EXHIBIT 10.33
Agreement with Cross Country Motor Club, Inc. dated October 10, 1997,as amended
AGREEMENT
THIS AGREEMENT is made as of the 10th day of October, 1997 by and between
CROSS COUNTRY MOTOR CLUB, INC., a corporation duly organized and existing under
the laws of the Commonwealth of Massachusetts ("Cross Country"), and AFFINITY
GROUP, INC., a corporation duly organized and existing under the laws of the
State of Delaware ("Affinity Group"),
WHEREAS, Affinity Group and Cross Country are parties to that certain
Agreement dated as of July 22, 1991, as amended December 4, 1992 (the "Original
Agreement"), and Affinity Group and Cross Country desire to restate the Original
Agreement in its entirety and replace the Original Agreement with this
Agreement; and
WHEREAS, Affinity Group and Cross Country desire that this Agreement apply
to Affinity Group's, "Good Xxx Club," "Woodalls," "Coast to Coast," "CVP,"
"Camping World" and any other recreational vehicle club owned and/or operated by
Affinity Group or any division, affiliate or subsidiary of Affinity Group where
the Club offers an emergency road service program or emergency road service
programs to its members (collectively, "AGI Clubs").
NOW, FOR GOOD AND VALUABLE CONSIDERATION, receipt whereof is hereby
severally acknowledged, the parties hereto agree as follows:
1. During the term hereof Cross Country agrees to perform the services
described in Article 4 below on behalf of Affinity Group for the AGI Members, in
accordance with the terms hereof. As used herein, the term "AGI Members" shall
mean all those members of AGI Clubs covered by this Agreement at any time during
the term hereof who are entitled to the benefits of an emergency road service
program for non-commercial vehicles offered by any of such AGI Clubs (the
"Emergency Road Service Program," such expression to include such emergency road
service program for non-commercial vehicles however and wherever offered by
Affinity Group). The services to be provided by Cross Country hereunder shall
be provided in the present fifty (50) states and the District of Columbia of the
United States, the provinces of Canada and in select areas in Mexico where Cross
Country from time to time provides emergency road services as determined from
time to time by Cross Country, but not in any of the territories and/or
possessions of the United States or Canada. Except for (a) any acquisition by
Affinity Group of an entity with contractual requirements for provision of an
emergency roadside service program by a third party (which requirements may be
extended after their respective initial expiration or earlier termination), or
(b) any AGI Club which Affinity Group elects, in its sole discretion, at any
time during the term of this Agreement to exclude from the terms of this
Agreement, Cross Country shall be the sole supplier of services for the
Emergency Road Service
66
Program during the term hereof, and, except with respect to any such excluded
AGI Club, neither Affinity Group nor any affiliate, division or subsidiary of
Affinity Group may provide any of such services "in house" during the term
hereof. Cross Country agrees that during the term of this Agreement Cross
Country will not knowingly provide motor club services and/or emergency
roadside assistance services for any of the entities included within the
"Prohibited Group" (hereinafter defined). The parties hereto recognize that
a breach of the covenants contained in this Article 1 would cause irreparable
injury, and damages at law would be difficult to ascertain. The parties
hereto therefore consent to the granting of equitable relief by way of a
restraining order or temporary or permanent injunction by any court of
competent jurisdiction to prohibit the breach or enforce the performance of
the covenants contained in this Article 1, in addition to all other remedies
which a court of competent jurisdiction may eventually determine. As used
herein, the term "Prohibited Group" shall mean and include those entities
which are primarily and principally involved in the motor home and/or travel
trailer ("recreational vehicles") business and the provision to owners of
recreational vehicles motor club emergency roadside assistance services.
2. (a) Within ten (10) days after the execution hereof, and within ten
(10) days after the end of each calendar month during the term hereof, Affinity
Group shall deliver to Cross Country a report setting forth: (i) the name and
address of each person and/or entity who was an AGI Member at the beginning of
such calendar month (or who are AGI Members at the time of execution hereof, for
the first of such reports), or who became an AGI Member during such calendar
month, (ii) the membership number and the duration of such membership, (iii) the
name and address of each person and/or entity that ceased to be an AGI Member
during such calendar month, and (iv) such other information as Cross Country may
from time to time reasonably request in order to allow Cross Country to
-2-
provide the services contemplated under this Agreement. The information
contained in each of such reports shall be updated by Affinity Group for Cross
Country at intervals no less frequently than monthly.
(b) At the time provided for the submission of the initial report
setting forth the AGI Members as of the date of execution hereof, Affinity Group
shall pay to Cross Country the administrative fee described in section (d) below
for each AGI Member who was an AGI Member during the month to which such monthly
report relates. Such administrative fee shall be prorated if the first month of
the term of this Agreement shall be a partial month. At the time provided for
submission of each subsequent monthly report, Affinity Group shall pay to Cross
Country such administrative fee for each AGI Member who was an AGI Member during
the month to which such monthly report relates. For the last month during the
term hereof such payment administrative fee shall be pro-rated. In all events
such administrative fee shall not be less than Forty-Seven Thousand Seven
Hundred Sixty-Five Dollars ($47,765.00) for any month (subject, however, to
proration as aforesaid).
67
(c) Affinity Group agrees to maintain and preserve its books and
records with respect to AGI Members in accordance with procedures that will
reasonably allow Cross Country to verify the information provided by Affinity
Group pursuant to Section 2(b) above, and Cross Country shall have the right
from time to time to inspect such portion(s) of said books and records as will
allow Cross Country to verify amounts payable to Cross Country hereunder. Such
books, records and information shall be subject to the confidentiality and
non-disclosure provisions of this Agreement.
(d) In addition to the aforesaid administrative fee, Affinity Group
shall pay to Cross Country the following amounts at the times indicated. For
each actual billing for services rendered to an AGI Member hereunder and/or
reimbursement to an AGI Member for services obtained by such AGI Member,
Affinity Group shall pay to Cross Country an amount equal to the actual cost to
Cross Country therefor (net of all discounts, allowances or other available
deductions), plus a fee in accordance with the following schedule. Cross
Country may xxxx Affinity Group once or twice per month pursuant hereto, at
Cross Country's election; and each invoice shall be paid by Affinity Group to
Cross Country within twenty (20) days after submission thereof to Affinity
Group.
-3-
FEE SCHEDULE
-------------------------------------------------------------------------------
Monthly Administrative Fee .205 cents per AGI Member for each month to
which such monthly Administrative Fee relates,
subject to the minimum monthly Administrative
Fee as set forth in Section 2(b) hereof.
-------------------------------------------------------------------------------
Roadside Assistance Dispatch $18.20 per dispatch (with minimum payments
Fee hereafter by Affinity Group to Cross Country
of $1,547,000 per year)
-------------------------------------------------------------------------------
Inbound, non-dispatch related $1.50 per call
(i.e., information,
membership and miscellaneous,
etc. of whatever nature, not
resulting in roadside
assistance or trip routing
fees)
-------------------------------------------------------------------------------
Trip Routing Fees (per trip): $8.50 deluxe, plus postage
$3.00 regular, plus postage
-------------------------------------------------------------------------------
Information Systems Request Special Information Systems Requests includes
Fees: up to 25 hours analysis/design, 25 hours
programming annually. Requests in excess of
such 25 hours to be billed at $125 per hour
for analysis/design and $85.00 for
programming. Normal, routine maintenance of
such Information System shall not be subject
to such charges, and Cross Country shall
provide to Affinity Group reasonable detail
with respect to all hours expended and charged
pursuant hereto.
-------------------------------------------------------------------------------
68
(e) On January 1 of each year, commencing with January 1, 1999 (each
such January 1 being sometimes hereinafter referred to as an "Adjustment Date"),
all amounts payable by Affinity Group under this Article 2 (including, without
limitation, the per AGI Member monthly administrative fees and the fees for
services actually provided by Cross Country hereunder) shall be adjusted (i.e.,
either increased or decreased) to the amount that is determined by multiplying
the initial amount of such fee, as above provided, by a fraction the numerator
of which shall be the Consumer Price Index for All Urban Consumers, Seasonally
Adjusted U.S. City Average, All Items (1982-84-100), as published by the Bureau
of Labor Statistics of the United States Department of Labor (the "CPI"), for
the month of December immediately preceding each Adjustment Date (or the next
prior published month if not published for any such December) and the
denominator of which shall be the CPI for January 1998 (the "Base CPI").
Notwithstanding the foregoing, however, in no event shall any increase to the
fees hereunder for any year be greater than three percent (3%) over the fees
hereunder for the prior year hereof. Each such set of adjusted amounts shall
remain in effect and be payable by Affinity Group during the entire year
following such Adjustment
-4-
Date, until the next Adjustment Date, when the provisions hereof shall again be
applied. Until the actual amount of the adjustment for any year shall be
determined, Affinity Group shall pay at the rates provided for during the
immediately preceding year, and when the adjustment shall be so determined
Affinity Group shall immediately pay Cross Country any excess due, or Cross
Country shall immediately pay Affinity Group, as the case may be.
(g) Any amounts not paid by Cross Country or Affinity Group to the
other when due shall bear interest from the due date at the rate of twelve
percent (12%) per annum.
3. The term of this Agreement shall commence at 12:00 A.M. Eastern
Standard Time on January 1, 1998 and shall expire at 11:59 P.M. Eastern Standard
Time on December 31, 2000, unless sooner terminated as hereafter provided.
4. In consideration of the payments to be made to Cross Country as
provided in Article 2 above, Cross Country shall provide to AGI Members during
the term hereof the services described in Exhibit A attached hereto and made a
part hereof. In connection therewith Cross Country shall maintain on behalf of
Affinity Group, at Cross Country's expense, a sufficient number of national
telephone assistance lines to provide the services contemplated hereunder, such
telephone assistance lines to be used exclusively for the services to be
provided to AGI Members. The telephone numbers for such exclusive lines shall
be owned by Affinity Group. Such lines shall be staffed by Cross Country
twenty-four (24) hours a day, seven (7) days a week, including holidays. Cross
Country shall provide all of the above described services in a manner that is
sufficient to provide the services to the AGI Members contemplated hereunder at
a general level of customer
69
satisfaction reasonably acceptable to Affinity Group and in substantial
accordance with the guidelines set forth on Exhibit B attached hereto.
Promptly following the date of execution hereof, Cross Country shall if so
requested by Affinity Group sign and deliver a transfer of service form with
respect to such telephone lines (the "Transfer Form"). Cross Country
authorizes Affinity Group to complete and date the Transfer Form and deliver
the Transfer Form to the applicable telephone company(ies) upon expiration of
the term of this Agreement to evidence the transfer of service back to
Affinity Group with respect to such lines, and Cross Country shall provide at
Affinity Group's request such other agreements or instruments, without
expense of liability to Cross Country, as may be necessary for such purpose.
-5-
5. Cross Country agrees that all information assembled by Affinity Group
and provided by Affinity Group to Cross Country hereunder regarding AGI Members,
including, but not limited to, lists of names, addresses and telephone numbers
of AGI Members, is proprietary information and shall remain the exclusive
property of Affinity Group, and Cross Country shall not use any of such
information, except as contemplated under this Agreement. All such information
which is capable of being re-delivered to Affinity Group without unreasonable
burden or effort, including all copies of materials containing such information,
shall, at Affinity Group's request, be returned to Affinity Group at the
expiration of the term hereof, Affinity Group agreeing to pay to Cross Country
its reasonable costs incurred in connection with the assembling and returning
thereof. Further, (i) all information regarding AGI Members, (ii) the terms and
provisions of this Agreement, (iii) information relating to Affinity Group's
data processing systems and/or reports, whether or not contained in reports
generated by Affinity Group hereunder, (iv) costs and/or expenses of Affinity
Group in providing the Emergency Road Service Program, and (v) Affinity Group's
data communication systems shall be treated by Cross Country as confidential,
and Cross Country shall not disclose any of such information to any other person
or entity except as necessary to perform its obligations under this Agreement or
as required to be disclosed to governmental authorities or in connection with
legal proceedings and except for information that is or becomes in the public
domain (it being acknowledged that the inclusion in telephone directories of
names, addresses and telephone numbers shall not by itself be deemed to have
placed such information in the public domain). Notwithstanding the foregoing,
provided that Cross Country has taken reasonable precautions (where practical to
do so) to protect the confidential nature of such information, Cross Country may
disclose this Agreement and its terms, and information regarding historical and
projected results of performance hereunder, (i) to accountants and lawyers whom
Cross Country retains to provide particular services in the ordinary course of
business, (ii) to lending institutions and others in connection with financing
arrangements, (iii) to federal, state and/or local governmental authorities, and
(iv) in connection with public offerings, in each case subject to the
recipient's holding such information in confidence (other than in connection
with public
70
offerings), to Cross Country's releasing only so much of such information as
shall be required in the circumstances. Further, Cross Country may disclose
this Agreement and the financial results
-6-
to Cross Country of performance hereunder to prospective acquirers of all or any
part of Cross Country's business, assets or stock, subject to the recipient's
holding such information in confidence, but only to prospective acquirers with
respect to which Affinity Group has not elected to terminate this Agreement
pursuant to Section 16(a) hereof.
(b) It is understood that Cross Country does not itself provide any of
the towing and/or emergency road services described in Exhibit A, but arranges
for such services to be provided through independent providers. Affinity Group
agrees that all lists assembled by Cross Country of the names, addresses and
telephone numbers of such independent providers are proprietary information and
are the exclusive property of Cross Country, and Affinity Group shall not use or
disclose any such information except as contemplated in this Agreement.
Affinity Group further agrees that the following information is confidential
information belonging to Cross Country and shall not be used or disclosed by
Affinity Group other than in connection with the transactions contemplated in
this Agreement, except as Affinity Group may be required to disclose any such
information to governmental authorities or in connection with legal proceedings
and except to the extent that such information is in the public domain (it being
acknowledged that the inclusion in telephone directories of names, addresses,
telephone numbers and description of services does not place such information in
the public domain): (i) the terms and provisions of this Agreement, (ii)
information relating to Cross Country's data processing systems and/or reports,
whether or not contained in reports generated by Cross Country hereunder, (iii)
costs and or expenses of Cross Country in providing services hereunder, (iv)
Cross Country's data communication systems, and (v) the names and addresses of
said independent providers. Notwithstanding the foregoing, provided that
Affinity Group has taken reasonable precautions (where practical to do so) to
protect the confidential nature of such information, Affinity Group may disclose
this Agreement and its terms and information regarding historical and projected
results of performance hereunder (i) to accountants and lawyers whom Affinity
Group retains to provide particular services in the ordinary course of business,
(ii) to lending institutions and others in connection with financing
arrangements, (iii) to federal, state and/or local governmental authorities as
required by law, and (iv) in connection with public offerings, in each case
subject to the recipient's holding such information in confidence, and to
Affinity Group's releasing only so much of such
-7-
71
information as shall be required in the circumstances.
(c) The provisions of this Article 5 shall survive the expiration or
other termination of this Agreement, and shall continue in force and effect for
a period of five (5) years thereafter. The parties hereto recognize that a
breach of the covenants contained in this Article 5 would cause irreparable
injury and that damages at law would be difficult to ascertain. The parties
hereto therefore consent to the granting of equitable relief by way of a
restraining order or temporary or permanent injunction by any court of competent
jurisdiction to prohibit the breach or enforce the performance of the covenants
contained in this Article 5.
6. (a) Cross Country agrees to indemnify, defend and hold Affinity Group
harmless from any and all claims, demands, suits, liabilities and any costs and
expenses, including reasonable attorneys' fees, arising from or in any way
connected with (i) the conduct of Cross Country, including, without limitation,
its conduct in performing the services contemplated hereunder, (ii) the failure
of Cross Country to perform its duties pursuant to this Agreement and/or
observance of all the terms, covenants and conditions contained herein, (iii)
any breach of any warranty or representation on its part made herein, or (iv) a
"Cross Country Breach" (as defined in Article 13 below). Cross Country shall
also indemnify Affinity Group for and hold Affinity Group harmless from and
against any liability for any acts or omissions of the actual providers of the
services hereunder ("Service Provider Claims"), as described in Section 5(b)
above, when such claim is made by an AGI Member or a third party (but not by
Affinity Group itself); provided, however, that Cross Country's obligation to
indemnify Affinity Group and hold Affinity Group harmless for Service Provider
Claims shall be limited to the insurance coverage maintained from time to time
by Cross Country and actually payable by the insurance company with respect to
each such Service Provider Claim. During the term of this Agreement, Cross
Country shall maintain a minimum of $20,000,000 of insurance coverage for this
purpose and Cross County shall cause Affinity Group to be named as an additional
insured on such insurance policy(ies) as may be maintained from time to time by
Cross Country providing coverage to Cross Country for claims by AGI Members
alleging liability for the acts or omissions of any service provider, and Cross
Country shall deliver to Affinity Group from time to time, upon written request
therefor by Affinity Group, a certificate evidencing such naming.
-8-
(b) Affinity Group agrees to indemnify, defend and hold Cross Country
harmless from and against any claims, demands, suits, liabilities and any costs
and expenses, including reasonable attorneys' fees, arising from or in
connection with (i) the conduct of Affinity Group or its subsidiaries or
affiliates, including, without limitation, sales of and promotion of sales
memberships in the Good Xxx Club or any other AGI Club, (ii) any breach of any
warranty or representation or agreement on its part made herein, and (iii) an
"Affinity Group Breach" (as defined in Article 13 below).
72
(c) The provisions of this Article 6 shall survive expiration or
termination of this Agreement.
7. The relationship between Cross Country and Affinity Group shall be one
of independent contractors, and not one of joint venture, partnership or
employment, and nothing in this Agreement shall be construed to create any
relationship other than independent contractors between the parties hereto.
8. (a) The failure of either party to enforce at any time, or for any
period, the provisions of this Agreement shall not be construed as a waiver of
such provisions or of the right of such party thereafter to enforce each and
every such provision. No claim or right arising out of the breach or default of
this Agreement may be discharged in whole or in part by a waiver or renunciation
of such claim or right unless such waiver or renunciation is in writing and
signed by the aggrieved party.
(b) If any action at law or in equity shall be instituted to enforce
or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorneys' fees, costs and necessary disbursements in addition to
any other relief to which it may be entitled.
(c) This Agreement shall be governed by and construed in accordance
with the substantive laws of the State of Colorado.
9. (a) In the event that:
(i) either Cross Country or Affinity Group shall neglect or fail
to perform any of its respective duties or observe any of
the conditions, provisions, terms and covenants contained in
this Agreement, and such neglect or failure shall continue
uncured for a period of thirty (30) days (ten (10) days in
the case of the neglect or failure to pay money to the
-9-
other) after receipt of written notice from the other party of such neglect or
failure;
(ii) any interest of either Cross Country or Affinity Group
under this Agreement shall be taken on execution or by
other process of law;
(iii) either Cross Country or Affinity Group shall commit an act
of bankruptcy or become insolvent according to law;
(iv) either Cross Country or Affinity Group makes an assignment
for the benefit of creditors;
(v) a receiver, guardian, conservator, trustee or assignee or
any similar officer or person is appointed for either Cross
Country or Affinity Group by any court and not discharged
within thirty (30) days of such appointment; or
(vi) any court shall enter an order with respect to either Cross
Country or Affinity Group providing for a general
modification or alteration of the rights of its creditors;
73
then the other party may elect, then or at any time thereafter but prior to the
curing of the event of default, to give written notice of its intention to
terminate this Agreement immediately or on any subsequent date specified in such
notice, and this Agreement shall thereafter be terminated, without prejudice to
any remedies for any and all claims held by the terminating party against the
other, all of which shall immediately become due and payable.
(b) If either Affinity Group or Cross Country shall breach or be in
default under this Agreement, then whether or not this Agreement shall be
terminated for any default as set forth in subparagraphs (i) through (vi) above
for any breach hereof, the party found to be in default or breach shall pay to
the prevailing party all reasonable costs incurred by the prevailing party in
enforcing any of its rights hereunder, or in collecting any sums due and payable
to it hereunder, including reasonable attorneys' fees.
10. (a) It is agreed that if any provisions of this Agreement shall be
determined to be void by any court of competent jurisdiction, then such
determination shall not affect any other provisions of this Agreement, all of
which other provisions shall remain in full force and effect (unless such
determination shall render either party's performance hereunder substantially
more difficult to perform, in which case upon the giving of proper notice this
-10-
Agreement may be terminated by either party). Further, it is the intention of
the parties hereto that if any provision of this Agreement is capable of two
constructions, only one of which would render the provision valid, then the
provision shall have the meaning which renders it valid.
(b) This Agreement amends, restates and replaces the Original
Agreement in its entirety. This instrument contains the entire and only
agreement between the parties, and no oral statements or representations or
prior written matter not contained in this instrument shall have any force or
effect. This Agreement shall not be modified in any way except by a writing
subscribed by the parties by their duly authorized representatives.
(c) All notices and other communications authorized or required
hereunder shall be in writing and shall be deemed duly given if sent by
certified or registered mail, return receipt requested, or by recognized
overnight delivery service (e.g., Federal Express, Airborne, etc.), in each case
fees and postage prepaid. If given to Cross Country, the same shall be sent to
it at:
Cross Country Motor Club, Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, President,
with a copy to:
74
Lane & Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.,
or to such other person or at such other address as Cross Country may hereafter
designate by notice to Affinity Group. If given to Affinity Group, the same
shall be sent to it at:
Affinity Group, Inc.
0000 Xxxxx Xxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: President,
with a copy to:
Xxxxx Xxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
-11-
and
Xxxxxx, Xxxxxxxx and Xxxxxx, P.A.
0000 Xxxxxxx Xxxxxx
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. York, Esq.,
or to such person or at such other address as Affinity Group may hereafter
designate by notice to Cross Country. It is understood and agreed by the
parties hereto that copies of the notices to be delivered as specified above are
intended for informational purposes only, and that failure to deliver such
copies shall not invalidate any notice otherwise properly given as provided
above as long as the party giving notice has made a good faith effort to
properly deliver such copies.
11. For those states in which Cross Country Motor Club of California,
Inc., rather than Cross Country Motor Club, Inc., shall be permitted to conduct
business, the obligations of Cross Country under this Agreement may be performed
by Cross Country Motor Club of California, Inc. Accordingly, Cross Country
Motor Club of California, Inc. joins in this Agreement for such purposes. In
such case, any reference to Cross Country shall where applicable mean and refer
to Cross Country Motor Club of California, Inc., it being understood that Cross
Country shall remain jointly and severally liable with respect to all such
obligations. Until further notice, all sums shall be made payable to Cross
Country Motor Club, Inc., and shall be delivered to it at the place above
provided for the rendering of notices. Any notice given by or to Cross Country
Motor Club, Inc., shall be deemed notice also given by or to Cross Country Motor
Club of California, Inc.
75
12. Cross Country shall supply to Affinity Group (a) substantially the
reports described in Exhibit C attached hereto and hereby made a part hereof at
the respective times therein indicated, and (b) such other information in the
possession of Cross Country as Affinity Group may from time to time reasonably
request with respect to the items for which Affinity Group is required to
reimburse or pay Cross Country in connection with the services to be provided by
Cross Country hereunder, including copies of supporting information relating to
the costs of such services or any other costs incurred by Cross Country that are
required to be reimbursed by Affinity Group in accordance with the terms hereof.
Affinity Group shall have the right from time to time, upon reasonable prior
notice, to inspect such
-12-
portion of Cross Country's books and records relating directly to the Emergency
Road Service Program as will allow Affinity Group to verify the correctness of
the amounts that Affinity Group is required to pay to Cross Country hereunder.
13. (a) In the event that it shall be or become unlawful for Affinity
Group to offer the Emergency Road Service Program or for Cross Country to
provide the services contemplated hereunder in any state, Affinity Group and
Cross Country shall each have the right to terminate this Agreement with respect
to the state(s) in which it is or has become unlawful to offer the Emergency
Road Service Program or to provide such services. If and to the extent so
terminated, AGI Members in that state(s) shall thereafter not be deemed to be
AGI Members for purposes of this Agreement. The parties hereto acknowledge that
(i) Affinity Group is responsible to obtain and maintain all licenses,
authorizations and approvals that, assuming compliance by Cross Country with its
obligations set forth herein, are required by any state to be obtained and/or
maintained in connection with the offering and implementation of the Emergency
Road Service Program in that state as contemplated hereunder, and (ii) Cross
Country is responsible to obtain and maintain all licenses, authorizations and
approvals that are required by any state to provide services of the type
contemplated to be provided to members hereunder in general but unrelated to
this specific Agreement. Any breach by Affinity Group of its obligations under
the preceding sentence is referred to as a "Affinity Group Breach" and any
breach by Cross Country of its obligations under the preceding sentence is
referred to as a "Cross Country Breach".
(b) In the event that (i) this Agreement is terminated by Cross
Country as to any state as set forth in such paragraph (a) immediately above
because of an Affinity Group Breach or a Cross Country Breach, as the case may
be, and (ii) termination of this Agreement with respect to such state shall have
a material impact upon the aggregate of the transactions contemplated under this
Agreement, either party shall have the right to terminate this Agreement in its
entirety, provided that any such termination shall be made by written notice to
the other party, given within sixty (60) days after termination hereof with
respect to one
76
state as aforesaid, and that any such termination of this Agreement in its
entirety shall be upon no less than ninety (90) days prior notice.
14. Affinity Group agrees that it will not distribute or use any
promotional materials referring to Cross Country and/or any of the services to
be provided by Cross
-13-
Country hereunder without on each occasion first obtaining the written consent
of Cross Country.
15. Each party represents and warrants to the other as follows:
(a) the execution and delivery of this Agreement has been duly
authorized and adopted by resolution or ratification by all
necessary parties or bodies;
(b) its obligations under this Agreement are legal, valid and binding
obligations enforceable against it in accordance with its terms;
and
(c) it is not a party to, or is bound by, any contractual agreement
or instrument which would prevent or impede or restrict its
performance under this Agreement and that it is not a party to
any litigation which would prevent or impede the performance of
its obligations under this Agreement.
16. (a) Except for an assignment by Cross Country to an entity that is
controlled by Cross Country or under common control with Cross Country, Cross
Country may not assign all or any portion of its interest in this Agreement
without obtaining the prior written consent of Affinity Group. If Cross Country
desires to assign its interest in this Agreement during the term hereof, where
consent by Affinity Group to such assignment is required pursuant hereto, Cross
Country shall give Affinity Group written notice of such intent to assign.
Within thirty (30) days after Cross Country shall have notified Affinity Group
of Cross Country's intention to consummates such assignment, Affinity Group
shall notify Cross Country of its intent to consent to such assignment by Cross
Country or, alternatively, to terminate this Agreement. In the event Affinity
Group shall fail or refuse to give such consent within thirty (30) days after
Cross Country shall have given Affinity Group notice of Cross Country's
intention to consummate such assignment and Cross Country shall desire to effect
such assignment nonetheless, Affinity Group's sole remedy shall be termination
of this Agreement. Such termination shall be effective one hundred twenty (120)
days after the earlier of (i) the date on which Affinity Group has notified
Cross Country of Affinity Group's intent to terminate this Agreement, or (ii) if
Affinity Group has not theretofore given notice to Cross Country of Affinity
Group's consent to such assignment or of Affinity Group's intent to terminate
this Agreement, thirty (30) days after Cross Country shall have
-14-
77
notified Affinity Group of Cross Country's intention to consummate such
assignment. Unless Affinity Group shall have otherwise agreed in writing, no
such assignment shall relieve Cross Country of its obligations under this
Agreement.
(b) Except for an assignment by Affinity Group to an entity that is
controlled by Affinity Group or under common control with Affinity Group,
Affinity Group may not assign all or any portion of its interest in this
Agreement without obtaining the prior written consent of the Cross Country. If
Affinity Group desires to assign its interest in this Agreement during the term
hereof, where consent by Cross County to such assignment is required pursuant
hereto, Affinity Group shall give Cross Country written notice of such intent to
assign. In the event Cross Country shall fail or refuse to give such consent
and Affinity Group shall desire to effect such assignment nonetheless, Cross
Country's sole remedy shall be termination of this Agreement, which termination
shall be effective 120 days after Affinity Group shall have notified Cross
Country of Affinity Group's intention to consummate such assignment. Unless
Cross Country shall have otherwise agreed in writing, no such assignment shall
relieve Affinity Group of its obligations under this Agreement.
17. The parties hereto agree that all disputes arising under or relating
to this Agreement or the transactions contemplated hereunder shall be subject
solely to binding arbitration, held in accordance with the rules of the American
Arbitration Association. In addition to, and not by way of limitation of, the
rules of the American Arbitration Association, in any arbitration proceeding
hereunder the parties shall each have the right to perform full discovery and to
call witnesses to the extent allowed by the rules of civil procedure of the
applicable jurisdiction as long as such procedures do not unduly delay
completion of the arbitration process. Judgment upon the award rendered may be
entered and enforced in any court having jurisdiction thereof.
-15-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first written in this Agreement.
CROSS COUNTRY MOTOR CLUB, INC.
By: /s/
---------------------------
Xxxxxx Xxxxxxxx
VP Sales
CROSS COUNTRY MOTOR CLUB OF
CALIFORNIA, INC.
By: /s/
---------------------------
Xxxxxx Xxxxxxxx
VP Sales
78
AFFINITY GROUP, INC.
By: /s/
---------------------------
Xxxxx Xxxxx
Its: Sr. Vice President
----------------------------
-16-
79
EXHIBIT A
SERVICES TO BE PROVIDED TO
THE AGI MEMBERS
The following services shall be provided on a "sign and drive" basis (no cash
outlay by the AGI Member) except that such services shall be only on an
immediate Member reimbursement basis in Mexico.
1. TOWING:
a) MECHANICAL DISABLEMENT:
Cross Country shall provide for the towing of AGI Member's disabled
vehicle, to the nearest, as determined by Cross Country, repair
facility qualified to remedy the disabled vehicle's mechanical
problem. Should the AGI Member request to be towed to an alternate
service center or location which will require additional towing
mileage, any and all additional costs shall be the responsibility of
the AGI Member. All costs associated with repair parts, repair labor,
and repair services shall be the responsibility of the AGI Member.
b) COLLISION:
Cross Country shall provide for the towing of AGI Member's damaged
vehicle to the nearest, as determined by Cross Country, repair
facility qualified to repair the damaged vehicle. Should the AGI
Member request to be towed to an alternate service center or location
which will require additional towing mileage, any and all additional
costs shall be the responsibility of the AGI Member. All costs
associated with repair parts, repair labor, and repair services shall
be the responsibility of the AGI Member.
2. ON-SITE EMERGENCY ROADSIDE ASSISTANCE SERVICES:
a) OUT OF FUEL:
Cross Country shall provide for the delivery of up to 5 gallons of
fuel to stranded AGI Members (except where prohibited by law).
b) FLAT TIRE:
Cross Country shall provide for replacement of AGI Member's flat tire
with inflated spare tire, or shall provide for delivery of a
replacement tire if necessary. The actual cost of the replacement
tire, mounting, and balancing will be at the AGI Member's expense.
-i-
c) JUMP-START/BATTERY BOOST
Cross Country shall provide for a jump start of the AGI Member's
drained battery, or delivery of a replacement battery to the AGI
Member if necessary. The actual cost of the replacement battery and
labor to install the battery will be at the AGI Member's expense.
d) LOCKOUT - LOCKSMITH
Cross Country shall provide for the delivery of locksmith services to
the stranded AGI Member, and assist in the opening of the AGI Member's
locked vehicle, and/or obtaining a replacement key. Actual cost of
key replacement will be at the AGI Member's expense.
80
e) EMERGENCY FLUIDS
Cross Country shall provide for the delivery of emergency fluids to
the stranded AGI Member. Fluids include oil, water, transmission
fluid, power steering fluid, and brake fluid, as necessary to remedy
the disablement.
3. OTHER SERVICES:
Cross Country shall provide for trip interruption, trip
routing/planning/mapping and basic concierge services, such as assisting
with finding alternate transportation, lodging and/or food.
4. INFORMATION CALLS:
Cross Country shall respond to all AGI Member inquiries regarding emergency
road services, or if unable to respond, refer to Affinity Group for
appropriate response.
The Program does not offer reimbursement for the cost of parts, fuel or labor
for repairs or installations, unless authorized by Affinity Group.
-ii-
81
EXHIBIT B
OPERATING PARAMETERS
AGI Member calls are to be answered as follows:
1. All calls are to be answered by a live operator or electronic message
not to exceed three rings plus the length of the electronic message.
2. A minimum of 80% of all calls must be answered by a live operator
within 30 seconds of caller having heard the initial announcement.
3. The average waiting time for calls placed in queue shall be 40 seconds
or less.
4. 80% of estimated time of arrivals are to average 35 minutes and are
not to exceed 60 minutes from the time of the dispatch unless due to
circumstances beyond the control of Cross Country.
5. A combination of process will be used to assure that dispatches are
properly handled and closed within the guidelines specified in item 4
above. These will include, but are not limited to, the following
(which may be modified from time to time upon the mutual agreement of
the parties):
a) An "open dispatch" exception report will be run daily
and reviewed by appropriate supervisory personnel.
b) Routine selective silent monitoring will be performed
with each call center representative assigned to the
emergency road service program.
c) Routine selective outbound "QC" calls will be made to
vendors and AGI Members.
d) Vendors will be instructed to contact Cross County in
the event an AGI Member's vehicle is not found at the
location designated by the AGI Member, or if the vendor
is unable to perform the agreed upon road service.
6. An average overall monthly score of at least 95% excellent/good rating
on quality assurance survey items directly relating to the performance
of Cross Country and the tow operators used for dispatch must be
maintained. Cross County will be responsible for the preparation,
dissemination and collection of all surveys, at its sole expense.
Affinity Group shall have approval rights with respect to the content
and style of each survey questionnaire. The survey score shall be
computed each month by adding the scores of questionnaire items 4, 8
and 9 for such month, dividing the total by three and rounding the
results to the nearest rating.
7. First time callers to Cross Country will be specifically acknowledged,
in a format to be developed by Cross County and Affinity Group.
-i-
82
EXHIBIT C
DESCRIPTION OF REPORTS
1. Dispatch Claims Billing
2. Dispatch Claims Billing over $100
3. Claims Reimbursement Billing
4. Administrative Service Call Fees
5. Dispatch Service Call Fees
6. Voids
7. Voids over $100
8. Monthly Billing Recap
9. Trip Routings Fulfilled
10. Daily Call/Dispatch
11. Daily Quality Surveys for Mailing
12. Monthly Recap of Quality Surveys
13. Daily Dispatch Exception Alert
14. Monthly Dispatch Reason by Vehicle Type
15. Monthly Abusers
-i-
83
