{"id":42008,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/advisory-services-agreement-global-telesystems-ltd-and-pcg.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"advisory-services-agreement-global-telesystems-ltd-and-pcg","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/advisory-services-agreement-global-telesystems-ltd-and-pcg.html","title":{"rendered":"Advisory Services Agreement &#8211; Global Telesystems Ltd. and PCG Telecom Services LLC"},"content":{"rendered":"<pre>\n                          ADVISORY SERVICES AGREEMENT\n                          ---------------------------\n\n     This ADVISORY SERVICES AGREEMENT (this 'Agreement'), dated as of March 25,\n1997, is made by and between Global Telesystems Ltd., a company organized under\nthe laws of Bermuda (the 'Company') and PCG Telecom Services LLC, a Delaware\nlimited liability company ('Service Co.').\n\n     WHEREAS, the Company is developing a submarine fiberoptic cable system\nlinking the United States to the United Kingdom, the United Kingdom to Germany\n(and\/or the Netherlands), and Germany (and\/or the Netherlands) to the United\nStates (the 'Cable System').\n\n     WHEREAS, the Company has entered into a Project Development and\nConstruction Contract, an Operations, Administration and Maintenance Agreement\nand a Sales Agency Agreement (collectively, the 'Contracts') with AT&amp;T Submarine\nSystem, Inc. ('SSI') relating to the Cable System.\n\n     WHEREAS, the Company will require technical, business and marketing advice\nin connection with the conduct of its business.\n\n     WHEREAS, Service Co. is capable of providing such advice and is willing to\nprovide such advice to the Company in accordance with the terms and conditions\nof this Agreement.\n\n     NOW, THEREFORE, in consideration of the premises and the mutual agreements\nherein contained, the parties hereto, intending to be legally bound hereby,\nagree as follows:\n\n     1.   Engagement.\n          ---------- \n\n     (a)  Upon the terms and subject to the conditions set forth in this\nAgreement, the Company hereby retains Service Co. to advise it in connection\nwith the supervision of the development, construction and operation of the Cable\nSystem and marketing and pricing of circuits of the Cable System (the 'Advisory\nServices') including, without limitation, advice with respect to the following:\n(i) the performance by SSI of its obligations under the Contracts, including its\nperformance in (A) the development, construction and maintenance of the Cable\nSystem and (B) the development and implementation of marketing and pricing\nstrategies for circuits, and (ii) advice to management of the Company relating\nto the preparation of annual budgets and business plan of the Company.\n\n     (b)  All Advisory Services rendered pursuant to this Agreement shall be\nrendered to the executive officers of the Company or to the Board of Directors\nof the Company.\n\n \n                                                                               2\n\n     (c)  Service Co. agrees, during the term of this Agreement, to provide the\nAdvisory Services to the Company in a diligent and professional manner.\n\n     (d)  The Company hereby agrees that neither Service Co. nor any of its\nofficers, directors, employees, representatives, affiliates or agents shall have\nany liability as a result of any Advisory Services provided pursuant to this\nAgreement (including, without limitation, for the performance of any\ninvestment), except to the extent that such liability results from the gross\nnegligence or willful misconduct of Service Co. or such other person, as the\ncase may be.  The Company agrees that it will not prosecute any action or\nproceeding against Service Co. or any of its officers, directors, employees,\nrepresentatives, affiliates or agents except where such claim is based solely on\nthe gross negligence or willful misconduct of Service Co. or the person against\nwhom such action or proceeding is brought.\n\n     (e)  The Company hereby agrees to indemnify and hold harmless Service Co.\nand its officers, directors, employees, representatives, affiliates and agents\nfrom any and all liability, loss, cost, damage or expense, including, without\nlimitation, reasonable attorneys' fees and expenses, that any such indemnified\nparty may suffer as a result of any claims, demands, costs or judgments arising\nout of the provision of, or failure to provide, Advisory Services or other\nservices hereunder, in each case except to the extent that any such losses are\nprimarily the result of gross negligence or willful misconduct on the part of\nService Co. or any such indemnified person.\n\n     2.   Compensation; Expenses.\n          ---------------------- \n\n     (a)  In consideration for providing the Advisory Services to the Company\nhereunder, the Company agrees to pay to Service Co. the fees set forth on\nSchedule A attached hereto (the 'Fee').  The Fee shall be payable in quarterly\n----------                                                                    \ninstallments, in arrears, within 30 days of the end of each calendar quarter.\n\n\n     (b)  In addition, the Company shall reimburse Service Co. for all out-of-\npocket expenses reasonably incurred by Service Co. in connection with providing\nthe Advisory Services hereunder, to be paid within 15 days after receipt by the\nCompany of an itemized invoice with respect to such amount due hereunder.  For\npurposes of this Agreement, 'out-of-pocket' expenses shall include, but not be\nlimited to, utilities, telecommunications expenses, business travel and\nentertainment expenses, training expenses, consulting expenses, accounting and\nlegal fees and expenses, and postage, courier and other delivery expenses.\n\n     3.   Termination.\n          ----------- \n\n \n                                                                               3\n\n     (a)  This Agreement shall continue in force until the twenty-fifth\nanniversary of this Agreement.  Notwithstanding the foregoing, this Agreement\nmay be terminated by (i) either party on 30 days' prior written notice to the\nother of a material breach by the other of any term of this Agreement, provided,\n                                                                       -------- \nthat the party alleged to have so breached shall be entitled to cure any such\nbreach during such 30-day period, (ii) by Service Co., upon 30 days' prior\nwritten notice, if the business plan of the Company referred to in Section\n1(a)(ii), as finally adopted by the Company, including any modifications thereto\nafter adoption thereof, for two successive fiscal years of the Company are\nmaterially different from those Service Co. advised the Company's management to\nadopt (provided that the business plans that were the subject of Service Co.'s\nadvice provided for the Company to operate in substantially the same business as\nthe preceding operating budget of the Company or (iii) by Service Co., upon 270\ndays' prior written notice.\n\n     (b)  No such termination shall affect (i) any accrued rights or obligations\nof the parties hereunder (including, without limitation, with respect to\npayments for services performed prior thereto), (ii) any agreement previously\nentered into pursuant to this Agreement, or (iii) this Section or Sections 1(d),\n1(e) 4 or 7 or, in the event of termination pursuant to clause (ii) of Section\n3(a), Section 2(a).  In the event of termination pursuant to clause (ii) of\nSection 3(a) the company shall continue to pay to Service Co. the Fees for the\nlesser of a period of 10 years after such termination and the term of this\nAgreement that, prior to such termination, was remaining.\n\n     4.   Independent Contractor; Other Business Opportunities.\n          ---------------------------------------------------- \n\n     (a)  It is the intention of the parties hereto that the relation of the\nparties shall be that of independent contractors.  Service Co. is not authorized\nhereby to act as agent on behalf of the Company to negotiate or enter into, or\namend or waive any provision of, any contract or commitment or otherwise to bind\nor obligate the Company in any way, and Service Co. shall not purport to do so.\n\n     (b)  Except with respect to submarine fiber optic cable systems between\nNorth America and Europe (including, without limitation, spurs to the Cable\nSystem), the doctrine of corporate opportunity shall not apply with respect to\nService Co., and Service Co. (which for purposes of this Section 4 shall include\nits directors, officers, employees and agents) may, without limitation, (i)\nengage in the same or similar activities or lines of business as the Company or\nits subsidiaries or develop or market any products or services that compete,\ndirectly or indirectly, with those of the Company and its subsidiaries, (ii)\ninvest or own any interest publicly or privately in, or develop a business\nrelationship with, any person engaged in the same or\n\n \n                                                                               4\n\nsimilar activities or lines of business as, or otherwise in competition with,\nthe Company or its subsidiaries; (iii) do business with any client or customer\nof the Company or its subsidiaries, or (iv) employ or otherwise engage a former\nofficer or employee of the Company or its subsidiaries.  Neither the Company nor\nany of its subsidiaries shall have any right by virtue of this Agreement in or\nto, or to be offered any opportunity to participate or invest in, any venture\nengaged in by Service Co. or any right by virtue of this Agreement in or to any\nincome or profits derived therefrom.\n\n     5.   No Guarantee of Obligations; No Third Party Rights.  This Agreement is\n          --------------------------------------------------                    \nnot, and nothing herein contained or done pursuant hereto shall be deemed to\nconstitute, a direct or indirect guarantee by Service Co. of any payment or\nperformance by the Company of any indebtedness, liability, or obligation of any\nkind or character.  It is the express intention of the parties hereto that no\ncreditor of the Company or any other third party shall be deemed to be a third\nparty beneficiary of or have any rights under or by virtue of this Agreement\nother than as expressly provided by Sections 1(d) and 1(e) hereof.\n\n     6.   Notices.  All notices and other communications provided for or\n          -------                                                       \npermitted hereunder shall be made in writing by hand-delivery, air courier or\nfacsimile transmission.\n\n     If to the Company:\n\n     Global Telesystems Ltd.\n     Cedar House\n     41 Cedar Avenue\n     Hamilton HM12, Bermuda\n     Attention:  Peter Bubenzer\n     Facsimile:  (441) 292-8666\n\n     with a copy (which shall not constitute notice) to:\n\n     Appleby, Spurling and Kempe\n     Cedar House\n     41 Cedar Avenue\n     Hamilton HM 12, Bermuda\n     Attention:  Peter Bubenzer\n     Facsimile:  (441) 292-8666\n\n     If to Service Co.:\n\n     PCG Telecom Services LLC\n     150 El Camino Drive, Suite 204\n     Beverly Hills, California 90212\n     Attention:  Managing Member\n     Facsimile:  (310) 281-4992\n\n     with a copy (which shall not constitute notice) to:\n\n \n                                                                               5\n\n     Skadden, Arps, Slate, Meagher &amp; Flom LLP\n     300 South Grand Avenue, Suite 3400\n     Los Angeles, California 90071-3144\n     Attention:  Jeffrey H. Cohen\n     Facsimile:  (213) 687-5600\n\nAll such notices and communications shall be deemed to have been duly given:\nwhen delivered by hand, if personally delivered; three business days after being\ntimely dispatched delivery prepaid, if by air courier; and when receipt\nacknowledged, if sent by facsimile transmission.  Any of the above addresses may\nbe changed by notice made in accordance with this subsection.\n\n     7.   GOVERNING LAW; FORUM SELECTION.  THIS AGREEMENT SHALL BE GOVERNED BY\n          ------------------------------                                      \nAND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT\nGIVING EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.  BY EXECUTING THIS\nAGREEMENT, EACH PARTY HERETO SUBMITS TO THE JURISDICTION OF THE STATE OF THE\nCOURTS OF NEW YORK SOLELY FOR PURPOSES OF ADJUDICATING ITS RIGHTS OR THE RIGHTS\nOF THE OTHER PARTY WITH RESPECT TO THIS AGREEMENT.  EACH PARTY HEREBY\nIRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION,\nINCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON\nTHE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE\n               ----- --- ----------                                           \nBRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS\nAGREEMENT.  EACH PARTY HEREBY AGREES TO ACCEPT, AT ITS OFFICE AT THE ADDRESS\nREFERRED TO IN SECTION 6 HEREOF, SERVICE OF PROCESS IN ANY LEGAL ACTION OR\nPROCEEDING INSTITUTED BY ANY PARTY IN THE COURTS OF THE STATE OF NEW YORK WITH\nRESPECT TO THIS AGREEMENT.\n\n     8.   Assignment; Successors.  No right or obligation under this Agreement\n          ----------------------                                              \nmay be assigned or delegated by either party without written consent of the\nother.  This Agreement shall inure to the benefit of and be binding upon the\nparties hereto and their respective successors and permitted assigns.\n\n     9.   Counterparts.  This Agreement may be executed in any number of\n          ------------                                                  \ncounterparts, each of which shall be an original, but all of which shall\ntogether constitute one and the same Agreement.\n\n     10.  Headings.  All headings have been inserted for convenience only and\n          --------                                                           \nshall in no way modify or restrict any of the terms or conditions hereof.\n\n \n                                                                               6\n\n     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of\nthe day and year first above written.\n\n                                             GLOBAL TELESYSTEMS LTD.\n\n\n                                             By:    \/s\/ David Lee\n                                                  -------------------------\n                                                  Name: David Lee\n                                                  Title:\n\n\n\n                                             PCG TELECOM SERVICES LLC\n\n                                             By:    \/s\/ Abbott Brown\n                                                  -------------------------\n                                                  Name: Abbott Brown\n                                                  Title: CFO\n                                                  of Pacific Capital Group,\n                                                  Inc., its Managing Member\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7648],"corporate_contracts_industries":[9519],"corporate_contracts_types":[9613,9620],"class_list":["post-42008","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-global-crossing-ltd","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42008","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42008"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42008"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42008"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42008"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}