EXHIBIT 10.13
ENDORSEMENT AGREEMENT
This Agreement is made as of the 20th day of March 2002, by and
between Holiday RV Superstores, Inc., d/b/a Recreation USA (the "Company"), a
Delaware corporation having its principal office at 000 Xxxx Xxxxxxx Xxxxxxxxx,
Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000, and Affinity Group, Inc. ("AGI"), a
Delaware corporation having its principal office located at 0000 Xxxxx Xxx Xxx
Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (each a "Party" and collectively the
"Parties").
WHEREAS, the Company is a multi-state chain of dealerships
engaged in the retail sales of service of recreational vehicles (the
"Business"); and
WHEREAS, AGI, either directly or through subsidiaries, operates
the "Good Xxx" club for recreational vehicle enthusiasts; and
WHEREAS, the Company has determined that it would be beneficial
sell vehicles with the Good Xxx endorsement; and
WHEREAS, the Company has raised capital that it represents will
be sufficient to fund its operations as projected for at least the next year and
AGI is willing to make the Good Xxx name available as an endorsement for certain
vehicles sold by the Company on the terms and for the consideration set forth
herein.
NOW THEREFORE, in consideration of the foregoing and the promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as follows:
1. License of Good Xxx Name and Logo.
A. AGI hereby grants a non-exclusive license (the "License") to
the Company and its operating subsidiaries now or hereafter existing to use the
Good Xxx name and logo, including trademarks, trade names, or service marks as
designated by AGI (the "Trademarks"), in connection with the sale of such new
and used vehicles by the Company that have satisfied such criteria and standards
as are established from time to time by AGI (the "Approved Use"). AGI warrants
that it has the right and ability to grant the License to the Company to use the
Trademarks for the Approved Use in accordance with the terms of this Agreement
and, provided that the Company uses the Trademarks for the Approved Use in
accordance with the terms of this Agreement, such grant will not infringe upon
the rights of any other party. If the Company promptly notifies AGI in writing
of a third party claim against the Company alleging that the Company's use of
the Trademarks infringes a United States registered trademark, and if such claim
of infringement is not caused in whole or in part by the Company having used the
Trademarks other than for the Approved Use or other than strictly in the manner
approved by AGI in accordance with the terms of this
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Xxxxxxxxx, XXX will defend such claim at its expense and will indemnify the
Company, its agents and representatives, for all losses, claims, charges, costs
and expenses incurred by the Company as a result of such claim. The Company
hereby agrees to reimburse and indemnify and hold AGI harmless from and against
all losses, claims, charges, costs and expenses (including reasonable attorneys'
fees) incurred by AGI as a result of any claim involving or arising in
connection with any use other than an Approved Use or a use otherwise approved
by AGI in accordance with the terms of this Agreement.
B. In order to protect the good will of AGI and the Good Xxx
club, AGI retains the right to review and approve in advance and in its sole
discretion, all uses of the Trademarks and the Good Xxx name and logo.
Therefore, the Company shall give AGI at least ten business days prior written
notice and description of intended use by the Company of the Trademark and the
Good Xxx name and logo, and the Company's use of the Trademarks and the Good Xxx
name and logo is subject to approval of AGI.
C. The Company agrees that its use of the Trademarks and the Good
Xxx name and logo is restricted to the Approved Use, and the Company shall not
use the Trademarks or the Good Xxx name or logo for any other purpose. In
connection with the Approved Use, the Company shall not use the Trademarks or
the Good Xxx name or logo in any manner that is detrimental to AGI, the Good Xxx
Club or any of their affiliates or any of their respective goodwill or business.
Upon the termination of this Agreement, whether by expiration of its term
pursuant to Paragraph 6A or otherwise, the Company shall cease all uses of the
Trademarks and the Good Xxx logo and name in any fashion.
2. Endorsement. Subject to the Terms of Section 7 hereof, AGI hereby
grants the Company the right to hold the Business out as having the License (the
"Endorsement").
3. Term and Termination.
A. Unless otherwise provided for in this Agreement, the term of
this Agreement shall be three years, commencing on the date of this Agreement
and expiring on the third anniversary date of this Agreement (the "Termination
Date"). In the event that the Company desires to terminate the Agreement prior
to the Termination Date, it shall provide AGI with at least 60 days prior
written notice of its intention to terminate this Agreement and this Agreement
shall so terminate following the expiration of this 60-day period, without any
further responsibility by either Party except as provided in Section 5.
B. Either Party may terminate this Agreement at any time in the
event of a material breach by the other Party which remains uncured after thirty
days written notice thereof.
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C. Either Party may terminate this Agreement immediately
following written notice to the other Party if the other Party:
(i) ceases to do business in the normal course;
suffers the entry of an order for relief declaring such Party
insolvent or bankrupt;
(ii) is the subject of any proceeding related to
its liquidation or insolvency (whether voluntary or involuntary)
which is not dismissed within ninety calendar days;
(iii) makes an assignment for the benefit of
creditors.
D. Notwithstanding any termination of this Agreement for any
reason, AGI has earned and shall be entitled to retain all royalties paid prior
to termination and, in addition AGI shall be entitled to payment from the
Company of all compensation and unreimbursed expenses, if any, outstanding as of
the date of termination.
4. Royalties. As consideration of Endorsement, concurrently with the
execution of this Agreement, the Company shall pay to AGI a fee in the amount of
$1,500,000. This fee shall be fully earned by AGI upon the receipt thereof and
shall not be refundable for any reason. As consideration for the License, the
Company shall pay to AGI such fees as may be established from time to time by
mutual agreement of the Company and AGI.
5. Marketing of Products. AGI and the Company agree to develop and
implement a program for marketing certain products and services offered by AGI
through the Good Xxx program, including, without limitation, the emergency road
service program and the extended warranty program offered through Good Xxx. Such
marketing program will be on terms acceptable to AGI and the Company and shall
be subject to standards and procedures designated by AGI. The terms of the
marketing program will be set forth in a marketing agreement between AGI and the
Company. The marketing agreement will provide, among other things, the terms
pursuant to which the Company shall make "Fulfillment Deposits" for warranty
products sold as a part of the marketing program.
6. Relationship. This Agreement shall not create a partnership or a
joint venture between AGI and the Company, and neither party hereto shall have
any authority to act for or represent the other party hereto or bind it to any
agreements or obligations.
7. Public Disclosure Requirement. The Company may cause the release of a
public announcement of the Endorsement which sets forth, in pertinent part, a
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description of this Agreement, including without limitation, the name of AGI and
the nature of the License. At least three business days prior to the
dissemination of any such public announcement or filing containing the
above-required description, the Company shall submit to AGI for its review and
comment the proposed public announcement or description. AGI shall thereafter
have three business days within which to submit its editions or amendments to
the public announcement and/or description for inclusion therein, and the
Company shall in its reasonable judgment and subject to the advice of its
counsel attempt to incorporate such editions and amendments in the final version
disseminated by the Company.
In the event of a breach of this Agreement by the Company, the
Endorsement may be withdrawn by AGI in its sole discretion and this Agreement
terminated pursuant to the terms of Section 3B. In the event of such withdrawal,
the Company agrees forthwith to take such action as AGI may request to publicly
evidence that the Endorsement has been withdrawn and the Company agrees not to
hold the Business out as having the Endorsement.
8. Notices. Any notices hereunder shall be sent to the Company and AGI
at their respective address above set forth. Any notice shall be given by
registered or certified mail, postage prepaid, and shall be deemed to have been
given when deposited in the United States mail. Either party may designate any
other address to which notice shall be given, by giving written notice to the
other of such address in the manner herein provided.
9. Entire Agreement. This Agreement contains the entire agreement and
understanding between the Parties with respect to its subject matter and
supersedes all prior discussion, agreements and understandings between them with
respect thereto. This Agreement may not be modified except in a writing signed
by the Parties.
10. Governing Law. This Agreement has been made in the State of
California and shall be governed by and construed in accordance with the laws
thereof without regard to principles of conflicts of laws.
11. No Assignment. Neither this Agreement nor the rights of either Party
hereunder shall be assigned by either Party without the prior written consent of
the other Party.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13. Non-Compliance. If any provision of this Agreement conflicts with
any law, rule or regulation of any federal, state or self-regulatory
organization, or any other governmental authority having jurisdiction over the
activities or services described
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herein, then in that event, the Company and AGI shall amend this Agreement to
bring any affected provision into compliance with such regulations.
14. No Third-Party Beneficiaries. Both Parties intent that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person or entity other than the Parties hereto.
15. No Party Deemed Drafter. Both Parties agree that they have each
materially and fully participated in the negotiation and drafting of this
Agreement and, if this Agreement ever should be the subject of interpretation by
a court or arbitrator, it shall not be construed or interpreted against either
Party for the reason that it was drafted by only one Party.
16. 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. Whenever the context so requires or permits, all references to the
masculine herein shall include the feminine and neuter, all references to the
neuter herein shall include the masculine and feminine, all references to the
plural shall include the singular and all references to the singular shall
include the plural.
17. Attorneys' Fees. If legal action shall be necessary to enforce any
of the provisions of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees and costs incurred thereby.
18. Further Assurances. At any time and from time to time, both Parties
agree, without further consideration, to take such actions and to execute and
deliver such documents as may be reasonably necessary to effectuate the purposes
of this Agreement.
19. No Implied Waivers. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by 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 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed the day and year first above written.
Affinity Group, Inc.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Vice President
Holiday RV Superstores, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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