MANAGEMENT SERVICES AGREEMENT
This Management Services Agreement (this "Agreement") is entered into
as of April 29, 1997, by and between WorldPort Communications, Inc., a Delaware
corporation ("Consultant") and Telenational Communications Limited Partnership,
a Nebraska limited partnership ("TNC").
WHEREAS, Consultant and TNC have entered into that certain Asset
Purchase Agreement, dated April 23, 1997 (the "Asset Purchase Agreement"); and
NOW, THEREFORE, in consideration of the premises and promises herein
contained, the parties agree as follows:
1. Capitalized Terms. All capitalized terms used in this Agreement
and not otherwise defined herein shall have the respective meanings ascribed to
them in the Asset Purchase Agreement.
2. Engagement. TNC hereby engages Consultant to perform and Consultant
hereby agrees to perform, to the best of its abilities, management services on
behalf of TNC, all upon the terms and conditions set forth herein.
3. Term. The term of this Agreement shall commence on the date hereof
and continue until the Closing under the Asset Purchase Agreement, unless sooner
terminated by Consultant.
4. Management Services and Business Operations.
(a) During the term of this Agreement, Consultant shall
provide to TNC day-to-day executive management services. To accomplish this,
Consultant shall provide to TNC the services of the WorldPort Management Team
(or such other individuals ("Successor") of comparable talent and skills as
consultant designates) who shall have all of the power, authority, and duties
ascribed to the position of the General Partner of TNC functioning as a chief
executive officer, including authority to control and direct TNC's use and
disposition of operating cash and borrowed funds and TNC's general business
operations. In addition, Consultant will provide to TNC such additional services
as TNC and Consultant mutually deem appropriate in TNC's best interests.
Consultant shall (i) keep the General Partner of TNC generally informed of its
activities, (ii) not engage the services of any other professional, the cost of
which exceeds $10,000, without prior approval from such General Partner, and
(iii) not materially change the direction or operations of TNC's business
without prior approval from such General Partner. In the event a dispute between
the Consultant and the General Partner of TNC arises, such dispute will be
referred to the board of directors of the General Partner for resolution. TNC
Management shall provide to the consultant weekly written reports on the
financial and operating status of TNC.
(b) In performing its services hereunder, Consultant shall
devote its expertise and talents to the management and operation of TNC and to
spend such time as is reasonably required to discharge its responsibilities and
duties; provided, however, that nothing in this Agreement shall restrict
Consultant, its officers, directors, shareholders, employees, and affiliates,
including the WorldPort Management Team (the "Consultant Parties"), from
engaging in or providing services to any other business, venture, or enterprise.
In addition, nothing in this Agreement shall create, or be construed to create,
any representation or promise by Consultant or any other Consulting Party
regarding the viability of TNC, the ability of Consultant or the other
Consulting Parties to effect the transactions contemplated by the Asset Purchase
Agreement or the Plan, or the future profitability or performance of TNC.
TNC Agrees to permit the Consultant Parties to have full access to all premises,
properties, personnel, books, records, contracts, and documents of or pertaining
to TNC.
5. Potential Conflict of Interest. The parties acknowledge that
pursuant to the terms of the Asset Purchase Agreement, Consultant and one or
more of the Consultant Parties expect to have direct or indirect interests in
TNC that create or may create conflicts or potential conflicts of interest. Such
conflicts may arise due to, among other things, the status of Consultant and the
other Consultant Parties as potential or existing owners of TNC assets and
lenders of TNC. The parties agree that the covenants set forth in Sections 7 and
8 below are intended, among other things, to protect and exculpate Consultant
and the other consultant Parties from any claims or liabilities relating to any
conflicts of interest involving any of the Consultant Parties.
6. Nature of Relationship. This Agreement creates an independent
contractor relationship between TNC and Consultant and no joint venture,
partnership, or fiduciary relationship is created by this Agreement. Neither
Consultant nor TNC shall have any right to bind or create any obligation on the
part of the other, and neither shall have any liability for the debts or
obligations of the other.
7. Indemnification. In the event any of the Consultant Parties is made
a party or is threatened to be made a party to or was or is involved in or
called as a witness in any action, suit or proceeding, whether civil (including
bankruptcy), criminal, administrative, or investigative, and any appeal
therefrom (hereinafter, collectively a "proceeding"), in connection with or
related to the provision of services to TNC or its subsidiaries pursuant to the
terms hereof, including any action to successfully enforce this Agreement, such
Consultant Party shall be indemnified and held harmless by TNC.
8. Covenant Not to Xxx. TNC hereby agrees not to xxx or assert any
claim or action against any of the Consultant Parties that arises from or
relates to the services of any Consultant Party (or any Successor) or any other
matter relating to the services of Consultant or any Consultant Party hereunder
(and whether such services were performed or omitted prior to or after the date
of this Agreement), including without limitation, any claim of lender liability,
equitable subordination, or otherwise, but excluding any claim arising from the
willful and wanton misconduct, fraud, or gross negligence of any Consultant
Party.
9. Survival. The provisions of Sections 5, 6, 8, 9, 10 and 11 shall
survive termination of this Agreement for any reason. The provisions hereof
shall apply to the acts or omissions taken by any Consultant Party,
notwithstanding that subsequent hereto that such party ceased to be a Consultant
Party.
10. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered in person or sent by
registered or certified mail, postage prepaid, commercial overnight courier
(such as Express Mail, Federal Express, etc.) with written verification of
receipt or by telecopy. A notice shall be deemed given (a) when delivered by
personal delivery (as evidenced by the receipt); (b) five (5) days after deposit
in the mail if sent by registered or certified mail; (c) one (1) business day
after having been sent by commercial overnight courier as evidenced by the
written verification of receipt; or (d) on the date of confirmation if
telecopied.
(a) If to Consultant:
WorldPort Communications, Inc.
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (
Fax: ( )
With a copy to:
XxXxxxxxx, Will & Xxxxx
000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxxx, P.C.
(b) If to TNC:
Telenational Communications Limited Partnership
0000 Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Any party may change its address for receiving notice by written notice given to
the others named above.
11. Miscellaneous.
(a) Severability; Construction. Whenever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
is held to be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of this Agreement.
(b) Entire Agreement. This Agreement constitutes the entire
agreement by and among the parties hereto with respect to the subject matter
hereof..
(c) Amendments and Governing Law. This Agreement may be
amended, modified and supplemented, or compliance with any provision hereunder
waived, only by a written instrument executed by TNC and Consultant. This
Agreement shall be governed by and construed in accordance with the domestic
laws of the State of Texas without giving effect to any choice or conflict of
law provision or rule (either of the State of Texas or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Texas.
IN WITNESS WHEREOF, the parties have executed this Consulting Agreement
on the date first above written.
WORLDPORT TELECOMMUNICATIONS, INC.
By /s/ Xxxx X. Xxxxxx
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Its: PRESIDENT & CEO
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TELENATIONAL COMMUNICATIONS
LIMITED PARTNERSHIP
By /s/ Xxxxxx Xxxxxxxxx
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Its: CEO
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