SOFTWARE SERVICES AGREEMENT
EXHIBIT 10.23
This Software Services Agreement (the "Agreement") covers the terms and
conditions under which Fidelity National Financial, Inc. will pay Micro General
Corporation certain monthly payments in consideration for Micro General
Corporation's agreement to provide Fidelity National Financial, Inc. certain
services and for other good and valuable consideration, the receipt and
sufficiency of which Fidelity National Financial, Inc. hereby acknowledges.
The specific monthly payment amount ( the "Payment") and the period over which
the Payments are to be made (the "Transaction") are specified in the table
below. Fidelity National Financial, Inc. agrees to the terms of this Agreement
by signing below.
Term Monthly Payment Amount Payment Commencement Date
---- ---------------------- -------------------------
24 Months $24,688 8/1/00
This Agreement is the complete agreement regarding the Transaction and replaces
any prior oral or written communications between both parties.
By signing below, both parties agree to the terms of this Agreement. There shall
be only one original of this Agreement.
Agreed to: Agreed to:
FIDELITY NATIONAL FINANCIAL, INC. MICRO GENERAL CORP
By: /S/ XXXXXXX X. XXXXX By: /S/ XXXX XXXXXXXXXXX
---------------------------- ----------------------------
Authorized signature Authorized signature
Name: Xxxxxxx X. Xxxxx Name: Xxxx Xxxxxxxxxxx
-------------------------- --------------------------
(type or print) (type or print)
Date: August 21, 2000 Date: August 18, 2000
-------------------------- --------------------------
Page 1 of 3
INSTALLMENT PAYMENT SUPPLEMENT
Date Prepared: 01/17/01
PAGE 1 OF 2
NAME AND ADDRESS OF CUSTOMER INSTALLED AT LOCATION
MICRO GENERAL CORP MICRO GENERAL CORP
0000 X XXXXXXX XXX 0000 X XXXXXXX XXX
XXXXX 000 XXXXX 000
XXXXX XXX, XX 00000-0000 XXXXX XXX, XX 00000-0000
SINGLE EQUIPMENT LOCATION CSO LOCATION ADDRESS
IBM/IPMA CUSTOMER NUMBER
PHOENIX CSO
5796371/5796-494 XX XXX 00000
XXXXXXX, XX 00000-0000
CUSTOMER REFERENCE
CUSTOMER NO: 5796371
IBM CSO LOCATION: PAH
INSTALLMENT PAYMENT
MASTER AGREEMENT NO: PHXAG08
IPMA AMENDMENT NOS:
QUOTE VALIDITY DATE: 01/30/01
REFERENCED QUOTE LETTER NO: Q0221276901
SUPPLEMENT NO: ID0020179
REFERENCED PURCHASE AGREEMENT NO: HQ12291
REFERENCED LICENSE AGREEMENT NO:
REFERENCED TRADE-IN AGREEMENT NO:
ASSOCIATED SUPPLEMENT NO:
IBM PLANT
LOCATION MACHINE ORDER OR PURCHASE PRICE
CUSTOMER OR LPM MES OR OR ONE-TIME
LINE NUMBER TYPE/MODEL SERIAL CHARGES OR
NO. IBM/IPMA* FEATURE NUMBER DESCRIPTION OTHER AMOUNT
------ -------- ---------- --------- ------------------------- ---------------
001 5796371 9994/002 Vendor Sourced Non-IBM SW 120,332.50
5796494
ESTIMATED INSTALLATION
DATE OR INTENDED
CREDIT FINANCING DATE OR
(FROM IBM TRADE-IN EFFECTIVE DATE OF
STATE AND AGREEMENT) AND/OR AMOUNT INTEREST PAYMENT TERM (NUMBER OF ADDITIONAL LICENSE
LOCAL TAXES DOWN PAYMENT FINANCED RATE AMOUNT OPTION PAYMENT PERIODS) PLANNING DATE
----------- ------------------ ---------- -------- -------- ------ ---------------- ----------------------
120,332,50 9.67 3,864.17 T 36 1/31/01
FISCAL YEAR INTEREST TOTAL
PAYMENT PERIOD START DATE SUPPLIER NAME COMMENCEMENT PAYMENT
1. Monthly [X] 01/01 NETWORK CATALYST INC 3,864.17
Annual [ ] Month/Day Supplier Customer no.
2. Other (specify): 6405958
Schedule attached (check): [ ]
TOTAL FROM ALL PAGES:
PURCHASE PRICE OR ONE-TIME
CHARGES OR OTHER AMOUNT $120,332.50
TRADE-IN/CREDIT DOWN PAYMENT
STATE OR LOCAL TAXES
AMOUNT FINANCED $120,332.50
*TAX ON FINANCE CHARGE
(WHEN APPLICABLE THIS TAX IS
PAYABLE WITH FIRST INSTALLMENT)
================================================================================
THE INSTALLMENT PAYMENT MASTER AGREEMENT REFERENCED ABOVE, THIS SUPPLEMENT AND
ANY APPLICABLE ATTACHMENTS OR ADDENDA ARE THE COMPLETE EXCLUSIVE STATEMENT OF
THE AGREEMENT. THESE DOCUMENTS SUPERSEDE ANY PRIOR ORAL OR WRITTEN
COMMUNICATIONS BETWEEN THE PARTIES. BY SIGNING BELOW, BOTH PARTIES AGREE TO THE
TERMS REPRESENTED BY THIS SUPPLEMENT. DELIVERY OF AN EXECUTED COPY OF ANY OF
THESE DOCUMENTS BY FACSIMILE OR OTHER RELIABLE MEANS SHALL BE DEEMED TO BE AS
EFFECTIVE FOR ALL PURPOSES AS DELIVERY OF A MANUALLY EXECUTED COPY. CUSTOMER
ACKNOWLEDGES THAT WE MAY MAINTAIN A COPY OF THESE DOCUMENTS IN ELECTRONIC FORM
AND AGREES THAT COPY REPRODUCED FROM SUCH ELECTRONIC FORM BY ANY OTHER RELIABLE
MEANS (FOR EXAMPLE, PHOTOCOPY, IMAGE OR FACSIMILE) SHALL IN ALL RESPECTS BE
CONSIDERED EQUIVALENT TO AN ORIGINAL.
Accepted by: Initial here
MICRO GENERAL CORP ------------
to request IBM Maintenance
for equipment
By: By: /s/ Xxxx Xxxxxxxxxxx
----------------- ---------------------
Authorized Authorized
Signature Signature
Xxxx Xxxxxxxxxxx
-------------------- ---------------------
Name (Type or Print) Name (Type or Print)
2/01/01
-------------------- ---------------------
Date Date
Supplement Number.ID0020179
OPTION CODES
OPTION I - Transaction for a Machine or a Modification.
OPTION IG - Transaction for a Machine or a Modification
financed with Tax Exempt Interest.
OPTION R - Transaction for a used Machine supplied by
IBM Credit Corporation.
OPTION RG - Transaction for a used Machine supplied by IBM Credit
Corporation financed with Tax Exempt Interest.
OPTION S - Transaction for an IBM one-time charge or a Machine
or a Modification supplied by IBM Credit Corporation.
OPTION S' - Transaction for an IBM one-time charge or a Machine
or a Modification supplied by IBM Credit Corporation
financed with Tax Exempt Interest.
OPTION T - Transaction for a non-IBM one-time charge.
OPTION T' - Transaction for a non-IBM one-time charge financed
with Tax Exempt Interest.
TAX EXEMPT REQUIREMENTS (FOR OPTIONS IG, RG, S' AND T') THE RATES IN THIS
AGREEMENT ARE BASED ON YOUR UNDERLYING DEBT OBLIGATION QUALIFYING TO PAY
INTEREST WHICH IS EXEMPT FROM FEDERAL INCOME TAX UNDER SECTION 103(a) OF THE
INTERNAL REVENUE CODE (Code). Accordingly, you represent that you qualify as a
State or political subdivision of a State for purposes of Section 103(a). You
agree that any misrepresentation of your status under Section 103(a) is an event
of default under this agreement. You further agree to comply promptly with all
information reporting requirements of Code section 149(e) and Treasury
Regulations thereunder. You also agree to file internal Revenue Service Form
8038-G or 8038-GC whichever appropriate, for this transaction. If you do not
file the above IRS form on a timely basis or are unable upon request to
demonstrate that the IRS has determined you are qualified under Section 103(a)
of the Code, then you shall pay us on demand a sum to be determined by us that
will return to us the economic results we would otherwise have received.
PREPAYMENT FEE
The Prepayment Fee is charged to recover administrative expense and changes
in funding cost associated with the early liquidation of a Transaction.
Changes in funding costs will only be incurred if interest rates, based on
the 3-year Treasury Rate averages as published by the Federal Reserve, decline
from the date interest starts to the date of the liquidation. The cost will be
determined using a factor of 2.8 multiplied by the change in the 3-year Treasury
Rates and then multiplied by the remaining Transaction principal. The 2.8 factor
will decrease with the number of months remaining in the original term of the
contract. Administrative expense will be determined using a factor of 2.50%
multiplied by the remaining Transaction principal.
The Prepayment Fee will be the sum of these numbers.
FOR FINANCED MACHINES, MODIFICATIONS, OR ADDITIONS
FOR COMMERCIAL CUSTOMERS LOCATED IN:
1. Ohio, Maryland, Mississippi, Virginia, or West Virginia, you must be a
corporation as defined by the applicable state law;
2. Pennsylvania, you must be a business corporation as defined by
Pennsylvania laws; and
3. Alabama or Wisconsin, the Machines, Modifications, or Additions may
not be purchased for agricultural purposes.
WARRANTY DISCLAIMER:
Any warranties associated with Products or Services chosen by you and
financed by us may be available to you under the terms of any applicable
agreement between you and the provider of such Products or Services.
UNDER THIS AGREEMENT, WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, AS TO ANY
MATTER WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE CAPABILITY OF THE MACHINES
OR PROGRAMS TO CORRECTLY PROCESS, PROVIDE AND/OR RECEIVE DATE DATA WITHIN AND
BETWEEN THE 20TH AND 21ST CENTURIES, AND THE IMPLIED WARRANTIES OF
MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE, AND YOU TAKE THE PRODUCTS
AND/OR SERVICES "AS IS". IN NO EVENT WILL WE HAVE ANY LIABILITY FOR, NOR WILL
YOU HAVE ANY REMEDY UNDER THIS AGREEMENT AGAINST US FOR CONSEQUENTIAL DAMAGES,
ANY LOSS OF PROFITS OR SAVINGS, LOSS OF USE, OR ANY OTHER COMMERCIAL LOSS.
The following amend the Installment Payment Master Agreement referenced on
page 1.
1. Section 1.1 - Definitions - Date of Installation for a Program -
replace item b. with the following: "the second business day after the
Program's standard transit allowance period."
TERMS FOR NON-IBM EQUIPMENT AND FOR EQUIPMENT NOT SOURCED FROM IBM; WHERE
NON-IBM EQUIPMENT AND/OR A SUPPLIER OTHER THAN IBM IS SPECIFIED ON THE FRONT OF
THIS SUPPLEMENT, THESE TERMS APPLY.
2. Section 2.1 - Machines - replace the first sentences with the
following: "We finance charges for Machines you purchase from us or
your supplier."
3. Section 2.2 - Modifications and Additions - replace the first sentence
with the following: "We finance charges for Modifications and
Additions you purchase from IBM, IBM Credit or your supplier."
4. Section 2.3 - Other Charges - add the following to the end of the
section: "We may agree to finance one-time charges from your
supplier."
5. Section 2.4 - Discounts, Allowances and Adjustments - replace the
first sentence with the following "The purchase price or one-time
charge we finance is the same amount that you would have paid us or
your supplier after all discounts and adjustments."
6. Section 3.2 - Interest Commencement - replace the entire section with
the following: "Unless otherwise specified in the Supplement, Interest
starts on (for OPTIONS IG, RG, S' and T' transactions, interest starts
on the first day of the month following) the acceptance date you
indicate on a certificate of acceptance executed by you."
IBM LOGO
CREDIT CORPORATION
CERTIFICATE OF ACCEPTANCE
PAGE 1 OF 1
AGREEMENT NUMBER: PHXAG08
Customer Number:5796371
Name and Address
MICRO GENERAL CORP
0000 X XXXXXXX XXX
XXXXX 000
XXXXX XXX, XX 00000-0000
BRANCH OFFICE ADDRESS
XX XXX 00000
XXXXXXX, XX 00000-0000
Location Leased/Financed Item Plant Order Contract Serial No. Manufacturer's
Customer Type Model or MES No. Description Serial No.
-------------------------------------------------------------------------------
5796371 9994 002
Vendor Sourced
Non-IBM SW
-------------------------------------------------------------------------------
Supplier Invoice Information (Invoices Must be Attached)
-------------------------------------------------------------------------------
Supplier Invoice Number Invoice Date Invoice Amount
1. NETWORK CATALYST 0015596 12/05/00 37180.00
2. NETWORK CATALYST 001598 12/05/00 61300.00
3. NETWORK CATALYST 0015643 12/11/00 21852.50
4.
5.
6.
-------------------------------------------------------------------------------
TOTAL 120,332.50
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
THE UNDERSIGNED ("CUSTOMER") IS A LESSEE OR CUSTOMER UNDER THE MASTER LEASE OR
INSTALLMENT PAYMENT MASTER AGREEMENT REFERENCED ABOVE ("MASTER AGREEMENT") WITH
EITHER IBM CREDIT CORPORATION OR INTERNATIONAL BUSINESS MACHINES CORPORATION (IN
EITHER CASE, "IBM"). CUSTOMER REPRESENTS AND CERTIFIES THAT THE ITEMS LISTED
ABOVE OR ITEMIZED ON AN ATTACHMENT TO THIS CERTIFICATE OF ACCEPTANCE ("ACCEPTED
ITEMS") HAVE BEEN ACCEPTED BY CUSTOMER ON THE ACCEPTANCE DATE INDICATED BELOW
AND LABELS, IF SUPPLIED, HAVE BEEN AFFIXED TO EACH ACCEPTED ITEM OF EQUIPMENT.
CUSTOMER AUTHORIZES IBM TO PAY CUSTOMER'S SUPPLIER FOR THE ACCEPTED ITEMS. IF
CUSTOMER IS SUBJECT TO PROCUREMENT OR APPROPRIATION LAWS OR REGULATIONS,
CUSTOMER REPRESENTS AND CERTIFIES THAT IBM'S DIRECT PAYMENT TO CUSTOMER'S
SUPPLIER FOR THE INVOICE AMOUNTS INDICATED ON THIS CERTIFICATE OF ACCEPTANCE
WILL BE IN FULL COMPLIANCE WITH ANY AND ALL RELEVANT STATE LAWS AND REGULATIONS
OR ANY OTHER LEGAL REQUIREMENTS RELATING TO CUSTOMER'S PROCUREMENT OR
APPROPRIATION ACTIVITIES.
IN ORDER FOR THIS CERTIFICATE OF ACCEPTANCE TO BE EFFECTIVE, CUSTOMER MUST
PROVIDE IBM WITH SERIAL NUMBERS FOR EACH ACCEPTED ITEM OF EQUIPMENT. CUSTOMER
AUTHORIZES IBM TO COMPLETE OR UPDATE ANY EQUIPMENT IDENTIFICATION INFORMATION ON
THE REFERENCED SUPPLEMENT TO THE MASTER AGREEMENT FOR ANY ACCEPTED ITEM OF
EQUIPMENT WITHOUT FURTHER ACTION OR CONSENT BY CUSTOMER.
DELIVERY OF AN EXECUTED COPY OF THIS CERTIFICATE OF ACCEPTANCE BY FACSIMILE OR
ANY OTHER RELIABLE MEANS SHALL BE DEEMED TO BE AS EFFECTIVE FOR ALL PURPOSES AS
DELIVERY OF A MANUALLY EXECUTED COPY. CUSTOMER UNDERSTANDS THAT IBM MAY MAINTAIN
A COPY OF THIS CERTIFICATE IN ELECTRONIC FORM AND AGREES THAT A COPY PRODUCED
FROM SUCH ELECTRONIC FORM OR BY ANY OTHER RELIABLE MEANS (FOR EXAMPLE,
PHOTOCOPY, IMAGE OR FACSIMILE) SHALL IN ALL RESPECTS BE CONSIDERED EQUIVALENT TO
AN ORIGINAL.
ACCEPTED BY:
MICRO GENERAL CORP
-------------------
CUSTOMER
ACCEPTANCE DATE: 2/1/01 BY: /s/ XXXX XXXXXXXXXXX
-------------------- ----------------------
(MUST BE COMPLETED) Authorized Signature
Xxxx Xxxxxxxxxxx
----------------------
Name (type or Print)
PLEASE RETURN TO BRANCH OFFICE ADDRESS LISTED ABOVE
North Castle Drive
IBM CREDIT CORPORATION Xxxxxx, XX 00000-0000
914/499-1900
xxx.xxxxxxxxx.xxx.xxx
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ADDENDUM TO INSTALLMENT PAYMENT SUPPLEMENT
Installment Payment
Enterprise No. 0201500 Master Agreement No.______________
Customer No. 5796371 Supplement No.______________
We and
MICRO GENERAL CORP (You) agree that for the purposes of the referenced
Supplement only, the Installment Payment Master Agreement between the parties is
hereby modified as follows:
Section 4.1 Events of Default - in item 6 delete "or" and in item 7
delete "." at the end of the sentence.
- add items 8, and 9 which reads as follows:
"(8) Fidelity National Financial Inc. ("Fidelity") is in default of the
terms and conditions of the
Software Services Agreement number SSA105
between You and Fidelity (the "SSA"), the original of which is attached
to this Addendum, after the expiration of any applicable cure periods;
or
(9) the SSA, or any term or condition thereof, shall be deemed
unenforceable, or Fidelity shall deny or contest the enforceability of
the SSA, or any term or condition thereof.
Section 4.2 Remedies - add item 6. which reads as follows: "exercise any
and a11 of our rights as a secured party with respect to the SSA."
Section 4.3 Security Interest - at the beginning of the Section, add the
following new sentence:
"To secure the full and punctual payment and performance of Your
obligations to Us hereunder, whether now owing or hereafter arising,
when due, You hereby grant Us a security interest in all of Your right,
title and interest in and to the SSA, whether now owned or hereafter
acquired or existing, including, without limitation, to the Payments (as
defined in the SSA), and in all substitutions, replacements and proceeds
of the foregoing (collectively, the "Collateral"). You represent and
warrant to Us that there is only one original of the SSA. You agree to
provide us with the original SSA along with this Addendum. Once all of
Your obligations to Us under this Agreement have been satisfied, we
agree to return to You the SSA. You further represent and
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NO CHANGES TO THIS ADDENDUM ARE AUTHORIZED
Dec 15, 2000 1 Addendum No. Q02190848-02
IBM Credit Corporation
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warrant to Us that the security interest granted to Us in the SSA
constitutes a valid and enforceable first priority perfected security
interest in all of Your right, title and interest in the SSA and that,
except for the security interest granted hereunder, You own all of Your
right, title and interest is the SSA free and clear of any lien,
security interest or encumbrance in favor of any third party." In the
second paragraph in line three after "covering, Machines, Modification,"
insert "the SSA,".
Section 4.6 General- at the end of the Section, add the following new
paragraphs:
"You agree that you shall not do any of the following without the prior
written consent of IBM Credit, and that any attempt to do so shall be
void and of no force or affect against IBM Credit:
(i) make, or accept, any payment or pre-payment of the payments
under the SSA other than as specified in the SSA;
(ii) amend, supplement of otherwise modify the terse of the SSA or
grant or accept any waiver of compliance with, or release of any
of, Fidelity's obligations under the;
In addition to any [other remedies available to Us, and without limiting
any such remedies, You agree that upon notice from Us that You are in
default of Your obligations to Us, We may direct Fidelity to make all
payments under the SSA directly to Us.
Prepared by: C XXXXXXX
Accepted by:
IBM Credit Corporation
MICRO GENERAL CORP
by by /S/ XXXX XXXXXXXXXXX
---------------------------- ---------------------------
Authorized Signature Authorized Signature
Xxxx Xxxxxxxxxxx 2/1/01
------------------------------- ------------------------------
Name (Type or Print) Date Name (Type or Print) Date
A190848B/BP2
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NO CHANGES TO THIS ADDENDUM ARE AUTHORIZED
Dec 15, 2000 2 Addendum No. Q02190848-02
