(90) DAY PERIOD USING DILIGENT EFFORTS, THE BREACHING PARTY
SHALL BE ALLOWED AN ADDITIONAL NINETY (90) DAY PERIOD TO CURE SUCH BREACH
PROVIDED THE BREACHING PARTY HAS COMMENCED A CURE PROMPTLY AFTER RECEIPT OF THE
AFOREMENTIONED WRITTEN NOTICE FROM THE OTHER PARTY AND IS DILIGENTLY PURSUING
COMPLETION OF SUCH CURE; OR (II) IF THE OTHER PARTY EXPERIENCES A BANKRUPTCY
EVENT (AS DEFINED IN THE LICENSE AGREEMENT).
6.3
AUTOMATIC TERMINATION.
THIS AGREEMENT SHALL AUTOMATICALLY
TERMINATE EFFECTIVE ON THE EFFECTIVE DATE OF ANY TERMINATION OF THE LICENSE
AGREEMENT.
6.4
EFFECT OF EARLY TERMINATION BY SCHERING.
IN THE EVENT OF A
BANKRUPTCY EVENT OR A MATERIAL BREACH OF THIS AGREEMENT BY SONUS UNDER SECTION
6.2 (WHICH BREACH IS NOT CURED AS PROVIDED THEREIN), SCHERING MAY ELECT TO
EITHER (A) TERMINATE THIS AGREEMENT IN ITS ENTIRETY, OR (B) CONTINUE TO EXERCISE
ITS RIGHTS UNDER THIS AGREEMENT, IN WHICH CASE SONUS SHALL:
(I) AT SCHERING'S
REQUEST, ASSIGN AND TRANSFER TO SCHERING SONUS' RIGHTS AND OBLIGATIONS UNDER ANY
CONTRACT MANUFACTURING AGREEMENT(S) AND TAKE WHATEVER ACTIONS ARE REASONABLY
REQUIRED UNDER SUCH AGREEMENT(S) TO EFFECTUATE SUCH ASSIGNMENT AND TRANSFER;
(II) PROVIDE SCHERING WITH ACCESS TO
6
Sonus' facilities and personnel as reasonably required by Schering to transition
all manufacturing activity for the Product to Schering, its Third Party contract
manufacturers or any other designee; and (iii) use diligent efforts to cooperate
with Schering, its Third Party contract manufacturers and any other designee to
effect a prompt and orderly transition to Schering of any activities being
conducted by or on behalf of Sonus.
Schering shall be entitled to set off any
reasonable expenses Schering incurs as a result of the early transition of
manufacturing responsibilities hereunder first, against any milestone payments
owed to Sonus under the License Agreement and, second, against any royalties
owed to Sonus under the License Agreement.
6.5
SURVIVING OBLIGATIONS.
TERMINATION OR EXPIRATION OF THIS AGREEMENT
SHALL NOT AFFECT ANY RIGHTS OR OBLIGATIONS OF EITHER PARTY THAT MAY HAVE ACCRUED
UP TO THE DATE OF SUCH TERMINATION OR EXPIRATION.
IN ADDITION TO ANY OTHER
REMEDIES PROVIDED IN THIS AGREEMENT, EACH PARTY MAY INSTITUTE ANY OTHER LEGAL
ACTION OR PURSUE ANY OTHER REMEDY AGAINST THE OTHER PARTY PERMITTED BY
APPLICABLE LAW.
THE RIGHTS AND OBLIGATIONS SET FORTH IN THIS AGREEMENT SHALL
EXTEND BEYOND THE EXPIRATION OR TERMINATION OF THIS AGREEMENT TO THE EXTENT THAT
THE SURVIVAL OF SUCH RIGHTS OR OBLIGATIONS IS NECESSARY TO PERMIT THEIR COMPLETE
FULFILLMENT OR DISCHARGE.
WITHOUT LIMITING IN ANY WAY THE GENERALITY OF THE
FOREGOING, THE FOLLOWING PROVISIONS OF THIS AGREEMENT, STRICTLY AND ONLY IN
ACCORDANCE WITH THEIR EXPRESS TERMS, SHALL SURVIVE TERMINATION OR EXPIRATION OF
THIS AGREEMENT:
SECTIONS 1, 4.2, 5, 6.4, 6.5, 7.4, 7.5, 8, AND 9.
7.
REPRESENTATIONS, WARRANTIES AND COVENANTS.
7.1
PRODUCT WARRANTY.
SONUS REPRESENTS AND WARRANTS THAT ALL PRODUCT
SUPPLIED BY IT PURSUANT TO THIS AGREEMENT:
(A) SHALL BE MANUFACTURED AND
PACKAGED IN COMPLIANCE WITH CGMP AND OTHER APPLICABLE LAWS, RULES AND
REGULATIONS; (B) SHALL CONFORM TO THE SPECIFICATIONS IN EFFECT AT THE TIME OF
DELIVERY;