TiVo 2011 Annual Report Download - page 139

to the extent that AT&T sells a portion of its business to which this Agreement pertains other than as set forth above, and if the
acquiring party to such business agrees to accept the obligations of this Agreement, and if AT&T agrees to remain responsible for the
performance of its obligations under this Agreement, including payment obligations, AT&T and TiVo agree to negotiate in good faith
an agreement (without an obligation to reach an agreement) under which the acquiring party has appropriate license rights for the
acquired business and TiVo’s license rights and intellectual property are appropriately protected as mutually agreed. TiVo may assign
its right to receive payments under this Agreement without the prior written consent of AT&T. Any assignment of any Licensed
Patents by a Party or its Subsidiaries shall remain subject to the licenses granted to the other Party and its Subsidiaries under this
Agreement which shall remain in effect notwithstanding such assignment. Subject to the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of the Parties and their respective permitted successors and permitted assigns.
9.5. Waiver. A waiver, express or implied, of any right under this Agreement or of any failure to perform or breach hereof
shall not constitute or be deemed to be a waiver of any other right hereunder or of any other failure to perform or breach hereof,
whether of the same, or a similar or dissimilar nature thereto.
9.6. Severability. If any provision of this Agreement is unenforceable or invalid under any applicable law or is so held by
applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and,
in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of the Parties within the limits of
applicable law or applicable court decision.
9.7. Bankruptcy. All licenses to Licensed Patents granted under or pursuant to this Agreement are, and shall otherwise be
deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, licenses of rights of “intellectual property” and rights to
“intellectual property” under agreements supplementary thereto as “intellectual property” is defined under Section 101 of the
Bankruptcy Code. The Parties agree that any Party, as licensee of such rights under this Agreement, shall retain and may fully exercise
all of its rights and elections under the Bankruptcy Code in the event of any bankruptcy or insolvency proceeding of any kind or
nature. Each Party acknowledges that if another Party, as a debtor in possession, or a trustee-in-bankruptcy for such Party, in a case
under the Bankruptcy Code, rejects this Agreement, the other Parties and their Subsidiaries may elect to retain their rights under this
Agreement as provided in Section 365(n) of the Bankruptcy Code. Each Party irrevocably waives all arguments and defenses arising
under 11 U.S.C. § 365(c)(1) or successor provisions to the effect that applicable law excuses such Party from accepting performance
from or rendering performance to an entity other than the debtor or debtor in possession as a basis for opposing assumption of this
Agreement in a case under Chapter 11 of the Bankruptcy Code to the extent that such consent is required under 11 U.S.C. § 365(c)(1)
or any successor statute, provided that any Change of Control shall remain subject to Section 8 and provided further that, with respect
to any proceeding under Chapter 11 of the Bankruptcy Code with respect to AT&T, solely if TiVo has received full payment of the
Fee.
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