Litigation Control The Master Servicer, with respect to litigation involving non-Specially Serviced Mortgage Loans (other than any Non-Serviced Mortgage Loan), and the Special Servicer, with respect to litigation involving Specially Serviced Mortgage Loans and the enforcement of the obligations of a Mortgagor under the related Specially Serviced Mortgage Loan documents, and in each case where the Master Servicer or the Special Servicer, as applicable, contemplates availing itself of indemnification as provided for under this Agreement, shall, for the benefit of the Certificateholders, direct, manage, prosecute, defend and/or settle any and all claims and litigation relating to any action brought by the Mortgagor against the Trust or the Master Servicer or the Special Servicer, as applicable, with respect to any such Mortgage Loan (the foregoing rights and obligations, “Litigation Control”). Such Litigation Control shall be carried out in accordance with the terms of this Agreement, including, without limitation, the Servicing Standard. Upon becoming aware of or being named in any claims or litigation, the Master Servicer or Special Servicer, as applicable, shall promptly notify the Controlling Class Representative (during any Subordinate Control Period or any Collective Consultation Period) and the Special Servicer (in the case of the Master Servicer) and the Master Servicer (in the case of the Special Servicer) of such claims or litigation, and the Master Servicer and the Special Servicer, as applicable, shall prepare and submit a notice of such claims or litigation to the 17g-5 Information Provider (subject to Section 5.7) (and the 17g-5 Information Provider shall promptly post same on the 17g-5 Information Provider’s Website pursuant to Section 5.7). The Special Servicer (with respect to Specially Serviced Mortgage Loans) and the Master Servicer (with respect to non-Specially Serviced Mortgage Loans), as applicable, shall, during any Subordinate Control Period or any Collective Consultation Period, consult with and keep the Controlling Class Representative advised of any material development concerning Litigation Control, including, without limitation, (i) any material decision concerning Litigation Control and the implementation thereof and (ii) any decision to agree to or propose any terms of settlement, and shall, during any Subordinate Control Period, submit (in written form) any such development or decision to the Controlling Class Representative for its approval or consent. During any Subordinate Control Period and subject to the Servicing Standard, the Master Servicer or the Special Servicer, as applicable, shall not take any action implementing any such material development or decision described in the preceding sentence unless and until it has provided such notice to the Controlling Class Representative and the Controlling Class Representative has not objected in writing within five (5) Business Days of receipt of such notice and all information that the Controlling Class Representative has reasonably requested with respect thereto. The Controlling Class Representative shall be deemed to have approved the taking of such action if such written objection has not been received by the Master Servicer or the Special Servicer, as applicable, within such 5-Business Day period. Notwithstanding the foregoing, if the Master Servicer or the Special Servicer, as applicable, determines that immediate action is necessary to protect the interests of the Certificateholders (as a collective whole) and Master Servicer or the Special Servicer, as applicable, has confirmed (during any Subordinate Control Period) that the Controlling Class Representative has received written notice of such action, then the Master Servicer or the Special Servicer, as applicable, may take such action without waiting for the Controlling Class Representative’s response. Notwithstanding anything contained herein to the contrary, with respect to any Litigation Control relating to a non-Specially Serviced Mortgage Loan that has either (i) been satisfied or paid in full, or (ii) as to which a Final Recovery Determination has been made, after receiving the required notice from the Master Servicer or Special Servicer set forth above that the Master Servicer or Special Servicer, as applicable, became aware of or was named in any such claims or litigation, the Controlling Class Representative (during any Subordinate Control Period) or the Special Servicer (during any Collective Consultation Period or Senior Consultation Period) may direct in writing that such Litigation Control be exercised by the Special Servicer; provided, that the Controlling Class Representative or the Special Servicer in accordance with the Servicing Standard, as applicable, has determined and advised the Master Servicer that the Master Servicer’s actions with respect to such obligations are indemnifiable under this Agreement, and accordingly, any loss, liability or expense (including legal fees and expenses incurred up until the date such Litigation Control is so transferred and is not otherwise paid to the Master Servicer pursuant to this Agreement) shall be payable by the Trust. Notwithstanding the foregoing, no advice, direction or objection of, or consent withheld by, the Controlling Class Representative shall (i) require or cause the Special Servicer or the Master Servicer, as applicable, to violate the terms of any Mortgage Loan document, any Intercreditor Agreement or similar agreement, applicable law or any provision of this Agreement, including the Master Servicer’s and Special Servicer’s obligation to act in accordance with the Servicing Standard and the related Mortgage Loan documents and to maintain the REMIC status of any REMIC created under this Agreement, or (ii) result in an Adverse REMIC Event with respect to any REMIC created under this Agreement or an Adverse Grantor Trust Event with respect to the Grantor Trust or have adverse tax consequences for the Trust Fund, or (iii) expose any party to this Agreement, any Seller, any Underwriter or Initial Purchaser, any Sub-Servicer or the Trust Fund or any of their respective Affiliates, officers, directors, partners, members, managers, employees or agents to any claim, suit, or liability for which this Agreement does not provide indemnification to such party or expose any such party to prosecution for a criminal offense, or (iv) materially expand the scope of the Master Servicer’s, the Special Servicer’s, the Certificate Administrator’s, the Trustee’s or the Trust Advisor’s responsibilities under this Agreement. In addition, neither the Master Servicer nor the Special Servicer will follow any such advice, direction or objection if given by the Controlling Class Representative, or initiate any such actions, that would have the effect described in clauses (i)-(iv) of the preceding sentence. Notwithstanding anything herein to the contrary, the Master Servicer shall retain the right to make all determinations relating to any claims or judgments against the Master Servicer, including but not limited to the right to engage separate counsel in the Master Servicer’s reasonable discretion, the cost of which shall be subject to indemnification hereunder. Notwithstanding anything herein to the contrary, (i) if any action, suit, litigation or proceeding names the Certificate Administrator, the Trustee or the Custodian, as applicable, in its individual capacity, or if any judgment is rendered against the Certificate Administrator, the Trustee or the Custodian, as applicable, in its individual capacity, the Certificate Administrator, the Trustee or the Custodian, as applicable, upon prior written notice to the Master Servicer or the Special Servicer, as applicable, may retain counsel and appear in any such proceeding on its own behalf in order to protect and represent its interests (but not to otherwise direct, manage or prosecute such litigation or claim); (ii) in any action, suit, litigation or proceeding, other than an action, suit, litigation or proceeding directly relating to the enforcement of the obligations of a Mortgagor, guarantor or other obligor under the related Mortgage Loan documents, or otherwise directly relating to one or more Mortgage Loans or Mortgaged Properties, neither of the Master Servicer nor the Special Servicer shall, without the prior written consent of the Certificate Administrator, the Trustee or the Custodian, as applicable, (A) initiate any action, suit, litigation or proceeding in the name of the Certificate Administrator, the Trustee or the Custodian, as applicable, whether in such capacity or individually, (B) engage counsel to represent the Certificate Administrator, the Trustee or the Custodian, as applicable, or (C) prepare, execute or deliver any government filings, forms, permits, registrations or other documents or take any other similar action with the intent to cause, and that actually causes, the Certificate Administrator, the Trustee or the Custodian, as applicable, to be registered to do business in any state (provided that neither the Master Servicer nor the Special Servicer shall be responsible for 342 any delay due to the unwillingness of the Certificate Administrator, the Trustee or the Custodian, as applicable, to grant such consent); and (iii) if any court finds that the Certificate Administrator, the Trustee or the Custodian, as applicable, is a necessary party in respect of any action, suit, litigation or proceeding relating to or arising from this Agreement or any Mortgage Loan, the Certificate Administrator, the Trustee or the Custodian, as applicable, shall have the right to retain counsel and appear in any such proceeding on its own behalf in order to protect and represent its interest, whether as Certificate Administrator, the Trustee or the Custodian, as applicable, or individually (but not to otherwise direct, manage or prosecute such litigation or claim). Nothing in this paragraph shall be interpreted to preclude either the Master Servicer or the Special Servicer from initiating any Litigation Control related action, suit, litigation or proceeding in its name as a representative of the Trust Fund.
Infringement Claims If the manufacture, sale or use of any Licensed Product in the Territory pursuant to this Agreement results in any claim, suit or proceeding alleging patent infringement against Unigene or GSK, such Party shall promptly notify the other Party hereto. If GSK is not named as a Party in such a claim, suit or proceeding, GSK may, at its own expense and through counsel of its own choice, seek leave to intervene in such claim, suit or proceeding. Unigene agrees not to oppose such intervention. If GSK, and not Unigene, is named as a Party to such claim, suit or proceeding, GSK shall have the right to control the defense and settlement of such claim, suit or proceeding, at its own expense, using counsel of its own choice, however Unigene, at its own expense and through counsel of its own choice, may seek to intervene if the claim, suit or proceeding relates to the commercialization of the Licensed Product in the Field, and in such event, GSK agrees not to oppose such intervention. If GSK is named as a Party and Unigene shall, at any time, tender its defense to GSK, then GSK shall defend Unigene in such claim, suit or proceeding, at GSK’s own expense and through counsel of its own choice, and GSK shall control the defense and settlement of any such claim, suit or proceeding; provided, GSK shall not enter into any agreement which (i) extends or purports to exercise GSK’s rights under Unigene’s Licensed Technology beyond the rights granted pursuant to this Agreement, (ii) makes any admission regarding (a) wrongdoing on the part of Unigene, or (b) the invalidity, unenforceability or absence of infringement of any Unigene Patent Rights or Joint Patent Rights, without the prior written consent of Unigene, which consent shall not be unreasonably withheld. The Parties shall cooperate with each other in connection with any such claim, suit or proceeding and shall keep each other reasonably informed of all material developments in connection with any such claim, suit or proceeding. Nothing in this Section 6.5 shall limit or modify the provisions of Article 9, which may apply to such infringement claims as discussed herein.
