OR ITS
SUBSIDIARIES UNDER ANY CONTRACT (THE "REMAINING GUARANTIES") AND (II) PURCHASER
SHALL ASSUME THE REMAINING GUARANTIES OR PROVIDE SUBSTITUTE GUARANTIES THEREFOR
(TO THE EXTENT PERMITTED BY THE CURRENT BENEFICIARIES OF SUCH REMAINING
GUARANTIES).
NOTWITHSTANDING THE FOREGOING, THE COMPANY AND PURCHASER SHALL
HAVE NO OBLIGATIONS UNDER THIS SECTION 5.10(B) (AND ONLY THIS SECTION 5.10(B))
WITH RESPECT TO A GIVEN REMAINING GUARANTY IF ANY ACTION REQUIRED UNDER THIS
SECTION 5.10(B) WOULD (I) MATERIALLY INCREASE THE COMPANY'S COSTS IN RESPECT OF
ANY RELATED PROJECT OR CONTRACT, UNLESS SELLER HAS AGREED IN WRITING TO
REIMBURSE THE COMPANY FOR SUCH EXPENSE, OR (II) CAUSE THE COMPANY TO DEFAULT
UNDER ANY RELATED CONTRACT.
THE COMPANY SHALL PAY ANY FEES INCURRED IN THE
RENEWAL AFTER THE CLOSING DATE OF ANY SUCH LETTERS OF CREDIT OR BONDS SECURING
OBLIGATIONS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES AND FOR WHICH SELLER OR
ANY AFFILIATE (OTHER THAN THE COMPANY OR ITS SUBSIDIARIES) IS THEN LIABLE.
PURCHASER SHALL, AND SHALL CAUSE THE COMPANY TO, KEEP SELLER REASONABLY INFORMED
OF THE STATUS OF THE COMPANY'S EFFORTS TO OBTAIN SUCH RELEASES.
(C)
PROMPTLY AFTER THE CLOSING, AND, IN ANY
EVENT, WITHIN NINETY (90) DAYS FROM THE CLOSING, PURCHASER SHALL CAUSE THE
COMPANY TO ESTABLISH A CREDIT FACILITY AND SHALL, UNDER SUCH FACILITY, TAKE
ASSIGNMENT OF, ASSUME OR REPLACE THE OBLIGATIONS ARISING UNDER THE LETTERS OF
CREDIT SET FORTH IN SECTION 5.10(C) OF THE SELLER DISCLOSURE LETTER.
(D)
PROMPTLY AFTER THE CLOSING, AND, IN ANY
EVENT, WITHIN NINETY (90) DAYS FROM THE CLOSING, SELLER AND PURCHASER SHALL
COOPERATE TO EFFECT THE TRANSFER TO THE COMPANY OF
36
THE EQUIPMENT LEASES SET FORTH IN SECTION 5.10(D) OF THE SELLER DISCLOSURE
LETTER.
IN THE EVENT THAT ANY EQUIPMENT LEASE CANNOT BE SO TRANSFERRED,
PURCHASER SHALL CAUSE THE COMPANY TO REIMBURSE SELLER FOR THE PAYMENTS UNDER
SUCH LEASE.
5.11
OTHER MATTERS.
(A)
AFTER THE CLOSING, PURCHASER SHALL, AND
SHALL CAUSE THE COMPANY AND ITS SUBSIDIARIES TO TAKE THE FOLLOWING ACTIONS:
(I)
FULLY COOPERATE WITH SELLER IN CONNECTION WITH
SELLER'S DEFENSE OF THE TAX AUDITS AND INVESTIGATIONS SET FORTH IN
SECTION 1.3(C) OF THE SELLER DISCLOSURE LETTER, IN EACH CASE INCLUDING (I)
MAINTAINING RELEVANT BOOKS AND RECORDS OF THE COMPANY AND ITS SUBSIDIARIES AND
OTHER DATA, IN EACH CASE AS REASONABLY REQUIRED FOR PROSECUTION AND/OR DEFENSE
OF SUCH CLAIMS, (II) PERMITTING SELLER OR ITS AGENTS, AT SELLER'S EXPENSE,
DURING REGULAR BUSINESS HOURS AND AFTER PROVISION OF REASONABLE ADVANCE NOTICE,
TO INSPECT AND MAKE COPIES OF SUCH RECORDS FOR THE SOLE PURPOSE OF PROSECUTING
AND/OR DEFENDING SUCH CLAIMS (IT BEING UNDERSTOOD THAT SUCH COPIES SHALL BE
SUBJECT TO SECTION 5.2(A)(II) HERETO), AND (III) MAKING AVAILABLE, AT SELLER'S
EXPENSE, EMPLOYEES, CONTRACTORS AND OTHER AGENTS OF THE COMPANY AND ITS
SUBSIDIARIES FOR THE GIVING OF INTERVIEWS, DEPOSITIONS AND OTHER TESTIMONY, AS
REASONABLY NEEDED, IN CONNECTION WITH SELLER PROSECUTION AND/OR DEFENSE OF SUCH
CLAIMS; AND
(II)
USE COMMERCIALLY REASONABLE EFFORTS TO DILIGENTLY
PROSECUTE THE PATENT CLAIMS, INCLUDING, WITHOUT LIMITATION, THE ACTIONS, OR
POTENTIAL ACTIONS, AGAINST THE PARTIES IDENTIFIED ON