Exhibit
99.2
AMENDED AND RESTATED
MASSACHUSETTS
PERSONAL AUTOMOBILE GROUP
MARKETING AGREEMENT
This Agreement
(“Agreement”) is by and among The Commerce Insurance
Company, Citation Insurance Company, 211 Main Street, Webster,
Massachusetts (hereinafter referred to collectively as
“Commerce”), AAA Southern New England, 110 Royal Little
Drive, Providence, Rhode Island 02904 (“AAA SNE”) and
AAA Insurance Agency, Inc., a Massachusetts corporation, c/o 110
Royal Little Drive, Providence, Rhode Island 02904 (the
“Agency”).
RECITALS
WHEREAS, Commerce currently is the exclusive insurance
company to offer and underwrite a group marketing program whereby
private passenger automobile insurance is offered to eligible AAA
SNE members in the Operating Territory of AAA SNE.
WHEREAS, AAA SNE previously has granted Commerce the
exclusive right to use the AAA Emblem in AAA SNE’s Operating
Territory in connection with the group marketing program and
Commerce has served as the exclusive underwriter of such group
marketing program.
WHEREAS, Commerce, the Agency and AAA SNE desire to enter
into respective longer-term agreements for such
purposes.
WHEREAS, as of the effective date of this Agreement, the
parties agree to amend and restate herein the respective rights,
duties, and obligations of the parties pursuant to the
Massachusetts Personal Automobile Group Marketing Agreement dated
June 9, 1995.
NOW THEREFORE, IN
CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, IT IS
AGREED AS FOLLOWS:
For purposes of
this Agreement, the following terms shall have the meanings
indicated.
“AAA
Emblem” shall mean the “Emblem” as such term is
defined in the Regulations Governing the Use of the Emblem and
Other Trademarks of the American Automobile Association, Inc.
adopted July 8, 1992, as the same may be amended from time to
time.
“AAA Group Marketing Program” shall
mean a group marketing plan whereby private passenger automobile
insurance is offered to eligible AAA SNE members in AAA SNE’s
Operating Territory.
“Agent” shall mean any independent
agent, insurance producer, or broker who has entered into an
agreement with Commerce to solicit or produce applications for
private passenger automobile insurance on behalf of Commerce and
shall also mean any independent agent, insurance producer, or
broker assigned by a residual market mechanism, including without
limitation, Commonwealth Automobile Reinsurers or its successor
entity, to represent Commerce in connection with the sale of
private passenger automobile insurance.
“Operating Territory” shall mean the
current and future territorial jurisdiction in the Commonwealth of
Massachusetts in which AAA SNE or any parent, subsidiary, or
affiliate of AAA SNE, or a successor of any of them, does business
or is licensed, as set forth in AAA SNE’s Certificate of
Membership issued by the American Automobile Association,
Inc.
“Participating Agent” shall mean any
Agent within the Operating Territory who has entered into a
participation agreement with the Agency to place business in the
AAA Group Marketing Program.
ARTICLE
II - EXCLUSIVE UNDERWRITER OF GROUP MARKETING
PROGRAM
AAA SNE and the Agency shall promote Commerce as,
and Commerce shall be, the exclusive underwriter of the AAA Group
Marketing Program in the Operating Territory for a period of twenty
(20) years commencing on January 1, 2007 and concluding on December
31, 2026 (the “Initial Term”). This exclusive
underwriting agreement shall be automatically extended beyond the
Initial Term for an extended term of five (5) additional years
commencing on January 1, 2027 and concluding on December 31, 2031
(the “First Extended Term”), unless AAA SNE or the
Agency, on the one hand, or Commerce, on the other hand, advises
the other in writing during the period commencing on January 1,
2021 and concluding on December 31, 2021 of its desire not to
extend this exclusive underwriting agreement for such First
Extended Term. The term of this exclusive underwriting agreement
shall subsequently be extended on a “rolling” basis for
successive five (5) year periods (each a “Subsequent Extended
Term”), whereby this exclusive underwriting agreement shall
be extended for five (5) years, unless AAA SNE or the Agency, on
the one hand, or Commerce, on the other hand, advises the other in
writing commencing in 2026 and thereafter during the fifth year of
any such Subsequent Extended Term of its desire not to extend this
exclusive underwriting agreement for an additional Subsequent
Extended Term (in which event the term of this Agreement will
expire four (4) years after the conclusion of the Subsequent
Extended Term). Throughout the term of this Agreement, AAA SNE and
the Agency shall not offer or permit any other entity, including
without limitation any parent, subsidiary, or affiliate of AAA SNE
or the Agency, or any successor of any of them, to offer a AAA
Group Marketing Program in the Operating Territory.
Throughout the term of this Agreement, AAA SNE
and the Agency shall actively promote the AAA Group Marketing
Program to eligible and prospective members of the AAA Group
Marketing Program.
AAA SNE and the Agency understand, acknowledge,
and agree that Commerce shall be permitted to underwrite private
passenger group marketing programs for other AAA clubs in the
Operating Territory or otherwise, on such terms and conditions as
may be determined by Commerce in its sole discretion.
ARTICLE
III - RIGHT TO USE AAA EMBLEM
During the term
of this Agreement, AAA SNE grants Commerce the exclusive right to
use and display the AAA Emblem in the Operating Territory for
purposes of automobile insurance sales, marketing, advertising,
underwriting, processing, claim adjustment, and any other related
purpose. Commerce is authorized to use and display the AAA Emblem
on insurance policy forms, endorsements, declarations pages,
invoices, envelopes, letterhead, instruction manuals, advertising
and promotional materials, and any other written or electronic
materials (“Materials”) as long as Commerce clearly
identifies itself as the source of the Materials displaying the AAA
Emblem. AAA SNE warrants and represents that it is authorized to
grant permission to Commerce to use the AAA Emblem in this manner.
Except as provided herein, AAA SNE shall not grant the right to any
other person or entity, including without limitation, any parent,
subsidiary, or affiliate of AAA SNE or the Agency, or any successor
of any of them, to use the AAA Emblem in the Operating Territory
during the term of this Agreement, for purposes of automobile
insurance sales, marketing, advertising, underwriting, processing,
claim adjustment, or any related purposes.
The AAA Emblem is the property of the American
Automobile Association, Inc. and, upon expiration or termination of
this Agreement, Commerce agrees to discontinue immediately the use
of the AAA Emblem in any manner whatsoever. During the term of this
Agreement, Commerce shall use the AAA Emblem only in conformance
with the rules and regulations with respect to the use of the AAA
Emblem promulgated by the American Automobile Association, Inc.
from time to time. It is expressly agreed that the American
Automobile Association, Inc. retains full ownership of the AAA
Emblem and registration thereof. This paragraph survives any
termination or expiration of this Agreement.
For purposes of this Article III,
“Prohibited Conduct” shall mean any conduct by Commerce
as a corporate entity that AAA SNE reasonably determines, based on
the facts known to it at the time and notwithstanding any later
judicial or regulatory decision to the contrary, is unlawful or
criminal. If AAA SNE reasonably determines that on account of the
Prohibited Conduct, Commerce’s continued use of the AAA
Emblem or any related logos, trademarks, or Materials jeopardizes
the favorable standing, reputation, or relationship of AAA SNE or
any of its parents, subsidiaries or affiliates with its or their
government regulators, members or customers, AAA SNE shall notify
Commerce in writing, and Commerce shall cure the Prohibited Conduct
within seven (7) business days of receipt of such notice (the
“Cure Period”). Commerce’s failure to cure the
Prohibited Conduct to AAA SNE’s reasonable satisfaction
within the Cure Period shall entitle AAA SNE to suspend, until the
Prohibited Conduct is cured to AAA SNE’s reasonable
satisfaction, Commerce’s right to use the AAA Emblem or any
related logos, trademarks or Materials. AAA SNE shall reinstate
Commerce’s rights to use the AAA Emblem or any related logos,
trademarks or Materials promptly after Commerce has cured the
Prohibited Conduct.
Commerce agrees to obtain AAA SNE’s
specific written approval prior to Commerce’s first and novel
intended use and display of the AAA Emblem or any related logo or
trademark. AAA SNE shall be deemed to have granted such approval
unless AAA SNE sends a written notice of nonapproval to Commerce
within thirty (30) days of AAA SNE’s receipt of a written
notice from Commerce seeking such approval. AAA SNE shall not
unreasonably withhold approval of any use or display by Commerce of
the AAA Emblem or any related logo or trademark.
Commerce shall,
in its sole discretion, determine which Agents (other than the
Agency) shall be eligible to serve as Participating Agents in the
AAA Group Marketing Program. Agents selected to
participa