TO THE
13
EXTENT SUCH PAYMENTS ARE REQUIRED UNDER A THIRD PARTY LICENSE AGREEMENT (E.G.,
THE AGDG AGREEMENT, THE UNC LICENSE, THE ISIS CLA OR A LICENSE ENTERED INTO
PURSUANT TO SECTION 4.3).
ALTERNATIVELY, IF ONE PARTY BREACHES THIS AGREEMENT
AND SUCH BREACH JEOPARDIZES THE RIGHTS OF THE OTHER PARTY UNDER A THIRD PARTY
LICENSE AGREEMENT (E.G., THE AGDG AGREEMENT, THE UNC LICENSE, THE ISIS CLA OR A
LICENSE ENTERED INTO PURSUANT TO SECTION 4.3), THEN THE NON-BREACHING PARTY MAY,
AT ITS SOLE DISCRETION, ELECT IN WRITING TO TERMINATE ONLY THOSE THIRD PARTY
RIGHTS GRANTED TO THE OTHER PARTY HEREUNDER, WITHOUT TERMINATING THE REMAINDER
OF THIS AGREEMENT.
IN SUCH INSTANCE, THE BREACHING PARTY SHALL HAVE ONLY SUCH
CURE RIGHTS AS ARE EXPRESSLY PROVIDED FOR IN THE APPLICABLE THIRD PARTY LICENSE
AGREEMENT.
FOR CLARIFICATION, FAILURE TO PAY UNDISPUTED SHARED COSTS
CONSTITUTES A BREACH OF THIS AGREEMENT, BUT OPTING OUT OR OTHERWISE ELECTING NOT
TO FUND SHARED COSTS THAT ARE PROPOSED BUT ARE NOT AGREED UPON DOES NOT
CONSTITUTE A BREACH.
10.3
TERMINATION UPON BANKRUPTCY; RIGHTS IN BANKRUPTCY.
THIS
AGREEMENT MAY BE TERMINATED WITH WRITTEN NOTICE BY EITHER PARTY AT ANY TIME
DURING THE LICENSE TERM UPON THE FILING OR INSTITUTION OF BANKRUPTCY,
REORGANIZATION, LIQUIDATION OR RECEIVERSHIP PROCEEDINGS BY THE OTHER PARTY OR
UPON AN ASSIGNMENT OF A SUBSTANTIAL PORTION OF THE ASSETS FOR THE BENEFIT OF
CREDITORS BY THE OTHER PARTY; PROVIDED, HOWEVER, IN THE CASE OF ANY INVOLUNTARY
BANKRUPTCY PROCEEDING SUCH RIGHT TO TERMINATE WILL ONLY BECOME EFFECTIVE IF THE
PARTY CONSENTS TO THE INVOLUNTARY BANKRUPTCY OR SUCH PROCEEDING IS NOT DISMISSED
WITHIN 90 DAYS OF THE FILING THEREOF.
All rights and licenses granted under or pursuant to this Agreement by AVI or
Ercole are, and will 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. The parties agree that
the parties, as licensees of such rights under this Agreement, will retain and
may fully exercise all of their rights and elections under the U.S. Bankruptcy
Code.
10.4
ACCRUED RIGHTS AND SURVIVING OBLIGATIONS.
10.4.1
SURVIVING OBLIGATIONS.
EXPIRATION OR TERMINATION OF THE
AGREEMENT WILL NOT RELIEVE THE PARTIES OF ANY OBLIGATION ACCRUING PRIOR TO SUCH
EXPIRATION OR TERMINATION, INCLUDING, BUT NOT LIMITED TO, SECTIONS 1.6, 2.6
(RELATING TO SHARED COSTS INCURRED PRIOR TO TERMINATION), 2.7, 4.1, AND ARTICLES
7-14
10.4.2
SUBLICENSES.
THE RIGHTS OF ANY SUBLICENSEE UNDER ANY
PERMITTED SUBLICENSE GRANTED PURSUANT TO SECTION 3.2 OR 3.4 WILL SURVIVE THE
TERMINATION OF THIS AGREEMENT TO THE EXTENT PROVIDED IN THE SUBLICENSE, AND THE
LICENSOR THEREIN AGREES TO ASSIGN ALL SUCH SUBLICENSES TO THE OTHER PARTY
HERETO.
ALL PAYMENTS THEN OR THEREAFTER DUE TO SUCH LICENSOR FROM EACH
SURVIVING SUBLICENSE SHALL BECOME OWED DIRECTLY TO THE OTHER PARTY HERETO;
PROVIDED THAT SUCH PARTY SHALL REMIT TO THE OTHER PARTY THE AMOUNT BY WHICH ANY
SUCH PAYMENTS EXCEED THE CORRESPONDING AMOUNT THAT WOULD HAVE BEEN PAYABLE
HEREUNDER.
14
ARTICLE