Licensee affirms its obligations to pay such late and other charges as
may be set forth in the License as reasonable compensation for Assignee's
costs in processing delinquent accounts, but only to the extent permitted by
law. Payments received shall first be applied to such late charges, if any,
and then to the Payment Amounts due. In no event shall this Agreement
require the payment or permit the collection of interest in excess of the
maximum amount permitted by applicable law. All Payment Amounts shall be
inclusive of any sales, use, value added, property, or excise taxes, any
duties or any assessment in the nature thereof, all of which shall be paid
solely by the Licensee, unless a valid certificate of exemption or similar
document is provided to Mobius. In the event of a failure of the Licensee to
make any payment to Mobius or Assignee, which failure continues for thirty
(30) days after the due date for such payment,
which failure shall be deemed a material breach under the License; in
addition to any other rights and remedies available to Mobius or Assignee,
(i) all Payment Amounts due or to become due shall become immediately due
and payable; (ii) Licensee agrees that Assignee may require Mobius to
immediately terminate the License and permanently suspend the provision of
all services to Licensee contemplated by such License; (iii) Licensee agrees
to immediately cease using the software covered by the License, to deinstall
and delete all copies of such software from any computer systems owned or
controlled by Licensee or used for Licensee's benefit, and to provide a
certificate signed by a Licensee officer who is responsible for Licensee's
information systems attesting to such cessation of use and maintenance,
deinstallation and deletion of Licensed Software; (iv) Mobius or Assignee
may recover reasonable attorney's fees and legal expenses in exercising any
of its rights and remedies upon such default. Neither Mobius nor Assignee
shall have any liability to Licensee arising out of any acts of termination,
revocation, and/or suspension arising pursuant to this Financing Addendum.
This immediately preceding provision shall survive termination of this
Financing Addendum or the License. Mobius or such Assignee will notify
Licensee of any failure to receive Payment Amounts when due, but Licensee's
failure to receive notice will not excuse a default or limit the remedies
available to Mobius or Assignee as described herein.
3. Any transfer or assignment of Licensee's obligations under this Financing
Addendum shall require Assignee's prior written consent. A transfer shall
include a change in majority ownership or control of Licensee.
4. In the event of any conflict between the License (including, but not limited
to, any cancellation or early termination provisions, for convenience or
otherwise) and this Agreement, Licensee agrees that this Agreement
(including the Payment Schedule below) shall control with respect to what is
owed to Assignee.
5. By its signature below, Licensee expressly affirms that the software covered
by the License has been duly accepted by Licensee.
Licensee:________________________________Mobius Management Systems, Inc.
By:______________________________________By:____________________________________
Print Name:______________________________Print Name:____________________________
Title:___________________________________Title:_________________________________
Date:____________________________________Date:__________________________________
Payment Schedule
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Payment Due Date Payment Amount
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$
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Total License Payments $
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Exhibit B
ASSIGNMENT
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Dated: [DATE]
Customer: [CUSTOMER NAME]
Aggregate Amount of Additional Remaining Payments: $_______as of the date stated
above (the "Remaining Balance")
Discounted Value: $______________ as of the date stated above.
Discounted Rate: % .
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Instruments And Documents ("Account Documents"): [NAME OF LICENSE AGREEMENT]
with an effective date of [EFFECTIVE DATE].
Pursuant to that certain Vendor Program Agreement dated as of July 21, 2004
("Program Agreement") by and between Mobius Management Systems, Inc., a Delaware
corporation ("Assignor"), and General Electric Capital Corporation, a Delaware
corporation ("Assignee"), which Program Agreement is expressly incorporated
herein by reference, FOR VALUE RECEIVED, Assignor hereby sells, grants, assigns
and transfers to Assignee, its successors and assigns, all of Assignor's right,
title and interest in and to the Software License Payments as defined in the
Program Agreement, together with a first priority security interest securing the
obligations of Mobius under the Program Agreement in and to the non-exclusive
license to use the products and services described in the Account Documents as
and to the extent and on the terms and conditions set forth therein (the
"Account Property"). Assignor authorizes Assignee to collect all Software
License Payments and to take any action thereunder which Assignor might
otherwise take to collect the same. Notwithstanding the foregoing, the parties
hereto agree and acknowledge that such assignment in and to the Software License
Payments shall constitute an assignment of rights and remedies, but shall not
constitute a delegation by the Assignor of any of its duties or obligations
under the Software License Payments.
To induce Assignee to purchase the Software License Payments, Assignor reaffirms
the representations, warranties and covenants contained in the Program
Agreement, which representations, warranties and covenants are expressly
incorporated herein.
IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed by its
duly authorized officer as of the date first set forth above.
Mobius Management Systems, Inc.
By: ___________________________________
Print Name: ____________________________
Its: ___________________________________
