SOFTWARE LICENSE FINANCING ADDENDUM

Transcription

1 SOFTWARE LICENSE FINANCING ADDENDUM dated as of : May, 2004 between : Get Well Hospital ( Customer ) located at : and : SoftwareVendor, Inc. ( SoftwareVendor ) located at : and : Pantheon Capital LLC, its successors and assigns ( Lessor ) located at : Crossroads Corporate Center, Suite 410, Mahwah, NJ Background (a) This is an Addendum to the Health Care Software Agreement dated between SoftwareVendor and Customer (the Software Agreement ). Capitalized words and phrases herein shall have the meanings defined in the Software Agreement. (b) Lessor and Customer intend to enter into Equipment Schedule No. _ under Master Lease No. dated (hereinafter the Lease ) pursuant to which Lessor will provide financing inter alia for the license and implementation fees payable by Customer to SoftwareVendor from time to time with respect to Licensed Software under the Software Agreement. (c) In consideration of Lessor agreeing to enter into the Lease with Customer, SoftwareVendor and Customer have respectively agreed pursuant to this Addendum to furnish Lessor with certain undertakings and rights with respect to the Agreement, the Licensed Software, and related matters, so as to more fully secure and protect Lessor if Customer defaults under the Lease. (d) As used herein Customer shall have the meaning defined above. However, if Lessor terminates the sublicense granted herein following a default by Customer under the Lease or under this Addendum, and Lessor pursuant to the provisions hereof grants rights to a third party sublicensee or assignee, then, upon the granting of such rights, Customer shall mean such third party. 2. Assignment of Rights; Grant of Security Interest; Sublicense (a) To secure the due and timely performance and payment by Customer of all its obligations under the Lease, Customer hereby assigns and transfers to Lessor all its rights under the Software Agreement, but none of its obligations thereunder except the obligation to pay license and implementation fees to SoftwareVendor as and when such fees become due under the Software Agreement; provided that Lessor shall have no obligation to make any payment to SoftwareVendor if Customer is in default of any of its obligations under the Lease or an Event of Default thereunder has occurred, nor shall Lessor be obliged to make any such payment unless it has first been authorized to do so by Customer pursuant to a Certificate of Acceptance executed by Customer in terms of the Lease. Customer agrees that, despite the foregoing, it remains solely liable to SoftwareVendor for payment to SoftwareVendor of all license, support, maintenance, implementation and other fees due under the Software Agreement. If Customer fails or refuses to execute a Certificate of Acceptance in the form attached to the Lease for a line item of Licensed Software within ten (10) days of the date of Software Delivery as defined in the Software Agreement, such failure or refusal shall constitute an Event of Default under the Lease unless Customer s failure to execute such Certificate of Acceptance occurred in good faith in connection with an amount claimed by SoftwareVendor but disputed in good faith by Customer as contemplated under the Software Agreement. The assignment and transfer hereunder of all of Customer s rights to Lessor shall include but not be limited to all of Customer s rights to a nonexclusive, perpetual license to use the Licensed Software. SoftwareVendor hereby consents to such assignment and transfer, and consents to Lessor simultaneously granting a sub-license to L:\309-Legal Forum\2004\Janet\Soft Cost 1.DOC Page 1 of 4

2 Customer of the right to use the Licensed Software, as more fully described in subsection (b) of this section 2. (b) Notwithstanding the assignment and transfer referred to in subsection (a) of this section 2, for so long as Customer is not in default of any of its obligations under the Lease or the Software Agreement: (i) Lessor hereby grants to Customer a sublicense of all Lessor s assigned rights under the Software Agreement upon the same terms and conditions as contained therein, including but not limited to the non-exclusive right to use the Licensed Software in accordance with the provisions of the Software Agreement, except that Lessor has not assumed, and does not and shall not have, any obligations to Customer thereunder, all of which obligations shall continue to be discharged by SoftwareVendor, other than that Lessor warrants that Lessor shall not disturb Customer s rights under the Software Agreement and Customer shall enjoy the benefit of, and the right to enforce, all or any of the rights therein directly against SoftwareVendor, except to the extent such rights may be limited or amended by the terms of this Addendum; and (ii) SoftwareVendor shall comply with and discharge all its obligations under the Software Agreement directly to Customer as if Customer remained the direct licensee, except as may otherwise be required pursuant to the terms of this Addendum. 3. Lessor s Rights and Remedies; Non-competition (a) SoftwareVendor, Customer and Lessor each hereby expressly agree and hereby record that the purpose and intent of the remedies contained herein is to ensure that in the event of a default by Customer under the Lease, including Customer s bankruptcy, Lessor shall be afforded every lawful opportunity, with the full cooperation of, and without competition from, SoftwareVendor, to recover any remaining amount due to Lessor under the Lease, by exclusively controlling for Lessor s exclusive financial benefit, the termination, reinstatement, remarketing, sublicensing, assigning or other disposition, whether in the context of Customer s bankruptcy or otherwise, of the rights under the Software Agreement at the health care facility or facilities at which such use was permitted or contemplated in terms of the Software Agreement (hereinafter the Permitted Facilities ). Therefore, if Customer breaches any of its obligations under the Lease or if an Event of Default thereunder has occurred, and not cured as provided in such Lease, including but not limited to an Event of Default involving the bankruptcy of the Customer: (i) Lessor shall have the exclusive right, notwithstanding any provision of the Software Agreement to the contrary, upon written notice to Customer, with a copy to SoftwareVendor, to terminate Customer s rights to receive any benefits or services from SoftwareVendor under the Software Agreement, including termination of the right to use the Licensed Software or implementation, maintenance or support services thereunder, and Customer and SoftwareVendor hereby expressly consent thereto. Regardless of the inability of the Customer to operate without the Licensed Software such termination may in Lessor s absolute discretion be in whole or in part, permanent or temporary, absolute or conditional, and Customer and SoftwareVendor shall upon receipt of a copy of such written notice from Lessor promptly cooperate with each other and Lessor and take such steps as are reasonably required by Lessor to cause Customer to cease using the Licensed Software or receiving other benefits under the Software Agreement, in accordance with the terms of Lessor s written notice and, if Lessor s notice so requests, to de-install and de-activate the Licensed Software from Customer s computers and computer network, and to deliver the physical, optical and electronic embodiment of the Licensed Software to Lessor, together with all copies thereof and any associated documentation and related source code (to the extent such code was required to be furnished by SoftwareVendor pursuant to the Software Agreement). (ii) Lessor shall, notwithstanding the provisions of Article I C of the Software Agreement, have the exclusive right with respect to the Permitted Facilities, (1) to remarket the rights available pursuant to the Software Agreement, including but not limited to the right of use of the Licensed Software at the Permitted Facilities, to a third party and to give effect L:\309-Legal Forum\2004\Janet\Soft Cost 1.DOC Page 2 of 4

3 thereto by assigning and transferring to such third party the rights which were assigned and transferred to Lessor pursuant to Section 2(a) above, or by granting such third party a sublicense therefor, upon such financial terms as Lessor and such third party may agree, or (2) to permit the reinstatement of Customer s rights, either in its capacity as a debtor in possession in bankruptcy, or through any representative or trustee of Customer in bankruptcy, or (3) to take such other or additional steps as Lessor may take in order to obtain the financial benefit of and proceeds from the disposition or sublicensing of the rights provided in the Software Agreement. Customer and SoftwareVendor each hereby consent, to the extent such consent may be required by law, to the exercise by Lessor of all or any of the remedies contemplated herein. (iii) SoftwareVendor agrees that, subject to Customer (following a reinstatement) or any successor licensee or sub-licensee agreeing to pay SoftwareVendor Service Fees and other amounts, if any, at least equal to the amounts payable under the Software Agreement, SoftwareVendor shall be obliged to resume maintenance and support services (including the periodic upgrade of the Licensed Software) in support of the Licensed Software substantially equivalent to the services which would have been provided under the Software Agreement in the normal course. (b) SoftwareVendor hereby agrees that for so long as the amount of any claim due to Lessor under the Lease remains unpaid, SoftwareVendor shall not without Lessor s prior written consent agree to license or supply to any person or entity, including but not limited to Customer or any successor of Customer, or participate in or facilitate the supply or licensing, directly or indirectly, of software which is to be used at the Permitted Facilities partially or wholly in place of the Licensed Software to perform the same or a substantially similar function to the function which any of the Licensed Software was intended to perform pursuant to the Software Agreement, nor shall SoftwareVendor furnish any services to any person or entity which supplies or licenses such software at the Permitted Facilities. Lessor shall be obligated from time to time upon request from SoftwareVendor to furnish SoftwareVendor a written statement describing the amount remaining to be paid to Lessor under the Lease. SoftwareVendor further agrees not to amend, modify or terminate the Software Agreement without the prior written consent of Lessor. (c) SoftwareVendor and Customer hereby agree to do all things reasonably required by Lessor, including but not limited to the execution of any financing statements or other documents, to record and perfect Lessor s security interest in, and the assignment and transfer to or by Lessor of, its rights under the Software Agreement, including the execution of such documents and performance of such acts as may be necessary or advisable for the practical realization of and to give effect to Lessor s remedies hereunder, or with respect to the Licensed Software. 4. Title Despite anything herein to the contrary, Customer and Lessor agree that title to the intellectual property in the Licensed Software remains in and with SoftwareVendor at all times and in all forms. 5. Escrow of Licensed Software. Escrow. Pursuant to the Intellectual Property Licenses in Bankruptcy Act, 11 U.S.C. 365(n), SoftwareVendor shall place in escrow for the benefit of Customer and Lessor, for the duration of the term of the Software Agreement, the source code and related documentation for the Licensed Software, including, but not limited to the names and addresses of the programmers and technical support personnel working on the Licensed Software (the "Deposit") with DSI Technology Escrow, Inc. ( DSI ), as escrow agent. SoftwareVendor shall place the Deposit and all modifications and enhancements to the Deposit that have been provided by SoftwareVendor to Customer and Lessor, with DSI and shall notify Customer and Lessor that such Deposit has L:\309-Legal Forum\2004\Janet\Soft Cost 1.DOC Page 3 of 4

4 been made. In addition, SoftwareVendor shall, from time to time promptly deposit with DSI, upon their release to its customers, all updates, maintenance changes, releases, additions, modifications and enhancements to the Deposit in source code form and shall notify Customer and Lessor that each such Deposit has been made. Once SoftwareVendor has deposited such items with DSI, they may not be removed by SoftwareVendor prior to the expiration of the term of this Agreement without prior written consent of Customer and Lessor. Customer shall bear any and all costs associated with the creation and maintenance of DSI. Customer, or if Customer is in default under the Lease with Lessor, then Lessor shall have the right to a release from DSI, at no additional charge other than DSI s administrative fees, the Deposit in the event that: (i) SoftwareVendor or Customer shall file a petition in bankruptcy or reorganization or in the event that such proceedings shall be instituted against SoftwareVendor and not dismissed within sixty (60) days, (ii) SoftwareVendor shall have discontinued doing business directly and indirectly in the normal course as a vendor of the Licensed Software, of computer software generally or as a maintenance provider of the Software; or (iii) if SoftwareVendor fails to provide maintenance and support services as agreed to herein within ten (10) days of written notification thereof. At Customer s, or if Customer is in default under the Lease, Lessor s expense, it shall have the right at any time to cause an independent verification that Deposit is the source code version of the Software being utilized by Customer and Lessor. If Customer or Lessor receives the Deposit pursuant to this paragraph, its license to the Licensed Software shall be expanded to allow it to modify, change, or otherwise create derivative works for its own use and support of the Licensed Software, but it shall not sell, transfer or sublicense the source code to any other party, except to a subsequent sub-licensee or assignee as provided in this Addendum. Executed as of the date first above written. Licensor: SoftwareVendor, Inc. By: Name: Title: Customer: Get Well Hospital By: Name: Title: Lessor: Pantheon Capital LLC By: Name: Title: Michael J. Crofton Principal L:\309-Legal Forum\2004\Janet\Soft Cost 1.DOC Page 4 of 4

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