DISPLAY THE MARKS IN ASSOCIATION WITH ANY PRODUCT OR SERVICE USED OR
PROVIDED IN CONNECTION WITH THE BORROWER'S BUSINESS OUTSIDE OF THE LFRP, WITHIN
THE SCOPE PERMITTED UNDER SECTION 14(E)(II)(1), ABOVE, IN THE SAME GENERAL
MANNER AND AT LEAST AS HIGH A LEVEL OF QUALITY AS CARRIED OUT BY BORROWER
IMMEDIATELY PRIOR TO ANY SUCH FORECLOSURE; PROVIDED, THAT (I) INVESTOR SHALL
HAVE THE RIGHT TO MONITOR ANY SUCH PRODUCT OR SERVICE FOR THE PURPOSE OF
PROTECTING AND MAINTAINING THE LEVEL OF QUALITY ESTABLISHED BY BORROWER PRIOR TO
ANY SUCH FORECLOSURE; (II) BORROWER ACKNOWLEDGES THAT THE GOODWILL AND OTHER
BENEFITS ASSOCIATED WITH SUCH MARKS SHALL INURE TO THE BENEFIT OF INVESTOR; AND
(III) BORROWER SHALL NOT USE OR OMIT USE OF THE MARKS IN ANY MANNER WHICH WOULD
INJURE OR DESTROY THEIR VALUE OR DIMINISH INVESTOR'S PROPERTY RIGHTS; AND
PROVIDED, FURTHER, THAT, IN THE EVENT INVESTOR ADVISES BORROWER OF ANY
DISCREPANCY IN THE LEVEL OF QUALITY OF SUCH PRODUCTS OR SERVICES, INVESTOR SHALL
HAVE THE RIGHT TO TERMINATE THE USE AND DISPLAY OF THE MARKS (BUT NOT THE OTHER
RIGHTS LICENSED HEREUNDER) BY BORROWER UNTIL SUCH TIME AS THE DISCREPANCY IS
CORRECTED; AND
(3)
INVESTOR HEREBY AGREES, AT BORROWER'S SOLE
COST AND EXPENSE, TO MAKE, OR TO PERMIT BORROWER TO MAKE, COPIES OF ALL BOOKS,
RECORDS, DATA BASES, AND INFORMATION (INCLUDING THE HANDBOOKS, MANUALS AND
SEQUENCE INFORMATION) RELATED TO THE LFRP AND TO USE ALL SHARED INTELLECTUAL
PROPERTY SOLELY FOR THE PURPOSE OF THE CONDUCT OF THE BUSINESS OF BORROWER
OUTSIDE THE LFRP WITHIN THE SCOPE PERMITTED UNDER SECTION 14(E)(II)(1), ABOVE.
FOR AVOIDANCE OF DOUBT, THE LICENSES GRANTED TO THE BORROWER IN
SECTION 14(E)(II) SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
THE PARTIES
ACKNOWLEDGE THAT SUCH LICENSES ARE LICENSES OF "INTELLECTUAL PROPERTY" FOR THE
PURPOSES OF SECTION 365 (N) OF THE BANKRUPTCY CODE.
(G)
BORROWER PREPARED THE DUPLICATE LIBRARIES
AND DELIVERED THE DUPLICATE LIBRARIES TO FISHER CLINICAL SERVICES, 631 LOFSTRAND
LANE, ROCKVILLE, MD 20850 (PHONE:
(301) 315-2238) OR SUCH OTHER SECURE LOCATION
OR LOCATIONS AS ARE REASONABLY ACCEPTABLE TO BORROWER AND INVESTOR, CLEARLY
IDENTIFIED AS THE DUPLICATE LIBRARIES PREPARED FOR THE BENEFIT OF INVESTOR, AND
SEGREGATED FROM PROPERTY OF BORROWER.
(H)
BORROWER SHALL:
(I) MAINTAIN COPIES OF ALL
SOURCE AND OBJECT CODES FOR ALL SOFTWARE AT ONE OR MORE SAFE AND SECURE
LOCATIONS REASONABLY ACCEPTABLE TO INVESTOR, (II) KEEP
Confidential materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote such omission.
13
INVESTOR FULLY INFORMED OF EACH SUCH LOCATION, AND (III) MAINTAIN THE CURRENCY
OF ALL SUCH SOFTWARE STORED THEREAT.
(I)
BORROWER SHALL, CONCURRENTLY WITH THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXECUTE AND DELIVER TO INVESTOR (TO
THE EXTENT THERE HAVE BEEN ANY CHANGES IN THE INFORMATION REQUIRED TO BE
INCLUDED THEREIN SINCE THE CLOSING DATE) THE PERFECTION CERTIFICATE.
(J)
BORROWER AGREES THAT A BREACH OF ANY OF
THE COVENANTS CONTAINED IN THIS AGREEMENT WILL CAUSE IRREPARABLE INJURY TO
INVESTOR, THAT INVESTOR HAS NO ADEQUATE REMEDY AT LAW IN RESPECT OF SUCH BREACH
AND, AS