COULD NOT REASONABLY BE EXPECTED TO RESULT IN A
MATERIAL ADVERSE EFFECT, (II) THE REASONABLY ESTIMATED COST TO BORROWER
ASSOCIATED WITH PURSUING SUCH ACTION WOULD OUTWEIGH THE REASONABLY ESTIMATED
EXTENT BY WHICH THE INCLUDED RECEIPTS AND THE INTEREST IN THE ROYALTIES RETAINED
BY THE BORROWER WOULD BENEFIT AS A RESULT OF SUCCESSFULLY PURSUING SUCH ACTION,
OR (III) BORROWER OBTAINS THE REQUISITE WRITTEN CONSENT OF LENDERS REQUIRED
UNDER THE LOAN AGREEMENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD (AS IN THE
CASE, FOR EXAMPLE, WHERE PURSUING SUCH ACTION WOULD JEOPARDIZE THE LFRP
INTELLECTUAL PROPERTY OR ADVERSELY EFFECT THE LFRP AS A WHOLE). CONSENT
HEREUNDER SHALL BE PROVIDED OR DENIED WITHIN TEN (10) BUSINESS DAYS AFTER NOTICE
AND PROVISION OF SUCH INFORMATION AS MAY BE REASONABLY REQUESTED BY THE LENDER
FROM THE BORROWER. BORROWER SHALL IMMEDIATELY NOTIFY LENDER OF SUCH CLAIM. THE
PARTIES SHALL CONSULT AS TO STRATEGY REGARDING ANY RESPONSE TO SUCH CLAIM.
BORROWER SHALL NOT ABANDON, OR FAIL TO TAKE ANY ACTION NECESSARY OR DESIRABLE TO
PREVENT THE DISCLAIMER OR ABANDONMENT OF MATERIAL LFRP PATENTS OWNED BY IT.
(C)
UNLESS THERE SHALL OCCUR AND BE CONTINUING
ANY EVENT OF DEFAULT AND THE INVESTOR HAS ACCELERATED THE OBLIGATIONS UNDER THE
LOAN AGREEMENT, BORROWER SHALL HAVE THE RIGHT TO COMMENCE AND PROSECUTE IN ITS
OWN NAME, AS THE PARTY IN INTEREST, FOR ITS OWN BENEFIT AND AT THE SOLE COST AND
EXPENSE OF THE BORROWER, SUCH APPLICATIONS FOR PROTECTION OF THE LFRP
INTELLECTUAL PROPERTY AND SUITS, PROCEEDINGS OR OTHER ACTIONS TO PREVENT THE
INFRINGEMENT, COUNTERFEITING, UNFAIR COMPETITION, DILUTION, DIMINUTION IN VALUE
OR OTHER DAMAGE AS ARE NECESSARY TO PROTECT THE LFRP INTELLECTUAL PROPERTY.
UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF ANY EVENT OF DEFAULT, THE
INVESTOR SHALL HAVE THE RIGHT BUT SHALL IN NO WAY BE OBLIGATED TO FILE
APPLICATIONS FOR PROTECTION OF THE LFRP INTELLECTUAL PROPERTY AND/OR BRING SUIT
IN THE NAME OF THE BORROWER OR INVESTOR TO ENFORCE THE LFRP INTELLECTUAL
PROPERTY AND ANY LICENSE THEREUNDER.
IN THE EVENT OF SUCH SUIT, THE BORROWER
SHALL, AT THE REASONABLE REQUEST OF THE INVESTOR, DO ANY AND ALL LAWFUL ACTS AND
EXECUTE ANY AND ALL DOCUMENTS REQUESTED BY THE INVESTOR IN AID OF SUCH
ENFORCEMENT AND THE BORROWER SHALL PROMPTLY REIMBURSE AND INDEMNIFY THE INVESTOR
FOR ALL COSTS
Confidential materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote such omission.
10
AND EXPENSES INCURRED BY THE INVESTOR IN THE EXERCISE OF ITS RIGHTS UNDER THIS
SECTION 14(C) IN ACCORDANCE WITH THE LOAN AGREEMENT.
IN THE EVENT THAT THE
INVESTOR SHALL ELECT NOT TO BRING SUIT TO ENFORCE THE LFRP INTELLECTUAL
PROPERTY, THE BORROWER AGREES, AT THE REASONABLE REQUEST OF THE INVESTOR, TO
TAKE ALL COMMERCIALLY REASONABLE ACTIONS NECESSARY, WHETHER BY SUIT, PROCEEDING
OR OTHER ACTION, TO PREVENT THE INFRINGEMENT, COUNTERFEITING, UNFAIR
COMPETITION, DILUTION, DIMINUTION IN VALUE OF OR OTHER DAMAGE TO ANY OF THE LFRP
INTELLECTUAL PROPERTY BY ANY PERSON.
(D)
BORROWER SHALL, CONCURRENTLY WITH THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXECUTE AND DELIVER TO INVESTOR