EXHIBIT 10.36
INTERVAL
INTERNATIONAL
THE QUALITY VACATION EXCHANGE NETWORK
RESORT AFFILIATION AGREEMENT
AGREEMENT made and entered into by and between INTERVAL INTERNATIONAL, INC., a
corporation duly organized and existing under the laws of the State of Florida,
with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter referred to as "INTERVAL," and
Beartown Development Inc.
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(Exact Name of Development Entity)
a/an Pennsylvania Corporation
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(Type of Entity and State of Registration)
with a principal place of business at ▇▇▇ ▇▇▇▇, ▇▇#▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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hereinafter referred to as "AFFILIATE" AND
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a/an
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(Type of Entity and State of Registration)
with its principal place of business at
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hereinafter referred to as "ASSOCIATION." INTERVAL, AFFILIATE and ASSOCIATION
are sometimes collectively referred to as the "Parties."
WHEREAS, INTERVAL is engaged in the business of providing and operating a
vacation exchange service to facilitate the exchange of accommodations between
owners of Vacation Interests (as defined herein) at participating resorts,
hereinafter referred to as the "INTERVAL NETWORK;" and
WHEREAS, AFFILIATE is developing or has developed a resort vacation
ownership program known as Oak 'n Spruce Resort
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(NAME OF PROGRAM)
located at ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
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to consist, or consisting, of the units and amenities as described herein, and
to be no less than 12 studios, 90 one-bedroom, 29. two-bedroom, and 0
three-bedroom units, hereinafter collectively referred to as the "PROJECT;" and
WHEREAS, ASSOCIATION is an association of owners comprised of individuals
who own Vacation Interests at the PROJECT, and ASSOCIATION is or will be
responsible for the management of the PROJECT; and
WHEREAS, AFFILIATE and ASSOCIATION desire to include the PROJECT as a
participant in the INTERVAL NETWORK.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties agree
as follows:
A. DEFINITIONS.
Unless a different meaning clearly appears from the context, the following
capitalized terms when used in this Agreement shall have the meaning set forth
below:
1. "Confirmation" or "Confirmed Exchange" means a written or oral
acknowledgment that an exchange request has been fulfilled by
INTERVAL.
2. "Effective Date" means the date this Agreement was executed by
INTERVAL.
3. "Exchange Guest" means the individual who has been issued a
Confirmed Exchange to the PROJECT by INTERVAL
4. "Individual Member" means any purchaser/owner of a Vacation
Interest at the PROJECT properly enrolled in the INTERVAL NETWORK
(whether by AFFILIATE, transfer of membership, acceptance of a
membership offer from INTERVAL, or otherwise) and "Individual
Membership" shall be construed accordingly. An Individual Member
who is current in the payment of membership fees prescribed by
INTERVAL and who is in compliance with all terms and conditions
then in effect is referred to as an Individual Member in good
standing.
5. "Individual Membership Application" means the form or agreement
prescribed by INTERVAL, from time to time, for the enrollment of
Individual Members.
6. "Marks" mean the following, registered or unregistered, trademarks,
service marks or trade names: "Five Star Logo," "Flexchange,"
"Interval Logo," "Interval International," "Interval International
and Logo," "Interval International Five Star Award Program,"
"Interval International Traveler," "Worldex," "WorldCard,"
"WorldCard Preferred," and such other trademarks, service marks
and/or trade names, as may at any time be owned or claimed by
INTERVAL or any associated or affiliated company.
7. "Member Resort" means any resort which has entered into a written
agreement with INTERVAL to participate in the INTERVAL NETWORK
8. "Resort Membership Application" means the form completed by
AFFILIATE and/or ASSOCIATION, or on behalf of AFFILIATE and/or
ASSOCIATION, for application to the INTERVAL NETWORK, and includes
all documents and exhibits and any and all representations or
undertakings, whether written or oral, given or provided by
AFFILIATE, ASSOCIATION, or on behalf of AFFILIATE or ASSOCIATION,
to INTERVAL in connection with this Agreement, whether before or
after the Effective Date of this Agreement.
9. "Unit" means each apartment, villa, suite, or other unit of
accommodation designed for occupancy.
10. "Unit Week" means the use and occupancy of a Unit for a one-week
period. Each Unit, therefore, has available for use and occupancy
up to fifty-two (52) Unit Weeks per year.
11. "Vacation Interest" means the ownership of or the tight to use a
Unit and the amenities and facilities of a Vacation Ownership
Resort for at least one week during any given year, but not
necessarily consecutive years, and which extends for a period of at
least three years.
12. "Vacation Ownership Resort" means one or more Units subject to the
same time share or other vacation ownership plan, together with any
other property, or rights to property, appurtenant to those Units.
B. TERM AND RENEWALS.
The initial term of this Agreement is for six (6) years from the Effective
Date. Thereafter, this Agreement will automatically renew for additional periods
often (10) years each unless a Party gives to the other Parties written notice,
at least ninety (90) days prior to the expiration of the initial term of this
Agreement or any subsequent renewal term, of its intent not to renew. In the
event any Party chooses not to renew this Agreement, said notice of non-renewal
shall apply only to the Party giving said notice, and the Agreement shall
continue and be in full force and effect as it relates to all Parties who did
not serve a notice of non-renewal.
C. AFFILIATION FEE.
AFFILIATE agrees to pay an affiliation fee of $ 0 on or before
______________________. Upon execution of this Agreement by INTERVAL, such fee
is non-refundable.
D. INTERVAL NETWORK
1. INTERVAL'S DUTIES.
INTERVAL will provide:
(a) resort membership for the PROJECT in the INTERVAL NETWORK upon
such terms and conditions as are set forth in this Agreement;
(b) an exchange program for use by Individual Members in
accordance with the Terms and Conditions of Individual
Membership and Exchange, as amended from time to time by
INTERVAL;
(c) promotional materials for use by AFFILIATE in accordance with
this Agreement, and thereafter, such additional materials as
INTERVAL may make available from time to time at such rates as
INTERVAL may establish for such materials;
(d) such other benefits, privileges and/or discounts as INTERVAL
may have available from time to time to Individual Members in
good standing.
2. INDIVIDUAL MEMBERSHIP.
(a) For all sales of Vacation Interests at the PROJECT subsequent
to the Effective Date of this Agreement, AFFILIATE shall
provide INTERVAL with a completed Individual Membership
Application executed by each purchaser of a Vacation Interest
at the PROJECT and the applicable 1 year membership fee
prescribed by INTERVAL or its designated representative. Such
Individual Membership Application and fee shall be provided to
INTERVAL no later than thirty (30) days after the execution of
a purchase agreement by said purchaser, regardless of the
actual date of dosing or escrow requirements for said
purchase.
(b) All Individual Membership fees due under this Agreement shall
be delivered to INTERVAL in accordance with the fees schedule
then in effect, without set-off or deduction. In the event
AFFILIATE or ASSOCIATION receive renewal fees for Individual
Membership, said funds shall be forwarded to INTERVAL without
set-off or deduction upon receipt of such fees by AFFILIATE or
ASSOCIATION.
(c) [intentionally omitted]
(d) For each quarter, commencing with the quarter following the
expiration of the second anniversary of the Effective Date of
this Agreement, in which there are less than two hundred (200)
Individual Members in good standing with INTERVAL, INTERVAL
may assess AFFILIATE a service fee of five hundred dollars
($500.00) per quarter. INTERVAL shall invoice AFFILIATE at the
end of each three month period in which the service fee is
payable. AFFILIATE agrees to pay INTERVAL within fifteen (15)
days after receipt of such statement.
(e) AFFILIATE agrees to provide each purchaser of a Vacation
Interest at the PROJECT with a then current version of the
INTERVAL Resort Directory. Such Resort Directory shall be
provided to the purchaser at the time of execution of a
purchase agreement. AFFILIATE agrees to purchase such Resort
Directories from INTERVAL, in minimum quantities of fifty (50)
directories per order, at the price prescribed by INTERVAL,
plus applicable postage and shipping charges and taxes. Such
Resort Directories shall be shipped to AFFILIATE C.O.D.,
unless otherwise agreed to by INTERVAL. AFFILIATE shall be
entitled to deduct from the membership fee payable to INTERVAL
pursuant to sub-paragraph (a) above the per unit cost paid by
AFFILIATE (excluding any applicable shipping charges and
taxes) for a Resort Directory.
3. PRECONSTRUCTION OR RENOVATION.
(a) In the event the PROJECT's Units, amenities or facilities are
unavailable for occupancy due to construction or renovation,
AFFILIATE will advise each purchaser of a Vacation Interest at
the PROJECT, prior to enrollment with INTERVAL, that said
purchaser will not be entitled to utilize the INTERVAL NETWORK
until his/her Unit Week and the PROJECT are available for
occupancy as reasonably determined by INTERVAL The PROJECT
shall be deemed "unavailable for occupancy" until such time as
INTERVAL determines in its good faith judgment that the
PROJECT is sufficiently complete to be desirable for exchange
(e.g., Units complete and fully furnished, amenities available
for use, and remaining construction does nor interfere with
the use and enjoyment of completed Units, amenities and
facilities). An Individual Member in good standing who is
unable to use the exchange privilege due to construction
and/or renovation at the PROJECT shall be entitled to use such
other benefits, privileges and discounts as may be afforded to
Individual Members from time to time.
(b) In the event a portion of the PROJECT is. under construction
or renovation, AFFILIATE and/or ASSOCIATION agree that
Exchange Guests will be accommodated only in completely
renovated and fully furnished Units, and in Units where use
and enjoyment by the Exchange Guest will not be impaired by
the ongoing construction or renovation at the PROJECT.
(c) Notwithstanding the PROJECT's Units, amenities, or facilities
being unavailable for occupancy due to construction or
renovation, AFFILIATE'S obligation to enroll all purchasers
pursuant to Section D. Paragraph 2(a) of this Agreement shall
not be waived.
4. TERMS AND CONDITIONS.
(a) The terms and conditions of the INTERVAL NETWORK, including
but not limited to, the Terms and Conditions of Individual
Membership and Exchange, may be changed by INTERVAL from time
to time in its sole discretion.
(b) AFFILIATE and/or ASSOCIATION agree to comply with all
procedures reasonably established by INTERVAL, from time to
time, for the operation of the INTERVAL NETWORK.
5. EXCHANGE ACTIVITY.
(a) AFFILIATE and/or ASSOCIATION agree to honor all Confirmations
made by INTERVAL utilizing Unit Weeks relinquished by
Individual Members, as well as Unit Weeks provided by
AFFILIATE to INTERVAL in accordance with Section E, Paragraph
4 and such other Unit Weeks at the PROJECT as may be provided
by AFFILIATE and/or ASSOCIATION to INTERVAL from time to time.
If an Exchange Guest arrives at the PROJECT and the Unit
confirmed by INTERVAL is not available, AFFILIATE and/or
ASSOCIATION agree to provide at their expense substitute
accommodations (of the same or superior size and quality) at
the PROJECT, or they shall provide such substitute
accommodations (of the same or superior size and quality) at a
similar location of comparable quality with amenities and
facilities similar to that available at the PROJECT for the
same time period as that originally confirmed. Additionally,
AFFILIATE and/or ASSOCIATION shall be responsible for all
expenses incurred by the Exchange Guest or INTERVAL as a
result of the confirmed Unit not being available at the
PROJECT, including, without limitation, relocation expenses
and INTERVAL's standard administrative charge which is
currently one hundred U.S. dollars ($100.00). The provisions
of this Paragraph shall survive the expiration or termination
of this Agreement.
(b) In the event it is necessary for AFFILIATE or ASSOCIATION to
change the particular Unit into which an Exchange Guest has
been Confirmed, AFFILIATE and ASSOCIATION agree that the
replacement Unit shall be comparable or superior in all
respects (including, without limitation, the size of the Unit,
view from the Unit and amenities available in the Unit) to the
Unit into which INTERVAL issued the Confirmation.
(c) AFFILIATE agrees not to require any Exchange Guests to attend
a sales presentation regarding the PROJECT.
(d) AFFILIATE and ASSOCIATION agree not to participate in any
system or arrangement of exchange with any other Vacation
Ownership Resort during the term of this Agreement and any
renewals thereof
(e) AFFILIATE agrees that during the term of this Agreement or any
renewals thereof, the INTERVAL NETWORK will be the only
exchange program represented to prospective purchasers of
Vacation Interests at the PROJECT. AFFILIATE and ASSOCIATION
further agree that the INTERVAL NETWORK will be the only
exchange program recommended or otherwise promoted to owners
of Vacations Interests at the PROJECT. Additionally, AFFILIATE
and ASSOCIATION agree that the INTERVAL NETWORK shall be
utilized for all exchange requests, both internal and
external. Notwithstanding the foregoing~ this Paragraph shall
not be construed to prohibit an owner of a Vacation Interest
at the PROJECT from utilizing an exchange program other than
the INTERVAL NETWORK, if such individual had been previously
enrolled in another exchange program prior to the PROJECT's
initial affiliation with INTERVAL.
E. AFFILIATE'S PROGRAM.
1. PHASING AND AMENITIES.
(a) The PROJECT is included as a Member Resort with the mutual
understanding that a material condition for the PROJECT's
continued participation in the INTERVAL NETWORK is AFFILIATE's
strict adherence to the completion and availability of Units
and amenities as set forth in the attached Addendum.
(b) This Agreement encompasses all of the Units, buildings or
phases now or hereafter constructed where the PROJECT is
located or adjacent thereto. The inclusion of any additional
Units, buildings or phases, however, shall be subject to
adherence to the standards and criteria for resort membership
in effect at the time of inclusion.
2. REPRESENTATIONS AND WARRANTIES.
(a) AFFILIATE represents and warrants that it owns the real estate
and improvements constituting the PROJECT, or that AFFILIATE
has the contractual right to convey use tights in the PROJECT;
that the legal structure of the PROJECT is in compliance with
all applicable laws and that the marketing of the PROJECT is
in compliance with all applicable laws; that all monies paid
by an individual to purchase a Vacation Interest at the
PROJECT are placed in escrow or guaranteed by an independent
third party of standing until such time as the purchaser is
granted actual occupancy rights; that the legal structure of
the PROJECT guarantees the purchaser the undisturbed use of
the Units, amenities and facilities comprising the PROJECT for
the duration of the Vacation Interest purchased; that there
are no proceedings pending or threatened against or affecting
AFFILIATE or individuals or entities related thereto in any
court or before any governmental authority which involves the
possibility of adversely affecting the business or financial
condition of AFFILIATE or the PROJECT; that execution of this
Agreement and its performance hereunder is binding upon
AFFILIATE and will not conflict with or result in a breach of
any provision of any other agreement, charter, bylaw or other
instrument to which AFFILIATE or the PROJECT may be bound; and
that AFFILIATE has and will continue to comply with all
applicable laws and regulations of any jurisdiction where
compliance is required.
(b) ASSOCIATION represents and warrants that there are no
proceedings pending or threatened against or affecting
ASSOCIATION or individuals related thereto in any court or
before any governmental authority which involves the
possibility of adversely affecting the business or financial
condition of ASSOCIATION or the PROJECT; that execution of
this Agreement with INTERVAL and its performance hereunder is
binding upon ASSOCIATION and will not conflict with or result
in a breach of any provision of any other agreement, charter,
by-law or other instrument to which ASSOCIATION may be bound;
and that ASSOCIATION has and will continue to comply with all
applicable laws and regulations of any jurisdiction where
compliance is required.
(c) AFFILIATE and/or ASSOCIATION, as the case may be, represent
and warrant that they currently maintain and will continue to
maintain, at their sole cost and expense, a protection and
indemnity liability policy, including coverage for bodily
injury, property damage, personal and advertising injury
occurring on or about the PROJECT or in connection with the
PROJECT. Said policy shall afford minimum protection of not
less than One Million Dollars ($1,000,000) combined single
limit coverage for each occurrence. AFFILIATE and/or
ASSOCIATION shall cause INTERVAL and its officers, directors,
employees, agents and representatives to be named insureds
under the policy. A certificate showing such insurance in
force shall be delivered to INTERVAL within thirty (30) days
of the Effective Date of this Agreement, and upon any renewal
or replacement of the policy. Said certificate shall further
provide that not less than thirty (30) days prior written
notice be given to INTERVAL in the event of cancellation,
material change, alteration or amendment of the policy.
(d) AFFILIATE agrees to provide INTERVAL with an opinion letter
from a licensed independent attorney coveting those items set
forth in Exhibit "A", attached hereto and made a part hereof,
upon execution of this Agreement by AFFILIATE. AFFILIATE
further understands and agrees that it will not be entitled to
represent its participation in the INTERVAL NETWORK until
INTERVAL has received a satisfactory opinion letter from such
licensed independent attorney and has notified AFFILIATE of
same. Failure to provide such opinion letter, or any material
misrepresentation of the representations and warranties set
forth above or any information set forth in this Agreement,
the Resort Membership Application or any supporting documents,
shall be grounds for immediate termination of this Agreement
by INTERVAL.
(e) The Parties represent and warrant that the individuals
executing this Agreement on behalf of INTERVAL, AFFILIATE and
ASSOCIATION, are officers of their respective organizations
and duly authorized to execute this Agreement on behalf of
INTERVAL, AFFILIATE or ASSOCIATION, as the case may be.
3. DISCLOSURE.
(a) AFFILIATE agrees to provide either INTERVAL's most recent
disclosure statement and/or the INTERVAL Resort Directory, or
such other publication which contains the complete and then
current Terms and Conditions of Individual Membership and
Exchange, to all prospective purchasers of Vacation Interests
at the PROJECT prior to their execution of any contract for
purchase. Notwithstanding the foregoing~ AFFILIATE shall
provide INTERVAL's most recent disclosure statement if
required by law to do so.
(b) AFFILIATE further agrees to conspicuously include the
following statement, or a statement substantially similar to
the following, in its sales documents:
"This Resort has an agreement with Interval International,
Inc. ("Interval") of Miami, Florida, wherein Interval has
agreed to provide its Exchange Program to owners of vacations
interests at this Resort. Interval is an independently owned
and operated service company. The developer! marketer of this
Resort is not an agent for Interval and no representations or
promises made by such developer/marketer, or their agents, are
binding on Interval. Interval's responsibility for
representations regarding Interval's Exchange Program, as well
as Interval's current or future services, is limited to those
made in written materials furnished by Interval."
4. RESERVE ACCOMMODATIONS.
(a) AFFILIATE agrees to make available as reserve accommodations
for INTERVAL's exclusive use _____ studios, ____ one-bedroom,
1 two-bedroom, and ____ three-bedroom Units at the PROJECT
each week of the year commencing within one hundred twenty
(120) days after INTERVAL determines that the PROJECT is
available for occupancy and continuing thereafter for a period
of two years.
(b) AFFILIATE shall provide INTERVAL with a schedule of the Unit
Weeks reserved for INTERVAL's exclusive use for the current
calendar year no later than thirty (30) days after the
Effective Date of this Agreement. Additionally, AFFILIATE
agrees to provide INTERVAL on a yearly basis, on or before
October 1 of each year, with a schedule of the Unit Weeks
reserved for INTERVAL's exclusive use for the following year
in accordance with subparagraph (a) above.
(c) If for any reason AFFILIATE is unable to provide the reserve
accommodations delineated above, AFFILIATE shall be obligated
to provide comparable accommodations at a location which is
agreed upon by INTERVAL, at AFFILIATE's sole cost and expense.
(d) Additionally, if for any reason INTERVAL is unable to utilize
the reserve accommodations set forth above due to reasons
attributable to AFFILIATE (e.g. incomplete affiliation file,
construction delays) and AFFILIATE has not provided alternate
accommodations satisfactory to INTERVAL as set forth in
subparagraph (c) above, AFFILIATE shall be obligated to
provide an equal number of comparable accommodations at the
PROJECT after elimination of the deficiency which prevented
INTERVAL from utilizing such reserve accommodations at such
dates as are reasonably specified by INTERVAL.
5. MAINTENANCE OF STANDARDS.
(a) AFFILIATE and ASSOCIATION acknowledge the necessity for and
agree to establish and maintain a comprehensive program in
order to assure the continued high standards of service,
appearance, cleanliness, quality and management as evidenced
at the time of the PROJECT's initial acceptance by INTERVAL or
as reflected in the plans and supporting documents in the
event the PROJECT is under construction or renovation.
AFFILIATE and/or ASSOCIATION further agree to establish a
comprehensive program for the major renovations of the Units,
amenities, facilities, common elements and exterior of the
PROJECT.
(b) If it should be deemed necessary by INTERVAL as a result of
consumer complaints to inspect the PROJECT, AFFILIATE and/or
ASSOCIATION shall pay the actual cost of travel to the PROJECT
for one INTERVAL representative. AFFILIATE and/or ASSOCIATION
further agree to provide, without charge, suitable
accommodations at the PROJECT for such INTERVAL
representative, subject to availability.
(c) While INTERVAL may inspect as often as it deems necessary,
AFFILIATE and/or ASSOCIATION shall pay such expenses no more
than once in any calendar year, except in the event the
PROJECT is under construction or renovation, in which event
AFFILIATE may also be required to pay such expenses for one
additional inspection during such construction or renovation
period. AFFILIATE would only be required to pay for inspection
if in default.
(d) It shall be considered prima facie evidence of failure to
maintain standards if INTERVAL receives resort evaluations
from Exchange Guests which rate the PROJECT, Units, facilities
and/or amenities below an acceptable level as reasonably
determined by INTERVAL. AFFILIATE and/or ASSOCIATION will be
advised in writing of such evaluations.
6. SALES REPRESENTATIONS.
(a) AFFILIATE agrees to incorporate promotional materials
furnished by INTERVAL into the sales program at the PROJECT.
Additionally, AFFILIATE agrees to fully and accurately
describe the use of the INTERVAL NETWORK to all prospective
purchasers at the PROJECT.
(b) AFFILIATE acknowledges and agrees that it will not rely upon
the INTERVAL NETWORK as the primary motivation for its sales.
Individual Membership in INTERVAL shall be represented as an
adjunct service to purchasers of Vacation Interests at the
PROJECT.
(c) AFFILIATE further acknowledges and agrees that membership in
INTERVAL will not be offered as an investment interest or in
conjunction with the sale of a security.
(d) AFFILIATE further agrees that all sales and marketing relating
to the PROJECT shall be the responsibility of AFFILIATE.
AFFILIATE shall provide INTERVAL with thirty (30) days prior
written notice if any individual or entity other than
AFFILIATE is marketing the PROJECT. INTERVAL may, in the
exercise of its reasonable business judgment, prohibit such
other individual or entity from representing membership in
INTERVAL in conjunction with the marketing of the PROJECT.
Additionally, Interval reserves the right to suspend,
indefinitely, AFFILIATE's authority to represent the INTERVAL
NETWORK to prospective purchasers in the event that repeated
complaints arise regarding sales practices at or relating to
the PROJECT.
(e) AFFILIATE further agrees to immediately indemnify and hold
INTERVAL harmless against all actions, suits, demands, losses,
expenses, costs and fees, including attorneys' fees, of
whatever kind and nature incurred by INTERVAL arising out of
or in connection with the sale or marketing of Vacation
Interests at the PROJECT. The provisions of this subparagraph
(e) shall survive the expiration or termination of this
Agreement.
7. COLLATERAL MATERIALS.
(a) The Resort Membership Application, plans, renderings,
blueprints, models, designs, documents, addenda or other
exhibits submitted by, or on behalf of, AFFILIATE and/or
ASSOCIATION, to INTERVAL contain representations of the
current or future design, configuration, legal structure and
marketing of the PROJECT. Said representations are
specifically incorporated into and made a part of this
Agreement.
(b) AFFILIATE and/or ASSOCIATION agree to immediately notify
INTERVAL of any change in the information set forth in the
Resort Membership Application, plans, renderings, blueprints,
models, designs, documents, addenda, or such other exhibits
submitted to INTERVAL with respect to the PROJECT, including,
without limitation, any change in the projected marketing
areas. INTERVAL shall have the right to terminate this
Agreement upon thirty (30) days prior written notice if there
is any material change in such information. Additionally,
AFFILIATE acknowledges and agrees that it shall be required to
submit a legal opinion from a licensed independent attorney,
in a form satisfactory to INTERVAL, in the event the PROJECT
will be marketed in areas not specifically addressed in the
legal opinion letter provided pursuant to Section E. Paragraph
2(d).
8. AUDIT INFORMATION.
(a) AFFILIATE and/or ASSOCIATION shall provide INTERVAL with the
names, permanent addresses and telephone numbers, the type of
accommodations, Unit and week number purchased, including the
date of sale, for all owners of Vacation Interests at the
PROJECT on an annual basis as of December 31 of each year or
as requested by INTERVAL during the term of this Agreement.
Such information shall be provided within twenty (20) days of
the above-referenced date or within twenty (20) days of
INTERVAL's written request for said information. AFFILIATE
and/or ASSOCIATION further agree to provide, within twenty
(20) days of INTERVAL's written request, a list of all unit
numbers in the PROJECT, as well as the sleeping capacity for
each such unit and a yearly calendar for the PROJECT and such
other information about the PROJECT as may be reasonably
requested by INTERVAL.
(b) AFFILIATE and/or ASSOCIATION further agree to provide INTERVAL
with written notice of any resale, foreclosure or
other-transfer of ownership of any Vacation Interest at the
PROJECT as soon as AFFILIATE or ASSOCIATION become aware of
any such resale, foreclosure, or other transfer of ownership.
Additionally, AFFILIATE and/or ASSOCIATION agree to provide
INTERVAL with prompt written notice in the event any
Individual Member rescinds his/her purchase of a Vacation
Interest at the PROJECT.
(c) INTERVAL shall have the right to inspect the PROJECT's sales
and ownership records upon reasonable notice during normal
business hours at the PROJECT or such other place as these
records may be kept.
9. CHARGES.
(a) AFFILIATE and/or ASSOCIATION agree to impose the
responsibility to pay any bed tax, transient occupancy tax or
similar tax levied by any governmental body on the owner of
the Unit Week at the PROJECT which is to be occupied by an
Exchange Guest.
(b) AFFILIATE and ASSOCIATION acknowledge and agree that the
Exchange Guest shall be responsible for all personal charges
(e.g., telephone calls and meals), as well as for any damage
to the Unit, the PROJECT and/or the PROJECT's amenities or
facilities caused by an Exchange Guest or his invitees.
Consequently, INTERVAL shall not be liable, and AFFILIATE and
ASSOCIATION hereby release INTERVAL from liability, for any
loss incurred or damage to the Unit, the PROJECT, or the
PROJECT's amenities or facilities which may be caused by an
Exchange Guest or his invitees.
(c) AFFILIATE and/or ASSOCIATION agree to provide all Exchange
Guests with the same tights and privileges as those afforded
to owners of Vacation Interests at the PROJECT. Additionally,
AFFILIATE and ASSOCIATION agree that there shall be no fees
charged to Exchange Guests for use of any of the amenities or
facilities of the PROJECT or for any services relating to the
use and occupancy of the Unit Week including, but not limited
to. surcharges for electricity or air--conditioning or fees
for the weekly cleaning of the Unit or for gratuities, other
than as specifically set forth herein or as approved in
writing by INTERVAL.
F. USE OF NAME. LOGOS, SERVICE MARKS, AND MATERIALS.
1. USE IN PROMOTIONAL MATERIALS.
(a) AFFILIATE and ASSOCIATION shall have the right to indicate in
their promotional materials that the PROJECT is a Member
Resort of INTERVAL. Additionally, AFFILIATE and ASSOCIATION
shall be entitled to use in their promotional materials the
INTERVAL name and logo and such other Marks that INTERVAL has
indicated in writing that AFFILIATE or ASSOCIATION may use.
INTERVAL, however, expressly prohibits the use of any material
describing or offering the services of INTERVAL without first
obtaining its prior written approval. INTERVAL expressly
reserves the right to prohibit the making of representations
or the use of material which, in the judgment of INTERVAL, do
not accurately reflect INTERVAL or the INTERVAL NETWORK.
(b) AFFILIATE and ASSOCIATION acknowledge and agree that INTERVAL
is the owner of the Marks. AFFILIATE and ASSOCIATION further
agree to observe such reasonable requirements with respect to
service ▇▇▇▇ and trademark registrations as INTERVAL may
require from time to time, including without limitation,
affixing an "(R)" adjacent to all such registered marks in any
and all uses thereof.
(c) Any use of the INTERVAL name and logo or any other Marks which
INTERVAL has authorized AFFILIATE or ASSOCIATION to use in
writing must fully and prominently disclose that AFFILIATE or
ASSOCIATION, as the case may be, is an independent
organization and not affiliated with INTERVAL except as
provided by this Agreement. AFFILIATE and ASSOCIATION further
acknowledge and agree that any goodwill associated with the
use of the INTERVAL name and logo or any other Marks shall
inure directly and exclusively to INTERVAL.
2. RESTRICTIONS ON USE.
(a) The rights arising under this Agreement are exclusive to the
PROJECT. AFFILIATE and ASSOCIATION shall not use the INTERVAL
name and logo or any other ▇▇▇▇ or otherwise make any
reference to its participation in the INTERVAL NETWORK in
their promotional material in conjunction with any other
Vacation Ownership Resort other than that specifically
designated in this Agreement. AFFILIATE and ASSOCIATION
further agree not to use the names or photographs of other
Member Resorts in AFFILIATE's or ASSOCIATION's promotional
material without obtaining the prior written consent of
INTERVAL and such other resort.
(b) AFFILIATE and ASSOCIATION agree that they will not, directly
or indirectly, register or attempt to register any of the
Marks or any name or ▇▇▇▇ which is similar or likely to be
confused with the Marks.
G. SALE, LEASE OR ASSIGNMENT.
1. AFFILIATE agrees to provide INTERVAL with sixty (60) days prior
written notice of its intent to sell or lease the PROJECT (or a
portion thereof in bulk), or to assign this Agreement to any third
party.
2. Within thirty (30) days after receipt by INTERVAL of such written
notice from AFFILIATE, INTERVAL shall have the option to either:
(a) Consent to the assignment of this Agreement to such third
party if such sale or lease is in fact consummated. Concurrent
with the consummation of such sale or lease, AFFILIATE shall
cause such third party to agree in writing, in form and
substance satisfactory to INTERVAL, to perform under this
Agreement. An executed copy of such assumption agreement shall
be promptly delivered to INTERVAL. Notwithstanding the
foregoing, the sale or lease of the PROJECT or the assignment
of this Agreement, and the agreement of such third party to
perform under the terms of this Agreement, shall not relieve
AFFILIATE of its obligation to perform under the terms of this
Agreement as it relates to any portion of the PROJECT not
subject to the sale, lease or assignment.
(b) Notify AFFILIATE of its intent to terminate this Agreement,
which notice of termination shall establish the date of
termination ninety (90) days after the date of receipt by
INTERVAL of AFFILIATE's original notice. If AFFILIATE shall
not have consummated such sale, lease or assignment by the
established termination date to the third party named in the
original notice to INTERVAL, then the termination notice sent
to AFFILIATE shall be null and void, and this Agreement shall
continue in full force and effect.
3. The voluntary or involuntary sale, assignment, transfer or other
disposition of a controlling interest in AFFILIATE or the PROJECT
(i.e., the possession, directly or indirectly, of the power to
direct the management and sales of the PROJECT, whether through
ownership of stock, by contract or otherwise) shall be deemed a sale
or lease and shall be subject to the provisions set forth in
Paragraphs 1 and 2 of this Section G.
4. Subject to the foregoing paragraphs of this Section G, this
Agreement shall inure to the benefit of and be binding upon the
Parties hereto and their respective successors and assigns.
H. COVENANTS.
1. AFFILIATE and ASSOCIATION agree that they will at all times refrain
from interfering with or otherwise impairing the relationship
between INTERVAL and its members, including, but not limited to
Individual Members and Member Resorts.
2. So long as INTERVAL continues to provide exchange services to
Individual Members, AFFILIATE and ASSOCIATION agree not to solicit,
directly or indirectly, nor to assist any third party, directly or
indirectly, in the solicitation of, Individual Members for
membership or participation in any exchange program or system of
exchange other than the INTERVAL NETWORK Notwithstanding the
foregoing, this paragraph shall not be construed to allow AFFILIATE
or ASSOCIATION to solicit Individual Members or to assist in the
solicitation of Individual Members for membership or participation
in any other exchange program or system of exchange in the event
INTERVAL is required to suspend exchange privileges due to
AFFILIATE's or ASSOCIATION's failure to comply with the provisions
of Section D, Paragraph 5(a) of this Agreement.
3. AFFILIATE and ASSOCIATION agree that during the term of this
Agreement and for a period of one (1) year after this Agreement
expires or is terminated for any reason, neither AFFILIATE nor
ASSOCIATION shall, directly or indirectly, without INTERVAL's prior
written consent, hire, employ or pay any person who was employed or
paid by INTERVAL during the term of this Agreement; or directly or
indirectly induce any such person to terminate or alter his/her
relationship with INTERVAL.
4. The provisions of this Section H shall survive the expiration or
termination of this Agreement.
I. SUSPENSION AND TERMINATION.
1. SUSPENSION.
(a) In the event that AFFILIATE and/or ASSOCIATION is in violation
of any provision of this Agreement, INTERVAL shall have the
right, without prejudice to its right to terminate this
Agreement, to:
(1) immediately suspend processing of new memberships,
Individual Membership renewals, the use of the INTERVAL
NETWORK by Individual Members, and the right of
AFFILIATE to represent the INTERVAL NETWORK to
prospective purchasers of Vacation Interests at the
PROJECT; and/or
(2) impose such other conditions as INTERVAL deems
reasonably necessary.
(b) If INTERVAL determines, in the exercise of its reasonable
business judgment, that the continued operation of AFFILIATE,
ASSOCIATION and/or the PROJECT are in jeopardy, INTERVAL shall
have the right to suspend further performance under this
Agreement until such time as INTERVAL receives satisfactory
written assurances that the continued operation of the
PROJECT, AFFILIATE or ASSOCIATION is not in jeopardy.
(c) If bankruptcy proceedings are filed by or against a Party,
then AFFILIATE and/or ASSOCIATION (in the case bankruptcy
proceedings are filed by or against INTERVAL) or INTERVAL (in
the case bankruptcy proceedings are filed by or against
AFFILIATE or ASSOCIATION) may suspend all further performance
of this Agreement until such bankrupt Party assumes or rejects
this Agreement and adequate assurance of future performance by
the bankrupt Party is provided to the non-bankrupt Parry. Any
such suspension of further performance by the non-bankrupt
Party pending the bankrupt Party's assumption or rejection
will not be a breach of this Agreement and will not affect the
non-bankrupt Party's rights to pursue or enforce any of its
tights under this Agreement or otherwise.
(d) Notwithstanding the foregoing, in the event AFFILIATE and the
PROJECT regain active status with INTERVAL, AFFILIATE shall be
obligated to enroll all individuals, who purchased Vacation
Interests at the PROJECT while AFFILIATE was in a suspended
status, as Individual Members of INTERVAL.
2. TERMINATION.
(a) This Agreement may be terminated immediately upon notice in
writing by INTERVAL if:
(1) AFFILIATE and/or ASSOCIATION shall become insolvent; or
(2) AFFILIATE and/or ASSOCIATION shall make an assignment
for the benefit of creditors.
(b) This Agreement may be terminated immediately upon notice in
writing by AFFILIATE and/or ASSOCIATION if:
(1) INTERVAL shall become insolvent; or
(2) INTERVAL shall make an assignment for the benefit of
creditors.
(c) In the event that AFFILIATE and/or ASSOCIATION defaults in the
performance of any of the provisions of this Agreement and
fails to rectify such default within thirty (30) days after
receipt of written notice specifying such default, or such
additional period of time as is reasonably required to correct
such default, this Agreement may be terminated by INTERVAL
upon written notice to AFFILIATE and ASSOCIATION.
(d) In the event that INTERVAL defaults in the performance of any
of the provisions of this Agreement and fails to rectify such
default within thirty (30) days after receipt of written
notice specifying such default, or such additional period of
time as is reasonably required to correct such default, this
Agreement may be terminated by AFFILIATE and/or ASSOCIATION
upon written notice to INTERVAL.
(e) INTERVAL shall have the right to terminate this Agreement upon
thirty (30) days prior written notice to AFFILIATE and
ASSOCIATION, in the event that less than one hundred
twenty-five (125) Individual Members are enrolled within one
year of the Effective Date of this Agreement, or less than two
hundred fifty (250) Individual Members are enrolled within two
years of the Effective Date of this Agreement.
(f) INTERVAL shall have the right to terminate this Agreement as
it relates to AFFILIATE, without being obligated to terminate
this Agreement as it relates to ASSOCIATION. ASSOCIATION
hereby acknowledges and agrees that it will continue to be
bound by the terms of this Agreement in such event.
3. EFFECT OF TERMINATION.
(a) In the event that this Agreement is terminated due to
AFFILIATE's and/or ASSOCIATION's failure to maintain the
standards of INTERVAL in accordance with Section E, Paragraph
5 hereof, which failure in INTERVAL's judgment will impair the
desirability or availability of the PROJECT to Exchange
Guests, INTERVAL may suspend the exchange privileges of
Individual Members but shall not be responsible for the
reimbursement of any Individual Membership fees previously
paid to INTERVAL.
(b) In the event this Agreement is terminated for any cause which
in INTERVAL's judgment will not impair the desirability or
availability of the PROJECT, INTERVAL may continue to provide
its exchange services to Individual Members until the
expiration of the current year of each such membership. All
such Individual Members in good standing shall be entitled to
full benefits of Individual Membership during that year. At
the expiration of said year, INTERVAL shall have the option of
whether to allow renewals of said Individual Memberships.
(c) AFFILIATE, ASSOCIATION and INTERVAL agree to continue honoring
all Confirmations into the PROJECT made prior to termination
of this Agreement, as well as all Confirmations issued to
Individual Members prior to termination. Additionally,
AFFILIATE and ASSOCIATION agree to honor all Confirmations
into the PROJECT (even though such Confirmations are issued
after termination of this Agreement) in accordance with
Section D, Paragraph 5(a) for so long as Individual Members
elect to renew their membership with INTERVAL and INTERVAL
continues to provide exchange services to same.
(d) AFFILIATE and ASSOCIATION expressly waive any claim or demand
they may have for refund of any affiliation fee or Individual
Membership fees paid to INTERVAL prior to termination.
(e) Upon termination or expiration of this Agreement, AFFILIATE
and/or ASSOCIATION shall immediately discontinue: (1)
representing the INTERVAL NETWORK to purchasers; (2) utilizing
all INTERVAL materials and equipment and shall return same to
INTERVAL within thirty (30) days thereafter; and (3) utilizing
all advertising materials which contain the INTERVAL name,
logos or any other Marks or which otherwise associate the
PROJECT with INTERVAL.
(f) The provisions of this Paragraph 3 shall survive the
expiration or termination of this Agreement and shall continue
to govern the relationship among the Parties.
J. REMEDIES.
1. A Party shall be entitled to damages which it has incurred and
injunctive or other equitable relief for any violation by any other
Party of the provisions of this Agreement In no event, however,
shall INTERVAL be liable to AFFILIATE or ASSOCIATION for incidental,
special or consequential damages. In addition, the prevailing Party
may recover all costs, including reasonable attorneys' fees,
incurred in such action or any appeal thereto or in otherwise
obtaining compliance with the terms of this Agreement, whether or
not such matter proceeds to the filing of a complaint. The Parties
further agree that the time of entitlement as to such fees and costs
shall be the point at which breach or default by the other occurs.
The provisions of this Paragraph shall survive the expiration or
termination of this Agreement, and nothing herein shall be construed
to restrict the right to institute proceedings at law or equity to
obtain injunctive or other relief on account of any default
hereunder, whether or not a Party has exercised its rights to
terminate this Agreement.
2. The remedies set forth in this Agreement are not exclusive, and the
election of one remedy shall not prohibit the pursuit of other
available remedies.
K. INDEMNIFICATION.
1. INTERVAL agrees that it will protect, save, keep harmless and
indemnify AFFILIATE and/or ASSOCIATION, as the case may be, against
and from any and all claims, demands, judgments, damages, suits,
losses, penalties, expenses, costs and liabilities of any kind or
nature whatsoever, including, but not limited to, reasonable
attorneys' fees, arising directly, or indirectly, out of a breach of
this Agreement by INTERVAL, its affiliates, officers, directors,
employees, agents and representatives, or the failure of INTERVAL to
provide its exchange program to Individual Members in accordance
with its published terms and conditions. Notwithstanding the
foregoing, AFFILIATE and ASSOCIATION each acknowledge and agree that
INTERVAL's total liability pursuant to this Paragraph shall be
limited to the fees paid to INTERVAL by AFFILIATE and/or ASSOCIATION
pursuant to this Agreement.
2. AFFILIATE agrees that it will protect, save, keep harmless and
indemnify INTERVAL against and from any and all claims, demands,
judgments, damages, suits, losses, penalties, expenses, costs and
liabilities of any kind or nature whatsoever, including, but not
limited to, reasonable attorneys' fees, arising directly, or
indirectly, out of or in connection with (a) a breach of this
Agreement by AFFILIATE, or its officers, directors, representatives,
agents, brokers, salespersons, associates or employees; (b) the
negligence or intentional misconduct of AFFILIATE, or its officers,
directors, representatives, agents, brokers, salespersons,
associates or employees; or (c) the operation/management of the
PROJECT, including, but not limited to, any claims made against
INTERVAL for personal or bodily injury occurring at the PROJECT.
3. ASSOCIATION agrees that it will protect, save, keep harmless and
indemnify INTERVAL against and from any and all claims, demands,
judgments, damages, suits, losses, penalties, expenses, costs and
liabilities of any kind or nature whatsoever, including, but not
limited to, reasonable attorneys' fees, arising directly, or
indirectly, our of or in connection with: (a) a breach of this
Agreement by ASSOCIATION, its officers, directors, representatives,
agents, brokers, salespersons, associates or employees; (b) the
negligence or intentional misconduct of ASSOCIATION, its officers,
directors, representatives, agents, brokers, salespersons,
associates or employees; or (c) the operation/management of the
PROJECT, including, but not limited to, any claims made against
INTERVAL for personal or bodily injury occurring at the PROJECT.
4. The provisions of this Section K shall survive the expiration or
termination of this Agreement.
L. WAIVER.
The failure of a Party to exercise any power given it hereunder or to
insist upon strict compliance with the terms of this Agreement shall not
constitute a waiver of that Party's right to demand exact compliance with the
terms hereof. Waiver by a Party of any particular default by the other shall not
affect or impair its rights with respect to any subsequent defaults of the same
or of a different kind; nor shall any delay or omission by a Party to exercise
any rights arising from any default affect or impair its right as to such
default or any future default. Further, no custom or course of dealings of the
Parties at variance with the terms hereof shall constitute a waiver of that
Party's right to demand later compliance.
M. MISCELLANEOUS.
1. All notices provided for by this Agreement shall be deemed given if
in writing and delivered by hand, air express, or by registered or
certified mail, return receipt requested, to the addresses set forth
on page one of this Agreement or to such other address as may be
specified in accordance with this procedure.
2. Time shall be of the essence as to all provisions of this Agreement.
3. Should any part of this Agreement be declared invalid or
unenforceable for any reason, it shall be adjusted rather than
voided, if possible, to achieve the intent of the Patties. Any
invalidity resulting from the length of a period of time shall be
considered reduced to a period of time which would cure such
invalidity. In any event, the invalidity of any provision of this
Agreement, shall not affect any other provision of this Agreement
which shall be deemed valid and enforceable to the greatest extent
possible.
4. This Agreement shall be construed under the laws of the State of
Florida. The Parties acknowledge and agree that the Courts of Dade
County, Florida have proper and exclusive jurisdiction over the
Parties and the subject matter hereof, unless INTERVAL determines in
its sole discretion that the action should be brought in the
jurisdiction in which AFFILIATE, ASSOCIATION or the PROJECT is
located.
5. This Agreement is exclusively between and for the benefit of
INTERVAL, AFFILIATE, and ASSOCIATION. Nothing herein shall be
construed to make any purchaser, Exchange Guest, Individual Member
or other individuals or entities, third party beneficiaries to this
Agreement.
6. All Parties acknowledge and agree that nothing contained in this
Agreement shall be construed to create a joint venture, partnership,
franchise or agency and no Party shall have the power or authority
to bind or obligate any other Party.
7. The headings and captions in this Agreement are for convenience only
and shall not be referred to in the interpretation of this
Agreement.
8. This Agreement may be executed in counterparts, each of which shall
be deemed an original but all of which taken together shall
constitute one and the same Agreement.
9. If more than one person or entity constitutes AFFILIATE hereunder,
such persons or entities shall be jointly and severally liable for
each and every obligation of AFFILIATE under this Agreement. Further
the failure of an entity to execute this Agreement on behalf of
ASSOCIATION shall have no effect upon AFFILIATE's obligations
pursuant to this Agreement.
10. This Agreement shall be construed without regard to any presumption
or other rule requiring construction against the Party causing this
Agreement to be drafted.
11. In the event of doubt or discrepancy between the English text of
this Agreement and the text of this Agreement in other languages,
the English text shall prevail. AFFILIATE and ASSOCIATION, by
signing below, hereby acknowledge receipt of a copy of this
Agreement in the English language.
12. This Agreement contains the entire agreement of the Parties, with
respect to the subject matter hereof, and supersedes any oral or
written representation, inducement or promise not contained herein
and may not be modified, except in writing signed by the Party
against whom enforcement is sought.
IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals.
AFFILIATE:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attest:
------------------------------------ ---------------------------
Authorized Officer
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
----------------------------------------
Name and Title
----------------------------------------
Date
ASSOCIATION:
By: Attest:
------------------------------------ ---------------------------
Authorized Officer
----------------------------------------
Name and Title
----------------------------------------
Date
Accepted in Miami, Florida this 3 day of October, 1997:
INTERVAL INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Authorized Officer
▇▇▇▇▇ ▇. ▇▇▇▇
President & Chief Executive Officer
----------------------------------------
Name and Title
FIRST ADDENDUM TO RESORT AFFILIATION AGREEMENT
THIS FIRST ADDENDUM TO RESORT AFFILIATION AGREEMENT (this "First Addendum") is
attached to and made a part of that certain Resort Affiliation Agreement with an
effective date of October 3, 1997 (the "Agreement") by and between INTERVAL
INTERNATIONAL, INC., a Florida corporation ("Interval"); and BEARTOWN
DEVELOPMENT, INC., a Pennsylvania corporation ("Affiliate"), for the vacation
ownership resort program known as Oak 'n Spruce Resort (the "Project"). Interval
and Affiliate are sometimes jointly referred to as the "Parties".
The Parties to the Agreement mutually agree as follows:
1. Each of the Parties acknowledges that SILVERLEAF RESORTS, INC., a
Texas corporation, is the successor developer for the Project and the
successor in interest with respect to contracts related to the
Project, in particular, the Agreement. Each of the Parties
acknowledges and agrees, therefore, that each reference to Affiliate
in the Agreement and in each and every addenda thereto and in the
Resort Membership Application in connection with the Project
(collectively, the "Affiliation Agreements") shall hereafter be a
reference to the development entity SILVERLEAF RESORTS, INC.
2. Where there is a conflict between the terms and conditions of this
First Addendum and the terms and conditions of the Affiliation
Agreements, the terms and conditions of this First Addendum control.
All other terms and conditions and definitions of the Affiliation
Agreements shall be applied to and made part of this First Addendum.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals.
SILVERLEAF RESORTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ Attest: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------- --------------------------
Print Name: ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Title: VP Resort Oper.
----------------------------------
Date: 9-15-98
-----------------------------------
INTERVAL INTERNATIONAL, INC.:
Accepted in Miami, Florida this 6 day of October, 1998.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Print Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Executive Vice President
--------------------------------
ADDENDUM TO RESORT AFFILIATION AGREEMENT
THIS ADDENDUM (this "Addendum") is attached to and made a part of the
Resort Affiliation Agreement (the "Agreement") with an effective date of October
3, 1997 by and between INTERVAL INTERNATIONAL, INC., a Florida corporation
("INTERVAL"), and SILVERLEAF RESORTS, INC., a Texas corporation ("AFFILIATE"),
for the resort vacation ownership program known as Oak 'n Spruce (the
"PROJECT'). INTERVAL and AFFILIATE are sometimes referred to as the "Parties".
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties agree
as follows:
1. Except as expressly indicated to the contrary herein, all capitalized
terms used herein shall have the same meanings ascribed to them in
the Agreement.
2. AFFILIATE may purchase from INTERVAL short notice certificates (the
"Certificates"), at a price of twenty dollars ($20.00) per
Certificate, subject to and in accordance with the following terms
and conditions:
(a) Each Certificate shall entitle the recipient to submit a short
notice exchange request (30 days or less in advance of the
desired travel dates) through the INTERVAL NETWORK under the
conditions set forth herein.
(b) A Certificate may only be given to an owner of a Vacation
Interest at the PROJECT. AFFILIATE may provide only one such
Certificate per Vacation Interest sold to each owner.
(c) Upon delivering a Certificate to an Individual Member,
AFFILIATE shall fill in the Member Name and Membership Number,
as appropriate, and issue the Certificate to such Individual
Member.
(d) Certificates may only be utilized if the owner has an active
Individual Membership at time of redemption and through the
actual travel dates.
(e) Each Certificate shall bear an expiration date of one year
from the date of issuance.
(f) The Individual Member must travel prior to the stated
expiration date of the respective Certificate.
(g) All Terms and Conditions of Individual Membership and Exchange
which are in existence as of the date of redemption of each
certificate shall apply, except that there will be no
requirement for an Individual Member to relinquish a week.
(h) Individual Members will be required to pay a redemption fee of
one hundred forty-nine and no/100 United States Dollars
($149.00 US), plus tax, if applicable, in order to redeem a
Certificate. INTERVAL shall have the right to increase the
redemption fee for Certificates which have not yet been
ordered by AFFILIATE upon prior notice to AFFILIATE.
(i) INTERVAL shall not be required to compensate AFFILIATE in the
event any Certificates are not delivered by AFFILIATE to the
owners or redeemed prior to expiration.
(j) Certificates may not be sold or exchanged for cash, barter or
other consideration.
(k) Certificates may be redeemed only by the individual named on
the Certificate. Guest Certificates may not be purchased in
conjunction with the redemption of a Certificate.
(l) Certificates may not be redeemed for accommodations at the
PROJECT.
(m) Each Certificate will contain a "grid" setting forth
anticipated available vacation destinations by season, which
grid will be revised from time to time by INTERVAL based upon
then-anticipated availabilities High demand areas such as
Hawaii, Southern California and ski destinations and peak
travel times such as Holiday, summer (June, July and August),
school vacation and other popular vacation periods, are not
likely to be included on said "grid".
(n) Certificates may be redeemed only for travel to destinations
appearing in the grid. The use of the Certificates is subject
to space availability, and INTERVAL cannot guarantee the
fulfillment of a specific request.
(o) All Certificates may be ordered for an initial period of
twelve (12) months from the effective date of this Addendum.
Thereafter, AFFILIATE may continue to order Certificates for
additional periods of twelve (12) months unless INTERVAL gives
AFFILIATE written notice, at least thirty (30) days prior to
the expiration of the initial period of this Addendum or of
any subsequent renewal period, of its intent not to continue
to make Certificates available to AFFILIATE. Orders for
Certificates may not be made more than once a month and each
such order shall be for at least twenty (20) Certificates. The
total number of Certificates which AFFILIATE may order during
a twelve month period shall be limited to the total number of
new Individual Members enrolled by AFFILIATE during such
twelve month period. Notwithstanding the forgoing or anything
to the contrary set forth herein, INTERVAL shall have the
right after the expiration of the first twelve (12) months
from the effective date of this Addendum and upon not less
than six (6) months prior written notice to AFFILIATE, to
discontinue AFFILIATE's right to receive Certificates in the
event that INTERVAL determines, in the exercise of its
reasonable business judgment, that issuance of the
Certificates will adversely affect the INTERVAL NETWORK,
including INTERVAL's ability to fulfill exchange requests
placed by INTERVAL's individual members.
(p) INTERVAL reserves the right to increase the price at which
AFFILIATE may purchase the Certificates after the first six
months following the effective date of this Addendum.
3. Where there is a conflict between the terms and conditions of this
Addendum and the terms and conditions of the Agreement, the terms and
conditions of this Addendum control. All other terms and conditions
and definitions of the Agreement shall be applied to and made a part
of this Addendum.
IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals.
SILVERLEAF RESORTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------------
Name and Title: ▇▇▇▇▇▇ ▇▇▇▇, V.P. Resort Operations
-----------------------------------
Date: 9-15-98
---------------------------------------------
Accepted in Miami, Florida, this 6 day of October, 1998.
INTERVAL INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Print Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: Executive Vice President
-------------------------------