TERMINATION AGREEMENT
This Termination Agreement ("Agreement") is made and entered into as of the
31st day of January, 1997 by and among Amerihost Properties, Inc. (the
"Company"), Urban 2000 Corp., a Delaware corporation ("Urban") and H. Andrew
Torchia ("Torchia").
WHEREAS, on January 1, 1994, the Company and Urban entered into a
Consulting Agreement (the "Consulting Agreement"), pursuant to which Urban has
provided consulting services to the Company;
WHEREAS, Torchia is a principal and a controlling shareholder of Urban;
WHEREAS, Torchia is currently the Chairman of the Company's Board of
Directors and has served as a director and officer of various subsidiaries of
the Company;
WHEREAS, effective as of the date hereof, Urban and the Company each desire
to terminate the Consulting Agreement and settle fully and finally all matters
relating thereto;
WHEREAS, Torchia and the Company desire that Torchia shall continue to
serve as a director of the Company and as the Chairman of the Company's Board of
Directors, and as a director and Chairman of the Board of Directors of various
subsidiaries of the Company, subject to the terms and conditions set forth
herein;
NOW THEREFORE, in consideration of the premises and mutual covenants and
agreements of the parties herein contained, the parties agree as follows:
1. Payments. In connection with the termination of the Consulting
Agreement and any agreements and understandings relating to Torchia's employment
by, and service as a director to, the subsidiaries of the Company, and in lieu
of all other amounts to which Urban or Torchia may be entitled, the Company
hereby agrees to make the following payments to Urban on the terms provided
herein:
(a) the Company shall pay to Urban an amount equal to $1,147,266, by
wire transfer to an account designated by Urban;
(b) the Company shall pay to Urban an amount equal to $125,350,
representing commissions owed by the Company to Urban with respect to
transactions closed and funded prior to the date hereof;
(c) in the event that the currently pending Whitewater, Wisconsin
transaction ("Whitewater") is signed and funded by Benenson, the Company's
joint venture partner, on or before April 29, 1997, the Company will pay to
Urban an amount equal to $90,575, representing Urban's commissions and a
residual buyout relating thereto; provided, however, that in the event that
Whitewater is not closed and funded by Benenson on or before April 29,
1997, no commission or additional payment will be due to Urban; provided,
further, however, that if the Company consummates Whitewater as a wholly-
owned hotel or as a joint venture with a different joint partner identified
by the Company, in which case the Company will pay to Urban an amount equal
to $25,000, representing Urban's commissions relating thereto (there being
no residual buyout payment due);
(d) the amount, if any, to be paid pursuant to Section 1(c) shall be
paid to Urban by wire transfer to Urban's account as designated under
Section 1(a) hereof or to such other account as otherwise directed by
Torchia within ten (10) days following the closing of the applicable
transaction.
2. Termination of Consulting Agreement. Urban and the Company hereby
agree that, as of the date hereof, the Consulting Agreement, and any other
agreements and understandings relating to Urban's provisions of consulting or
other services to the Company, or the Company's providing assets or services to
Urban, shall be and hereby are terminated.
3. Return of Company Property. As soon as practicable on or
following the date hereof, Urban shall return to the Company all items belonging
to the Company, including, without limitation, all records and other documents
obtained by it or entrusted to it during the course of the Consulting Agreement.
4. Torchia's Position With the Company. Provided that Torchia (i)
continues to beneficially own at least 50% of the shares of the Company's stock
which he presently owns, either directly or indirectly, and (ii) does not become
employed by, serve as an officer or director of, provide assets or services to,
or own a 5% or greater interest in, any business or company that is in direct
conflict with the business of the Company, the intent of the parties is that
Torchia shall be nominated for election to the Board of Directors at the
Company's annual stockholder meetings in 1997, 1998 and 1999, and to cause
Torchia to maintain his position as the Chairman of the Company's Board of
Directors for a minimum of one year from the date hereof. The Company shall
continue to provide to Torchia health, disability and life insurance on the
basis provided to other officers of the Company for as long as Torchia is the
Chairman of the Company's Board of Directors.
5. Confidential Information.
(a) Urban hereby acknowledges that during the term of the Consulting
Agreement and through Urban's relationships with the Company and its
subsidiaries and affiliates, Urban has had access to certain confidential
information, including, but not limited to, know-how, processes,
technology, trade secrets, and the like concerning the business, customers,
suppliers and relationships of the Company which are not generally known
outside the Company ("Confidential Information"). Confidential Information
shall not include any of the above information which has become publicly
known other than through a breach of this Agreement or through a breach of
another party's obligation of confidentiality to the Company.
(b) Urban further acknowledges that the Confidential Information is
of great value to the Company and if misused by Urban or allowed to be used
by Urban for or on behalf of a competitor of the Company would cause the
Company irreparable loss and damage, the extent of which will be
substantial but may not be readily capable of determination.
(c) Accordingly, Urban agrees to not, without prior written consent
of the Company, directly or indirectly, use, divulge or make accessible to
any person any Confidential Information at any time, except as may be
required by law or regulation, or in response to a request or demand of a
governmental agency or self-regulatory organization.
6. Release. Each of Urban and Torchia, on behalf of itself or
himself and any and all of his heirs, executors or administrators, and any and
all of its or his agents, representatives and assigns on one hand, and the
Company, on behalf of itself and any and all of its agents, representatives and
assigns on the other, hereby voluntarily and knowingly forever releases, waives
and discharges the other, its successors, assigns, affiliates, directors,
officers, employees, agents and representatives, from any and all claims,
controversies, actions, causes of action, demands, debts, liens, contracts,
agreements, promises, representations, torts, damages, costs, attorney's fees,
monies due or accounts, obligations, judgments or liabilities of any nature
whatsoever in law or equity, whether or not now or heretofore known, suspected
or claimed, arising out of or otherwise related to the Consulting Agreement or
Torchia's employment by the Company or subsidiaries or affiliates of the
Company, if any, or the termination thereof, except for (i) claims arising out
of Torchia's status as a shareholder of the Company after the date of this
Agreement and (ii) the obligations set forth in this Agreement. Each of Urban
and Torchia, on the one hand, and the Company, on the other, further agrees not
to voluntarily aid or abet any individual asserting a claim against the other or
threatening or instituting a charge or lawsuit against the other with respect to
such subject matter. Each party hereto acknowledges and agrees that this
release is an essential and material term of the Agreement and that without such
release no agreement would have been reached by the parties hereto.
7. Acknowledgment. Each of Urban and Torchia acknowledges that it or
he has carefully read this Agreement and fully understands all of the provisions
contained herein, and that it or he knowingly, voluntarily, and willfully enters
into this Agreement.
8. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission or,
if mailed, five days after the date of deposit in the United States mail, as
follows:
(i) if to the Company, to:
President
Amerihost Properties, Inc.
2400 East Devon Avenue
Suite 280
Des Plaines, IL 60018
with a copy to:
Helen R. Friedli, P.C.
McDermott, Will & Emery
227 W. Monroe Street
Chicago, IL 60606
(ii) if to Urban or Torchia to:
Urban 2000 Corp.
2400 East Devon Avenue
Suite 204
Des Plaines, IL 60018
Any party may change its address for notice hereunder by notice to the
other party hereto.
9. Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, written or oral, with respect thereto.
10. Amendments and Waivers. This Agreement may be amended,
superseded, cancelled or renewed, and the terms and conditions hereof may be
waived, only by a written instrument signed by all of the parties or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof. Nor shall any waiver on the part of any party of any such
right, power or privilege hereunder, nor any single or partial exercise of any
right, power or privilege hereunder, preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
11. Governing Law. This Agreement shall be governed and construed in
accordance with the internal laws of the State of Illinois applicable to
agreements made and to be performed entirely within such State.
12. Successors. This Agreement shall not be assignable by any party
without the prior written consent of the other parties otherwise than by will or
the laws of descent and distribution. This Agreement shall inure to the benefit
of and be binding upon Torchia's legal representatives and Urban's successors
and assigns. This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
13. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
14. Headings. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
* * * * * * * * * * * * * * *
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TORCHIA URBAN 2000 CORP.
By:
H. Andrew Torchia H. Andrew Torchia
President
AMERIHOST PROPERTIES, INC.
By:
Michael P. Holtz
President and Chief Executive Officer