PROPERTIES AND FINANCIAL AND OTHER CONDITION OF COMPANY RELATING OR PERTAINING
TO THE ASSIGNED INTERESTS AND THE OTHER COLLATERAL WITH OFFICERS OF SUCH
PARTIES, AND WITH THEIR INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS (TO THE EXTENT
SUCH INDEPENDENT CERTIFIED ACCOUNTANTS AGREE TO DISCUSS SUCH MATTERS WITH
ASSIGNEE).
ASSIGNEE'S VISITS TO COMPANY'S OFFICES PURSUANT TO THIS
SUBSECTION (C) SHALL OCCUR NOT MORE THAN TWO (2) TIMES PER CALENDAR YEAR;
PROVIDED, HOWEVER, THAT ASSIGNEE MAY SO VISIT MORE FREQUENTLY TO THE EXTENT THAT
THERE HAS OCCURRED AN EVENT, A REASONABLY FORESEEABLE CONSEQUENCE OF WHICH IS A
MATERIAL ADVERSE EFFECT, AND ASSIGNEE'S VISIT OR VISITS TO COMPANY'S OFFICES IN
CONNECTION THEREWITH ARE DIRECTLY RELATED TO SUCH EVENT.
TO THE EXTENT ANY
LICENSE AGREEMENT CONTAINS PROVISIONS REQUIRING CONFIDENTIAL TREATMENT OF ANY
INFORMATION, INCLUDING FINANCIAL INFORMATION, THAT WOULD PROHIBIT COMPANY FROM
PROVIDING SUCH INFORMATION TO THE ASSIGNEE, IN CONNECTION WITH ANY AUDIT
PERMITTED HEREUNDER, COMPANY SHALL HAVE ITS INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS PROVIDE A SUMMARY OF THE RELEVANT INFORMATION AND CERTIFY THAT SUCH
INFORMATION IS TRUE AND CORRECT IN ALL RESPECTS.
(D)
IN THE EVENT ANY AUDIT OF THE BOOKS AND RECORDS OF COMPANY
RELATING TO THE ASSIGNED INTERESTS OR THE OTHER COLLATERAL BY ASSIGNEE AND/OR
ANY OF ASSIGNEE'S CONSULTANTS REVEALS THAT THE AMOUNTS PAID TO ASSIGNEE
HEREUNDER FOR THE PERIOD OF SUCH AUDIT HAVE BEEN UNDERSTATED BY MORE THAN ******
OF THE AMOUNTS DETERMINED TO BE DUE FOR THE PERIOD SUBJECT TO SUCH AUDIT, THEN
THE AUDIT COSTS IN
Confidential materials omitted and filed separately with the Securities and
Exchange
Commission.
Asterisks denote such omission.
28
RESPECT OF SUCH AUDIT SHALL BE BORNE BY COMPANY; IN ALL OTHER CASES, SUCH AUDIT
COSTS SHALL BE BORNE BY ASSIGNEE.
EACH PARTY SHALL PROMPTLY PAY TO THE OTHER
ANY AMOUNT DUE.
(E)
TO THE EXTENT COMPANY HAS THE RIGHT TO PERFORM OR CAUSE TO BE
PERFORMED INSPECTIONS OR AUDITS UNDER ANY OF THE LICENSE AGREEMENTS REGARDING
PAYMENTS PAYABLE AND/OR PAID THEREUNDER (EACH, A "LICENSE PARTY AUDIT"), COMPANY
SHALL, AT THE REASONABLE REQUEST OF ASSIGNEE, CAUSE SUCH LICENSE PARTY AUDIT TO
BE PROMPTLY PERFORMED.
IN CONDUCTING A LICENSE PARTY AUDIT, COMPANY MAY ENGAGE
ITS THEN RETAINED INTERNATIONALLY RECOGNIZED INDEPENDENT PUBLIC ACCOUNTING FIRM,
OR, IF COMPANY ELECTS OTHERWISE, SUCH OTHER INTERNATIONALLY RECOGNIZED
INDEPENDENT PUBLIC ACCOUNTING FIRM REASONABLY ACCEPTABLE TO ASSIGNEE, UNLESS THE
APPLICABLE LICENSE AGREEMENT SHALL REQUIRE THE USE OF ANOTHER ACCOUNTING FIRM.
PROMPTLY AFTER COMPLETION OF ANY LICENSE PARTY AUDIT (WHETHER OR NOT REQUESTED
BY ASSIGNEE), COMPANY SHALL PROMPTLY DELIVER TO ASSIGNEE AN AUDIT REPORT IN
RESPECT OF SUCH LICENSE PARTY AUDIT, THAT HAS BEEN CERTIFIED TO BE TRUE AND
CORRECT IN ALL RESPECTS BY THE AUDITOR.
SECTION 5.03
CONTRACT COMPLIANCE.
Without limiting Company's other obligations set forth herein with respect to
License Agreements and In Licenses, Company shall not fail to perform under or
comply with any Material Contract by which it is bound, in each case, in such a
manner, individually or in the aggregate, that has or would have a Material
Effect on the Assigned Interests.