Common use of Counterparty License Agreement Clause in Contracts

Counterparty License Agreement. (a) The Seller (i) shall not forgive, release or compromise any Royalties or other Purchased Assets owed to or becoming owing to it under the Counterparty License Agreement, (ii) shall not assign, amend, modify, supplement, restate, waive, cancel or terminate (or consent to any cancellation or termination of), in whole or in part, any rights constituting or involving, affecting or relating to the Royalties or other Purchased Assets (including any such rights in the Counterparty License Agreement or any provision thereof or right thereunder) or the right to receive the Royalties, in each case to the extent such assignment, amendment, modification, supplement, restatement, waiver, cancellation, termination or consent would materially adversely affect the Purchased Assets or otherwise adversely affect the timing, amount or duration of the Royalties, (iii) shall not breach any provisions of Counterparty License Agreement, to the extent the breach of such duty or obligation would materially adversely affect the Purchased Assets or otherwise adversely affect the timing, amount or duration of the Royalties, (iv) except pursuant to Section 5.6, shall not enter into any new agreement or legally binding arrangement in respect of the Purchased Assets, the Royalties or the Licensed Product, in each case in respect of the Territory in the Field and in a manner that would materially adversely affect the Purchased Assets or otherwise adversely affect the timing, amount or duration of the Royalties, and (v) shall not waive any obligation of, or grant any consent to, Counterparty under or in respect of the Licensed Product (in respect of the Territory in the Field) or the Counterparty License Agreement that would materially adversely affect the Purchased Assets or otherwise adversely affect the timing, amount or duration of the Royalties. (b) To the extent permitted under the Counterparty License Agreement and the Counterparty Consent and solely to the extent the following would have a Material Adverse Change on the Purchased Assets, promptly after receiving notice from Counterparty or any other Person (i) terminating the Counterparty License Agreement (in whole or in part), (ii) alleging any breach of or default under the Counterparty License Agreement by the Seller or (iii) asserting the existence of any facts, circumstances or events that, alone or together with other facts, circumstances or events, Seller reasonably expects (with or without the giving of notice or passage of time, or both) to give rise to a breach of or default under the Counterparty License Agreement by the Seller or the right to terminate the Counterparty License Agreement (in whole or in part) by Counterparty or any other Person, the Seller shall (A) promptly give a written notice to the Purchaser describing in reasonable detail the relevant breach, default or termination event, including a copy of any written notice received from Counterparty or the other relevant Person, and, in the case of any breach or default or alleged breach or default by the Seller, describing in reasonable detail any corrective action the Seller proposes to take, and (B) in the case of any breach or default or alleged breach or default by the Seller, use its best efforts to promptly cure such breach or default and shall give written notice to the Purchaser upon curing such breach or default. (c) To the extent permitted under the Counterparty License Agreement and the Counterparty Consent and solely to the extent the following would have a Material Adverse Change on the Purchased Assets, promptly after the Seller obtains knowledge of a breach of or default under, or an alleged breach of or default under, the Counterparty License Agreement by Counterparty or any other Person (each, a “Defaulting Party”) or of the existence of any facts, circumstances or events that, alone or together with other facts, circumstances or events, Seller reasonably expects (with or without the giving of notice or passage of time, or both) to give rise to a breach of or default under the Counterparty License Agreement by a Defaulting Party or the right to terminate the Counterparty License Agreement (in whole or in part) by the Seller, in each case, the Seller shall promptly (but in any event within ten Business Days) give a written notice to the Purchaser describing in reasonable detail the relevant breach, default or termination event. (d) To the extent consistent with the Counterparty License Agreement and the Counterparty Consent, the Seller shall, at the Purchaser’s request and expense, make available its relevant records and personnel to the Purchaser in connection with any prosecution of litigation by the Seller or the Purchaser against any party to the Counterparty License Agreement to enforce any of the Purchaser’s rights under the Counterparty License Agreement, and provide reasonable assistance and authority to file and bring the litigation, including, if required to bring the litigation, being joined as a party plaintiff. All out-of-pocket third party expenses of the Seller (including reasonable attorney’s fees) incurred pursuant to this Section 5.5(d) shall be promptly reimbursed by the Purchaser.

Counterparty License Agreement. (a) The Seller shall timely perform and comply in all material respects with its duties and obligations under the Counterparty License Agreement and, without the prior written consent of the Purchaser, shall not (i) shall not forgive, release or compromise any Royalties or other Purchased Assets amount owed to or becoming owing to it the Seller or the Purchaser under the Counterparty License Agreement and relating to or affecting the Royalties in any respect, (ii) waive, amend, cancel, terminate or fail to exercise any rights or options constituting or involving the right to receive the Royalties, (iii) except as contemplated by the Transaction Documents, create or permit to exist any Lien on the Counterparty License Agreement, the Purchased Assets or the Intellectual Property Rights, (iv) grant any license, sublicense or other right under the Intellectual Property Rights in respect of the Field in the Territory (except for licenses granted by the Seller to Counterparty under the Counterparty License Agreement as in existence on the Closing Date, any joint ownership interest of UAB that may arise upon any termination of the UAB Agreement (which joint ownership interest would be subject to the license granted by the Seller to Counterparty under the Counterparty License Agreement), or in accordance with Section 4.6(a), (iiv) shall not challenge or assist in a challenge of the legality, validity or enforceability of any of the Intellectual Property Rights in respect of the Field in the Territory, (vi) assign, amendamend (including to add a New Formulation), modify, restate, cancel, supplement, restate, waive, cancel or terminate (or consent to any cancellation or termination of), in whole or in part), consent to any rights constituting termination of (in whole or involving, affecting in part) or relating to the Royalties or other Purchased Assets (including any such rights in waive the Counterparty License Agreement or any provision thereof relating to or right thereunderaffecting the Royalties in any respect or grant any consent under or with respect to the Purchased Assets, RAPIACTA (in respect of the Field in the Territory) or the right to receive the RoyaltiesCounterparty License Agreement, in each case relating to or affecting the extent such assignmentRoyalties in any respect (including in respect of a Third Party New Formulations License), amendment, modification, supplement, restatement, waiver, cancellation, termination (vii) enter into any agreement with Counterparty in respect of or consent would materially adversely affect relating to the Purchased Assets or otherwise adversely affect the timing, amount or duration (in respect of the RoyaltiesField in the Territory) RAPIACTA, except in accordance with Section 4.6(a), (iiiviii) shall not breach any provisions select to make Material Use of the Future Data of Counterparty License Agreement, or (ix) agree to the extent the breach of such duty or obligation would materially adversely affect the Purchased Assets or otherwise adversely affect the timing, amount or duration do any of the Royaltiesforegoing. (b) The Seller shall not, (iv) without the prior written consent of the Purchaser and except pursuant as set forth in Section 4.5(a), exercise or waive any right or option, fail to Section 5.6, shall not enter into exercise any new agreement right or legally binding arrangement option or exercise or fail to exercise any action in respect of the Purchased Assets, the Royalties or the Licensed Product, in each case in respect of the Territory in the Field and in a manner that would materially adversely affect the Purchased Assets or otherwise adversely affect the timing, amount or duration of the Royalties, and (v) shall not waive any obligation of, or grant any consent to, Counterparty under or in respect of the Licensed Product RAPIACTA (in respect of the Territory Field in the FieldTerritory) or the Counterparty License Agreement in any manner that would materially adversely affect the Purchased Assets or otherwise adversely affect the timingwould, amount or duration of the Royalties. in each case, (bi) To the extent permitted under the Counterparty License Agreement and the Counterparty Consent and solely be reasonably likely to the extent the following would have be a Material Adverse Change on or (ii) cause an event of default under, or breach or termination of, this Purchase and Sale Agreement, any other Transaction Document or the Purchased Assets, promptly Counterparty License Agreement. (c) Promptly after (i) receiving notice from Counterparty or any other Person (iA) terminating the Counterparty License Agreement (in whole or in part), (iiB) alleging any breach of or default under the Counterparty License Agreement by the Seller or (iiiC) asserting the existence of any facts, circumstances or events that, alone or together with other facts, circumstances or events, Seller could reasonably expects be expected (with or without the giving of notice or passage of time, or both) to give rise to a breach of or default under the Counterparty License Agreement by the Seller or the right to terminate the Counterparty License Agreement (in whole or in part) by Counterparty pursuant to Section 14.3(a) of the Counterparty License Agreement or (ii) the Seller otherwise has knowledge of any fact, circumstance or event that, alone or together with other Personfacts, circumstances or events, could reasonably be expected (with or without the giving of notice or passage of time, or both) to give rise to a breach of or default under the Counterparty License Agreement by the Seller or give the right to terminate the Counterparty License Agreement (in whole or in part) by Counterparty pursuant to Section 14.3(a) of the Counterparty License Agreement, in each case, the Seller shall (A) promptly give a written notice to the Purchaser describing in reasonable detail the relevant breach, default or termination event, including a copy of any written notice received from Counterparty or the other relevant Person, and, in the case of any breach or default or alleged breach or default by the Seller, describing in reasonable detail any corrective action the Seller proposes to take, and (B) in the case of any breach or default or alleged breach or default by the Seller, use its best commercially reasonable efforts to promptly cure such breach or default and shall give written notice to the Purchaser upon curing such breach or default; provided, however, that, if the Seller fails to promptly cure such breach or default, the Purchaser or the Trustee shall, to the extent permitted by the Counterparty License Agreement, be entitled to take any and all actions the Purchaser considers reasonably necessary to promptly cure such breach or default (including by making a Seller Shortfall Payment), and the Seller shall cooperate with the Purchaser for such purpose and reimburse the Purchaser promptly (but in no event later than five Business Days following notice thereof) for all costs and expenses incurred in connection therewith (including for any such Seller Shortfall Payment funded by the Purchaser or the Trustee), with any such reimbursement to be made directly to the Collection Account. (cd) To the extent permitted under the Counterparty License Agreement and the Counterparty Consent and solely to the extent the following would have a Material Adverse Change on the Purchased Assets, promptly Promptly after the Seller obtains knowledge of a breach of or default under, or an alleged breach of or default under, under the Counterparty License Agreement by Counterparty or any other Person (each, a “Defaulting Party”) or of the existence of any facts, circumstances or events that, alone or together with other facts, circumstances or events, Seller could reasonably expects be expected (with or without the giving of notice or passage of time, or both) to give rise to a breach of or default under the Counterparty License Agreement by a Defaulting Party Counterparty or the right to terminate the Counterparty License Agreement (in whole or in part) by the SellerSeller pursuant to Section 14.2 of the Counterparty License Agreement, in each case, the Seller shall (i) promptly (but in any event within ten Business Days) give a written notice to the Purchaser describing in reasonable detail the relevant breach, default or termination event. event and (dii) To proceed in consultation with the extent consistent Purchaser and take such permissible actions (including commencing legal action against Counterparty and the selection of legal counsel reasonably satisfactory to the Purchaser) to enforce compliance by Counterparty with the relevant provisions of the Counterparty License Agreement and to exercise any or all of the Purchaser’s or the Seller’s rights and remedies, whether under the Counterparty ConsentLicense Agreement or by operation of law, with respect thereto. The Seller acknowledges and agrees that, if an Event of Default occurs and is continuing, the Seller and the Purchaser shall, at the request of the Trustee (at the direction of Noteholders of a majority of the outstanding principal balance of the Notes), jointly with the Trustee enforce their respective contractual rights under the Counterparty License Agreement. (e) The Seller shall (i) subject to the provisions of the Counterparty License Agreement and any rights of Counterparty or UAB, take such actions as are commercially reasonable, and prepare, execute, deliver and file any and all agreements, documents and instruments in connection therewith that are reasonably necessary, to diligently preserve and maintain the Intellectual Property Rights, including payment of maintenance fees or annuities, at the sole expense of the Seller, and (ii) take commercially reasonable measures to diligently defend (and enforce) the Intellectual Property Rights, in such manner as it determines in the exercise of reasonable business judgment, against infringement or interference by any other Person, and against any claims of invalidity or unenforceability, in any relevant jurisdiction (including by bringing legal action for infringement or defending counterclaims of invalidity or action of a third party for declaratory judgment of non-infringement or non-interference), with counsel reasonably satisfactory to the Purchaser and whose reasonable fees and expenses shall be borne by the Seller, in each case, where the failure to defend or enforce the Intellectual Property Rights would reasonably be expected to be a Material Adverse Change. The Seller shall not disclaim or abandon, or fail to take any commercially reasonable action necessary to prevent the disclaimer or abandonment of, any Patents included in the Intellectual Property Rights. The Purchaser shall have the right, at its sole expense, to participate in and control, with counsel appointed by it, any meeting, discussion, action, suit or proceeding involving the infringement, legality, validity or enforceability of the Intellectual Property Rights or the Counterparty License Agreement to the same extent that the Seller has such rights under the Counterparty License Agreement consistent with the exercise of reasonable business judgment, including any counterclaim, settlement discussions or meetings, and the Seller shall exercise and enforce such rights on its own behalf (and on behalf of the Purchaser) to the fullest extent permissible under the terms of the Counterparty License Agreement; provided, that the Seller’s exercise and enforcement of such rights shall not result in a breach of this Purchase and Sale Agreement or a Material Adverse Change; provided, further, that the fees and expenses of the Purchaser’s request and expensecounsel in connection therewith shall be borne by the Seller if such infringement, legality, validity or enforceability is caused by the Seller. (f) Except in connection with an assignment by the Seller to any other Person with which the Seller may merge or consolidate or to which the Seller may sell all or substantially all of its assets or all of its assets related to Licensed Products in accordance with the provisions of Section 7.4, the Seller shall not dispose of or encumber the Intellectual Property Rights (in whole or in part). (g) The Seller shall to the extent reasonably practicable make available its relevant records and personnel to the Purchaser in connection with any prosecution of litigation by the Seller or the Purchaser against any party to the Counterparty License Agreement (other than the Seller) to enforce any of the Purchaser’s rights under the Counterparty License Agreement, and and, to the extent commercially reasonable, provide reasonable assistance and authority to file and bring the litigation, including, if required to bring the litigation, being joined as a party plaintiff. All out-of-pocket third party expenses of the Seller (including reasonable attorney’s fees) incurred pursuant to this Section 5.5(d) shall be promptly reimbursed by the Purchaser.

Counterparty License Agreement. (a) The Seller (i) shall perform and comply in all material respects with its duties and obligations under the Counterparty License Agreement, (ii) shall not forgive, release or compromise any Royalties or other Purchased Assets amount owed to or becoming owing to it under the Counterparty License Agreement, (iiiii) shall not assignnot, without the prior written consent of the Purchaser, assign (other than in accordance with Section 8.4), amend, modify, supplement, restate, waive, cancel or terminate (or consent to any cancellation or termination of), in whole or in part, any rights constituting or involving, affecting or relating to the Royalties or other Purchased Assets (including any such rights in the Counterparty License Agreement or any provision thereof rights constituting or right thereunder) involving or affecting or relating to the Purchased Assets or the right to receive the Royalties, in each case to the extent such assignment, amendment, modification, supplement, restatement, waiver, cancellation, termination or consent would materially adversely affect the Purchased Assets or otherwise adversely affect the timing, amount or duration of the Royalties, (iiiiv) shall not breach any of the provisions of the Counterparty License Agreement, to the extent the breach of such duty or obligation would materially adversely affect the Purchased Assets or otherwise adversely affect the timing, amount or duration of the Royalties, (ivv) except pursuant to Section 5.6, shall not enter into any new agreement or legally binding arrangement in respect of the Purchased Assets, the Royalties Assets or the Licensed Product, in each case MT 400 (solely in respect of the Territory in the Field and in a manner that would materially adversely affect the Purchased Assets or otherwise adversely affect the timingTerritory), amount or duration of the Royalties, and (vvi) shall not waive any obligation of, or grant any consent to, Counterparty under or in respect of the Licensed Product MT 400 (in respect of the Territory Territory), the Counterparty License Agreement or the other Purchased Assets and (vii) shall not agree to do any of the foregoing. (b) The Seller shall not, without the prior written consent of the Purchaser (except as set forth in the Fieldlast sentence of Section 5.1(c) with respect to the Outstanding Litigation), grant any consent or withhold any consent, exercise or waive any right or option, fail to exercise any right or option or take or fail to take any action in respect of, affecting or relating to the Purchased Assets, MT 400 (in respect of the Territory) or the Counterparty License Agreement that would materially adversely affect (including, for the Purchased Assets or otherwise adversely affect avoidance of doubt, the timing, amount or duration conduct of any matters referred to in Section 2.3 of the Royalties. Counterparty License Agreement) in any manner that would, in each case, reasonably be expected to (bi) To result in a Material Adverse Change or (ii) cause an event of default under, or breach or termination of, this Purchase and Sale Agreement, any other Transaction Document or the extent permitted under Counterparty License Agreement. Notwithstanding the foregoing, the Parties agree that (x) the Seller and the Purchaser shall consult with each other in advance of the conduct of any negotiations referred to in Section 2.3 of the Counterparty License Agreement and (y) the Seller shall then proceed, in consultation with the Purchaser, to conduct any negotiations with Counterparty Consent and solely pursuant to such Section 2.3, provided, however, that the Seller shall not effect any agreement with respect to the extent matters referred to in such Section 2.3 without the following prior written consent of the Purchaser (it being understood and agreed that the Purchaser shall, in the course of such negotiations, act in good faith and shall not take any position that would have a Material Adverse Change on cause the Purchased Assets, promptly Seller to breach its obligations under such Section 2.3). (c) Promptly after (i) receiving notice from Counterparty or any other Person (iA) terminating the Counterparty License Agreement (in whole or in part), (iiB) alleging any breach of or default under the Counterparty License Agreement by the Seller or (iiiC) asserting the existence of any facts, circumstances or events that, alone or together with other facts, circumstances or events, Seller could reasonably expects be expected (with or without the giving of notice or passage of time, or both) to give rise to a breach of or default under the Counterparty License Agreement by the Seller or the right to terminate the Counterparty License Agreement (in whole or in part) by Counterparty or (ii) the Seller otherwise has knowledge of any fact, circumstance or event that, alone or together with other Personfacts, circumstances or events, could reasonably be expected (with or without the giving of notice or passage of time, or both) to give rise to a breach of or default under the Counterparty License Agreement by the Seller or give the right to terminate the Counterparty License Agreement (in whole or in part) by Counterparty, in each case, the Seller shall (A) promptly (and in any event within five Business Days) give a written notice to the Purchaser describing in reasonable detail the relevant breach, default or termination event, including a copy of any written notice received from Counterparty or the other relevant PersonCounterparty, and, in the case of any breach or default or alleged breach or default by the Seller, describing in reasonable detail any corrective action the Seller proposes to take, and (B) in the case of any breach or default or alleged breach or default by the Seller, use its best commercially reasonable efforts to promptly cure such breach or default and shall promptly (and in any event within five Business Days) give written notice to the Purchaser upon curing such breach or default; provided, however, that, if the Seller fails to cure such breach or default, the Purchaser shall, to the extent permitted by the Counterparty License Agreement, be entitled to take any and all actions the Purchaser considers reasonably necessary to promptly cure such breach or default, and the Seller shall reasonably cooperate with the Purchaser for such purpose and reimburse the Purchaser promptly (but in no event later than five Business Days following notice thereof) for all costs and expenses incurred in connection therewith. (cd) To the extent permitted under the Counterparty License Agreement and the Counterparty Consent and solely to the extent the following would have a Material Adverse Change on the Purchased Assets, promptly Promptly after the Seller obtains knowledge of a breach of or default under, or an alleged breach of or default under, under the Counterparty License Agreement by Counterparty or any other Person (each, a “Defaulting Party”) or of the existence of any facts, circumstances or events that, alone or together with other facts, circumstances or events, Seller could reasonably expects be expected (with or without the giving of notice or passage of time, or both) to give rise to a breach of or default under the Counterparty License Agreement by a Defaulting Party Counterparty or the right to terminate the Counterparty License Agreement (in whole or in part) by the Seller, in each case, the Seller shall promptly (but in any event i) within ten five Business Days) Days of obtaining such knowledge, give a written notice to the Purchaser describing in reasonable detail the relevant breach, default or termination event. event and (dii) To if requested by the extent consistent Purchaser, proceed in consultation with the Purchaser and take such permissible actions (including commencing legal action against Counterparty with legal counsel selected by the Purchaser, such counsel to be reasonably satisfactory to the Seller) to enforce compliance by Counterparty with the relevant provisions of the Counterparty License Agreement and to exercise any or all of the Purchaser’s or the Seller’s rights and remedies, whether under the Counterparty ConsentLicense Agreement or by operation of law, with respect thereto. The Purchaser shall have the right, at its sole expense, to participate in and control, with counsel appointed by it, any meeting, discussion, action, suit or other proceeding relating to any such breach, default or termination event or alleged breach, default or termination event, including any counterclaim, settlement discussions or meetings; provided, that the fees and expenses of the Purchaser’s counsel in connection therewith shall be borne by the Seller if such breach, default or termination event or alleged breach, default or termination event results from, or is caused by, directly or indirectly, a breach or default by the Seller. The Seller shall make reasonably available its relevant records and personnel to the Purchaser in connection with any prosecution or litigation against Counterparty to enforce any of the Purchaser’s or the Seller’s rights under the Counterparty License Agreement, with Purchaser reimbursing Seller for all of its reasonable out-of-pocket costs and expenses incurred in connection therewith. In the event the Purchaser does not exercise its right to control any meeting, discussion, action, suit or other proceeding under this Section 5.5(d), then the Purchaser shall reimburse Seller for all out-of-pocket costs and expenses (including reasonable attorneys fees) incurred by Seller in connection with enforcing the provisions of this Section 5.5(d); provided, that such out-of-pocket costs and expenses (including the fees and expenses of the Seller’s counsel) shall be borne by the Seller if such breach, default or termination event or alleged breach, default or termination event results from, or is primarily caused by, directly or indirectly, a breach or default by the Seller. Notwithstanding anything to the contrary contained in this Article V, nothing herein shall prevent, restrict or limit the Purchaser from directly enforcing Counterparty’s payment obligations in respect of the Purchased Assets with counsel selected by the Purchaser in its sole discretion. (e) The Seller shall (i) subject to the provisions of the Counterparty License Agreement and any rights of Counterparty thereunder, take such commercially reasonable actions, and prepare, execute, deliver and file any and all agreements, documents and instruments, that are reasonably necessary to diligently preserve and maintain the Intellectual Property Rights, including payment of maintenance fees or annuities, at the sole expense of the Seller, (ii) take commercially reasonable steps to diligently defend (and enforce) the Intellectual Property Rights against infringement or interference by any other Person, and against any claims of invalidity or unenforceability, in any relevant jurisdiction (including by bringing any legal action for infringement or defending counterclaim of invalidity or action of a third party for declaratory judgment of non-infringement or non-interference) in the Territory, and (iii) when available in respect of MT 400, obtain patents and any corrections, substitutions, reissues and reexaminations thereof, obtain patent term extensions and any other forms of patent term restoration in any country of the Territory and obtain patent listing in the FDA Electronic Orange Book. The Seller shall not disclaim or abandon, or fail to take any commercially reasonable action necessary to prevent the disclaimer or abandonment of, the Intellectual Property Rights. The Purchaser shall have the right, at its sole expense, to participate in and control, with counsel appointed by it, any meeting, discussion, action, suit or proceeding (including the Outstanding Litigation) involving the infringement, legality, validity or enforceability of the Intellectual Property Rights or the Counterparty License Agreement to the same extent that the Seller has such rights under the Counterparty License Agreement, including any counterclaim, settlement discussions or meetings, and the Seller shall exercise and enforce such rights on its own behalf (and on behalf of the Purchaser) to the fullest extent permitted under the terms of the Counterparty License Agreement; provided, that the Seller’s exercise and enforcement of such rights shall not result in a breach of this Purchase and Sale Agreement or a Material Adverse Change; provided, further, that the fees and expenses of the Purchaser’s counsel in connection therewith shall be borne by the Seller if such infringement, legality, validity or enforceability is caused by the Seller. In the event the Purchaser does not exercise its right to control any meeting, discussion, action, suit or proceeding under this Section 5.5(e), then the Purchaser shall reimburse Seller for all out-of-pocket costs and expenses (including reasonable attorneys fees) incurred by the Seller in connection with enforcement of the provisions of this Section 5.5(e); provided, that such out-of-pocket costs and expenses (including the fees and expenses of the Seller’s counsel) shall be borne by the Seller if such infringement, legality, validity or enforceability is caused by the Seller. For the avoidance of doubt (but subject to the proviso of the immediately preceding sentence), all out-of-pocket costs and expenses relating to the Outstanding Litigation shall be borne by (x) the Seller, to the extent that such costs and expenses accrued prior to the Closing, and (y) the Purchaser, to the extent that such costs and expenses accrued on or after the Closing. (f) Except in connection with an assignment by the Seller to any other Person with which the Seller may merge or consolidate or to which the Seller may sell all or substantially all of its assets or all of its assets related to MT 400 in accordance with the provisions of Section 8.4, the Seller shallshall not dispose of, at assign or otherwise transfer, or grant, incur or suffer to exist any Lien on the Counterparty License Agreement, the Purchased Assets or any of the Seller’s right, title or interest in and to the Intellectual Property Rights (in whole or in part), without the prior written consent of the Purchaser’s request and expense, . (g) The Seller shall to the extent reasonably practicable make available its relevant records and personnel to the Purchaser in connection with any prosecution of litigation by the Seller or the Purchaser against any party to the Counterparty License Agreement to enforce any of the Purchaser’s or the Seller’s rights under the Counterparty License Agreement, and provide reasonable assistance and authority to file and bring the litigation, including, if required to bring the litigation, being joined as a party plaintiff. All The Purchaser shall reimburse Seller for all out-of-pocket third party costs and expenses of the Seller (including reasonable attorney’s attorneys’ fees) incurred pursuant to in connection with this Section 5.5(d5.5(g). (h) The Seller shall be promptly reimbursed by not exercise the Co-Promotion Option without the prior written consent of the Purchaser.

Counterparty License Agreement. (a) The Seller (i) shall perform and comply in all material respects with its duties and obligations under the Counterparty License Agreement, (ii) except as set forth under this Purchase and Sale Agreement, shall not forgive, release or compromise any Royalties or other Purchased Assets amount owed to or becoming owing to it under the Counterparty License Agreement, (iiiii) shall not, without the consent of the Purchaser (such consent not to be unreasonably withheld, delayed or conditioned) assign, amend, modify, supplement, restate, waive, cancel or terminate (or consent to any cancellation or termination of), in whole or in part, any rights constituting or involving, affecting or relating to the Royalties or other Purchased Assets (including any such rights in the Counterparty License Agreement or any provision thereof or right thereunder) or the right to receive the Royalties, in each case to Royalties under the extent such assignment, amendment, modification, supplement, restatement, waiver, cancellation, termination or consent would materially adversely affect the Purchased Assets or otherwise adversely affect the timing, amount or duration of the RoyaltiesCounterparty License Agreement, (iiiiv) shall not breach in any material respects any of the provisions of the Counterparty License Agreement, Agreement relevant to the extent the breach of such duty or obligation would materially adversely affect the Purchased Assets or otherwise adversely affect the timing, amount or duration of the RoyaltiesAssets, (ivv) except pursuant to Section 5.6, shall not enter into any new agreement or legally binding arrangement in respect of the Purchased Assets, the Royalties or the Licensed Product, in each case Products (in respect of the Territory in the Field and in a manner that would materially adversely affect Field), (vi) shall not, without the Purchased Assets or otherwise adversely affect the timing, amount or duration consent of the RoyaltiesPurchaser (such consent not to be unreasonably withheld, and (v) shall not delayed or conditioned), waive any obligation of, or grant any consent to, Counterparty under the Counterparty License Agreement in respect of the Purchased Assets or, to the extent relevant to the Purchased Assets, under or in respect of the Licensed Product Products (in respect of the Territory in the Field), (vii) shall not alter or change the payment instructions contained in the Counterparty Instruction without the prior written consent of the Purchaser, and (viii) except pursuant to Section 5.6, shall not agree to do any of the foregoing. Notwithstanding anything to contrary contained anywhere in this Purchase and Sale Agreement, in no event shall it be considered unreasonable for Purchaser to withhold its consent in the event the requested consent would reasonably be expected to have a material adverse effect on the Purchaser’s rights to receive, or the amount of, the Royalties under the Counterparty License Agreement. (b) The Seller shall not, without the consent of the Purchaser (such consent not to be unreasonably withheld, delayed or conditioned) and except as set forth in Section 5.5(a), withhold any consent, exercise or waive any right or option, fail to exercise any right or option or exercise or fail to exercise any action in respect of, affecting or relating to the Purchased Assets, the Products (in respect of the Territory in the Field) or the Counterparty License Agreement in any manner that would materially adversely affect the Purchased Assets or otherwise adversely affect the timingwould, amount or duration of the Royalties. in each case, (bi) To the extent permitted under the Counterparty License Agreement and the Counterparty Consent and solely to the extent the following would have be a Material Adverse Change on the Purchased Assetsor (ii) conflict with or cause a default under, promptly or breach or termination of, this Purchase and Sale Agreement or any other Transaction Document. (c) Promptly after (i) receiving notice from Counterparty or any other Person (iA) terminating the Counterparty License Agreement (in whole or in part), (iiB) alleging any a material breach of or material default under the Counterparty License Agreement by the Seller or (iiiC) asserting the existence of any facts, circumstances or events that, alone or together with other facts, circumstances or events, Seller could reasonably expects be expected (with or without the giving of notice or passage of time, or both) to give rise to a material breach of or default under the Counterparty License Agreement by the Seller or the right to terminate the Counterparty License Agreement (in whole or in part) by Counterparty or any other Person or (ii) the Seller otherwise has knowledge of any fact, circumstance or event that, alone or together with other facts, circumstances or events, would (with or without the giving of notice or passage of time, or both) give rise to a material breach of or default under the Counterparty License Agreement by the Seller or give the right to terminate the Counterparty License Agreement (in whole or in part) by Counterparty or any other Person, in each case, the Seller shall (A) promptly (and in any event within five Business Days) give a written notice to the Purchaser describing in reasonable detail the relevant breach, default or termination event, including a copy of any written notice received from Counterparty or the other relevant Person, and, in the case of any breach or default or alleged breach or default by the Seller, describing in reasonable detail any corrective action the Seller proposes to take, and (B) in the case of any material breach or default or alleged breach or default by the Seller, use its reasonable best efforts to promptly cure such breach or default (if it is curable by the Seller) and shall give written notice to the Purchaser upon curing such breach or default; provided, however, that, if the Seller fails to promptly cure any such breach or default, the Purchaser shall, to the extent permitted by the Counterparty License Agreement, be entitled to take any and all actions the Purchaser considers reasonably necessary to promptly cure such breach or default, and the Seller shall cooperate with the Purchaser for such purpose and reimburse the Purchaser promptly (but in no event later than ten Business Days) following demand for all reasonable costs and expenses incurred in connection therewith. (cd) To the extent permitted under the Counterparty License Agreement and the Counterparty Consent and solely to the extent the following would have a Material Adverse Change on the Purchased Assets, promptly Promptly after the Seller obtains knowledge of a material breach of or default under, or an alleged material breach of or default under, the Counterparty License Agreement by Counterparty or any other Person (each, a “Defaulting Party”) or of the existence of any facts, circumstances or events that, alone or together with other facts, circumstances or events, Seller reasonably expects would (with or without the giving of notice or passage of time, or both) to give rise to a material breach of or material default under the Counterparty License Agreement by a Defaulting Party or the right to terminate the Counterparty License Agreement (in whole or in part) by the Seller, in each case, the Seller shall (i) promptly (but in any event within ten five Business Days) give a written notice to the Purchaser describing in reasonable detail the relevant breach, default or termination event. event and (dii) To proceed in consultation with the extent consistent Purchaser and take such permissible actions (including commencing legal action against the Defaulting Party and the selection of legal counsel reasonably satisfactory to the Purchaser) to enforce compliance by the Defaulting Party with the relevant provisions of the Counterparty License Agreement and to exercise any or all of the Purchaser’s or the Seller’s rights and remedies, whether under the Counterparty ConsentLicense Agreement or by operation of law, with respect thereto. The Purchaser shall have the right to participate in, with counsel appointed by it, any meeting, discussion, action, suit or other proceeding relating to any such material breach, material default or termination event or alleged material breach, material default or termination event, including any counterclaim, settlement discussions or meetings. All reasonable costs and expenses (including attorneys’ fees and expenses) incurred by Seller or Purchaser (other than fees for Purchaser’s separate counsel in the event Seller is already using counsel approved by Purchaser) in connection with the enforcement of the Counterparty License Agreement shall, to the extent not reimbursed by the Counterparty pursuant to the Counterparty License Agreement, be borne by Seller; provided, however, that in no event shall the Seller be obligated to bear the reasonable costs and expenses incurred by the Purchaser pursuant to this Section 5.5(d) in an amount greater than [*****]. (e) The Seller shall, subject to the provisions of the Counterparty License Agreement and any rights of Counterparty thereunder, take any and all actions, and prepare, deliver and file any and all documents and instruments, that are reasonably necessary to preserve and maintain the Licensed Patents in the jurisdictions set forth in Exhibit C or such other jurisdictions agreed to in writing between the Seller and Counterparty in accordance with the Counterparty License Agreement, including payment of maintenance fees or annuities relating thereto, at the sole expense of the Seller (or Counterparty, as applicable in accordance with the Counterparty License Agreement. Except in accordance with the Counterparty License Agreement, and with the consent of the Purchaser (such consent not to be unreasonably withheld, delayed or conditioned), the Seller shallshall not disclaim or abandon, or fail to take any action necessary or desirable to prevent the disclaimer or abandonment of, any Licensed Patents. (f) The Seller shall diligently enforce its rights under Section 8.2 and Section 8.3 of the Counterparty License Agreement with respect to any alleged or threatened infringement of any of the Licensed Patents by any other Person in the Field (an “Infringement”), and against any claims of invalidity or unenforceability (each, an “Invalidity Claim”), in any jurisdiction in the Territory. In the event that the Seller becomes aware, or receives written notice, of any actual or suspected Infringement of any Licensed Patents in the Field or of any Invalidity Claim, then promptly (and in any event within five Business Days) following the Seller becoming aware or receiving such notice of such Infringement or Invalidity Claim, the Seller shall inform the Purchaser of such Infringement or Invalidity Claim (and shall provide the Purchaser with a copy of such written notice, if applicable). The Seller and the Purchaser shall consult with each other (and the Counterparty) with a view to determining the appropriate course of action to take with respect to such Infringement or Invalidity Claim. To the extent the Seller has the right pursuant to Section 8.2 or Section 8.3 of the Counterparty License Agreement to institute suit or other legal proceedings to enforce the Licensed Patents against a third party in respect of any Infringement or to defend the Licensed Patents against any Invalidity Claim, then promptly (and in any event within five Business Days) following the Seller becoming aware of such right of the Seller, the Seller shall provide notice of such right to the Purchaser. The Seller may, and if requested in writing by the Purchaser (at the Purchaser’s request expense) within five Business Days after receipt by the Purchaser of notice of such right pursuant to the foregoing sentence, shall, proceed, in consultation with the Purchaser and the Counterparty or allow the Counterparty to proceed in accordance with Section 8.2 or Section 8.3, as applicable, (i) in the case of Infringement, use commercially reasonable efforts to institute such a suit or other legal proceeding and enforce the Licensed Patents, and to exercise such rights and remedies, relating to such Infringement as shall be available to the Seller (or Counterparty, as applicable) under Applicable Law, or (ii) in the case of an Invalidity Claim, to use commercially reasonable efforts to defend the Licensed Patents against such Invalidity Claim, but, in each case of clauses (i) and (ii), subject to the terms and conditions of the Counterparty License Agreement. In connection with any such enforcement or defense of the Licensed Patents by Seller, the Seller shall employ counsel reasonably acceptable to the Purchaser. The Purchaser shall have the right, at its sole expense, to direct the Seller’s exercise and enforcement of its rights (on its own behalf and on behalf of the Seller) under the Counterparty License Agreement in connection with any Infringement or Invalidity Claim to the fullest extent permitted under the terms of the Counterparty License Agreement; provided, that the Seller’s exercise and enforcement of such rights shall not result in a breach of this Purchase and Sale Agreement or the Counterparty License Agreement or a Material Adverse Change. Without limiting the foregoing, if the Seller shall have a consent right pursuant to Section 8.3 of the Counterparty License Agreement with respect to any allegation that the activities of the Seller or the Counterparty infringe a third party’s patent rights with respect to the Products, the Seller shall not grant such consent without first obtaining the prior written consent of the Purchaser (such consent not to be unreasonably withheld, delayed or conditioned). All out-of-pocket costs and expenses (including attorneys’ fees and expenses) incurred by Seller or Purchaser in connection with the prosecution, maintenance, defense or enforcement of the Licensed Patents and the enforcement of Section 8.2 and Section 8.3 of the Counterparty License Agreement shall, to the extent not reimbursed by the Counterparty pursuant to the Counterparty License Agreement, be borne by the party incurring such out-of-pocket costs and expenses; provided, however, that any such out-of-pocket costs and expenses incurred in connection with the prosecution, maintenance, defense or enforcement of the Licensed Patents and the enforcement of Section 8.2 and Section 8.3 of the Counterparty License Agreement at the direction of the Purchaser shall, to the extent not reimbursed by the Counterparty pursuant to the Counterparty License Agreement, be borne by the Seller; provided, however, that in no event shall the Seller be obligated to bear the reasonable costs and expenses incurred by the Purchaser pursuant to this Section 5.5(f) in an amount greater than [*****]. Any reimbursement of costs by the Counterparty shall be paid to the party (Seller or Purchaser) who incurred such costs. Any settlement amounts or other amounts recovered by Seller/Purchaser in respect of lost Royalties (and not as recovery for expenses or other damages) shall be considered Royalties hereunder, shall be credited to the period for which such Royalties would have been earned for purposes of calculating the Contingent Payments and shall belong to the Purchaser. (g) Except in connection with an assignment by the Seller to any other Person with which the Seller may merge or consolidate or to which the Seller may sell all or substantially all of its assets or all of its assets related to the Products in accordance with the provisions of Section 8.3, and except in connection with the Seller’s commercial lending arrangements, the Seller shall not dispose of or encumber the Licensed Patents (in whole or in part). (h) The Seller shall make available its relevant records and shall make reasonable efforts to make available relevant personnel to the Purchaser in connection with any prosecution of litigation by the Seller or the Purchaser against any party to the Counterparty License Agreement to enforce any of the Purchaser’s rights under the Counterparty License Agreement, and provide reasonable assistance and authority to file and bring the litigation, including, if required to bring the litigation, being joined as a party plaintiff. All out-of-pocket third party expenses of the Seller (including reasonable attorney’s fees) incurred pursuant to this Section 5.5(d) shall be promptly reimbursed by the Purchaser.