Common use of Acceptance; Rejection Clause in Contracts

Acceptance; Rejection. If, after performing such testing MannKind determines and informs AFP in writing that any Product delivered is a Non-conforming Product, MannKind shall so notify AFP in writing within forty-five (45) days from receipt of the shipment. In the event that AFP agrees that the Product is Non-conforming Product, MannKind may, at its option, return such Non-conforming Product to AFP or request replacement of the Non-conforming Product at AFP’s sole cost and at the earliest possible timeframe that is commercially reasonable. If MannKind exercises such return rights, MannKind shall return any such Non-conforming Product in accordance with AFP’s then current return procedures, and AFP shall replace such Non-conforming Product. If AFP does not replace such Non-conforming Product so as to remedy any reported non-conformity within forty-five (45) days after such non-conformity is reported to AFP, then MannKind may reject such Non-conforming Product by providing prompt written notice of such rejection to AFP. In the event of such rejection of any Non-conforming Product, AFP shall promptly credit or refund the net purchase price paid by MannKind. MannKind may charge AFP for all costs of shipment of Non-conforming Product and for the cover costs of the Product. If MannKind does not notify AFP that any Product is a Non-conforming Product during the forty-five (45) day period following delivery of such Product at MannKind’s designated facility, or does not reject any Non-conforming Product in accordance with the procedure described above, such Product shall be deemed to have been accepted by MannKind. Acceptance or deemed acceptance under this § 5.4 shall not limit AFP’s warranty obligations or MannKind’s warranty rights under § 7.2. In the event of a discrepancy between MannKind and AFP as to whether the Product is Non-conforming Product or there otherwise exists a dispute between the Parties over the extent to which such non-conformity is attributable to a given Party, the Parties shall cause an independent laboratory promptly to review records, test data and perform comparative tests and analyses on samples of the Product that allegedly is Non-conforming. Such independent laboratory shall be mutually agreed upon by the Parties. The independent laboratory’s results shall be in writing and shall be final and binding save for manifest error. Unless otherwise agreed to by the Parties in writing, the costs associated with such testing and review shall be borne by the Party against whom the independent laboratory rules.

Acceptance; Rejection. If, after performing such testing MannKind determines Eisai or the Designated Distributor (or in either case its authorized representative) shall perform a reasonable and informs AFP in writing that customary visual inspection of all Batches of Product delivered by Arena and shall report to Arena any Product delivered that is a reasonably discernible upon such visual inspection not to conform to the warranty set forth in Section 12.1 (“Non-conforming Conforming Product, MannKind ”) within 20 days of receipt by Eisai or the Designated Distributor. Eisai or the Designated Distributor shall so notify AFP in writing report to Arena Non-Conforming Product with hidden defects within forty-five (45) 30 days from receipt of Eisai’s discovery of the shipment. In same; provided that if Eisai fails to notify Arena of a hidden defect in any Product by the event that AFP agrees that earlier of two years after the delivery of such Product is Non-conforming Productor expiration or termination of this Agreement, MannKind may, at its option, return Eisai shall no longer have the right to reject such Non-conforming Product to AFP or request replacement of the Non-conforming Product at AFP’s sole cost and at the earliest possible timeframe that is commercially reasonable. If MannKind exercises such return rights, MannKind shall return any such Non-conforming Product in accordance with AFP’s then current return procedures, and AFP shall replace such Non-conforming Product. If AFP does A defect is hidden if it could not replace such Non-conforming Product so as to remedy any reported non-conformity within forty-five (45) days after such non-conformity is reported to AFP, then MannKind may reject such Non-conforming Product reasonably have been discovered by providing prompt written notice of such rejection to AFP. In the event of such rejection of any Non-conforming Product, AFP shall promptly credit or refund the net purchase price paid by MannKind. MannKind may charge AFP for all costs of shipment of Non-conforming Product a reasonable and for the cover costs customary visual inspection upon receipt of the Product. If MannKind does not notify AFP that any Product is a found to be Non-conforming Conforming Product during and is reported by Eisai or the fortyDesignated Distributor to Arena in the above time frame, then Arena shall, at Eisai’s request and option (to be exercised by Eisai promptly), either: (a) replace such Non-five Conforming Product at no additional charge to Eisai; (45b) day period following refund to Eisai the Product Purchase Price paid (if already paid) to Arena for such Non-Conforming Product or cancel the applicable Purchase Order if not paid; or (c) credit Eisai’s account in an amount equal to the Product Purchase Price paid (if already paid) for such Non-Conforming Product, and in any case ((a), (b) or (c)) Arena shall reimburse all shipping, insurance and customs charges for the Non-Conforming Product from the point of delivery in Switzerland to the destination in the Territory of the original shipment, subject to receipt of invoice; provided that if the Non-Conforming Product is reported to Arena at a time at which Arena would not be able to commence and complete manufacture of replacement Product prior to the expiration of the Term, Eisai shall not have the right to elect that Arena replace such Non-Conforming Product. Arena shall reimburse Eisai for the reasonable and verifiable costs incurred by Eisai or the Designated Distributor in properly disposing of or shipping to Arena (as instructed by Arena) such Non-Conforming Product, subject to receipt of invoice. Any notice given under this Section 6.5 shall specify the reason why such Product at MannKind’s designated facility, was found to be Non-Conforming Product. If Eisai or the applicable Designated Distributor does not reject report any Non-conforming Product in accordance with the procedure described above, such Product shall be deemed to have been accepted by MannKind. Acceptance defect or deemed acceptance under this § 5.4 shall not limit AFP’s warranty obligations or MannKind’s warranty rights under § 7.2. In the event of a discrepancy between MannKind and AFP as to whether the Product is Non-conforming Product or there otherwise exists a dispute between the Parties over the extent to which such non-conformity is attributable to a given Party, the Parties shall cause an independent laboratory promptly to review records, test data and perform comparative tests and analyses on samples of the any Product that allegedly is Non-conforming. Such independent laboratory shall be mutually agreed could reasonably have been discovered by a reasonable and customary visual inspection upon receipt within 20 days of receipt by Eisai or the Parties. The independent laboratory’s results shall be in writing Designated Distributor or any hidden defect within 30 days after discovery thereof and shall be final and binding save for manifest error. Unless otherwise agreed to by the Parties in writing, the costs associated with such testing and review shall be borne by the Party against whom the independent laboratory rules.within the

Acceptance; Rejection. If, after performing such testing MannKind determines and informs AFP in writing that At any Product delivered is a Non-conforming Product, MannKind shall so notify AFP in writing within forty-five time prior to twenty (45) days from receipt of the shipment. In the event that AFP agrees that the Product is Non-conforming Product, MannKind may, at its option, return such Non-conforming Product to AFP or request replacement of the Non-conforming Product at AFP’s sole cost and at the earliest possible timeframe that is commercially reasonable. If MannKind exercises such return rights, MannKind shall return any such Non-conforming Product in accordance with AFP’s then current return procedures, and AFP shall replace such Non-conforming Product. If AFP does not replace such Non-conforming Product so as to remedy any reported non-conformity within forty-five (4520) days after any holder of Notes shall have received such nonwritten offer pursuant to Section 2.4(a), such holder may accept the offer to prepay made pursuant to this Section 2.4 by causing a notice of such acceptance to be delivered to the Issuer. A failure by a holder of Notes to respond to an offer to prepay made pursuant to this Section 2.4 with a timely notice of acceptance shall be deemed to constitute a rejection of such offer by such holder. Within three days after the end of such 20-conformity is reported day period, the Issuer shall offer, in writing, to AFPeach holder of Notes that shall have accepted its offer to prepay made pursuant to this Section 2.4, then MannKind may reject to prepay on the Excess Cash Flow Prepayment Date an additional portion of such Non-conforming Product holder's Notes as provided in Section 2.4(a) in a principal amount equal to its ratable share (based upon the ratio of the outstanding principal amount of Notes held by providing prompt such holder at such time to the aggregate outstanding principal amount of Notes held at such time by all holders which have also accepted their respective offers to prepay made pursuant to this Section 2.4) of the portion of the Excess Cash Flow Payment as to which such offers to prepay were rejected or deemed rejected, multiplied by the Tax Percentage Limit in respect of such portion at such time (a "REMNANT EXCESS CASH FLOW PREPAYMENT"), multiplied by the Tax Percentage Limit in respect of such amount of such Remnant Excess Cash Flow Prepayment at such time. To accept any Remnant Excess Cash Flow Prepayment under this Section 2.4(b), a holder of Notes shall cause a written notice of such rejection acceptance to AFP. In be delivered to the event Issuer not later than eight (8) days after the date of receipt by such holder of such rejection of any Non-conforming Product, AFP shall promptly credit or refund the net purchase price paid by MannKind. MannKind may charge AFP for all costs of shipment of Non-conforming Product and for the cover costs offer of the Product. If MannKind does not notify AFP Remnant Excess Cash Flow Prepayment (it being understood that any Product is the failure by a Nonholder to accept such offer of the Remnant Excess Cash Flow Prepayment as provided herein prior to the end of such eight-conforming Product during the forty-five (45) day period following delivery of such Product at MannKind’s designated facility, or does not reject any Non-conforming Product in accordance with the procedure described above, such Product shall be deemed to have been accepted by MannKindconstitute a rejection of said Remnant Excess Cash Flow Prepayment). Acceptance or deemed acceptance under this § 5.4 shall not limit AFP’s warranty obligations or MannKind’s warranty rights under § 7.2. In If after the event Excess Cash Flow Prepayment Date any portion of a discrepancy between MannKind and AFP as Remnant Excess Cash Flow Prepayment has not been accepted, such remaining amount shall be offered to whether reduce the Product is Non-conforming Product or there otherwise exists a dispute between the Parties over the extent to which such non-conformity is attributable to a given Party, the Parties shall cause an independent laboratory promptly to review records, test data and perform comparative tests and analyses on samples Commitment of the Product that allegedly is Non-conforming. Such independent laboratory shall be mutually agreed upon by the Parties. The independent laboratory’s results shall be in writing and shall be final and binding save for manifest error. Unless otherwise agreed to by the Parties in writing, the costs associated with such testing and review shall be borne by the Party against whom the independent laboratory rulesBank Term Facilities.

Acceptance; Rejection. If, after performing such testing MannKind determines and informs AFP in writing that any Product delivered is a Non-conforming Product, MannKind All goods tendered shall so notify AFP in writing be inspected by Buyer within forty-five ten (45) days from receipt of the shipment. In the event that AFP agrees that the Product is Non-conforming Product, MannKind may, at its option, return such Non-conforming Product to AFP or request replacement of the Non-conforming Product at AFP’s sole cost and at the earliest possible timeframe that is commercially reasonable. If MannKind exercises such return rights, MannKind shall return any such Non-conforming Product in accordance with AFP’s then current return procedures, and AFP shall replace such Non-conforming Product. If AFP does not replace such Non-conforming Product so as to remedy any reported non-conformity within forty-five (4510) days after such non-conformity is reported to AFPreceipt and, then MannKind may reject such Non-conforming Product by providing prompt written unless a notice of rejections has been sent by Buyer to Whole Alternative within such rejection to AFP. In the event of such rejection of any Non-conforming Productten day period, AFP shall promptly credit or refund the net purchase price paid by MannKind. MannKind may charge AFP for all costs of shipment of Non-conforming Product and for the cover costs of the Product. If MannKind does not notify AFP that any Product is a Non-conforming Product during the forty-five (45) day period following delivery of such Product at MannKind’s designated facility, or does not reject any Non-conforming Product in accordance with the procedure described above, such Product Buyer shall be deemed to have been irrevocably accepted the goods. Goods which are rejected or the subject of any claim be promptly set aside by MannKindBuyer in safe storage for inspection by Whole Alternative. Acceptance or deemed acceptance under this § 5.4 WHOLE ALTERNATIVE’S LIABILTY, IF ANY, INCLUDING CLAIMS FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, SHALL BE LIMITED TO EITHER THE REPLACEMENT OF THE GOODS OR THE RETURN OF THE PURCHASE PRICE PAID, AT WHOLE ALTERNATIVE’S OPTION. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. Buyer shall not limit AFP’s warranty obligations or MannKind’s warranty rights under § 7.2. In deduct from the event price the amount of a discrepancy between MannKind and AFP as to whether the Product is Non-conforming Product or there otherwise exists a dispute between the Parties over the extent to which any claim unless Whole Alternative allows such non-conformity is attributable to a given Party, the Parties shall cause an independent laboratory promptly to review records, test data and perform comparative tests and analyses on samples of the Product that allegedly is Non-conforming. Such independent laboratory shall be mutually agreed upon by the Parties. The independent laboratory’s results shall be in writing and shall be final and binding save for manifest error. Unless otherwise agreed to by the Parties claim in writing. WARRANTIES: Whole Alternative warrants that the goods sold hereunder are of merchantable quality and that Whole Alternative can convey the title to the goods free of any security interest or other lien. Xxxxx agrees to hold Whole Alternative harmless against any claims of infringement of any U.S. patent, trademark, or copyright on the costs associated with such testing and review shall be borne goods arising from compliance by Whole Alternativewith specifications furnished by Buyer. Whole Alternative further warrants that the Party against whom the independent laboratory rulesgoods are fit for ordinary purposes only. WHOLE ALTERNATIVE MAKES NO WARRANTY AS TO THE FITNESS OF THE GOODS FOR ANY PARTICULAR PURPOSE OR THE RESULTS TO BE OBTAINED FROM THEIR USE BY BUYER EITHER ALONE OR IN COMBINATION WITH OTHER SUBSTANCES. WHOLE ALTERNATIVE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS.

Acceptance; Rejection. If, after performing such testing MannKind determines Roivant (or its authorized representative) shall perform a reasonable and informs AFP customary visual inspection in writing that any accordance with its quality policies of a statistical sampling of Finished Product delivered by Arena and shall report to Arena any Finished Product that is a reasonably discernible upon such visual inspection not to conform to the Product Warranty (“Non-conforming Conforming Finished Product, MannKind ”) within [***] days of receipt by Roivant. Roivant shall so notify AFP in writing report to Arena Non-Conforming Finished Product with hidden defects within forty-five (45) [***] days from of Roivant’s discovery of the same. A defect is hidden if it could not reasonably have been discovered by a reasonable and customary visual inspection upon receipt of the shipmentFinished Product. In the event that AFP agrees that the If any Finished Product is found to be Non-conforming ProductConforming Finished Product and is reported by Roivant to Arena in the above time frame, MannKind maythen Arena shall, at its optionRoivant’s request and option (to be exercised by Roivant promptly), return such Non-either: (a) (i) if conforming safety stock of Finished Product to AFP or request replacement of the Non-conforming Product at AFP’s sole cost and at the earliest possible timeframe that is commercially reasonable. If MannKind exercises such return rightsavailable, MannKind shall return any such Non-conforming Product in accordance with AFP’s then current return procedures, and AFP shall replace such Non-Conforming Finished Product within [***] days or (ii) if conforming Product. If AFP does safety stock of Finished Product is not available, use Commercially Reasonable Efforts to replace such Non-conforming Conforming Finished Product so as soon as reasonably practicable, and at no additional charge to remedy Roivant; (b) refund within [***] days to Roivant Product Purchase Price paid (if already paid) to Arena for such Non-Conforming Finished Product or cancel the applicable Purchase Order if not paid; or (c) credit Roivant’s account within [***] days in an amount equal to Product Purchase Price paid for such Non-Conforming Finished Product, and in any reported case ((a), (b) or (c)) Arena shall reimburse all shipping, insurance, taxes, import licensure and customs charges (in each case that are non-refundable) for the Non-Conforming Finished Product from the point of delivery [***] to the destination of the original shipment, subject to receipt of invoice. Arena shall reimburse Roivant for the reasonable costs incurred by Roivant in properly disposing of or shipping to Arena (as instructed by Arena) such Non-Conforming Finished Product, subject to receipt of invoice. Any notice given under this Section 6.9 shall specify the reason why such Finished Product was found to be Non-Conforming Finished Product. If Roivant does not report any defect or non-conformity of any Finished Product that could reasonably have been discovered by a reasonable and customary visual inspection upon receipt as described above within forty-five (45) [***] days of receipt by Roivant or any hidden defect within [***] days after such non-conformity is reported to AFPdiscovery thereof, then MannKind may reject such Non-conforming Product by providing prompt written notice of such rejection to AFP. In the event of such rejection of any Non-conforming Product, AFP shall promptly credit or refund the net purchase price paid by MannKind. MannKind may charge AFP for all costs of shipment of Non-conforming Product and for the cover costs of the Product. If MannKind does not notify AFP that any Product is a Non-conforming Product during the forty-five (45) day period following delivery of such Product at MannKind’s designated facility, or does not reject any Non-conforming Product in accordance with the procedure described above, such Product Roivant shall be deemed to have been accepted by MannKind. Acceptance or deemed acceptance under this § 5.4 shall not limit AFP’s warranty obligations or MannKind’s warranty rights under § 7.2. In the event of a discrepancy between MannKind and AFP as to whether the Product is Non-conforming Product or there otherwise exists a dispute between the Parties over the extent to which such non-conformity is attributable to a given Party, the Parties shall cause an independent laboratory promptly to review records, test data and perform comparative tests and analyses on samples of the Product that allegedly is Non-conforming. Such independent laboratory shall be mutually agreed upon by the Parties. The independent laboratory’s results shall be in writing and shall be final and binding save for manifest error. Unless otherwise agreed to by the Parties in writing, the costs associated with such testing and review shall be borne by the Party against whom the independent laboratory rulesFinished Product.

Acceptance; Rejection. If, after performing such testing MannKind determines and informs AFP in writing that any Product delivered is a Non-conforming Product, MannKind shall so notify AFP in writing within forty-five (45) days from receipt of the shipment. In the event that AFP agrees any Drug Substance delivered to Apellis or any Apellis designated location fails to conform to the Drug Substance warranties set forth in Section 8.2, Apellis may reject such shipment by providing Bachem written notice within [**] of the shipment of the Drug Substance. Apellis will have the right to test any quantity of the Drug Substance delivered by Bachem in order to verify that such quantity satisfies the Product Specifications but will not have any obligation to do so unless required by Applicable Law. Any notice of rejection by Apellis shall specify the nonconformity. If there is Non-conforming Productno dispute between the Parties relating to the existence of the nonconformity, MannKind any quantity of the Drug Substance supplied by Bachem does not conform to the Drug Substance warranties set forth in Section 8.2, Bachem may, at its optionApellis’s election and Bachem’s agreement, return such Non-conforming Product to AFP reprocess or request replacement of rework the Non-conforming Product at AFP’s sole cost and at the earliest possible timeframe that is commercially reasonablerejected Drug Substance. If MannKind exercises such return rightsreprocessing or reworking is not otherwise feasible, MannKind Bachem shall return any such Non-conforming Product in accordance with AFP’s then current return procedures, and AFP shall promptly (i) replace such Non-conforming Product. If AFP does not replace such Non-conforming Product so as to remedy any reported non-conformity within forty-five nonconforming Drug Substance in a timely manner at no additional cost, or (45ii) days after such non-conformity is reported to AFP, then MannKind may reject such Non-conforming Product by providing prompt written notice of such rejection to AFP. In the event of such rejection of any Non-conforming Product, AFP shall promptly credit Apellis’ account for or refund the net purchase price paid by MannKindinvoiced for such nonconforming Drug Substance. MannKind may charge AFP for all costs of shipment of Non-conforming Product and for Any dispute between the cover costs of Parties regarding whether Drug Substance fails to conform to the Product. If MannKind does not notify AFP that any Product is a Non-conforming Product during the forty-five (45) day period following delivery of such Product at MannKind’s designated facility, or does not reject any Non-conforming Product Drug Substance warranties set forth in Section 8.2 shall be resolved in accordance with the procedure described aboveset forth in Section 3.7. Apellis retains the right to determine the disposition of any and all Drug Substance Manufactured under this Agreement; provided, however, that Bachem shall have the right to offer for sale to Apellis any excess or nonconforming Drug Substance Manufactured hereunder; provided, further, however, that any such Product excess or nonconforming Drug Substance not offered to Apellis or not purchased by Apellis shall be deemed promptly and properly destroyed by Bachem. Nothing in this Section 3.6 shall limit the rights of Apellis to have been accepted by MannKind. Acceptance seek damages or deemed otherwise exercise its rights to remedies after acceptance under this § 5.4 shall not limit AFP’s warranty obligations or MannKind’s warranty rights under § 7.2. In of Drug Substance that fails to conform to the event Drug Substance warranties set forth in Section 8.2 if the nonconformity is a Latent Defect, provided that Apellis provides Bachem with prompt notice of a discrepancy between MannKind such Latent Defect after discovery thereof and AFP as prior to whether the Product is Non-conforming Product or there otherwise exists a dispute between the Parties over the extent to which stated expiration date of such non-conformity is attributable to a given Party, the Parties shall cause an independent laboratory promptly to review records, test data and perform comparative tests and analyses on samples of the Product that allegedly is Non-conforming. Such independent laboratory shall be mutually agreed upon by the Parties. The independent laboratory’s results shall be in writing and shall be final and binding save for manifest error. Unless otherwise agreed to by the Parties in writing, the costs associated with such testing and review shall be borne by the Party against whom the independent laboratory rulesDrug Substance.

Acceptance; Rejection. IfTo accept such Specified Asset Sale Prepayment Offer, after performing such testing MannKind determines and informs AFP in writing that any Product delivered is a Non-conforming Product, MannKind holder of Notes shall so notify AFP in writing within forty-five (45) days from receipt of the shipment. In the event that AFP agrees that the Product is Non-conforming Product, MannKind may, at its option, return such Non-conforming Product to AFP or request replacement of the Non-conforming Product at AFP’s sole cost and at the earliest possible timeframe that is commercially reasonable. If MannKind exercises such return rights, MannKind shall return any such Non-conforming Product in accordance with AFP’s then current return procedures, and AFP shall replace such Non-conforming Product. If AFP does not replace such Non-conforming Product so as to remedy any reported non-conformity within forty-five (45) days after such non-conformity is reported to AFP, then MannKind may reject such Non-conforming Product by providing prompt cause a written notice of such rejection acceptance to AFP. In be delivered to the event Company not later than twenty (20) days after the date of such rejection of any Non-conforming Product, AFP shall promptly credit or refund written notice from the net purchase price paid by MannKind. MannKind may charge AFP for all costs of shipment of Non-conforming Product and for Company (the cover costs of failure to accept such offer in writing within twenty (20) days after the Product. If MannKind does not notify AFP that any Product is a Non-conforming Product during the forty-five (45) day period following delivery date of such Product at MannKind’s designated facility, or does not reject any Non-conforming Product in accordance with the procedure described above, such Product written notice shall be deemed to have been constitute a rejection of the Specified Asset Sale Prepayment Offer). If so accepted by MannKind. Acceptance or deemed acceptance under this § 5.4 shall not limit AFP’s warranty obligations or MannKind’s warranty rights under § 7.2. In the event any holder of a discrepancy between MannKind Note, such offered prepayment (equal to or not less than such holder’s Specified Asset Sale Ratable Portion of the Net Proceeds Amount in respect of such Specified Asset Sale Prepayment Transfer) shall be due and AFP payable on the Specified Asset Sale Prepayment Date. Within three (3) Business Days after the end of such twenty (20) day period, the Company shall offer, in writing, to each holder of Notes that shall have accepted its offer to prepay made pursuant to this Section 8.1(c), to prepay on such Specified Asset Sale Prepayment Date an additional portion of such holder’s Notes as provided in Section 8.1(c)(i) in a principal amount equal to whether its ratable share (based upon the Product is Non-conforming Product or there otherwise exists a dispute between ratio of outstanding principal amount of Notes held by such holder at such time to the Parties over aggregate outstanding principal amount of Notes held at such time by all holders which have also accepted their respective offers to prepay made pursuant to this Section 8.1(c)) of the extent portion of the Net Proceeds Amount of such Specified Asset Sale as to which such non-conformity is attributable offers to prepay was rejected or deemed rejected (a given Party“Remnant Specified Asset Sale Prepayment Offer”). To accept any Remnant Specified Asset Sale Prepayment Offer under this Section 8.1(c)(ii), the Parties a holder of Notes shall cause an independent laboratory promptly a written notice of such acceptance to review recordsbe delivered to the Company not later than eight (8) days after the date of receipt by such holder of such Remnant Specified Asset Sale Prepayment Offer (it being understood that the failure by a holder to accept such Remnant Specified Asset Sale Prepayment Offer as provided herein prior to the end of such eight-day period shall be deemed to constitute a rejection of said Remnant Specified Asset Sale Prepayment Offer, test data and perform comparative tests and analyses on samples that any Remnant Specified Asset Sale Prepayment Offer so rejected shall be reoffered, in the same manner, pro rata, to any other holders which have accepted their respective offers of the Product that allegedly is Non-conforming. Such independent laboratory shall be mutually agreed upon by the Parties. The independent laboratory’s results shall be in writing and shall be final and binding save for manifest error. Unless otherwise agreed to by the Parties in writing, the costs associated with such testing and review shall be borne by the Party against whom the independent laboratory rulesapplicable Remnant Specified Asset Sale Prepayment Offers).

Acceptance; Rejection. If, after performing such testing MannKind determines Eisai (or its authorized representative) shall perform a reasonable and informs AFP in writing that any customary visual inspection of all batches of Finished Product delivered by Arena and shall report to Arena any Finished Product that is a reasonably discernable upon such visual inspection not to conform to the warranty set forth in Section 6.13 (“Non-conforming Conforming Finished Product, MannKind ”) within 20 days of receipt by Eisai. Eisai shall so notify AFP in writing report to Arena Non-Conforming Finished Product with hidden defects within forty-five (45) 30 days from of Eisai’s discovery of the same. A defect is hidden if it could not reasonably have been discovered by a reasonable and customary visual inspection upon receipt of the shipmentFinished Product. In the event that AFP agrees that the If any Finished Product is found to be Non-conforming ProductConforming Finished Product and is reported by Eisai to Arena in the above time frame, MannKind maythen Arena shall, at its optionEisai’s request and option (to be exercised by Eisai promptly), return such Non-conforming Product to AFP or request replacement of the Non-conforming Product at AFP’s sole cost and at the earliest possible timeframe that is commercially reasonable. If MannKind exercises such return rights, MannKind shall return any such Non-conforming Product in accordance with AFP’s then current return procedures, and AFP shall either: (a) replace such Non-conforming Conforming Finished Product at no additional charge to Eisai; (b) refund to Eisai the Product Purchase Price paid (if already paid) to Arena for such Non-Conforming Finished Product or cancel the applicable Purchase Order if not paid; or (c) credit Eisai’s account in an amount equal to the Product Purchase Price paid for such Non-Conforming Finished Product, and in any case ((a), (b) or (c)) Arena shall reimburse all shipping, insurance and customs charges for the Non-Conforming Finished Product from the destination of the original shipment, subject to receipt of invoice. Arena shall reimburse Eisai for the reasonable costs incurred by Eisai in properly disposing of or shipping to Arena (as instructed by Arena) such Non-Conforming Finished Product, subject to receipt of invoice. Any notice given under this Section 6.11 shall specify the reason why such Finished Product was found to be Non-Conforming Finished Product. If AFP Eisai does not replace such Non-conforming Product so as to remedy report any reported defect or non-conformity of any Finished Product that could reasonably have been discovered by a reasonable and customary visual inspection upon receipt within forty-five (45) 20 days of receipt by Eisai or any hidden defect within 30 days after such non-conformity is reported to AFPdiscovery thereof, then MannKind may reject such Non-conforming Product by providing prompt written notice of such rejection to AFP. In the event of such rejection of any Non-conforming Product, AFP shall promptly credit or refund the net purchase price paid by MannKind. MannKind may charge AFP for all costs of shipment of Non-conforming Product and for the cover costs of the Product. If MannKind does not notify AFP that any Product is a Non-conforming Product during the forty-five (45) day period following delivery of such Product at MannKind’s designated facility, or does not reject any Non-conforming Product in accordance with the procedure described above, such Product Eisai shall be deemed to have been accepted by MannKind. Acceptance or deemed acceptance under this § 5.4 shall not limit AFP’s warranty obligations or MannKind’s warranty rights under § 7.2. In the event of a discrepancy between MannKind and AFP as to whether the Product is Non-conforming Product or there otherwise exists a dispute between the Parties over the extent to which such non-conformity is attributable to a given Party, the Parties shall cause an independent laboratory promptly to review records, test data and perform comparative tests and analyses on samples of the Product that allegedly is Non-conforming. Such independent laboratory shall be mutually agreed upon by the Parties. The independent laboratory’s results shall be in writing and shall be final and binding save for manifest error. Unless otherwise agreed to by the Parties in writing, the costs associated with such testing and review shall be borne by the Party against whom the independent laboratory rulesFinished Product.

Acceptance; Rejection. If, after performing such testing MannKind determines and informs AFP in writing that any Product delivered is a Non-conforming Product, MannKind shall so notify AFP in writing within forty-five (45) days from receipt of the shipment. In the event that AFP agrees that the Product is Non-conforming Product, MannKind may, at its option, return such Non-conforming Product to AFP or request replacement of the Non-conforming Product at AFP’s sole cost and at the earliest possible timeframe that is commercially reasonable. If MannKind exercises such return rights, MannKind shall return any such Non-conforming Product in accordance with AFP’s then current return procedures, and AFP shall replace such Non-conforming Product. If AFP does not replace such Non-conforming Product so as to remedy any reported non-conformity within forty-five (45) days after such non-conformity is reported to AFP, then MannKind may reject such Non-conforming Product by providing prompt written notice of such rejection to AFP. In the event of such rejection of any Non-conforming Product, AFP shall promptly credit or refund the net purchase price paid by MannKind. MannKind may charge AFP for all costs of shipment of Non-conforming Product and for the cover costs of the Product. If MannKind does not notify AFP that any Product is a Non-conforming Product during the forty-five (45) day period following delivery of such Product at MannKind’s designated facility, or does not reject any Non-conforming Product in accordance with the procedure described above, such Product shall be deemed to have been accepted by MannKind. Acceptance or deemed acceptance under this § 5.4 shall not limit AFP’s warranty obligations or MannKind’s warranty rights under § 7.2. In the event of a discrepancy between MannKind and AFP as to whether the Product is Non-conforming Product or there otherwise exists a dispute between the Parties over the extent to which such non-conformity is attributable to a given Party, the Parties shall cause an independent laboratory promptly to review records, test data and perform comparative tests and analyses on samples of the Product that allegedly is Non-conforming. Such independent laboratory shall be mutually agreed upon by the Parties. The independent laboratory’s results shall be in writing and shall be final and binding save for manifest error. Unless otherwise agreed to by the Parties in writing, the costs associated with such testing and review shall be borne by the Party against whom the independent laboratory rules. [***] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

Acceptance; Rejection. If, after performing such testing MannKind determines and informs AFP in writing that any Product delivered is a Non-conforming Product, MannKind shall so notify AFP in writing within forty-five (45) days from receipt No later than the first day of the shipmentmonth preceding the Initial Shipment Month, the parties shall establish notification procedures for Product rejections and claims for breach of the Product Warranty. In Such notification procedures (rather than the event provisions of Section 15.5 hereof) shall apply to all notices and communications required or permitted under this Section 5.2 or under Section 5.3 or Section 5.5, and the terms “notice” and “notify” (and similar terms) as used in this Section 5.2 or in Section 5.3 or Section 5.5 shall be deemed to refer to notification in accordance with such notification procedures. Siemens is entitled to reject any shipment of Product that AFP agrees fails to conform to the Product Warranty at the time of Delivery, provided that Siemens has first taken reasonable steps to confirm that the failure to conform to the Product is Non-conforming Product, MannKind may, at its option, return such Non-conforming Product Warranty did not result from Siemens or the carrier’s failure to AFP handle or request replacement of the Non-conforming Product at AFP’s sole cost and at the earliest possible timeframe that is commercially reasonable. If MannKind exercises such return rights, MannKind shall return any such Non-conforming transport Product in accordance with AFP’s then current return proceduresSection 4.9 and the Specifications and has provided UBI with written certification that Siemens has taken such steps. In order to reject a shipment of Product (or any portion thereof), and AFP shall replace such Non-conforming Product. If AFP does not replace such Non-conforming Product so as to remedy any reported non-conformity within forty-five (45) days after such non-conformity is reported to AFP, then MannKind may reject such Non-conforming Product by providing prompt Siemens must give written notice to UBI of such Siemens’s rejection to AFP. In the event of such rejection of any Non-conforming Product, AFP shall promptly credit or refund the net purchase price paid by MannKind. MannKind may charge AFP for all costs of shipment of Non-conforming Product and for the cover costs of the Product. If MannKind does not notify AFP that any Product is a Non-conforming Product during the forty-five (45) day period following delivery of such Product at MannKindwithin *[REDACTED] after Delivery, which notice shall specify Siemens’s designated facilityreason(s) for rejection. If no such notice of rejection is received within *[REDACTED] after Delivery, or does not reject any Non-conforming Product in accordance with the procedure described above, such Product Siemens shall be deemed to have been accepted by MannKindsuch shipment. Acceptance (For the avoidance of doubt, notwithstanding Siemens’ acceptance or deemed acceptance under this § 5.4 of any shipment of Product, Siemens shall not limit AFP’s warranty obligations or MannKind’s warranty have the rights under § 7.2. In the event of a discrepancy between MannKind and AFP as remedies set forth in Section 5.3 with respect to whether the Product is Non-conforming Product or there otherwise exists a dispute between the Parties over the extent to which such non-conformity is attributable to a given Party, the Parties shall cause an independent laboratory promptly to review records, test data and perform comparative tests and analyses on samples claims for breach of the Product that allegedly is Non-conformingWarranty.) Within *[REDACTED] of receiving any notice of rejection from Siemens, UBI will respond stating whether (a) it accepts the rejection or (b) it disputes the rejection, in which case the parties will refer such dispute to a mutually acceptable independent third party laboratory. Such independent laboratory shall be mutually agreed upon by analyze the Partiesapplicable Product and shall determine whether such Product conformed or did not conform to the Product Warranty. The independent parties agree that such laboratory’s results shall be in writing and determination shall be final and binding save for manifest errorupon the parties. Unless otherwise agreed to by the Parties in writing, the costs associated with such testing and review shall be borne by the Party The party against whom the independent laboratory rulesrules shall bear the costs of analysis by such independent laboratory, and if such laboratory determines that Siemens’ rejection of Product was incorrect, Siemens will pay for both the initially rejected and replacement Product. Product rejected by Siemens will be returned to UBI at UBI’s request and expense. Within *[REDACTED] of receipt of any notice of rejection, UBI shall supply replacement Product at no additional cost.