NOT RESOLVED TO IDEARC'S REASONABLE
SATISFACTION AFTER (I) IDEARC HAS GIVEN PROVIDER NOTICE DESCRIBING SUCH CONCERNS
IN REASONABLE DETAIL, (II) IDEARC PROVIDES PROVIDER WITH A REASONABLE
OPPORTUNITY TO ADDRESS SUCH CONCERNS, AND (III) PROVIDER HAS NOT RESOLVED SUCH
CONCERNS AS PROMPTLY AS PRACTICABLE, BUT IN ANY EVENT NO LATER THAN 14 DAYS
AFTER RECEIPT OF IDEARC'S NOTICE.
IF IDEARC'S DECISION TO
4
DELAY IS BASED UPON REASONS OTHER THAN AS DESCRIBED ABOVE, THEN (X) ANY OTHER
TRANSITION MILESTONE DATES DIRECTLY ATTRIBUTABLE TO SUCH DELAY MAY ALSO BE
CORRESPONDINGLY DELAYED, (Y) PROVIDER WILL NOT BE LIABLE FOR MILESTONE CREDITS
DIRECTLY RELATING TO SUCH DELAY, AND (Z) SUBJECT TO SECTION 9.10, PROVIDER MAY
RECOVER ANY INCREMENTAL COSTS INCURRED BY PROVIDER PROXIMATELY CAUSED BY SUCH
IDEARC DECISION TO DELAY.
(E)
REPORTS.
PROVIDER SHALL REPORT TO IDEARC,
AS IS REASONABLY NECESSARY, ON THE PROGRESS IN PERFORMING PROVIDER'S
RESPONSIBILITIES AND MEETING THE TIMETABLE SET FORTH IN THE TRANSITION PLAN.
PROVIDER ALSO SHALL PROVIDE THE TRANSITION-RELATED REPORTS AS MAY BE REASONABLY
REQUESTED BY IDEARC.
IN ADDITION, PROVIDER SHALL PROVIDE SUCH REPORTS AS IDEARC
MAY REASONABLY REQUEST REGARDING THE PERFORMANCE OF PROVIDER'S RESPONSIBILITIES
AND THE THEN-CURRENT STATUS WITH RESPECT TO THE TIMETABLE, IN EACH CASE AS SET
FORTH IN THE TRANSITION PLAN.
PROMPTLY UPON RECEIVING ANY INFORMATION
INDICATING THAT PROVIDER MAY NOT PERFORM ITS RESPONSIBILITIES OR MEET THE
TIMETABLE SET FORTH IN THE TRANSITION PLAN, PROVIDER SHALL NOTIFY IDEARC OF
MATERIAL DELAYS AND SHALL IDENTIFY FOR IDEARC'S CONSIDERATION AND APPROVAL
SPECIFIC MEASURES TO ADDRESS SUCH DELAY AND MITIGATE THE RISKS ASSOCIATED
THEREWITH.
(F)
FAILURE TO MEET CRITICAL TRANSITION
MILESTONES.
(I)
THE PARTIES ACKNOWLEDGE AND AGREE THAT
THE TRANSITION PLAN SPECIFIES VARIOUS MUTUALLY AGREED UPON TRANSITION MILESTONES
FOR THE TRANSITION SERVICES TO BE PROVIDED UNDER EACH TOWER.
THE TRANSITION
MILESTONES IDENTIFY THE DATES BY WHICH CERTAIN TRANSITION ACTIVITIES AND/OR
DELIVERABLES ARE TO BE COMPLETED.
PROVIDER RECOGNIZES THAT ITS FAILURE TO MEET
THE TRANSITION MILESTONES SHALL HAVE A MATERIAL ADVERSE IMPACT ON THE BUSINESS
AND OPERATIONS OF IDEARC AND THAT THE DAMAGES RESULTING FROM PROVIDER'S FAILURE
TO MEET SUCH TRANSITION MILESTONES (AS DETERMINED PURSUANT TO A ROOT CAUSE
ANALYSIS) ARE NOT CAPABLE OF PRECISE DETERMINATION.
ACCORDINGLY, IF PROVIDER
FAILS TO MEET A TRANSITION MILESTONE FOR WHICH SCHEDULE 3.2 SPECIFIES A
MILESTONE CREDIT, TO THE EXTENT SUCH FAILURE IS ATTRIBUTABLE TO PROVIDER, THEN,
IN ADDITION TO ANY OTHER REMEDIES AVAILABLE TO IDEARC UNDER THE AGREEMENT, AT
LAW OR IN EQUITY, AND SUBJECT TO SECTION 5.2(B), PROVIDER SHALL BE SUBJECT TO
THE IMPOSITION OF APPLICABLE MILESTONE CREDITS AS DAMAGES FOR THE CORRESPONDING
FAILURES AND NOT AS A PENALTY.
(II)
NEITHER THE TRANSITION NOR THE ACTIVITIES
AND DELIVERABLES ASSOCIATED WITH INDIVIDUAL TRANSITION MILESTONES SHALL BE
DEEMED ACCEPTED OR COMPLETE UNTIL (I) PROVIDER HAS SUCCESSFULLY COMPLETED THE
APPLICABLE TRANSITION SERVICES ACCEPTANCE CRITERIA IN ACCORDANCE WITH THE
PROCESS AND STANDARDS IDENTIFIED IN THE TRANSITION PLAN FOR THE TRANSITION
SERVICES TO BE PROVIDED UNDER THE APPLICABLE TOWER OR (II) IN THE ABSENCE OF
SUCH ACCEPTANCE CRITERIA, IDEARC HAS NOTIFIED PROVIDER OF IDEARC'S ACCEPTANCE OF