EXHIBIT 99.15
SOFTWARE LICENSE
AGREEMENT
This
Software License Agreement (the "Agreement"), dated as of December
29, 2004 (the "Effective Date"), is entered by and between Inland
Computer Services, Inc., an Illinois corporation ("Licensor"), and
Inland Retail Real Estate Trust, Inc., a Maryland corporation
("Licensee").
WHEREAS,
Licensor is the owner of certain software described in Attachment 1
(the "Owned Software") and is the licensee of certain software
described in Attachment 1 (the "Third Party Software," and together
with the Owned Software, the "Software");
WHEREAS,
Licensor has used the Software at the request and for the benefit
of Licensee and/or its Affiliates (as defined herein) in connection
with the Real Estate Business; and
WHEREAS,
Licensee is desirous of using the Software in connection with the
Real Estate Business, and Licensor is willing to license such use
of the Software, subject to the terms and conditions set forth in
this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises and obligations
set forth below, the parties, intending to be bound, agree to the
foregoing and as follows:
I. Definitions.
"Affiliate"
shall mean, except as otherwise provided herein, with respect to
any Person, any Person directly or indirectly controlling,
controlled by or under common control with, such Person. For the
purposes of this definition, "control" (including, with correlative
meaning, the terms "controlling," "controlled by" and "under common
control with") means the possession, directly or indirectly, of the
power to direct or cause the direction of management and policies
of such Person through the ownership of voting securities, by
contract or otherwise. With respect to Licensee, any entity
representing a joint venture or similar arrangement in which
Licensee, or an entity controlled by Licensee, is the general
partner or managing member shall be deemed to be an
"Affiliate."
"Change
of Control Event" shall mean the occurrence of one or more of the
following:
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a)
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Any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all of
the assets of Licensee to any person or group of related persons
for purposes of Section 13(d) of the Securities Exchange Act of
1934, as amended; provided, however , that any sale, lease,
exchange or transfer to (including, without limitation, any merger
or other business combination with or into) any of the following
shall not constitute a Change of Control: (i) any Affiliate
controlled by Licensee, (ii) Inland Real Estate Corporation, (iii)
Inland Western Retail Real Estate Trust, Inc., (iv) Inland American
Real Estate Trust, Inc., (v) The Inland Group, Inc., or (vi) any
Affiliate controlled by any of the persons or entity listed in
clauses (i) through (v) above (all of the persons or entity
described in clauses (i) through (vi) above to be hereinafter
sometimes referred to as the "Inland Companies");
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b)
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The approval by the holders of the outstanding shares of
Licensee of any plan or proposal for the liquidation or dissolution
of Licensee;
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c)
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Any person or group of related persons for purposes of Section
13(d) of the Securities Exchange Act of 1934, as amended (other
than any one or more of the Inland Companies) shall become the
owner, directly or indirectly, beneficially or of record, of shares
of Licensee representing more than twenty-five percent (25%) of the
aggregate ordinary voting power represented by the issued and
outstanding common shares of Licensee; or
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d)
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Following any change in the composition of the board of
directors of Licensee, a majority of the board of directors of
Licensee are not a combination of either (i) members of the
board of directors of Licensee as of the date hereof, or
(ii) members of the board of directors of Licensee whose
nomination for election or election to the board of directors of
Licensee has been recommended, approved or ratified by at least
eighty percent (80%) of the board of directors of Licensee then in
office who were either members of the board of directors of
Licensee as of the date hereof or whose election as a member of the
board of directors of Licensee was previously so approved pursuant
to this clause (ii).
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"Person"
shall mean an individual, a corporation, a limited liability
company, a partnership, an association, a trust or other entity or
organization, including a government or political subdivision or an
agency or instrumentality thereof.
"Real Estate Business" shall mean (i) any business activities
conducted by Licensee so long as Licensee remains qualified as a
"real estate investment trust" under Section 856 the Internal
Revenue Code of 1986, as amended, and (ii) such business as is
consistent with and limited to the description of the business of
Licensee contained in the prospectus forming a part of the
Registration Statement on Form S-11 (No. 333-50822), as amended,
filed by Licensee with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended.
II
GRANT
.
A.
Owned Software . Subject to the terms and conditions of this
Agreement, Licensor hereby grants to Licensee a non-exclusive,
royalty-free, irrevocable (except as set forth in Article VIII
below) right and license to use and copy the Owned Software, in
object code format, solely in connection with the Real Estate
Business.
B.
Third Party Software . Subject to the terms and conditions
of this Agreement and any applicable third party license, Licensor
hereby grants to Licensee a non-exclusive, royalty-free, right and
license to use the Third Party Software, solely in connection with
the Real Estate Business. The Third Party Software may be used in
whatever form and in whatever jurisdiction is permitted by the
terms of applicable license to the Licensor. The foregoing license
shall otherwise be co-extensive with the rights of the Licensor,
including any restrictions of Licensor, under the applicable
license; provided that upon request from Licensee, Licensor shall
provide a copy of each applicable license to the extent permitted
in the applicable license subject to any confidentiality
restrictions. Licensee shall pay all fees and expenses of obtaining
consents or new licenses with respect to Third Party Software to
provide the license to Licensee hereunder.
C.
Sublicenses . Licensee shall be permitted to sub-license the
Software, subject to the terms and conditions of this Agreement and
any applicable third party license (1) to any direct or indirect
wholly-owned Affiliate of Licensee (for so long as such party
remains a wholly-owned Affiliate during the sublicense), (2) with
the prior written consent of Licensor (which shall not be
unreasonably conditioned, withheld or delayed), to any Affiliate of
Licensee (for so long as such party remains an Affiliate during the
sublicense) other than a direct or indirect wholly-owned Affiliate
of Licensee and (3) with the prior written consent of Licensor (in
its sole discretion), to any person or entity that is not an
Affiliate of Licensee (collectively, "Sublicensees"). Upon
Licensor's request from time to time, Licensee shall deliver to
Licensor a list of all Sublicensees. Use of the Software by each
Sublicensee shall, and Licensee shall cause each Sublicensee to,
comply with the terms and conditions of this Agreement. Licensee
shall be responsible for each Sublicensee's use of the Software
and, as such, Licensee shall be deemed to be in breach of this
Agreement to the extent the actions of a Sublicensee would
constitute a breach of this Agreement (subject to any and all cure
periods granted herein).
III. RESTRICTIONS.
A.
Title . Subject to the licensed uses granted to Licensee
hereunder, as between the parties hereto all right, title and
interest in and to the Software is and at all times shall remain
the sole and exclusive property of Licensor or its licensors. All
rights not specifically granted to Licensee hereunder shall remain
with Licensor or its licensors.
B.
Sublicensing . Licensee shall not rent, lease, lend, sell,
sublicense (except as expressly permitted in Article II),
distribute, furnish, assign or otherwise transfer the Software to
or use the Software for the benefit of any third party including,
without limitation, use of the Software in any outsourcing,
timesharing or service bureau arrangement. Licensee shall not
modify, alter, adapt, translate, reverse engineer, decompile,
disassemble or create any derivative works based on the
Software.
C.
Proprietary Notices . Licensee shall not remove, obscure,
alter or tamper with any copyright notice, trademarks or other
proprietary notices affixed to or contained within the
Software.
IV. SOFTWARE
MEDIA AND TECHNICAL INFORMATION.
Subject
to the third party licenses, Licensor shall provide Licensee, at no
charge, with (A) the object code version of the Software in CD or
other mutually agreed media form, (B) manuals and user guides to
allow usage of the Software (including upgrades and Licensor
Improvements) consistent with the license granted herein and (C)
reasonable access to the Owned Software source code (as described
in subparagraph C of Article V). Licensee shall have the right as
part of the license granted herein to make as many additional
copies of the materials provided pursuant to clauses (A) and (B) of
the foregoing sentence for its and its Sublicensees own internal
use as it may reasonably determine.
V. UPDATES,
ENHANCEMENTS, SUPPORT, MAINTENANCE AND
IMPROVEMENTS.
A.
Licensor Updates and Enhancements . For so long as Licensee
is receiving services from Licensor under the Computer Services
Agreement, dated as of the date hereof, by and between Licensee and
Licensor (the "Services Agreement"), Licensee shall receive all
improvements, updates, upgrades, enhancements, modifications or
redesigns to and new versions of the Owned Software applicable to
the Real Estate Business and that are provided to any other
Affiliates of Licensor (collectively, the "Licensor Improvements"),
and such Licensor Improvements shall become subject to the terms of
this Agreement. Upon request of Licensee, Licensor may, but shall
not be obligated to, maintain and make improvements to the Owned
Software for compensation to be agreed upon by Licensee and
Licensor; provided , however , any such improvements
shall be considered Software hereunder.
B.
Support and Maintenance . For so long as Licensee is
receiving services from Licensor under the Services Agreement,
Licensee shall be entitled to all support and maintenance with
respect to the Third Party Software as provided to Licensor under
the applicable license to the Licensor consistent with such
applicable license.
C.
Source Code . Upon request of Licensee, and solely for
purposes of enabling Licensee to maintain or improve the Owned
Software, Licensor shall make the source code of the Owned Software
available to Licensee or a third party or parties to be designated
by Licensee, subject to such commercially reasonable limitations
and restrictions as Licensor deems necessary or appropriate.
D.
Licensee Improvements . Any improvements, modifications,
redesigns or changes to the Software made by or on behalf of
Licensee or otherwise, or any new software developed by or on
behalf of Licensee or otherwise that is based on, derived from or
related to the Software (collectively, the "Licensee Improvements")
shall be and remain the property of Licensor and shall be deemed
Software hereunder. Licensee shall provide Licensor with all source
code, object code and documentation for any and all such
Improvements within a reasonable period of time after their
creation. Licensee shall and shall ensure that any third parties
that create Licensee Improvements assign any and all rights in and
to such Licensee Improvements, without further consideration, to
Licensor within a reasonable period of time after their
creation.
vi Warranties.
A.
Representations, Warranties and Covenants of Licensor .
1. Licensor
represents and warrants that it has all necessary authority to
enter into this Agreement and to grant the rights and license
provided herein, and that the execution, delivery or performance of
this Agreement will not violate or cause a default under any
agreement by which the Licensor is bound. Licensor has no knowledge
that the Software or the use thereof infringes the intellectual
property rights of any third party.
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