Exhibit 10.16
AGREEMENT FOR PUBLISHING SERVICES
This Agreement for Publishing Services ("Agreement") is entered into as of April
27, 2000 by and between CENDON, LLC ("Publisher"), a Kansas limited liability
company, and X.X. XXXXXXXXX INC. ("RHD" and, together with Publisher,
collectively, the "Parties" and individually, a "Party"), a Delaware corporation
with principal offices at Xxx Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000.
WHEREAS, the Parties desire to enter into this Agreement pursuant to which RHD
will provide certain publishing services to Publisher from and after July 1,
2000 until December 31, 2003;
NOW, THEREFORE, in consideration for the mutual covenants and premises contained
herein, the Parties agree as follows:
1. TERM
This Agreement shall become effective with respect to all directories identified
on Schedule 1 that publish on or after July 1, 2000 and shall remain in full
force and effect with respect to such directories that publish on or before
December 31, 2003 ("Termination Date"), subject to earlier termination in
accordance with Section 20 below.
2. SCOPE OF WORK
The Parties agree that this Agreement applies to all print directories (whether
classified or white pages or co-bound) published during the term of this
Agreement that are identified on Schedule 1 and any other print directories
published during the term of this Agreement by Publisher in the locations
specified in Schedule 1 (the "Territory") that are identified by mutual
agreement of the parties by updates to Schedule 1. Attachment 1 shall be updated
quarterly to reflect additional directories and locations covered by this
Agreement and directories that will no longer be published. Sections 4 through
13 below describe the publishing services to be provided by RHD with respect to
classified directories (or such portions of co-bound directories) and Section 14
describes the publishing services to be provided by RHD with respect to white
pages directories (or such portions of co-bound directories). RHD shall provide
services hereunder in accordance with the performance standards established
annually as part of the KPI (key performance indicators) process. The Parties
further agree that the basis for this Agreement is the scope, specifications and
characteristics of the directories as they were published during 1999. If
Publisher desires to change the number of directories, their scope or features
and characteristics, such change will be communicated in accordance with the
Work Request Process described in, and the responsibility for the payment of any
additional costs associated with such change will be governed by, Section 18 of
this Agreement.
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Confidential treatment has been requested for the redacted portions of this
Exhibit, and such portions have been omitted and filed separately with the
Securities and Exchange Commission.
3. RELATIONSHIP OF PARTIES
The Parties acknowledge that, as of the date of this Agreement,
Publisher does not provide its own sales, certain sales support,
customer service or related functions in the Territory, but rather has
delegated such functions to RHD as Sales agent under a separate
agreement. At some point during the term hereof, Publisher may perform
certain of these functions itself or through an affiliate or appoint
another Sales agent. Accordingly, any rights or obligations allocated
to Publisher hereunder shall represent only Publisher's rights and
obligations (as may be delegated by Publisher in accordance with
Section 23 hereof) and, notwithstanding RHD's role as Sales agent under
such separate agreement with Publisher, in no way shall any
responsibility for any such rights or obligations be attributable or
allocable to RHD under this Agreement. Consequently, when appropriate
in the context in which it is used herein, "Publisher" shall refer to
Publisher's Sales agent or its own Sales function, as the case may be,
all in accordance with existing processes and procedures.
4. SERVICE ORDER PROCESSING
a. Provision of Service Orders by Publisher.
i. Publisher will provide to RHD service order data
containing business customers' listing information
daily via electronic transmission for application to
the publishing database according to a mutually
agreed upon schedule and format.
ii. Should service order data provided by Publisher
require modifications to the service order interface,
and, as a result, RHD is required to handle service
orders outside of the existing process, Publisher
shall reimburse RHD's additional costs, in accordance
with the Work Request Process.
b. Service Order Data Processing to be Performed by RHD. RHD will
perform the following activities with respect to service orders:
i. Update the publishing database and provide Publisher
with electronic memos whenever advertising is
affected.
ii. Where necessary, contact the issuing telephone
company to identify and resolve discrepancies.
iii. Provide Publisher with sales leads based upon service
order processing information.
iv. Perform quality checks on completed service orders
using appropriate statistical sampling and process
control techniques.
5. ASSIGNMENT SUPPORT
RHD will provide assistance and support to the appropriate Sales offices of
Publisher in connection with assignment matters so that contracts may be
properly produced and printed. RHD will maintain an adequate supply of sales
contract forms.
6. CONTRACT PROCESSING
a. Local Advertising Contracts. RHD will perform the following
services with respect to contract processing for local
advertising contracts:
i. Review contracts to ensure that appropriate
information is present for processing.
ii. Query the Publisher and Publisher's sales agent to
identify and resolve discrepancies.
iii. Update publishing database.
iv. Generate advertiser acknowledgment letter file and
provide to Publisher.
v. Perform quality checks on completed contracts using
appropriate statistical sampling and process control
techniques.
vi. Provide Publisher with reasonable access to all local
account information in a manner and within time
frames mutually agreed by the Parties.
b. National Advertising Contracts. RHD will perform the following
services with respect to contract processing for national
advertising contracts:
i. Receive national advertising orders and
correspondence for Publisher directories through the
Yellow Pages Publishers Association's ("YPPA") Value
Added Network ("VAN").
ii. Query the Certified Marketing Representatives
("CMRs") to identify and resolve discrepancies.
iii. Check copy for compliance with directory standards.
iv. Update national and publishing databases.
v. Generate YPPA VAN based return receipts.
vi. Provide Publisher with reasonable access to all
national account information in a manner and within
time frames mutually agreed by the Parties.
vii. Perform quality checks on completed national
contracts using appropriate statistical sampling and
process control techniques.
c. Reciprocal Advertiser Contracts. In the event that Publisher
enters into reciprocal agreements, the Parties will mutually agree upon
and enter into appropriate service and pricing agreements to support
such additional reciprocal agreements, in accordance with the Work
Request Process.
7. COPY PROCESSING, COMPOSITION AND PROOFS
a. Copy Supplied by Publisher. Publisher shall forward
advertising copy for all in-column and display ads to RHD. RHD shall
perform technical specification reviews on such copy according to
Publisher's standards.
b. RHD's Copy Processing Obligations. Upon receipt of advertising
copy from Publisher, RHD will (i) review copy sheets for compliance
with ad specifications, (ii) contact Publisher (or CMRs in the case of
national advertising) to identify and resolve discrepancies, and (iii)
prioritize and distribute copy sheets to ad composers.
c. RHD's Composition and Proof Obligations. Upon receipt of
advertising copy from Publisher and following its performance of its
copy processing obligations, RHD will compose ads electronically and
review and perform quality checks to ensure accuracy. RHD will compose
the following types of advertisements: (i) In-column; (ii) traditional
display (with artwork provided by advertiser); (iii) high impact; (iv)
process color; and (v) similar types of advertisements. Finished ads
will be stored digitally (i.e., postscript) in the ad graphic database.
For all display ads and up to *** of in-column ads manufactured from
copy received prior to the mutually agreed upon show proof close date,
two (2) proofs will be produced by RHD and mailed to Publisher and the
advertiser. RHD will also process proof revisions received from
Publisher and advertisers on or before the Publisher's scheduled
deadline for such revisions. Publisher will establish show-proof and
revision deadlines consistent with industry custom and practice.
d. Reciprocal Sales. In the event that Publisher enters into
reciprocal agreements, the Parties will mutually agree upon and enter
into appropriate service and pricing agreements to support such
additional reciprocal agreements, in accordance with the Work Request
Process.
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*** Confidential treatment has been requested for the redacted portions of this
Exhibit, and such portions have been omitted and filed separately with the
Securities and Exchange Commission.
8. PAGE PRODUCTION
RHD will review and edit all advertising and free listings in book form
subsequent to the close of a directory's sales campaign, in close coordination
with Publisher. RHD will sequence all display ads and validate ads against the
publishing database. RHD will produce the directory's pages in conformance with
specifications provided by Publisher. Upon request of the Publisher, RHD will
provide Publisher on-line batch pages prior to extract and will provide
Publisher's printer with digital files (or other appropriate medium) for
printing. Any changes to these pages will be limited to error corrections.
9. MAINTENANCE OF ELECTRONIC PAGE FILES
RHD will maintain electronic page files for two years from the date of
publication of such directory and, upon written request, provide Publisher with
access to such electronic files.
10. REVENUE ACCOUNTING AND CUSTOMER BILLING
a. Local and Foreign Billing Extracts. RHD will extract billing
information for local and foreign ads from its database and transmit such
information to the Publisher or its designated billing vendor via an electronic
file transfer. Directory billing files that are not successfully accepted/loaded
by the Publisher or its vendor will be investigated by RHD and resubmitted for
billing within thirty (30) calendar days.
b. National Billing and Customer Service. RHD will provide
national billing services to Publisher in accordance with Publisher
specifications. National invoices will be bulk shipped to Publisher who, in
turn, will forward the invoices to CMRs. RHD will also provide billing allowance
processing (e.g., for customer service and claims) for Publisher's national
accounts.
c. Revenue Accounting/Financial Reports. RHD will provide
financial and statistical reports to Publisher which will identify total amounts
and records sent for billing and all increases/decreases to billing amounts,
including, but not limited to claims, billing adjustments and accelerated
billing due to disconnects and/or delinquent accounts. Financial reports will be
provided monthly to Publisher in accordance with mutually acceptable schedules.
RHD shall forward to Publisher at reasonable intervals all claims, allowance,
advance payment, transfers to CLEC or residential accounts and other
miscellaneous billing changes.
d. Changes. Any changes or additions contemplated by Publisher to
the services provided in accordance with this Section and any additional costs
incurred by RHD will be handled in accordance with the Work Request Process.
11. DATA MAINTENANCE
RHD will coordinate with the appropriate customer service department (Publisher
or agent) and perform routine database corrections resulting from error reports
generated in the closing and billing processes.
12. FRONT OF BOOK MANAGEMENT
For directories with respect to which the bulk of publishing activities occur
during 2000 ending with the 2001 Yanceyville, NC directory, RHD will prepare and
coordinate the following portion of each book using existing procedures or such
other procedures as may be mutually agreed under the Work Request Process:
a. Covers
b. Masthead (revisions and updates to be provided by Publisher)
c. Tabs
d. Maps
e. Filler (load into database; filler provided by Publisher)
f. Telephone company information pages
g. Local community information pages
h. Government information pages
i. Coupons
For directories beginning with the production of the 0000 Xxxxxxx, XX directory,
RHD will prepare and coordinate the following portion of each book using
existing procedures or such other procedures as may be mutually agreed under the
Work Request Process:
a. Masthead (revisions and updates to be provided by Publisher)
b. Filler (load into database: filler provided by Publisher)
Other portions of each book may be prepared and coordinated by RHD based upon
mutual agreement.
13. [RESERVED]
14. WHITE PAGES
RHD will perform the following services for Publisher with respect to White
Pages directories (or such portions of co-bound directories):
a. Masthead. Publisher shall provide RHD with any revisions or
updates to the White Pages masthead by the service order close
date.
b. Listings. RHD will obtain White Pages listings from local
telephone companies in camera-ready or electronic format. In
addition, RHD will request listings from Publisher's listing
database, which shall include listings for local CLECs, if
applicable. RHD will provide all such listings (in either
format) to RHD's White Pages vendor for processing.
c. Page Proofs. RHD's White Pages vendor will provide page proofs
to Publisher, the CLECs and RHD as close as possible to the
service order close date. Publisher and the CLECs shall
provide any revisions or updates to the page proofs to RHD per
an agreed upon schedule prior to delivery to the printer. RHD
will forward all changes to its White Pages vendor and proof
all such changes to ensure the changes are made accurately.
RHD will update the publishing database for any such changes
to ensure accurate listings.
d. Advertising. RHD will provide its White pages vendor with all
White Pages advertising and create an extract report against
the White Pages listings database to identify discrepancies
between the listings and any advertising. RHD will investigate
and resolve all such identified discrepancies and provide its
White Pages vendor with any required revisions or updates.
e. Customer Book Pages. As close as possible to the printing
date, RHD's White Pages vendor creates a final set of page
proofs, the Customer Book Pages, and forwards it to Publisher
and RHD. Modifications will be made only in extreme
circumstances at this stage due to the likelihood of delaying
the printing schedule. RHD will review the Customer Book Pages
and approve the pages to be sent to the printer of the
directory.
f. Work Request Process. In the event that Publisher would like
to change any of the foregoing services or procedures in any
way, such change shall be managed in accordance with the Work
Request Process described in Section 18.
15. LATE ACTIVITY
The schedules negotiated between the Parties will include optimum selling time,
whereby the time period between the end of the sales process and the publication
of the directory is minimized. As a result, the ability of RHD to accept late
activity is significantly constrained. If late activity is requested by
Publisher, then Publisher shall reimburse RHD its additional costs reasonably
incurred because of late activity, in accordance with the Work Request Process.
16. SCHEDULING AND FORECASTING
a. Initial Scheduling. Prior to June 1 of each year beginning in
2000 with respect to 2001, Publisher and RHD will meet and agree upon
any changes to dates in the directory schedule for publications
published commencing January 1 of the following year.
Thereafter, the Parties shall meet to review and discuss any further
changes suggested in the publishing schedules as needed. Publisher
shall reimburse RHD its reasonable costs incurred as a result of
scheduling changes, in accordance with the Work Request Process.
b. Changes in Products and Scheduling. Publisher shall promptly
inform RHD of changes in sales canvass dates (especially extensions),
directories published, their scope, units of advertising offered,
specifications, and other such changes in products and scheduling.
Publisher shall reimburse RHD for its reasonable costs incurred in
connection with such changes in products and scheduling, in accordance
with the Work Request Process.
c. Publisher Requirements Forecast. Each Party agrees to provide
the other Party with all information in its possession or under its
control reasonably requested or required for publishing directories in
a timely manner. Further, Publisher will provide RHD with estimates of
total copy and contract volumes on a weekly basis for the coming year
by June 1 of the each preceding year (December 31, 1999 for 2000) for
the following year's directories, or by another mutually agreed upon
date.
17. PRICING
a. Annual Fee. The fee paid by Publisher to RHD each year during
the first three years of this Agreement shall consist of a
lump sum base price ("Base Price"), which for July through
December of 2000 ("Second Half Base Price") shall be
*** (*** for classified directory publishing services
plus *** for White Pages directory publishing services), which
Base Price in each year shall be adjusted for (i) budgeted
volumes ("Budgeted Volumes") expected to be processed during
the year versus base line volumes included in the Base Price
and (ii) the CPI Factor described in paragraph b. below (as so
adjusted, the "Annual Fee"). For each such year (or portion of
the year for 2000), following the end of the year, there shall
be computed the aggregate price of the actual volumes
experienced for each metric (contracts, copysheets, etc.),
plus the appropriate variable price adjustment per metric
determined using the price band methodology as set forth on
Schedule 17(a), times 1 plus the CPI Factor described in
paragraph b. below (collectively, the "Actual Price"). Any
difference between the Actual Price and the Annual Fee shall
be added to, or subtracted from (as the case may be), the
Annual Fee for that year and billed or credited to Publisher
as part of the annual "true up" as set forth in Section 19.
Base line volumes, Base Price, Budgeted Volumes and variable
price bands per metric for 2000, as well as definitions of
price list metrics and examples of these computations, are
detailed in Schedule 17(a). Based upon Publisher's estimates
provided pursuant to Section 16 of this Agreement, by January
1 of each subsequent year during the term of this Agreement,
RHD will provide to Publisher an updated Schedule 17(a) which
will set forth updated Base Price and Budgeted Volumes and a
projection of an estimated Annual Fee for the ensuing year
(the estimated Annual Fee for 2000 is set forth in Schedule
17(a)).
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***Confidential treatment has been requested for the redacted portions of this
Exhibit, and such portions have been omitted and filed separately with the
Securities and Exchange Commission.
The Base Price for 2001 shall be *** plus the CPI Factor
described in paragraph b. below. The Base Price for 2002 shall
be computed as (i) the Base Price for 2001 times (ii) 1 plus
the CPI Factor described in paragraph b. below. The Base Price
for 2003 shall be computed as (i) the Base Price for 2002
times (ii) 1 plus the CPI factor described in paragraph b.
below.
b. CPI Factor. The Base Price and the Annual Fee shall be
adjusted as provided in paragraph a. above using the following
CPI Factors for each year during the first three years of this
Agreement:
Base Price Total Annual Fee
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2000: as specified above 2000: ***
2001: *** 2001: ***
2002: *** 2002: ***
2003: *** 2003: ***
The CPI is the Consumer Price Index for All Urban Consumers in
the United States as published by the United States Bureau of
Labor Statistics ("BLS"), but for purposes of the above
calculation the CPI shall not exceed *** in any year (such
that the CPI adjustment factor for 2000 under Section 17 shall
be ***). If the CPI shall be discontinued to be published,
the Parties agree to use a comparable index.
c. Changes. The Annual Fee set forth in this Section 17 and on
Schedule 17(a) does not include any additional costs in
connection with changes implemented in connection with the
Work Request Process in accordance with Section 18. Such
additional costs shall be invoiced separately as described in
Section 19.
d. Claims Adjustments. As part of the year-end "true up" process,
the Actual Price payable under this Section 17 by Publisher
with respect to all directories reflected from time to time on
Schedule 1 will be reduced by *** of the aggregate annual
publishing claims for local advertising attributable to RHD
Production Errors (as defined below) with respect to such
directories; subject to the following limitations and
qualifications:
- Excludes publishing claims related to 10-digit
dialing information
- Publishing claims resulting from new products or
material product changes would need to be discussed
and mutually agreed upon before being included in
this adjustment process
- Adjustment process will be renegotiated if Customer
Service responsibilities are transferred away from
RHD as Sales agent
- Maximum adjustment is *** reduction of Actual
Price, excluding portion of Actual Price attributable
to White Pages
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*** Confidential treatment has been requested for the redacted portions of this
Exhibit, and such portions have been omitted and filed separately with the
Securities and Exchange Commission.
As used herein, RHD Production Errors means all errors
committed by RHD which originated in the publishing process,
from order entry (only if performed by RHD at the publishing
facility) through final pagination. Graphics errors committed
by RHD which originated at the publishing facility shall also
be treated as RHD Production Errors. These errors would
include:
- Order entry, keying errors from the contract or
service order (but excluding sales errors reflected
on the order or contract so long as keyed correctly
by RHD)
- Graphics errors (see above) in color, art, copy, etc.
- Pagination errors
- Text or copy errors that originate as part of the
publishing process
- Listings out of alphabetical order
Publisher, as part of its customer service responsibilities,
shall make the initial determination with respect to
classifying errors between sales errors and RHD Production
Errors. RHD shall have the right to dispute any classification
of an error as an RHD Production Error by written notice to
Publisher. Upon any such dispute, the Parties shall endeavor
to resolve such dispute. If the dispute cannot be resolved
within thirty (30) days, then either Party shall be free to
submit such dispute to expedited arbitration under Section
25(a).
18. WORK REQUEST PROCESS
Publisher may request to modify the scope, timing or other characteristic of any
obligation of RHD hereunder, to add obligations of RHD hereunder or to modify
any system, process or procedure used by RHD in performing its obligations
hereunder by submitting a written Work Request Form (in a format reasonably
acceptable to RHD) to RHD detailing the modification sought by Publisher. RHD
shall have *** days to respond in writing to Publisher ("Response") in the case
of ordinary course Work Request Forms and such longer period as reasonably
necessary to respond to more complex Work Request Forms. If RHD fails to respond
as required by the foregoing sentence, the requested modification will be made
without any increase in production time or costs to Publisher. In any response
submitted by RHD, it shall inform Publisher of the additional time, costs, and
other factors that reasonably are expected to result from the requested
modification. In determining such additional time, costs, and other factors, RHD
shall consider and include any offsetting efficiencies and cost savings that
reasonably are expected to result from all modifications contemporaneously
requested by Publisher. After Publisher receives the Response, Publisher shall
then have *** days (or such longer time specified in any Response) to advise RHD
in writing whether Publisher wishes RHD to implement such modification and that
Publisher agrees to incur (and reimburse as the case may be) the additional
time, costs and other factors identified by RHD in the Response. If Publisher
fails to so inform RHD within such time period, then RHD shall not be required
to implement the requested modification. The Parties may modify this Work
Request Process from time to time as the Parties mutually deem appropriate.
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*** Confidential treatment has been requested for the redacted portions of this
Exhibit, and such portions have been omitted and filed separately with the
Securities and Exchange Commission.
19. INVOICES AND PAYMENT
Based upon Publisher's estimates provided pursuant to Section 16 of this
Agreement, by January 1 of each year during the term of this Agreement, RHD will
provide to Publisher an updated Schedule 17(a) which will set forth updated Base
Price and Budgeted Volumes (which shall be tied to the units of measure
specified in Schedule 17(a)) and a projection of an estimated Annual Fee payable
hereunder for the ensuing year (the estimated Annual Fee for July through
December 2000 is set forth in Schedule 17(a)). On the fifteenth of each month
during July through December of 2000, Publisher will pay to RHD one-sixth
(1/6th) of the estimated Annual Fee with respect to that period. On the
fifteenth of each month during 2001, 2002 and 2003, Publisher will pay to RHD
one-twelfth (1/12th) of the estimated Annual Fee with respect to that year. If
such amount is not paid by the fifteenth of the month, then Publisher shall pay
RHD interest on the overdue amount at a rate equal to 1.0% per month for the
period such payment remains overdue. By March 1 of the following year, RHD will
issue a "true-up" report identifying the Actual Price incurred for that year (or
portion thereof in the case of 2000) computed in accordance with Section 17 and
submit a final invoice for reimbursement by (or credit to) Publisher which will
reflect any differences between the Actual Price and the estimated Annual Fee
identified by the "true up" report and any other items payable by (or subject to
credit to) Publisher.
Invoices for costs that are not included in the estimated Annual Fee to which
RHD is entitled to reimbursement or for which Publisher shall pay the vendor
directly (for example, invoices for printing costs, paper acquisition costs,
Spanish translations, new movers guides, additional costs under the Work Request
Process, etc.) shall be submitted to Publisher by either mail, facsimile, or
electronic transfer, as shall be mutually agreed by the Parties. Publisher shall
have the right to audit the "true-up" reports submitted to RHD to determine the
accuracy of the actual volumes (as compared to Budgeted Volumes), any expenses
not included in the Base Price for that particular calendar year, and RHD's
true-up calculations. RHD shall make available to Publisher or its designated
auditor all of RHD's books and records (e.g., customer contracts and management
reports generated by RHD's systems) that substantiate such volumes, expenses,
and calculations. Publisher shall complete its audit of RHD's "true-up"
calculations within thirty (30) days of receipt of those calculations, unless
RHD fails to make available to Publisher reasonably requested information. If,
after conducting the audit, Publisher disagrees with any portion of the true-up
invoice, Publisher immediately shall notify RHD of the disputed portion and the
parties shall endeavor to resolve the dispute. Publisher shall be required to
pay, or RHD shall be required to refund, the undisputed portion of the true-up
invoice. If the dispute cannot be resolved within fifteen (15) days of
Publisher's notification to RHD of the dispute, then each party shall be free to
submit the dispute for resolution by expedited arbitration in accordance with
the provisions of Section 25(a) of this Agreement. This "true-up" process under
this Section 19 shall survive termination of this Agreement.
20. TERMINATION
a. Extension. If Publisher wishes to extend the term of this
Agreement, it shall notify RHD of the proposed extension on or
before June 30, 2003. The parties thereafter shall use
commercially reasonable efforts to reach agreement on the
terms of the proposed extension. If Publisher does not provide
RHD with such notice or the parties are unable to reach
agreement on the proposed extension by July 31, 2003, the
parties shall negotiate diligently and to agree upon a
reasonable transition plan and schedule consistent with the
terms governing the "Transition Plan" under subsection 20.c.
below and providing for an orderly transition of the services
performed under this Agreement to Publisher or its designated
vendors.
b. Material Breach. Either Party may terminate this Agreement
before the Termination Date in the event of a material breach
by the other Party. In order to terminate for material breach,
the non-breaching Party must give the breaching Party written
notice specifying in reasonable detail the breach and
requesting that the breach be cured (the "Cure Notice"). If
the breaching Party fails to cure the specified breach within
sixty (60) (thirty (30) days in the case of a payment default)
days of receipt of the Cure Notice, the other Party shall have
the right to terminate this Agreement, effective upon thirty
(30) days prior written notice to the breaching Party (the
"Terminating Notice"); provided, however that if such breach
(other than a payment default) cannot reasonably be cured
within sixty (60) days of receipt of the Cure Notice, the same
shall not constitute a failure to cure hereunder if the
breaching Party commences to cure the breach, uses its best
efforts to effect a cure, and effects such cure within ninety
(90) days of receipt of the Cure Notice. Notwithstanding the
above, the Party against whom termination is sought shall have
the right to invoke expedited arbitration pursuant to Section
25 and to require that the arbitrator determine that a
material breach has, in fact, occurred and that the Party
against whom termination is sought has been unable to effect
or has failed to use its best efforts to effect an adequate
cure.
c. For Convenience. RHD may terminate this Agreement, without
cause, upon written notice to Publisher, such termination to
become effective as provided below. Upon delivery of such
termination notice, the parties hereby agree to negotiate
diligently and to agree upon a reasonable transition plan and
schedule ("Transition") to ensure the completion of all
publishing and billing services provided by RHD hereunder
associated with directories covered by this Agreement at the
time of the delivery of the termination notice. The parties
hereby agree that the effective date of termination of this
Agreement shall be upon completion of this Transition;
provided, however, that RHD shall not be required to perform
any obligations hereunder after the expiration of 14 months
following the date of the termination notice. During the
Transition, this Agreement shall remain in full force and
effect with respect to those directories for which RHD has not
yet completed the services covered by the Transition.
d. Turn Over. Upon termination of this Agreement, RHD will turn
over to Publisher all Work Product (as defined herein) and any
other printed or electronic material
reasonably requested by Publisher as required to transition
publishing services to another provider. This turn over will
be in a manner mutually satisfactory to the Parties and will
occur according to the transition plan agreed to by the
Parties. In connection with such turn-over, RHD will assign
any copyright or other rights in the turned over materials to
Publisher as appropriate and as agreed in the transition plan
and in accordance with Section 31. Unless RHD shall terminate
this Agreement under paragraph (c) above, RHD's reasonable
expenses in turnover as determined by mutual agreement of RHD
and Publisher will be born by Publisher, according to the
transition plan agreed to by the Parties.
21. WARRANTY
RHD warrants that (a) its services will conform to the specifications, drawings,
instructions, and standards mutually agreed to by the parties in accordance with
the key performance indicators established jointly by the Parties from
time-to-time, the present KPIs being identified in Schedule 21 attached hereto,
and (b) that RHD will perform the services required hereby in a workmanlike
manner consistent with industry standards.
RHD DISCLAIMS ANY OTHER WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
22. NEW DEVELOPMENTS
RHD agrees to use reasonable efforts to keep abreast of major developments in
the compilation, composition, graphic arts, and data processing industries
(e.g., new methods, processes, equipment, etc.) and to advise Publisher of any
which might affect the production of end products. RHD agrees to examine
reasonable Publisher ideas to increase efficiency and improve processes in
accordance with the Work Request Process.
23. ASSIGNMENT
a. Neither Party may assign this Agreement or any of its rights
hereunder nor delegate any of its obligations hereunder
(collectively, "assignment") without the prior written consent
of the other Party, which consent shall not unreasonably be
withheld or delayed. A condition to the effectiveness of any
such assignment shall be the prior delivery by the assignor to
the other Party of a written confirmation by the assignee of
its assumption of the assignor's obligations under the
Agreement. Notwithstanding the foregoing, either Party may
assign any or all of its rights and/or obligations under this
Agreement to an Affiliate (as defined
below) of that Party without the consent of the other Party.
In addition, as described in Section 3, Publisher's exercise
of certain of its rights and performance of certain its
obligations hereunder through a Sales or other agent in
accordance with existing processes and procedures shall not be
deemed an "assignment" under this Section 23(a) and shall not
require the prior consent of RHD; provided, however, that any
change from the existing processes and procedures would
require RHD's consent in accordance with the Work Request
Process.
b. Publisher agrees that it shall not withhold or delay its
consent to any proposed assignment by RHD of this Agreement if
(a) the assignee is not a Competitor (as defined below) of
Publisher, (b) in the event that the assignee provides print
directory publishing or related services to a Competitor of
Publisher, that the assignee agrees to (i) maintain the
acquired RHD business as a separate unit or line of business
or (ii) implement such other screening techniques (such as
"Chinese" walls) reasonably acceptable to Publisher to ensure
that all competitively sensitive information concerning
Publisher is kept confidential and not shared with others in
the assignee's organization who have responsibility for such
Competitor's business , and (c) in the event that Publisher
has reasonable grounds to question the assignee's ability to
perform its obligations under this Agreement, then Publisher
may require, as a condition to its consent to the proposed
assignment, that the assignee or X.X. Xxxxxxxxx Corporation
(or the then-existing parent Company of RHD) provide Publisher
with reasonable security or assurance with respect to such
assignee's performance obligations under the Agreement. In the
event of a proposed assignment by RHD to a Competitor,
Publisher may withhold its consent to such assignment and RHD
may either (i) choose not to proceed with such assignment or
(ii) give Publisher a "Sale Notice" (as defined below) and
treat such proposed assignment under the provisions of
paragraph (d) below.
c. In the event of a proposed assignment by Publisher, if RHD has
reasonable grounds to question the assignee's ability to
perform its obligations under this Agreement, then RHD may
require, as a condition to its consent to the proposed
assignment, that the assignee or Sprint Corporation (or the
then-existing ultimate parent Company of Publisher) provide
RHD with reasonable security or assurance with respect to such
assignee's performance obligations under this Agreement.
d. Notwithstanding the foregoing, any proposed assignment of this
Agreement by RHD in connection with the sale to a
non-affiliate of its entire (or substantially all assets
comprising its) print directory publishing business ("Sale")
will not require the prior written consent of Publisher. RHD
shall give written notice ("Sale Notice") to Publisher of such
Sale as soon as practicable, but in no event later than
promptly following consummation of such Sale. Within 30 days
following the date of the Sale Notice (but in no event prior
to consummation of the Sale), either RHD (on its own account
or on behalf of the purchaser) or Publisher may give written
notice of termination ("Sale Termination Notice") of this
Agreement to become
effective as set forth below. Upon delivery of a Sale
Termination Notice, the parties hereby agree to negotiate
diligently and to agree upon a reasonable transition plan and
schedule ("Sale Transition") to ensure the completion of all
publishing and billing services provided by RHD hereunder
associated with directories covered by this Agreement at the
time of the delivery of the Sale Notice. The parties hereby
agree that the effective date of termination of this Agreement
shall be upon completion of this Sale Transition; provided,
however, that RHD shall not be required to perform any
obligations hereunder after the expiration of 14 months
following the date of the Sale Termination Notice. During the
Transition, this Agreement shall remain in full force and
effect with respect to those directories for which RHD has not
yet completed the services covered by the Sale Transition. In
the event of delivery of a Sale Termination Notice,
notwithstanding the consummation of a Sale, this Agreement
shall not be assigned by RHD to the purchaser and RHD shall
remain responsible to Publisher for the performance of its
obligations during the Sale Transition; provided, however,
that Publisher hereby consents to the delegation by RHD to the
purchaser of any and all duties and obligations of RHD
hereunder and to the assignment by RHD to purchaser of any and
all rights to payment from Publisher hereunder.
e. As used in this Section 23, the following terms have the
following meanings:
(i) "Affiliate" means, in the case of (a) Publisher, any
legal entity in which Sprint Corporation, or its successor, or
a wholly-owned subsidiary thereof, owns more than 50% of the
common or voting stock of the entity; and (b) RHD, any legal
entity in which X.X. Xxxxxxxxx Corporation, or its successor,
or any wholly-owned subsidiary thereof, owns more than 50% of
the common or voting stock of the entity.
(ii) "Competitor" means any entity, other than RHD or its
Affiliates, substantially engaged in the publication of either
print yellow pages or other related directory services that
directly and substantially competes with Publisher. Without
limiting the generality of the foregoing, any person or entity
that directly or indirectly publishes a classified telephone
directory that is distributed within 10% or more of the
primary distribution area of any of the directories for which
RHD provides services hereunder shall be deemed a Competitor.
24. [RESERVED]
25. DISPUTE RESOLUTION
a. Expedited Arbitration. Any dispute arising under or related to
this Agreement that, (i) by the terms hereof, must be resolved
by arbitration, or (ii) the Parties, in each of their sole and
absolute discretion, elect to submit to arbitration, shall be
governed by the Commercial Arbitration Rules of the American
Arbitration Association (the "Arbitration Rules"). Any such
arbitration shall be conducted in
accordance with the expedited procedures set forth in
Paragraphs E-1 through E-10 of the Arbitration Rules. The
decision of, and any award made by, the arbitrator shall be
final and binding on the Parties and may be entered as a
judgment in any court having competent jurisdiction over the
Parties.
b. Litigation. For all other disputes arising under or related to
this Agreement, each Party shall have the right to bring an
action in any court having competent jurisdiction over the
Parties and the subject matter in dispute, subject to the
dispute resolution covenants set forth in this Section 25(b).
If one or more disputes subject to arbitration under Section
25(a) require the resolution of issues of fact or law common
with, or related to, issues raised in a dispute governed by
this Section 25(b), then all such disputes shall be resolved
in accordance with this Section 25(b), and the arbitration
requirements of Section 25(a) shall not apply to them. The
following dispute resolution covenants shall govern all
actions subject to this Section 25(b):
1. Governing Law. This agreement and the rights and
obligations of the Parties hereunder shall be
governed by the laws of the State of Kansas, without
regard to its conflict of laws principles.
2. Waiver of Jury Trial. Each Party waives its right to
a jury trial in any court action among the Parties
arising under or related to this Agreement, whether
made by claim, counter-claim, third party claim, or
otherwise. If for any reason this jury waiver is held
to be unenforceable, the Parties agree to binding
arbitration for any dispute arising under or related
to this Agreement, pursuant to the Arbitration Rules,
except that the expedited procedures referred to in
Section 25(a) shall not apply. The Parties' agreement
to arbitrate any dispute under this provision shall
extend to any claim by or against any third party
that could have been brought in a court action
between the Parties, whether as a claim,
counterclaim, or third-party claim, subject to the
agreement of such third Parties. The agreement of
each Party to waive its right to a jury trial will be
binding on its successors and assigns and will
survive the termination of this Agreement.
3. Attorney's Fees. The prevailing Party in any dispute
adjudicated by lawsuit or arbitration will be
entitled to reasonable attorney's fees and costs,
including reasonable expert fees and costs. This
provision will not apply if the prevailing Party
rejected a written settlement offer that exceeds the
prevailing Party's recovery.
26. INFORMATION ACCESS AND AUDIT RIGHTS
a. Access to Information. Subject to the confidentiality and
nondisclosure provisions contained in this Agreement, each
Party hereby agrees to provide to the other Party such
information within its possession or under its control related
to
the performance of this Agreement. Without limiting the
generality of the foregoing, such information shall include
all information relating to Work Product and any derivatives
thereto. Such information shall be provided promptly upon
request in the format as is reasonably requested.
Notwithstanding the foregoing, RHD shall not be required to
provide Publisher with access to (i) RHD's employment files,
(ii) RHD's data on its internal production costs, or (iii)
RHD's internal budgets and financial projections.
b. Audit Provisions. Each party (the "auditing party") shall have
the right, upon written notice, to audit all records and data
within the possession or under the control of the other party
related to the other party's performance under this Agreement.
Any such audit shall be conducted during normal business
hours, subject to the other party's reasonable security
measures, and at the auditing party's expense. The auditing
party may, at its expense, engage independent auditors to
audit and certify, such records and data, provided such
independent auditor shall be what is commonly known as a "Big
Five Accounting Firm" or its equivalent. Each party agrees to
pay the other party any amount determined by the audit to be
owed to the other party within forty-five (45) days following
notification of the auditor's determination, unless one or
both parties elect to dispute the independent's auditor's
determination, in which case the dispute shall be submitted to
arbitration for resolution in accordance with the expedited
arbitration procedures outlined in Section 25(a) of this
Agreement.
27. FORCE MAJEURE
a. Except as provided below, if any Party is prevented from
performing any of its obligations (other than payment
obligations) under this Agreement because of any act of God,
lockout, strike or other labor dispute, riot or civil
commotion, act of public enemy, law, order or act of
government, whether federal, state or local, or other similar
event beyond the Party's control (a "Force Majeure Event"),
then that Party will be excused from performing any of its
obligations which are so prevented. However, the Party so
excused is responsible for performing those obligations of
which it had been relieved due to the Force Majeure Event as
soon as the Force Majeure Event has ceased to prevent the
Party's performance. During the pendency of the Force Majeure
Event, the other party shall also be excused from performing
its obligations hereunder, including any payment obligations
that relate to the work not performed because of the Force
Majeure Event.
b. If a Force Majeure Event excuses RHD from performing its
duties under this Agreement, Publisher may procure substitute
performance for the duration of the Force Majeure Event;
however, as soon as commercially practicable upon RHD's
providing notice that the Force Majeure Event has ceased to
prevent its performance both parties shall be entitled and
obligated to resume performance of their respective
obligations under this Agreement.
28. INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
RHD agrees to defend, at RHD's expense, and hold Publisher (and its Indemnified
Persons (as defined below)) harmless from and against all suits against
Publisher for infringement of any patent, trademark, copyright, trade secret, or
any other proprietary right, by any third party relating to services provided by
RHD under this Agreement, except to the extent any claim of infringement arises
from RHD's adherence to copy, contracts, specifications, drawings or similar
materials submitted or approved by Publisher (or Publisher's agents), provided
RHD has properly performed technical specification reviews of such materials
according to Publisher's standards as set forth in Section 7 above. Publisher
agrees to defend, at Publisher's expense, and hold RHD (and its Indemnified
Persons) harmless from and against all suits against RHD for infringement of any
patent, trademark, copyright, trade secret, or any other proprietary right, by
any third party arising from Publisher's acts or omissions and/or from RHD's
adherence to copy, contracts, specifications, drawings or other materials
submitted or approved by Publisher (or its agents). Each Party agrees to give
the other prompt written notice of claims of infringement for which the other
may be responsible under this Agreement and full opportunity and authority to
assume the sole defense including appeals, and, upon such other's request, and
at its expense, to furnish reasonable information and assistance available to it
for such defense.
29. MUTUAL INDEMNIFICATION.
Each party agrees to indemnify and hold harmless the other party and the other
party's officers, agents, employees and Affiliates from and against any and all
Eligible Claims (as defined herein) and reasonable attorney's fees incurred in
the defense of Eligible Claims. Without limiting the generality of the
foregoing, each party agrees to indemnify and hold harmless the other party and
the other party's officers, agents, employees and Affiliates from and against
all Eligible Claims, arising from injury to their respective agents and
employees incurred while working on the premises of the other party, provided
such injury is not the result of the other party's negligence or deliberate
acts. Each party shall promptly notify the other of any claims made upon it for
which the other may be liable under this Section 29, and both parties shall
cooperate in the handling of any and all such Eligible Claims. As used herein,
"Eligible Claims" means any claims and causes of action of third parties (a)
arising from the other party's negligence, failure to perform in accordance with
the terms of this Agreement or any breach of any representation, warranty or
covenant made hereunder, that, when considered together with all other claims
and causes of action of third parties arising from, or relating to, the same
acts, facts, or circumstances, exceed $50,000 in claimed or incurred losses,
damages and costs, provided, however, that with respect to claims, actions,
losses, damages and costs that are required to be covered by insurance pursuant
to Section 36 hereof, the $50,000 limitation set forth above shall not apply, or
(b) that in whole or in part are predicated upon the gross negligence or willful
misconduct of a party, regardless of the amount of claimed or incurred losses,
damages, or costs.
30. LICENSES
Subject to Section 31 below, no licenses, express or implied, under any patents,
trademarks or copyright, are granted by either Party hereunder.
31. OWNERSHIP AND USE OF INFORMATION
RHD acknowledges and agrees that all of the Work Product (as defined below) is
provided under this Agreement to Publisher on a works made for hire basis. RHD
hereby assigns to Publisher all of its rights, title, and interest in and to the
Work Product, including any copyrights therein and the right to xxx and recover
for any infringement thereof. It is understood that RHD makes no representation
or warranty of any kind that the Work Product provided to Publisher is subject
to copyright. Some or all of the Work Product may be subject to copyright and to
the extent that such copyright exists and belongs to RHD then this provision
shall be applicable. RHD further agrees to take such actions and to execute such
instruments as may be reasonably requested by Publisher from time-to-time to
ensure that the ownership of the Work Product, including without limitation the
ownership of any copyrights that may exist therein, vests in Publisher.
As used herein, the term "Work Product" shall mean and include all: (i)
compilations of information, (ii) collective works (including without limitation
the directories), (iii) advertising copy, (iv) display advertising, (v)
classified headings, (vi) reports, (vii) surveys, (viii) studies (ix) service
order data, (x) local, national and publishing databases, (xi) lists of sales
leads, sales contracts forms and executed sales contracts, (xii) advertising
orders, advertiser acknowledgement letter files, and other advertising
correspondence files, (xiii) quality check, statistical sampling and process
control technique data, (xiv) electronic ads, including in-column, traditional
display, high impact, process color, and similar types of advertisements, (xv)
digital storage and ad graphics databases, (xvi) directory pages, on-line batch
pages and digital files of the same, (xvii) billing information for local,
national and foreign ads and vendors, electronic files of such billing
information and financial and statistical reports concerning such billing
information, (xviii) copies of and procedural information concerning book
covers, mastheads, tabs, maps, fillers, telephone company information pages,
local community information pages and government information pages, including
electronic materials, (xix) white pages listings from local telephone companies
in camera-ready and electronic format, page proofs and customer book pages, (xx)
information provided by Publisher to RHD that is owned exclusively by Publisher,
(xxi) any and all such work product developed or owned by the Partnership prior
to the date hereof and any derivative works thereof, and (xxii) modifications
made by Publisher or RHD to any of the foregoing and all other materials
developed by RHD on behalf of Publisher, as work performed directly for or
required in connection with the performance of its obligations under this
Agreement. Work Product shall not include that portion of materials prepared by
RHD solely in connection with its internal reporting on the management of its
affairs or that relates solely to other RHD businesses or customers but in no
event shall it refer to any software or related technology owned or licensed
from any third party by RHD used directly or indirectly by RHD in the
performance of its obligations under this Agreement. To the extent that such
materials are confidential and have been identified in writing as such by
Publisher, RHD shall keep such materials confidential in accordance with Section
32. All RHD specifications, drawings, sketches, models, samples, listings,
master information, and products or data, written,
oral or otherwise, including any software and software documentation furnished
by RHD to Publisher hereunder, or in contemplation hereof, shall be considered
by Publisher to be confidential and proprietary information of RHD, and
Publisher agrees to protect such information in accordance with Section 32.
32. CONFIDENTIALITY
The Parties agree to keep and cause their employees to keep the existence of
this Agreement and the nature of the Parties' obligations hereunder strictly
confidential and not to disclose any information with respect hereto to any
third party or entity, except as may be necessary and required in conducting the
business of either of the Parties or as required by law.
In connection with the work performed under this Agreement, each Party may
provide the other with certain confidential or proprietary information
("Confidential Information"), the disclosure of which would seriously and
irreparably harm the providing Party. Accordingly, each Party agrees:
a. To use Confidential Information only for the purpose of this
Agreement;
b. To treat Confidential Information with the same degree of care
as it gives its own confidential information;
c. To limit access to Confidential Information only to those
employees having a need to know under this Agreement; and
d. To return the other Party, or at the furnishing Party's
direction, destroy, the other Party's Confidential
Information, and all copies thereof, in its possession or
under its control upon termination of this Agreement or at
such earlier time as the Party furnishing the Confidential
Information may request, provided however that such
Confidential Information is no longer needed for the
fulfillment of contractual or legal obligations, in which case
the Confidential Information shall be held solely and
exclusively for such purposes (which shall be communicated in
writing to the Party that furnished the Confidential
Information) and then relinquished or destroyed as soon as
such identified purposes cease. In the event the destruction
of Confidential Information is made, the Party responsible for
the destruction will furnish to the other Party an affidavit
that the Confidential Information has been destroyed.
Each Party agrees that, in addition to its remedies available at law, the party
providing Confidential Information shall be entitled to seek injunctive relief
against the other party to prevent an actual or threatened disclosure of
Confidential Information in breach of its obligations under this Section 32. The
Parties hereby agree and acknowledge that all information provided by the other
Party or obtained with respect to the other Party in connection with its
performance of this Agreement shall be deemed Confidential Information, except
that the following information shall not be deemed either Publisher's or RHD's
Confidential Information: (a) information that can be shown to have been in the
public domain at the time of the disclosure, or (b) information in the
recipient's possession at the time of disclosure to the recipient (as shown in
the recipient's files
and records prior to the time of disclosure), or (c) information independently
developed by the recipient's employees or agents that had no access to the
Confidential Information received hereunder, or (d) information which, though
originally confidential information, subsequently becomes part of the public
knowledge or literature (though not as a result of any inappropriate action or
inaction on the part of the recipient, its employees or agents), or (e)
information which is specifically approved for release by written authorization
of an officer of the Party having a proprietary interest in the information, or
(f) information readily known or ascertainable by anyone engaged in the print
classified directory industry, or (g) information disclosed pursuant to an order
of a court having competent jurisdiction; however, recipient will use reasonable
efforts to assist the other Party in obtaining a protective order or other
appropriate relief or remedy.
33. TAX
Federal Manufacturer's and Retailer's Excise, State or Municipal Sales and Use
Taxes, when applicable, shall be billed to Publisher as separate items.
34. EMPLOYMENT STATUS
RHD and Publisher are independent contracting parties and nothing in this
Agreement will make either Party the partner, joint venturer, agent or legal
representative of other for any purpose whatsoever, nor does it grant either
Party any authority to assume or to create any obligation on behalf of or in the
name of the other. In addition, Publisher will not withhold employment taxes or
similar assessments from the compensation owed RHD under this Agreement.
35. NO THIRD PARTY BENEFICIARIES.
The Parties acknowledge and agree that nothing contained in this Agreement is
intended for the benefit of, or to create any rights in favor of, any other
party. The Parties hereby expressly disclaim any intent to create third-party
beneficiary rights under this Agreement.
36. INSURANCE.
a. Insurance on Work-in-Process. The Parties acknowledge that, in
providing services under this Agreement each Party will have
in its possession and control materials and data critical to
the publication of the directories. Each Party agrees to take
reasonable measures to protect such materials and data from
loss or destruction due to theft, casualty or otherwise,
including without limitation the maintenance of back-up copies
thereof as much as practicable. In the event such materials or
data are lost or destroyed, each Party shall be obligated at
its expense to replace or reconstruct such materials and data
on an expedited basis, it being understood that time is of the
essence in publishing and distributing the directories. Each
Party shall maintain adequate business interruption insurance
coverage (subject to such deductibles as it shall in its sole
discretion deem appropriate) to cover any loss for which it is
responsible hereunder.
b. General Liability Insurance. RHD and Publisher each shall be
obligated to carry general liability insurance coverage with
coverage limits of not less than three million dollars
($3,000,000.00) per occurrence, containing appropriate
contractual liability endorsements, which may be subject to
such deductibles as each Party shall in its sole discretion
deem appropriate.
c. Workers Compensation Insurance. RHD, as an independent
contractor to Publisher, agrees to maintain and pay for
workers compensation insurance coverage applicable to RHD's
employees in accordance with the requirements of applicable
law.
37. NON-WAIVER
The failure of either Party at any time to require strict performance by the
other Party of any provision of this Agreement will in no way affect the right
to require such strict performance at any time thereafter nor will the waiver by
either Party of a breach of any provision constitute a waiver of any succeeding
breach of the same or any other provision.
38. NOTICES
Unless otherwise specified in this Agreement, any notice required or permitted
under this Agreement shall be in writing given by certified or registered mail
(return receipt requested), facsimile or reputable overnight courier service to
the Parties as follows:
RHD:
0000 Xxxxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: Vice President, Publishing
Fax No.: (000) 000-0000
cc: Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Senior Vice President and General Counsel
Fax No.: (000) 000-0000
Publisher: CenDon, LLC
c/o Sprint Publishing and Advertising, Inc.
0000 Xxxxxxx Xxxxxxxxx - Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Att:
Fax No.:
39. HEADINGS AND CAPTIONS
The headings and captions herein are provided for reference and convenience only
and shall not be considered part of this Agreement and shall not be employed in
the construction of this Agreement.
40. ENTIRE AGREEMENT; SEVERABILITY
Except where expressly set forth herein, this Agreement, together with the
Attachments, sets forth the entire agreement between the Parties and supersedes
all prior agreements (whether oral or written) between the Parties relating to
the subject matter contained herein and merges all prior discussions between
them. This Agreement may be modified only by a writing signed by both Parties.
If any term of this Agreement is invalid or unenforceable under any statute,
regulation, ordinance, executive order or other rule of law, such term will be
deemed reformed or deleted, but only to the extent necessary to comply with such
statute, regulation, ordinance, order or rule, and the remaining provisions of
this Agreement will remain in full force and effect.
41. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and each of which taken together shall constitute
one and the same Agreement.
42. GOOD FAITH
Each Party shall perform each and every covenant applicable to it under this
Agreement in good faith. Any specific reference herein to the obligation to
perform any covenant in good faith shall not be interpreted as imposing any
greater or lesser duty than imposed by this Section 42.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first indicated above.
CENDON, LLC
By: /s/ X.X. Xxxxxx
--------------------------------
Name: X.X. Xxxxxx
Title: Vice President
X.X. XXXXXXXXX INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
