OF THE BUSINESS AND INCIDENTS AND OCCURRENCES ON OR PRIOR TO THE EFFECTIVE DATE.
15
9.2
NON-WAIVER, NON-EXCLUSIVE REMEDY. FAILURE OF THE BUYER INDEMNIFIED
PARTIES TO GIVE REASONABLY PROMPT NOTICE OF ANY CLAIM OR CLAIMS SHALL NOT
RELEASE, WAIVE OR OTHERWISE AFFECT THE OBLIGATIONS OF SELLER AND LESLEY WITH
RESPECT THERETO EXCEPT TO THE EXTENT THAT SELLER AND LESLEY CAN DEMONSTRATE
ACTUAL LOSS AND PREJUDICE AS A RESULT OF SUCH FAILURE. THE INDEMNIFICATION
PROVISIONS CONTAINED IN THIS ARTICLE 9 AND THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN THIS AGREEMENT AND OTHER OBLIGATIONS CONTAINED IN THIS AGREEMENT
WHICH BY THEIR NATURE ARE TO BE PERFORMED AFTER THE EFFECTIVE DATE SHALL FOREVER
SURVIVE AND ARE IN ADDITION TO, AND NOT IN DEROGATION OF, ANY STATUTORY, COMMON
LAW OR EQUITABLE RIGHTS OR REMEDIES ANY PARTY MAY HAVE FOR BREACH OF ANY
REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT.
ARTICLE 10
OTHER AGREEMENTS/RIGHT TO SETOFF
10.1
SETOFF. IF SELLER OR LESLEY FAIL TO PAY ANY AMOUNTS THEY OWE OR
FAIL TO PERFORM ANY OBLIGATIONS THEY OWE BUYER OR ANY AFFILIATE OF BUYER IN ANY
MANNER PURSUANT TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, OBLIGATIONS OF
SELLER AND LESLEY UNDER ARTICLE 9 HEREOF), ANY OTHER DOCUMENT OR AGREEMENT
RELATED TO THIS TRANSACTION (INCLUDING, WITHOUT LIMITATION, THE CONSULTING
AGREEMENT, THE MASTER AGREEMENT, AND THE HLC SUBSCRIPTION AGREEMENT (AS DEFINED
IN SECTION 10.2), BUYER WILL HAVE THE RIGHT TO SET-OFF SUCH AMOUNTS WHICH HAVE
NOT BEEN PAID OR THE VALUE OF THE OBLIGATION SO OWED AGAINST ALL AMOUNTS WHICH
ARE OWED BY BUYER OR ANY AFFILIATE OF BUYER TO SELLER OR LESLEY, INCLUDING,
WITHOUT LIMITATION AND IN BUYER'S SOLE DISCRETION, MARGIN PAYMENTS, RESTRICTIVE
COVENANT PAYMENTS, ANY AMOUNT DUE UNDER THE CONSULTING AGREEMENT AND DIVIDENDS
OWED ON THE ESCROWED HLC SHARES AND BY A REDUCTION OF ESCROWED HLC SHARES AS
PROVIDED IN SECTION 10.2. NEITHER THE EXERCISE OF, NOR THE FAILURE TO EXERCISE
SUCH RIGHT OF SET-OFF WILL CONSTITUTE AN ELECTION OF REMEDIES OR LIMIT BUYER OR
BRS IN ANY MANNER IN THE ENFORCEMENT OF ANY OTHER REMEDIES THAT MAY BE AVAILABLE
TO IT HEREUNDER. ANY FAILURE BY BUYER OR BRS TO PAY ALL OR ANY PORTION OF A
MARGIN PAYMENT, RESTRICTIVE COVENANT PAYMENT, ANY AMOUNT DUE UNDER THE
CONSULTING AGREEMENT OR DIVIDENDS ON THE ESCROWED HLC SHARES OR OF BUYER TO
REDEEM THE ESCROWED HLC SHARES BY VIRTUE OF EXERCISING ITS SET-OFF RIGHTS HEREIN
SHALL NOT CONSTITUTE A DEFAULT UNDER OR A BREACH OF THIS AGREEMENT, THE MASTER
AGREEMENT, THE CONSULTING AGREEMENT OR THE HLC SUBSCRIPTION AGREEMENT FOR ANY
REASON.
10.2
ESCROWED HLC SHARES. THE SHARES OF BUYER COMMON STOCK ISSUED TO
SELLER PURSUANT TO THAT CERTAIN SUBSCRIPTION AGREEMENT BY AND BETWEEN THE BUYER
AND SELLER DATED THE DATE HEREOF (THE "HLC SUBSCRIPTION AGREEMENT") SHALL BE
BENEFICIALLY OWNED BY SELLER, PROVIDED HOWEVER, THAT FOR A TWO YEAR PERIOD
FOLLOWING THE EFFECTIVE DATE, SUCH SHARES (THE "ESCROWED HLC SHARES") SHALL BE
HELD IN ESCROW BY BUYER TO SATISFY CLAIMS AND OBLIGATIONS OF BUYER PURSUANT TO
SECTIONS 3.6, 3.7, 3.8, 3.9, 8.5