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(5) ORIGINALS OF A SPECIAL POWER OF ATTORNEY IN THE FORM OF EXHIBIT A ANNEXED
HERETO FOR EXECUTION OF AN ASSIGNMENT OF THE COLLATERAL TO INVESTOR, OR THE
IMPLEMENTATION OF THE SALE OR OTHER DISPOSITION OF THE COLLATERAL PURSUANT TO
INVESTOR'S GOOD FAITH EXERCISE OF THE RIGHTS AND REMEDIES GRANTED HEREUNDER;
PROVIDED, HOWEVER, INVESTOR AGREES THAT IT WILL NOT EXERCISE ITS RIGHTS UNDER
SUCH SPECIAL POWER OF ATTORNEY UNLESS AN EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING.
(E)
BORROWER SHALL, CONCURRENTLY WITH THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXECUTE AND DELIVER TO INVESTOR THE
PATENT SECURITY AGREEMENT AND THE COPYRIGHT SECURITY AGREEMENT (IN RESPECT OF
INTELLECTUAL PROPERTY NOT COVERED BY THE FILINGS MADE PROMPTLY AFTER THE CLOSING
DATE) AND ALL OTHER DOCUMENTS, INSTRUMENTS AND OTHER ITEMS AS MAY BE NECESSARY
FOR INVESTOR TO FILE SUCH AGREEMENTS WITH THE UNITED STATES PATENT AND TRADEMARK
OFFICE AND UNITED STATES COPYRIGHT OFFICE AND ANY SIMILAR DOMESTIC OR FOREIGN
OFFICE, DEPARTMENT OR AGENCY.
BORROWER SHALL UPON AND AFTER THE OCCURRENCE OF
AN EVENT OF DEFAULT, USE ITS COMMERCIALLY REASONABLE EFFORTS TO OBTAIN ANY
CONSENTS, WAIVERS AND AGREEMENTS REQUESTED BY INVESTOR THAT ARE NECESSARY TO
ENABLE INVESTOR TO EXERCISE ITS REMEDIES WITH RESPECT TO THE COLLATERAL.
(F)
CERTAIN RIGHTS UPON AN EVENT OF DEFAULT
BEFORE AND FOLLOWING A FORECLOSURE.
(I)
UPON THE OCCURRENCE AND DURING THE
CONTINUANCE OF AN EVENT OF DEFAULT AND UPON NOTICE BY INVESTOR (THE "NOTICE
EVENT"):
(1)
BORROWER HEREBY AGREES TO GRANT AND HEREBY
GRANTS TO INVESTOR EFFECTIVE UPON THE NOTICE EVENT AN EXCLUSIVE WORLDWIDE
ROYALTY-FREE LICENSE, WITH THE RIGHT TO SUBLICENSE, UNDER THE SHARED
INTELLECTUAL PROPERTY (THE "MARKS")) TO THE EXTENT PERMITTED UNDER THE IN
LICENSES SOLELY TO CARRY OUT THE LFRP PROGRAM (INCLUDING THROUGH A DESIGNEE
OTHER THAN A PHAGE-DISPLAY COMPANY THAT COMPETES WITH BORROWER) IN THE SAME
GENERAL MANNER AS CARRIED OUT BY BORROWER IMMEDIATELY PRIOR TO ANY SUCH EVENT OF
DEFAULT; PROVIDED THAT SUCH LICENSE SHALL BE SUBJECT TO ANY LICENSES GRANTED BY
BORROWER TO THIRD PARTIES (NOT IN VIOLATION OF THE LOAN AGREEMENT) PRIOR TO THE
DATE OF THE GRANT TO INVESTOR HEREUNDER;
(2)
BORROWER HEREBY AGREES TO GRANT AND HEREBY
GRANTS TO INVESTOR EFFECTIVE UPON THE NOTICE EVENT AN EXCLUSIVE ROYALTY-FREE
LIMITED LICENSE TO USE AND DISPLAY THE MARKS, SOLELY IN ASSOCIATION WITH ANY
PRODUCT OR SERVICE USED OR
Confidential materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote such omission.
11
PROVIDED IN CONNECTION WITH THE LFRP IN THE SAME GENERAL MANNER AND AT LEAST AS
HIGH A LEVEL OF QUALITY AS CARRIED OUT BY BORROWER IMMEDIATELY PRIOR TO ANY SUCH
EVENT OF DEFAULT; PROVIDED, THAT (I) BORROWER 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 EVENT OF DEFAULT;
(II) INVESTOR ACKNOWLEDGES THAT THE GOODWILL AND OTHER BENEFITS ASSOCIATED WITH
SUCH MARKS SHALL INURE TO THE BENEFIT OF BORROWER; AND (III) INVESTOR SHALL NOT
USE