Exhibit 10.6
TERMINATION AND SETTLEMENT AGREEMENT
This Termination and Settlement Agreement (the "Agreement") is entered into by
and among Prestige Travel Services II, Inc. and Affinity International Travel
Systems, Inc. (collectively "Affinity"), Travel Systems International; Inc.
("TSF") and Xxxxxxx X. Xxxxxxx ("Xxxxxxx").
RECITALS
A. Effective the 5th day of April, 1999, Affinity entered into a
management agreement (the "Management Agreement") with TSI.
B. Effective the 5th day of April, 1999, Affinity entered into an
employment agreement (the "Employment Agreement") with Xxxxxxx X. Xxxxxxx
("Xxxxxxx").
C. TSI is a Florida corporation owned by Xxxxxxx as to which Affinity
acquired an option to purchase as part of the Management Agreement.
D. A feature of the understanding among the parties includes an agreement
to account, each to the other, for income and expenses, which predated and
postdated the effective date of the Management Agreement. For ease of reference
and for purposes of this Agreement only TSI shall be referred to as "Old TSI"
for the period of time predating April 5, 1999 and post-dating August 29, 1999
and as "New TSI" for the period including April 5, 1999 through August 29, 1999.
E. The parties to this Agreement (collectively, the "Parties") have agreed
to amicably resolve their differences and to settle all existing disputes among
them, or have otherwise joined in this Agreement, on the terms and conditions
set forth below.
NOW, THEREFORE, for the representations, convenants and promises contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the Parties stipulate and agree as
follows:
1. RECITALS AND EXHIBITS. The Parties acknowledge that the facts set forth
in the Recitals are true, correct and are an integral part of this Agreement.
2. TERMINATION. The parties stipulate and agree that the Management
Agreement and the Employment Agreement are terminated and of no further force
and effect. All rights and obligations existing thereunder are superseded by
this Agreement and any rights now existing by and among the parties are
described herein.
3. ACCOUNTING. The parties agree to appoint Xxxxx Xxxxx to serve as their
mutual accountant for purposes of this agreement. Xx. Xxxxx shall be charged
with the responsibility of conducting an accounting of the income and expenses
of TSI. The purpose of the accounting is to properly allocate income and
expenses attributable to Old TSI and to New TSI such that on the completion of
her work a determination can be made of any sums which
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may be owing by one party to the other. The operative understanding is that
Xxxxxxx and TSI are entitled to receive the income generated by Old TSI and are
responsible for the expenses incurred by Xxxxxxx and Old TSI--Affinity is
entitled to the income generated by the activities of Xxxxxxx and New TSI and is
responsible for the expenses incurred in the ordinary course of business by New
TSI. The Accounting shall be paid for by Affinity and shall be conducted in
accordance with generally accepted accounting principles, except as expressly
modified by the parties. The Accounting shall produce a net number including the
following components:
A. the balance of the inter company account, representing income
and expenses received or paid by one company on behalf of the
other company as of the most recent financial statement
(expected to be received during the week of September 13,
1999); and
B. a credit to Xxxxxxx and Old TSI of $9,000; and
C. a credit to Xxxxxxx and Old TSI for 20% of the gross income -
after an accrual of $7,000 for August independent agent
commissions - earned by New TSI (representing the 80/20 split
contemplated by the Management Agreement); and
D. a credit to Xxxxxxx of $500 (credit for start-up expenses)
Upon the completion of the Accounting, the party shown as owing funds shall pay
them to the party shown as entitled to funds within 5 days from the rendition of
the Accounting. The Accounting shall be incontestable, binding and absolutely
final so long as it includes each of the components described in Section 2 A-D
of this Agreement. Any party shall be entitled to consult with Xx. Xxxxx and
provide any input deemed important; all parties shall fully cooperate with the
conduct of the Accounting. The parties to this Agreement also agree to indemnify
Xx. Xxxxx from any claims which may arise as a result of her undertaking and
shall execute such further documents as may be necessary to reflect this
commitment to Xx. Xxxxx as she may require. Regarding any income received which
post-dates the Accounting, Xxxxxxx may retain all income pertaining to Old TSI;
income belonging to New TSI will be deposited directly into the "SunStyle"
account (deposit slips will be supplied); income received which relates to both
Old TSI and New TSI will be deposited into the recipient's account and the
portion owing to the other party shall be remitted within 3 business days.
4. FORGIVENESS OF THE $10,000 NOTE. Incident to the dealings among the
parties Affinity made a loan to Xxxxxxx in the amount of $10,000. The Note
evidencing that indebtedness including all unpaid principal and accrued
interest, if any, is hereby forgiven.
5. MOVING EXPENSES TRANSITION. Affinity shall pay certain moving expenses
of TSI to assist with the move of TSI to a location within the City of St.
Petersburg. Affinity shall bear the expense of moving the equipment known as the
"Amedeus" equipment and the TSI filing cabinets and furnishings located in the
offices of Affinity. These expenses will be paid directly by Affinity. Affinity
shall have no other responsibility for the payment of transition expenses
relating to the separation of TSI from the facilities of Affinity. TSI shall be
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entitled to continue to operate out of the Affinity facilities until such time
as the "Amedeus" move. Xxxxxxx and TSI shall make their best efforts to expedite
the "Amadeus" move. The parties reasonably anticipate that such move will occur
on or before October 5, 1999. The entitlement to use the Affinity spaces, free
of rent, during the transition period is contingent upon the non-interference in
the business of Affinity and the strict adherence to the terms of this Agreement
by TSI and Xxxxxxx.
6. MUTUAL RELEASES. Affinity hereby forever waives, discharges,
terminates, extinguishes, and otherwise releases all Claims (as hereinafter
defined) that it now has, has had or may hereafter have against TSI, Xxxxxxx and
their and its respective officers, directors, shareholders, employees,
attorneys, agents, contractors, successors or assigns, past or present, or any
of them
TSI and Xxxxxxx hereby forever waive, discharge, terminate,
extinguish, and otherwise release all Claims (as hereinafter defined) that they
or any of them now have, have had or may hereafter have against Affinity and all
of its subsidiaries and affiliates and their and its respective officers,
directors, shareholders, employees, attorneys, agents, contractors, successor or
assigns, past or present, or any of them.
The term "Claims" as used above includes any promises,
representations, causes of action, rights and other claims and defenses of any
kind (in the broadest sense of those words), whether presently known or unknown,
whether matured or not yet ripe, and whether discovered or undiscovered prior to
the execution hereof, in law or in equity, arising in whole or in part out of or
otherwise relating to anything that has or has not occurred, in whole or in
part, prior to the effective date of this Mutual Release, including, but not
limited to:
(A) all Claims made or which could have been made to date by or
against the parties to this Agreement.
(B) all Claims made or which could have been made to date by or
against the parties to this Agreement arising from any default
or termination letter which predates the effective date of
this Agreement;
(C) all Claims arising out of or relating to any breach of the
Management Agreement, if any;
(D) all Claims arising out of or relating to any breach of the
Management Agreement, if any;
(E) all libel and slander or other tort Claims arising out of any
statements made by or on behalf concerning any or all of the
parties to this Agreement; and
(F) all Claims arising from any and all alleged violations of any
federal, state or local statutes, ordinances, rules
administrative orders, or other forms of regulations, as well
as any other claims based on constitutional, statutory, common
law or regulatory grounds; and
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(G) all Claims, any portion or element of which began to accrue
prior to the date of this Agreement, even though other
portions or elements of which do not occur or accrue until
after the date of this Agreement;
The term "Claims," however, shall not include and specifically excludes (1) any
and all promises, agreements, representations, warranties contained in this
Agreement, (2) any and all causes, causes of action, rights and other claims and
defenses of any kind arising out of the future performance or non-performance of
the terms and conditions of this Agreement.
7. MISCELLANEOUS.
(A) The parties have negotiated the terms and provisions of this
Agreement, have consulted with such legal, tax, accounting,
financial and other advisors retained by them of their
personal choice as each considered necessary or advisable with
respect to this Agreement and the transactions contemplated
hereby, and this Agreement shall not be construed against any
party as the drafter hereof.
(B) This Agreement shall be governed, construed and enforced in
accordance with the internal laws of the State of Florida
without reference to its laws relating to the conflict of
laws. Each party irrevocably consents to personal jurisdiction
over that party by the courts of the State of Florida and the
court in the Pending Action for all purposes of this
Agreement.
(C) Time if of the essence under this Agreement.
(D) Each of the Parties shall execute and deliver such other
documents, certificates, agreements and other writings and
shall take such other actions to as may be reasonably
necessary to implement expeditiously or to consummate of this
Agreement.
(E) The Parties represent and warrant that each is duly
incorporated and in good standing in its state of
incorporation; that the signatories to this Agreement are duly
authorized to execute it; and that no undertakings, promises,
covenants or agreements of each party to this Agreement
constitute breach of its Articles of Incorporation, Bylaws or
covenants and agreements with any other party.
(F) This Agreement contains the complete agreement of the Parties
concerning the settlement of their disputes and supersedes all
prior agreements, promises, representations and warranties
that may have been made between the parties concerning that
subject, whether in connection with the negotiation of this
Agreement or otherwise.
(G) Xxxxxxx affirmatively represents and warrants that he and TSI
will post the requisite bond with ARC and will hold Affinity
harmless from any
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claims which ARC may assert relating to business conducted by
TSI after August 29, 1999.
THE PARTIES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY
WAIVE FOR THEMSELVES AND THEIR
RESPECTIVE SUCCESSORS AND
ASSIGNS, ANY AND ALL RIGHTS THAT
THEY OR ANY OF THEM MIGHT
OTHERWISE HAVE HAD TO HAVE ANY
OF THE ISSUES (CLAIMS OR
DEFENSES) IN ANY ACTION ARISING
FROM OR RELATING TO THIS
AGREEMENT TRIED TO A JURY. THIS
PROVISION IS A MATERIAL
INDUCEMENT TO THE ENTRY OF THIS
AGREEMENT.
(THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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PRESTIGE TRAVEL SERVICES II, INC.
By: /s/ X.X. Xxxxxxxx
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Its: Director
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AFFINITY INTERNATIONAL TRAVEL
SYSTEMS, INC.
By: /s/ Xxxxxx XxXxxxxxxx
---------------------------------
Its: Chief Financial Officer
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TRAVEL SERVICES INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Its: President
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XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
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