RESIGNS,
REFUSES TO ACT, OR BECOMES INCAPABLE OF PERFORMING HIS FUNCTIONS, THE VACANCY
SHALL BE FILLED BY THE METHOD BY WHICH THAT ARBITRATOR WAS ORIGINALLY APPOINTED.
All arbitrators shall be of good reputation and character and shall be highly
knowledgeable of entertainment industry matters.
Seller shall pay one-half of
the arbitrators' expenses and Buyer shall pay one-half.
The parties shall pay
their own legal expenses.
The arbitrators shall provide a reasoned opinion
supporting their conclusion, including detailed findings of fact and conclusions
of law.
Such findings of fact shall be final and binding on the parties but
such conclusions of law shall be subject to appeal in any court of competent
38
JURISDICTION.
THE ARBITRATORS MAY AWARD DAMAGES AND/OR PERMANENT INJUNCTIVE
RELIEF, BUT IN NO EVENT SHALL THE ARBITRATORS HAVE THE AUTHORITY TO AWARD
PUNITIVE OR EXEMPLARY DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
SECTION 10.3, EITHER PARTY MAY APPLY TO A COURT OF COMPETENT JURISDICTION FOR
RELIEF IN THE FORM OF A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION,
OR OTHER PROVISIONAL REMEDY PENDING FINAL DETERMINATION OF A CLAIM THROUGH
ARBITRATION IN ACCORDANCE WITH THIS SECTION 10.3.
IF PROPER NOTICE OF ANY
HEARING HAS BEEN GIVEN, THE ARBITRATORS WILL HAVE FULL POWER TO PROCEED TO TAKE
EVIDENCE OR TO PERFORM ANY OTHER ACTS NECESSARY TO ARBITRATE THE MATTER IN THE
ABSENCE OF ANY PARTY WHO FAILS TO APPEAR.
10.4
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL INURE TO THE BENEFIT
OF AND BE BINDING UPON THE RESPECTIVE SUCCESSORS, LICENSEES AND ASSIGNS OF THE
PARTIES HERETO, BUT ANY SUCH ASSIGNMENT BY EITHER PARTY HERETO SHALL NOT RELIEVE
SUCH ASSIGNING PARTY OF ANY OF ITS OBLIGATIONS OR AGREEMENTS HEREUNDER; PROVIDED
THAT THIS AGREEMENT MAY NOT BE ASSIGNED BY ANY PARTY HERETO UNLESS EXPRESSLY
AGREED TO IN WRITING BY THE OTHER PARTY HERETO IN ITS SOLE DISCRETION (PROVIDED
THAT SUCH EXPRESS AGREEMENT IS NOT REQUIRED FOR ASSIGNMENTS BY BUYER TO AN
AFFILIATE OR FOR THE COLLATERAL ASSIGNMENT OF BUYER'S RIGHTS UNDER THIS
AGREEMENT TO ANY PERSON PROVIDING FINANCING RELATED TO THE TRANSACTIONS
CONTEMPLATED HEREBY).
10.5
NO WAIVER.
NO WAIVER BY EITHER PARTY HERETO OF ANY BREACH OF ANY
COVENANT, AGREEMENT, REPRESENTATION OR WARRANTY HEREUNDER SHALL BE DEEMED A
WAIVER OF ANY PRECEDING OR SUCCEEDING BREACH OF THE SAME.
THE EXERCISE OF ANY
RIGHT, POWER OR PRIVILEGE GRANTED TO EITHER PARTY HEREIN SHALL NOT OPERATE AS A
WAIVER OF ANY DEFAULT OR BREACH ON THE PART OF THE OTHER PARTY HERETO NOR SHALL
ANY SINGLE OR PARTIAL EXERCISE OF ANY SUCH RIGHT, POWER OR PRIVILEGE PRECLUDE
ANY OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER
OR PRIVILEGE.
EACH AND ALL OF THE SEVERAL RIGHTS AND REMEDIES OF EITHER PARTY
HERETO UNDER THIS AGREEMENT SHALL BE CONSTRUED AS CUMULATIVE AND NOT EXCLUSIVE
OF ANY RIGHTS OR REMEDIES PROVIDED BY LAW.
10.6
ENTIRE AGREEMENT; AMENDMENTS.
THIS AGREEMENT, INCLUDING THE
EXHIBITS ATTACHED HERETO AND ANY OTHER AGREEMENT OR DOCUMENT REFERRED TO IN THIS
AGREEMENT, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES