EXHIBIT 10.1
MASTER AGREEMENT
BETWEEN
NATIONAL ENERGY SERVICE CORPORATION
AND
PP&L SPECTRUM, INC.
This Agreement (the "Agreement") entered into as of the 11th day of
January, 1999, by and between NATIONAL ENERGY SERVICE CORPORATION ("NESC")
having offices at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000 and PP&L
SPECTRUM, INC. ("SPECTRUM") having offices at Two X. Xxxxx Xxxxxx, Xxxxxxxxx, XX
00000.
BACKGROUND OF THE AGREEMENT
Spectrum and National Energy Service Corporation ("NESC") (collectively the
"Parties" and each a "Party") have complementary skills and resources and desire
to establish a contractual arrangement for the marketing and development of
energy related projects and services, including but not limited to energy
upgrade and retrofit opportunities, to the long term care/retirement community
industry. Therefore, in consideration of the respective agreements and
conditions set forth in this Agreement and other good and valuable
consideration, including the time, effort and expenses of the Parties, the
receipt and sufficiency of which consideration is hereby acknowledged, the
Parties intending to be legally bound agree as follows:
1. Purpose and Scope of Agreement.
The parties shall cooperate to identify, consider and determine their
mutual interest, if any, in developing energy related projects and services for
the long term care/retirement community industry. Such projects and services
shall be referred to collectively as the "Projects" and individually as a
"Project." Such Projects may include, but are not necessarily limited to, the
following:
a. electric lighting upgrading by the installation of a newly retrofitted
lighting system;
b. energy conversion to natural gas;
c. installation of more efficient natural gas and water heating systems;
d. upgrading and rehabilitation of other energy systems and equipment;
e. assistance in minimization of energy and fuel costs for customers;
f. energy gatekeeper services and the long term contract for the sale of
natural gas and electricity;
g. assistance in minimizing energy and fuel costs through energy
conservation, efficiency and demand side management.
The additional services provided in connection with such Projects may
include some or all of the following: turnkey services (design/build
contracting), finance and equity services; engineering and design services;
technical consulting services; energy performance contracting; electric, natural
gas and other services procurement and management services.
2. Selected Projects.
a. Subject to other sections of this Agreement, the Parties from time to
time shall recommend in writing to each other one or more Projects
based on sales leads generated with potential customers for evaluation
under this Agreement ("Sales Lead Report"). Each Sales Lead Report
shall identify all Projects that the submitting Party has evaluated in
accordance with the Pre-screening Criteria as defined hereafter and
the results of each such evaluation. Within ten (10) business days
following receipt of a Sales Lead Report, the receiving Party shall
notify the other Party in writing of any Project described in the
Sales Lead Report that the receiving Party wishes to undertake jointly
with the other Party (referred to herein collectively as "Selected
Projects" and individually as a "Selected Project"). All Projects
described in the Sales Lead Report to which the receiving Party does
not timely respond or which the receiving Party does not wish to
undertake jointly shall be deemed rejected. If the receiving Party
requests additional information regarding the Project from the other
Party, the submitting Party shall promptly disclose, to the extent
possible, such additional information and the receiving Party shall
have five days from the receipt of such additional information to make
its determination. The submitting Party may thereafter pursue any such
rejected Project without restriction or limitation for its own account
or with third parties. The receiving Party, however, may only pursue
such a rejected Project:
(I) with the written consent of the submitting Party; or
(II) twelve months following the rejection; or
(III)if the receiving Party can demonstrate by reasonably acceptable
records that such rejected Project had already been known to and
identified by the receiving Party at the time a Sales Lead Report
was provided by the submitting Party.
b. Either Party may voluntarily recommend in a Sales Lead Report
pursuant to this section a Project outside the scope of this
Agreement which the submitting Party wishes to undertake jointly
with the receiving Party. If such a Project is so submitted, it
shall, unless otherwise agreed by the Parties, be subject to the
terms and conditions of this Agreement, to the extent that such
terms and conditions are not inconsistent with the nature of the
Project, as if it were a Project within the scope of this
Agreement, including the restrictions set forth in this section
on the pursuit of a rejected Project by the receiving Party.
3. Areas of Responsibility.
The primary responsibilities of the Parties with respect to the essential
elements of Project development and implementation are allocated as follows:
a. Sales Lead Generation. NESC shall be responsible for generating sales
leads for Projects by establishing initial contacts with potential
customers and developing those contacts into Project proposals.
However, Spectrum retains the right to make initial contacts and to
generate leads from sources other than NESC, provided that any such
Project sales leads shall nevertheless be subject to this Agreement.
b. Pre-screening of Sales Leads. NESC and Spectrum shall develop jointly
a pre-screening checklist and evaluation methodology for Project sales
leads ("Pre-Screening Criteria"). The Parties will employ the
Pre-Screening Criteria to pre-screen Project sales leads. Spectrum
shall provide technical assistance to NESC in connection with the
Pre-Screening Criteria, in particular with respect to energy
conversion and HVAC and water heating systems, as NESC may reasonably
require.
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The Pre-Screening Criteria will call for sufficient financial
information regarding the potential customer to allow at least a
preliminary evaluation of the potential customer's credit worthiness,
such as a review of available financial information, credit history
and credit references.
c. Technical Development. NESC shall provide or arrange for the
furnishing of the necessary technical expertise in developing the
lighting and related aspects of the proposal for a Project and, to the
extent applicable for a particular Project, Spectrum shall provide or
arrange for the furnishing of the necessary technical expertise to
develop the HVAC, water heating and related aspects of the proposal
for a particular Project.
d. Customer Contract Development. The Parties shall be jointly
responsible for the negotiation, development, drafting and execution
of each contract to provide services for a particular Project
("Customer Contracts"). Customer Contracts will address the reasonable
concerns of both parties. Although NESC shall be primarily responsible
for maintaining contact with potential customers and developing those
contacts into Customer Contracts, Spectrum shall support the marketing
effort up through Customer Contract closing.
e. Financing. Spectrum shall be responsible, in cooperation with NESC,
for providing financing for Projects to NESC at a mutually agreeable
rate to be fixed at the initiation of each Project. NESC shall be
responsible for providing such funds to the customer. A sample loan
agreement between NESC and Spectrum is attached to this Agreement as
Exhibit A with the understanding that such Loan Agreements may be
modified to take into account the credit risk of each Project (the
"Loan Agreement").
f. Design and Installation Services. NESC will be responsible for the
design and installation of the lighting upgrades and related services
and will perform such design and installation work itself, either
directly or through subcontractors. Spectrum will be responsible for
the design and installation of, if applicable to a particular Project,
HVAC and water heating, energy conversion, and other energy systems
and equipment. Spectrum may, at its option, take direct responsibility
for the performance of such work, take responsibility for the
performance of such work through subcontracting, or serve only as a
consultant to the customer on a fee basis.
g. Energy Gatekeeper. With respect to each project, Spectrum shall have
the option at its sole discretion to designate an "Energy Gatekeeper"
for the customer to provide energy, utility and other services to the
customer for an initial ten year term, subject to continuing annual
renewal if not terminated by the customer. Upon entering into such an
agreement with the customer ("Energy Gatekeeper Contract"), such
entity as chosen by Spectrum shall be designated as the customers
Energy Gatekeeper for such facility. Its responsibilities will
include, but not necessarily be limited to, the auditing,
transportation and/or supply of natural gas and electric power, as
well as other forms of energy such as propane and fuel oil, and
generally the auditing of energy services, utilities and other
services. NESC shall have no responsibility or obligation either to
Spectrum, Spectrum's designee or to the customer arising out of
Spectrum or Spectrum's designee actions in serving as the customer's
Energy Gatekeeper, except as may be specifically provided for
otherwise herein.
4. Profits and Expenses.
a. Design and Installation. NESC will be entitled to any profit from the
lighting design and installation portion of a Project which it
undertakes, while Spectrum will be
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entitled to any profit from the HVAC and water heating portion of the
Project as well as other portions of the Project, and the sale of
energy which may be undertaken by Spectrum's designee. In order to
insure that the profit to either NESC or Spectrum on these respective
portions of a Project are controlled so as not to prejudice the other
Party's interest from the Project, each Party's maximum markup after
cost will be capped at 35%. Each Party shall keep accurate and
complete records and books of account showing all charges,
disbursements or expenses made or incurred by it, whether directly or
through a subcontractor, in the performance of such work and shall
preserve such records and books of account for at least five years
after completion of the work on a Project. Such records and books of
account shall be available at all reasonable times for inspection,
audit and duplication by the other Party or its authorized
representative without additional costs to such other Party. Such
records and books shall include all information reasonably necessary
to evaluate compliance with the limitation on the Party's maximum
markup and shall include at the minimum, correspondence, account
books, time records, purchase orders and accounting records.
b. Principal and Interest Payment. The principal and interest payment to
service the financing portion of the Project will be a fixed payment
calculated to amortize the amount financed over ten years of equal
monthly payments and such payments will be due to Spectrum
irrespective of any future variation in the amount of monthly energy
savings calculated to be available to the customer. As may be
necessary for Spectrum to protect its financing interest in the
Project, Spectrum shall have the right to record the Customer Contract
and the Loan Agreement or, in lieu thereof, a notice of such contract
or other document adequate to secure Spectrum's interest in the
financing.
c. Residual Savings. In addition to the compensation which Spectrum may
derive from financing a Project and the compensation which either
party may derive from the design and installation of the energy
retrofits, both Parties will share in the potential energy savings
from the Project. The "Monthly Savings" to the customer will be based
upon the customer's operations, the customer's equipment within the
scope of the retrofit, and the prevailing tariff of the local utility,
all as of the time of the closing of the customer contract. NESC will
provide to Spectrum assistance in computing monthly amounts due and
the calculation of the Residual Savings. Deductions from the Monthly
Savings will be made in the following order of priority:
i. The principal and interest payment due to Spectrum calculated on
the ten year amortization;
ii. The payment to Spectrum for the difference between the ten year
amortization calculated as to the customer and the five year
amortization payment due to Spectrum; and
iii. The portion of the Monthly Savings agreed upon by NESC and
Spectrum and incorporated in the applicable Customer Contract to
be allocated to the customer as its "Monthly Maintenance
Discount".
The amount allocated to the customer as its Monthly Maintenance
Discount will be released or credited to the customer by Spectrum in
conformance with applicable Medicaid or other regulations. The amount
remaining will be the "Residual Savings" and will be divided equally
between NESC and Spectrum. Such division of the Residual Savings shall
continue to be made in accordance with this subparagraph 4c so long as
such Residual Savings are produced by a Project, irrespective of a
termination of the Agreement between NESC and Spectrum. The Monthly
Maintenance Discount will be held by Spectrum in a federally insured
account pending release or crediting to the Customer of such Monthly
Maintenance Discounts. Any accumulated interest will, from time to
time as determined by Spectrum, but at least yearly, be divided
equally between NESC and Spectrum. Any Monthly Maintenance
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Discount allocated to a Customer, but unused at the conclusion of the
Customer Contract will also be divided equally between NESC and
Spectrum.
d. Energy Gatekeeper Services. If Spectrum designates a party to serve as
Energy Gatekeeper for a Project, Spectrum and its designee will be
entitled to all profits from the sale of natural gas, electric power
or other utilities, energy supplies or similar services provided by
such designee as Energy Gatekeeper.
e. Design, Engineering and Installation Work. Each Party shall bear the
cost and expenses associated with the performance of its technical
consultant, design, engineering, installation, and related work for
any Project.
f. Delinquency Account. Prior to disbursement by Spectrum to NESC of
payment for the lighting design and installation portion of the first
ten Projects for which payment becomes due to NESC or its
subcontractor, an amount equaling one month's principal and interest
payment which is or would be due to Spectrum on each of the ten
Projects, based upon the five year amortization calculation, shall be
deducted from the NESC payment and instead deposited into a federally
insured interest bearing account established for the retention of such
amount (the "Delinquency Account"). In the event that any Customer
fails or delays in making a required monthly payment from which
Spectrum's principal and interest payment would normally be made
("Delinquency"), Spectrum may with notice to NESC reimburse itself for
such a Delinquency from the Delinquency Account. If the Customer
subsequently cures the Delinquency, the appropriate portion of such
Customer payment shall be used to restore the Delinquency Account.
Unless exhausted or unless the parties agree to an earlier release,
the Delinquency Account shall be maintained until there is no longer
any outstanding obligations of principal and interest due to Spectrum,
at which time any remaining balance with accumulated interest will be
release to NESC.
5. Term.
This Agreement shall become effective as of the date first written above
and shall remain in full force and effect until either its automatic termination
upon the tenth anniversary of such effective date or until the date thirty days
after Spectrum has provided notice to NESC of Spectrum's election to have the
Agreement terminate upon the expiration of such thirty day notice (the date of
either such termination being the "Termination Date"). However, if, as of the
Termination Date, a Customer Contract has not been executed for an outstanding
selected Project, then this Agreement shall remain in full force and effect as
to such selected Project until the earlier of the execution of a Customer
Contract or the Parties elect not to pursue such selected Project. With respect
to any Customer Contract which is in effect as of the Termination Date, this
Agreement shall remain in full force and effect as to such Project and shall
govern the respective rights and responsibilities of the Parties as to such
Project. Upon the Termination Date, except as to a selected Project which
remains outstanding as set forth in this section, the rights and
responsibilities of the Parties as to exclusivity under this Agreement shall no
longer exist. However, if Spectrum elects to terminate this Agreement for other
than a default by NESC or other good cause, then Spectrum agrees not to compete
with NESC directly or indirectly, to an affiliate or subsidiary, with respect to
Projects within the scope of this Agreement until the earlier of the following:
a. two years from the date Spectrum's notice of termination for other
than a default by NESC or other good cause;
b. the date upon which this Agreement would otherwise have
automatically terminated.
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6. Exclusivity.
The Parties shall both be obligated to identify all Projects within the
scope of this Agreement (i.e. energy upgrade and retrofit opportunities in the
long term care/retirement community environment (the "Field") for consideration
to be undertaken jointly as provided for in this Agreement. Except as may be
otherwise mutually agreed upon in writing by the Parties, the Parties shall
negotiate exclusively between themselves with respect to Projects during the
term of this Agreement and no Party shall participate in the evaluation or
development of a Project without the other Party. Each of the Parties may freely
and independently develop energy related Projects and services outside the
field, including the sale of natural gas or electric power to long term
care/retirement facilities if not associated with lighting retrofits, without
any obligation to the other, but may propose such a project to the other Party
for consideration to be undertaken jointly pursuant to the provisions of this
Agreement or as may otherwise be agreed between the Parties.
7. Insurance.
a. Required Insurance Coverage. Each Party represents that it now carries and
will carry and maintain during the term of this Agreement, both with
respect to itself and any entity performing the services for it under this
Agreement, insurance covering Worker's Compensation/Employer's Liability in
minimum amounts of $500,000, Commercial General Liability (including
specific coverage for contractual liability and completed operations) in
the amount of $2,000,000 aggregate and $1,000,000 per occurrence and
Business Automobile Liability in the amount 6T$1,000,000. The required
coverage may be provided in a combination of primary and umbrella or excess
liability insurance policies. Each Party shall be named as an insured as to
the other Party's Commercial General Liability and Automobile Liability
coverages, which coverages shall be deemed to be primary insurance and
shall state that the same is primary insurance and any other insurance
carried by a self-insurance program maintained by the other Party shall be
considered as excess insurance on behalf of the other Party only and such
policies shall be endorsed whereby the insurers waive any and all rights of
subrogation against the other Party.
b. Insurance Certificates. Prior to the commencement of any work under this
Agreement or earlier if requested by the other Party, each Party shall
furnish Certificates of Insurance and endorsements satisfactory to the
other Party (or if the other Party so directs, copies of the actual
insurance policies) from each insurance carrier showing that the required
insurance is in force, the amount of the carrier's coverage, and further
providing that the insurance will not be cancelled or changed until the
expiration of at least thirty days after written notice of such
cancellation or change has been provided to the other Party. All copies of
policies and Certificates of Insurance and endorsements shall be in form
and content reasonably acceptable to the other Party. Each certificate of
insurance shall include, as a minimum, the following:
i. name of insurance company, policy and expiration date;
ii. the coverages required, whether claims made or occurrence, and the
limits on each, including the amount of deductibles over self-insured
retentions;
iii. a statement that the other Party "shall receive thirty days prior
notice of cancellation or modification" of any of the policies which
may affect the other Party's interest; or
iv. a statement for the Commercial General Liability and Automobile
Liability coverages that the other Party has been named as an insured
on all policies;
v. a statement that the insurer "waives any and all rights of
subrogation" against the other Party; and
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vi. a statement for the Commercial General Liability and Automobile
Liability coverages that such coverage is primary insurance and any
other insurance carried by or self-insurance program maintained" by
the other Party "shall be considered as excess insurance" on behalf of
such other Party only.
c. Claims Made Coverage. With respect to any insurance coverage allowed to be
written on a claims made basis, the Party must provide the other Party with
satisfactory evidence that such coverage will remain in effect for at least
two years after completion of site work for a particular Project.
8. Subcontractors.
Except as specifically permitted hereunder, neither Party shall employ or
use any subcontractor without the prior knowledge of the other Party and
although any subcontractor shall be bound by any applicable terms of this
Agreement, this shall not create privity of contract between the other Party and
any such subcontractor. Except as specifically permitted hereunder, if either
Party proposes to subcontract any portion of its services hereunder, it shall
submit the name of such proposed subcontractor, with the proposed scope of the
services to be undertaken by such subcontractor and such information about the
subcontractor as the other Party may reasonably request. If the other Party
provides reasonable objections to the use of such subcontractor, the Party shall
not be permitted to use such subcontractor.
9. Forum.
This Agreement and any claim, dispute or other matter in question between
the Parties, governed by the laws of the Commonwealth of Pennsylvania without
reference to its choice of law rules. Any such dispute shall be decided in any
Pennsylvania court having appropriate jurisdiction.
10. Permits and Approvals.
Each Party shall be responsible for obtaining at its expense from the
appropriate governmental authorities or other entities having jurisdiction, all
required permits and approvals necessary for the performance of such Party's
work or services.
11. Meetings.
The Parties intend to meet at least monthly at a mutually agreed upon time
and location to discuss the generation of sales leads, the development of
Project proposals, the evaluation of proposed Projects, the execution of
Customer Contracts, the implementation of Customer Contracts, and other issues
between the Parties. Each Party shall designate a primary representative with
the appropriate authority to represent it at such meetings, as well as any other
personnel it deems appropriate.
12. Notices.
Unless otherwise specified, any notice, request, demand, statement or other
communication provided for in this Agreement or any notice which a Party may
desire to give to the other, shall be effective upon receipt and shall be in
writing and personally delivered or mailed, first class mail, postage prepaid,
or sent by telefax (followed with a confirmation by mail unless the receiving
Party acknowledges the receipt by a return fax) at the following address or such
other address as may be later designated by the Party:
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a. Notices to National Energy Service Corporation:
National Energy Service Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: 0-000-000-0000
Telefax: (000) 000-0000
b. Notices to PP&L Spectrum, Inc.:
PP&L Spectrum, Inc.
0 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
13. Indemnification.
Each Party hereby agrees to indemnify and hold harmless the other Party
from and against any and all claims, demands, and actions, and any liabilities,
damages or expenses resulting therefrom, including court costs and reasonable
attorneys fees arising out of or relating to the work and services performed by
the indemnifying Party. Nothing in this section is intended to relieve either
Party from any funding, payment or reimbursement obligation set forth in this
Agreement. The obligations of this section shall survive the termination of this
Agreement.
14. Precedence of Documents.
This Agreement and each Loan Agreement and Customer Contract are intended
to be complementary and consistent, unless otherwise specifically noted.
However, in the event of any ambiguity, inconsistency or conflict between this
Agreement, any Customer Contract, and any Loan Agreement the provisions of the
Customer Contract shall have precedence as to that particular Project and shall
govern the Parties' performance of that Project, but shall have no effect on any
other Project. No changes or modifications shall be made to the terms and
conditions of this Agreement itself unless reduced to a writing which clearly
states that it is an amendment or change to this Agreement and is properly
executed by the Parties.
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15. Relationship of Parties.
This Agreement grants neither Party the right to bind the other Party to
any commitment, representation, instrument or agreement with respect to any
person or entity, including any customer or potential customer. The Parties do
not intend, nor shall this Agreement be deemed to create any partnership,
agency, joint venture, or trust, or to authorize or cause any Party to be an
agent, servant or employee to the other Party. As between the Parties, each
Party (and its directors, officers, employees, agents and servants) shall be an
independent contractor of the other subject only to the contractual rights and
responsibilities established between them by this Agreement and any Customer
Contracts. Neither Party shall take any action that would result in the
characterization of the other Party or its directors, officers, employees,
agents or servants as other than such an independent contractor.
16. Governing Law.
This Agreement shall be governed by the laws of the State of Pennsylvania,
without giving effect to rules regarding conflicts of laws. The obligations of
each Party are subject to all valid laws, rules, regulations and orders of
governmental and regulatory authorities having jurisdiction thereof.
17. Assignment.
The rights and responsibilities of either Party under this Agreement may
not be transferred, subcontracted or assigned, in whole or in part, except as
specifically provided in this Agreement or with the prior written consent of the
other Party, which consent shall not be unreasonably withheld. Notwithstanding
the foregoing, Spectrum shall have the right, upon notice to but without the
consent of NESC, to assign this Agreement to any of its subsidiaries or
affiliates.
18. Authorship.
In the event that any dispute rises regarding this Agreement or as
interpretation, each of the Parties specifically agrees that it shall be
considered as a joint author of this Agreement and no provision shall be
interpreted against a Party on the basis of authorship.
19. Headings.
The Headings contained in this Agreement are merely for convenience of
reference only and shall not affect the meaning or interpretation of any
provision.
20. Counterparts.
This Agreement may be executed in multiple counterparts, each of which
shall have the same effect, and be deemed as an original executed document.
21. Confidentiality.
In order to effectively carry-out this Agreement, it may be necessary for
either of the Parties to furnish the other Party with potentially sensitive
information concerning itself or a parent or affiliate (such information and
materials, the information contained therein, and any and all information
developed therefrom by or for the other Party or any of its representatives,
whether written or verbal are collectively referred to as the "Confidential
Materials"). The Parties acknowledge that the Confidential Materials are
confidential and proprietary in nature and as a condition of being furnished
with such information and materials, agree to preserve their confidentiality as
follows:
a. The Confidential Materials will be used solely to carryout this
Agreement and will not
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be used in any way for private or commercial purposes outside this
Agreement or otherwise in a manner detrimental to the other Party.
b. The Confidential Materials will not be directly or indirectly
disclosed to, or discussed with, anyone other than those directors,
officers, employees or agents (including legal counsel), collectively
referred to as "Representatives", whose knowledge is necessary to
enable the receiving Party to perform the Agreement. The receiving
Party will first obtain the specific approval of the disclosing Party
before releasing any Confidential Materials to anyone other than such
a Representative.
c. Prior to disclosing any Confidential Materials to any Representative,
the receiving Party will first obtain the Representative's agreement
to maintain and preserve the confidentially and to comply with the
terms of this Confidentiality Agreement and, in the event of a breach
of Agreement by any of its Representatives, the receiving Party agrees
to be bound thereby and responsible therefor.
d. Prior to any disclosure required by this law, or permitted pursuant to
sub- paragraph b., the receiving Party shall notify the disclosing
Party of the proposed disclosure in sufficient time to permit it to
obtain a protective order or other satisfactory assurance of
confidential treatment.
e. Immediately upon the request of the disclosing Party, the receiving
Party shall immediately return to the disclosing Party all
Confidential Materials. In addition, the receiving Party shall destroy
all notes, reports and other materials prepared by or for the
receiving Party or any of its Representatives obtained pursuant to
Agreement, whether in the receiving Party's possession or in the
possession of any of its Representatives.
f. The receiving Party acknowledges and agrees that the disclosing Party,
as well as any parent and affiliates, may be harmed irreparably by
violation of this Agreement and that the use of the Confidential
Materials for business purposes by anyone other than the disclosing
Party, could allow the receiving Party or anyone it has provided with
the Confidential Materials to compete unfairly.
g. The term "Confidential Materials" shall not include any information
which is generally available to the public or which becomes available
to the receiving Party on a non-confidential basis from a source other
than the disclosing Party or its Representatives.
22. Publicity.
Except as otherwise provided in this section, the content of any press
release, public announcement, advertising or other publicity regarding this
Agreement, the work and services being performed pursuant to this Agreement and
the contractual relationship between the Parties shall require written approval
of the other Party, which approval shall not be unreasonably withheld. However,
this section shall not prevent a Party from issuing any such press releases,
public announcements, advertising or publicity if the name or other
identification of the other Party is withheld. In addition, this section shall
not prevent a Party from issuing any releases or announcements to the extent
required by law.
23. Termination for Default.
Either Party may terminate the Agreement by providing the other Party with
a written notice of termination for default if:
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a. the other Party becomes insolvent or makes a general assignment for
the benefit of creditors; or
b. a petition under the United States Bankruptcy Code is filed by or
against the other Party; or
c. material and adverse developments affecting such other Party's
business come to the attention of the non-defaulting Party, including
any condition which would be violation of any law or governmental
regulation or which could result in the non-defaulting Party itself
being in violation of any law or governmental regulation, and it seeks
but fails to receive from the other Party reasonable assurances as to
its ability and intention to perform and complete its obligations
under the Agreement; or
d. the other Party becomes involved in legal proceedings that in the
reasonable judgment of the non-defaulting Party would interfere or
would in the future interfere with the performance of this Agreement;
or
e. the other Party fails to perform a substantial obligation under this
Agreement, repeatedly fails to diligently perform its obligations
under this Agreement, or otherwise substantively breaches this
Agreement. Any failure by the non-defaulting Party to insist upon
strict observance or performance by either Party of the provisions of
this Agreement shall not be deemed a waiver or a "course of dealing."
24. Invalid Provisions.
If any provision of this Agreement is held to be illegal or invalid, the
validity of such provision shall not affect any of the remaining provisions and
this Agreement shall be construed and enforced as if such illegal or invalid
provision had not been contained herein and the Agreement shall be then
interpreted as reasonably required to fulfill the mutual intent and purpose of
the Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized representatives, as of the date and year first above
written.
NATIONAL ENERGY SERVICE CORPORATION
By: /s/ Xxxx X. Xxxxxx, President
------------------------------------------
Name: XXXX X. XXXXXX
Title: President
PP&L SPECTRUM, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice-President
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