Waiver of Sovereign Immunity Each Loan Party that is incorporated outside the United States, in respect of itself, its Subsidiaries, its process agents, and its properties and revenues, hereby irrevocably agrees that, to the extent that such Loan Party or its respective Subsidiaries or any of its or its respective Subsidiaries’ properties has or may hereafter acquire any right of immunity, whether characterized as sovereign immunity or otherwise, from any legal proceedings, whether in the United States or elsewhere, to enforce or collect upon the Loans or any Loan Document or any other liability or obligation of such Loan Party or any of their respective Subsidiaries related to or arising from the transactions contemplated by any of the Loan Documents, including, without limitation, immunity from suit, immunity from service of process, immunity from jurisdiction or judgment of any court or tribunal, immunity from execution of a judgment, and immunity of any of its property from attachment prior to any entry of judgment, or from attachment in aid of execution upon a judgment, such Loan Party, for itself and on behalf of its Subsidiaries, hereby expressly waives, to the fullest extent permissible under applicable law, any such immunity, and agrees not to assert any such right or claim in any such proceeding, whether in the United States or elsewhere. Without limiting the generality of the foregoing, each Loan Party further agrees that the waivers set forth in this Section 10.25 shall have the fullest extent permitted under the Foreign Sovereign Immunities Act of 1976 of the United States and are intended to be irrevocable for purposes of such Act.
Enforcement and Defense (a) Each Party shall promptly notify the other of any knowledge it acquires of any potential infringement of the Collaboration Patents by a Third Party.
(b) If any Patent within the Collaboration Patents is infringed by a Third Party in any country in the Territory in connection with the manufacture, use and sale of a product the same as or substantially similar to a Product in the Field in such country, TESARO shall have the primary right, but not the obligation, to institute, prosecute, and control any action or proceeding with respect to such infringement of such Patent, by counsel of its own choice, and AnaptysBio shall have the right, at its own expense, to be represented in that action by counsel of its own choice. If TESARO fails to bring an action or proceeding within a period of one hundred twenty (120) days after a request by AnaptysBio to do so, AnaptysBio shall have the right to bring and control any such action by counsel of its own choice, and TESARO shall have the right to be represented in any such action by counsel of its own choice at its own expense.
(c) If one Party brings an action or proceeding in accordance with Section 9.3(b), the second Party agrees to be joined as a party plaintiff if necessary and to give the first Party reasonable assistance and authority to file and prosecute the suit. The costs and expenses of the Party bringing suit under this Section shall be borne by such Party, and any damages or other monetary awards recovered shall be shared as follows: The amount of such recovery actually received by the Party controlling such action shall first be applied to the out-of- pocket costs of such action, and then (i) if TESARO is the Party that brings such action or proceeding, then AnaptysBio shall be paid an amount equal to the royalties, if any, that would have been due upon sales of the infringing product as if such infringing sales had been Net Sales of a Product sold by or under the authority of TESARO, and the remaining portion of such recovery shall be paid to TESARO, or (ii) if AnaptysBio is the Party that brings such action or proceeding, then the remaining portion of such recovery shall be retained by AnaptysBio. A settlement or consent judgment or other voluntary final disposition of a suit under this Section 9.3 may be entered into without the consent of the Party not bringing the suit. Neither Party shall, however, have the right to enter into any settlement or consent to any claim to the effect that the patent protection offered under any part of the Collaboration Patents would be materially negatively affected, without the consent of the other Party, such consent not to be unreasonably withheld.
Enforcement of Alienation Clauses (a) If the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the assignment of the related Mortgaged Property to, and assumption of such Mortgage Loan by, another Person, or the transfers of interests in the related Borrower, in each case upon the satisfaction of specified conditions, prohibits such an assignment and assumption or transfer except upon the satisfaction of specified conditions or fully prohibits such an assignment and assumption or transfer, and the related Borrower (and/or the holders of interests in such Borrower) requests approval for such an assignment and assumption or transfer or enters into a transfer of the related Mortgaged Property or of interest(s) in such Borrower in violation of the related Mortgage Loan Documents, or if the provisions of any Serviced Mortgage Loan or Serviced Loan Combination expressly permits the further encumbrance of the related Mortgaged Property upon the satisfaction of specified conditions, prohibits such a further encumbrance except upon the satisfaction of specified conditions or fully prohibits such a further encumbrance, in each case, other than an encumbrance with respect to a Co-op Mortgage Loan as to which the NCB, FSB Subordinate Debt Conditions have been satisfied, and the related Borrower requests approval for such a further encumbrance or enters into a further encumbrance in violation of the related Mortgage Loan Documents, the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) or the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall obtain the relevant information and review and make a determination to either (i) disapprove such request for approval of an assignment and assumption or transfer or further encumbrance (in the case of a Borrower request for approval thereof) and not waive any violation of the relevant due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic interest of the Trust and, if applicable, any affected Serviced Pari Passu Companion Loan Holder(s) (as a collective whole), approve the request or waive the effect of the due-on-sale or due-on-encumbrance clause; provided that all of the following conditions and/or restrictions shall apply:
(A) subject to Section 3.08(c), the applicable Master Servicer shall not enter into such a waiver or approval for any Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan, unless such Master Servicer has obtained the consent of the applicable Special Servicer (it being understood and agreed that (1) the applicable Master Servicer shall promptly provide the applicable Special Servicer with (x) written notice of any Borrower request for such assignment and assumption or such encumbrance, (y) the applicable Master Servicer’s written recommendations and analysis, and (z) all information reasonably available to the applicable Master Servicer that the applicable Special Servicer may reasonably request in order to withhold or grant any such consent, (2) the applicable Special Servicer shall decide whether to withhold or grant such consent in accordance with the Servicing Standard (and subject to Section 3.24, and/or Section 3.26 if and as applicable), and (3) if any such consent has not been expressly denied within fifteen (15) Business Days (or at least five (5) Business Days after the time period provided for in the related Intercreditor Agreement) of the applicable Special Servicer’s receipt from the applicable Master Servicer of the applicable Master Servicer’s written recommendations and analysis and all information reasonably requested thereby and reasonably available to the applicable Master Servicer in order to make an informed decision, such consent shall be deemed to have been granted;
(B) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved and the affected Serviced Mortgage Loan is a Mortgage Loan that (together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan) is one of the ten largest Mortgage Loans then in the Trust, has a Cut-off Date Principal Balance in excess of $20,000,000, or if a Serviced Loan Combination is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) and in the case of a Serviced Loan Combination, the equivalent confirmation from each Pari Passu Companion Rating Agency with respect to the related Serviced Pari Passu Companion Loan Securities; and
(C) if approval of a further encumbrance or waiver of a due-on-encumbrance provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless and until such approval or waiver is the subject of a Rating Agency Confirmation (subject to Section 3.27) if the related Serviced Mortgage Loan (a) represents 2% or more of the then-aggregate principal balance of all of the Mortgage Loans then in the Trust Fund, (b) is one of the ten largest Mortgage Loans then in the Trust Fund by principal balance, (c) has an aggregate loan-to-value ratio (including existing and proposed additional debt) that is equal to or greater than 85% or (d) has an aggregate debt service coverage ratio (including the debt service on the existing and proposed additional debt) that is less than 1.20x;
(D) if approval of an assignment and assumption or waiver of a due-on-sale provision is involved, then, subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver with respect to any Mortgaged Property which secures a Cross-Collateralized Group unless (i) all of the Mortgaged Properties securing such Cross-Collateralized Group are transferred simultaneously by the respective Borrower(s) or (ii) either (x) in the case of the applicable Master Servicer, it has obtained the consent of the applicable Special Servicer (pursuant to the approval procedures described in clause (A) above) or (y) in the case of the applicable Special Servicer, it has obtained the consent of the Subordinate Class Representative, if and to the extent required under Sections 3.24 and/or Section 3.26, as applicable);
(E) subject to the related Mortgage Loan Documents and applicable law, neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter into such approval or waiver unless all associated costs and expenses (including the costs of any Rating Agency Confirmation) are covered without any expense to the Trust or (in the case of a Serviced Loan Combination) any expense to any related Serviced Pari Passu Companion Loan Holder(s) (it being understood and agreed that, except as expressly provided herein, neither the applicable Master Servicer nor the applicable Special Servicer shall be obligated to cover or assume any such costs or expenses) and if the related Borrower refuses to pay any such costs and expenses then the applicable Master Servicer or applicable Special Servicer, as applicable, shall be permitted to deny the related request;
(F) neither the applicable Master Servicer (with respect to a Performing Serviced Mortgage Loan and, if applicable, any related Performing Serviced Pari Passu Companion Loan) nor the applicable Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall, in connection with any such approval or waiver, consent or agree to any modification, waiver or amendment of any term or provision of such Serviced Mortgage Loan that would result in an Adverse REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to the Grantor Trust Pool; and
(G) the applicable Special Servicer shall not consent to the applicable Master Servicer’s recommendation described in clause (A) above, or itself enter into such an approval or waiver, unless the applicable Special Servicer has complied with Section 3.24 and/or Section 3.26, as applicable. Notwithstanding the foregoing, in no event will the applicable Master Servicer’s approval of an assignment and assumption or further encumbrance be conditioned on the approval or absence of objection from the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such Master Servicer approval) if either (x) the NCB, FSB Subordinate Debt Conditions have been met with respect to a Co-op Mortgage Loan or (y)(a) the transaction is permitted under the related Mortgage Loan Documents and (b) the conditions to the transaction that are set forth in the related Mortgage Loan Documents do not include the approval of the lender or the exercise of lender discretion (other than confirming the satisfaction of the other conditions to the transaction set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion). Notwithstanding the foregoing, and regardless of whether a particular Co-op Mortgage Loan contains specific provisions regarding the incurrence of subordinate debt, or prohibits the incurrence of subordinate debt, or requires the consent of the Mortgagee in order to incur subordinate debt, the NCB Master Servicer may, nevertheless, in accordance with the Servicing Standard, without the need to obtain any consent or approval hereunder (and without the need to obtain a Rating Agency Confirmation), permit the related Borrower to incur subordinate debt if the NCB, FSB Subordinate Debt Conditions have been met; provided that, subject to the related Mortgage Loan Documents and applicable law, the NCB Master Servicer shall not waive any right it has, or grant any consent it is otherwise entitled to withhold, in accordance with any related “due-on-encumbrance” clause under any Mortgage Loan, pursuant to this paragraph, unless in any such case, all associated costs and expenses are covered without any expense to the Trust.
(b) In connection with any permitted assumption of any Serviced Mortgage Loan or Serviced Loan Combination or waiver of a “due-on-sale” or “due-on-encumbrance” clause thereunder, the applicable Master Servicer (in the case of a Performing Serviced Mortgage Loan) or the applicable Special Servicer (in the case of a Specially Serviced Mortgage Loan) shall prepare all documents necessary and appropriate for such purposes and shall coordinate with the related Borrower for the due execution and delivery of such documents.
(c) Notwithstanding Section 3.08(a), in connection with any transfer of an interest in the related Borrower under a Performing Serviced Mortgage Loan or related Serviced Pari Passu Companion Loan, the applicable Master Servicer shall have the right to grant its consent to the same without the consent or approval of the applicable Special Servicer (or the applicable Special Servicer interacting with the Subordinate Class Representative in connection with such applicable Master Servicer consent) if such transfer is allowed under the terms of the related Mortgage Loan Documents without the exercise of any lender approval or discretion other than confirming the satisfaction of the other conditions to the transfer set forth in the related Mortgage Loan Documents that do not include any other approval or exercise of discretion and does not involve incurring new mezzanine indebtedness, including a consent to transfer to any subsidiary or affiliate of such Borrower or to a person acquiring less than a majority interest in such Borrower; provided that, subject to the terms of the related Mortgage Loan Documents and applicable law, if (i) the affected Serviced Mortgage Loan is or relates to a Mortgage Loan that, together with all other Mortgage Loans, if any, that are in the same Cross-Collateralized Group as such Mortgage Loan or have the same Borrower as such Mortgage Loan or have Borrowers that are known to be affiliated with the Borrower under such Mortgage Loan, is one of the then-current top ten Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool, has a Cut-off Date Principal Balance in excess of $20,000,000, or has a Stated Principal Balance that equals or exceeds 5% of the then-aggregate Stated Principal Balance of the Mortgage Pool, or a Serviced Loan Combination is involved and the related Other Pooling and Servicing Agreement would require Rating Agency Confirmation if such Serviced Loan Combination was serviced thereunder, and (ii) the transfer is of an interest in the Borrower greater than 49% or otherwise would result in a change in control of the Borrower (for these purposes, “control” when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms “controlling” and “controlled” have meanings correlative to the foregoing), then the applicable Master Servicer shall not consent to such transfer unless and until such transfer is the subject of a Rating Agency Confirmation (subject to Section 3.27) (and, in the case of any applicable Serviced Mortgage Loan that is part of a Loan Combination, an analogous rating agency confirmation from each Pari Passu Companion Rating Agency, if applicable pursuant to Section 3.27(k)) (the costs of which are to be payable by the related Borrower to the extent provided for in the related Mortgage Loan Documents, which provisions shall not be waived by the applicable Master Servicer, and, if not paid, such costs shall be paid by and reimbursed to the applicable Master Servicer as an Additional Trust Fund Expense). The applicable Master Servicer shall be entitled to collect and receive from Borrowers any customary fees in connection with such transfers of interest as Additional Master Servicing Compensation.
