AND AGREE THAT PUNITIVE OR EXEMPLARY DAMAGES ARE
NOT WITHIN THE CONTEMPLATION OF THIS AGREEMENT.
NO ARBITRAL TRIBUNAL MAY ORDER
AN AWARD CONSISTING IN WHOLE OR IN PART OF PUNITIVE OR EXEMPLARY DAMAGES.
8.11.4
TOLLING OF STATUTES OF LIMITATION.
ALL
APPLICABLE STATUTES OF LIMITATION AND DEFENSES BASED ON THE PASSAGE OF TIME
SHALL BE TOLLED WHILE THE PROCEDURES SPECIFIED IN SECTION 8.11 ARE PENDING.
SKT, SKTI AND EARTHLINK SHALL TAKE SUCH ACTION, IF ANY, REQUIRED TO EFFECTUATE
SUCH TOLLING.
8.11.5
RIGHT TO INJUNCTIVE RELIEF BEFORE
APPOINTMENT OF ARBITRATORS.
WITH RESPECT TO ANY VIOLATIONS OF THIS AGREEMENT
THAT WOULD CAUSE OR MIGHT CAUSE IRREPARABLE INJURY TO ANY ONE OF THE PARTIES TO
THIS AGREEMENT (AND ANY TIME PERIODS AND NOTICE PERIODS SPECIFIED THEREON), SUCH
PARTY MAY, IN ADDITION TO ANY OTHER RIGHTS UNDER THIS AGREEMENT OR ANY ANCILLARY
AGREEMENT AND NOTWITHSTANDING THE DISPUTE RESOLUTION PROCEDURES INCLUDING,
PARTICULARLY, THE MEDIATION PROVISIONS AND ARBITRATION AGREEMENT CONTAINED IN
THIS SECTION 8.11 (AND ANY TIME PERIODS AND NOTICE PERIODS SPECIFIED THEREON),
SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT AND INJUNCTIVE RELIEF IN ANY COURT
OF COMPETENT JURISDICTION AGAINST ANY ONGOING VIOLATION OF THIS AGREEMENT.
PRIOR TO THE APPOINTMENT OF THE ARBITRATORS PURSUANT TO THE ARBITRATION
AGREEMENT, ANY PARTY HERETO MAY SEEK PROVISIONAL OR INTERIM MEASURES FROM ANY
COURT
33
OF COMPETENT JURISDICTION.
AFTER THE APPOINTMENT OF THE ARBITRATORS, THE
ARBITRATORS SHALL HAVE EXCLUSIVE POWER TO CONSIDER AND GRANT REQUESTS FOR
PROVISIONAL OR INTERIM MEASURES.
8.12
SEVERABILITY.
THE PROVISIONS OF THIS AGREEMENT
SHALL BE DEEMED SEVERABLE AND THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF THE OTHER
PROVISIONS HEREOF.
IF ANY PROVISION OF THIS AGREEMENT, OR THE APPLICATION
THEREOF TO ANY PARTY OR ANY CIRCUMSTANCE, IS INVALID OR UNENFORCEABLE, (I) A
SUITABLE AND EQUITABLE PROVISION SHALL BE SUBSTITUTED THEREFOR IN ORDER TO CARRY
OUT, SO FAR AS MAY BE VALID AND ENFORCEABLE, THE INTENT AND PURPOSE OF SUCH
INVALID OR UNENFORCEABLE PROVISION AND (II) THE REMAINDER OF THIS AGREEMENT AND
THE APPLICATION OF SUCH PROVISION TO OTHER PARTIES OR CIRCUMSTANCES SHALL NOT BE
AFFECTED BY SUCH INVALIDITY OR UNENFORCEABILITY, NOR SHALL SUCH INVALIDITY OR
UNENFORCEABILITY AFFECT THE VALIDITY OR ENFORCEABILITY OF SUCH PROVISION, OR THE
APPLICATION THEREOF, IN ANY OTHER JURISDICTION.
8.13
GUARANTEE OF SUBSIDIARIES' PERFORMANCE.
EACH PARTY
ABSOLUTELY, UNCONDITIONALLY AND IRREVOCABLY GUARANTEES TO THE OTHER PARTY AND
ITS SUCCESSORS AND PERMITTED ASSIGNS THE PRESENT AND FUTURE PAYMENT AND
PERFORMANCE BY ANY SUBSIDIARY OF SUCH PARTY OF ALL OBLIGATIONS OF SUCH
SUBSIDIARY UNDER THIS AGREEMENT AND THE ANCILLARY AGREEMENTS TO WHICH SUCH
SUBSIDIARY IS A PARTY (THE "OBLIGATIONS").
SUCH GUARANTY IS A GUARANTY OF
PAYMENT AND PERFORMANCE, AND NOT OF COLLECTION.
ACCORDINGLY, NO GUARANTEED
PARTY WILL BE REQUIRED TO SEEK PAYMENT OR PERFORMANCE FROM THE PRIMARY OBLIGOR
IN ORDER TO EXERCISE OR ENFORCE ITS RIGHTS AGAINST A PARTY UNDER THIS
SECTION 8.13.
EACH PARTY'S GUARANTY SHALL NOT BE COMPROMISED, WAIVED, RELEASED,
NOVATED OR OTHERWISE ALTERED OR AFFECTED BY ANY CHANGES, MODIFICATIONS AND OTHER
AMENDMENTS TO THIS AGREEMENT OR ANY