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 500 West
Monroe Street, Chicago, Illinois 60661,
Fax number 312-463-2393, 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 120 Old Post
Road, Rye, NY 10580, Fax number (914)
921-1735, Attn.: Raymond Kunzmann, 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) bill 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) bill 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
rece
