Gap (GPS)

38. Bankruptcy and Liquidation

In the event Supplier shall: (1) make an assignment for the benefit of creditors, or petition or apply to any tribunal for the appointment of a custodian, receiver, or trustee for all or a substantial part of its assets; (2) commence any case, proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction whether now or hereafter in effect; (3) have had any such petition or application filed or any such case or proceeding commenced against it in which an order for relief is entered or an adjudication or appointment is made, and which is not dismissed for a period of sixty (60) days or more; (4) take any corporate action indicating its consent to, approval of, or acquiescence in any such petition, application, proceeding, or order for relief or the appointment of a custodian, receiver, or trustee for all or substantial part of its assets; or (5) permit any such custodianship, receivership, or trusteeship to continue undischarged for a period of sixty (60) days or more causing Supplier or any third party, including, a trustee in bankruptcy, to be empowered under state or federal law to reject this Agreement or any agreement supplementary hereto, Gap shall have the following rights:

A. In the event of a rejection of this Agreement or any agreement supplementary hereto, Gap shall be permitted to retain and use any back-up or archival copies of the Intellectual Property under this Agreement for the purpose of enabling it to mitigate damages caused to Gap because of the rejection of this Agreement. Gap shall exert reasonable efforts to mitigate such damages by use of such back-up or archival copies.

Gap Confidential and Proprietary Information

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B. In the event of a rejection of this Agreement or any agreement supplementary hereto, Gap may elect to retain its rights under this Agreement or any agreement supplementary hereto as provided in Section 365(n) of the Bankruptcy Code. Upon written request of Gap to, as applicable, Supplier or the bankruptcy trustee or receiver, Supplier or such bankruptcy trustee or receiver shall not interfere with the rights of Gap as provided in this Agreement or in any agreement supplementary hereto to obtain the Source Material(s) from the bankruptcy trustee or from a third-party escrow agent and shall, if requested, cause a copy of such Source Material(s) to be available to Gap.

C. Supplier acknowledges and agrees that in the event of Supplier’s bankruptcy:

(1) any and all property belonging to Gap of any nature whatsoever, including Gap Intellectual Property, Custom Intellectual Property, Gap Data, and Gap Proprietary or Confidential Information, in Supplier’s possession or under Supplier’s control shall not constitute part of Supplier’s estate in bankruptcy under Section 541 of the Bankruptcy Code; and

(2) in addition to any other rights and remedies of Gap as stated herein, to the maximum extent permitted by law, Gap will have the immediate right to retain and take possession for safekeeping any and all property belonging to Gap of any nature whatsoever, including Gap Intellectual Property, Custom Intellectual Property, Gap Data and Gap Proprietary or Confidential Information, in Supplier’s possession or under Supplier’s control until such time as the trustee or receiver in bankruptcy can provide Gap with adequate assurances and evidence to Gap that all of Gap’s property will be protected from sale, release, inspection, publication or inclusion in any publicly accessible record, document, material or filing. Supplier and Gap agree that without this material provision, Gap would not have entered into this Agreement.