RESORT AFFILIATION AGREEMENT
This RESORT AFFILIATION 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
CHARTHOUSE SUITES VACATION OWNERSHIP, INC., having its principal
place of business at 000 Xxxxxx Xxxxxxxxx, Xxxxxxxxxx Xxxxx,
Xxxxxxx 00000 ("Affiliate").
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)
C. Affiliate has submitted to RCI an Application for
Affiliation, a copy of which is incorporated by reference herein in
its entirety, and desires the Resort to become an RCI Affiliated
Resort, and for Affiliate 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.
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 Application
for Resort Affiliation, including any attachments thereto, which is
required to be submitted by Affiliate to RCI in connection with
this Agreement.
1.2 Confirmed Exchange: RCI's written notification to the
Resort and RCI Member or Exchange Guest 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 from
time to time:
RCI
RESORT CONDOMINIUMS INTERNATIONAL
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 Intentionally omitted.
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 it 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 if RCI rejects an Enrollment Application.
2.3 Fees. If an Enrollment Application is rejected by RCI or
is canceled 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 canceled Enrollment Application in
accordance with the procedures set forth in the RCI Procedures
Manual.
2.4 Materials. RCI, in order to assist Affiliate in offering
the RCI Exchange Program to Prospective Purchasers, shall provide
to Affiliate, upon acceptance of this Agreement by RCI, those
promotional materials as more fully set forth in Exhibit A attached
hereto. Thereafter, additional materials will be available to
Affiliate at RCI's published rates.
ARTICLE 3 - AFFILIATE'S OBLIGATIONS
3.1 Enrollment Application and Fees. During the term of this
Agreement and any renewal terms, Affiliate 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.
It is understood that the foregoing relates only to the
initial Purchaser from the Affiliate and only for the first year
for that Purchaser.
3.2 Promotion of Exchange Program. Affiliate 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 acknowledges
that if Affiliate's annual RCI Member Enrollment Applications do
not exceed fifty (50), 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.
3.4 Photographs, Names and Logos. Affiliate agrees to
provide to RCI at least two (2) photographs or representative
images of the Resort. Affiliate agrees that these images, along
with the names(s) and logo(s) of the Resort, are for non-exclusive
use by RCI or its licensees, at RCI's sole discretion, for the
promotion of the RCI Exchange Program. Affiliate represents and
warrants to RCI that: (a) Affiliate owns, has acquired or licensed
the trademark and copyright rights in and to such images, names and
logos, and (b) Affiliate 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 or image as contemplated herein. Further,
Affiliate 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
images or use of such images, names or logos. 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 N/A 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. Affiliate agrees to perform the
following management responsibilities:
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 cooperative manner
to satisfy any complaints;
3.6.9 to the extent permissible by law, to submit to
RCI upon RCI's requests, 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.
3.7 Change in Information. Affiliate agrees 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, Affiliate shall not:
3.8.1 encourage any Purchaser or any other timeshare
owner or RCI Member, to modify, amend, rescind,
contravene or cancel his/her 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
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 agrees that it shall not 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, (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 or Exchange Guest, or (e) the names,
addresses or telephone numbers of 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 gives RCI at least twenty (20) days
written notice prior to such disclosure, and (ii) where requested
by Affiliate's fiduciaries or proposed lenders, only if: (1)
Affiliate secures, 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 agrees 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 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 shall
immediately and at its own expense secure
alternative accommodations of similar size and
quality for the days the Affiliate is unable to
accommodate the Exchange Guest.
3.10.2 Neither Affiliate 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 hs been confirmed by RCI.
3.11 Protection of RCI's Interests. Affiliate agrees 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 shall fully
and accurately describe the RCI Exchange Program and Affiliate's
relationship with RCI to Prospective Purchasers and Purchasers. To
this end, Affiliate:
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 representation 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.
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 intentionally omitted.
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
affiliation to the RCI Exchange Program as a
warranty or indication of the Affiliate's, or
Resort's status or condition.
4.2 Intentionally omitted.
4.3 Intentionally omitted.
4.4 Responsibilities of Affiliate. Affiliate acknowledges
and agrees that it is and remains at all times directly and
primarily responsible for (a) the submission to RCI of RCI
Enrollment Applications and fees with respect to the initial
Purchaser from Affiliate; and (b) the content and correctness of
RCI Enrollment Applications it submits.
ARTICLE 5 - ACKNOWLEDGMENTS, REPRESENTATIONS
AND WARRANTIES
5.1 Acknowledgments. Affiliate acknowledges and agrees 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 Resort
Affiliation Agreement 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 Resort;
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 Certificate is personal to
RCI Members and no commercial use of RCI Guest
Certificates may be made by Purchasers, or
Affiliate, or any of its 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 with respect to the
Resort upon reasonable notice and during
regular business hours;
5.1.9 it may not assign or sublicense any or all of
it 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 during the
initial five (5) year term of this Agreement
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 hereunder.
5.2 Acknowledgment of Relationship. Affiliate hereby
acknowledges that:
5.2.1 it has no power to bind RCI in any manner;
5.2.2 Affiliate 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;
5.2.3 the product(s) of Affiliate (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 represents and
warrants to RCI 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 with each
submission of Enrollment Application.
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, individually, a non-exclusive license to use the Marks
only on and in connection with its 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. Affiliate shall not 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, Affiliate shall not permit or authorize any other
person or entity of any kind to use the Marks in any manner.
6.2 Acknowledgment. Affiliate acknowledges 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. Affiliate shall not 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, Affiliate shall not 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 agrees 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 may use
the Marks on its 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 from time to time. Affiliate agrees 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 shall at all times consistently use the Marks so
as to ensure that RCI's rights are adequately preserved. Affiliate
agrees 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. Affiliate shall not 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 confirms that all use of the Marks
by it or any of its approved sublicensees shall inure to RCI's
benefit. Affiliate 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 AND REMEDIES
7.1 General Right of Termination. Either 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
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 other party written
notice if the other party commits a breach of
any of the provisions of this Agreement which
breach is incapable of cure; or
7.1.3 by giving the other party 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 in the event the Affiliate: (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 Intentionally omitted.
7.2.3 immediately upon written notice to Affiliate if
Affiliate transfers a controlling interest in
the Resort without RCI's prior written consent;
7.2.4 immediately upon written notice to Affiliate if
Affiliate attempts to assign or sublicense all
or any portion of its rights and duties under
this Agreement without RCI's prior written
approval except for the sale of security
interests contemplated by the offering filed
with the Securities and Exchange Commission;
7.2.5 immediately upon written notice to Affiliate if
Affiliate 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 of not less
than six (6) months in the event Affiliate
enters into any agreement or arrangement other
than with RCI that provides for internal or
external exchange services to Purchasers. In
any event, Affiliate 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 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 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 Acknowledgments.
7.3.1 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 Obligations Upon Termination. Upon termination of this
Agreement:
7.4.1 RCI and Affiliate shall honor all Confirmed
Exchanges and exchange privileges of Exchange
Guests that are confirmed or accrued prior to
termination;
7.4.2 RCI and Affiliate 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;
7.4.3 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
qualitative and managerial standards.
Affiliate agrees to honor all present and
future Confirmed Exchanges or exchange
privileges of Purchasers and Exchange Guests;
7.4.4 Affiliate shall immediately discontinue
promoting, selling, marketing or offering the
RCI Exchange Program in any form to Purchasers
or Prospective Purchasers;
7.4.5 Affiliate 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;
7.4.6 Affiliate shall immediately cease using and
thereafter abstain from using the Marks and any
name or xxxx similar thereto; and
7.4.7 Affiliate 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.
7.5 Suspension. Upon breach by Affiliate, 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.
7.6 Equitable Relief. Affiliate acknowledges and agrees 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.
7.7 Waiver. Upon the termination of this Agreement as a
result of uncured default, Affiliate hereby expressly waives any
claim for a refund of any applicable fees remitted during the term
of this Agreement.
7.8 Limitations. Failure to cease using any one or more of
the Marks by Affiliate or its Resellers following termination of
this Agreement shall entitle RCI to liquidated damages from
Affiliate in the amount of One Thousand Dollars (US $1,000) per
day, which Affiliate agrees is reasonable. This liquidated damages
remedy shall be in addition to any other remedies, legal or
equitable, available to RCI with respect to failure to cease using
the Xxxx.
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 from the effective date of
Affiliate _____________ offering, but not later than August 31,
1997. 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 is 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:
CHARTHOUSE SUITES VACATION OWNERSHIP, INC.
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxx 00000
(b) 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 the
individuals executing this Agreement on behalf of Affiliate,
respectively, represent and warrant to RCI that this Agreement has
been duly and validly executed and delivered by Affiliate, and
constitutes a legal, valid, binding and enforceable agreement of
Affiliate.
8.4 Intentionally omitted.
8.5 Indemnification. Affiliate agrees 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 but only
with respect to claims made by third parties directly against RCI
resulting from, arising out of or in connection with:
8.5.1 any inaccuracy in a representation or warranty
made by Affiliate or any breach of any of its
obligations in this Agreement;
8.5.2 a failure of Affiliate 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 its directors,
officers, partners, employees, representatives,
agents, brokers, salesmen, independent
contractors, or associates which would
constitute a breach of this Agreement if
committed by Affiliate;
8.5.6 Intentionally omitted.
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 action on RCI Marks).
This indemnification and hold harmless provision shall survive
the termination of this Agreement for all applicable statutes of
limitation. RCI shall promptly provide to Affiliate written notice
of any such claim upon obtaining notice thereof and shall cooperate
with Affiliate in connection therewith.
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.
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
either 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 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 and RCI; nothing herein
shall be construed to create a third-party beneficiary of any
Purchaser, RCI Member or other individual or entity. Affiliate
acknowledges 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 the Affiliate 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.
CHARTHOUSE SUITES VACATION OWNERSHIP, INC.
("Affiliate")
By: /s/ Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxxxxx, President
AGREED TO AND ACCEPTED THIS 12th DAY OF APRIL, 1997.
RESORT CONDOMINIUMS INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Senior Vice President
EXHIBIT A
MATERIALS
RCI will provide the following materials to Affiliate:
(a) one (1) copy of the current RCI film, at a charge not to
exceed RCI's cost, and the right to use such RCI film in
accordance with the terms of RCI's agreement, if any, with
persons appearing in such films;
(b) three hundred (300) RCI promotional brochures at no charge;
(c) three hundred (300) copies of selected issues of "Endless
Vacation" magazine at no charge;
(d) one hundred fifty (150) copies of the current "Endless
Vacation Special Resort Edition" publication at no charge;
(e) one hundred seventy-five (175) RCI Membership forms;
(f) five (5) RCI Procedures Manuals;
(g) one (1) set of RCI posters;
(h) one (1) affiliation plaque;
(i) ten (10) orange member envelopes;
(j) twenty-five (25) weekly enrollment application report forms;
and
(k) one (1) RCI logo stat sheet.
ADDENDUM TO RCI RESORT AFFILIATION AGREEMENT
This Addendum to the RCI Resort Affiliation Agreement
("Addendum") is made and entered into on the ______ of
____________, 1997, by and between CHARTHOUSE SUITES VACATION
OWNERSHIP, INC. ("Affiliate") and RESORT CONDOMINIUMS
INTERNATIONAL, INC. ("RCI").
WHEREAS, RCI and Affiliate desire to amend certain provisions
contained in the RCI Resort Affiliation Agreement ("Agreement")
executed contemporaneously herewith.
NOW THEREFORE, in consideration of the mutual covenants and
conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. The Agreement is hereby specifically incorporated as part
hereof. In all respects other than as specifically herein
modified, the terms and condition of the Agreement shall continue
in full force and effect.
2. To the extent any conflict of terms and conditions exist
between this Addendum and the Agreement then the terms and
conditions of this Addendum shall supersede and control.
3. Capitalized terms as used herein, unless otherwise
defined, have the same definition as used in the Agreement.
4. The first sentence in Section 3.5 Reserve Units is hereby
deleted in its entirety and replaced with the following:
Affiliate agrees to make available to the RCI Exchange
Program a total of six (6) weeks (five weeks in a studio
unit and one week in a one bedroom) at the Resort during
the period February 7, 1997, through December 31, 1997,
as designated in written notice to RCI at least fourteen
(14) days prior to when the weeks in such units are
available.
IN WITNESS WHEREOF, the parties have executed this Addendum to
RCI Resort Affiliation Agreement as of the day and year first above
written.
CHARTHOUSE SUITES VACATION OWNERSHIP, INC. ("Affiliate")
By: /s/ Xxxxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxxxxx, President
RESORT CONDOMINIUMS INTERNATIONAL, INC. ("RCI")
By: /s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Senior Vice President
