WOULD ADVERSELY AFFECT IN A MATERIAL
RESPECT THE RIGHTS OF SELLER OR BUYER THEREUNDER, SELLER AND BUYER SHALL USE
THEIR BEST EFFORTS TO NEGOTIATE A MUTUALLY ACCEPTABLE ARRANGEMENT UNDER WHICH
(I) BUYER SHALL OBTAIN THE BENEFITS AND ASSUME THE OBLIGATIONS UNDER SUCH SHARED
CONTRACT TO THE EXTENT RELATED TO THE PURCHASED BUSINESS, INCLUDING ENTERING
INTO SUB-CONTRACTING, SUB-LICENSING OR SUB-LEASING ARRANGEMENTS FOR THE BENEFIT
OF BUYER, OR (II) SELLER SHALL ENFORCE FOR THE BENEFIT OF BUYER, WITH BUYER
ASSUMING SELLER'S OBLIGATIONS THEREUNDER, ANY AND ALL RIGHTS OF SELLER AGAINST A
THIRD-PARTY TO THE EXTENT RELATED TO THE PURCHASED BUSINESS; PROVIDED, HOWEVER,
THAT FOLLOWING THE EXPIRATION OR OTHER TERMINATION OF ANY SUCH SHARED CONTRACT,
NEITHER BUYER NOR SELLER SHALL BE OBLIGATED TO CONTINUE THE FOREGOING
ARRANGEMENT.
FOR ANY SHARED CONTRACT THAT HAS NOT BEEN AMENDED OR ASSIGNED IN
THE MANNER SET FORTH IN THIS SECTION 5.3(C), SUBJECT TO OBTAINING THE CONSENT OF
THE THIRD PARTY, (I) BUYER MAY REQUIRE SELLER TO MAKE (AND SELLER HEREBY AGREES
TO MAKE) ANY CHANGES TO ANY SHARED RETAINED CONTRACT IN BUYER'S SOLE DISCRETION
TO THE EXTENT THAT SUCH CHANGES RELATE SOLELY TO THE PURCHASED BUSINESS AND DO
NOT ADVERSELY AFFECT THE RIGHTS OF SELLER THEREUNDER; AND (II) SELLER MAY
REQUIRE BUYER TO MAKE (AND BUYER HEREBY AGREES TO MAKE) ANY CHANGES TO ANY
SHARED TRANSFERRED CONTRACT IN SELLER'S SOLE DISCRETION TO THE EXTENT THAT SUCH
CHANGES RELATE SOLELY TO THE RETAINED BUSINESS AND DO NOT ADVERSELY AFFECT THE
RIGHTS OF BUYER THEREUNDER.
FOR AVOIDANCE OF DOUBT, THE ARRANGEMENT SET FORTH
IN SCHEDULE 5.3(C) SHALL BE DEEMED TO BE A SHARED TRANSFERRED CONTRACT.
(D)
EACH OF SCHEDULES 3.12(A) AND 3.12(B) HERETO, EXHIBIT B TO THE
FORM OF COMMERCIALIZATION AGREEMENT ATTACHED HERETO AS EXHIBIT B AND THE RELATED
PROVISIONS THEREOF CHARACTERIZE VARIOUS CONTRACTS LISTED HEREIN AND THEREIN AS
TRANSFERRED CONTRACTS, RETAINED CONTRACTS, SHARED RETAINED CONTRACTS, OR SHARED
TRANSFERRED CONTRACTS (AS THE CASE MAY BE). NOTWITHSTANDING THE FOREGOING, THE
PARTIES HEREBY AGREE THAT, BETWEEN THE DATE HEREOF AND THE CLOSING, IF BUYER
REQUESTS A RE-CHARACTERIZATION OF ANY OF SUCH CONTRACTS, SELLER WILL CONSIDER
SUCH REQUEST IN GOOD FAITH, AND, IN THE EVENT THAT THE PARTIES CANNOT REACH
AGREEMENT ON SUCH
38
CHARACTERIZATION, THE MATTER WILL THEREAFTER BE SUBMITTED TO EXPEDITED
ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11.12 HEREOF.
(E)
SELLER SHALL USE ITS BEST EFFORTS TO ASSIGN, TRANSFER OR CONVEY
THE PERMITS TO BUYER, AS APPLICABLE, OR IF SUCH ASSIGNMENT, TRANSFER OR
CONVEYANCE OF A PERMIT IS NOT PERMITTED BY LAW OR WOULD HAVE A MATERIAL ADVERSE
EFFECT ON THE RETAINED BUSINESS, SELLER SHALL PROVIDE REASONABLE ASSISTANCE,
DOCUMENTATION AND OTHER SUPPORT TO BUYER, AS REASONABLY NECESSARY TO ENABLE
BUYER TO OBTAIN THE SAME BENEFITS, RIGHTS AND PRIVILEGES AVAILABLE TO SELLER AS
THE HOLDER OF SUCH PERMIT.
(F)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT BUT
SUBJECT TO THE PROVISIONS OF SECTION 1.2(D) WITH RESPECT TO THE ASSIGNMENT OF
THE SELLER LOAN AGREEMENTS, THIS AGREEMENT SHALL NOT CONSTITUTE AN AGREEMENT TO
ASSIGN ANY TRANSFERRED CONTRACT, REAL