Exhibit 10.23
INSTALLMENT PAYMENT AGREEMENT
Customer: All American
Semiconductor, Inc.
Address: 16115 NW 52nd Ave. Software
Documents: Two
(2) independent
Miami, FL 33014
Schedules each dated
June 30, 2004 to the
Software License and
Services Agreement
dated June 30, 2004.
State of
Incorporation: Delaware
IPA Effective Date: July 28, 2004.
Total Payment Amount: $1,083,875.00 (excludes
IPA Fee Category
any taxes, which are payable directly to
PeopleSoft)
Payment Schedule:
License Fee: $[*]
$216,775.00 is due and payable on
-----------
January 1, 2005.
----------------
"Pre-paid Services"
$216,775.00 is due and payable on
-----------
April 1, 2005.
-------------
Support: $[*]
$216,775.00 is due and payable on
-----------
July 1, 2005.
------------
Training: $[*]
$216,775.00 is due and payable on
-----------
October 1, 2005.
---------------
$216,775.00 is due and payable on
-----------
January 1, 2006.
----------------
Total Fee: $[*]
The Maturity Date of this IPA is January 1, 2006.
This Installment Payment Agreement ("IPA")
is made as of the IPA Effective Date
above between the Customer named above
("Customer") and Siemens Financial
Services, Inc., with its principal place of
business at 170 Wood Avenue South,
Iselin, NJ 08830 ("Payee") with respect to
the following facts: Customer and
PeopleSoft USA, Inc. ("PeopleSoft") have
entered into a Software License and
Services Agreement as of the date above
("License and Services Agreement") in
connection with the licensing of certain
software products ("Licensed
Software"), services, and Pre-paid Services
to Customer as specified on the
Schedule(s) referenced above ("Schedule" or
"Schedules") and attached to the
License and Services Agreement. The License
and Services Agreement, any Addenda,
Amendments, and Schedules attached thereto
and specified above herein are
collectively referred to as the "Software
Documents". Pursuant to the Software
Documents, Customer is obligated to pay
PeopleSoft the Total Fee described above
("Total Fee"), plus all applicable taxes.
Payee and Customer have agreed that
instead of Customer making the payments as
described in the Software Documents,
Payee shall satisfy Customer's payment
obligation of the fees payable to
PeopleSoft in connection with the Software
Documents, and in consideration of
such payment, Customer shall make
installment payments ("Payments") to Payee as
set forth in the above Payment Schedule
("Payment Schedule"). It is hereby
acknowledged that the sum of the Payments
("Total Payment Amount") may exceed
the amount PeopleSoft receives from
Payee.
The parties agree to the following:
1. Promise to Pay. FOR VALUE RECEIVED, at
the time and place, and in the manner,
provided below, Customer promises to pay to
the order of Payee the Payments as
set forth in the above Payment Schedule.
Upon a Payment Default (as defined in
Section S (i)), such overdue Payment shall
bear interest at the rate of 12% per
annum (calculated on the basis of a 360-day
year and actual days elapsed) until
paid. Customer acknowledges and agrees that
Payee, at its sole discretion, upon
thirty (30) days prior written notice to
Customer, may transfer or assign this
IPA to another entity or entities (other
than to PeopleSoft) ("Assignee"), and
from and after the date to do so set forth
in such notice, Customer will make
all Payments then due and unpaid and
thereafter becoming due hereunder to said
Assignee.
2. Payments; Application of Credit. All
Payments due hereunder are payable as
set forth herein. Notwithstanding any other
provisions of this IPA, interest,
fees and the like shall not exceed the
maximum rate permitted by applicable law.
The final Payment under this IPA shall be
due and payable on the
* This confidential portion has been
omitted and filed separately with the
Securities and Exchange Commission.
<PAGE>
Maturity Date as set forth herein. All
applicable sales and/or use taxes shall
be paid directly to PeopleSoft. For
purposes of this paragraph 2, the following
terms shall have the following meanings:
(a) "Credit" shall mean an amount which
(i) is finally determined by a court of
competent jurisdiction to be due
from PeopIeSoft to Customer on account of a
breach or default by PeopleSoft
under the Software Documents, or (ii) is
voluntarily agreed upon by PeopleSoft
as a credit to Customer in settlement of an
alleged breach or default by
PeopIeSoft under the Software Documents,
(b) "IPA Balance" shall mean the
present value of all remaining amounts due
hereunder at the time a Credit is
issued, calculated using the interest rate
implicit in the transaction
contemplated hereby. In the event Customer
becomes entitled to a Credit, such
Credit shall (x) be remitted by PeopleSoft
to Payee for application against, or
satisfaction of, the IPA Balance, and (y)
to the extent it exceeds the IPA
Balance, be remitted by PeopleSoft to
Customer. Any such Credit shall be applied
first to payment of any expenses or fees
due Payee pursuant to paragraph 7 and
the balance shall be applied to payments
due hereunder in inverse order of
maturity. The receipt by Payee of a Credit
which is less than the IPA Balance
shall not relieve the Customer from the
obligation of making the next scheduled
installments of payments due hereunder. The
failure of PeopleSoft to remit any
Credit to Payee shall not excuse or
otherwise affect Customer's obligations to
Payee hereunder.
3. Absolute Obligation. Customer agrees
that it will not assert against Payee or
Assignee any claim or defense that it may
have against PeopleSoft. The Customer
agrees its obligations to pay amounts due
under this IPA to Payee or Assignee
are absolute and unconditional,
non-refundable and non-cancelable, and are not
subject to any defenses, setoffs or
counterclaims that it may have against
PeopleSoft, regardless of whether or not
(i) the Licensed Software performs or
does not perform in accordance with the
Software Documents (ii) PeopleSoft or
Customer has breached any of its warranties
or other covenants under the
Software Documents, (iii) the licenses
granted pursuant to the Software
Documents and/or any maintenance, support,
Pre-paid Services or other services
provided thereunder have been revoked or
otherwise terminated for any reason or
(iv) the License and Services Agreement has
expired or been terminated for any
reason. Upon PeopleSoft's delivery of the
Software to Customer, Customer accepts
such Software for the purposes of this IPA.
Any other specific acceptance
criteria specified in the
