definiens: as defined under the U. S. Bankruptcy Code . As a licensee of such rights, Licensee may retain and exercise all of its rights and elections under the U. S. Bankruptcy Code . In the event of a commencement of bankruptcy proceedings by or against Xenogen,-Licensee shall be entitled to continue to exercise the rights granted to it hereunder and, if the proceedings are not terminated within 60 days after commencement, to access and obtain a copy of all embodiments of the intellectual property embodied in the Software, solely for purposes of Licensee 's on - going exercise of its rights in the Field hereunder, and if not already in the possession of Licensee, the same shall be promptly delivered to Licensee ( i ) upon written request by Licensee, unless [COMPANY] elects to continue to perlorm all of its obligations under this Agreement, or ( ii ) if not delivered under ( i ) above, upon the rejection of this Agreement or any licenses to Software by or on behalf of [COMPANY] upon Licensee 's written request . In any bankruptcy action by [COMPANY], failure by Licensee to assert its rights to retain its benefits to the intellectual property encompassed by the Software, pursuant to Section 365(n)(1 ) ( B ) of the Bankruptcy Code, under an executory contract rejected by the trustee in bankruptcy, shall not be construed as a termination of the Agreement by Licensee under Section 365(n)(1 ) ( A ) of the Bankruptcy Code