OF
SUCH AUDIT, EXCEPT AS PROVIDED BELOW.
IF AN AUDIT UNDER THIS
SECTION 7.4(A) SHOWS ANY OVERPAYMENT BY LICENSEE, ACORDA SHALL REMIT TO LICENSEE
WITHIN THIRTY (30) DAYS AFTER THE RESULTS OF THE AUDIT ARE DELIVERED, THE AMOUNT
OF SUCH OVERPAYMENT AND, IF SUCH OVERPAYMENT EXCEEDS FIVE PERCENT (5%) OF THE
TOTAL AMOUNT OWED FOR THE PERIOD THEN BEING AUDITED, THE FEES AND EXPENSES OF
LICENSEE'S AUDITORS FOR SUCH AUDIT.
ALL SUCH RECORDS SHALL BE MAINTAINED FOR AT
LEAST [*****] AFTER THE END OF THE CALENDAR YEAR TO WHICH SUCH RECORDS RELATE,
OR SUCH LONGER PERIOD AS MAY BE REQUIRED BY APPLICABLE LAW.
(B)
PRODUCT RECORDS.
ACORDA SHALL MAINTAIN ALL
RECORDS NECESSARY FOR IT TO COMPLY WITH APPLICABLE LAW WITH RESPECT TO ITS
OBLIGATIONS UNDER THIS AGREEMENT.
ALL SUCH RECORDS SHALL BE AVAILABLE FOR
INSPECTION, AUDIT AND COPYING BY LICENSEE AND ITS REPRESENTATIVES AND AGENTS,
INCLUDING LICENSEE'S AUDITORS, AT NO COST TO LICENSEE, UPON REASONABLE REQUEST
DURING NORMAL BUSINESS HOURS.
ALL SUCH RECORDS SHALL BE MAINTAINED FOR THE
LONGEST PERIOD AS MAY BE REQUIRED BY APPLICABLE LAW AND PRIOR TO DESTRUCTION OF
ANY RECORD, ACORDA SHALL GIVE NOTICE TO LICENSEE, WHICH SHALL HAVE THE RIGHT TO
REQUEST AND RETAIN SUCH RECORD.
8.
REPRESENTATIONS AND WARRANTIES
8.1
MUTUAL REPRESENTATIONS AND WARRANTIES.
EACH
PARTY WARRANTS TO THE OTHER PARTY THAT:
(A)
AS OF THE EFFECTIVE DATE, IT IS A
CORPORATION DULY ORGANIZED AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS INCORPORATION, AND IT HAS FULL POWER AND AUTHORITY AND THE
LEGAL RIGHT TO OWN AND OPERATE ITS PROPERTY AND ASSETS AND TO CARRY ON ITS
BUSINESS AS IT IS NOW BEING CONDUCTED AND AS IT IS CONTEMPLATED TO BE CONDUCTED
BY THIS AGREEMENT;
(B)
AS OF THE EFFECTIVE DATE, IT HAS THE FULL
RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO GRANT THE RIGHTS
GRANTED BY IT UNDER THIS AGREEMENT;
*****Omitted pursuant to a confidential treatment request.
16
(C)
AS OF THE EFFECTIVE DATE, THERE ARE NO
EXISTING OR, TO ITS KNOWLEDGE, THREATENED ACTIONS, SUITS OR CLAIMS PENDING WITH
RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR ITS RIGHT TO ENTER INTO AND
PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT;
(D)
AS OF THE EFFECTIVE DATE, IT HAS TAKEN ALL
NECESSARY ACTION ON ITS PART TO AUTHORIZE THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT;
(E)
THIS AGREEMENT HAS BEEN DULY EXECUTED AND
DELIVERED ON BEHALF OF IT, AND CONSTITUTES A LEGAL, VALID, BINDING OBLIGATION,
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH THE TERMS HEREOF, SUBJECT TO THE
GENERAL PRINCIPLES OF EQUITY AND TO BANKRUPTCY, INSOLVENCY, MORATORIUM AND OTHER
SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY;
(F)
AS OF THE EFFECTIVE DATE, ALL NECESSARY
CONSENTS, APPROVALS AND AUTHORIZATIONS OF ALL REGULATORY AND GOVERNMENTAL
AUTHORITIES AND OTHER PERSONS REQUIRED TO BE OBTAINED BY IT IN CONNECTION WITH
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE PERFORMANCE OF ITS
OBLIGATIONS UNDER THIS AGREEMENT HAVE BEEN