EXHIBIT 10.30
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 ▇▇▇ 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
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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 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
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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).
(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 ▇▇▇▇ 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.
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FEE SCHEDULE
------------
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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.
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Roadside Assistance $18.20 per dispatch (with minimum payments
Dispatch Fee hereafter by Affinity Group to Cross Country
of $1,547,000 per year)
------------------------------------------------------------------------------
Inbound, non-dispatch $1.50 per call
related (i.e.,
information, membership
and miscellaneous, etc.
of whatever nature, not
resulting in roadside
assistance or trip
routing fees)
------------------------------------------------------------------------------
Trip Routing Fees (per $8.50 deluxe, plus postage
trip): $3.00 regular, plus postage
------------------------------------------------------------------------------
Information Systems Special Information Systems Requests includes
Request 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.
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(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
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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
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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 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
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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.
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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
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the recipient's holding such information in confidence (other than in
connection with public 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
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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
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, (▇▇) 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
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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
76
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.
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(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 ▇▇▇ 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).
(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,
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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
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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;
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
78
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
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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.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, President,
with a copy to:
Lane & ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, 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.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President,
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with a copy to:
▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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and
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. 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.
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
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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
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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".
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(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 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
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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
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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
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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
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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.
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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/
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
VP Sales
CROSS COUNTRY MOTOR CLUB OF
CALIFORNIA, INC.
By: /s/
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
VP Sales
AFFINITY GROUP, INC.
By: /s/
------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Its: Sr. Vice President
------------------------------
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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.
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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.
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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.
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.
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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.
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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
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