Exhibit 10.1.30
ADVISORY AGREEMENT
This Advisory Agreement (this "AGREEMENT") is entered into as of the 30th
day of September, 1999 by and among Advanced Telecommunications, Inc., a
Delaware corporation (the "COMPANY"), Xxxx Capital Partners VI, L.P., a Delaware
limited partnership ("BAIN"), and Xxxxxxxx Partners, L.P., a New York limited
partnership ("XXXXXXXX").
WHEREAS, Xxxxxxxx, Bain and certain funds associated with Bain are
making significant equity investments (the "EQUITY INVESTMENTS") in the
Company by purchasing shares of the Company's Series C Preferred Stock, par
value $0.01 per share, pursuant to the Series C Preferred Stock Purchase
Agreement dated as of the date hereof by and among the Company, Xxxxxxxx,
Bain and certain funds associated with Bain; and
WHEREAS, in connection with the Equity Investments, Xxxxxxxx and Bain
will from time to time spend time and incur expenses in connection with
monitoring the Equity Investments or consulting with, advising or assisting
the Company.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. PAYMENT OF FEES. The Company hereby agrees to:
a. during the Term (as defined in Section 3), pay to Bain (or a single
affiliate of Bain designated by it) an advisory fee in the amount of
$50,000 per annum, such fee being payable by the Company quarterly in
advance, the first such payment to be made on September 30, 1999; and
b. during the Term, pay to Xxxxxxxx (or a single affiliate of Xxxxxxxx
designated by it) an advisory fee in the amount of $50,000 per annum,
such fee being payable by the Company quarterly in advance, the first
such payment to be made on September 30, 1999.
2. EXPENSES. The Company agrees to pay on demand all reasonable costs and
expenses incurred by Bain or Xxxxxxxx or their designated representatives
in connection with monitoring the Equity Investments or consulting with,
advising or assisting the Company with respect to the Company's business,
operations, strategy, marketing, financings, mergers and acquisitions or
other activities, including without limitation (i) any out-of-pocket
expenses incurred by Bain, Xxxxxxxx or their designated representatives in
connection therewith, and (ii) the fees and disbursements arising in
connection therewith of counsel, accountants or other consultants or
advisors retained by Bain or Xxxxxxxx.
3. TERM. This Agreement shall continue in full force and effect, unless and
until terminated by mutual consent of the parties; PROVIDED, HOWEVER, that
this Agreement shall terminate as to Bain at such time as Bain and its
affiliates cease to own at least 10% of the outstanding shares of capital
stock of the Company; and PROVIDED, HOWEVER, that this Agreement shall
terminate as to Xxxxxxxx at such time as Xxxxxxxx and its affiliates cease
to own at least 10% of the outstanding shares of capital stock of the
Company.
4. INDEMNIFICATION AND LIABILITY. In consideration of the execution and
delivery of this Agreement by Xxxxxxxx and Bain and the provision of the
Equity Investments by Xxxxxxxx and Bain, the Company hereby agrees to
indemnify, exonerate and hold each of Xxxxxxxx and Bain, and each of their
respective partners, shareholders, affiliates, directors, officers,
fiduciaries, employees and agents and each of the partners, shareholders,
affiliates, directors, officers, fiduciaries, employees and agents of each
of the foregoing (collectively, the "INDEMNITEES") free and harmless from
and against any and all actions, causes of action, suits, losses,
liabilities an damages, and expenses in connection therewith, including
without limitation attorneys' fees and disbursements (collectively, the
"INDEMNIFIED LIABILITIES"), incurred by the Indemnitees or any of them as a
result of, or arising out of, or relating to the Equity Investments, the
execution, delivery, performance, enforcement or existence of this
Agreement, the Purchase Agreement or the Stockholders Agreement dated as of
September 30, 1999 by and among the Company, Xxxxxxxx, Bain and certain
other stockholders of the Company, or the transactions contemplated hereby
or thereby, except for any such Indemnified Liabilities arising on account
of such Indemnitee's gross negligence or willful misconduct. None of the
Indemnitees shall be liable to the Company or any of its affiliates for any
act or omission suffered or taken by such Indemnitee that does not
constitute willful misconduct.
5. AMENDMENTS AND WAIVERS. No amendment or waiver of any term, provision or
condition of this Agreement shall be effective, unless in writing and
executed by each of Bain, Xxxxxxxx and the Company. No waiver on any one
occasion shall extend to or effect or be construed as a waiver of any right
or remedy on any future occasion. No course of dealing of any person nor
any delay or omission in exercising any right or remedy shall constitute an
amendment of this Agreement or a waiver of any right or remedy of any party
hereto.
6. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the State of Delaware
without giving effect to any choice of law provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction.
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Advisory Agreement
September 30, 1999
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf as an instrument under seal as of the date first above
written by its officer or representative thereunto duly authorized.
THE COMPANY: ADVANCED TELECOMMUNICATIONS, INC.
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
[Signatures continue on following page]
Advisory Agreement
September 30, 1999
BAIN: XXXX CAPITAL PARTNERS VI, L.P.
By Xxxx Capital Investors VI, Inc.,
its general partner
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
[Signatures continue on following page]
Advisory Agreement
September 30, 1999
XXXXXXXX: XXXXXXXX PARTNERS, L.P.
By SGMS, L.P.,
its general partner
By Xxxxxxxx, Xxxxxx & Xxxxx, Inc.
its general partner
By /s/ E. Xxxxxxxx Xxxxxxxx
------------------------------
Name: E. Xxxxxxxx Xxxxxxxx
Title: Partner
