definiens: as defined under Section 101(35A ) of the Code . The Parties agree that Merck, as a licensee of such rights under this Agreement, shall retain and ' may fully exercise all of its rights and elections under the Code, and that upon commencement of a bankruptcy proceeding by or against [COMPANY] under the Code, Merck shall be entitled, to the extent necessary for Merck to continue to preserve its license rights under this Agreement, to a complete duplicate of any such intellectual property and all embodiments of such intellectual property . Such intellectual property and all embodiments thereof shall be promptly delivered to Merck ( i ) upon any such commencement of a bankruptcy proceeding upon written request therefor by Merck, 18 SV\468556.1 unless [COMPANY] elects to continue to perform allof its obligations under this Agreement or ( ii ) if not delivered under ( i ) above, upon the rejection of this Agreement by or on behalf of [COMPANY] upon written request therefor by Merck . The foregoing provisions of this Section 3.7 are without prejudice to any rights Merck may have arising under the Code or other applicable law