PURPOSES, INCLUDING IMPEACHMENT, IF ANY LITIGATION OR OTHER PROCEEDINGS INVOLVE
THE PARTIES AND WILL NOT BE DISCLOSED TO ANYONE NOT AN AGENT, EMPLOYEE, EXPERT
OR OTHER REPRESENTATIVE FOR ANY OF THE PARTIES.
EVIDENCE OTHERWISE DISCOVERABLE
OR ADMISSIBLE IS NOT EXCLUDED FROM DISCOVERY OR ADMISSION AS A RESULT OF ITS USE
IN THE MEDIATION.
CONFIDENTIAL INFORMATION DISCLOSED TO THE MEDIATOR BY THE
PARTIES OR BY WITNESSES IN THE COURSE OF THE MEDIATION WILL NOT BE DIVULGED BY
THE MEDIATOR.
ALL RECORDS, REPORTS OR OTHER DOCUMENTS RECEIVED BY THE MEDIATOR
WHILE SERVING IN THAT CAPACITY WILL BE CONFIDENTIAL.
THE MEDIATOR WILL NOT BE
COMPELLED TO DIVULGE SUCH RECORDS OR TO TESTIFY WITH REGARD TO THE MEDIATION IN
ANY ADVERSARY PROCEEDING OR JUDICIAL FORUM.
(IV)
COSTS OF MEDIATION. THE PARTIES WILL BEAR
THEIR RESPECTIVE COSTS INCURRED IN CONNECTION WITH THE MEDIATION DESCRIBED IN
THIS SECTION 9.10, EXCEPT THAT THE PARTIES WILL SHARE EQUALLY THE FEES AND
EXPENSES OF THE MEDIATOR, THE COSTS OF OBTAINING THE FACILITY FOR THE MEDIATION,
AND THE FEES AND EXPENSES OF ANY EXPERTS EMPLOYED AT THE MEDIATOR'S REQUEST.
(V)
TERMINATION OF MEDIATION. THE MEDIATION WILL
BE TERMINATED UPON THE FIRST TO OCCUR OF THE FOLLOWING:
(A)
BY THE EXECUTION OF A SETTLEMENT AGREEMENT
RESOLVING THE DISPUTE BY THE PARTIES;
(B)
BY A DECLARATION OF THE MEDIATOR TO THE
EFFECT THAT FURTHER EFFORTS AT MEDIATION ARE NO LONGER WORTHWHILE; OR
(C)
AFTER THE COMPLETION OF TWO (2) FULL DAYS OF
MEDIATION SESSIONS, BY DECLARATION OF A PARTY OR PARTIES TO THE EFFECT THAT
MEDIATION PROCEEDINGS ARE TERMINATED.
(VI)
LITIGATION. NO PARTY MAY BRING (OR HAVE
BROUGHT) ANY ACTION IN ANY FORUM WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR ANY TRANSACTION DOCUMENT, OR THE BREACH OR
TERMINATION THEREOF, UNTIL SUCH PARTY HAS FULLY COMPLIED WITH
SECTIONS 9.10(A) AND (B) WITH RESPECT TO SUCH DISPUTE, EXCEPT WITH RESPECT TO:
(A)
ANY DISPUTE RELATING TO RTEA'S OR KMS' RIGHTS
AS A STOCKHOLDER OF CPE OR A MEMBER OF CPE LLC PURSUANT TO APPLICABLE LAW, CPE'S
CHARTER OR BYLAWS OR THE LLC AGREEMENT; AND
(B)
ANY DISPUTE FOR WHICH A PARTY IS SEEKING
INJUNCTIVE RELIEF IF TIME IS OF THE ESSENCE AND IRREPARABLE HARM WILL RESULT IN
THE ABSENCE OF SUCH INJUNCTIVE RELIEF.
9.11.
NO THIRD-PARTY BENEFICIARIES.
THIS AGREEMENT SHALL
INURE TO THE BENEFIT OF, AND BE BINDING UPON, THE PARTIES HERETO, THEIR
AFFILIATES AND THEIR RESPECTIVE LEGAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT,
EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY OTHER PERSON ANY RIGHTS OR
REMEDIES OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
66
9.12.
WAIVER. A PROVISION OF THIS AGREEMENT MAY BE WAIVED
ONLY BY A WRITING SIGNED BY THE PARTY INTENDED TO BE BOUND BY THE WAIVER. A
PARTY IS NOT PREVENTED FROM ENFORCING ANY RIGHT, REMEDY OR CONDITION IN THE
PARTY'S FAVOR BECAUSE OF ANY FAILURE OR DELAY IN EXERCISING ANY RIGHT OR REMEDY
OR IN REQUIRING