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EXHIBIT 10.19
[RCI LOGO]
RESORT AFFILIATION AND OWNERS ASSOCIATION AGREEMENT
This RESORT AFFILIATION AND OWNERS ASSOCIATION AGREEMENT ("Agreement")
is made and entered into at Indianapolis, Indiana, by and between RESORT
CONDOMINIUMS INTERNATIONAL, INC., an Indiana corporation having offices and its
principal place of business at Xxx XXX Xxxxx, 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxx, X.X.X. ("RCI"), and ASCENSION RESORTS, LTD., a Texas
limited partnership, having its principal place of business at 0000 Xxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000, ("Affiliate"), and HILL COUNTRY RESORT
CONDOSHARE CLUB, an owners association comprised of the owners of Timeshare
Interests at the Resort, having its principal place of business at 0000
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, ("Association").
RECITALS
A. RCI makes available the RCI Exchange Program to individuals who purchase or
acquire Timeshare Interests in RCI Affiliated Resorts.
B. Affiliate has developed Timeshare Interests at the resort project(s)
described as follows: Name, location and street address of each Resort project
affiliated hereby:
(use additional sheets if necessary)
HILL COUNTRY RESORT
Highway 000 Xxxxxxxx
Xxxxxx Xxxx, Xxxxx 00000
C. Affiliate and Association have submitted to RCI an Application for
Affiliation, a copy of which is incorporated by reference herein in its
entirety, and desire the Resort to become an RCI Affiliated Resort, and for
Affiliate and Association to offer to Purchasers the opportunity to become RCI
Members and to be eligible to participate in the RCI Exchange Program.
D. RCI desires the Resort to become an RCI Affiliated Resort and for Affiliate
to perform services and duties associated with the RCI Exchange Program in
accordance with the provisions of this Agreement until Affiliate transfers its
management responsibilities to Association and thereafter, for Association to
perform or provide for such services and duties.
NOW THEREFORE, in consideration of the mutual covenants and obligations
contained in this Agreement, the parties hereby agree as follows:
ARTICLE 1 - DEFINITIONS
For the purposes of this Agreement, the terms listed below shall,
unless the context otherwise requires, bear the following meanings:
1.1 APPLICATION FOR AFFILIATION: The Affiliate's and Association's
Application for Resort Affiliation, including any attachments thereto, which is
required to be submitted by Affiliate or Association to RCI in connection with
this Agreement.
1.2 CONFIRMED EXCHANGE: RCI's written or oral notification to the Resort
and RCI Member or Exchange Guest that an exchange has been confirmed and that
accommodations at the Resort or another resort have been reserved for use by
the RCI Member or Exchange Guest.
1.3 ENROLLMENT APPLICATION: The form of application from time to time
prescribed by RCI for the enrollment of Purchasers in the RCI Exchange Program.
1.4 EXCHANGE GUEST(S): Person(s) who have received a Confirmed Exchange
to the Resort from RCI.
1.5 MARKS: Those trademarks set forth below, or other trademarks as may be
included and licensed by RCI to Affiliate and/or Association from time to time:
RCI
RESORT CONDOMINIUMS INTERNATIONAL
ENDLESS VACATION
SPACEBANK
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1.6 PRESALE: That status where the Resort or a Unit at the Resort is under
construction, renovation or refurbishment and is considered by RCI to be not
ready for occupancy by an Exchange Guest(s).
1.7 PROSPECTIVE PURCHASER: Prospective purchasers of a Timeshare Interest
or other interest at the Resort or any other RCI Affiliated Resort.
1.8 PURCHASERS: Persons who purchase Timeshare Interests in the Resort,
including persons who are already RCI Members at time of purchase.
1.9 RCI AFFILIATED RESORTS: Resorts subject to resort affiliation
agreements with RCI, including those resorts described in Recital B.
1.10 RCI EXCHANGE PROGRAM: RCI's program of facilitating the exchange of
Timeshare Interests.
1.11 RCI PROCEDURES MANUAL: Any manual(s) of policies and/or procedures for
affiliates and Associations as published and amended by RCI from time to time.
1.12 RCI SUBSCRIBING MEMBERS OR RCI MEMBERS: Purchasers whose Enrollment
Applications are accepted by RCI and who comply with the Terms and Conditions
of RCI Membership.
1.13 RCI SUBSCRIPTION FEE: The annual fee from time to time payable by RCI
Members in respect of RCI's directory, magazine(s) or other publications and
such other benefits incident to the subscription.
1.14 RCI TERMS AND CONDITIONS: Those terms and conditions of RCI membership
contained in RCI's Endless Vacation Special Resort Edition magazine as amended
from time to time by RCI in its discretion.
1.15 RESELLERS: Any brokers, marketers, marketing companies or management
companies engaged by Affiliate or Association.
1.16 RESORT: The resort project(s) or other lodging or vacation
accommodation(s): (1) described in Recital B and (2) all subsequent buildings
or phases of the resort project(s) or other lodging or vacation
accommodation(s) which meet RCI standards.
1.17 TIMESHARE INTERESTS: Possessory, occupancy or usage rights in
timeshare resorts or other lodging or vacation accommodation(s), whole-owner
condominiums or similar vacation ownership plans.
1.18 UNIT: A unit of accommodation of moveable or immovable property
designed for separate occupancy in connection with the use of a Timeshare
Interest.
ARTICLE 2 - RCI'S DUTIES AND OBLIGATIONS
2.1 PROVIDE EXCHANGE PROGRAM. RCI shall make the RCI Exchange Program
available to RCI Subscribing Members and perform its functions with respect to
the RCI Exchange Program in accordance with its obligations under this
Agreement, the RCI Terms and Conditions of Membership and the RCI Procedures
Manual.
2.2 PROCESS ENROLLMENT APPLICATIONS. RCI shall process, promptly and
fairly, Enrollment Applications and will notify Affiliate or Association if RCI
rejects an Enrollment Application.
2.3 FEES. If an Enrollment Application is rejected by RCI or is cancelled
by the Purchaser as a result of the Purchaser's cancellation or recision of a
contract to purchase a Timeshare Interest, RCI will refund fees previously
remitted to RCI which correspond to such rejected or cancelled Enrollment
Application in accordance with the procedures set forth in the RCI Procedures
Manual.
ARTICLE 3 - AFFILIATE'S AND ASSOCIATION'S OBLIGATIONS
3.1 ENROLLMENT APPLICATION AND FEES. During the term of this Agreement and
any renewal terms, Affiliate and Association shall on a weekly basis and no
later than thirty (30) days after a Purchaser's date of purchase:
3.1.1 submit to RCI a fully completed Enrollment Application for each
Purchaser;
3.1.2 pay to RCI in a form acceptable to RCI and without setoff or
deduction, a sum equal to the number of Purchasers since the
last payment was made multiplied by the applicable fee(s)
required for each Purchaser; and
3.1.3 submit a sales report in a form prescribed by RCI.
3.2 PROMOTION OF EXCHANGE PROGRAM. Affiliate and Association shall in a
manner that complies with the terms of this Agreement and the RCI Procedures
Manual, promote RCI and the RCI Exchange Program to Purchasers and Prospective
Purchasers. Such efforts shall include but not be limited to:
3.2.1 distributing or arranging for the distribution of the Endless
Vacation Special Resort Edition magazine to all Purchasers at
the Resort;
3.2.2 making the Endless Vacation Special Resort Edition magazine
available to all Prospective Purchasers in the Resort; and
3.2.3 encouraging continued membership in the RCI Exchange Program.
3.3 MINIMUM PERFORMANCE REQUIREMENT. Affiliate and Association acknowledge
that if Affiliate's or Association's annual Enrollment Applications do not
exceed FIFTY (50), or, in the case of an Association, if the Association's
enrolled membership is not more than ONE HUNDRED (100), it is not economically
viable for RCI to maintain the Affiliation, and this Agreement is likewise
terminable at the sole option and discretion of RCI upon sixty (60) days notice
to Affiliate and Association.
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3.4 PHOTOGRAPH. Affiliate or Association agrees to provide to RCI at least
two (2) photographs or representative images of the Resort for non-exclusive
use by RCI, at its sole discretion, for the promotion of the RCI Exchange
Program. Affiliate or Association represents and warrants to RCI that: (a)
Affiliate or Association owns, has acquired or licensed the copyright rights in
and to such photographs, and (b) Affiliate or Association has obtained, and has
on file at its office, releases or consents from or for every person, entity or
thing as may be required by law or otherwise for the reproduction of each such
photograph as contemplated herein. Further, Affiliate and/or Association hereby
releases, discharges and agrees to indemnify and hold RCI harmless from and
against any and all liability, demand, claim, cost, expense, loss or damage
(including attorneys' fees) caused by or arising from the reproduction and
distribution of such photographs. This indemnification and hold harmless
provision shall survive the termination of this Agreement for all applicable
statutes of limitation.
3.5 RESERVE UNITS. Affiliate agrees to make available to the RCI Exchange
Program NOT APPLICABLE reserve unit(s) at the Resort each week of the year
until Affiliate ceases sales of the Timeshare Interests to be sold at the
Resort. Each such reserve unit shall be a unit configuration acceptable to RCI.
In the event that RCI sends to the Resort written notice that it does not
intend to use a reserve unit, Affiliate may use that reserve unit as it sees
fit. In the event that RCI sends to the Resort written notice that it does
intend to use the reserve unit, or RCI sends no notice to the Resort, RCI may
use that reserve unit as it sees fit.
3.6 MANAGEMENT DUTIES. Until Affiliate transfers its management
responsibilities to Association, Affiliate agrees, and thereafter Association
agrees:
3.6.1 on RCI's request, to promote new services and benefits provided
by RCI to RCI Members;
3.6.2 to perform services and other duties associated with the
operation of the RCI Exchange Program in accordance with the
RCI Procedures Manual and other materials furnished to it by RCI
from time to time;
3.6.3 to maintain high qualitative and managerial standards
throughout the Resort (including maintenance of an efficient and
effective reservations system) and in particular to
maintain high standards of hospitality, service, cleanliness,
maintenance and appearance and a comprehensive maintenance
program;
3.6.4 to operate its business in a commercially reasonable fashion
that will enable it to meet its obligations;
3.6.5 to honor all Confirmed Exchanges at the Resort;
3.6.6 to provide all RCI Members and Exchange Guests with the
services and facilities referred to in the Application for
Affiliation and this Agreement;
3.6.7 to provide all RCI Members and Exchange Guests with the same
rights and privileges at the same rates afforded generally to
Purchasers at the Resort;
3.6.8 to act in a reasonable and co-operative manner to satisfy any
complaints;
3.6.9 to the extent permissible by law, to submit to RCI upon RCI's
request, not to exceed once annually, a report containing the
name, current billing address and current ownership information
for each Purchaser at the Resort. This report shall be current
as of one month prior to the date such report is submitted to
RCI;
3.6.10 not to require Exchange Guests staying at the Resort to attend
a sales presentation;
3.6.11 to collect any bed tax, transient occupancy tax or other local
rate tax or charge on use or occupancy of the Resort's
accommodations from owners of the Timeshare Interests at the
Resort, unless the imposition of such tax is precluded by
law, in which case to collect the applicable taxes from Exchange
Guests;
3.6.12 to provide RCI with Certificates of Insurance reflecting: (1)
those property and casualty coverages in effect as described in
Section 5.3.3 and (2) naming RCI as an additional insured under
such general liability policy as required by Section 5.3.3; and
3.6.13 to inform RCI before the appointment or replacement of any
management and/or maintenance company relating to the Resort
(whose appointment shall not, for the avoidance of doubt, affect
the Affiliate's obligations of management and maintenance of the
Resort).
3.7 CHANGE IN INFORMATION. Affiliate and Association agree to immediately
notify RCI of any change in any information set forth in the Application for
Affiliation or of any other fact or circumstances affecting the operation of
the RCI Exchange Program with respect to the Resort.
3.8 NON-INTERFERENCE. During the term of this Agreement and following its
termination, neither Affiliate nor Association shall in any manner:
3.8.1 encourage any Purchaser or any other timeshare owner or RCI
Member, to modify, amend, rescind, contravene or cancel their
RCI membership;
3.8.2 encourage any owners association, club, developer or RCI
Affiliated Resort to modify, amend, rescind, contravene or
cancel its affiliation agreement with RCI; or
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3.8.3 interfere or facilitate interference in any respect with the
contractual relationship between RCI (including any RCI
subsidiary, parent, associated or affiliated company or other
entity in which RCI or its principal holds a controlling
ownership interest) and any party contracting with RCI.
3.9 NON-DISCLOSURE. During the term of this Agreement and after its
termination, Affiliate and Association agree that neither shall use for its
own benefit (other than as permitted under this Agreement) or disclose to any
third party, directly or indirectly, any information with respect to: (a) the
terms of this Agreement or this Agreement's prior drafts or documents used in
this Agreement's negotiations, (b) any proposals produced by RCI and
distributed to Affiliate or Association, (c) any RCI proprietary information
(including but not limited to any trade secrets, any confidential business
information not readily available to the general public, or any confidential
information regarding the operation of the RCI Exchange Program) to which it
may be privy, (d) RCI membership numbers or exchange activity of any RCI Member
of Exchange Guest, or (e) the names, addresses or telephone numbers of
Purchasers at the Resort or other RCI Members. However, disclosure of the terms
of this Agreement may be permitted in the following limited circumstances: (i)
where such disclosure is required by law, provided that Affiliate or
Association give RCI at least twenty (20) days written notice prior to such
disclosure, and (ii) where requested by Affiliate's or Association's
fiduciaries or proposed lenders, only if: (1) Affiliate or Association secure,
on behalf of RCI, the agreement in writing of the receiving party not to
further disclose the confidential information, and (2) RCI gives written
approval of such disclosure. Notwithstanding the above, Affiliate and
Association agree that direct or indirect disclosure of any of the above
information to any other exchange company, timeshare or vacation ownership
developer or timeshare owners association is expressly prohibited by this
Section under any circumstances.
3.10 DENIAL OF ACCESS.
3.10.1 If Affiliate or Association fails to honor a Confirmed Exchange
into the Resort or if an Exchange Guest is otherwise denied
access to a unit at the Resort for which that Exchange Guest has
a Confirmed Exchange, then Affiliate or Association, whichever
has failed to honor such Confirmed Exchange or denied such
access, shall immediately and at its own expense secure
alternative accommodations of similar size and quality for the
same time period for the Exchange Guest and shall reimburse RCI
for any costs incurred by RCI in connection with such failure to
honor the Confirmed Exchange or such denial of access.
3.10.2 Neither Affiliate, Association nor RCI shall have any
obligation to secure alternate accommodations for an Exchange
Guest arriving at the Resort during an interval other than that
for which the Exchange Guest has been confirmed by RCI.
3.11 PROTECTION OF RCI'S INTERESTS. Affiliate and Association agree that
during the term of this Agreement and for a period of one (1) year after this
Agreement is terminated for any reason, it will not, without RCI's prior
written consent, hire, employ, engage or pay for services any person who was
employed by RCI during the term of this Agreement; or directly or indirectly
induce any such person to terminate or alter his/her relationship with RCI.
ARTICLE 4 -- RELATIONSHIP OF THE PARTIES
4.1 REPRESENTATION OF RELATIONSHIP. Affiliate and Association shall fully
and accurately describe the RCI Exchange Program and Association's relationship
with RCI to Prospective Purchasers and Purchasers. To this end, Affiliate and
Association:
4.1.1 shall not misrepresent in any way the RCI Exchange Program to
Purchasers or Prospective Purchasers nor make any representation
which could lead to any confusion on the part of any
Purchaser or Prospective Purchaser as to the RCI Exchange
Program or the services and benefits offered in connection
therewith;
4.1.2 shall deliver, in writing and in easily readable print, and
prior to the execution of any contract for purchase, the
following or substantially similar language to Prospective
Purchasers or Purchasers:
RCI conducts an exchange program made available to purchasers at
this resort. No joint venture, partnership or contract of
agency exists between RCI and the owner of this resort; however
the owner of this resort is a party to an agreement with RCI
through which the owner submits applications on behalf of
purchasers to become members of RCI's Exchange Program. RCI's
responsibility for representations concerning the RCI Exchange
Program is limited to those representations made in materials
supplied by RCI. While it is anticipated that the owner of this
resort and RCI will maintain an ongoing relationship, there is
no assurance that the agreement between the owner of this resort
and RCI will continue. Similarly, RCI makes no representations
as to the continued viability of this resort. Your decision to
purchase should be based primarily upon the benefits to be
gained from ownership and use of your timeshare interests in the
resort and not upon the RCI Exchange Program.
4.1.3 shall not amend, summarize, change or modify any material
supplied by RCI without RCI's prior written consent, or delete,
alter or obscure any proprietary notice or legend contained
thereon;
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4.1.4 shall not use the name, photograph(s) or image(s) of any other
RCI Affiliated Resort or any other resort or hotel in any material to be
used in a sales presentation. Further, those name(s), photograph(s) and
image(s) may not be used in any other manner without obtaining the prior
written consent of: (a) RCI, (b) the owner of such other RCI Affiliated
resort or other resort, hotel, or other lodging or vacation
accommodation (c) the owner of the copyright in the photograph(s) or
image(s), and (d) any other person whose permission is legally required
to use such name(s), photograph(s) or image(s);
4.1.5 shall not offer the RCI Exchange Program as an investment, in
conjunction with the sale of a security, through an emphasis on any
profit or appreciation, or in connection with any rental pool; and
4.1.6 shall not promote the RCI Exchange Program or other services
available from RCI as the main or principal reason for purchase of any
Timeshare Interest nor represent Affiliate's or Association's
affiliation to the RCI Exchange Program as a warranty or indication of
the Affiliate's, Association's or Resort's status or condition.
4.2 PRESALE. During Presale, Affiliate agrees to represent fully and fairly to
Purchasers at the Resort RCI's requirements regarding use of Presale units for
exchange. Affiliate shall send written notice to RCI when construction of the
Resort has been completed, after which RCI will inspect the Resort to determine
whether the Presale status of the Resort may be lifted. If RCI accepts a
SPACEBANK deposit of a specified unit and week by a Purchaser of a unit having
a Presale status at the Resort, and the Purchaser's unit is not completed and
approved by RCI for occupancy at least fourteen (14) days prior to the start
date of the specific week deposited and the week deposited is after the date
that Affiliate agreed the unit would be ready for occupancy, Affiliate agrees
to make available to the RCI Exchange Program during the specified week, or
such other comparable week to which RCI may agree, another comparable,
completed unit at the Resort.
4.3 APPOINTMENT OF RESELLERS. Affiliate and/or Association will insure that
Resellers do not make any representations related to RCI or the RCI Exchange
Program in connection with the sale of Timeshare Interests in the Resort unless
and until the Affiliate or Association request and receive RCI's approval to
sublicense to the particular Reseller(s) the right to use the RCI Marks and RCI
materials for the sole purpose of promoting the RCI Exchange Program and
obtaining RCI Enrollment Application Forms on the Affiliate's or Association's
behalf. RCI will grant such approval only upon fulfillment of the following
conditions:
4.3.1 Affiliate or Association gives RCI at least thirty (30) days prior
written notice of its intent to engage the Reseller for the above
purposes;
4.3.2 Affiliate or Association provides RCI with its 30 days notice a
copy of its proposed agreement with the Reseller, which agreement shall
contain the same trademark provisions as contained in this Agreement,
including but not limited to those in Section 4.3.5 and Article 6
herein;
4.3.3 Affiliate or Association provides RCI with its 30 day notice a
Reseller's Acknowledgment in the form required by RCI from time to
time;
4.3.4 Affiliate and Association acknowledge and agree that RCI may, at
any time during the thirty (30) day notice period referred to above: (a)
request additional information regarding the Reseller from Affiliate or
Association; and (b) refuse at its sole discretion to grant Affiliate's
or Association's request for approval to sublicense to Reseller the
right to use the RCI Marks and RCI materials for the sole purpose of
promoting the RCI Exchange Program and obtaining RCI Enrollment
Application Forms on the Affiliate's or Association's behalf. If notice
of refusal from RCI is not given during such 30 day period, Affiliate or
Association may grant the Reseller a sublicense as described herein;
4.3.5 Affiliate and Association acknowledge and agree that immediately
on termination of this Agreement, the Reseller shall cease using RCI
Marks and RCI materials, cease promoting the RCI Exchange Program, and
further cease obtaining RCI Enrollment Application Forms. Affiliate or
Association shall notify all Resellers in writing of such termination
and Affiliate or Association shall collect all RCI materials, all
materials bearing one or more of the RCI Marks, and all RCI Enrollment
Application Forms held by or on behalf of all Resellers. Affiliate and
Association agree that it will promptly notify RCI in writing of the
Reseller's cessation of the previously authorized activities and will
certify to RCI that it has collected all such materials from the
Reseller. Affiliate and Association shall be liable to RCI for all acts
or omissions of the Reseller arising out of any such failure to timely
cease such activities and any damages which RCI may suffer as a result
of Reseller's activities following termination will be covered under
the Affiliate's or Association's obligation to indemnify RCI as set
fourth in this Agreement; and
4.3.6 Affiliate and Association acknowledge and agree that, RCI, in
addition to any other rights it may enjoy under this Agreement, hereby
reserves the right to require termination of the Reseller in the event
Reseller engages in any act or omission which would constitute a breach
of this Agreement if committed by Affiliate or Association.
4.4 RESPONSIBILITIES OF AFFILIATE AND ASSOCIATION. Affiliate and Association
acknowledge and agree that, the appointment of Resellers notwithstanding, they
are and remain at all times directly and primarily responsible for (a) the
submission to RCI of RCI Enrollment Applications and fees; (b) the content and
correctness of RCI Enrollment Applications; (c) all acts or omissions of
Resellers; and (d) ensuring that any and all Resellers fully comply with the
terms of this Agreement.
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ARTICLE 5 - ACKNOWLEDGMENTS,
REPRESENTATIONS AND WARRANTIES
5.1 ACKNOWLEDGMENTS. Affiliate and Association each acknowledge and agree
that:
5.1.1 RCI has the right to accept or reject any Enrollment Application
submitted to it;
5.1.2 it will offer the RCI Exchange Program only to Purchasers
purchasing Timeshare Interests in the Resort(s) identified in
Recital B;
5.1.3 it will not offer the RCI Exchange Program to Purchasers of
Timeshare Interests at any other resort without entering into a
separate Agreement with RCI for such resort or adding such resort
to this Agreement by Addendum;
5.1.4 RCI memberships are available to natural persons, and if a
Timeshare Interest is purchased by a corporation, partnership, or
other business entity, RCI membership must be in the name of the
natural person authorized by such entity to utilize the purchased
Timeshare Interest;
5.1.5 through the RCI Exchange Program, RCI has the right to confirm any
individuals into Units at the Resort which have been deposited
with RCI provided, however, such Exchange Guests comply with the
rules and regulations of the Resorts;
5.1.6 the RCI Terms and Conditions, including but not limited to the
services and benefits provided by RCI to RCI Members, exchange
privileges, the practices, procedures and priorities for
effecting exchanges and the fees payable by RCI Members govern the
relationship between RCI and RCI Members, and may be changed by
RCI from time to time in its discretion;
5.1.7 the use of RCI Guest Certificates is personal to RCI Members and
no commercial use of RCI Guest Certificates may be made by
Purchasers, Affiliate, Association, or any of their officers,
directors, employees, sales representatives, brokers or agents;
5.1.8 RCI has the right to inspect the Resort and the sales records of
Affiliate and Association with respect to the Resort upon
reasonable notice and during regular business hours for the sole
purpose of monitoring Affiliate's and Association's compliance
with this Agreement;
5.1.9 neither Affiliate nor Association may assign or sublicense any or
all of its rights under this Agreement to any person without RCI's
prior written approval and any such attempted assignment or
sublicense shall be null and void;
5.1.10 RCI may assign its rights and duties under this Agreement or any
Enrollment Application or agreement with an RCI Member in which
case this Agreement shall remain in full force and effect; and
5.1.11 except for sales in the ordinary course of business to Purchasers
for use other than a commercial use, it will not transfer any
interest in the Resort unless the transferee agrees to be bound
by the terms and conditions of this Agreement in the same manner
as the Affiliate or Association hereunder.
5.2 ACKNOWLEDGMENT OF RELATIONSHIP. Affiliate and Association each hereby
acknowledge that:
5.2.1 it has no power to bind RCI in any manner;
5.2.2 Affiliate, Association, and Resort are independent and outside the
control of RCI and that nothing in this Agreement creates a
relationship of agency, employment, partnership or joint venture
between RCI and the Affiliate or Association;
5.2.3 the product(s) of Affiliate and Association (including but not
limited to Timeshare Interests) are separate and distinct from
the services offered through the RCI Exchange Program; and
5.2.4 it is not relying on RCI or the RCI Exchange Program for the sale
of its product(s).
5.3 REPRESENTATIONS AND WARRANTIES. Affiliate and Association, each represent
and warrant to RCI only as to themselves and not as to each other that:
5.3.1 the statements made by it in the Application for Affiliation are
not misleading and are true and correct in all material respects
and that all the facilities referred to in the Application for
Affiliation will be available to Exchange Guests in the manner
described in the Application for Affiliation;
5.3.2 it owns or has the legal right to convey Timeshare Interests to
Purchasers;
5.3.3 it maintains with a reputable insurer property and casualty
insurance to cover loss or damage to the Resort, as well as
general liability insurance naming RCI as an additional insured
in an amount sufficient to cover its risk;
5.3.4 it has thoroughly examined the RCI Exchange Program as set forth
in the RCI Procedures Manual and other materials furnished to it
by RCI and that it is familiar with the operation of the RCI
Exchange Program;
5.3.5 except as previously disclosed in writing to RCI, there is no
litigation, proceeding, claim, complaint, investigation or similar
action pending or threatened against it which would materially and
adversely affect the performance of its obligations or the
continued operation of the Resort;
5.3.6 by entering into this Agreement, it will not be in breach of the
provisions of any other agreement, lease, charter, by-law or any
other instrument or obligation;
5.3.7 it is in compliance with all applicable laws, rules and
regulations; and
5.3.8 the execution of this Agreement has been duly authorized by all
necessary actions, the persons executing this Agreement are
authorized to do so and this Agreement constitutes its legal and
binding obligation.
The representations and warranties contained herein are of a continuing nature,
and unless otherwise disclosed to RCI in writing, shall be considered
reaffirmed by Affiliate and Association with each submission of Enrollment
Applications.
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ARTICLE 6 - TRADEMARKS
6.1 LICENSE. Upon the terms and conditions of this Agreement, and the
policies and procedures established by RCI from time to time governing the use
of the Marks, RCI grants to Affiliate and to Association, individually, a
non-exclusive license to use the Marks only on and in connection with their
services in promoting the RCI Exchange Program, submitting Enrollment
Applications of Purchasers at the Resort to RCI, and coordinating activities and
performing services associated with the operation of the RCI Exchange Program
at the Resort. Neither Affiliate nor Association shall use or permit use of the
Marks, in whole or in part, on or in connection with any other business,
including but not limited to travel related services, financing services,
reservation services, resort management services or resort rental enterprises.
Except as expressly provided herein at Section 4.3, neither Affiliate nor
Association shall permit or authorize any other person or entity of any kind to
use the Marks in any manner.
6.2 ACKNOWLEDGMENT. Affiliate and Association acknowledge that: (a) RCI is
the owner in the United States and various other countries of the Marks, and
(b) RCI has the right to exclude others from using the Marks or any variant or
combination of the Marks determined to be confusingly similar to the Marks.
Neither Affiliate nor Association shall register or attempt to register the
Marks or any other trademark or tradename confusingly similar to one or more of
the Marks in its own name or that of any person or entity. Further, neither
Affiliate nor Association shall contest to the validity of the Marks or any
registration of the Marks by RCI.
6.3 QUALITY AND CONTROL. RCI has the right to control all uses of the
Marks. Affiliate and Association agree to maintain such quality standards for
its services, in connection with which the Marks are used, equal to the quality
of services of RCI. Affiliate and Association may use the Marks on their
promotional materials, advertising and owner communications only as prescribed
by RCI policies and procedures in the RCI Procedures Manual and other materials
furnished to Affiliate or Association from time to time. Affiliate and
Association agree to comply with all requests of RCI with respect to the
appearance and use of the Marks, including any requests to change the form or
style of the Marks. Affiliate and Association shall at all times consistently
use the Marks so as to ensure that RCI's rights are adequately preserved.
Affiliate and Association agree to promptly submit to RCI one copy of all
printed or visual material bearing one or more of the Marks for prior written
approval. RCI reserves the right to withdraw approval should it be determined,
in RCI's sole discretion, that such materials misrepresent or do not accurately
reflect RCI or the RCI Exchange Program. Neither Affiliate nor Association
shall do anything itself, or aid or assist any other party to do anything which
would infringe, violate, damage, dilute, harm or contest the rights of RCI in
and to the Marks. In addition, Affiliate and Association confirm that all use
of the Marks by them or any of their approved sublicensees shall inure to RCI's
benefit. Affiliate and Association shall at any time execute any documents
reasonably required by RCI to confirm RCI's ownership of all such rights in and
to the Marks.
ARTICLE 7 - TERMINATION & REMEDIES
7.1 GENERAL RIGHT OF TERMINATION. Any party may terminate participation in
this Agreement:
7.1.1 in the event of a breach of any of the terms, conditions,
covenants, representations or warranties contained in this
Agreement, following written notice to the other party(ies)
stating the grounds for such termination, unless the breaching
party cures the asserted breach to the reasonable satisfaction
of the party giving such notice within thirty (30) days of the
date of notice;
7.1.2 immediately by giving the parties written notice if the other
party(ies) commit a breach of any of the provisions of this
Agreement which breach is incapable of cure; or
7.1.3 by giving the other parties hereto at least 180 days written
notice prior to the expiration of the initial term or any
renewal term of its intent to terminate this Agreement at the
end of such term.
7.2 RCI'S RIGHT OF TERMINATION. Without prejudice to any other rights of
termination RCI may have under this Agreement, RCI may terminate its
participation in this Agreement with respect to any or all of the Resorts
listed in Recital B:
7.2.1 immediately upon written notice to the Affiliate and the
Association in the event the Affiliate or Association: (a)
becomes insolvent as defined in the Uniform Commercial Code or
makes an assignment for the benefit of its creditors; (b)
initiates a proceeding, whether voluntarily or involuntarily,
under any chapter or part of the Federal Bankruptcy Code; (c) is
a party to a proceeding for the reorganization or for the
adjustment of any of its debts under any act or law, for the
relief of debtors now or hereafter existing; (d) has a receiver
or trustee appointed for it or for a substantial part of any of
its assets; or (e) is a party to any proceeding seeking its
dissolution or its full or partial liquidation;
7.2.2 immediately upon written notice to the Affiliate and the
Association if any Reseller commits any act or omission which
would constitute a breach of this Agreement if committed by
Affiliate or Association which, if capable of remedy, has not
been remedied within thirty (30) days of notice from RCI;
7.2.3 immediately upon written notice to the Affiliate and the
Association if Affiliate or Association transfers a controlling
interest in the Resort without RCI's prior written consent;
7.2.4 immediately upon written notice to the Affiliate and the
Association if Affiliate or Association attempts to assign or
sublicense all or any portion of its rights and duties under
this Agreement without RCI's prior written approval;
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7.2.5 immediately upon written notice to the Affiliate and the
Association if Affiliate or Association is in fundamental or
material breach of a term of this Agreement or engages in
fraudulent, deceptive or dishonest conduct in connection with
this Agreement (whether or not capable of remedy);
7.2.6 upon written notice to Affiliate or Association of not less than
six (6) months in the event Affiliate or Association enters into
any agreement or arrangement other than with RCI that provides
for internal or external exchange services to Purchasers. In any
event, Affiliate or Association agrees to provide RCI with
ninety (90) days written notice prior to entering into such
agreement or arrangement;
7.2.7 immediately upon written notice to Affiliate or Association if
any representation or warranty contained herein is not true at
the time it is made or considered reaffirmed;
7.2.8 immediately upon written notice to Affiliate or Association if
any representation or warranty contained herein ceases to be
true during the term of this Agreement and any renewals thereto;
and
7.2.9 as provided for elsewhere in this Agreement.
7.3 AFFILIATE'S AND ASSOCIATION'S ACKNOWLEDGMENTS.
7.3.1 RCI'S exercise of its right to terminate pursuant to this
Agreement shall in no way limit or impair its right to seek
other legal or equitable remedies in connection with a breach by
Affiliate or Association.
7.3.2 Termination of this Agreement for whatever reason shall not in
any way affect the right of RCI to receive fees that have
accrued and remain unpaid.
7.4 GENERAL ACKNOWLEDGMENT. All of the foregoing notwithstanding,
termination of one party's participation in this Agreement shall not impair or
terminate the relationship between the remaining parties.
7.5 OBLIGATIONS UPON TERMINATION. Upon termination of this Agreement:
7.5.1 RCI, Affiliate and Association shall honor all Confirmed
Exchanges and exchange privileges of RCI Members exchanging into
the Resort that are confirmed or accrued prior to termination;
7.5.2 RCI, Affiliate and Association shall honor all Confirmed
Exchanges and exchange privileges of RCI Members who are
Purchasers at the Resort that are confirmed or accrued prior to
termination of this Agreement;
7.5.3 RCI at its sole discretion, may allow RCI Members who are
Purchasers at the Resort to participate in the RCI Exchange
Program following termination of this Agreement provided that
the Resort maintains high fiscal, qualitative and managerial
standards. Affiliate and Association agree to honor all
present and future Confirmed Exchanges or exchange privileges of
Purchasers, or other RCI Members and their guests utilizing an
RCI Guest Certificate exchanging into the Resort through use of
such Purchaser's Timeshare Interest;
7.5.4 Affiliate and Association shall immediately discontinue
promoting, selling, marketing or offering the RCI Exchange
Program in any form to Purchasers or Prospective Purchasers;
7.5.5 Affiliate and Association shall immediately cease using and
thereafter abstain from using all RCI videos and other materials
bearing any of the RCI Marks, and return the same to RCI within
fifteen (15) days after termination of this Agreement;
7.5.6 Affiliate and Association shall immediately cease using and
thereafter abstain from using the Marks and any name or xxxx
similar thereto; and
7.5.7 Affiliate and Association shall immediately ensure that the
agreement with any RCI approved Reseller is correspondingly
immediately terminated with respect to any activities related to
RCI and/or use of the Marks, as detailed in Article 4 herein.
7.6 SUSPENSION. Upon breach by Affiliate or Association, RCI may, without
prejudice to its right to terminate this Agreement, suspend operation of the
RCI Exchange Program at the Resort or impose such conditions or limitations
thereon as RCI deems necessary or appropriate from time to time.
7.7 EQUITABLE RELIEF. Affiliate and Association acknowledge that damages
cannot adequately compensate RCI for a breach of any of the provisions of this
Agreement, and, therefore, the parties agree that RCI shall be entitled to a
remedy of specific performance or injunctive relief, as appropriate, in the
event of a breach or threatened breach of any such provisions by Affiliate or
Association, in addition to any other appropriate legal or equitable remedies.
7.8 WAIVER. Upon the termination of this Agreement, Affiliate and
Association hereby expressly waive any claim for a refund of any applicable
fees remitted during the term of this Agreement.
7.9 LIMITATIONS. Failure to cease using any one or more of the Marks by
Affiliate or Association or its Resellers following termination of this
Agreement shall entitle RCI to liquidated damages from the offending
responsible party in the amount of One Thousand Dollars (US$1,000) per day,
which Affiliate and Association agree is reasonable. This liquidated damages
remedy shall be in addition to any other remedies, legal or equitable,
available to RCI.
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ARTICLE 8 - GENERAL
8.1 TERM. This Agreement shall become effective on the date it is executed
by RCI in Indianapolis, Indiana, U.S.A. and shall be for an initial term of
five (5) years. Thereafter, this Agreement will automatically renew for
additional five (5) year terms, until such time as notice of intent to
terminate is given by any party hereto pursuant to Section 7.1; provided,
however, that Affiliate and Association are in compliance with this Agreement
at the expiration of the initial term and subsequent renewal terms.
8.2 NOTICES. All notices and other communications made pursuant to this
Agreement shall be in writing and shall be deemed to have been given if mailed
by registered or certified mail, return receipt requested, or transmitted by
facsimile with printed confirmation of receipt together with mailing of an
original, to the appropriate party(ies) at the following address (or such other
address as shall be specified by notice given pursuant to this Section 8.2):
(a) if to AFFILIATE: (b) if to ASSOCIATION:
ASCENSION RESORTS, LTD. HILL COUNTRY RESORT CONDOSHARE CLUB
0000 Xxxxxxxxx, Xxxxx 000 1221 Riverbend, Suite 120
Dallas, Texas 75247 Xxxxxx, Xxxxx 00000
(c) if to RCI:
RESORT CONDOMINIUMS INTERNATIONAL, INC.
Xxx XXX Xxxxx
0000 Xxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
X.X.X.
Attention: Legal Services
Notwithstanding the above, RCI may send the notices referred to in Section 3.5
to the Resort at the address set forth in Recital B (or such other address as
shall be specified by notice given pursuant to this Section 8.2) by regular
United States mail.
8.3 LEGAL AND BINDING OBLIGATION. Affiliate and Association and the
individuals executing this Agreement on behalf of Affiliate and Association,
respectively, represent, and warrant to RCI that this Agreement has been duly
and validly executed and delivered by Affiliate and Association, respectively,
and constitutes a legal, valid, binding and enforceable agreement of Affiliate
and Association, respectively.
8.4 OBLIGATIONS BINDING ON REAL ESTATE. Affiliate and Association agree
that their obligations under this Agreement shall run with real estate
comprising the Resort and shall be binding upon any transferee of (or successor
to) an interest in the Resort which operates such interest for commercial
purposes.
8.5 INDEMNIFICATION. Affiliate and Association each agree to indemnify and
hold RCI harmless from and against any and all claims, demands, obligations,
deficiencies, judgments, damages, suits, losses, penalties, expenses, costs
(including reasonable attorneys' fees) and liabilities of any kind, type or
nature whatsoever directly or indirectly resulting from, arising out of or in
connection with:
8.5.1 any inaccuracy in a representation or warranty or any breach of
any of its obligations in this Agreement;
8.5.2 a failure to observe policies and procedures established by RCI;
8.5.3 the wrongful denial of access to a Unit to any Exchange Guest;
8.5.4 any death or personal injury or damage to or loss of property
sustained by Exchange Guests while at the Resort;
8.5.5 any acts or omissions by any of their respective directors,
officers, partners, employees, representatives, agents, brokers,
salesmen, independent contractors, or associates which would
constitute a breach of this Agreement if committed by Affiliate
or Association;
8.5.6 any acts or omissions of Reseller or Reseller's directors,
officers, partners, employees, representatives, agents, salesmen
or associates which would constitute a breach of this Agreement
if committed by Affiliate or Association; and
8.5.7 alleged or actual infringement of any trademark, copyright,
trade secret, patent, publicity rights, privacy rights, moral
rights or false advertising or unfair competition (but excluding
any such actions on RCI Marks).
This indemnification and hold harmless provision shall survive the termination
of this Agreement for all applicable statutes of limitation.
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8.6 SEVERABILITY. If any provision of this Agreement is declared by any
judicial or other competent authority to be void, voidable, illegal or
otherwise unenforceable or indications of the same are received by either of
the parties from any relevant competent authority, the parties shall amend that
provision in such reasonable manner as achieves the intention of the parties
without illegality or, at the discretion of RCI, such provision may be severed
from this Agreement and the remaining provisions of this Agreement shall remain
in full force and effect; provided, however, that if, in RCI's judgment, the
effect of such declaration is to defeat the original intention of the parties,
RCI shall be entitled to terminate this Agreement by 30 days' notice to the
Affiliate and/or Association.
8.7 GENERAL. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement. The Recitals are hereby incorporated in this
Agreement. All references in this Agreement to particular Recitals and Sections
are references to Recitals and Sections of this Agreement. If there is any
difference or conflict between the English text of this Agreement and any
translation, the English text shall prevail. Failure of any party to insist on
strict compliance with the provisions of this Agreement shall not constitute
waiver of that party's right to demand later compliance with the same or other
provisions of this Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement. This Agreement and
Affiliate's and Association's Application for Affiliation and all attachments
thereto constitute the entire understanding and agreement between the parties
concerning the subject matter of this Agreement. This Agreement may be modified
only by a writing executed by the parties with the same formality with which
this Agreement has been executed. All understandings between the parties are
merged into this Agreement, and there are no representations, warranties,
covenants, obligations, understandings or agreements, oral or otherwise, in
relation thereto between the parties other than those incorporated herein. This
Agreement is for the exclusive benefit of Affiliate, Association and RCI;
nothing herein shall be construed to create a third-party beneficiary of any
Purchaser, RCI Member or other individual or entity. Affiliate and Association
acknowledge that this Agreement has been executed, made and entered into in
Indianapolis, Indiana, U.S.A., and consents to the personal jurisdiction of the
courts of the State of Indiana. This Agreement shall in all respects be
interpreted and construed in accordance with and governed by the laws of the
State of Indiana, U.S.A., and any action at law or in equity under this
Agreement shall be submitted exclusively to the jurisdiction of the courts of
Xxxxxx County, Indiana, U.S.A., unless RCI determines in its sole discretion
that, because of the injunctive or other equitable relief sought by it, the
action should be brought in a jurisdiction in which Affiliate, Association, or
the resort are located. This Agreement and all of its provisions shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns.
ASCENSION RESORTS, LTD. ("Affiliate") HILL COUNTRY RESORT CONDOSHARE CLUB
("Association")
BY: ASCENSION CAPITAL CORPORATION
ITS: GENERAL PARTNER
By: /s/ XXXXXX X. XXXXXXXXX By: /s/ XXXXXX XXXX
--------------------------------- --------------------------------
Xxxxxx X. Xxxxxxxxx, President Xxxxxx Xxxx, Governor
AGREED TO AND ACCEPTED THIS 29TH DAY OF JULY, 1995.
RESORT CONDOMINIUMS INTERNATIONAL, INC.
By: /s/ XXXX X. XXXXXXXXX
---------------------------------
Xxxx X. Xxxxxxxxx, Vice President
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