by such party under this
Agreement, subject to the qualifications set forth herein and therein. Any
covenant of the parties contained herein shall survive the Closing hereunder for
an indefinite period of time hereunder unless otherwise specified herein.
7.12
Dispute Resolution. Any dispute arising out of or relating to this
Agreement shall be resolved in accordance with the procedures specified in this
Section 7.12, which shall be the sole and exclusive procedure for the resolution
of any such dispute.
7.12.1
NEGOTIATION BETWEEN EXECUTIVES. OPERATING COMPANY, EARTHLINK AND SKT
HOLDINGS SHALL ATTEMPT IN GOOD FAITH TO RESOLVE ANY DISPUTE ARISING OUT OF OR
RELATING TO THIS AGREEMENT PROMPTLY BY DIRECT NEGOTIATION AMONG EXECUTIVES WHO
HAVE AUTHORITY TO SETTLE THE CONTROVERSY AND WHO ARE AT A HIGHER LEVEL OF
MANAGEMENT THAN THE PERSONS WITH DIRECT RESPONSIBILITY FOR ADMINISTRATION OF
THIS AGREEMENT, UNLESS THERE IS NO EXECUTIVE OF A HIGHER LEVEL. ANY PARTY MAY
GIVE THE OTHER PARTIES WRITTEN NOTICE OF ANY DISPUTE NOT RESOLVED IN THE NORMAL
COURSE OF BUSINESS. WITHIN FIFTEEN (15) DAYS AFTER DELIVERY OF THE NOTICE, THE
RECEIVING PARTIES SHALL SUBMIT TO THE OTHERS A WRITTEN RESPONSE. THE NOTICE AND
THE RESPONSE SHALL INCLUDE:
(A) A STATEMENT OF EACH PARTY'S POSITION AND A
SUMMARY OF ARGUMENTS SUPPORTING THAT POSITION; AND, (B) THE NAME AND TITLE OF
THE EXECUTIVE WHO WILL REPRESENT THAT PARTY AND OF ANY OTHER PERSON
22
WHO WILL ACCOMPANY THE EXECUTIVE. WITHIN THIRTY (30) DAYS AFTER DELIVERY OF THE
DISPUTING PARTY'S NOTICE, THE EXECUTIVES OF EACH OF OPERATING COMPANY, SKT
HOLDINGS AND EARTHLINK SHALL MEET AT A MUTUALLY ACCEPTABLE TIME AND PLACE, AND
THEREAFTER AS OFTEN AS THEY REASONABLY DEEM NECESSARY, TO ATTEMPT TO RESOLVE THE
DISPUTE. ALL REASONABLE REQUESTS FOR INFORMATION MADE BY ONE PARTY TO THE OTHERS
WILL BE HONORED. ALL NEGOTIATIONS PURSUANT TO THIS CLAUSE ARE CONFIDENTIAL AND
SHALL BE TREATED AS COMPROMISE AND SETTLEMENT NEGOTIATIONS FOR PURPOSES OF
APPLICABLE RULES OF EVIDENCE.
7.12.2
MEDIATION WITH MUTUALLY AGREED-UPON NEUTRAL. IF THE DISPUTE HAS NOT
BEEN RESOLVED BY NEGOTIATION WITHIN FORTY-FIVE (45) DAYS OF THE DISPUTING
PARTY'S NOTICE, OR IF OPERATING COMPANY, SKT HOLDINGS AND EARTHLINK FAIL TO MEET
WITHIN TWENTY (20) DAYS, OPERATING COMPANY, SKT HOLDINGS AND EARTHLINK SHALL
SUBMIT THE DISPUTE TO NON-BINDING MEDIATION UNDER THE THEN-CURRENT CPR INSTITUTE
FOR DISPUTE RESOLUTION'S ("CPR") MODEL MEDIATION PROCEDURE FOR BUSINESS
DISPUTES, AND ENDEAVOR (BUT NOT BE OBLIGATED) TO SETTLE THE DISPUTE IN SUCH
MEDIATION. CPR'S ADDRESS AT THE TIME OF THIS AGREEMENT IS 366 MADISON AVENUE,
14TH FLOOR, NEW YORK, NEW YORK 10017 (212-949-6490) AND ITS WEBSITE IS
"."
OPERATING COMPANY, SKT HOLDINGS AND EARTHLINK AGREE TO USE
THEIR BEST EFFORTS AND GOOD FAITH TO AGREE MUTUALLY ON A MEDIATOR, TO BE
SELECTED FROM THE CPR TECHNOLOGY PANEL OF NEUTRALS. IF OPERATING COMPANY, SKT
HOLDINGS AND EARTHLINK FAIL TO SELECT A MUTUALLY ACCEPTABLE MEDIATOR WITHIN
THIRTY (30) DAYS AFTER ANY PARTY'S NOTICE TO THE OTHERS PARTY THAT THEY REQUEST
NON-BINDING MEDIATION PURSUANT TO THIS SUBSECTION, CPR WILL APPOINT A MEDIATOR
FROM THE TECHNOLOGY