FIRST AMENDMENT TO SOFTWARE
LICENSE, SUPPORT AND USAGE AGREEMENT
This Agreement (the "Agreement") is entered into by and among PINNACLE
PORTFOLIO SERVICES LLC ("Pinnacle"), BNI, INC. ("BNI") and NATIONAL AUTO
FINANCE COMPANY INC. ("NAFI") as of the 15th day of December, 1997.
RECITALS
A. Reference is hereby made to that certain BNI, Inc. Software License,
Support and Usage Agreement dated February 14, 1997 (the "BNI Agreement") by and
between BNI and Pinnacle, whereby BNI granted to Pinnacle a nonexclusive and
perpetual license and right to use the CLASS Licensed Program as set forth in
such agreement. The parties acknowledge that NAFI has been granted a sublicense
by Pinnacle to the software program(s) covered by the BNI Agreement (the "NAFI
Sublicense") as contemplated by such BNI Agreement and that this letter
agreement is being executed in connection with the BNI Agreement and the NAFI
Sublicense. As used in this Agreement, all references to "NAFI" shall mean the
collective reference to NAFI and its division, Auto Credit Clearinghouse or
ACCH. Each capitalized term which is used but not defined in this Agreement
shall have the meaning set forth in the BNI Agreement.
B. The parties to the BNI Agreement contemplated that BNI would deliver
the Licensed Program, written in Visual FoxPro 5.0 using Microsoft SQL Server
6.5 Relational
Database as its database. However, BNI has proposed that BNI make two deliveries
and two installations to NAFI, (1) the first delivery and installation is the
CLASS Licensed Program written in Visual FoxPro 5.0 using Visual FoxPro 5.0 as
its database and (2) the second delivery and installation is the CLASS Licensed
Program written in Visual FoxPro 5.0 using Microsoft SQL Server 6.5 Relational
Database as its database. Since the original BNI Agreement contemplated only the
Visual FoxPro 5.0 using the SQL Server 6.5 Database, the parties desire to amend
the BNI Agreement with respect to the two versions of the Licensed Program. In
addition, the parties desire to make certain other amendments to the BNI
Agreement as set forth herein.
Now Therefore, in consideration of the mutual premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions.
a. Licensed Program. As used in the BNI Agreement and this
Agreement, the term "Licensed Program" shall mean the BNI C.L.A.S.S. computer
program, which is the "Licensed Program" (as such term is defined in the BNI
Agreement), as modified by the "Agreed Changes"
(as such term is defined in the BNI Agreement, including the items set forth on
Exhibit A attached hereto) (I) utilizing FoxPro 5.0 as the graphic user
interface programming language and (A) utilizing Visual FoxPro 5.0 as its
database ("FoxPro 5.0 Language") or (B) utilizing Microsoft SQL Server 6.5
Relational Database as its database ("FoxPro/SQL Language") and (II) in each
case, containing the following eight modules (each a "CLASS Module"): (i) System
Administration, (ii) New Application Processing, (iii) Contract Processing, (iv)
New Loan Bookings, (v) Loan Processing, (vi) Collections, (vii) Securitizations,
and (viii) Portfolio Acquisition Bookings, plus (a) the programming interface
between the Licensed Program (with BNI being entitled to charge separately for
such programming as set forth in Paragraph 4.c.(iii)) and installed separately
by NAFI) (the "SQL Financial Interface"). The Licensed Program, as written in
the FoxPro 5.0 Language, shall be referred to as the "FoxPro 5.0 Program." The
Licensed Program, as written in the Fox/SQL Language, shall be referred to as
the "Fox/SQL Program."
b. Agreed Changes and Project Schedule . BNI and NAFI have formulated a
written agreed-upon description of the changes which will need to be made to
BNI's existing CLASS program in order to implement the "Agreed Changes" as
contemplated by Section 1 of the BNI Agreement. Attached hereto as Exhibit A is
the "BNI MASTER SCHEDULE" (herein so called) which has been prepared by BNI and
approved by NAFI and which sets forth a short form description of each "Agreed
Change", the priority for the completion of such date (which priorities are set
forth as Priority A, B or C, with Priority A being the first changes to be
completed, etc.), scheduled start date by BNI and scheduled finish date by BNI
for each such Agreed Change. In addition, the BNI Master Schedule also
constitutes a project schedule prepared by BNI which sets the time schedule of
BNI to perform BNI's obligations which are set forth in the BNI Agreement, as
amended by this Agreement in accordance with the deadlines set forth in this
Agreement. Any requested changes, amendments or time extensions to any portion
of the BNI Master Schedule must be approved in writing by NAFI. To the extent a
conflict exists between the terms of the BNI Master Schedule and this Agreement,
the terms of this Agreement shall govern and control for all purposes.
d. Implementation Plan. The parties agree that an IMPLEMENTATION PLAN
(herein so called) will be prepared and agreed to in writing by BNI and NAFI
which sets forth the implementation plan and training program with respect to
the Licensed Program. To the extent a conflict exists between the terms of the
Implementation Plan and this Agreement, the terms of this Agreement shall govern
and control for all purposes.
e. Out of Pocket Expenses. As used in the BNI Agreement and this
Agreement, the term "OUT-OF-POCKET EXPENSES" (herein so called) shall mean
travel expenses, room and board expenses and other reasonable expenses incurred
by BNI from third parties in connection with the performance of the specific
BNI's duty in question in accordance with the terms of the BNI Agreement, as
amended hereby; provided however that BNI shall be required to obtain the prior
written consent of NAFI for any out-of-pocket expense (other than travel and
room and board
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expenses) in excess of $500 for any one item and provided further that BNI shall
not retain or purchase services from a third party subcontracting, consulting,
computer programming or other firm to be billed to NAFI as an "out-pocket
expense" without the prior written consent of NAFI. "Out of pocket expenses"
shall not include any per hour charge or cost incurred by BNI with respect to
any employee, consultant or contractor providing services to BNI or NAFI. BNI
shall xxxx XXXX, utilizing a detailed billing format, for any out-of-pocket
expenses every two weeks for expenses incurred by BNI during the previous two
week period.
f. Acceptable Response Times. As used herein, the term "ACCEPTABLE
RESPONSE TIME" shall mean a performance standard measured by a 3 to 5 seconds or
better response time for each system action initiated by a user of the Licensed
Program.
2. BNI Duties, Response Time and Personnel - Completion of BNI Master
Schedule Projects.
a. BNI agrees that Xxxxx X. Xxxxxx shall devote substantially all of
his business time with NAFI during all phases of BNI's obligations as described
in Paragraphs 3, 4, 5, 6, 7 and 8 of this Agreement and BNI will cause Xxxxx
XxXxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxxx and Xxxx XxXxxx or their respective
replacements if such individual(s) cease to be employed by BNI (each, a "BNI
Team Member") for the CLASS Module related to such BNI Team Member to devote
substantially all of their respective business time AS AND WHEN NEEDED DURING
SUCH TIME PERIOD WITH RESPECT TO THE CLASS MODULE IN QUESTION in order to ensure
a successful and complete performance of BNI's obligations under Paragraphs 3,
4, 5, 6, 7 and 8 of this Agreement. During the performance of BNI's obligations
as set forth in Paragraphs 3, 4, 5, 6, 7 and 8 of this Agreement, BNI agrees to
respond to any discrepancy in the Licensed Program within one hour of a NAFI
personnel telephone call with respect to such discrepancy. In the event such
discrepancy cannot be solved by BNI personnel from BNI's offices, then, BNI
agrees to make the responsible BNI Team Member available at NAFI's offices in
Jacksonville, at BNI's cost (except as otherwise set forth in Paragraphs 3, 4,
5, 6, 7 and 8 of this Agreement), in order to resolve such discrepancy as soon
as practicable.
b. BNI covenants and agrees to perform each of the projects set forth
in the BNI Master Schedule in accordance with the time schedule and the other
terms and provision of the BNI Master Schedule for each such project as set
forth in such BNI Master Schedule.
3. NAFI Project Manager. BNI acknowledges that NAFI has retained Xxxxxx
Consulting, Incorporated, d/b/a DC Systems Consulting (the "DCS") to act as
NAFI's project manager with respect to the Licensed Program and the BNI
Agreement. In no event shall DCS have any right or power to legally bind NAFI in
any way whatsoever. BNI agrees to work with DCS as NAFI's project manager in
connection with the services to be provided by BNI under the BNI Agreement, as
amended hereby. NAFI shall be responsible for any breach by DCS of Section 2 of
the BNI Agreement with respect to confidentiality. BNI agrees that DCS is a
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"Permitted Party" as defined in Section 2 of the BNI Agreement. BNI agrees to
provide to NAFI weekly written status reports that reflect the work that has
been accomplished by BNI for such week and any areas of concern, together with a
reconciliation report by BNI of the progress of the work with the time schedule
set forth in the BNI Project Schedule (such reports, the "WEEKLY BNI REPORTS") .
BNI agrees to provide NAFI or DCS with sufficient information, reasonably
acceptable to NAFI, in order that NAFI may verify the progress of BNI's work
product on a weekly basis.
4. Delivery and Installation of FoxPro 5.0.
a. Conversion of World Omni Test Data for Testing of FoxPro 5.0
Program. On or before DECEMBER 22, 1997, BNI shall have completed the conversion
test of the September 30th Month End NAFI data furnished by World Omni and shall
have made any necessary changes or modifications to the FoxPro 5.0 Program in
order that (i) the NAFI/World Omni data is fully integrated, (ii) the FoxPro 5.0
Program reports the same results in all categories and in all CLASS Modules as
the results reported by World Omni for such data for the particular data which
was received by BNI from World Omni and (iii) all of the features and
functionalities of the FoxPro 5.0 Program are fully operational, with only minor
or insignificant failures or defects, with respect to those features which are
to be completed and incorporated into the Licensed Program as of December 22,
1997 as set forth in the BNI Master Schedule (such successful test, the "FoxPro
5.0 Data Conversion Tests"). Pursuant to Section 17(a) of the BNI Agreement,
NAFI shall pay BNI $90.00 per hour per BNI employee, plus normal out-of-pocket
expenses to convert all of the World Omni data. BNI shall xxxx XXXX, in a
detailed billing report, every two weeks for such World Omni conversion hourly
charges and expenses. Notwithstanding anything to the contrary in this Agreement
or otherwise, BNI shall not be responsible for validating the World Omni data
which is being converted by BNI.
b. Installation of Five Modules. On or before DECEMBER 8, 1997, BNI
shall deliver, install and configure on NAFI's hardware in Jacksonville, Florida
the FoxPro 5.0 Program (other than the New Application Processing, Contract
Processing, New Loan Bookings Module and Portfolio Acquisition Bookings Module).
On or before DECEMBER 29, 1997, BNI shall deliver to NAFI accurate and complete
user documentation manuals for each Module that is being delivered by BNI (such
documentation, the "USER DOCUMENTATION MANUALS"). Notwithstanding anything to
the contrary set forth in the BNI Agreement, NAFI shall reimburse BNI for the
reasonable out-of-pocket expenses incurred by BNI in connection with the
installation of the FoxPro 5.0 Program.
c. Installation of Other Modules.
(i) On or before DECEMBER 22, 1997, BNI shall deliver, install and
configure on NAFI's hardware in Jacksonville, Florida an evaluation version of
the New Application Module, the Contract Module and the New Loan Bookings Module
(collectively, the "ORIGINATIONS MODULES") of the FoxPro 5.0 Program.
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(ii) On or before DECEMBER 29, 1997, BNI shall deliver, install and
configure on NAFI's hardware in Jacksonville, Florida the Portfolio Acquisition
Bookings Module.
(iii) On or before JANUARY 8, 1998, BNI shall deliver, install and
configure on NAFI's hardware in Jacksonville, Florida the final version of the
Originations Modules of the FoxPro 5.0 Program plus the SQL Financial Interface
with the converted World Omni data in accordance with Paragraph 5 of this
Agreement. It is agreed that NAFI shall purchase the SQL Financial Software
utilized in the SQL Financial Interface and that BNI shall be entitled to charge
$90.00 per hour plus normal out-of-pocket expenses incurred in programming such
SQL Financial Interface.
(iv) After the FoxPro 5.0 Program is fully operational, BNI
acknowledges that NAFI, at NAFI's sole cost, intends to install a copy of the
Licensed Program in NAFI's offices in Boca Raton, Florida. The installation in
NAFI's Boca Raton offices will include fully operational copies of all programs,
databases and files being installed in the Jacksonville offices of NAFI,
together with software or methodology that will synchronize data between the
Jacksonville and Boca Raton offices of NAFI in order that the business
operations of NAFI in Jacksonville and Boca Raton can be accomplished in a
reasonable and timely manner in accordance with Acceptable Response Times.
(v) In the event NAFI requests the assistance of BNI with the
installation of the Licensed Program in NAFI's offices in Boca Raton, Florida,
BNI shall be entitled to charge $90.00 per hour plus normal out-of-pocket
expenses incurred with providing such assistance to NAFI. Contemporaneous with
such delivery, BNI shall deliver to NAFI the User Documentation Manuals for each
Module that is being delivered by BNI. Notwithstanding anything to the contrary
set forth in the BNI Agreement, NAFI shall reimburse BNI for the reasonable
out-of-pocket expenses incurred by BNI in connection with the installation of
the FoxPro 5.0 Program.
d. Delivery of FoxPro 5.0 Package. In connection with such installation
set forth in Paragraph 4.b. and c. of this Agreement, BNI shall deliver to NAFI
two complete copies of the FoxPro 5.0 Program, in a CD ROM format, together with
copies of the latest source program code for the NAFI version of the Licensed
Program, programming documentation and user documentation for each of eight
CLASS Modules plus the SQL Financial Interface (collectively, the "FoxPro 5.0
Package"). Upon receipt of such two copies, NAFI shall deliver one copy of the
FoxPro 5.0 Package to Pinnacle for its use pursuant to the BNI Agreement.
5. Prior to Implementation/Training Period - Testing of FoxPro
5.0 Program.
a. Commencement of Initial 5 Working Day Time Period. After delivery,
installation and configuration of the FoxPro 5.0 Program to NAFI, Section 17(b)
of the BNI Agreement contemplates that the Licensed Program would be tested by
NAFI for successive 5
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consecutive working day time periods before the commencement of the
implementation/training period. The initial 5 consecutive working day time
period described in Section 17(b) of the BNI Agreement shall not commence until
the latest to occur of (1) the delivery, installation and configuration of the
final version of all eight Modules of the FoxPro 5.0 Program (which incorporates
each of the projects described in ID 24 through and including ID 158 in the BNI
Master Schedule) and the User Documentation Manuals by BNI in NAFI's offices in
Jacksonville, (2) the conversion by BNI of the World Omni data, with delivery to
NAFI and downloaded with the Licensed Program, and (3) the notification by NAFI
to BNI in writing that the converted World Omni data is in a format (and has
been validated by NAFI) such that NAFI is able to utilize such converted data to
test the FoxPro 5.0 Program. Notwithstanding anything to the contrary in this
Agreement or otherwise, BNI shall not be responsible for validating the World
Omni data which is being converted by BNI.
b. Testing by NAFI - Cure by BNI. During such successive 5 consecutive
working day time periods, NAFI intends to beta test and stress test the FoxPro
5.0 Program using actual NAFI/World Omni generated data of NAFI's open and
closed accounts until NAFI determines that each of the CLASS Modules of the
FoxPro 5.0 Program is effectively functional, without failure, in all respects,
is running the day to day operations of NAFI servicing all of NAFI's open and
closed accounts (both the existing loan portfolio covered by the previous
securitizations and the new loans which are being daily funded by NAFI) and is
meeting the Acceptable Response Times. BNI shall promptly correct any
discrepancies of the FoxPro 5.0 Program that are discovered during such
successive 5 consecutive working day testing process. During this time period,
among other aspects of the testing process, NAFI intends to run "parallel
servicing" tests of a portion of NAFI's open and closed accounts with the
servicing then currently being conducted by World Omni of the NAFI data.
Notwithstanding anything to the contrary set forth in the BNI Agreement, NAFI
shall reimburse BNI for the reasonable out-of-pocket expenses incurred by BNI in
connection with the testing of the FoxPro 5.0 Program.
c. Corrections After Implementation/Training Period Commences. As
contemplated by Section 17(b) of the BNI Agreement, after the completion of five
consecutive working days without the occurrence of any discrepancies in the
Licensed Program, then, the implementation/training period shall commence. After
the commencement of the implementation/training period, in the event a
discrepancy in the Licensed Program results solely from the improper use by NAFI
personnel of the Licensed Program in a manner which does not conform to the User
Documentation Manuals to be provided by BNI pursuant to Section 4.b and c. of
this Agreement, then, BNI shall be entitled to charge NAFI $90.00 per hour plus
normal out-of-pocket expenses in connection with BNI's work in correcting such
discrepancy or error. NAFI shall not be required to pay for BNI's time to cure a
discrepancy if such discrepancy constitutes (1) a BNI programming error, (2) a
BNI internal system design error or (3) some other type of discrepancy which is
not solely caused by the Improper Use (hereinafter defined) by NAFI personnel of
the Licensed Program. As used herein, the term "IMPROPER USE" shall mean the
tampering or modification by NAFI of software programming data or program source
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codes which, in each case, are not intended to be accessed or modified by NAFI
as set forth in the system documentation for the Licensed Program to be
delivered by BNI.
d. Training by BNI. Notwithstanding the terms of Section 17(c) of the
BNI Agreement, in the event BNI trains any NAFI employees using the User
Documentation Manuals with respect to the use of the Licensed Program after the
installation of the Licensed Program in NAFI's offices in Jacksonville, Florida
and in Boca Raton, Florida and prior to the commencement of the
implementation/training period, then, BNI shall be entitled to charge NAFI a fee
of $90.00 per hour per BNI employee for each hour of training conducted by BNI
plus normal out-of-pocket expenses. Following the commencement of the
implementation/training period, BNI will train NAFI's employees in NAFI's
offices in Boca Raton and in Jacksonville with respect to the use of the
Licensed Program pursuant to the terms of the Implementation Plan and shall
deliver the User Documentation for the Licensed Program as contemplated by
Section 17(c) of the BNI Agreement.
e. Delivery of Corrected FoxPro 5.0 Package. At the completion of such
successive 5 consecutive working day time periods, BNI shall deliver to NAFI two
complete copies, in a CD ROM format, of the then current version of the FoxPro
5.0 Package, including, any changes and modifications to the latest source
program code for the NAFI version of such program following such testing. Upon
receipt of such copies, NAFI shall forward one copy to Pinnacle for its use
pursuant to the BNI Agreement.
6. World Omni Conversion Using FoxPro 5.0 Program.
a. Election for BNI to Convert World Omni Data. As contemplated by
Section 17 of the BNI Agreement, Pinnacle and NAFI have timely notified BNI that
NAFI has elected to accomplish the conversion from the World Omni servicing
system. BNI agrees that such conversion from the World Omni servicing system
shall be included in the determination of the "Production Environment Date" (as
such term is used in the BNI Agreement) with respect to the Fox/SQL Program.
b. World Omni Data Conversion. BNI shall complete the entire World Omni
data conversions of the September 30th Month End NAFI data on or before DECEMBER
22, 1997 as contemplated by Paragraph 4.a.. NAFI reserves the right to conduct,
with the assistance of BNI, a complete "dry run" test conversion of all of the
World Omni data (utilizing in such test the data designated by NAFI at such
time) using the Licensed Program on or before FEBRUARY 5, 1998 (provided that
BNI shall be entitled to charge NAFI $90.00 per hour plus normal out-of-pocket
expenses in connection with BNI's work in such test conversion). Following the
commencement of the implementation/training period, BNI will work with NAFI
personnel to finally complete the conversion of all of NAFI's open and closed
accounts which are currently being serviced by World Omni to the FoxPro 5.0
Program, which conversion and complete "cut over" from World
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Omni to NAFI will be finally completed on or before MARCH 1, 1998 (the date that
such conversion is finally completed, the "World Omni Cut Over Date"). As
contemplated by Section 17(a) of the BNI Agreement, BNI shall charge NAFI $90.00
per hour plus normal out-of-pocket expenses incurred by BNI in connection with
the conversion of the World Omni data.
7. Delivery and Testing of Fox/SQL Program.
a. Performance Response Time Standard of Fox/SQL Program. BNI
acknowledges that the manner by which the FoxPro 5.0 Program is converted into
the Fox/SQL Program will affect the ability of BNI and NAFI to achieve the
performance and response time expectations from the Licensed Program and to
economically make changes, enhancements and alterations to the Licensed Program
from time to time in the future. Accordingly, BNI represents and warrants to
Pinnacle and NAFI that the Fox/SQL Program, when completed by BNI and delivered,
installed and configured in accordance with the time schedules set forth in this
Agreement, shall satisfy the Acceptable Response Times. BNI agrees to permit
NAFI and NAFI's project manager to participate in, and review, the Fox/SQL
conversion project at BNI's offices during BNI's business hours as such project
progresses.
b. Delivery and Testing of Fox/SQL Program. At BNI's sole cost and
expense, (except for the payment by NAFI of the license fee pursuant to Section
17(a) of the BNI Agreement), BNI covenants to modify the entire FoxPro 5.0
Program (including all eight CLASS Modules plus the SQL Financial Interface)
into the Fox/SQL Language and to deliver, install and configure on NAFI's
hardware in Jacksonville, Florida such converted and rewritten Fox/SQL Program
on or before JULY 31, 1998. In connection with such installation, BNI shall also
install and configure on NAFI's hardware the Microsoft SQL Server 6.5 Relational
Database (which database shall be purchased by NAFI at its sole cost and
expense) to the extent such software program is not resident with, or included
in, the delivery and installation of the Fox/SQL Program.
c. Testing by NAFI of Fox/SQL Program - Cure by BNI. After delivery,
installation and configuration of the Fox/SQL Program to NAFI's offices in
Jacksonville, NAFI shall test the Fox/SQL Program and BNI shall perform BNI's
obligations with respect to the Fox/SQL Program in the same manner and pursuant
to the same time periods as set forth in Paragraph 5 a., b., c., d. and e of
this Agreement with respect to the FoxPro 5.0 Program. The parties contemplate
that such testing for the Fox/SQL Program will occur between AUGUST 1, 1998 AND
AUGUST 31, 1998 and that any necessary changes to the Fox/SQL Program as
contemplated in Paragraph 5.c. (for the Fox/SQL Program) will be completed on or
before AUGUST 31, 1998.
d. Conversion of Fox Pro 5.0 Data to Fox/SQL Data for Testing of
Fox/SQL Program. At BNI's sole cost and expense (except for the payment by NAFI
of the license fee pursuant to Section 17(a) of the BNI Agreement and except for
the reimbursement by NAFI of normal out of pocket expenses incurred by BNI), BNI
covenants to convert and load into NAFI's database all of NAFI's data which will
then be residing in the FoxPro 5.0 database after the World Omni Cut Over Date
into the Microsoft SQL Server 6.5 Relational Database on or before
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SEPTEMBER 1, 1998 for the purpose of testing the Fox/SQL Program prior to the
conversion of all of the NAFI data from the Fox Pro 5.0 Program to the Fox/SQL
Program. NAFI reserves the right to conduct, with the assistance of BNI, a
complete "dry run" test conversion of all of the NAFI data from using the Fox
Pro 5.0 Licensed Program to using the Fox/SQL Program on or before SEPTEMBER 1,
1998 (provided that BNI shall be entitled to charge NAFI $90.00 per hour plus
normal out-of-pocket expenses in connection with BNI's work in such test
conversion).
e. Delivery of Fox/SQL Package. In connection with such installation,
BNI shall deliver to NAFI two complete copies of the Fox/SQL Program, in a CD
ROM format, together with copies of the latest source program code for the NAFI
version of the Licensed Program, programming documentation and user
documentation for each of the CLASS Modules (collectively, the "Fox/SQL
Package"). Upon receipt of such two copies, NAFI shall deliver one copy of the
Fox/SQL Package to Pinnacle for its use pursuant to the BNI Agreement. At the
completion of such testing, BNI shall deliver to NAFI two complete copies, in a
CD ROM format, of the then current version of Fox/SQL Package, including, any
changes and modifications to the latest source program code for the NAFI version
of such program following such testing. Upon receipt of such copies, NAFI shall
forward one copy to Pinnacle for its use pursuant to the BNI Agreement.
8. NAFI Conversion From Using FoxPro 5.0 Program to Using Fox/SQL
Program. Following the completion of the testing of the Fox/SQL Program
contemplated by Paragraph 7 of this Agreement, BNI will work with NAFI personnel
to convert all of NAFI's open and closed accounts which will then be serviced by
NAFI using the FoxPro 5.0 Program to the Fox/SQL Program, which conversion and
complete "cut over" from FoxPro 5.0 Program to Fox/SQL Program will be finally
completed on or before SEPTEMBER 1, 1998 (the "Fox/SQL Cut Over Date"). The
"Production Environment Date" shall not occur until after the occurrence of the
Fox/SQL Cut Over Date.
9. Customer Satisfaction Guarantee/Obligations of BNI. All references
to the "Production Environment Date" in the BNI Agreement, as amended hereby,
shall constitute a reference to the Fox/SQL Program (and not to the FoxPro 5.0
Program), provided however that the parties agree that the "Production
Environment Date" for the Fox/SQL Program shall be determined based upon the
same needs and product design designated by NAFI for the FoxPro 5.0 Program in
December of 1997, except that NAFI's portfolio will contain a greater number of
open and closed accounts when the Fox/SQL Program is operational. Each of the
representations, warranties and covenants of BNI which are set forth in the BNI
Agreement with respect to the Licensed Program shall apply, with equal dignity
in all respects, to the FoxPro 5.0 Program and the Fox/SQL Program and each
reference in the BNI Agreement and the NAFI SubLicense to the "Licensed Program"
shall constitute a collective reference to the FoxPro 5.0 Program and the
Fox/SQL Program.
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10. License Fee - BNI Master Schedule.
a. License Fee and Amount Remaining Unpaid. The original license fee
under the BNI Agreement was $750,000. BNI acknowledges receipt from NAFI under
the BNI Agreement and the NAFI Sublicense of the sum of $440,000 as partial
payment of such license fee. As of the date hereof, $310,000 of the license fee
as set forth in Section 17 of the BNI Agreement remains unpaid by Pinnacle and
NAFI. The parties acknowledge that, pursuant to the terms of the BNI Agreement,
no additional payments of the license fee are payable to BNI prior to the
delivery and installation of the Fox/SQL Program by BNI. However, as an
accommodation to BNI, NAFI is willing to advance certain funds to BNI on a
periodic basis in payment of the unpaid license fee prior to the delivery and
installation of the Fox/SQL Program subject to the terms and conditions of this
Paragraph 10.
b. Payments by NAFI. Upon the execution and delivery by BNI, Pinnacle
and NAFI of this Agreement, NAFI shall advance to BNI the sum of $125,000, as a
partial payment of the unpaid license fee. Commencing on Friday, JANUARY 2,
1998, NAFI shall pay to BNI the sum of $12,500 via wire transfer as a partial
payment of the unpaid license fee. Provided that NAFI determines, in NAFI's sole
and absolute discretion, that (1) BNI is performing BNI's obligations under this
Agreement for the prior calendar week through and including the payment date in
question in accordance with the terms and time schedule set forth in this
Agreement, the Implementation Plan, the BNI Master Schedule, and the Weekly BNI
Reports and (2) BNI is devoting the time and resources necessary to perform
BNI's obligations under this Agreement, then, NAFI shall pay to BNI via wire
transfer as a partial advance of the unpaid license fee in the amount of $12,500
on each of FRIDAY thereafter until $250,000 shall have been paid to BNI by NAFI
and applied against the unpaid license fee. In no event shall NAFI be obligated
to make any payments to BNI of the unpaid license fee in the event NAFI
determines, in NAFI's sole and absolute discretion, that the conditions to each
advance have not been satisfied by BNI. No payment by NAFI to BNI shall
constitute a waiver or release of any duty, responsibility or breach by BNI
under the BNI Agreement, as amended hereby.
c. Payment of $60,000. The final $60,000 of the unpaid license fee
shall be paid by NAFI to BNI on the date that the Production Environment Date
occurs with respect to the Fox/SQL Program. After such Production Environment
Date, NAFI and Pinnacle shall return to BNI their respective CD ROM copies of
the Fox Pro 5.0 Program which were received from BNI.
11. Successors and Assigns/Counterparts. The terms, provisions,
covenants and conditions hereof shall be binding upon the successors and assigns
of each party hereto and shall inure to the benefit of each party and their
respective successors and assigns. This Agreement may be executed in any number
of counterparts with the same effect as if all parties hereto had signed the
same document.
12. Time is of the Essence. Time is of the essence in the performance
of the obligations of the parties under the BNI Agreement, as amended by this
Agreement.
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13. Modification. This Agreement may only be modified by a written
instrument or instruments executed by the party against which enforcement of the
modification is asserted. Any alleged modification which is not so documented
shall not be effective as to any party.
14. Governing Law. The terms and provisions of this Agreement shall be
governed by the laws of the State of Florida (without regard to the conflict of
laws rules of such State) and to applicable federal law.
15. Entire Agreement. The BNI Agreement, as amended by this Agreement,
and the NAFI SubLicense constitute the entire understanding and agreement
between the parties hereto with respect to the transactions referenced herein
and supersede all prior written or oral understandings and agreements between
the parties hereto with respect thereto. Each party hereto hereby acknowledges
that, except as incorporated in writing in the BNI Agreement, as amended by this
Agreement, or in the NAFI SubLicense, there are not, and were not, and no
persons are or were authorized by such party to make, any representations,
understandings, stipulations, agreements or promises, oral or written, with
respect to the transaction which is the subject of this Agreement. The terms and
provisions of the BNI Agreement shall continue in full force and effect except
as amended by this Agreement. To the extent a conflict exists between the BNI
Agreement and this Agreement, then, the terms and provisions of this Agreement
shall control such conflict for all purposes. Each reference to the BNI
Agreement in the NAFI SubLicense shall hereinafter mean the BNI Agreement, as
amended by this Agreement.
SIGNATURES ON NEXT PAGE
11
EXECUTED AND AGREED as of the date first above written.
PINNACLE PROCESSING SERVICES LLC
By:
Xxxxxx X. Xxxxxx, Member
BNI, Inc.
By:
Xxxxx X. Xxxxxx, President
NATIONAL AUTO FINANCE COMPANY INC.
By:
Name:
Title:
12
