RECEIVED BY EPIX IN CONNECTION WITH THE SUBLICENSE OF RIGHTS TO SUCH EPIX
LICENSED PRODUCT TO A THIRD PARTY UNTIL THE DATE UPON WHICH THE AGGREGATE TOTAL
OF SUCH SUBLICENSE INCOME AND ROYALTIES PAID EQUALS [*****] OF THE PREVIOUSLY
UNREIMBURSED DEVELOPMENT COSTS INCURRED BY SCHERING FOR THE RELEVANT SCHERING
LICENSED PRODUCT.
12.5.
EFFECTS TERMINATION ON SUBLICENSES.
NOTWITHSTANDING THE FOREGOING, TERMINATION OF THIS AGREEMENT BY SCHERING UNDER
SECTION 12.3.1 OR BY EPIX PURSUANT TO SECTIONS 12.3.2 OR 12.4 SHALL NOT BE
CONSTRUED AS A TERMINATION OF ANY VALID SUBLICENSE OF ANY SUBLICENSEE HEREUNDER,
AND THEREAFTER EACH SUCH SUBLICENSEE SHALL BE CONSIDERED A DIRECT LICENSEE OF
THE TERMINATING PARTY, PROVIDED THAT (I) SUCH SUBLICENSEE IS THEN IN FULL
COMPLIANCE WITH ALL TERMS AND CONDITIONS OF ITS SUBLICENSE, (II) ALL ACCRUED
PAYMENTS OBLIGATIONS TO TERMINATING PARTY HAVE BEEN PAID, AND (III) SUCH
SUBLICENSEE AGREES IN WRITING TO ASSUME ALL APPLICABLE OBLIGATIONS OF THE
NON-TERMINATING PARTY UNDER THIS AGREEMENT.
12.6.
TERMINATION UPON INSOLVENCY.
THIS AGREEMENT MAY BE
TERMINATED BY EITHER PARTY UPON NOTICE TO THE OTHER PARTY SHOULD SUCH OTHER
PARTY:
(A) CONSENT TO THE APPOINTMENT OF A RECEIVER OR A GENERAL ASSIGNMENT FOR
THE BENEFIT OF CREDITORS, OR (B) FILE OR CONSENT TO THE FILING OF A PETITION
UNDER ANY BANKRUPTCY OR INSOLVENCY LAW OR HAVE ANY SUCH PETITION FILED AGAINST
IT WHICH HAS NOT BEEN STAYED WITHIN SIXTY (60) DAYS OF SUCH FILING.
12.7.
RIGHTS IN BANKRUPTCY.
ALL RIGHTS AND LICENSES
GRANTED UNDER OR PURSUANT TO THIS AGREEMENT ARE, AND SHALL OTHERWISE BE DEEMED
TO BE, FOR PURPOSES OF SECTION 365(N) OF THE U.S. BANKRUPTCY CODE, LICENSES OF
RIGHT TO "INTELLECTUAL PROPERTY" AS DEFINED UNDER SECTION 101 OF THE U.S.
BANKRUPTCY CODE.
12.8.
ACCRUED RIGHTS; SURVIVING OBLIGATIONS.
TERMINATION
OF THIS AGREEMENT FOR ANY REASON SHALL BE WITHOUT PREJUDICE TO ANY RIGHTS THAT
SHALL HAVE ACCRUED TO THE BENEFIT OF A PARTY PRIOR TO OR ON ACCOUNT OF SUCH
TERMINATION.
ALL REMEDIES PROVIDED HEREUNDER OR ELSEWHERE ARE CUMULATIVE.
SECTIONS 7.3, 12.7 AND 13.5 AND ARTICLES 8, 9, 10 AND 11 OF THIS AGREEMENT SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT FOR ANY REASON AND SECTION 1 HEREOF
SHALL SURVIVE SUCH TERMINATION TO THE EXTENT ANY TERMS DEFINED THEREIN ARE USED
IN SUCH OTHER SURVIVING PROVISIONS.
ARTICLE 13:
MISCELLANEOUS
13.1.
FORCE MAJEURE.
NEITHER PARTY SHALL BE HELD LIABLE
OR RESPONSIBLE TO THE OTHER PARTY NOR BE DEEMED TO HAVE DEFAULTED UNDER OR
BREACHED THIS AGREEMENT FOR FAILURE OR DELAY IN FULFILLING OR PERFORMING ANY
TERM OF THIS AGREEMENT WHEN SUCH FAILURE OR DELAY IS CAUSED BY OR RESULTS FROM
CAUSES BEYOND THE REASONABLE CONTROL OF THE AFFECTED PARTY, INCLUDING BUT NOT
LIMITED
26
TO FIRE, FLOODS, EMBARGOES, WAR, ACTS OF WAR (WHETHER WAR IS DECLARED OR NOT),
INSURRECTIONS, RIOTS, CIVIL COMMOTIONS, STRIKES, LOCKOUTS OR OTHER LABOR
DISTURBANCES, ACTS OF GOD OR ACTS, OMISSIONS OR DELAYS IN ACTING BY ANY
GOVERNMENTAL AUTHORITY OR THE OTHER PARTY; PROVIDED, HOWEVER, THAT THE PARTY SO
AFFECTED SHALL USE REASONABLE COMMERCIAL EFFORTS TO AVOID OR REMOVE SUCH CAUSES