THE PARTIES MAY TERMINATE THE
DEVELOPMENT PROGRAM (BUT NOT THIS AGREEMENT) AT ANY TIME BY MUTUAL WRITTEN
CONSENT.
13.2.2
FOR DEFAULT.
IF EITHER BIOMARIN OR GENZYME (A) FAILS TO USE
COMMERCIALLY REASONABLE AND DILIGENT EFFORTS TO PERFORM ANY MATERIAL DUTY
IMPOSED UPON SUCH PARTY UNDER THIS AGREEMENT OR THE DEVELOPMENT PLAN OR
(B) FAILS TO MAKE [**] OR MORE CAPITAL CONTRIBUTIONS IN ACCORDANCE WITH
SECTION 4.2 HEREOF, AND SUCH FAILURE TO PERFORM IS NOT CURED WITHIN NINETY (90)
DAYS OF WRITTEN NOTICE THEREOF FROM THE NON-BREACHING PARTY, THE NON-BREACHING
PARTY MAY ELECT, IN ITS SOLE DISCRETION, TO (I) IN THE CASE OF CLAUSE (B) ABOVE,
WAIVE THE TERMS OF ARTICLE 4 HEREOF WITH RESPECT TO ANY ONE OR MORE REQUIRED
CAPITAL CONTRIBUTIONS AND CAUSE THE RESPECTIVE PERCENTAGE INTERESTS AND FUTURE
FUNDING RESPONSIBILITIES OF THE PARTIES TO BE ADJUSTED IN ACCORDANCE WITH
SECTION 4.1 OF THE OPERATING AGREEMENT OR (II) TERMINATE THE DEVELOPMENT
PROGRAM.
SUCH 90-DAY PERIOD SHALL BE EXTENDED TO ONE HUNDRED EIGHTY (180) DAYS
IF THE BREACHING PARTY HAS ENGAGED IN GOOD FAITH EFFORTS TO REMEDY SUCH DEFAULT
WITHIN SUCH 90-DAY PERIOD AND INDICATED IN WRITING TO THE NON-BREACHING PARTY
PRIOR TO THE EXPIRATION OF SUCH 90-DAY PERIOD THAT IT BELIEVES THAT IT WILL BE
ABLE TO REMEDY THE DEFAULT WITHIN SUCH 180-DAY PERIOD, BUT SUCH EXTENSION SHALL
APPLY ONLY SO LONG AS THE BREACHING PARTY IS ENGAGING IN GOOD FAITH EFFORTS TO
REMEDY SUCH DEFAULT.
13.3
TERMINATION OF THIS AGREEMENT IN ITS ENTIRETY.
THIS
AGREEMENT SHALL AUTOMATICALLY TERMINATE UPON THE EFFECTIVE DATE OF THE
TERMINATION OF THE MANUFACTURING, MARKETING AND SALES AGREEMENT.
THIS AGREEMENT
MAY NOT BE TERMINATED INDEPENDENTLY FROM THE MANUFACTURING, MARKETING AND SALES
AGREEMENT.
13.4
EFFECTS OF TERMINATION OF THIS AGREEMENT.
UPON ANY
TERMINATION OF THIS AGREEMENT IN ITS ENTIRETY, PARTIES SHALL HAVE THE RESPECTIVE
RIGHTS AND DUTIES SET FORTH UNDER ARTICLE 12 OF MANUFACTURING, MARKETING AND
SALES AGREEMENT.
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request.
An unredacted version of this exhibit has been filed
separately with the Commission.
32
13.5
SURVIVAL OF RIGHTS AND DUTIES.
NO TERMINATION OF
THIS AGREEMENT SHALL ELIMINATE ANY RIGHTS OR DUTIES OF THE PARTIES ACCRUED PRIOR
TO SUCH TERMINATION.
THE PROVISIONS OF ARTICLE 1, SECTIONS 3.3, 4.3 THROUGH
4.5, 9.1.1, 9.3, 9.5, ARTICLE 10, SECTION 11.5, ARTICLE 12, SECTIONS 13.3
THROUGH 13.5, 14.1, 14.3 THROUGH 14.5, AND 14.8 THROUGH 14.17 AND THE FIRST
SENTENCE OF SECTION 7.5, THE SECOND TO LAST SENTENCE OF SECTION 2.2 AND THE LAST
SENTENCES OF SECTIONS 2.2, 7.4 AND 9.1.3 HEREOF SHALL SURVIVE ANY TERMINATION OF
THIS AGREEMENT.
ARTICLE XIV
MISCELLANEOUS
14.1
COOPERATION.
IF EITHER BIOMARIN OR GENZYME (THE
"ASSUMING PARTY") SHALL ASSUME THE PROGRAM RIGHTS FROM THE OTHER PARTY (THE
"RESPONSIBLE PARTY") IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 12 OF THE
MANUFACTURING, MARKETING AND SALES AGREEMENT, THE RESPONSIBLE PARTY SHALL
PROMPTLY PROVIDE TO THE ASSUMING PARTY (OR ANY THIRD PARTY OR AFFILIATE
DESIGNATED BY THE ASSUMING PARTY) ALL TECHNOLOGY, MANUFACTURING KNOW-HOW AND
ACCESS TO