RTA ASSOCIATES, LLC
0000 XXXXXX XXXX XXXXX, XXXX. 0
XXXXXXXXX, XX 00000
CONSULTING AGREEMENT
This Agreement is made by and between RTA Associates, LLC, with an address
of 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("Consultant") and US LEC
LLC ("USLEC"), a Delaware limited liability company with its principal offices
located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
1. Retention as Consultant. USLEC hereby retains Consultant and
Consultant hereby accepts such engagement and agrees to perform the
services for USLEC as hereinafter set forth. During the Term hereof,
Consultant shall act as a general business consultant to USLEC,
particularly in the areas of strategic business analysis and planning,
financial planning and capital formation, as well as in such other
areas as may be assigned from time to time by USLEC's Chairman,
President and/or Board of Directors. Consultant shall perform its
duties in a diligent, effective, and loyal manner.
2. Compensation. Consultant shall be compensated by USLEC for all
services to be rendered by it pursuant to this Agreement by the
payment to it of consulting fees in the amount of $125,000.00 per
year. In addition, USLEC shall reimburse Consultant for Consultant's
reasonable out-of-pocket expenses incurred with respect to the
performance of its consulting activities hereunder upon Consultant's
presentation, within 30 days after incurring such expenses, of
vouchers, receipts, and such other evidence of expenses incurred as
shall be reasonably required by USLEC.
3. Term. The term of this Agreement shall be from January 1, 1997 through
December 31, 1997, and shall automatically be renewed for successive
one-year terms until terminated by one party giving the other at least
30 days' advance notice of its intention to terminate this Agreement
at the end of its then-current year.
4. Relationship. Consultant and USLEC are and shall be independent
contractors in their relationship with each other and neither is nor
shall be considered an agent, employee, or legal representative of the
other for federal or state tax purposes or for any other purposes
whatsoever. Consultant has no express or implied authority to assume
or create any obligation or responsibility on behalf of USLEC or to
bind USLEC in any way. Consultant agrees to indemnify, defend, and
hold USLEC harmless from and against all claims, damages or
liabilities as a result of its breach of this Paragraph. Consultant
further acknowledges that as an independent contractor, it shall not
be entitled to receive any insurance coverage
or other fringe benefits that USLEC customarily provides to its
employees, except as may be specifically provided in this Agreement;
and that no withholding, FICA or other taxes will be paid or withheld
by USLEC on its behalf.
5. General Provisions.
(a) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their personal
representatives, successors and assigns.
(b) Assignment. This Agreement may not be assigned, in whole or in
part, by Consultant without the prior written consent of USLEC.
(c) Entire Agreement. This Agreement contains the entire
understanding between or among the parties hereto and supersedes
any prior understanding, memoranda or other written or oral
agreements between or among any of them respecting the within
subject matter.
(d) Modifications; Waiver. No modification or waiver of this
Agreement or any party hereof shall be effective unless in
writing and signed by the party or parties sought to be charged
therewith. No waiver of any breach or condition of this Agreement
shall be deemed to be a waiver of any other or subsequent breach
or condition, whether of like or different nature. No waiver of
any breach or condition of this Agreement by or with respect to
any party hereto shall be deemed to be a waiver of the same
breach or condition with respect to any other party hereto. No
course of dealing between or among any of the parties hereto will
be deemed effective to modify, amend or discharge any part of
this Agreement or the rights or obligations of any party
hereunder.
(e) Partial Invalidity. If any provision of this Agreement shall be
held invalid or unenforceable by competent authority, such
provision shall be construed so as to be limited or reduced to be
enforceable to the maximum extent compatible with the law as it
shall then appear. The total invalidity or unenforceability of
any particular provision of this Agreement shall not affect the
other provisions hereof and this Agreement shall be construed in
all respects as if such invalid or unenforceable provision were
omitted.
(f) Notices. Any notice or other communication required or permitted
under this Agreement shall be in writing and shall be deemed to
have been duly given (I) upon hand delivery, or (ii) on the third
day following delivery to the U.S. Postal Service as certified or
registered mail, return receipt requested and postage prepaid, or
(iii) on the first day following delivery to a nationally
recognized United States overnight courier service, fee prepaid,
return receipt or other confirmation of delivery requested, or
(iv) when telecopied or sent by facsimile transmission to the
following fax numbers:
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If to USLEC: 000-000-0000 Attention: President
If to Consultant: 000-000-0000, Attention: Xxxxxxx X. Aab
Any such notice or communication shall be delivered or directed
to a party at its address or fax number set forth above or at
such other address or fax number as may be designated by a party
in a notice given to all other parties hereto in accordance with
the provisions of this paragraph.
(g) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York pertaining
to contracts made and to be wholly performed within such state,
without taking into account conflicts of laws principles.
(h) Jurisdiction and Venue. In the event that any legal proceedings
are commenced in any court with respect to any matter arising
under this Agreement, the parties hereto specifically consent and
agree that the courts of the State of New York and/or the United
States Federal Courts located in the State of New York shall have
exclusive jurisdiction over each of the parties hereto and over
the subject matter of any such proceedings, and the venue of any
such action shall be in Monroe County, New York and/or the United
States District Court for the Western District of New York.
(i) Injunctive Relief. In the event of a breach or threatened breach
of any of the terms of this Agreement, USLEC shall be entitled to
an injunction restraining Consultant from committing any breach
of this Agreement without showing or proving any actual damages
and without diminishing any other right or remedy which USLEC may
have at law or in equity to enforce the provisions of this
Agreement.
(j) Expenses of Parties. In the event of a breach of this Agreement,
the prevailing party(ies) in any resulting litigation shall be
reimbursed its/their reasonable attorneys' fees and expenses
incurred in such litigation by the party(ies) against whom
judgment is rendered.
(k) Headings. The headings contained in this Agreement are inserted
for convenience only and do not constitute a part of this
Agreement.
(l) Fair Meaning. This Agreement shall be construed according its
fair meaning, the language used shall be deemed the language
chosen by the parties hereto to express their mutual intent, and
no presumption or rule of strict construction will be applied
against any party hereto.
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(m) Gender. Whenever the context may require, any pronoun used herein
shall include the corresponding masculine, feminine or neuter
forms and the singular use of nouns, pronouns and verbs shall
include the plural and vice versa.
(n) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all
of said counterparts together shall constitute but one of the
same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the 18th day of December, 1997
CONSULTANT: US LEC,LLC
RTA ASSOCIATES, LLC
By: /s/ Xxxxxxx X. Aab By: /s/ T.V. Xxxxxxx
----------------------- --------------------
Xxxxxxx X. Aab, Member Title: President & COO
January 1, 1998
RTA Associates LLC
Attn: R.T. Aab
0000 Xxxxxx Xxxx Xxxxx
Xxxx. 0
Xxxxxxxxx, X.X. 00000
RE: Consulting Agreement with US LEC
Dear Mr. Aab:
US LEC hereby notifies you that the consulting agreement between RTA Associates
LLC and US LEC dated December 18, 1997 is terminated for future years effective
January 1, 1998.
Sincerely,
/s/ Xxxxxxx X. Aab
---------------------------
Xxxxxxx X. Aab
Chairman & CEO
RTA:alc
I hereby agree to the termination of the agreement described above
RTA Associates LLC
By: /s/ Xxxxxxx X. Aab 1/4/98
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Xxxxxxx X. Aab, Manager Date
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