Termination For Cause by Plaintiff

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Like the Funder, the Plaintiff can terminate the contract for cause. The provisions we consider so central to the deal that any breach is presumptively material relate to the funder’s capital and its handling of the Plaintiff’s privileged, and, if used, Proprietary Information.

7.2 Material Breach by Funder

7.2.1 Material Provisions: Funder recognizes that its representations regarding its ability to honor its capital commitments and its commitments to protect Plaintiff’s privileged [and Proprietary] Information are of the essence of this agreement. For the avoidance of doubt, these are the material provisions 2.2.2 (funds), 2.2.5 and 4.1 (privilege) [and 4.3 Proprietary Information]. A material breach of 2.2.2 occurs if the Funder is unable to invest Committed Capital when required. A material breach of 2.2.5 or 4.1 occurs if the disclosure could result in waiver of the privilege if any other party to the litigation learned of the disclosure, regardless of how the other party to the litigation learned of the disclosure. [A material breach of 4.3 Proprietary Information occurs if the breach results, by any method, in the Proprietary Information being received by any person or entity that could use it to its commercial advantage or to commercially disadvantage the Plaintiff.]

Unlike the Material Provisions relevant to Plaintiff breach, these breaches do not necessarily impact the value of the Litigation Proceed Rights, although they could damage the Plaintiff in other ways. Instead of setting them up as presumptively but rebuttably material, the language is intended to create bright lines that incentivize compliance with the terms.

The other two provisions are similar to their counterparts for the Plaintiff:

7.2.2 Material Breach of Other Provisions: The breach by Funder of any other provision is material if it, by itself, reduces the potential value of the Award or Proceeds by more than [10%] as measured against the Initial Claim Value.

7.2.3 Notice of Material Breach by Funder: If Plaintiff believes Funder has materially breached this contract it shall promptly serve notice on Funder. If the breach can be cured Funder then has [30] days to do so.

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