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NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2023
Exhibit A
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Gleichenhaus, Marchese & Weishaar, P.C.
ATTORNEYS & COUNSELORS AT LAW
43 Court Street • Suite 930 • Buffalo, New York 14202-3100 • Tel 716/845-6446 • Fax 716/845-6475
Charles J. Marchese
Robert B. Gleichenhaus
Michael A. Weishaar
Scott J. Bogucki
PRIVILEGED & CONFIDENTIAL
July 21, 2022
Via Email (BCunningham@broadbandinfrastructure.com)
Braddock Cunningham
Broadband Infrastructure, Inc.
24 Concourse Way
Greer, South Carolina 29650
Tel. 864/ 423-8135
Email BCunningham@broadbandinfrastructure.com
Re: Engagement Agreement
MCA Servicing Company v. Broadband Infrastructure, Inc., et al.
No. 133325/2022 (Ontario County, New York)
The purpose of this letter (“Engagement Agreement”), is to clarify and confirm the terms and
conditions of the representation, effective as of July 21, 2022, of Braddock Cunningham,
individually (“Cunningham”), and the following entities: (a) Broadband Infrastructure, Inc.
d/b/a Broadband Infrastrutcture, (b) BBI, and (c) Broadband Infrastrutcture Inc. (collectively,
the “Broadband Entities” and together with Cunningham, the “Client/s”, or “you”), by
Gleichenhaus, Marchese & Weishaar, PC (the “Firm”, “we”, or “us”), with respect to the
above-referenced currently pending litigation (the “Pending Litigation”), as set forth in greater
detail below (the “Matters”). This letter fulfills the requirements of the Joint Rules of the New
York Supreme Court Appellate Division for our Firm’s representation of you in these Matters.
We agree to represent you in these Matters, for an initial retainer fee of $5,000 (the
“Retainer”). You acknowledge the scope and complexity of the Matters, and the investment in
time by the Firm required to analyze and evaluate the issues in order to accomplish the goals
you have set forth.
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PRIVILEGED AND CONFIDENTIAL
Given the time-sensitive nature of the Matters, it is important that you remit the Retainer to us
as soon as possible. Our wire instructions are below:
Bank Information:
Customer Information:
The parties in the future may agree in writing to alter the terms of remittance. The Retainer
will be limited to covering the disbursements and attorney’s fees for these Matters. Our
engagement in these Matters is contingent upon our receipt of the Retainer.
TERMS OF ENGAGEMENT.
Scope of the Firm’s Representation. You have engaged the Firm to represent you as Counsel
in connection with the Matters. You anticipate that the Firm’s services in these matters will
include:
a) ;
b) ;
c)
;
d) ;
e)
; and
f)
.
The parties further acknowledge that this phase
of the Firm’s engagement does not include the Firm implementing any potential corporate
restructuring or global debt settlement strategy beyond the scope of settling the Pending
Litigation. In the event that you or any related entity decide to implement any restructuring or
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PRIVILEGED AND CONFIDENTIAL
global debt settlement strategy, including but not limited to preparing for and filing bankruptcy,
the Firm will reevaluate its relationship with you, and to the extent agreed upon by the parties,
will provide you with the proper terms to retain the Firm pursuant to an additional
engagement agreement. The Matters do not include, and this Engagement Letter does not
contemplate, the Firm’s representation of you in any trial or any appeal.
While the Firm enjoys broad relationships involving multiple matters for many clients, we do
not act as general counsel for clients and our work and advice is limited to the specific matters
on which we are engaged. Thus our relationship may expand beyond the Matters, but only if
you and we agree to specific new or expanded engagements.
Exclusions. The Matters do not include, and this Engagement Letter does not contemplate,
the Firm’s representation of you in any bankruptcy or other insolvency proceeding commenced
voluntarily by you, or involuntarily against you. The Firm’s services will not include any tax
or tax-related advice. The Firm’s services will not extend to the general business, personal, or
legal affairs of the Client/s, or to any other activities of the Client/s, unless otherwise agreed to
in writing. The Client understands and agrees that the Firm’s receipt of and use of confidential
or other information from the Client/s or others in the course of our representation of you in
these Matters will not give rise to any expectation by the Client/s that the Firm will render any
other advice or services.
Independent and Concurrent Representations. The Firm has been requested to represent
you. A conflict of interest could conceivably arise in the future with regard to our
representation of each of you. In the event that such conflict arises, we will attempt to resolve
it amicably among the parties. If we cannot resolve the conflict, it may be necessary to
withdraw from our representation of one or more of the parties, and to protect confidences or
otherwise, we may withdraw without explaining the reason for our withdrawal. In that event,
we will be free to continue to represent the remaining parties even if that representation is
adverse to the parties from whom we have withdrawn our representation.
Potentially Adverse Representations or Conflicts of Interest; Advance Waiver. The Firm
represents many clients on a wide variety of matters in a number of different practice areas.
Additionally, just as the Client/s in the future may ask us to represent them in a matter that is
directly adverse to one of our other clients, it is possible the Firm will be asked in the future to
represent another client in a matter that is directly adverse to you. We want you and our other
clients to be able to choose the Firm as their counsel on matters where it is appropriate to do
so. Accordingly, you agree that GMW in the future may represent any existing or future client
in any matter (including transactions and counseling, as well as litigation or other dispute
resolutions) that is directly adverse to you. Your agreement to this is based on two
understandings as follows. First, GMW will not represent another client adverse to you in a
matter that is substantially related to any of the matters that we are handling for you. Second,
to the extent GMW does represent a client adverse to you, GMW’s lawyers or other service
providers who are then working for you will not work on that adverse matter for that other
client and we will take steps to ensure that your confidential information is not shared with our
lawyers or other time keepers involved in the adverse matter.
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PRIVILEGED AND CONFIDENTIAL
You also confirm that your agreement to this prospective waiver is voluntary and that you
intend for it to be effective and enforceable and for GMW to rely upon it.
Risks Inherent to the Matters. In addition to acknowledging the time-sensitive nature, scope,
and complexity of the Matters, you further acknowledge the risk associated with the Pending
Litigation, any settlement strategy, and the inability to guarantee a specific outcome.
Fees and Expenses; Evergreen Retainer. We agree to represent you in the Matters,
conditioned upon the receipt of the Retainer and contingent upon the terms set forth herein.
The Firm’s fees are based on the actual time spent on these Matters by the Firm’s attorneys or
those engaged by the Firm. You understand that the Firm shall be paid by the Client in the
ordinary course of its business. The hourly rates charged by the Firm’s attorneys shall be each
attorney’s normal hourly rate customarily charged for the work assigned. My hourly USD rate
is $395, however as a courtesy I am willing to discount my hourly rate to USD $350 for the
scope of this Engagement Agreement. Our Firm’s hourly USD rates presently range between
$325–$395 for partners, between $230–$300 for associates, and between $150–210 for
paralegals and interns.
Fee Splitting. To the extent that the Firm deems necessary, in its sole discretion, to
engage other attorneys to assist the Firm in carrying out its obligations pursuant to this
Engagement Agreement, the Firm shall split the attorney’s fees in proportion to the
respective hourly rates charged by each such attorney multiplied by the hours worked
on your case. Each lawyer shall assume joint responsibility for your case.
It has been agreed that the Firm will use its best professional efforts to obtain a resolution
satisfactory to you. In return, you have agreed to pay the Retainer. The Firm will send the
Client/s an itemized bill periodically. It is expected that, subject to the terms herein and to the
extent that the balance of the Retainer falls below its Threshold Balance (defined below), the
Client/s will pay the bill in full within thirty (30) days of its receipt, or pursuant to such other
terms as the Firm determines in its sole discretion and sound business judgment. If any check
is returned for insufficient funds, the Client/s agrees to immediately pay the Firm a $40.00 fee
in addition to the amount of the returned check. In the event a check is returned, then any
current and future payments must be made in cash, money order, or debit card. Any payments
made via wire or credit card will be charged a customary fee assessed by the Firm’s banking
institution.
Threshold Balance. In the event that the balance of the Retainer falls below twenty (20%)
percent, or $1,000 (the “Threshold Balance”), we will notify you and expect that the Retainer
will be replenished within seven (7) days of such notice, by a stated amount not to exceed an
aggregate on deposit with the Firm of an amount over that of the initial Retainer. The Firm
may determine at its sole discretion to either increase or decrease the amount of the Threshold
Balance. The Firm shall provide you with written notice of any such change.
When we submit bills to you, we will use the Retainer to pay those bills and when you send
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PRIVILEGED AND CONFIDENTIAL
your payment to us it is understood that it will be used to restore the Retainer account back to
its original balance pursuant to the terms of the Evergreen Retainer and the Threshold Balance.
If you do not pay in full and on time, the Firm has the right to refuse to provide future legal
services and to withdraw as your counsel. In such an event, you waive the right to object to
our withdrawal from representation. Upon completion of the work, any unused retainer will
be returned to you.
Minimum Fee. Our minimum fee is $1,500, intended to operate as follows: (a) the time
initially expended on these Matters will be charged against the minimum fee. However, if
these Matters are concluded, whether by settlement or by judicial action, in less time than
would be required to expend the minimum fee on the basis of time alone, the Firm shall retain
the minimum fee and there would be no refund of any part of the minimum fee. An additional
retainer may be required as time charges warrant and (b) If our relationship is terminated in
less time than would be required to expend the minimum fee on the basis of time alone,
without the Matters having been concluded by settlement or judicial action, then the Firm shall
not retain the entire minimum fee. Rather, in that event a fair and reasonable fee will be
determined in accordance with legally accepted standards and only such portion of the
minimum fee as represents such fair and reasonable fee would be retained. The elements of a
reasonable fee are set forth in DR 2-106 of the Lawyer’s Code of Professional Responsibility, a
copy of which provision will be furnished to you upon request.
Certain ancillary services and other items, such as maintaining computer databases and
electronic versions of various materials, photocopying, courier or messenger services (including
legal process serving), computer database searches, private investigations, and other expenses
incurred for the benefit of the Client/s, are billed separately from time charges, based on actual
use and at our cost. Travel required outside of the County of Erie is billed at one-half the
customary hourly rate.
Assignment of Firm Personnel. I will be primarily responsible for these Matters, and when
necessary, I will engage the talent and expertise of other attorneys, as well as paralegal staff to
handle ministerial and other tasks.
Communication by Firm. The Firm will keep you regularly and currently informed of the
status of these Matters and will consult with you when appropriate.
Client Cooperation. You understand and agree that, in order for us to represent you
effectively, it is necessary for you to assist and cooperate with the Firm throughout these
Matters. You agree to: (i) remain available to discuss issues as they arise in these Matters;
(ii) attend and participate in meetings, preparation sessions, hearings, depositions, court
proceedings, and other activities in connection with these Matters; and (iii) provide us with
complete and accurate information.
For purposes of sending and receiving emails, it is necessary that you
utilize an email account that only you can access. If you use an email
address that you do not have sole control over, is shared with other
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persons, or was provided to you by your employer, then you risk waiving
confidentiality and attorney/client privilege. You should be the only
person viewing emails and any attachments we send to you.
Your noncooperation will be grounds for the Firm’s withdrawal from representing the Client/s
in these Matters, and thus, it is essential that we maintain open communications.
Termination of Representation. You may terminate our representation of you in these Matters
at any time, subject to a final accounting and the payment of any final fees and expenses.
You may terminate our representation at any time by notifying us. Your termination of our
services will not affect your responsibility for payment of outstanding statements and accrued
fees and expenses incurred before termination or incurred thereafter in connection with an
orderly transition of the Matters. If such termination occurs, your papers and property will be
returned to you promptly upon receipt of payment for outstanding fees and costs. Our own
files pertaining to the Matters will be retained in accordance with the firm’s records
management policy and procedures. These firm files include, for example, firm administrative
records, time and expense reports, personnel and staffing materials, and credit and accounting
records; and internal lawyers’ work product such as drafts, notes, internal memoranda, and
legal and factual research, including investigative reports, prepared by or for the internal use of
lawyers.
We may withdraw from this representation for good cause, on reasonable notice, without your
consent. Good cause includes, but is not limited to: (i) your failure to cooperate with us as
provided above; (ii) your failure to pay any bill when due or to replenish the Retainer as (and
if) provided above; (iii) any fact or circumstance that would render our continuing
representation unlawful or unethical; (iv) the Firm discovers that the Client/s has made any
misrepresentation in connection with these Matters; and/or (v) the Client/s acts in such a
manner that, in the discretion of the Firm, the Firm deems it necessary to terminate the
Representation. Our services will terminate, unless otherwise agreed upon in a writing signed
by you and the Firm, when there is a final agreement, settlement, decision, or judgment with
respect to these Matters.
Arbitration of Disputes. Further, we advise that pursuant to Part 137 of the Rules of the Chief
Administrator of the Courts, in the event a dispute arises between you and us relating to our
fees, you may have the right to arbitration of that dispute. Upon request, we will send you a
copy of Part 137.
Binding Agreement. This Engagement Agreement represents the entire agreement between
you and the Firm. By signing below, you acknowledge that this letter has been carefully
reviewed and its contents understood and that you agree to be bound by all of its terms and
conditions. Furthermore, you acknowledge that the Firm has made no representations or
guarantees to you regarding the outcome of these Matters or the time or cost necessary to
resolve these Matters. No change or waiver of any of the provisions of this letter shall be
binding on either you or on the Firm unless the change is in writing and signed by both you
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PRIVILEGED AND CONFIDENTIAL
and the Firm. Further this letter constitutes our entire agreement.
Retention of Documents. We are required to advise you of your obligation to identify and
preserve information potentially relevant to the Matters. The duty to preserve potentially
relevant information is broad and courts have become increasingly exacting in applying
existing and new standards that require the preservation of both paper documents and
electronically-stored information (“ESI”). The obligation applies not only to paper documents,
but also to ESI, including but not limited to, e-mail, word processing documents, spreadsheets,
databases, calendars, voicemail, Internet usage files and network access information. ESI also
includes social media accounts. Some courts have imposed sanctions in cases where a party
has failed to comply with these standards. If you have not already done so, a “litigation hold”
memorandum should be issued to all employees who have access to relevant paper and ESI
specifically describing the types of documents and information that must be preserved and how
these materials should be maintained and stored. Please contact me with any questions or
concerns about this obligation or if you need assistance in complying with the obligation.
Conclusion of Representation; Disposition of Documents. Unless previously terminated, our
representation of you will terminate upon our sending you our final statement for services
rendered in these Matters and/or written notice advising you that this engagement has
concluded.
You may thereafter direct us to return, retain, or discard some or all of the documents
pertaining to the engagement. If you do not respond to the notice within sixty (60) days, you
agree and understand that any materials left with us after the engagement ends will be retained
for a period of three (3) years after the conclusion of the matter, after which time they may be
destroyed at our discretion unless you notify us in writing that you wish to take possession of
them. You should understand that “materials” include paper files as well as information in
other mediums of storage including voicemail, email, printer files, copier files, facsimiles,
dictation recordings, video files, and other formats. We reserve the right to make, at our
expense, certain copies of all documents generated or received by us in the course of our
representation.
During the course of our representation we will maintain a file of those documents necessary
and material to the Matters. Absent unusual circumstances, we will provide you with copies of
documents in our file at your request. If you provide us with documents, please make sure you
retain the originals or copies. Our expectation is that we will not need to return to you
documents you have provided to us. We will maintain our file for three (3) years after the
matter has been concluded in accordance with the Firm’s records management policy and
procedures. We will maintain all confidentiality of all documents throughout this process. We
reserve the right to charge administrative fees and costs associated with researching, retrieving,
copying, and delivering the files. Absent specific reason to do so, we will not retain copies of
any documents produced to us by the other side, or by subpoena, and will not retain copies of
documents you provided to us. After three (3) years the contents of your file will be destroyed,
unless you ask us to return the file to you, or your matter fits into one of several exceptions. If
you have policies that require us to use a different retention period, or any requirements that
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differ from our policies, please let us know and we will make appropriate arrangements.
Otherwise, we will maintain our file as noted above.
Thank you for this opportunity to represent you. We look forward to working with you.
Respectfully yours,
GLEICHENHAUS, MARCHESE & WEISHAAR, P.C.
Scott J. Bogucki, Esq.
43 Court Street, Suite 930
Buffalo, New York 14202
Tel. 716/845–6446
Email: sbogucki@gmwlawyers.com
BRADDOCK GENERAL CUNNINGHAM, individually, has reviewed, consented, and
agreed to, the above terms of engagement of Gleichenhaus, Marchese & Weishaar, P.C., for the
purposes and to the extent described in this letter.
Signature/Date
Braddock Cunningham
_______________________________________
Name
Braddock Cunningham
_________________________, in his/her capacity as a duly authorized representative and on
behalf of BROADBAND INFRASTRUCTURE, INC., has reviewed, consented, and agreed to,
the above terms of engagement of Gleichenhaus, Marchese & Weishaar, P.C., for the purposes and to
the extent described in this letter.
Signature/Date
Braddock Cunningham
_______________________________________
Name/Title
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PRIVILEGED AND CONFIDENTIAL
Braddock Cunningham
_________________________, in his/her capacity as a duly authorized representative and on
behalf of BROADBAND INFRASTRUCTURE INC., has reviewed, consented, and agreed to, the
above terms of engagement of Gleichenhaus, Marchese & Weishaar, P.C., for the purposes and to the
extent described in this letter.
Signature/Date
Braddock Cunningham - President
_______________________________________
Name/Title
Braddock Cunningham
_________________________, in his/her capacity as a duly authorized representative and on
behalf of BROADBAND INFRASTRUCTURE, has reviewed, consented, and agreed to, the above
terms of engagement of Gleichenhaus, Marchese & Weishaar, P.C., for the purposes and to the extent
described in this letter.
Signature/Date
Braddock Cunningham - President
_______________________________________
Name/Title
Braddock Cunningham
_________________________, in his/her capacity as a duly authorized representative and on
behalf of BBI, has reviewed, consented, and agreed to, the above terms of engagement of
Gleichenhaus, Marchese & Weishaar, P.C., for the purposes and to the extent described in this letter.
7/21/2022
Signature/Date
Braddock Cunningham - President
_______________________________________
Name/Title
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GLEICHENHAUS, MARCHESE & WEISHAAR, PC
Billing Policies for Disbursements and Charges
Audio and Video Conference Calls. Clients are billed for audio and video conference calls. Clients are not
charged for local or long-distance calls or facsimiles made or sent from within the Firm's offices.
Computer Research Services. Clients are billed actual charges for on-line computer research done in connection
with specific client/matters. Clients are not charged for Bloomberg Law, Lexis, or Westlaw services.
Copying. Copying charged to the client includes documents, exhibits, and other papers that are filed with a court
or administrative agency; documents produced for the client at its request and/or convenience; and documents
produced as may be required by other parties in relation to litigation or transactions. Clients are billed $.20 per page
for non-color photocopying and $1.00 per page for color photocopying done at the actual charges to the Firm. The
actual charges to the Firm for outside, third-party duplication services used for specific client matters are billed to
the client. Documents required for the Firm's use only are not charged to clients.
Courier Services. Courier services such as Federal Express are used when the circumstances of specific client
matters dictate the need for such service. Clients are billed for the actual charges to the Firm for any such courier
service.
Electronic Databases. Clients are billed actual charges from the external vendor hosting services we use to store
and maintain computer databases and electronic versions of such materials as court filings, transcripts, case dockets
and calendars, correspondence, discovery materials, and deposition or trial exhibits. The Firm does not maintain
such electronic databases internally.
Food Services. When food services are required to enhance the efficient handling of specific client matters, clients
are billed the actual cost of the food and/or beverages plus the expense of the food service personnel or service
providers who serve the food and/or beverages. It will be the client’s responsibility to apply the deduction
limitation under IRS Sec. 274(e)3 for these charges.
Messenger Services. Clients are billed for messenger services required for specific client matters at the actual rates
charged by outside delivery services or the Firm's out-of-pocket expenses for bus fares, cabs, and similar items when
Firm personnel are used.
Postage (U.S. Mail). Clients are not charged for postage when the amount on a particular mailing is less than
$1.00. Standard rates are billed for all postage over $1.00 and for large mailings done on behalf of the client even
when individual item postage is under $1.00 as well as for special postal services, e.g., Express Mail, Special
Delivery, and Certified and Registered Mail.
Special Services. A client and the Firm may agree that certain special services are required, in connection with a
specific matter, such as litigation support, extraordinary office supplies, temporary agency paralegals, project
assistants or other staffing, video/audio production services/equipment, off-site location, imaging services, off-hour
HVAC and related expenses, and document production services requiring trained personnel and specialized
equipment. Before the client is billed for any such services, the client and Firm must agree on the type, scope, and
cost of the services.
Staff Overtime. Staff overtime costs are billed to clients only when the overtime staff services are for the
convenience of the client, rather than the convenience of the Firm. In such circumstances, clients are billed for the
Firm's costs of providing the staff overtime, including actual overtime compensation (and a factor for benefits
expenses) and necessary meal and transportation costs.
Travel. Clients are billed for travel charges (including, for U.S. travel, a $40.00 transaction charge covering a
portion of the contracted cost of arranging air travel) incurred by Firm personnel for specific client matters. For
domestic travel, we use coach fare only unless the client has authorized first or business class. We expect our
lawyers to incur only reasonable meal, lodging, and other travel costs.
Other Charges. We prefer that third-party charges (e.g., consultants, court reporters, etc.) incurred on behalf of a
client be billed directly to the client by the third party. If this is not possible, such charges are passed through at cost.
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FILED: ERIE COUNTY CLERK 12/27/2023 12:55 PM INDEX NO. 816470/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2023 Exhibit A FILED: ERIE COUNTY CLERK 12/27/2023 12:55 PM INDEX NO. 816470/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2023 Gleichenhaus, Marchese & Weishaar, P.C. ATTORNEYS & COUNSELORS AT LAW 43 Court Street • Suite 930 • Buffalo, New York 14202-3100 • Tel 716/845-6446 • Fax 716/845-6475 Charles J. Marchese Robert B. Gleichenhaus Michael A. Weishaar Scott J. Bogucki PRIVILEGED & CONFIDENTIAL July 21, 2022 Via Email (BCunningham@broadbandinfrastructure.com) Braddock Cunningham Broadband Infrastructure, Inc. 24 Concourse Way Greer, South Carolina 29650 Tel. 864/ 423-8135 Email BCunningham@broadbandinfrastructure.com Re: Engagement Agreement MCA Servicing Company v. Broadband Infrastructure, Inc., et al. No. 133325/2022 (Ontario County, New York) The purpose of this letter (“Engagement Agreement”), is to clarify and confirm the terms and conditions of the representation, effective as of July 21, 2022, of Braddock Cunningham, individually (“Cunningham”), and the following entities: (a) Broadband Infrastructure, Inc. d/b/a Broadband Infrastrutcture, (b) BBI, and (c) Broadband Infrastrutcture Inc. (collectively, the “Broadband Entities” and together with Cunningham, the “Client/s”, or “you”), by Gleichenhaus, Marchese & Weishaar, PC (the “Firm”, “we”, or “us”), with respect to the above-referenced currently pending litigation (the “Pending Litigation”), as set forth in greater detail below (the “Matters”). This letter fulfills the requirements of the Joint Rules of the New York Supreme Court Appellate Division for our Firm’s representation of you in these Matters. We agree to represent you in these Matters, for an initial retainer fee of $5,000 (the “Retainer”). You acknowledge the scope and complexity of the Matters, and the investment in time by the Firm required to analyze and evaluate the issues in order to accomplish the goals you have set forth. FILED: ERIE COUNTY CLERK 12/27/2023 12:55 PM INDEX NO. 816470/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2023 P age |2 PRIVILEGED AND CONFIDENTIAL Given the time-sensitive nature of the Matters, it is important that you remit the Retainer to us as soon as possible. Our wire instructions are below: Bank Information: Customer Information: The parties in the future may agree in writing to alter the terms of remittance. The Retainer will be limited to covering the disbursements and attorney’s fees for these Matters. Our engagement in these Matters is contingent upon our receipt of the Retainer. TERMS OF ENGAGEMENT. Scope of the Firm’s Representation. You have engaged the Firm to represent you as Counsel in connection with the Matters. You anticipate that the Firm’s services in these matters will include: a) ; b) ; c) ; d) ; e) ; and f) . The parties further acknowledge that this phase of the Firm’s engagement does not include the Firm implementing any potential corporate restructuring or global debt settlement strategy beyond the scope of settling the Pending Litigation. In the event that you or any related entity decide to implement any restructuring or FILED: ERIE COUNTY CLERK 12/27/2023 12:55 PM INDEX NO. 816470/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2023 P age |3 PRIVILEGED AND CONFIDENTIAL global debt settlement strategy, including but not limited to preparing for and filing bankruptcy, the Firm will reevaluate its relationship with you, and to the extent agreed upon by the parties, will provide you with the proper terms to retain the Firm pursuant to an additional engagement agreement. The Matters do not include, and this Engagement Letter does not contemplate, the Firm’s representation of you in any trial or any appeal. While the Firm enjoys broad relationships involving multiple matters for many clients, we do not act as general counsel for clients and our work and advice is limited to the specific matters on which we are engaged. Thus our relationship may expand beyond the Matters, but only if you and we agree to specific new or expanded engagements. Exclusions. The Matters do not include, and this Engagement Letter does not contemplate, the Firm’s representation of you in any bankruptcy or other insolvency proceeding commenced voluntarily by you, or involuntarily against you. The Firm’s services will not include any tax or tax-related advice. The Firm’s services will not extend to the general business, personal, or legal affairs of the Client/s, or to any other activities of the Client/s, unless otherwise agreed to in writing. The Client understands and agrees that the Firm’s receipt of and use of confidential or other information from the Client/s or others in the course of our representation of you in these Matters will not give rise to any expectation by the Client/s that the Firm will render any other advice or services. Independent and Concurrent Representations. The Firm has been requested to represent you. A conflict of interest could conceivably arise in the future with regard to our representation of each of you. In the event that such conflict arises, we will attempt to resolve it amicably among the parties. If we cannot resolve the conflict, it may be necessary to withdraw from our representation of one or more of the parties, and to protect confidences or otherwise, we may withdraw without explaining the reason for our withdrawal. In that event, we will be free to continue to represent the remaining parties even if that representation is adverse to the parties from whom we have withdrawn our representation. Potentially Adverse Representations or Conflicts of Interest; Advance Waiver. The Firm represents many clients on a wide variety of matters in a number of different practice areas. Additionally, just as the Client/s in the future may ask us to represent them in a matter that is directly adverse to one of our other clients, it is possible the Firm will be asked in the future to represent another client in a matter that is directly adverse to you. We want you and our other clients to be able to choose the Firm as their counsel on matters where it is appropriate to do so. Accordingly, you agree that GMW in the future may represent any existing or future client in any matter (including transactions and counseling, as well as litigation or other dispute resolutions) that is directly adverse to you. Your agreement to this is based on two understandings as follows. First, GMW will not represent another client adverse to you in a matter that is substantially related to any of the matters that we are handling for you. Second, to the extent GMW does represent a client adverse to you, GMW’s lawyers or other service providers who are then working for you will not work on that adverse matter for that other client and we will take steps to ensure that your confidential information is not shared with our lawyers or other time keepers involved in the adverse matter. FILED: ERIE COUNTY CLERK 12/27/2023 12:55 PM INDEX NO. 816470/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2023 P age |4 PRIVILEGED AND CONFIDENTIAL You also confirm that your agreement to this prospective waiver is voluntary and that you intend for it to be effective and enforceable and for GMW to rely upon it. Risks Inherent to the Matters. In addition to acknowledging the time-sensitive nature, scope, and complexity of the Matters, you further acknowledge the risk associated with the Pending Litigation, any settlement strategy, and the inability to guarantee a specific outcome. Fees and Expenses; Evergreen Retainer. We agree to represent you in the Matters, conditioned upon the receipt of the Retainer and contingent upon the terms set forth herein. The Firm’s fees are based on the actual time spent on these Matters by the Firm’s attorneys or those engaged by the Firm. You understand that the Firm shall be paid by the Client in the ordinary course of its business. The hourly rates charged by the Firm’s attorneys shall be each attorney’s normal hourly rate customarily charged for the work assigned. My hourly USD rate is $395, however as a courtesy I am willing to discount my hourly rate to USD $350 for the scope of this Engagement Agreement. Our Firm’s hourly USD rates presently range between $325–$395 for partners, between $230–$300 for associates, and between $150–210 for paralegals and interns. Fee Splitting. To the extent that the Firm deems necessary, in its sole discretion, to engage other attorneys to assist the Firm in carrying out its obligations pursuant to this Engagement Agreement, the Firm shall split the attorney’s fees in proportion to the respective hourly rates charged by each such attorney multiplied by the hours worked on your case. Each lawyer shall assume joint responsibility for your case. It has been agreed that the Firm will use its best professional efforts to obtain a resolution satisfactory to you. In return, you have agreed to pay the Retainer. The Firm will send the Client/s an itemized bill periodically. It is expected that, subject to the terms herein and to the extent that the balance of the Retainer falls below its Threshold Balance (defined below), the Client/s will pay the bill in full within thirty (30) days of its receipt, or pursuant to such other terms as the Firm determines in its sole discretion and sound business judgment. If any check is returned for insufficient funds, the Client/s agrees to immediately pay the Firm a $40.00 fee in addition to the amount of the returned check. In the event a check is returned, then any current and future payments must be made in cash, money order, or debit card. Any payments made via wire or credit card will be charged a customary fee assessed by the Firm’s banking institution. Threshold Balance. In the event that the balance of the Retainer falls below twenty (20%) percent, or $1,000 (the “Threshold Balance”), we will notify you and expect that the Retainer will be replenished within seven (7) days of such notice, by a stated amount not to exceed an aggregate on deposit with the Firm of an amount over that of the initial Retainer. The Firm may determine at its sole discretion to either increase or decrease the amount of the Threshold Balance. The Firm shall provide you with written notice of any such change. When we submit bills to you, we will use the Retainer to pay those bills and when you send FILED: ERIE COUNTY CLERK 12/27/2023 12:55 PM INDEX NO. 816470/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2023 P age |5 PRIVILEGED AND CONFIDENTIAL your payment to us it is understood that it will be used to restore the Retainer account back to its original balance pursuant to the terms of the Evergreen Retainer and the Threshold Balance. If you do not pay in full and on time, the Firm has the right to refuse to provide future legal services and to withdraw as your counsel. In such an event, you waive the right to object to our withdrawal from representation. Upon completion of the work, any unused retainer will be returned to you. Minimum Fee. Our minimum fee is $1,500, intended to operate as follows: (a) the time initially expended on these Matters will be charged against the minimum fee. However, if these Matters are concluded, whether by settlement or by judicial action, in less time than would be required to expend the minimum fee on the basis of time alone, the Firm shall retain the minimum fee and there would be no refund of any part of the minimum fee. An additional retainer may be required as time charges warrant and (b) If our relationship is terminated in less time than would be required to expend the minimum fee on the basis of time alone, without the Matters having been concluded by settlement or judicial action, then the Firm shall not retain the entire minimum fee. Rather, in that event a fair and reasonable fee will be determined in accordance with legally accepted standards and only such portion of the minimum fee as represents such fair and reasonable fee would be retained. The elements of a reasonable fee are set forth in DR 2-106 of the Lawyer’s Code of Professional Responsibility, a copy of which provision will be furnished to you upon request. Certain ancillary services and other items, such as maintaining computer databases and electronic versions of various materials, photocopying, courier or messenger services (including legal process serving), computer database searches, private investigations, and other expenses incurred for the benefit of the Client/s, are billed separately from time charges, based on actual use and at our cost. Travel required outside of the County of Erie is billed at one-half the customary hourly rate. Assignment of Firm Personnel. I will be primarily responsible for these Matters, and when necessary, I will engage the talent and expertise of other attorneys, as well as paralegal staff to handle ministerial and other tasks. Communication by Firm. The Firm will keep you regularly and currently informed of the status of these Matters and will consult with you when appropriate. Client Cooperation. You understand and agree that, in order for us to represent you effectively, it is necessary for you to assist and cooperate with the Firm throughout these Matters. You agree to: (i) remain available to discuss issues as they arise in these Matters; (ii) attend and participate in meetings, preparation sessions, hearings, depositions, court proceedings, and other activities in connection with these Matters; and (iii) provide us with complete and accurate information. For purposes of sending and receiving emails, it is necessary that you utilize an email account that only you can access. If you use an email address that you do not have sole control over, is shared with other FILED: ERIE COUNTY CLERK 12/27/2023 12:55 PM INDEX NO. 816470/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2023 P age |6 PRIVILEGED AND CONFIDENTIAL persons, or was provided to you by your employer, then you risk waiving confidentiality and attorney/client privilege. You should be the only person viewing emails and any attachments we send to you. Your noncooperation will be grounds for the Firm’s withdrawal from representing the Client/s in these Matters, and thus, it is essential that we maintain open communications. Termination of Representation. You may terminate our representation of you in these Matters at any time, subject to a final accounting and the payment of any final fees and expenses. You may terminate our representation at any time by notifying us. Your termination of our services will not affect your responsibility for payment of outstanding statements and accrued fees and expenses incurred before termination or incurred thereafter in connection with an orderly transition of the Matters. If such termination occurs, your papers and property will be returned to you promptly upon receipt of payment for outstanding fees and costs. Our own files pertaining to the Matters will be retained in accordance with the firm’s records management policy and procedures. These firm files include, for example, firm administrative records, time and expense reports, personnel and staffing materials, and credit and accounting records; and internal lawyers’ work product such as drafts, notes, internal memoranda, and legal and factual research, including investigative reports, prepared by or for the internal use of lawyers. We may withdraw from this representation for good cause, on reasonable notice, without your consent. Good cause includes, but is not limited to: (i) your failure to cooperate with us as provided above; (ii) your failure to pay any bill when due or to replenish the Retainer as (and if) provided above; (iii) any fact or circumstance that would render our continuing representation unlawful or unethical; (iv) the Firm discovers that the Client/s has made any misrepresentation in connection with these Matters; and/or (v) the Client/s acts in such a manner that, in the discretion of the Firm, the Firm deems it necessary to terminate the Representation. Our services will terminate, unless otherwise agreed upon in a writing signed by you and the Firm, when there is a final agreement, settlement, decision, or judgment with respect to these Matters. Arbitration of Disputes. Further, we advise that pursuant to Part 137 of the Rules of the Chief Administrator of the Courts, in the event a dispute arises between you and us relating to our fees, you may have the right to arbitration of that dispute. Upon request, we will send you a copy of Part 137. Binding Agreement. This Engagement Agreement represents the entire agreement between you and the Firm. By signing below, you acknowledge that this letter has been carefully reviewed and its contents understood and that you agree to be bound by all of its terms and conditions. Furthermore, you acknowledge that the Firm has made no representations or guarantees to you regarding the outcome of these Matters or the time or cost necessary to resolve these Matters. No change or waiver of any of the provisions of this letter shall be binding on either you or on the Firm unless the change is in writing and signed by both you FILED: ERIE COUNTY CLERK 12/27/2023 12:55 PM INDEX NO. 816470/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2023 P age |7 PRIVILEGED AND CONFIDENTIAL and the Firm. Further this letter constitutes our entire agreement. Retention of Documents. We are required to advise you of your obligation to identify and preserve information potentially relevant to the Matters. The duty to preserve potentially relevant information is broad and courts have become increasingly exacting in applying existing and new standards that require the preservation of both paper documents and electronically-stored information (“ESI”). The obligation applies not only to paper documents, but also to ESI, including but not limited to, e-mail, word processing documents, spreadsheets, databases, calendars, voicemail, Internet usage files and network access information. ESI also includes social media accounts. Some courts have imposed sanctions in cases where a party has failed to comply with these standards. If you have not already done so, a “litigation hold” memorandum should be issued to all employees who have access to relevant paper and ESI specifically describing the types of documents and information that must be preserved and how these materials should be maintained and stored. Please contact me with any questions or concerns about this obligation or if you need assistance in complying with the obligation. Conclusion of Representation; Disposition of Documents. Unless previously terminated, our representation of you will terminate upon our sending you our final statement for services rendered in these Matters and/or written notice advising you that this engagement has concluded. You may thereafter direct us to return, retain, or discard some or all of the documents pertaining to the engagement. If you do not respond to the notice within sixty (60) days, you agree and understand that any materials left with us after the engagement ends will be retained for a period of three (3) years after the conclusion of the matter, after which time they may be destroyed at our discretion unless you notify us in writing that you wish to take possession of them. You should understand that “materials” include paper files as well as information in other mediums of storage including voicemail, email, printer files, copier files, facsimiles, dictation recordings, video files, and other formats. We reserve the right to make, at our expense, certain copies of all documents generated or received by us in the course of our representation. During the course of our representation we will maintain a file of those documents necessary and material to the Matters. Absent unusual circumstances, we will provide you with copies of documents in our file at your request. If you provide us with documents, please make sure you retain the originals or copies. Our expectation is that we will not need to return to you documents you have provided to us. We will maintain our file for three (3) years after the matter has been concluded in accordance with the Firm’s records management policy and procedures. We will maintain all confidentiality of all documents throughout this process. We reserve the right to charge administrative fees and costs associated with researching, retrieving, copying, and delivering the files. Absent specific reason to do so, we will not retain copies of any documents produced to us by the other side, or by subpoena, and will not retain copies of documents you provided to us. After three (3) years the contents of your file will be destroyed, unless you ask us to return the file to you, or your matter fits into one of several exceptions. If you have policies that require us to use a different retention period, or any requirements that FILED: ERIE COUNTY CLERK 12/27/2023 12:55 PM INDEX NO. 816470/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2023 P age |8 PRIVILEGED AND CONFIDENTIAL differ from our policies, please let us know and we will make appropriate arrangements. Otherwise, we will maintain our file as noted above. Thank you for this opportunity to represent you. We look forward to working with you. Respectfully yours, GLEICHENHAUS, MARCHESE & WEISHAAR, P.C. Scott J. Bogucki, Esq. 43 Court Street, Suite 930 Buffalo, New York 14202 Tel. 716/845–6446 Email: sbogucki@gmwlawyers.com BRADDOCK GENERAL CUNNINGHAM, individually, has reviewed, consented, and agreed to, the above terms of engagement of Gleichenhaus, Marchese & Weishaar, P.C., for the purposes and to the extent described in this letter. Signature/Date Braddock Cunningham _______________________________________ Name Braddock Cunningham _________________________, in his/her capacity as a duly authorized representative and on behalf of BROADBAND INFRASTRUCTURE, INC., has reviewed, consented, and agreed to, the above terms of engagement of Gleichenhaus, Marchese & Weishaar, P.C., for the purposes and to the extent described in this letter. Signature/Date Braddock Cunningham _______________________________________ Name/Title FILED: ERIE COUNTY CLERK 12/27/2023 12:55 PM INDEX NO. 816470/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2023 P age |9 PRIVILEGED AND CONFIDENTIAL Braddock Cunningham _________________________, in his/her capacity as a duly authorized representative and on behalf of BROADBAND INFRASTRUCTURE INC., has reviewed, consented, and agreed to, the above terms of engagement of Gleichenhaus, Marchese & Weishaar, P.C., for the purposes and to the extent described in this letter. Signature/Date Braddock Cunningham - President _______________________________________ Name/Title Braddock Cunningham _________________________, in his/her capacity as a duly authorized representative and on behalf of BROADBAND INFRASTRUCTURE, has reviewed, consented, and agreed to, the above terms of engagement of Gleichenhaus, Marchese & Weishaar, P.C., for the purposes and to the extent described in this letter. Signature/Date Braddock Cunningham - President _______________________________________ Name/Title Braddock Cunningham _________________________, in his/her capacity as a duly authorized representative and on behalf of BBI, has reviewed, consented, and agreed to, the above terms of engagement of Gleichenhaus, Marchese & Weishaar, P.C., for the purposes and to the extent described in this letter. 7/21/2022 Signature/Date Braddock Cunningham - President _______________________________________ Name/Title FILED: ERIE COUNTY CLERK 12/27/2023 12:55 PM INDEX NO. 816470/2023 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 12/27/2023 GLEICHENHAUS, MARCHESE & WEISHAAR, PC Billing Policies for Disbursements and Charges Audio and Video Conference Calls. Clients are billed for audio and video conference calls. Clients are not charged for local or long-distance calls or facsimiles made or sent from within the Firm's offices. Computer Research Services. Clients are billed actual charges for on-line computer research done in connection with specific client/matters. Clients are not charged for Bloomberg Law, Lexis, or Westlaw services. Copying. Copying charged to the client includes documents, exhibits, and other papers that are filed with a court or administrative agency; documents produced for the client at its request and/or convenience; and documents produced as may be required by other parties in relation to litigation or transactions. Clients are billed $.20 per page for non-color photocopying and $1.00 per page for color photocopying done at the actual charges to the Firm. The actual charges to the Firm for outside, third-party duplication services used for specific client matters are billed to the client. Documents required for the Firm's use only are not charged to clients. Courier Services. Courier services such as Federal Express are used when the circumstances of specific client matters dictate the need for such service. Clients are billed for the actual charges to the Firm for any such courier service. Electronic Databases. Clients are billed actual charges from the external vendor hosting services we use to store and maintain computer databases and electronic versions of such materials as court filings, transcripts, case dockets and calendars, correspondence, discovery materials, and deposition or trial exhibits. The Firm does not maintain such electronic databases internally. Food Services. When food services are required to enhance the efficient handling of specific client matters, clients are billed the actual cost of the food and/or beverages plus the expense of the food service personnel or service providers who serve the food and/or beverages. It will be the client’s responsibility to apply the deduction limitation under IRS Sec. 274(e)3 for these charges. Messenger Services. Clients are billed for messenger services required for specific client matters at the actual rates charged by outside delivery services or the Firm's out-of-pocket expenses for bus fares, cabs, and similar items when Firm personnel are used. Postage (U.S. Mail). Clients are not charged for postage when the amount on a particular mailing is less than $1.00. Standard rates are billed for all postage over $1.00 and for large mailings done on behalf of the client even when individual item postage is under $1.00 as well as for special postal services, e.g., Express Mail, Special Delivery, and Certified and Registered Mail. Special Services. A client and the Firm may agree that certain special services are required, in connection with a specific matter, such as litigation support, extraordinary office supplies, temporary agency paralegals, project assistants or other staffing, video/audio production services/equipment, off-site location, imaging services, off-hour HVAC and related expenses, and document production services requiring trained personnel and specialized equipment. Before the client is billed for any such services, the client and Firm must agree on the type, scope, and cost of the services. Staff Overtime. Staff overtime costs are billed to clients only when the overtime staff services are for the convenience of the client, rather than the convenience of the Firm. In such circumstances, clients are billed for the Firm's costs of providing the staff overtime, including actual overtime compensation (and a factor for benefits expenses) and necessary meal and transportation costs. Travel. Clients are billed for travel charges (including, for U.S. travel, a $40.00 transaction charge covering a portion of the contracted cost of arranging air travel) incurred by Firm personnel for specific client matters. For domestic travel, we use coach fare only unless the client has authorized first or business class. We expect our lawyers to incur only reasonable meal, lodging, and other travel costs. Other Charges. We prefer that third-party charges (e.g., consultants, court reporters, etc.) incurred on behalf of a client be billed directly to the client by the third party. If this is not possible, such charges are passed through at cost.