Common use of Notwithstanding Section 5 Clause in Contracts

Notwithstanding Section 5. 03(a), from and after the Effective Time, with respect to any Liability incurred by Baxalta or any of the Baxalta Subsidiaries prior to the Effective Time (or, with respect to any Deferred Baxalta Local Business, prior to the Local Closing Date), to the extent reasonably possible, Baxter will, or will cause the applicable insurance companies or a Baxter Subsidiary that is insured thereunder to (i) continue to provide Baxalta and the Baxalta Subsidiaries with access to and coverage under the applicable insurance policies, and (ii) reasonably cooperate with Baxalta and take commercially reasonable actions as may be necessary or advisable to assist Baxalta in submitting such claims under the applicable insurance policies; provided, that Baxalta shall be responsible for any and all applicable deductibles, self-insured retentions, retrospective premiums, claims-handling charges, co-payments or any other charge or fee legally due and owing relating to such claims and neither Baxter nor the insurance company or any Baxter Subsidiary shall be required to maintain such insurance policies. For the avoidance of doubt, if an occurrence date is after the Effective Time (or, with respect to any Deferred Baxalta Local Business, after the Local Closing Date), then no payment for any damages, costs of defense, or other sums with respect to such claim shall be available to Baxalta under such insurance policies. Neither Baxalta nor any Baxalta Subsidiary, in connection with making a claim under any insurance policy of Baxter or any Baxter Subsidiary pursuant to this Section 5.03(b), shall take any action that would be reasonably likely to: (A) have an adverse impact on the then-current relationship between Baxter or any Baxter Subsidiary, on the one hand, and the applicable insurance company, on the other hand; (B) result in the applicable insurance company terminating or reducing coverage, or increasing the amount of any premium owed by Baxter or any Baxter Subsidiary under the applicable insurance policy; or (C) otherwise compromise, jeopardize or interfere with the rights of Baxter or any Baxter Subsidiary under the applicable insurance policy. At all times, the Parties shall, and shall cause their respective Subsidiaries to, cooperate with reasonable requests for information by the other Party or the insurance companies regarding any such insurance policy claim.

Notwithstanding Section 5. 03(a1(a), from and after the Effective Time, with respect to any Liability incurred by Baxalta SpinCo or any member of the Baxalta Subsidiaries SpinCo Group or SpinCo Indemnitees prior to the Effective Time (or, with respect to any Deferred Baxalta SpinCo Local Business, prior to the Local Closing Date), to the extent reasonably possible, Baxter will, Parent or the member of the Parent Group that is insured thereunder will undertake commercially reasonable efforts to cause the applicable insurance company or companies or a Baxter Subsidiary that is insured thereunder to (i) continue to provide Baxalta SpinCo and the Baxalta Subsidiaries members of the SpinCo Group and SpinCo Indemnitees with access to and coverage under the applicable insurance policies, and (ii) reasonably cooperate with Baxalta SpinCo and the members of the SpinCo Group and SpinCo Indemnitees and take commercially reasonable actions as reasonably may be necessary or advisable requested to assist Baxalta SpinCo and the members of the SpinCo Group and SpinCo Indemnitees in submitting connection with such claims under the applicable insurance policies; provided, that Baxalta SpinCo shall in any event be solely responsible for any and all applicable deductibles, self-insured retentions, retrospective premiums, claims-handling charges, co-payments or any other charge expenses, charges or fee legally due and owing fees relating to such claims, including, without limitation, expenses, charges or fees of Parent personnel. In furtherance thereof, except as otherwise addressed in another Ancillary Agreement, to the extent Parent or any of the members of the Parent Group is billed by an insurance carrier or a third-party administrator (including under any workers compensation or auto liability policies) for claims that constitute SpinCo Liabilities or that Parent pays for such claims within a deductible or self-insured retention, Parent shall submit a statement to SpinCo following the end of each quarter (or with such lesser frequency as may be appropriate) setting forth the amount of such claims, and SpinCo shall reimburse Parent within thirty (30) days any amounts paid by it in respect of such SpinCo Liabilities. Notwithstanding the foregoing, subject to Section 5.7, neither Baxter Parent nor the insurance company or any Baxter Subsidiary member of the Parent Group shall be required to maintain any such insurance policies. For the avoidance of doubt, if an accident, first loss or first occurrence date is after the Effective Time (or, with respect to any Deferred Baxalta SpinCo Local Business, after prior to the Local Closing Date), or with respect to any claims-made policies the claim first is made after the Effective Time and is not provided for in Section 5.1(a), Section 5.1(b) or Section 5.7, then no payment for any damages, settlement(s), indemnification(s), costs of defense, defense or any other sums with respect to such accident, first loss, first occurrence or claim shall be available to Baxalta SpinCo or the members of the SpinCo Group and SpinCo Indemnitees under any such insurance policies. Neither Baxalta SpinCo nor any Baxalta Subsidiarymember of the SpinCo Group or SpinCo Indemnitee, in connection with making a claim under any insurance policy of Baxter Parent or any Baxter Subsidiary member of the Parent Group pursuant to this Section 5.03(b5.1(b), shall take take, nor shall Parent or any member of the Parent Group be required to take, any action that would be reasonably likely to: (A) have an adverse impact on the then-current relationship between Baxter Parent or any Baxter Subsidiarymember of the Parent Group or Parent Indemnitee, on the one hand, and the applicable insurance company, on the other hand; (B) result in the applicable insurance company terminating terminating, materially changing or reducing coverage, or increasing the amount of any premium owed by Baxter Parent or any Baxter Subsidiary member of the Parent Group under the applicable insurance policy; or (C) otherwise compromise, jeopardize or interfere with the rights of Baxter Parent or any Baxter Subsidiary member of the Parent Group or Parent Indemnitee under the applicable insurance policy. At all times, the Parties shall, and shall cause their respective Subsidiaries Groups and Indemnitees to, cooperate with reasonable requests for information by the other Party or the insurance companies regarding any such insurance policy claim.

Notwithstanding Section 5. 03(a)3.1, from Borrower or Operating Lessee Owner may, without Lender’s consent, perform, or cause the Mortgage Loan Parties to perform, alterations to the Improvements and after Equipment which (i) do not constitute a Material Alteration, (ii) do not adversely affect Borrower’s, Operating Lessee Owner’s or any Mortgage Loan Party’s financial condition or the Effective Timevalue or Net Operating Income of the Property and (iii) are in the ordinary course of Borrower’s, Operating Lessee Owner’s or any Mortgage Loan Party’s business. Neither Borrower nor Operating Lessee Owner shall perform, nor permit any Mortgage Loan Party to perform, any Material Alteration without Lender’s prior written consent, which consent shall not be unreasonably withheld or delayed; provided, however, that Lender may, in its sole and absolute discretion, withhold consent to any alteration the cost of which is reasonably estimated to exceed $1,500,000 with respect to any Liability incurred Individual Property or which is likely to result in a decrease of Net Operating Income by Baxalta two and one–half percent (2.5%) or any more for a period of thirty (30) days or longer. Lender may, as a condition to giving its consent to a Material Alteration, require that Borrower and Operating Lessee Owner deliver to Lender security for payment of the Baxalta Subsidiaries prior cost of such Material Alteration in an amount equal to one hundred twenty–five percent 41 (125%) of the cost of the Material Alteration as estimated by Lender, provided such requirement shall be waived if such security is provided to Mortgage Lender pursuant to the Effective Time Mortgage Loan Documents. Upon substantial completion of the Material Alteration, Borrower or Operating Lessee Owner shall (oror shall cause the Mortgage Loan Parties to) provide evidence satisfactory to Lender that (i) the Material Alteration was constructed in a good and workmanlike manner and in accordance with applicable Legal Requirements and substantially in accordance with plans and specifications approved by Lender (which approval shall not be unreasonably withheld or delayed), (ii) all contractors, subcontractors, materialmen and professionals who provided work, materials or services in connection with the Material Alteration have been paid in full and have delivered unconditional releases of lien (except with respect to any Deferred Baxalta Local Business, prior to the Local Closing Date), to the extent reasonably possible, Baxter will, or will cause the applicable insurance companies or a Baxter Subsidiary that is insured thereunder to (iPermitted Encumbrances) continue to provide Baxalta and the Baxalta Subsidiaries with access to and coverage under the applicable insurance policies, and (iiiii) reasonably cooperate with Baxalta all material Licenses necessary for the use, operation and take commercially occupancy of the Material Alteration (other than those which depend on the performance of Tenant improvement work) have been issued. Borrower shall (or shall cause Mortgage Borrower to) reimburse Lender upon demand for all out–of–pocket reasonable actions as may be necessary or advisable to assist Baxalta in submitting such claims under costs and expenses (including the applicable insurance policies; providedreasonable fees of any architect, that Baxalta shall be responsible for any and all applicable deductibles, self-insured retentions, retrospective premiums, claims-handling charges, co-payments or any other charge or fee legally due and owing relating to such claims and neither Baxter nor the insurance company or any Baxter Subsidiary shall be required to maintain such insurance policies. For the avoidance of doubt, if an occurrence date is after the Effective Time (or, with respect to any Deferred Baxalta Local Business, after the Local Closing Date), then no payment for any damages, costs of defense, engineer or other sums with respect professional engaged by Lender) incurred by Lender in reviewing plans and specifications or in making any determinations necessary to such claim shall be available to Baxalta under such insurance policies. Neither Baxalta nor any Baxalta Subsidiary, in connection with making a claim under any insurance policy implement the provisions of Baxter or any Baxter Subsidiary pursuant to this Section 5.03(b), shall take any action that would be reasonably likely to: (A) have an adverse impact on the then-current relationship between Baxter or any Baxter Subsidiary, on the one hand, and the applicable insurance company, on the other hand; (B) result in the applicable insurance company terminating or reducing coverage, or increasing the amount of any premium owed by Baxter or any Baxter Subsidiary under the applicable insurance policy; or (C) otherwise compromise, jeopardize or interfere with the rights of Baxter or any Baxter Subsidiary under the applicable insurance policy. At all times, the Parties shall, and shall cause their respective Subsidiaries to, cooperate with reasonable requests for information by the other Party or the insurance companies regarding any such insurance policy claim5.3.2.

Notwithstanding Section 5. 03(a), from and after the Effective Time, with respect to any Liability incurred by Baxalta Organon or any of the Baxalta Organon Subsidiaries or Organon Indemnitees prior to the Effective Time (or, with respect to any Deferred Baxalta Organon Local Business, prior to the Local Closing Date), and except with respect to any Directors and Officers or Management Liability insurance policies other than the tail or run-off provided for under Section 5.02(a), to the extent reasonably possible, Baxter will, Merck or will cause the applicable insurance companies or a Baxter Merck Subsidiary that is insured thereunder will undertake commercially reasonable efforts to cause the applicable insurance company or companies to (i) continue to provide Baxalta Organon and the Baxalta Organon Subsidiaries and Organon Indemnitees with access to and coverage under the applicable insurance policies, and (ii) reasonably cooperate with Baxalta Organon and the Organon Subsidiaries and Organon Indemnitees and take commercially reasonable actions as reasonably may be necessary or advisable requested to assist Baxalta Organon and the Organon Subsidiaries and Organon Indemnitees in submitting connection with such claims under the applicable insurance policies; provided, that Baxalta Organon shall in any event be solely responsible for any and all applicable deductibles, self-insured retentions, retrospective premiums, claims-handling charges, co-payments or any other charge expenses, charges or fee legally due and owing fees relating to such claims, including, without limitation, expenses, charges or fees of Merck personnel. In furtherance thereof, except as otherwise addressed in another Transaction Document, to the extent Merck or any of the Merck Subsidiaries is billed by an insurance carrier or a third-party administrator (including under any workers compensation or auto liability policies) for claims that constitute Organon Liabilities or that Merck pays for such claims within a deductible or self-insured retention, Merck shall submit a statement to Organon following the end of each quarter (or with such lesser frequency as may be appropriate) setting forth the amount of such claims, and Organon shall reimburse Merck within 30 days any amounts paid by it in respect of such Organon Liabilities. Notwithstanding the foregoing, neither Baxter Merck nor the insurance company or any Baxter Merck Subsidiary shall be required to maintain any such insurance policies. For the avoidance of doubt, if an accident, first loss or first occurrence date is after the Effective Time (or, with respect to any Deferred Baxalta Organon Local Business, after the Local Closing Date), or with respect to any claims-made policies the claim first is made after the Effective Time and is not provided for in Section 5.03(a) or 5.03(b), then no payment for any damages, settlement(s), indemnification(s), costs of defense, defense or any other sums with respect to such accident, first loss, first occurrence or claim shall be available to Baxalta Organon or the Organon Subsidiaries and Organon Indemnitees under any such insurance policies. Neither Baxalta Organon nor any Baxalta SubsidiaryOrganon Subsidiary or Organon Indemnitee, in connection with making a claim under any insurance policy of Baxter Merck or any Baxter Merck Subsidiary pursuant to this Section 5.03(b), shall take take, nor shall Merck or any Merck Subsidiary be required to take, any action that would be reasonably likely to: (A) have an adverse impact on the then-current relationship between Baxter Merck or any Baxter SubsidiaryMerck Subsidiary or Merck Indemnitee, on the one hand, and the applicable insurance company, on the other hand; (B) result in the applicable insurance company terminating terminating, materially changing or reducing coverage, or increasing the amount of any premium owed by Baxter Merck or any Baxter Merck Subsidiary under the applicable insurance policy; or (C) otherwise compromise, jeopardize or interfere with the rights of Baxter Merck or any Baxter Merck Subsidiary or Merck Indemnitee under the applicable insurance policy. At all times, the Parties shall, and shall cause their respective Subsidiaries and Indemnitees to, cooperate with reasonable requests for information by the other Party or the insurance companies regarding any such insurance policy claim.