SOFTWARE LICENSE
AGREEMENT
This SOFTWARE
LICENSE AGREEMENT (the “ Agreement ”) made and
entered into this 30th day of September, 2008 (“ Effective
Date ”) by and between Hanover Capital Mortgage Holdings,
Inc., a corporation duly organized and existing under the laws of
the State of Maryland and having principal offices at 200 Metroplex
Drive, Suite 100, Edison, New Jersey 08817 (“
Hanover ”), and JWH Holding Company, LLC, a limited
liability company duly organized and existing under the laws of the
State of Delaware and having principal offices at 4211 W. Boy Scout
Boulevard, Tampa, Florida 33607 (“ JWH ”, and
together with Hanover, the “ Parties ” and each
a “ Party ”).
WHEREAS ,
Hanover or its affiliates own or has licensed intellectual property
rights to certain computer software, systems and related items;
and
WHEREAS ,
Hanover wishes to grant to JWH, and JWH wishes to obtain from
Hanover, a perpetual license to use such software, systems and
related items;
NOW
THEREFORE , in consideration of the premises and the mutual
promises and covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
SECTION 1
— GRANT OF LICENSE
1.1.
License . Hanover, on behalf of itself and its affiliates,
grants to JWH and its affiliates (together with permitted assignees
pursuant to Section 7.4, the “ Licensees ”)
a perpetual, non-exclusive, non-transferable (except as permitted
in Section 7.4) license under all of its applicable
intellectual property rights to (i) use, copy, distribute,
perform, display, digitally display and (except for the current
system administration module in Asset Onsite) create derivative
works, upgrades, updates, modifications, enhancements, new releases
or improvements (“ Modifications ”) to the
software, systems and related items described on Exhibit
A , including the Source Materials (subject to the
conditions on their release to JWH in the Escrow Agreement defined
in Section 1.3) and all related documentation in existence
(collectively, the “ Software ”). Licensees may
sublicense the above license to third-party contractors and
consultants solely in connection with installing, testing, hosting,
maintaining, supporting and creating Modifications to the Software
and/or assisting Licensees’ own exercise of their licensed
rights, but in no event for other use by (or the independent
benefit of) such non-affiliated entities.
(a) If the
merger contemplated in the Agreement and Plan of Merger dated as of
the Effective Date (“ Merger Agreement ”) among
Walter Industries, Inc., JWH and Hanover is not consummated on or
prior to December 31, 2008, and the Merger Agreement has not
been terminated on or prior to such date, JWH shall pay to Hanover
a fee of $1 million (one million dollars) for the license in
Section 1.1 within 10 business days thereafter, and upon such
payment the license in Section 1.1 shall be deemed fully
paid-up as of December 31, 2008.
(b) If the
Merger Agreement terminates prior to December 31, 2008 and
either the Hanover Termination Fee or the Walter Termination Fee
referred to in the Merger Agreement has been paid, the license in
Section 1.1 shall be deemed fully paid-up as of such date of
termination.
1.3. Source
Code . Within 30 days after the Effective Date, Hanover
shall deposit with a reputable, mutually-agreed escrow agent,
pursuant to that agent’s standard escrow agreement (the
“ Escrow Agreement ”), which shall contain
standard release conditions and other conditions or terms agreed
upon by the parties and the escrow agent, a complete and current
copy of the source code and all designs, instructions and related
materials sufficient to allow a reasonably skilled programmer to
maintain, support and update the Software (“ Source
Materials ”). The Escrow Agreement shall be considered
“an agreement supplementary to” this Agreement (and the
license in Section 1.1) for purposes of 11 U.S.C. §
365(n)(1)(B). Any fees payable to the escrow agent associated with
the Escrow Agreement shall be paid by JWH. The Escrow Agreement
shall provide, among other things, that the Licensees shall be
granted access to the Source Materials on the earliest date of the
following: (i) the date on which the merger contemplated in
the Merger Agreement is consummated, (ii) December 31,
2008, or (iii) the date the Merger Agreement is terminated and
either the Hanover Termination Fee or Walter Termination Fee
referred to in the Merger Agreement has been paid.
2.1.
Ownership . JWH agrees that, as between Hanover and Licensees,
Hanover is the sole and exclusive owner of all rights and
intellectual property rights in the Software. Hanover agrees that,
as between Hanover and Licensees, the Licensees are the sole and
exclusive owner of all rights and intellectual property rights in
those Modifications which are made by a Licensee and/or its agents.
Each Party shall, upon the reasonable request and expense of the
other Party, take further actions and execute additional documents
to establish and perfect the requesting Party’s above
rights.
2.2. No
Contest . Each Party agrees not to directly or indirectly
question or contest the other Party’s intellectual property
rights relating to the Software or Modifications, except in an
Action, as that term is later defined, between the Parties. Neither
Party shall contest the enforceability of this Agreement, including
without limitation in any claim action, suit or proceeding (“
Action ”).
SECTION
3 —
PARTIES’ OBLIGATIONS
3.1.
Delivery . Hanover shall deliver to JWH, who shall, at its own
cost (and with the assistance of third-party contractors, at its
discretion), install and test the Software on
Exhibit A .
3.2.
Legends . JWH shall not remove any copyright or other notice or
legend contained or included in the Software.
3.3.
Limitations . Hanover is not responsible for providing JWH with
any training, maintenance, support or help-desk assistance with
respect to the Software, other than providing (i) the documentation
already in existence and included within the Software or Source
Materials
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and
(ii) reasonable cooperation to JWH and JWH’s third-party
contractors in connection with their own efforts in installing,
testing, maintaining and supporting the Software (provided that
Hanover is not required to incur any out-of-pocket expenses in this
regard and that Hanover is entitled to reasonable hourly
compensation if such cooperation requires a significant time
commitment). JWH must procure, at its own expense, all hardware,
third-party software licenses or other third-party items necessary
to operate the Software, at its own expense.
SECTION 4
— WARRANTIES AND INDEMNITY
4.1. By Each
Party . Each Party represents and warrants to the other Party
that (i) the warranting Party has the requisite corporate or
company power and authority to enter into this Agreement;
(ii) the warranting Party’s execution, delivery and
performance of this Agreement has been duly authorized by all
requisite corporate or company action on its part; (iii) this
Agreement has been duly executed and delivered by the warranting
Party and, assuming due authorization, execution and delivery,
constitutes a legal, valid and binding agreement, enforceable
against the warranting Party in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and similar
laws of general application relating to or affecting
creditors’ rights and to general equity principles; and
(iv) neither the execution and delivery by the warranting
Party of this Agreement or compliance and performance with any of
the provisions hereof results in a default (or an event that, with
notice or lapse of time or both, would become a default) or gives
rise to any right of termination by any third Party, cancellation,
amendment or acceleration of any obligation or the loss of any
benefit under, any contract binding the warranting
Party.
4.2.
Ownership/Infringement . Hanover represents and warrants to JWH
that (i) it or its affiliates own or has licensed rights to
intellectual property rights in the Software sufficient to grant
the license in Section 1.1; (ii) the Software as provided
is fully operational, performs in material compliance with its
documentation and, to Hanover’s knowledge, is free of all
bugs, errors, defects, viruses and other corruptants; and
(iii) the use and enjoyment of the Software (as provided) by
Licensees after the Effective Date in a manner consistent with past
practice, to Hanover’s knowledge, will not infringe or
violate the rights of any person or entity.
4.3.
Indemnity . Each Party shall defend at its expense, hold
harmless and indemnify the other Party and its affiliates and their
respective directors, officers, shareholders, agents and employees
against any third-party claims, losses, awards, judgments,
settlements, costs, fees, expenses, liabilities and damages
(including reasonable attorneys’ fees and costs of suit) to
the extent arising out of or relating to the indemnifying
Party’s breach of any representations, warranties, covenants
or agreements herein.
4.4.
Procedure . The indemnified Party shall give prompt written
notice to the indemnifying Party of any potential indemnifiable
claim. The indemnifying Party shall have sole control of the
defense or settlement of the claim, provided that it may not
settle any claim that adversely affects the indemnified party
without its prior written consent.
4.5.
Hanover’s Options . Without limiting Hanover’s
obligations in Section 4.3, in the event of a potential
third-party infringement claim against Licensees, Hanover shall
have the option, at its expense, to (i) modify or replace all
or the infringing part of the Software, provided
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that the Software’s functionality is not
materially impaired; (ii) procure for Licensees the right to
continue using the infringing part of the Software; or if
(i) an
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