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EXHIBIT 10.116
[RCI LOGO]
OWNERS ASSOCIATION AGREEMENT
This 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 ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇.▇.▇. ("RCI"), , an owners association comprised of
the owners of Timeshare Interests at the Resort, having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ("Association").
RECITALS
A. RCI makes available the RCI Exchange Program to individuals who purchase or
acquire Timeshare Interests in RCI Affiliated Resorts.
B. Association represents owners of 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. Association 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 Association to offer to
Purchasers and owners of Timeshare Interests in the Resort 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
Association to perform services and duties associated with the RCI Exchange
Program in accordance with the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and obligations
contained in this Agreement, the parties hereby agree as follows:
ARTICLE I -- 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 Association's Application for Resort
Affiliation, including any attachments thereto, which is required to be
submitted by 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 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 Association from time to time.
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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
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 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 vacations ownership plans.
1.18 UNIT: A unit of accommodation of movable 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 Association 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 recission 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, will provide to Association a sufficient quantity of
forms as required by RCI to administer the RCI Exchange Program at no charge.
Association may order and shall pay RCI's published rates for additional
materials such as the Endless Vacation Special Resort Edition, the RCI
Disclosure Guide to Vacation Exchange and other materials to distribute as may
be required by law.
ARTICLE 3 -- ASSOCIATION'S OBLIGATIONS
3.1 ENROLLMENT APPLICATION AND FEES. If Association or its Resellers offer
Timeshare Interests in the Resort to Purchasers or Prospective Purchasers, it
agrees it 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
new 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. 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 owners of Timeshare Interests in
the Resort. 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 new Purchasers
at the Resort;
3.2.2 making the Endless Vacation Special Resort Edition magazine and
Enrollment Applications available to all Purchasers and owners
of Timeshare Interests in the Resort; and
3.2.3 encouraging continued membership in the RCI Exchange Program.
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3.3 MINIMUM PERFORMANCE REQUIREMENT. Association acknowledges that if its
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 Association.
3.4 PHOTOGRAPHS, NAMES AND LOGOS. Association agrees to provide to RCI at
least two (2) photographs or representative images of the Resort. Association
agrees that these images, along with the name(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. Association represents and warrants
to RCI that: (a) Association owns, has acquired or licensed the trademark and
copyright rights in and to such images, names and logos and (b) 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 or image as contemplated herein. Further,
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 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 MANAGEMENT DUTIES. Association agrees:
3.5.1 on RCI's request, to promote new services and benefits provided
by RCI to RCI Members;
3.5.2 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;
3.5.3 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;
3.5.4 to operate its business in a commercially reasonable fashion
that will enable it to meet its obligations;
3.5.5 to honor all Confirmed Exchanges at the Resort;
3.5.6 to provide all RCI Members and Exchange Guests with the services
and facilities referred to in the Application for Affiliation
and this Agreement;
3.5.7 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;
3.5.8 to act in a reasonable and co-operative manner to satisfy any
complaints;
3.5.9 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;
3.5.10 not to require Exchange Guests staying at the Resort to attend
a sales presentation;
3.5.11 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;
3.5.12 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
3.5.13 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 Association's obligations of management and maintenance of
the Resort).
3.6 CHANGE IN INFORMATION. Association 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.
3.7 NON-INTERFERENCE. During the term of this Agreement and following its
termination, Association shall not in any manner:
3.7.1 encourage any Purchaser or any other timeshare owner or RCI
Member, to modify, amend, rescind, contravene or cancel their
RCI membership;
3.7.2 encourage any owners association, club, developer or RCI
Affiliated Resort to modify, amend, rescind, contravene or
cancel its affiliation agreement with RCI; or
3.7.3 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.
3.8 NON-DISCLOSURE. During the term of this Agreement and after its
termination, Association 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 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 or
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Exchange Guest, or (e) the names, addresses or telephone numbers of RCI
Members. However, disclosure of the terms of this Agreement may be permitted
where such disclosure is required by law, provided that Association gives RCI
at least twenty (20) days written notice prior to such disclosure.
Notwithstanding the above, Association 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.
3.9 DENIAL OF ACCESS.
3.9.1 If 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 Association 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.
3.9.2 Neither 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.
ARTICLE 4 -- RELATIONSHIP OF THE PARTIES
4.1 REPRESENTATION OF RELATIONSHIP. Association shall fully and accurately
describe the RCI Exchange Program and Association's relationship with RCI to
Prospective Purchasers, Purchasers and owners of Timeshare Interests in the
Resort. To this end, Association:
4.1.1 shall not misrepresent in any way the RCI Exchange Program to
Purchasers, Prospective Purchasers or owners of Timeshare
Interests in the Resort, nor make any representation which could
lead to any confusion on the part of any Purchaser, Prospective
Purchaser or owner of Timeshare Interests in the Resort 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 owners association of this
resort; however the owners association of this resort is a party
to an agreement with RCI through which the owners association
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 owners association of this
resort and RCI will maintain an ongoing relationship, there is
no assurance that the agreement between the owners association
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 or image of any other RCI
Affiliated Resort or any other resort or hotel in any material
to be used in a sales presentation. Further, those names,
photographs and images 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 or image, and (d) any other
person whose permission is legally required to use such name,
photograph or image. SEE ATTACHED ADDENDUM
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 Association's
affiliation to the RCI Exchange Program as a warranty or
indication of the Association's or Resort's status or condition.
4.2 ACKNOWLEDGEMENT. Association acknowledges that:
4.2.1 RCI has the right to accept or reject any Enrollment
Application submitted to it; and
4.2.2 It shall have each Purchaser at the Resort who chooses not to
become an RCI Member acknowledge in writing that he understands
that he does not become an RCI Member unless an appropriate
Enrollment Application is tendered to and accepted by RCI and
the appropriate fees are received by RCI.
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4.3 APPOINTMENT OF RESELLERS. 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 Association requests and receives 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 Association's behalf. RCI will grant such approval
only upon fulfillment of the following conditions:
4.3.1 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 Association provides RCI with its thirty (30) day 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 Association provides RCI with its thirty (30) day notice a
Reseller's Acknowledgement in the form required by RCI from time
to time;
4.3.4 Association acknowledges and agrees that RCI may, at any time
during the thirty (30) day notice period referred to above: (a)
request additional information regarding the Reseller from
Association; and (b) refuse at its sole discretion to grant
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 Association's behalf. If
notice of refusal from RCI is not given during such thirty (30)
day period, Association may grant the Reseller a sublicense as
described herein;
4.3.5 Association acknowledges and agrees 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. Association shall notify all Resellers in writing of
such termination and 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. Association agrees 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. 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 Association's obligation to indemnify RCI as set forth
in this Agreement.
4.3.6 Association acknowledges and agrees 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
Association.
4.4 RESPONSIBILITIES OF ASSOCIATION. Association acknowledges and agrees
that, the appointment of Resellers notwithstanding, it is and remains 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 or Resellers; and (d)
ensuring that any and all Resellers fully comply with the terms of this
Agreement.
ARTICLE 5 -- ACKNOWLEDGEMENTS, REPRESENTATIONS AND WARRANTIES
5.1 ACKNOWLEDGEMENTS. Association acknowledges and agrees that:
5.1.1 it will offer the RCI Exchange Program only to Purchasers or
owners of Timeshare Interests in the Resort(s) identified in
Recital B;
5.1.2 it will not offer the RCI Exchange Program to Purchasers or
owners 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;
5.1.3 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;
5.1.4 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;
5.1.5 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;
5.1.6 the use of RCI Guest Certificates is personal to RCI Members and
no commercial use of RCI Guest Certificates may be made by
Purchasers, Association, or any or Association's officers,
directors, employees, sales representatives, brokers or agents;
5.1.7 RCI has the right to inspect the Resort and the sales records of
Association with respect to the Resort upon reasonable notice
and during regular business hours;
5.1.8 Association shall not assign or sublicense any or all or its
rights under this Agreement to any person without RCI's prior
written approval and any such attempted assignment of sublicense
shall be null and void;
5.1.9 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
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5.1.10 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 Association hereunder.
5.2 ACKNOWLEDGEMENT OF RELATIONSHIP. Association hereby acknowledges that:
5.2.1 it has no power to bind RCI in any manner;
5.2.2 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 Association;
5.2.3 the product(s) of 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. Association 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 Association with each submission of Enrollment Applications.
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 Association a non-exclusive license to use the
Marks only on and in connection with its services in promotion 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. Association 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, Association
shall not permit or authorize any other person or entity or any kind to use the
Marks in any manner.
6.2 ACKNOWLEDGEMENT. Association acknowledges that: (a) RCI is the owner
in the Unites Sates 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. Association
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, Association 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. Association 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. Association 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 Association from time
to time. Association 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. Association shall at all times consistently use the Marks
so as to ensure that RCI's rights are adequately preserved. Association 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. Association 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 or RCI in and to the Marks. In addition, Association
confirms that all use of the Marks by it or any of its approved sublicensees
shall inure to RCI's benefit. Association shall at any time execute any
documents reasonably required by RCI to confirm RCI's ownership of all rights in
and to the Marks.
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ARTICLE 7 -- TERMINATION & REMEDIES
7.1 GENERAL RIGHTS 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 Association in the event
the 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 Association if any
Reseller commits any act or omission which would constitute a
breach of this agreement if committed by Association which, if
capable of remedy, has not been remedied within thirty (30) days
notice from RCI;
7.2.3 immediately upon written notice to the Association if the
Association transfers a controlling interest in the Resort
without RCI's prior written consent;
7.2.4 immediately upon written notice to the Association if the
Association attempts to assign or sublicense all or any portion
of its rights and duties under this Agreement without RCI's
prior written approval;
7.2.5 immediately upon written notice to the Association if the
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 Association of not less than six (6)
months in the event the Association enters into any agreement or
arrangement other than with RCI that provides for internal or
external exchange services to owners of Timeshare Interests in
the Resort. In any event, 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 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 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 ASSOCIATION'S ACKNOWLEDGEMENTS.
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
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 OBLIGATIONS UPON TERMINATION. Upon termination of this Agreement:
7.4.1 RCI and Association shall honor all Confirmed Exchanges and
exchange privileges of Exchange Guests that are confirmed or
accrued prior to termination;
7.4.2 RCI and Association shall honor all Confirmed Exchanges and
exchange privileges of RCI Members who are owners of Timeshare
Interests in 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 owners
of Timeshare Interests in the Resort to participate in the RCI
Exchange Program following termination of this Agreement
provided that the Resort maintains high qualitative and
managerial standards. Association agrees to honor all present
and future Confirmed Exchanges or exchange privileges of
Purchasers, owners of Timeshare Interests in the Resort and
Exchange Guests;
7.4.4 Association shall immediately discontinue promoting, selling,
marketing or offering the RCI Exchange Program in any form to
Purchasers, Prospective Purchasers or owners of Timeshare
Interests in the Resort;
7.4.5 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;
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7.4.6 Association shall immediately cease using and thereafter abstain
from using the Marks and any name or ▇▇▇▇ similar thereto; and
7.4.7 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.
7.5 SUSPENSION. Upon breach by 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.
7.6 EQUITABLE RELIEF. Association acknowledges 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 of injunctive relief, as appropriate, in the
event of a breach or threatened breach of any such provisions by Association,
in addition to any other appropriate legal or equitable remedies.
7.7 WAIVER. Upon the termination of this Agreement, Association 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
Association or its Resellers following termination of this Agreement shall
entitle RCI to liquidated damages from the Association in the amount of One
Thousand Dollars (US$1,000) per day, which Association agrees is reasonable.
This liquidated damages remedy shall be in addition to any other remedies,
legal or equitable available to RCI.
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 either party pursuant to Section 7.1; provided, however,
that Association 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 Association:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
(b) if to RCI:
RESORT CONDOMINIUMS INTERNATIONAL, INC.
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Attention: Legal Services
8.3 LEGAL AND BINDING OBLIGATION. Association and the individual executing
this Agreement on behalf of Association, respectively, represent and warrant to
RCI that this Agreement has been duly and validly executed and delivered by
Association and constitutes a legal, valid, binding and enforceable agreement
of Association.
8.4 OBLIGATIONS BINDING ON REAL ESTATE. Association agrees 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.
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8.5 INDEMNIFICATION. Association 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 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 its respective directors,
officers, partners, employees, representatives, agents, brokers,
salesmen, independent contractors, or associates which would
constitute a breach of this Agreement if committed by
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 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).
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 the
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 thirty (30) days' notice
to the 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
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 Association and RCI; nothing
herein shall be construed to create a third-party beneficiary of any Purchaser,
RCI Member or other individual or entity. Association 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 ▇▇▇▇▇▇ County, Indiana,
U.S.A., unless RCI determines it 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 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.
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("Association")
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
AGREED TO AND ACCEPTED THIS 12th DAY OF APRIL, 1997
RESORT CONDOMINIUMS INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President
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ADDENDUM TO RCI OWNERS ASSOCIATION AGREEMENT
This Addendum to the RCI Owners Association Agreement ("Addendum") is
made and entered into on 12th day of April 1997, by and between ("Association")
and RESORT CONDOMINIUMS INTERNATIONAL, INC. ("RCI")
WHEREAS, RCI and Association desire to amend certain provisions
contained in the RCI Owners Association 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
conditions 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. Preferred Equities Corporation ("PEC") will comply to Article 4.1.4 with
the exception of PEC's internal resorts. PEC reserves the present and
future right to use our own resorts, even though RCI affiliated, in any
material to be used in a sales presentation or any other manner without
obtaining the prior written consent of RCI.
IN WITNESS WHEREOF, the parties have executed this Addendum to RCI
Owners Association Agreement as of the day and year first above written.
("Association")
By: [SIG]
----------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
RESORT CONDOMINIUMS INTERNATIONAL, INC. ("RCI")
By: [SIG]
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President
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The following schedule relates to Exhibit 10.116 and sets forth the names of all
Homeowners Associations that have the identical contract agreements as this
exhibit (10.116) in all respects except for the name for the association. The
other associations which have the same Resort Condominiums International, Inc.
agreements are as follows:
Aloha Bay Condominium Homeowner's Association
Brigantine Inn Condominium Association, Inc.
Brigantine Villas Condominium Association, Inc.
The Grand Flamingo Fountains Owners Association
The Grand Flamingo Plaza Owners Association
The Grand Flamingo Suites Owners Association
The Grand Flamingo Terraces Owners Association
Grand Flamingo Terraces IV Owners Association
The Grand Flamingo Towers Owners Association
The Grand Flamingo Villas Owners Association
The Grand Flamingo ▇▇▇▇▇▇▇ Owners Association
Hilltop Resort Owners Association, Inc.
Pine Grove Condominium Owners Association
Reno Spa Resort Owners Association
RVS - Orlando Condominium Association, Inc.
Association of Owners of White Sands Waikiki Resort Club