EXHIBIT 10.6
MANAGEMENT & ADVISORY AGREEMENT
This Management Agreement ("Agreement") is entered into this 20th day of
June, 1996, ("Effective Date") between Automated Dispatch Systems, Inc., a
Florida corporation ("Client") and SEM, Inc., a Florida corporation ("Advisor").
RECITALS
A. WHEREAS, Advisor desires to sell to Client and Client desires to purchase
from Advisor certain Management & Advisory Services ("Services", as further
defined in Section 4 below);
B. WHEREAS, Advisor and Client desire to set forth herein the terms under
which Advisor will sell and Client will purchase the Services;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and promises contained herein, the sufficiency of which is hereby acknowledged,
the parties hereto intending to be legally bound agree as follows:
1. Recitals. The foregoing recitals are true and correct.
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2. Purchase and Sale of Services. Advisor hereby agrees to provide the
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Services in an efficient and professional manner, and Client hereby agrees
to purchase the Services from Advisor, in accordance with the terms and
conditions contained herein.
3. Term of Agreement. This Agreement shall continue for five (5) years
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following the Effective Date and shall be renewed automatically thereafter
for successive periods of one year each, unless either party hereto
provides the other party with written notice not less than sixty (60) days
prior to the end of the then-current term of its intention not to renew.
Except as otherwise provided in this paragraph, if either party wishes or
purports to terminate this Agreement as a result of a breach of this
Agreement of any sort by the other party, such first party shall first give
the second party written notice setting forth the alleged breach. After
receipt of such written notice, the second party shall have thirty (30)
days to cure such alleged breach. No such termination of this Agreement
shall take place unless the second party fails to cure such breach within
such period.
4. Services. Advisor shall provide to Client advice and management expertise
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as required by Client in Client's performance of its obligations under the
Dispatch Services Agreement.
5. Pricing. Client shall pay to Advisor One Dollar ($1.00) as an advisory fee
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("Advisory Fee") for each trip for which Client receives payment under the
Dispatch Services Agreement. The Advisory Fee shall be increased on each
anniversary of the Effective date by the percentage, if any, by which the
Consumer Price Index increased in the Miami area during the preceding
twelve-month period; provided, however, such increase shall not exceed on a
percentage basis the CPI adjustment paid to Client by CPS under the
Dispatch Services Agreement.
6. Payment Terms. Advisor shall not be required to invoice Client. Client
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shall pay to Advisor the Advisory Fee for each trip for which payment is
received by Client under the Dispatch Services Agreement within two (2)
business days of receipt of payment. A 1.5% penalty shall be imposed on all
payments which are more than thirty (30) days past due.
7. Confidentiality. In connection with the negotiation of this Agreement or
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the provision of services hereunder, the parties hereto have or may obtain
non-public information regarding the business and financial condition or
plans of the other party ("Confidential Information"). Advisor and Client
agree to keep the Confidential Information in strict confidence and shall
not disclose it to any person, firm or corporation, nor use the same for
any purpose other than for fulfilling obligations under this Agreement.
All Confidential Information shall remain the property of the disclosing
party, shall be kept confidential by the receiving party, and shall not be
disclosed to any other person or entity other than officers, employees or
agents of the receiving party who need to know such information in order to
fulfill obligations under this Agreement. Receiving party shall protect
and safeguard the Confidential Information by using the same degree of
care, but no less than a reasonable degree of care, to prevent the
unauthorized use, dissemination or publication of the Confidential
Information as receiving party uses to protect its own confidential or
proprietary information of like nature.
8. Performance Limitations. Notwithstanding any contrary provision contained
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herein, Advisor shall not be liable for damages or delay of the performance
of its duties hereunder due to any circumstance beyond Advisor's reasonable
control, including but not limited to (i) acts of God, acts of any local,
state, federal or foreign government, strikes, riots, storms, fires or
explosions; (ii) action or inaction on part of Client or Client's
employees; and (iii) failure on part of Client to maintain Client's
vehicles, vehicular equipment or communications equipment.
9. Indemnification. Client shall indemnify and hold harmless Advisor from,
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against and in respect to any and all liabilities, damages and claims
against Advisor, including without limitation, reasonable fees and
disbursements of counsel, in connection with
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Advisor's performance under this Agreement, provided, however, that such
claims against Advisor do not arise from (i) any breach of this Agreement
by Advisor; or, (ii) gross negligence solely on the part of Advisor in the
performance of Advisor's obligations hereunder. Advisor shall indemnify and
hold harmless Client from, against and in respect to any and all
liabilities, damages and claims against Client, including without
limitation, reasonable fees and disbursements of counsel, in connection
with any breach of this Agreement by Advisor or gross negligence solely of
Advisor hereunder.
10. Notices. Any notice which is required to be given under this Agreement
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shall be in writing. All written notices shall be sent prepaid registered
or certified airmail, or commercial courier service, return receipt
requested. All such notices shall be deemed to have been given when
received, addressed in the manner indicated below, or at such other
addresses as the parties may from time to time notify each other of:
CLIENT ADVISOR
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Automated Dispatch Systems, Inc. SEM, Inc.
XX 00xx Xxxxxx, Xxxxx 000 1995 N.E. 000 Xxxxxx
Xxxxx, Xxxxxxx 00000 Xxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx Attn:
11. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Florida. Any action or claim
pursuant to this Agreement shall be maintained only in a court of competent
jurisdiction in Dade County, FL. Advisor and Client hereby agree to submit
to jurisdiction in any such court in the event of any such claim or action.
12. Other Agreements. This Agreement replaces and supersedes all other
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agreements, written or oral, between the parties regarding the subject
matter covered herein.
13. Headings. The section names and other headings contained in this Agreement
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are for reference purposes only and shall not affect the meaning or
interpretation of any or all of the provisions of this Agreement.
14. Binding Effect; Assignment. This Agreement shall be binding upon and shall
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inure to the benefit of Advisor's and Client's allowed successors and
assigns. Client reserves the right to approve assignment by Advisor of
this Agreement unless assignee is owned by or under common ownership with
Advisor.
15. Entire Agreement. This Agreement, together with the attached exhibits,
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constitutes the entire agreement between the parties with respect to its
subject matter and supersedes all prior agreements, understandings,
negotiations and discussions, both written and oral, between the parties
with respect to such subject matter. Client agrees that any terms and
conditions contained in any Client purchase order or other ordering
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document shall have no binding effect on Advisor and will not modify this
Agreement in any way.
16. Amendment. This Agreement may not be amended or modified in any way except
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by written instrument executed by all of the parties.
17. Non-waiver. The waiver of any breach or commitment under this Agreement by
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either Client or Advisor shall not constitute the waiver of any other
breach or commitment pursuant to this Agreement.
18. Severability. If any provision of this Agreement is held invalid by law,
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rule, order or regulation of any relevant government, or by the final
determination of a court of last resort, such invalidity shall not affect
(a) the other provisions of this Agreement; (b) the application of such
provision to any other circumstance other than that with respect to which
this Agreement was found to be unenforceable; or (c) the validity or
enforceability of this Agreement as a whole.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
AUTOMATED DISPATCH SYSTEMS, INC.
By: Attest:
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Xxxx Xxxxxxxx, its President
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SEM, INC.
By: Attest:
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Xxxxxx Xxxxxx, its President
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