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EXHIBIT 10.200
MARKETING AND PROMOTIONS AGREEMENT
Made on this 16th day of June, 2000
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LIST OF EXHIBITS
Exhibit A - Bass Pro Catalog
Exhibit B - Big Cedar Lodge Property Description
Exhibit C - Big Cedar Timeshare Project Property Description
Exhibit D-1 - Bass Pro Trademarks, Trade Names, Service Marks, Proprietary Marks,
Logos and Unique Signs
Exhibit D-2 - Big Cedar Trademarks, Trade Names, Service Marks, Proprietary Marks,
Logos and Unique Signs
Exhibit E - Prospect Track
Exhibit F - Advertising Space Receipt and Confirmation Agreement
Exhibit G-1 - License and Concession Agreement
Exhibit G-2 - Schematic Plans
Exhibit H - Website Hyperlink License Agreement
Exhibit I-1 - Bass Pro Mailing List Agreement
Exhibit I-2 Big Cedar Mailing List Agreement
Exhibit I-3 Bluegreen Mailing List Agreement
Exhibit J - Security Agreement - Bass Pro
Exhibit K Intercreditor Agreement - Fleet Retail Finance, Inc.
Exhibit L - Commercial Lease of Sales Office
Exhibit M - Cabin Fever House Facility Lease
Exhibit N - Bass Pro/Big Cedar Trademark License Agreements
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MARKETING AND PROMOTIONS AGREEMENT
THIS MARKETING AND PROMOTIONS AGREEMENT ("Agreement") is made and
entered into as of this 16th day of June, 2000 by and between Big Cedar, L.L.C.,
a Missouri limited liability company ("Big Cedar"), having a principal address
of 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000, Attn: Xxxx Xxxxxx and
Bass Pro, Inc., a Delaware corporation ( (hereinafter sometimes referred to as
"Bass Pro") having a principal address of 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxx 00000, Attn: Xxxx Xxxxxx and Bluegreen Vacations Unlimited, Inc., a
Florida corporation ("Bluegreen"), having a principal address of 0000 Xxxx Xxxx
Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000, and Bluegreen/Big Cedar Vacations, LLC, a
Delaware limited liability company having a principal address of 0000 Xxxx Xxxx
Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000, (the "LLC").
W I T N E S S E T H
WHEREAS, the LLC has been formed, activated and capitalized by
Bluegreen and Big Cedar to design, develop, market and sell a timeshare project
contiguous to the current Big Cedar Lodge, located in Taney County, Missouri
(hereafter the "Big Cedar Timeshare Project");
WHEREAS, Bluegreen is in the business of designing, developing,
marketing, and selling timeshare developments and timeshare interests, including
but not limited to the Bluegreen Vacation Club (hereinafter such developments
and interests referred to collectively as "Bluegreen's Timeshare Facilities") in
and throughout the United States and internationally;
WHEREAS, Big Cedar, (and Bass Pro and Bass Pro Affiliates (Bass Pro
Affiliates being defined herein as set forth in paragraph 1(c) of this
Agreement), control, own and have available extensive promotional and marketing
opportunities;
WHEREAS, it is the intention of this Agreement to provide for an
arrangement by which Big Cedar, Bass Pro and Bass Pro Affiliates will provide to
Bluegreen and Bluegreen Affiliates (as defined in paragraph 1(o), below), for
the benefit of Bluegreen's Timeshare Facilities and to Bluegreen and the LLC for
the benefit of the Big Cedar Timeshare Project, promotional, marketing and
advertising services as provided for herein, and Bluegreen, Bluegreen Affiliates
and the LLC, desire to receive such promotional, marketing and advertising
services;
WHEREAS, the purpose of this Agreement is to set forth the terms and
conditions pursuant to which Big Cedar, Bass Pro and Bass Pro Affiliates shall
provide such promotional, marketing and advertising services to Bluegreen and
Bluegreen Affiliates and to the LLC;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and the mutual promises contained
herein, the parties hereto agree as follows:
1. DEFINITIONS.
(a) AD LOAN shall be that certain secured advance advertising
loan described in and attached to the Contribution Agreement.
(b) BASS PRO shall mean Bass Pro, Inc., a Delaware
corporation, together with its successors in interest.
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(c) BASS PRO AFFILIATES shall mean Bass Pro Outdoor World,
LLC, a Missouri limited liability company, Bass Pro Outdoors Online, LLC, a
Missouri limited liability company, Bass Pro Trademarks, LLC, a Missouri limited
liability company, BPS Catalog, LP., a Missouri limited partnership, BPS Catalog
GP, Inc., a Missouri corporation and Worldwide Sportsman, Inc., a South Carolina
corporation.
(d) BASS PRO MAILING LIST shall mean the mailing lists of
customers, clients and contacts of Bass Pro and Bass Pro Affiliates which
mailing lists shall include by way of example and not limitation, the name,
address, telephone number and e-mail address, where available, together with the
date of the last order, total dollar amount of purchase and the source from
where such customer or client was located (i.e. catalog, retail or internet) of
each such customer or client, together with Bass Pro Reward Members and Bass Pro
catalog subscribers, and such other fields of information as is customarily kept
by Bass Pro and Bass Pro Affiliates respecting its customers, clients and
contacts. Such Bass Pro Mailing List shall include such customers and clients as
now exist or hereafter may exist subject to such limitations as may otherwise be
set forth herein.
(e) BASS PRO SHOPS shall mean those certain retail stores and
operations operated by Bass Pro or its respective Bass Pro Affiliates, including
but not limited to Bass Pro Outdoor Shops and Bass Pro Shops.
(f) BASS PRO CATALOG shall mean those certain retail catalogs,
published seasonally by Bass Pro and Bass Pro Affiliates as set forth on Exhibit
"A" attached hereto and incorporated herein by this reference.
(g) BASS PRO MARKS shall mean those certain trademarks, trade
names, service marks, proprietary marks, logos and unique signs or marks owned
by Bass Pro or Bass Pro Affiliates, identification of which is attached hereto
as Exhibit "D-1" and incorporated herein by this reference.
(h) BIG CEDAR shall mean Big Cedar, L.L.C., a Missouri limited
liability company.
(i) BIG CEDAR AFFILIATES shall mean (i) Xxxx Xxxxxx, together
with any relative within the third degree of kindred of Xxxx Xxxxxx; (ii) any
Person controlled by or under common control of Xxxx Xxxxxx, a partner of Xxxx
Xxxxxx or any such relative as set forth in subsection (i) of this paragraph;
(iii) any officer, director, trustee, partner or employee of any entity
described in subsection (ii) of this paragraph; and (iv) any trust for the
benefit of Xxxx Xxxxxx or any officer, director, trustee, partner, member or
employee of a Person described in subsection (i) of this paragraph; provided
that Big Cedar Affiliates shall not include Xxxxxxx Entertainment Company, a
Delaware corporation, JWC Equity Funding Two, Inc., a Delaware corporation, JW
Childs Associates, LP., a Delaware limited partnership or Tracker Marine, LLC.,
a Missouri limited liability company.
(j) BIG CEDAR LODGE shall mean that certain hotel facility
located in Taney County, Missouri, which as of the date hereof is owned and
operated by Big Cedar, which lodge is located on that certain property
identified on Exhibit "B" attached hereto and incorporated herein by this
reference.
(k) BIG CEDAR MARKS shall mean those certain trademarks, trade
names, service marks, proprietary marks, logos and unique signs or marks owned
by Big Cedar, identification of which is attached hereto as Exhibit "D-2" and
incorporated herein by this reference.
(l) BIG CEDAR'S RIGHT OF PARTICIPATION shall mean that certain
right of Big Cedar set forth in Section 6.11 of the Operating Agreement of the
LLC.
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(m) BIG CEDAR TIMESHARE PROJECT shall mean that certain
timeshare project developed by the LLC, located contiguous to the Big Cedar
Lodge in Taney County, Missouri, which timeshare project is located on that
certain property described on Exhibit "C."
(n) BLUEGREEN shall mean Bluegreen Vacations Unlimited, Inc.,
a Florida corporation.
(o) BLUEGREEN AFFILIATE shall mean Bluegreen Corporation, a
Massachusetts corporation, together with any subsidiary enterprise now or
hereafter existing.
(p) BLUEGREEN'S TIMESHARE FACILITIES shall mean timeshare
developments and timeshare interests, including but not limited to the Bluegreen
Vacation Club, designed, developed, marketed and/or sold by Bluegreen or a
Bluegreen Affiliate, whether such facilities now exist or may from time to time
exist in the future..
(q) BLUEGREEN VACATION CLUB shall mean that certain vacation
club operated by Bluegreen, which was initially filed pursuant to Chapter 721
(the Florida Timeshare Act), and is identified in accordance with such
registration as the Bluegreen Vacation Club.
(r) COMPETING RESORT shall mean any seller, marketer,
developer, exchange company, club or lead generator, together with any officer,
director, employee, member, shareholder, partner, trustee or relative within the
third degree or kindred of any of the foregoing, or any other person or entity
which is controlled by or under common control with any of the foregoing, or any
partner, member, shareholder, trustee or beneficiary of any of the foregoing, as
respects any timeshare resort or resort interest development, together with any
party or entity that may be in competition with Bluegreen or any Bluegreen
Affiliate, excepting, however, Bluegreen and any Bluegreen Affiliate.
(s) CONTRIBUTION AGREEMENT shall mean that certain
Contribution Agreement made and entered into as of the date hereof, by and
between Bluegreen and Big Cedar.
(t) DISTRIBUTIONS shall mean any and all cash or other
property, including timeshare receivables, of the LLC as may be distributed by
the LLC to Big Cedar or Bluegreen as members of the LLC.
(u) FRACTIONAL INTEREST DEVELOPMENT shall mean a program in
which one-quarter (1/4) interests of an accommodation is offered and conveyed to
a consumer in such respective accommodation, which one-quarter (1/4) interest
provides for three (3) months (i.e. one-quarter interest) of use by such
respective purchaser.
(v) LICENSE AGREEMENTS shall mean the Advertising Space
Receipt and Confirmation Agreement referred to in paragraph 2(a)(i) of this
Agreement; the License and Concession Agreement referred to in paragraph
2(a)(ii)(2) of this Agreement; the Website Hyperlink License Agreement referred
to in paragraph 2(a)(iii); the Mailing List Agreements referred to in paragraphs
2(a)(iv) and 2(a)(v) of this Agreement; and the Trademark License Agreements
referred to in paragraph 2(a)(xiv).
(w) LLC shall mean Bluegreen/Big Cedar Vacations, LLC, a
Delaware limited liability company.
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(x) MARKS shall mean Big Cedar Marks and Bass Pro Marks.
(y) NET SALES VOLUME shall mean annual sales of timeshare
interests less purchaser cancellations or defaults.
(z) PREFERENTIAL TREATMENT shall mean preferred and
preferential pricing on a "most favored nation" basis with respect to any and
all fees, costs, price reductions, rebates, allowances, expenses or charges as
might be offered to any other person, party or enterprise, and at all times at
least as favorable to the best pricing offered any other person, party or
enterprise.
(aa) RESORT INTEREST PROGRAM shall mean any form of timeshare,
interval interest, timeshare exchange, undivided interest program, timeshare
club membership, points-based program, or occupancy program, other than as may
be offered by the LLC in respect to the Big Cedar Timeshare Project, or offered
by Bluegreen or Bluegreen Affiliates, or any Fractional Interest Development
offered by Big Cedar or Big Cedar Affiliates or Bass Pro or Bass Pro Affiliates,
whereby the use, occupancy or possession of real property has been made subject
to a conveyance or a use and such use, conveyance, occupancy or possession
circulates among purchasers according to a first come, first serve reservation
system, or a floating or fixed time schedule on a periodic, re-occurring basis,
over any period of time in excess of one (1) year in duration.
(bb) GENERATION COMMISSION shall mean that certain amount
payable by Bluegreen to Big Cedar, which amount shall be an amount equal to
seven percent (7%) or three and one half percent (3.5%), as hereafter stated, of
the Net Sales Volume of timeshare interests located in Bluegreen's Timeshare
Facilities sold by Bluegreen or Bluegreen Affiliates to buyers generated as a
result of Big Cedar's, Bass Pro's or Bass Pro Affiliates' promotional, marketing
or advertising services provided for under this Agreement, excepting, however,
Net Sales Volume arising from sales of any Resort Interests in the Big Cedar
Timeshare Project or the Bluegreen Vacation Club, predicated upon conveyance of
a Resort Interest at the Big Cedar Timeshare Project for which the Generation
Commission is agreed not to be applicable. For purposes of this Agreement, a
sale shall be deemed generated as a result of Big Cedar's, Bass Pro's or Bass
Pro Affiliates' promotional, marketing or advertising services as provided for
in this Agreement, and Big Cedar shall be entitled to seven percent (7%) of the
Net Sales Volume of timeshare interests, as aforesaid, if such sale is to a
prospect uniquely identified through a service provided by Big Cedar, Bass Pro
or a Bass Pro Affiliate under this Agreement, and such prospect accepts a
promotional marketing offer from Bluegreen or a Bluegreen Affiliate within one
hundred eighty (180) days of delivery of such promotional marketing offer and
which prospect acquires a timeshare interest at any time thereafter without
additional marketing expense to Bluegreen or a Bluegreen Affiliate, other than
the expense of fulfillment of the promotional marketing offer so made, and which
prospect generally follows the track as set forth in Exhibit "E" attached hereto
and incorporated herein by this reference. In all events, other than when Big
Cedar is entitled to the seven percent (7%) above referred to, Big Cedar shall
be entitled to a Generation Commission equal to three and one half percent
(3.5%) of the Net Sales Volume arising from sales of timeshare interests located
in Bluegreen's Timeshare Facilities sold by Bluegreen or Bluegreen Affiliates to
buyers (excepting sales of any Resort Interests in the Big Cedar Timeshare
Project or Bluegreen Vacation Club, predicated upon conveyance of a Resort
Interest at the Big Cedar Timeshare Project) if the purchaser of the timeshare
interest is a prospect uniquely identified through a service provided by Big
Cedar, Bass Pro or a Bass Pro Affiliate under this Agreement who has accepted a
promotional marketing offer from Bluegreen or a Bluegreen Affiliate, and
thereafter at any time acquired a timeshare interest, despite additional
marketing expense to Bluegreen or a Bluegreen Affiliate. For purposes of the
foregoing, a prospect may be deemed unique through production from one source
under this Agreement as well as unique through production from another source
under this Agreement.
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(cc) TIMESHARE RESORT OR RESORT INTEREST DEVELOPMENT shall
mean any vacation ownership interest resort, timeshare resort, club, point-based
system, and any arrangement whereby the use, occupancy or possession of real
property has been made subject to a conveyance or a use whereby such use,
conveyance, occupancy or possession circulates among purchasers according to a
first come, first serve reservation system, or a floating or fixed time schedule
on a periodic, re-occurring basis, over any period of time in excess of one (1)
year in duration.
2. MARKETING AND PROMOTION OF BLUEGREEN'S TIMESHARE FACILITIES AND THE
BIG CEDAR TIMESHARE PROJECT.
(a) SERVICES IN GENERAL. During the term of this Agreement,
Big Cedar, Bass Pro and Bass Pro Affiliates shall provide promotional, marketing
and advertising services, as provided in this Agreement, to Bluegreen and
Bluegreen Affiliates for the benefit of the Bluegreen's Timeshare Facilities,
and to Bluegreen and the LLC for the benefit of the Big Cedar Timeshare Project.
Such promotional, marketing and advertising services shall be provided in the
amount and quantities and at such times as specified herein and as may, from
time to time, be requested by Bluegreen as respects Bluegreen's Timeshare
Facilities and by the LLC as respects the Big Cedar Timeshare Project, subject
to such restrictions, limitations and conditions set forth herein. The parties
intend that this Agreement shall define the extent and specifics of the
promotional, marketing and advertising services to be provided by Big Cedar,
Bass Pro and Bass Pro Affiliates to the benefit of Bluegreen, Bluegreen
Affiliates and the LLC. Such promotional, advertisement and marketing services
and exposure shall include the following primary areas to be provided as set
forth hereinbelow by Big Cedar, Bass Pro and Bass Pro Affiliates:
(i) BASS PRO CATALOG.
(1) ADVERTISING. During the term of this
Agreement, Bass Pro, Bass Pro Catalog L.P., a Missouri limited partnership and
BPS Catalog GP, Inc., a Missouri corporation agree to make advertising,
marketing and promotion copy space routinely and consistently available to the
LLC and Bluegreen within each Bass Pro Catalog. Bass Pro, Bass Pro Catalog L.P.,
a Missouri limited partnership and BPS Catalog GP, Inc., a Missouri corporation,
by execution hereof, and by execution of the Advertising Space Receipt and
Confirmation Agreement, attached hereto as Exhibit "F" and incorporated herein
by this reference, agree that such copy space has been paid for by Bluegreen in
full. Such space shall be used by the LLC and Bluegreen for advertising,
marketing and promotion relating to or connected with the Big Cedar Timeshare
Project and Bluegreen's Timeshare Facilities; provided, however, that copy space
shall be used to give priority to promotion of the Big Cedar Timeshare Project,
and the Big Cedar Timeshare Project's inclusion in the Bluegreen Vacation Club
over promotion of Bluegreen's Timeshare Facilities. The LLC and Bluegreen agree
to pay Bass Pro Catalog L.P., a Missouri limited partnership a publication cost
in accordance with the following: The LLC shall pay Bass Pro Catalog, L.P. for
catalog publication costs if the advertising space primarily relates to the Big
Cedar Timeshare Project or the Big Cedar Timeshare Project's inclusion in the
Bluegreen Vacation Club. Bluegreen shall pay Bass Pro Catalog L.P., a Missouri
limited partnership publication costs if the advertising space primarily relates
to a Bluegreen Timeshare Facility other than the Big Cedar Timeshare Project or
the Big Cedar Timeshare Project's inclusion in the Bluegreen Vacation Club.
Payments for publication costs by the LLC or Bluegreen shall be for direct cost
of postage, printing, paper, creative, color separation and a fair and
reasonable allocation of administrative overhead, at cost, and without markup,
on a Preferential Treatment basis. The size and method of the exposure and
promotions as respects publications in each Bass Pro Catalog shall be sufficient
to establish prominent marketing support for the Big Cedar Timeshare Project and
Bluegreen's Timeshare Facilities in amounts not less than one full page per Bass
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Pro Catalog. While the foregoing advertising space shall be made available by
Bass Pro, Bass Pro Catalog L.P. and BPS Catalog GP, Inc., nothing herein
contained shall require the LLC, Bluegreen nor any Bluegreen Affiliate to use
the available space on each and every occasion.
(2) RESTRICTIONS. During the term of this
Agreement, except as otherwise provided herein, neither Bass Pro, any Bass Pro
Affiliate nor Big Cedar, shall allow, accept, publish, print, include or
authorize any advertising, marketing or promotional material in any of the Bass
Pro Catalogs, or other respective catalogs or publications published by Bass
Pro, Bass Pro Affiliates or Big Cedar, which reference, promote or relate to any
Competing Resort; provided, however, that Bass Pro, Bass Pro Affiliates and Big
Cedar may accept advertisements or promotions in their respective catalogs,
which advertisements or promotions may include therein the name of an enterprise
and its respective property so long as such advertisements or promotions do not
promote, advertise or market Resort Interest Programs relating to such
enterprise or prospects respecting the foregoing, nor does such advertisement or
promotion constitute a timeshare resort advertisement, nor do the properties
included in such advertisements constitute a timeshare resort or Resort Interest
Programs. Nothing herein contained shall limit the right of Bass Pro or Bass Pro
Affiliates to sell their retail products in stores and catalogs to other
purchasers, even though such purchasers may be in competition with the LLC or
Bluegreen (such as sales of retail products to Opryland, Disney World, Xxxx X.
Xxxxxxx Industries and other similar enterprises). Bass Pro and Bass Pro
Affiliates may advertise such companies and other resorts in Bass Pro Shops and
within the Bass Pro Catalogues, so long as Bass Pro and Bass Pro Affiliates do
not promote or market Resort Interest Programs of such companies, nor do the
resorts advertised include or contain any Resort Interest Programs nor efforts
to market Resort Interest Programs.
(ii) BASS PRO SHOPS
(1) During the term of this Agreement, Bass
Pro and Bass Pro Outdoor World LLC, a Missouri limited liability company and
Worldwide Sportsman, Inc., a South Carolina corporation (and any other future
affiliate of any of the foregoing as may relate to future Bass Pro Shops) shall
cause and permit marketing and advertising exposure and promotions of Big Cedar
Timeshare Project and Bluegreen's Timeshare Facilities to be provided to the
benefit of the LLC, Bluegreen and Bluegreen Affiliates in and from Bass Pro
Shops. Bass Pro and Bass Pro Outdoor World LLC, a Missouri limited liability
company and Worldwide Sportsman, Inc., a South Carolina corporation agree that
such marketing and advertising exposure and promotions shall be routinely and
consistently available in and from such Bass Pro Shops. Additionally, the
agreements herein regarding use of Bass Pro Shops is made by Bass Pro in respect
to future Bass Pro Shops as may exist whether owned or operated by Bass Pro, any
Bass Pro Affiliate or any future or to be formed affiliate of Bass Pro.
Accordingly, Bass Pro and Bass Pro Outdoor World LLC, a Missouri limited
liability company and World Wide Sportsman, Inc., a South Carolina corporation,
the LLC and Bluegreen agree as follows:
(2) FLOOR SPACE. During the term of this
Agreement and by execution hereof, Bass Pro and Bass Pro Outdoor World LLC, a
Missouri limited liability company and World Wide Sportsman, Inc., a South
Carolina corporation, do hereby irrevocably license to Bluegreen and the LLC for
the use by the LLC and Bluegreen, floor space marketing areas for promotional
purposes, including kiosk space, in each Bass Pro Shop, now or hereafter
existing, on the terms and conditions set forth herein. It is agreed that Bass
Pro and Bass Pro Affiliates agree that use of the floor space by Bluegreen and
the LLC has been paid for in full and no rent cost or expense shall be due or
payable therefor by Bluegreen or the LLC; provided the actual expenses of
telephone and facilities included in the promotional space, including kiosk
space, by the LLC or Bluegreen, and personnel staffing of such space shall be
paid by Bluegreen or the LLC as provided herein. All personnel staffing the
kiosk will be employed by Bluegreen, and the LLC shall reimburse Bluegreen for
the full portion of such expenses, including benefits paid to such employees, if
the primary benefit of the floor space is to the LLC. Bass Pro, Bass Pro Outdoor
World, LLC and World Wide Sportsman, Inc. and Bluegreen shall, upon execution
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hereof, execute for each Bass Pro Shop that certain License and Concession
Agreement attached hereto as Exhibit "G-1" and incorporated herein by this
reference. The minimum total floor space marketing area for promotional purposes
in each Bass Pro Shop, except such floor space marketing areas as may be located
at Islamorada, Florida, is one hundred (100) square feet used singularly or in
multiple separate areas in and throughout each Bass Pro Shop. The floor space
marketing area in the Islamorada, Florida Bass Pro Shop is determined by the
reasonable, mutual agreement of both parties following execution hereof. The
configuration of such floor space marketing areas shall be determined, from time
to time by Bluegreen and Bass Pro, as may mutually be agreed from time to time;
provided, however, that in the absence of any agreement otherwise, the schematic
plans attached hereto as Exhibit "G-2," are deemed to be acceptable
configurations and locations for use of the floor space marketing areas by
Bluegreen and the LLC. The entirety of the floor space marketing areas shall not
exceed one hundred (100) square feet in each store (subject to such greater area
as provided herein). Floor space marketing areas contained within the Bass Pro
Shops located in Springfield, Missouri; Nashville, Tennessee; Dallas, Texas;
Houston, Texas; Chicago, Illinois; and Detroit, Michigan, may, upon subsequent
agreement of Bass Pro and Bluegreen, be increased to one thousand (1,000) square
feet of floor space marketing area (provided such additional space shall not
interfere with the customary and normal operations of such retail store), upon
establishment that the minimum floor space in the foregoing stores is
effectively producing prospects in respect to the Big Cedar Timeshare Project or
Bluegreen's Timeshare Facilities. All floor space marketing areas shall be
located to effectively promote, market and advertise the Big Cedar Timeshare
Project and Bluegreen's Timeshare Facilities. Floor space marketing areas may be
used for establishment of kiosks, interactive computers, a stepped marketing
track or program through which prospective consumers may proceed, or such
alternative similar uses as may be determined by the LLC and Bluegreen. The
location of the kiosks, computers, marketing tracks or similar uses, shall not
interfere with the customary and normal retail operations of the respective Bass
Pro Store and the establishment and placement of the foregoing shall be located
consistent with the mutual agreement of Bluegreen and Bass Pro, or in the
absence of such agreement, consistent with the attached schematic plan. Any
modifications regarding the location of the floor space and the foregoing
particulars (i.e. kiosks, interactive computers, marketing track, etc.)
inconsistent with the schematic plan referenced above, shall only occur upon
approval of Bass Pro, whose approval shall not be unreasonably withheld or
denied. All potential sales prospects who are originated from contact at any of
such floor space marketing areas shall not be limited to marketing or sales for
any particular or specific Bluegreen Timeshare Facility or the Big Cedar
Timeshare Project; provided, however, that the floor space marketing areas
located in the Bass Pro Shops located in Springfield, Missouri; Nashville,
Tennessee; Dallas, Texas; Houston, Texas; Chicago, Illinois, and Detroit,
Michigan, shall be primary floor space marketing areas devoted to the Big Cedar
Timeshare Project and the Big Cedar Timeshare Project's inclusion in the
Bluegreen Vacation Club from and after such time as the Big Cedar Timeshare
Project is available for sales and marketing in accordance with the customary
practices of Bluegreen, and the floor space marketing areas located in the Bass
Pro Shops in Islamorada, Florida; Ft. Lauderdale, Florida; Orlando, Florida;
Charlotte, North Carolina, and Atlanta, Georgia, shall be primary floor space
marketing areas devoted to Bluegreen's Timeshare Facilities. Any additional Bass
Pro Shops, as may be established by Bass Pro or Bass Pro Affiliates (or any
other affiliate of Bass Pro) from and after the date hereof, shall likewise be
usable by the LLC and Bluegreen in accordance with the terms of this Agreement.
Configuration of floor space marketing areas in future stores shall be in
accordance with schematic plans agreed to by Bluegreen and Bass Pro (or the
respective Bass Pro Affiliate as may open a new Bass Pro Shop). The Bass Pro
Shop located in Springfield, Missouri and the Big Cedar Lodge, shall not be used
to promote or market that certain Bluegreen Timeshare Facility known as The
Falls, located in Branson, Missouri, nor any other Bluegreen Timeshare Facility
located within one hundred (100) miles of the Springfield, Missouri Bass Pro
Shop.
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(3) ADDITIONAL SPACE.
(a) Floor space marketing areas in the Bass Pro Shop
located in Springfield, Missouri may, upon subsequent agreement of Bass Pro, be
increased up to a total of one thousand five hundred (1,500) square feet of
floor space upon establishment that the existing floor space marketing areas is
effectively producing prospects in respect to the Big Cedar Timeshare Project or
the Big Cedar Timeshare Project's inclusion in the Bluegreen Vacation Club. Such
additional floor space shall be usable for promotional, advertising and
marketing services relating to sales and marketing of Bluegreen's Timeshare
Facilities and the Big Cedar Timeshare Project (excepting, however, any
Bluegreen Timeshare Facilities located within one hundred (100) miles of the
Springfield, Missouri Bass Pro Shop , other than the Big Cedar Timeshare
Project) and the Big Cedar Timeshare Project's inclusion in the Bluegreen
Vacation Club. Such additional floor space shall be primary floor space
marketing areas devoted to the Big Cedar Timeshare Project and the Big Cedar
Timeshare Project's inclusion in the Bluegreen Vacation Club. Such additional
space shall not interfere with the customary and normal operations of the retail
store. In addition, Bass Pro and Bass Pro Affiliates do hereby agree to allow
the LLC use of an outdoor area immediately adjacent (i.e. within the parking lot
area, or otherwise suitably located as determined by the LLC, subject to the
approval of Bass Pro) of the Springfield, Missouri and Grapevine (Dallas), Texas
Bass Pro Shops for purposes of installation of a cabin prototype timeshare sales
area, at the expense of the LLC, which cabin prototype shall be consistent with
the architectural design of accommodations at the Big Cedar Lodge. Each cabin
prototype shall prominently feature the Big Cedar Timeshare Projector the Big
Cedar Timeshare Project's inclusion in the Bluegreen Vacation Club.
(b) In addition to the floor space marketing area
specified hereinabove, Bass Pro, Bass Pro Outdoor World, LLC and World Wide
Sportsman, Inc. agree that additional floor space marketing areas in each Bass
Pro Shop may be made available to the LLC and Bluegreen on terms to be
negotiated and on a store-by-store case basis, upon request by the LLC or
Bluegreen to Bass Pro for such additional floor space marketing areas; provided
such additional space shall not interfere with the customary normal operations
of any retail store and upon establishment that the existing floor space
marketing areas is effectively inducing prospects in respect to timeshare sales.
Upon such request, as part of any future negotiations, Bass Pro shall factor in
the projected revenue stream generated from such additional floor space
marketing areas (taking into account the Generation Commission to be generated
to Big Cedar from such additional space) as compared to the revenue generated
from such floor space used as traditional purpose retail space within the
respective Bass Pro Shop. Notwithstanding the foregoing, in no event shall the
combined floor space marketing areas in any one respective Bass Pro Shop exceed
one thousand five hundred (1,500) square feet.
(4) EXPENSE. The floor space marketing areas at each
respective Bass Pro Shop are licensed to the LLC or Bluegreen by the terms
hereof, and in accordance with the License and Concession Agreement(s) attached
hereto as Exhibit "G-1" and incorporated herein by this reference. Such floor
space has been paid for in full for the term of this Agreement and shall be
utilized in accordance with the terms of this Agreement and the License and
Concession Agreement(s), at no further cost or expense to Bluegreen or the LLC;
provided, however, that the LLC and Bluegreen agree to pay the actual expenses
incurred by Bluegreen or the LLC for telephones and/or additional facilities or
improvements, including computers, installed in or operating from the floor
space marketing areas, and staff personnel. It is agreed that the kiosk floor
space marketing areas primary to the Big Cedar Timeshare Project shall be
operated at the expense of the LLC and the kiosk floor space marketing areas
which are primary to Bluegreen shall be operated at the expense of Bluegreen. If
kiosk floor space marketing areas that are primary to the Big Cedar Timeshare
Project are utilized by Bluegreen to the benefit of the Bluegreen Timeshare
Facilities other than the Big Cedar Timeshare Project, before the Big Cedar
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Timeshare Project is available for sales and marketing in accordance with the
customary practices of Bluegreen, then such kiosk floor space marketing areas
shall be operated at the expense of Bluegreen.
(5) RESTRICTION. The Bass Pro Shop located in Springfield,
Missouri shall not be used by Bluegreen or the LLC to promote the Bluegreen
Timeshare Facility located in Branson, Missouri, known as The Falls nor any
other Bluegreen Timeshare Facility within one hundred (100) miles of the
Springfield, Missouri Bass Pro Shop.
(iii) WEBSITE. Bass Pro and Bass Pro Outdoors Online, L.L.C., a
Missouri limited liability company acknowledge that they presently have an
operable website accessible through xxx.xxxxxxx.xxx. By execution hereof, Bass
Pro and Bass Pro Outdoors Online, L.L.C. agree that they shall create website
linkage for the benefit of the LLC and Bluegreen to the XXX.XXXXXXX.XXX website
in accordance with the terms of this paragraph. Bass Pro and Bass Pro Outdoors
Online, L.L.C. agree, by execution hereof, that Bluegreen has paid adequate good
and valuable consideration to Bass Pro and Bass Pro Outdoors Online, LLC for
Bass Pro and Bass Pro Outdoors Online, L.L.C. to create such linkage and
accessibility through the XXX.XXXXXXX.XXX website. The linkage provided for
under this paragraph shall be as follows: On the XXX.XXXXXXX.XXX website, an
icon shall exist identified as "Resorts" or such other icon as is mutually
acceptable to Bluegreen and Bass Pro. Upon opening of the icon identified as
"Resorts" (or such other icon as is mutually acceptable) existing on the
XXX.XXXXXXX.XXX website, a list and icons respecting resorts associated with Big
Cedar and Bluegreen shall exist. Such list and icons shall include (i) the Big
Cedar Timeshare Project and (ii) Bluegreen's Timeshare Facilities, including the
Bluegreen Vacation Club. Upon accessing these respective icons, the home page
shall exist for the Big Cedar Timeshare Project and Bluegreen's Timeshare
Facilities, including the Bluegreen Vacation Club. These website home pages
shall be of a design acceptable to Bluegreen and the LLC. The website pages and
icons shall interconnect and be accessible one to the other. Bass Pro and Bass
Pro Outdoors Online, L.L.C. shall additionally create internet linkage from the
website known as XXX.XXXXXXX.XXX to the website owned by Bluegreen, known as
XXX.XXXXXXXXXXXXXXX.XXX. Furthermore, by execution hereof, it is agreed that
Bluegreen, on its website known as xxx.xxxxxxxxxxxxxxx.xxx, may establish an
icon and linkage to XXX.XXXXXXX.XXX and to internet information concerning the
Big Cedar Timeshare Project, inclusive of use of the Marks of Bass Pro and Big
Cedar to reflect such connection. The cost of the creation of the foregoing
website pages and linkage shall be without additional charge or expense to
Bluegreen or the LLC, excepting for reimbursement of actual expenses reasonably
incurred by Bass Pro and Bass Pro Outdoors Online, L.L.C. in respect to their
establishment of the website pages and linkage referred to above, which
reimbursement shall be paid by the LLC or Bluegreen, dependent upon whomever the
web page and linkage so benefits, which determination shall be made reasonably
and in good faith. Such web pages and linkage shall be established and operable
within one hundred twenty (120) days from the date of Closing. By execution
hereof, and as further evidenced by the Website Hyperlink License Agreements
attached hereto as Exhibit "H" and incorporated herein by this reference, Bass
Pro and Bass Pro Outdoors Online, L.L.C. do hereby license and grant a
worldwide, royalty free, non-exclusive, irrevocable license, during the term of
this Agreement, to Bluegreen and the LLC for use of the Bass Pro XXX.XXXXXXX.XXX
internet website, together with a non-exclusive, royalty free, irrevocable
license to establish hyperlinks from and to such site as provided hereinabove.
Furthermore, by execution hereof, Bluegreen agrees that Big Cedar and Bass Pro
shall have the right and option to place on Bluegreen's website known as
XXX.XXXXXXXXXXXXXXX.XXX an icon and linkage to XXX.XXXXXXX.XXX which, if
established, shall be for the purpose of access to XXX.XXXXXXX.XXX and
information concerning Big Cedar Lodge and the Big Cedar Timeshare Project. The
cost and creation of the foregoing shall be at the cost and expense of Bass Pro
and Bass Pro Outdoors Online, L.L.C. If established, such license to the benefit
of Big Cedar and Bass Pro shall be identical to the terms of the license
existing hereunder to the benefit of Bluegreen and the LLC and shall be
evidenced by the Website Hyperlink License Agreement attached hereto as Exhibit
"H."
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(iv) BASS PRO MAILING LIST. By execution hereof, during the term of
this Agreement, Bass Pro and Bass Pro Trademarks, LLC do hereby grant a
non-exclusive, limited, irrevocable license to the LLC and Bluegreen to use the
Bass Pro Mailing List as is now or hereafter possessed, used, obtained or
compiled by Bass Pro and Bass Pro Affiliates for the LLC's and Bluegreen's
promotional and marketing purposes. By execution hereof, Bass Pro and Bass Pro
Affiliates acknowledge and agree that they have received good and valuable
consideration for the right and license of the LLC and Bluegreen to use the Bass
Pro Mailing List. In furtherance of the foregoing, Bass Pro and Bass Pro
Trademarks, LLC, shall execute that certain Mailing List Agreement attached
hereto as Exhibit "I-1" and incorporated herein by this reference. Use of the
Bass Pro Mailing List and enjoyment of the license granted hereby by the LLC and
Bluegreen shall be administered by a third party selected by Bluegreen and Bass
Pro, whose mutual selection shall not be unreasonably withheld or denied, to
whom Bass Pro and Bass Pro Trademarks, LLC will deliver the Bass Pro Mailing
List. Such mailing list intermediary may include, by way of example and not
limitation, Fair Xxxxx at 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxx, XX 00000-0000
(telephone number 000-000-0000; Fax No. 000-000-0000) is an example of an
acceptable mailing list intermediary. During the term of this Agreement, Bass
Pro and Bass Pro Affiliates shall not make such Bass Pro Mailing List otherwise
available to any Competing Resort or any operator of any Competing Resort. Such
Bass Pro Mailing List shall be updated and redelivered to the third party
administrator as provided hereinbelow, for use by the LLC and Bluegreen in the
promotion, advertisement and marketing of the Big Cedar Timeshare Project and
Bluegreen's Timeshare Facilities. Such Bass Pro Mailing List is licensed for use
by Bluegreen and the LLC by execution hereof and such license is further
evidenced by the Mailing List Agreement attached hereto as Exhibit "I-1." Such
license shall be without further cost or expense to Bluegreen or the LLC,
excepting, however, that the LLC and Bluegreen shall pay the actual expense of
the third party administrator and the formatting of such Bass Pro Mailing List
on labels, diskettes, or magnetic tapes, in a format as necessary for use by the
LLC and Bluegreen in their respective promotional, advertising and marketing
efforts. The initial Bass Pro Mailing List under this paragraph shall be
delivered by Bass Pro and Bass Pro Trademark, LLC to the third party
administrator designated by Bass Pro, Bass Pro Trademark, LLC and Bluegreen
within thirty (30) days after signing this Agreement, and thereafter every
calendar quarter, annually.
(1) To assure the continued and uninterrupted use of the Bass
Pro Mailing List, and enjoyment of the license set forth hereinabove by the LLC
and Bluegreen, Bass Pro and Bass Pro Trademarks, L.L.C. do, by execution hereof
grant unto the LLC and Bluegreen a security interest in and to and the Bass Pro
Mailing List, which security interest shall be a second priority security
interest (the Fleet Retail Finance, Inc. security interest being a first
priority security interest in and to the Bass Pro Mailing List) and which
security interest shall be further evidenced by a security agreement in the form
attached hereto as Exhibit "J" and incorporated herein by this reference and a
UCC financing statement acceptable to the LLC and Bluegreen. Such documentation
shall perfect the security interest in the Bass Pro Mailing List to the benefit
of the LLC and Bluegreen. Such security agreement and UCC financing statement
shall establish a second priority security interest to the benefit of the LLC
and Bluegreen in and to Bass Pro Mailing List subject to the Fleet Retail
Finance, Inc., as Agent, first priority security interest; provided Fleet Retail
Finance, Inc. shall execute to the benefit of Bluegreen and the LLC the
Intercreditor Agreement in the form attached hereto as Exhibit "K" and
incorporated herein by this reference. Bluegreen and the LLC agree to
subordinate their security interest to future financing of Bass Pro and Bass Pro
Trademark, LLC arranged for the benefit of the business of Bass Pro or Bass Pro
Trademarks, LLC, so long as Bluegreen and the LLC are notified of such future
financing and such future lender executes an agreement not to disturb the rights
of Bluegreen and the LLC hereunder and under the Mailing List Agreement attached
hereto as Exhibit "I-1." In the event that Bass Pro or any Bass Pro Affiliate is
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in default of the terms of this Marketing and Promotions Agreement or a License
Agreement, then Bluegreen shall be entitled to receive immediately physical
possession and custody of a copy of the Bass Pro Mailing List in the form as
exists on the date of default, and Bass Pro and Bass Pro Affiliates, including
Bass Pro Trademarks, L.L.C., or the mailing list intermediary holding the Bass
Pro Mailing List for use by Bluegreen and the LLC hereunder, shall immediately
upon such default deliver to Bluegreen physical possession and custody of a copy
of the Bass Pro Mailing List in the form as it exists on the date of such
default. Any agreement with a mailing list intermediary shall so provide. From
and after delivery to Bluegreen of the Bass Pro Mailing List, Bluegreen shall be
entitled to retain physical possession and custody of a copy of the Bass Pro
Mailing List and Bluegreen's use of the Bass Pro Mailing List shall continue
indefinitely and unrestricted as may be determined from time to time by
Bluegreen, subject to the restriction that Bluegreen's use of the Bass Pro
Mailing List shall be only within the timeshare industry and the Bass Pro
Mailing List shall not be sold by Bluegreen to any competitor of Bass Pro or
Bass Pro Affiliates. Delivery of the Bass Pro Mailing List in accordance with
the terms hereof shall be in such a media form as to be usable by Bluegreen. The
right of Bluegreen to receive the Bass Pro Mailing List shall be specifically
enforceable by Bluegreen.
(v) BIG CEDAR MAILING LISTS. By execution hereof, during the term of
this Agreement, Big Cedar does hereby grant the non-exclusive, limited,
irrevocable license to the LLC and Bluegreen to use Big Cedar's present and
future mailing lists of customers of Big Cedar, including but not limited to
occupants of the Big Cedar Lodge, as is now or hereafter possessed, used,
obtained or complied by Big Cedar (the "Big Cedar Mailing List"), for the LLC's
and Bluegreen's promotional and marketing purposes. Such license has been fully
paid for by Bluegreen and the LLC and by execution hereof, Big Cedar
acknowledges and agrees that it has received good and valuable consideration for
the license to use such Big Cedar Mailing List. In furtherance of the foregoing,
Big Cedar shall execute that certain Mailing List Agreement, attached hereto as
Exhibit "I-2" and incorporated herein by this reference. Use of the foregoing
Big Cedar Mailing List by Big Cedar and enjoyment of the license granted hereby
by the LLC and Bluegreen shall be administered by a third party selected by
Bluegreen and Big Cedar to whom Big Cedar will deliver its Big Cedar Mailing
List. It is agreed that Fair Xxxxx at 0000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxx, XX
00000-0000 (telephone number 000-000-0000; Fax No. 000-000-0000) is an example
of an acceptable mailing list intermediary. During the term of this Agreement,
Big Cedar shall not make such Big Cedar Mailing List otherwise available to any
Competing Resort or any operator of any Competing Resort Such Big Cedar Mailing
List shall contain, at least, the name, address, telephone number and e-mail
address, if available, of each occupant of the Big Cedar Lodge, together with
their respective dates of occupancy. Such Big Cedar Mailing List shall include
such customers and clients, including Big Cedar Lodge occupants, as exists now
or hereafter. Such Big Cedar Mailing Lists shall be updated and redelivered as
provided hereinbelow to the LLC and Bluegreen for use by the LLC and Bluegreen
in the promotion, advertising and marketing of the Big Cedar Timeshare Project
and Bluegreen's Timeshare Facilities. Such Big Cedar Mailing List is licensed
for use by Bluegreen and the LLC by execution hereof, and such license is
further evidenced by the Mailing List Agreement attached hereto as Exhibit
"I-2." Such license shall be without further cost or expense to Bluegreen or the
LLC, excepting, however, that the LLC and Bluegreen shall pay the actual expense
of the third party bureau administrator and the formatting of such mailing list
on labels, diskettes or magnetic tapes, in a format as necessary for use by the
LLC and Bluegreen in their respective promotional, advertising and marketing
efforts. The initial Big Cedar Mailing List under this paragraph shall be
delivered by Big Cedar to the third party administrator designated by Big Cedar
and Bluegreen within thirty (30) days after signing this Agreement, and
thereafter every calendar quarter, annually.
(vi) BLUEGREEN MAILING LIST. During the term of this Agreement,
Bluegreen does hereby grant the non-exclusive, limited, irrevocable license to
Big Cedar, Bass Pro and Bass Pro Affiliates to use Bluegreen's present and
future mailing list of customers,, clients and contacts as are possessed, used,
obtained or compiled by Bluegreen and Bluegreen Affiliates (the :Bluegreen
Mailing List"). Use of the Bluegreen Mailing List shall be limited, however, to
offering to such persons identified therefrom, outdoor retail products of Bass
Pro or Bass Pro Affiliates so long as the same are not offered through or in
relation to businesses which compete with Bluegreen or Bluegreen Affiliates. In
furtherance of the foregoing, Bluegreen and Bluegreen Affiliates shall execute
that certain Mailing List Agreement, attached hereto as Exhibit "I-3" and
incorporated herein by this reference. Use of the foregoing Bluegreen Mailing
List by Big Cedar, Bass Pro and Bass Pro Affiliates shall be administered by a
third party selected by Bluegreen, Big Cedar and Bass Pro. Such Bluegreen
Mailing List shall contain, at least, the name, address and telephone number and
where collected, the e-mail address of each customer, client or contact. Such
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Bluegreen Mailing List shall be routinely and consistently updated and
redelivered as provided hereinbelow to Big Cedar and Bass Pro for use by Big
Cedar, Bass Pro and Bass Pro Affiliates for the purposes set forth herein. Such
Bluegreen Mailing List is licensed by execution hereof in accordance with the
License Agreement attached hereto, by Bluegreen and Bluegreen Affiliates to Big
Cedar, Bass Pro and Bass Pro Affiliates for the limited use as aforesaid,
without cost or expense to Big Cedar, Bass Pro or Bass Pro Affiliates,
excepting, however, that Big Cedar, Bass Pro and Bass Pro Affiliates shall pay
the actual expense of the third party bureau administrator and the formatting of
such mailing lists on labels, diskettes or magnetic tapes, in a format as
necessary for use by Big Cedar, Bass Pro and Bass Pro Affiliates in their
promotional, advertising and marketing efforts. The initial Bluegreen Mailing
List under this paragraph shall be delivered by Bluegreen and Bluegreen
Affiliates to the third party bureau administrator designated by Bluegreen, Big
Cedar and Bass Pro within thirty (30) days after signing this Agreement, and
thereafter every calendar quarter, annually. The license set forth in this
paragraph shall terminate if Big Cedar breaches the terms of the Ad Loan due and
payable to Bluegreen. Samples of each advertising material proposed to be
delivered to persons who are obtained by Big Cedar, Bass Pro or a Bass Pro
Affiliate from such Bluegreen Mailing List shall be submitted to and subject to
the approval of Bluegreen prior to use. In the event of submission of any
advertising, marketing and promotional program by Big Cedar, Bass Pro or Bass
Pro Affiliates, the same shall be deemed approved within fourteen (14) days of
delivery thereof to Bluegreen, unless Bluegreen denies the approval or approves
the same within an earlier period. Upon denial of any such approval, Bluegreen
shall deliver to Big Cedar, Bass Pro or Bass Pro Affiliates specific reasons for
such denial, and upon which cure thereof Bluegreen shall be deemed to have
approved such advertising (it being agreed that any proposed cure shall be
presented to Bluegreen for its subsequent review, comment and approval, whose
approval shall be deemed given unless Bluegreen denies that the cure has been
successful within five (5) days from delivery thereof). Once approved, any such
sample of advertising, marketing or promotional materials may be re-used or
incorporated into any advertising, marketing or promotional program of Big
Cedar, Bass Pro or a Bass Pro Affiliate offering of outdoor retail products as
determined from time to time by Bass Pro or Bass Pro Affiliates without the
necessity of further approval; provided, however, if following approval of any
respective advertising, marketing or promotional materials, Bluegreen is
notified that such approved advertising, marketing or promotional material is in
violation of any applicable legal principles, then Bluegreen may notify Big
Cedar, Bass Pro or any respective Bass Pro Affiliate that it is not to use such
approved advertising, marketing or promotional materials until any claimed
violation is cured.
(vii) CROSS PROMOTIONAL STRATEGIES. During the term of this Agreement,
Big Cedar, Big Cedar Affiliates, Bass Pro and Bass Pro Affiliates and Bluegreen
(acting on behalf of Bluegreen and Bluegreen Affiliates) and the LLC agree to
negotiate, in good faith, promotional advantages or opportunities now existing
or as may hereafter be identified, including cross-promotional strategies, as
well as services as may otherwise be available and identified as may be
beneficial to the LLC and Bluegreen in the marketing and promotion of timeshares
and as may be beneficial to Big Cedar, Bass Pro and Bass Pro Affiliates in the
marketing and promotion of outdoor retail products. Such marketing and
promotional advantages or opportunities and services of Big Cedar, Bass Pro and
Bass Pro Affiliates shall be made available non-exclusively to Bluegreen and
Bluegreen Affiliates; provided such shall not be made available or identified to
any other timeshare sellers, re-sellers, promoters, marketers, developers,
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exchange companies, clubs or lead generators therefor. Such marketing and
promotional advantages or opportunities and services of Bluegreen and Bluegreen
Affiliates shall be made available non-exclusively to Big Cedar, Bass Pro and
Bass Pro Affiliates, provided such shall not be available to any competitor of
Big Cedar, Bass Pro and Bass Pro Affiliates engaged in the business of retail
sales of outdoor products. The cross-promotional strategies and programs may
include by way of example and not limitation, radio and television commercials
(including infomercials, announcements, promotions, advertisements on in-room
televisions at Big Cedar Lodge), newspaper and magazine advertisements,
billboards, card and tent promotions in respective accommodations and facilities
(such as Big Cedar Lodge and Bass Pro Shops), leaflets, postcards and website
opportunities.
The foregoing shall not otherwise reduce or limit the services
otherwise agreed to herein.
(viii) PREFERENTIAL TREATMENT. During the term of this
Agreement, any marketing and promotional advantages and opportunities or any
other services hereunder for which the LLC, Bluegreen or a Bluegreen Affiliate
is to pay Big Cedar, Bass Pro or Bass Pro Affiliates an amount, shall, in all
events, be made available to the LLC, Bluegreen and Bluegreen Affiliate on a
Preferential Treatment basis.
(ix) SALES OFFICE PROPERTY. Big Cedar agrees to lease (and by
execution of the Commercial Lease of Sales Office lease attached hereto as
Exhibit "L" which is incorporated herein by this reference, does hereby lease) a
certain parcel of property to the LLC (the "Sales Office Property"). The Sales
Office Property shall be leased to the LLC by Big Cedar for a term being the
lesser of ten (10) years or until such time as ninety percent (90%) sellout and
conveyance of the timeshare interests of the Big Cedar Timeshare Project as are
contemplated to exist therein. It is agreed that the LLC may construct on the
Sales Office Property a sales office, at its expense. Upon termination of the
lease, any improvements and structures thereon shall inure to the benefit of Big
Cedar. The rent payable for lease of the Sales Office Property shall be One and
No/100 Dollars ($1.00) per year, without any other expense, rental or charge to
the LLC or Bluegreen, excepting, however, the LLC shall pay the actual costs and
expenses of constructing the sales office facility, and such other costs and
expenses as are actually incurred in respect to the use of the Sales Office
Property. Any deed of trust on the Sales Office Property shall be subject to a
non-disturbance as relates to such deed of trust. Any sales office facility
constructed on the Sales Office Property shall be consistent with the
architectural design of the accommodations at the Big Cedar Lodge, which design
shall be approved by Big Cedar.
(x) USE OF CABIN FEVER HOUSE FACILITY. Big Cedar agrees that
it shall lease to Bluegreen and the LLC the Cabin Fever House Facility as a
secondary sales office on terms and conditions identical to the terms and
conditions of the lease for the Sales Office Property referred to hereinabove.
Such shall be leased pursuant to the Cabin Fever House Commercial Lease attached
hereto as Exhibit "M." Any deed of trust on such property shall be subject to a
non-disturbance as relates to such deed of trust. During the Cabin Fever House
Commercial Lease, any modifications to the Cabin Fever House proposed by the LLC
shall be made at the expense of the LLC and subject to the prior approval of Big
Cedar.
(xi) BIG CEDAR LODGE. By execution hereof, Big Cedar agrees
that the rights set forth hereinafter respecting use of the Big Cedar Lodge have
been paid for in full by Bluegreen and the LLC, and that Big Cedar has received
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, contemporaneously with the grant of the rights hereinafter set
forth. The rights hereinafter granted are granted by Big Cedar to the LLC and
Bluegreen without further cost or expense to the LLC and Bluegreen, other than
specifically set forth hereinbelow. Any deed of trust on the Big Cedar Lodge
Property shall be subject to a non-disturbance agreement, to the benefit of the
LLC and Bluegreen, as relates to such deed of trust.
(1) ADVERTISING MATERIALS. During the term of this
Agreement, Big Cedar does hereby irrevocably grant to the LLC and Bluegreen the
right to use the Big Cedar Lodge for the purpose of promoting, advertising, and
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marketing of the Big Cedar Timeshare Project and Bluegreen's Timeshare
Facilities; excepting, however, the Big Cedar Lodge shall not be used for
promoting, advertising and marketing of The Falls Timeshare Resort, located in
Branson, Missouri, or any Bluegreen Timeshare Facility located within one
hundred (100) miles of the Big Cedar Lodge, excepting, however, the Big Cedar
Timeshare Project and/or its inclusion in the Bluegreen Vacation Club. By
execution hereof, Big Cedar does hereby acknowledge that the right to use
granted to the LLC and Bluegreen hereunder has been paid for in full and that
the same has been granted for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged. Big Cedar shall provide and deliver
guest history files and in-room television support in the Big Cedar Lodge, and
agrees that the LLC and Bluegreen shall be authorized and permitted to
distribute packet information at check-in to those who might occupy Big Cedar
Lodge. Such packet distribution may include promotional, marketing and
advertising information relating to the sale of timeshare in the Big Cedar
Timeshare Project and Bluegreen's Timeshare Facilities, including the Bluegreen
Vacation Club. Moreover, Big Cedar agrees that the LLC and Bluegreen may place
reasonable and unobtrusive displays and other forms of promotions in and about
the Big Cedar Lodge, and the guest rooms therein, to assure that each guest is
aware of the opportunity to purchase a timeshare interest in the Big Cedar
Timeshare Project and/or Bluegreen's Timeshare Facilities, including the
Bluegreen Vacation Club. Despite the above, the content, location and placement
of all advertising materials to be utilized at the Big Cedar Lodge shall be
subject to the review and prior approval of Xxxx Xxxxxx or his designate.
(2) OCCUPANCY LIST. During the term of this
Agreement, Big Cedar does hereby grant an irrevocable license and right to use
to the LLC and Bluegreen in and to the occupancy list of those who have occupied
or will occupy rooms at the Big Cedar Lodge. During the term of this Agreement,
Big Cedar shall on a weekly basis, deliver a list of all individuals, including
their names, addresses, telephone numbers and e-mail addresses (to the extent
available), who have occupied or who will occupy rooms at the Big Cedar Lodge to
the LLC and Bluegreen for the purpose of the LLC and Bluegreen marketing,
promoting and selling timeshare interests of the Big Cedar Timeshare Project and
Bluegreen's Timeshare Facilities to such persons. To the extent reasonably
possible, Big Cedar shall make available to the LLC and Bluegreen such
information, before occupancy by the respective identified party. Bluegreen may
make a promotional contact to such individuals prior to, after or while such
individuals are in occupancy at the Big Cedar Lodge. Despite the above, Xxxx
Xxxxxx, or his designate, shall have the right to pre-approve the presentation,
content, method and frequency of contact with guests at the Big Cedar Lodge and
content of the materials to be utilized in connection with the occupancy list
contact. Occupancy lists provided hereunder will contain information concerning
leisure guests, but shall not be required to include business group market
guests.
(3) PROSPECT OCCUPANCY. During the term of this
Agreement, Big Cedar grants to the LLC and Bluegreen, an irrevocable right to
use on a space available basis, rooms for occupancy and use by potential
prospects for the marketing of timeshare interests. During the term of this
Agreement, Big Cedar shall make guest rooms, common areas and facilities
available to Bluegreen and the LLC on a space available basis, which rooms may
be used for occupancy and use by potential prospects for the marketing of
timeshare interests. Rates for such guest rooms, common areas and facilities
shall be charged to the LLC and Bluegreen on a Preferential Treatment basis. By
execution hereof, Big Cedar does hereby license to Bluegreen use of the guest
rooms, common areas and facilities, as aforesaid. Use of common areas and
facilities for advertising and promotional purposes shall be subject to the
prior approval of Big Cedar, including the content, location and placement of
such advertising materials and promotional activities.
(4) CONCIERGE DESK. During the term of this
Agreement, Big Cedar does hereby grant an irrevocable license as respects the
Big Cedar Lodge lobby to Bluegreen and the LLC for use by the LLC and Bluegreen
of a concierge desk. Such concierge desk and sufficient space for use thereof
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shall be provided to the LLC and Bluegreen by Big Cedar from and after the date
of execution hereof. Such concierge desk shall be staffed by personnel of
Bluegreen or the LLC and may be utilized for the purpose of allowing
introduction of guests to the opportunity to acquire a timeshare interest at the
Big Cedar Timeshare Project or Bluegreen's Timeshare Facilities; excepting,
however, such concierge desk shall not be used to promote The Falls Resort,
located in Branson, Missouri, or any other Bluegreen Timeshare Facility located
within one hundred (100) miles of the Big Cedar Lodge. Such concierge desk and
related desk space shall be provided by Big Cedar without charge or expense to
the LLC or Bluegreen; provided however, actual expenses incurred by Bluegreen or
the LLC in respect to staffing and supplying services relating to such concierge
desk shall be paid by the LLC. The specific location of the concierge desk shall
be as agreed to prior to the date hereof (and as may be set forth on a schematic
plan as approved by the LLC, Bluegreen and Big Cedar) and any relocation thereof
shall be first agreed to by the LLC and Bluegreen on the one hand, and Big Cedar
on the other. The concierge desk will be operated such that guests will be given
the option to approach the desk to receive information regarding timeshares and
that guests will not be approached in the Big Cedar Lodge lobby, but will be
given the opportunity to obtain additional information.
(xii) APPROVALS. Xxxx Xxxxxx or his designate shall have the
right to review and approve all advertising materials to be used in the Bass Pro
Shops or Bass Pro Catalogs or that involve contact with customers of Bass Pro
Shops identified through the Big Cedar Mailing List or the Bass Pro Mailing List
or which make use of the Big Cedar Lodge or involve contact with the guests of
Big Cedar Lodge. Such approval rights shall be exercised by Xxxx Xxxxxx or his
designate who is appointed to act on behalf of Big Cedar, Bass Pro and Bass Pro
Affiliates for the purpose of receiving and approving such advertising material.
Any advertising material so approved shall be maintained by Bluegreen in a file
designated as approved advertisements. Such advertising material proposed to be
delivered shall be submitted to Xxxx Xxxxxx, or his designate, at 0000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000 prior to use. The approval rights
set forth herein shall include editing rights. In the event of submission of any
such sample of advertising, marketing and promotional materials by the LLC or
Bluegreen hereunder, the same shall be deemed approved within fourteen (14) days
after receipt thereof, at the address set forth above, unless Xxxx Xxxxxx or his
designate denies approval or approves the same within an earlier time period.
Upon denial of any such approval, Xxxx Xxxxxx or his designate shall deliver to
the LLC or Bluegreen (whomsoever shall be the party that has delivered the
advertisement to Xxxx Xxxxxx or his designate) specific reasons for such denial
upon which cure thereof the LLC or Bluegreen may proceed to use such
advertising, marketing and promotional material. Any proposed cure in respect to
a denial shall be submitted by the respective party to Xxxx Xxxxxx or his
designate for further approval, whose approval shall not be unreasonably
withheld or denied, and whose approval shall be deemed given if denial thereof
is not delivered within five (5) days of delivery of the proposed cure. No
advertising, marketing or promotional program using the Big Cedar Lodge shall
promote The Falls Village Resort located in Branson, Missouri, or any Bluegreen
Timeshare Facility located within one hundred (100) miles of the Bass Pro Shop
located in Springfield, Missouri; provided, however, that the same may be usable
for promotion of the Bluegreen Vacation Club. Once approved, any such
advertising, marketing and promotional program may be reused or incorporated
into any advertising, marketing or promotional program for any or all of the
Bluegreen Timeshare Facilities, as determined from time to time by Bluegreen
without necessity of further approval; provided, however, if following approval,
any advertising, marketing or promotional materials, Big Cedar, Bass Pro or Bass
Pro Affiliates are notified that such approved advertising is in violation of
applicable principles, then, Big Cedar, Bass Pro or Bass Pro Affiliates may
notify Bluegreen that it is not to use such approved advertising, marketing or
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promotional materials until any claimed violation is cured. Despite anything
contained herein to the contrary, no advertising, marketing or promotional
materials may (i) incorporate use of the Bass Pro Xxxx unless such use has been
first approved by Xxxx Xxxxxx or his designate in his sole and absolute
discretion as provided for in paragraph (xv) below; or (ii) incorporate use of
the Big Cedar Xxxx (a) unless such use has been first approved by Xxxx Xxxxxx or
his designate, in his sole and absolute discretion as provided for in paragraph
(xv) below, or (b) unless such use of the Big Cedar Xxxx relates to the Big
Cedar Timeshare Project or its inclusion in the Bluegreen Vacation Club as
provided for in paragraph (xv) below.
(xiii) SIGNAGE. By execution hereof, Bass Pro and Bass Pro
Affiliates do hereby grant to Bluegreen and the LLC an irrevocable license to
place advertising, promotional and marketing signage in the floor space
marketing areas existing in the Bass Pro Shops, and in the cabin prototype
timeshare sales areas. By execution hereof, Big Cedar Lodge does hereby grant to
Bluegreen and the LLC an irrevocable license to place advertising, promotional
and marketing signage in the Big Cedar Lodge in accordance with the terms of
this Agreement. The specific location, placement, creation and content of such
signage shall be subject to agreement of Bluegreen and Xxxx Xxxxxx or his
designate, who shall act on behalf of Big Cedar, Bass Pro and Bass Pro
Affiliates in respect to such approval. The approval of Xxxx Xxxxxx or his
designate shall not be unreasonably withheld or denied. By execution hereof, Big
Cedar, Bass Pro and Bass Pro Affiliates acknowledge that Bluegreen and the LLC
have paid in full for the license hereby granted. Notwithstanding the foregoing,
Bluegreen shall be responsible for all expenses incurred by Bluegreen relative
to the creation and placement of such signage placed in Bass Pro Shops located
in Islamorada, Florida; Ft. Lauderdale, Florida; Orlando, Florida; Charlotte,
North Carolina; and Atlanta, Georgia, unless the signage placed within any of
such facilities primarily references the Big Cedar Timeshare Project or its
inclusion in the Bluegreen Vacation Club; provided, however, that the parties
hereto agree that an equitable reallocation of expenses based on actual benefits
from various promotions, including leads and sales generated therefrom, may be
annually reviewed and reasonably determined, in the exercise of good faith. The
LLC shall be responsible for all expenses incurred by Bluegreen or the LLC
relative to the creation and placement of signage placed in the Bass Pro Shop
located in Springfield, Missouri; Nashville, Tennessee; Dallas, Texas; Houston,
Texas; Chicago, Illinois; and Detroit Michigan, unless the signage placed within
any such facilities primarily references the Bluegreen Timeshare Facilities,
other than the Big Cedar Timeshare Project or its inclusion in the Bluegreen
Vacation Club; provided, however, the parties hereto agree that an equitable
reallocation of expenses based on actual benefits from the various promotions,
including leads and sales generated therefrom may be annually reviewed and
reasonably determined in the exercise of good faith. Signage at Big Cedar Lodge
shall be consistent, architecturally, with the existing signage located thereat.
Signage at any Bass Pro Shop shall be of a design mutually agreed to by
Bluegreen and Bass Pro (and Bass Pro, by execution hereof, appoints Xxxx Xxxxxx
or his designate to act on its behalf). Notwithstanding the foregoing, the
parties agree that such signage is to exist and that the location, placement and
content of such signage shall be maximized to promote the sale and marketing of
timeshare interests at the Big Cedar Timeshare Project and Bluegreen's Timeshare
Facilities. Despite anything contained herein to the contrary, no signage may
incorporate use of the Bass Pro Xxxx unless use of such Bass Pro Xxxx has been
first approved by Xxxx Xxxxxx or his designate, as provided for in paragraph
(xv) below.
(xiv) BIG CEDAR, BASS PRO AND BASS PRO AFFILIATE'S EMPLOYEES.
During the term of this Agreement, Big Cedar, Bass Pro and Bass Pro Affiliates,
shall make available their respective employees who have customer contact for
training by Bluegreen respecting the details of the timesharing concept, and
instructions and directions on how such employees may inform customers of Big
Cedar, Bass Pro and Bass Pro Affiliates about timeshare opportunities and how
such employees are to be supportive of the timeshare marketing opportunities at
the Big Cedar Timeshare Project and Bluegreen's Timeshare Facilities. In
furtherance thereof, Big Cedar, Bass Pro and Bass Pro Affiliates, shall strive
to educate employees to be supportive of the goals of this Agreement.
(xv) TRADENAMES AND MARKS. During the term of this Agreement,
Bass Pro and Bass Pro Trademarks, LLC do hereby grant, bargain and exchange a
limited, irrevocable, non-exclusive license to use the Bass Pro Xxxx to
Bluegreen and the LLC for use by Bluegreen, Bluegreen's Affiliates and the LLC,
in the promotion, marketing and advertising of the Big Cedar Timeshare Project,
its inclusion in the Bluegreen Vacation Club and the Bluegreen Timeshare
Facilities in accordance with the terms of this Agreement. During the term of
this Agreement, Big Cedar hereby grants, bargains and exchanges a limited,
irrevocable, non-exclusive license to use the Big Cedar Marks to Bluegreen and
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the LLC for use by Bluegreen, Bluegreen Affiliates and the LLC in the promotion,
marketing and advertising of the Big Cedar Timeshare Project, its inclusion in
the Bluegreen Vacation Club and the Bluegreen Timeshare Facilities in accordance
with the terms of this Agreement By execution hereof, Big Cedar, Bass Pro and
Bass Pro Affiliates acknowledge and agree that the license set forth herein has
been paid for in full by Bluegreen and that Big Cedar, Bass Pro and Bass Pro
Affiliates have received good and valuable consideration in exchange for the
grant of such license. The Marks may be used as follows:
(1) Bass Pro Marks may be used by the LLC and
Bluegreen in all promotional materials, advertisements, and other materials for
the promotion, marketing and sale of the Big Cedar Timeshare Project or the
Bluegreen Timeshare Facilities, so long as such use is first approved by Xxxx
Xxxxxx or his designate in accordance with the approval procedures set out
below.
(2) The Big Cedar Xxxx and the name Big Cedar may be
used by the LLC and Bluegreen in respect to the identity, location and name of
the Big Cedar Timeshare Project. Use of the Big Cedar Xxxx as set forth in this
paragraph shall be in perpetuity and irrevocable. Use of the Big Cedar Xxxx and
the name Big Cedar, as set forth in this paragraph (2), shall be as determined
by the LLC and Bluegreen.
(3) The Big Cedar Xxxx xxx be used by the LLC and
Bluegreen in all promotional materials, advertisements and other materials for
the promotion, marketing and sale of the Big Cedar Timeshare Project or the Big
Cedar Project's inclusion in the Bluegreen Vacation Club, so long as such use is
first approved by Xxxx Xxxxxx or his designate in accordance with the approval
procedure set out below:
(4) APPROVAL PROCEDURE. Use of the Bass Pro Xxxx or
Big Cedar Xxxx shall be submitted to Xxxx Xxxxxx (or his designate), who is to
act on behalf of Bass Pro and Bass Pro Affiliates for approval of use of the
Bass Pro Xxxx, and Big Cedar for approval of use of the Big Cedar Xxxx in
respect to promotional materials. Samples shall be submitted to Xxxx X. Xxxxxx
or his designate, at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000. As
respects the Bass Pro Marks, approval of use of the Bass Pro Xxxx shall be
deemed given if not granted or denied within thirty (30) calendar days after
receipt at the above address of the sample, including the proposed use of the
Bass Pro Xxxx. As respects the Big Cedar Xxxx, approval of use of the Big Cedar
Xxxx shall be deemed given if not granted or denied within fourteen (14)
calendar days after receipt at the above address of the sample including the
proposed use of the Big Cedar Xxxx. Upon denial of any such proposed use of the
Big Cedar Xxxx, Xxxx Xxxxxx or his designate, shall deliver to the LLC or
Bluegreen its specific reasons for such denial. Upon cure thereof, the LLC or
Bluegreen may proceed to use such advertising, marketing and promotional
material. Any proposed cure in respect to a denial shall be submitted to Xxxx
Xxxxxx or his designate for further approval, whose approval shall not be
unreasonably withheld or denied, and whose approval shall be deemed given if
denial thereof is not delivered within five (5) days of delivery of the proposed
cure. Once approved, any such sample of advertising, marketing and promotional
program may be re-used or incorporated into any advertising, marketing or
promotional program for the foregoing, as determined from time to time by
Bluegreen, without necessity of further approval; provided, however, if
following approval Xxxx X. Xxxxxx or his designate determines that such approved
advertising, marketing or promotional material is to cease, then, he or his
designate may notify Bluegreen that it is not to use such approved advertising,
marketing or promotional materials until further notice.
(5) Big Cedar shall provide and deliver to the LLC
and Bluegreen creative materials containing the Big Cedar Xxxx for the purpose
of developing and implementing such advertising, promotional and marketing
programs and opportunities incorporating the Big Cedar Marks. Bass Pro and Bass
Pro Trademarks, LLC shall provide and deliver to the LLC and Bluegreen creative
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materials containing the Bass Pro Marks for the purpose of developing and
implementing such advertising, promotional and marketing programs and
opportunities incorporating the Bass Pro Marks. Delivery and use of the Marks
shall be without charge or expense (and the licenses hereunder is agreed to have
been paid for in full), excepting, however, the LLC shall pay the actual costs
incurred by Big Cedar for delivery of the Big Cedar Xxxx, and Bluegreen and the
LLC shall equally pay the costs of Bass Pro and Bass Pro Affiliates for delivery
of the Bass Pro Xxxx. Bluegreen shall be entitled, at its sole cost and expense
to take pictures, videos and other reproductions and depictions of the Big Cedar
Lodge and the respective Bass Pro Shops, including all facilities thereat, and
to utilize such pictures and depictions in its promotional materials relating to
the Big Cedar Timeshare Project, Bluegreen Timeshare Facilities, Bluegreen
Vacation Club and the Big Cedar Timeshare Project's inclusion in the Bluegreen
Vacation Club. Such pictures, videos and other reproductions and depictions
shall, prior to use, be subject to the approval of Xxxx Xxxxxx or his designate
in accordance with the procedures set forth in subparagraph (4) hereinabove. By
execution hereof, Big Cedar, Bass Pro and Bass Pro Affiliates acknowledge and
agree that the license set forth herein has been paid for in full by Bluegreen
and that Big Cedar, Bass Pro and Bass Pro Affiliates have received good and
valuable consideration in exchange for the grant of such license. In furtherance
of the foregoing, Big Cedar, Bass Pro and Bass Pro Affiliates shall execute The
Trademark License Agreements, attached hereto as Exhibit "N" and incorporated
herein by reference.
(xvi) PROMOTIONAL RETAIL CERTIFICATES. In the event that
Bluegreen or the LLC, elects to use retail merchandise or gift certificates for
retail merchandise as incentives to encourage timeshare tours or sales
presentations as respects the Big Cedar Timeshare Project, such merchandise
and/or certificates shall be acquired from Bass Pro and Bass Pro Affiliates, so
long as (i) such merchandise and/or certificates are readily available from Bass
Pro Shops or Bass Pro Catalogs at prices otherwise competitive to what the LLC
or Bluegreen would customarily pay for the same or similar merchandise and/or
certificates; or (ii) where practicable and without detriment to the LLC's or
Bluegreen's systematic and routine marketing, the same can be readily available,
without delay or interference with the LLC's or Bluegreen's routine time
framework, from Bass Pro or Bass Pro Affiliates, at competitive prices to that
which the LLC or Bluegreen would be anticipating paying for the same merchandise
(provided that at no time is subparagraph (ii) immediately preceding to be
operative if the LLC or Bluegreen deems prior contact to Bass Pro and Bass Pro
Affiliates to be impractical in relation to the LLC's or Bluegreen's continued
and systematic marketing efforts). In all events, Bluegreen and the LLC shall
receive, at a minimum, the lesser of a ten percent (10%) price discount off the
lowest offered price for all standard full selection merchandise or Preferential
Treatment. Bluegreen and the LLC shall not be restricted from purchasing
non-merchandise premiums such as lodging accommodations, travel opportunities or
other non-merchandise premiums from third parties unrelated to Bass Pro or Bass
Pro Affiliates. Notwithstanding the foregoing, however, the LLC and Bluegreen
shall, as respects the marketing of timeshare interests at the Big Cedar
Timeshare Project, when overnight occupancy is needed in relation to such
marketing, seek to place occupants in the Big Cedar Lodge as a first priority,
subject to the agreement of Big Cedar to provide such on a Preferential
Treatment Basis. Bass Pro agrees that the agreement of Bluegreen under this
paragraph is given in partial consideration of the obligations of Bass Pro and
Bass Pro Affiliates hereunder. Coupons for services offered by Big Cedar Lodge
shall be subject to review and approval of Xxxx Xxxxxx or his designate. In
addition to the foregoing, coupons for services will be offered by Big Cedar to
Bluegreen and the LLC as incentives to encourage timeshare tours or sales
presentations as respects the Big Cedar Timeshare Project. Such coupons for
services offered by Big Cedar shall be subject to review and approval of Xxxx
Xxxxxx or his designate. Such coupons will be issued with the dollar limitation
and honored, provided Big Cedar shall be entitled to reimbursement for the total
amount of coupons redeemed and Big Cedar shall be reimbursed for the redeemed
coupons by the LLC or Bluegreen on a monthly basis.
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3. ADDITIONAL AGREEMENTS. In the event any of the herein described
advertising, marketing or promotional services to be provided to Bluegreen or
the LLC are provided by a Big Cedar Affiliate or Bass Pro Affiliate (or any
future affiliate of Bass Pro), then Big Cedar and Bass Pro shall cause such Big
Cedar Affiliate and Bass Pro Affiliate (or future Bass Pro affiliates), to enter
into an agreement for such services directly with the LLC or Bluegreen.
Notwithstanding any provision contained herein to the contrary, the License,
Agreements, rights of use and grants provided herein to the LLC and/or Bluegreen
by Big Cedar, Bass Pro or Bass Pro Affiliates shall be irrevocable for the term
of this Agreement, and the parties hereto acknowledge that Bluegreen and the LLC
may justifiably rely on such licenses, rights to use, grants and agreements
4. RESTRICTIONS ON BIG CEDAR, BIG CEDAR AFFILIATES, BASS PRO AND BASS
PRO AFFILIATES.
(a) RESTRICTION ON MARKETING SERVICES. During the term of this
Agreement, and except as otherwise provided in this Agreement, any and all
promotional, advertising and marketing services to be provided by Big Cedar (and
any Big Cedar Affiliate) and Bass Pro and Bass Pro Affiliates hereunder or under
the License Agreements, shall only be provided to Bluegreen and Bluegreen
Affiliates and the LLC and shall not be provided, made available or offered to
or allowed to be taken advantage of by any Competing Resort or the operator
thereof (except as may otherwise be provided in accordance with paragraph
2(a)(i)(2) hereinabove). The restrictions contained in this subparagraph (a)
shall terminate in the event that Bluegreen files or has filed against it a
bankruptcy proceeding.
(b) RESTRICTION ON RESORT INTEREST PROGRAMS. During the term
of this Agreement, for the benefit of Bluegreen and its Affiliates, Big Cedar
and Big Cedar Affiliates and Bass Pro and Bass Pro Affiliates agree that they
shall not sell, market, advertise or promote any Resort Interest Program,
excepting, however, the Big Cedar Timeshare Project, the Bluegreen Vacation
Club, or any Bluegreen Timeshare Facility as offered by Bluegreen. Neither Big
Cedar, Big Cedar Affiliates, nor Bass Pro or Bass Pro Affiliates shall develop
any Resort Interest Program, excepting (i) in accordance with Big Cedar's Right
to Participate as provided for in Section 6.11 of the Operating Agreement; or
(ii) Big Cedar's rights in regard to Fractional Interest Developments as
provided in the Operating Agreement. Neither Big Cedar nor any Big Cedar
Affiliates, nor Bass Pro or any Bass Pro Affiliates shall affiliate with any
entity for the purpose of developing, marketing, promoting or advertising any
other Resort Interest Program, excepting with Bluegreen and as excepting
Fractional Interest Developments as provided for in the Operating Agreement. Big
Cedar may sell, develop, market, advertise or promote a Fractional Interest
Development if developed by Big Cedar or its Affiliates, so long as such
Fractional Interest Development contains no more than twenty five (25)
accommodations in the respective Fractional Interest Development. Such
Fractional Interest Developments may, by way of example and not limitation,
include projects owned or controlled by Big Cedar and its Affiliates existing at
Valhalla Island, Florida; Floridian Sports Club; Welaka, Florida; and Frying Pan
River Ranch, Colorado. The restrictions contained in this subparagraph (b) shall
terminate in the event that Bluegreen files or has filed against it a bankruptcy
proceeding.
(c) BLUEGREEN'S REALIZATION OF BENEFITS. Big Cedar, Bass Pro
and Bass Pro Affiliates acknowledge that the realization of the benefits under
this Marketing Agreement to Bluegreen and the LLC are dependent upon Bluegreen
and the LLC's ability to market the timeshare interests of the Big Cedar
Timeshare Project and Bluegreen's Timeshare Facilities and maximizing the growth
sales of such interests, and that any form of direct or indirect competition
from Big Cedar, Big Cedar Affiliates, Bass Pro and Bass Pro Affiliates, except
as otherwise provided herein, is inconsistent with its intended purposes. The
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parties acknowledge that the terms of this Agreement were negotiated giving
consideration to the concept that competition by Big Cedar, Big Cedar
Affiliates, Bass Pro and Bass Pro Affiliates to the sale, marketing and
promotion of timeshare interests by Bluegreen or the LLC will deprive Bluegreen
and the LLC of a bargain for consideration.
5. LEAD GENERATION PROGRAMS. Subject to the terms of this Agreement,
Bluegreen shall be authorized to develop its own lead generation programs
respecting marketing of timeshare interests at the Big Cedar Timeshare Project
or Bluegreen's Timeshare Facilities, regardless of whether such generation
programs are to be used respecting leads to be obtained by way of floor space
marketing areas at Bass Pro Shops, the cabin prototype timeshare areas, Big
Cedar's customer data base, or otherwise.
6. FEES. Bluegreen shall pay Big Cedar a Generation Commission, as
defined hereinabove, so long as such purchaser is generated to Bluegreen as a
result of promotional, marketing or advertising services provided by Big Cedar
or Bass Pro or Bass Pro Affiliates to the LLC or Bluegreen under the terms of
this Agreement. The Generation Commission shall not be payable, however, for
sales of Resort Interests located at the Big Cedar Timeshare Project or of the
Bluegreen Vacation Club predicated upon conveyance of Resort Interest sales
located at the Big Cedar Timeshare Project. Bluegreen and Big Cedar shall
establish and maintain a system of audit and reporting of such sales and
commissions, accounting for the same on a monthly basis. All such fees shall be
credited by Bluegreen as payment of principal on the Ad Loan, due and payable by
Big Cedar to Bluegreen until repayment of the Ad Loan, in full, except as
otherwise provided in the paragraph 12 hereinbelow. Upon payment in full payment
thereof, such fee shall be payable to Big Cedar on the last day of a respective
month for the Net Sales Volume accomplished during the preceding month. In
addition, Bluegreen shall exercise reasonable efforts to establish a tracking
system regarding production and generation of sales prospects for purposes of
determining whether or not a sale is generated as a result of the promotional,
marketing and advertising services as provided for in this Agreement, as defined
hereinabove and it is agreed that the tracking system set forth on Exhibit "E"
attached hereto is an acceptable tracking system.
7. TERM. This Agreement shall be for a term the earlier of: (i) ten
(10) years from the date hereof, or (ii) until ninety percent (90%) of the Big
Cedar Timeshare Project's timeshares contemplated to exist therein have been
sold and conveyed.. If either party elects to participate in additional resorts
or Fractional Interest Developments as may, from and after the date hereof, be
offered by either party in accordance with the right of participation as defined
and set forth in the LLC Operating Agreement.
8. ADDITIONAL AGREEMENTS BETWEEN BASS PRO AFFILIATES AND BLUEGREEN.
(a) TRACKER BOATS. From and after the date hereof, if the LLC
or Bluegreen acquires for use at Bluegreen's Timeshare Facilities boats similar
to Tracker Marine boats available from Tracker Marine, LLC, then Bluegreen
agrees to acquire such Tracker Marine boats from Tracker Marine, LLC, a Bass Pro
Affiliate, so long as the acquisition thereof, including pricing and terms, are
at least as favorable for similar products as the discount terms available to
Big Cedar Lodge as of the date of this Agreement (or if such discount terms are
more favorable at the time of acquisition, are at least as favorable as such
terms at that time). At the time of acquisition, the LLC and Bluegreen shall be
given Preferential Treatment. Bass Pro and Bass Pro Affiliates, including
Tracker Marine, LLC agree that the agreement of Bluegreen under this paragraph
is given in partial consideration of the obligations of Bass Pro and Bass Pro
Affiliates hereunder. THE RESTRICTIONS CONTAINED IN THIS SUBPARAGRAPH (A) SHALL
TERMINATE IN THE EVENT THAT TRACKER MARINE, LLC FILES OR HAS FILED AGAINST IT A
BANKRUPTCY PROCEEDING
(b) BLUEGREEN RESTRICTION. During the term of this Agreement,
for the benefit of Bass Pro and Bass Pro Affiliates, Bluegreen agrees that it
shall not affiliate with any entity for the purpose of selling outdoor
recreational products or services, and shall not sell or offer for sale outdoor
recreational products and services of any entity which sells such outdoor
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recreational products or services and which are in competition with the outdoor
recreational products and services of Bass Pro or Bass Pro Affiliates. The
restrictions contained in this subparagraph (b) shall terminate in the event
that Bass Pro or Bass Pro Affiliates files or has filed against it a bankruptcy
proceeding.
(c) RECORDS OF THE LLC. The parties agree that the LLC will
provide to Big Cedar and Bluegreen complete access to and right to audit books
and records of the LLC, at the expense of Big Cedar. Bluegreen shall provide Big
Cedar with a monthly report and certification of all timeshare sales of the
Project with names and addresses of the purchasers, the same being due within
twenty (20) days after the first of each calendar month.
(d) EXECUTIVE PRIVILEGES. During the term of this Agreement,
Bluegreen shall make available to Big Cedar, Bass Pro and Bass Pro Affiliates'
senior executives and their immediate families the right to rent timeshare space
available at Bluegreen owned/operated projects at Bluegreen employee/executive
rates on a space available basis. Big Cedar, Bass Pro and Bass Pro Affiliates
shall make available to Bluegreen's senior executives and their immediate
families the right to rent hotel and lodge space and to acquire products from
Big Cedar, Bass Pro and Bass Pro Affiliates at Big Cedar/Bass Pro
employee/executive rates on a space available, as available, basis in accordance
with the standard discount policy.
9. OWNER AND PROSPECT BENEFITS. Any and all services as may be offered
by Big Cedar respecting the Big Cedar Lodge or otherwise, shall be offered at
standard discounted rates by Big Cedar to owners of timeshare interests at the
Big Cedar Timeshare Project and others who occupy and use the Big Cedar
Timeshare Project. Such discounted rates shall be on a Preferential Treatment
basis. This paragraph shall survive termination of this Agreement.
10. FAILURE TO PERFORM/DEFAULT/REMEDIES.
(a) FAILURE TO PERFORM BY BIG CEDAR, BASS PRO OR BASS PRO
AFFILIATES.
(i) In the event that Big Cedar fails to perform or
observe any provision of this Agreement which failure is not cured before
expiration of the period for cure as provided for in paragraph 10(d)
hereinbelow, then Big Cedar shall be deemed to be in default of this Agreement.
In the event that Bass Pro or any Bass Pro Affiliate fails to perform or observe
any provision of this Agreement or any of the License Agreements, which failure
is not cured before expiration of the period for cure as provided for in
paragraph 10(d) hereinbelow, then Bass Pro and Bass Pro Affiliates shall be
deemed in default of this Agreement. In the event of default of this Agreement
by Big Cedar, Bass Pro or a Bass Pro Affiliate, then the LLC and/or Bluegreen
(as may be effected or entitled) shall be entitled to all rights and remedies as
may be available under law or in equity as applicable thereto against Big Cedar
if Big Cedar is in default, and Bass Pro and Bass Pro Affiliates if Bass Pro or
Bass Pro Affiliates are in default. The LLC and Bluegreen shall be entitled to
such rights and remedies, independent one from the other. Specifically, by way
of example and not limitation, Bluegreen and the LLC, upon default by Big Cedar
and/or Bass Pro or a respective Bass Pro Affiliate, shall, independently and
severally, be entitled to any and all damages as against Big Cedar (in the event
of a Big Cedar default) and Bass Pro and Bass Pro Affiliates (in the event of a
Bass Pro or Bass Pro Affiliate default) provable as a consequence thereof,
including incidental damages, or any other consequential damages resulting from
default under this Agreement. Despite the foregoing, if Big Cedar, Bass Pro or a
Bass Pro Affiliate is in default of a License Agreement or a provision of this
Agreement providing for use by the LLC or Bluegreen of the Big Cedar Mailing
List, the Bass Pro Mailing List, the Marks, the Bass Pro Shops or outlets, the
Bass Pro Catalogs, or the Big Cedar Lodge (including placements of signs,
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location of a concierge desk, placement and distribution of promotional
materials, occupancy of rooms by potential timeshare guests, etc. therein), in
accordance with the terms of this Agreement then it is agreed that the same
would cause irreparable harm and significant injury to the LLC or Bluegreen that
would be difficult to ascertain and would not be compensable by damages alone.
Accordingly, the parties agree that Bluegreen and the LLC shall, independently
and severally, have the right to enforce the terms of the License Agreements and
use of the Bass Pro Mailing List, the Big Cedar Mailing List, the Marks, the
Bass Pro Shops, the Bass Pro Catalogs and the Big Cedar Lodge as set forth
herein and in each License Agreement by injunction, specific performance, or
other equitable relief without prejudice to any other rights and remedies the
enforcing party may have. The reference to specific provisions of this Agreement
and in this section is not a wavier of any party's rights to seek equitable
relief for breaches of other sections.
(ii) In the event Big Cedar is in default of this
Agreement, , (a) all Distributions from the LLC to Big Cedar shall cease and
desist (such Distributions being any Distributions from the LLC to Big Cedar
pursuant to the Operating Agreement for such LLC); and (b) the Ad Loan, as
referenced and provided for elsewhere, shall immediately be due and payable one
(1) year from the date of such default together with interest at the rate of
nine percent (9%) per annum from and after the expiration of the applicable cure
period. Despite any Big Cedar default, all License Agreements and all licenses
and rights of use of the LLC and Bluegreen provided for hereunder, including but
not limited to licenses and rights of use as relate to Bass Pro Shops, Bass Pro
Catalogs, the Marks, Big Cedar Lodge, Bass Pro Mailing List and the Big Cedar
Mailing List shall continue and be uninterrupted for the term hereof. It is the
stated intention and purpose hereof that in the event of default of this
Agreement by Big Cedar, Bass Pro or Bass Pro Affiliates, nevertheless, the
rights of Bluegreen and the LLC to receive the marketing, promotional and
advertising benefits set forth herein and in the License Agreements shall
continue uninterrupted for the term hereof.
(iii) In the event that Big Cedar, Bass Pro or Bass
Pro Affiliates are in default of this Agreement, then Bluegreen shall be
entitled to foreclosure and exercise all of its remedies, rights and privileges
respecting the pledge by Big Cedar of its interests in the LLC to Bluegreen and
the deed of trust granted to Bluegreen as against the Additional Property, which
deed of trust is to be granted by Big Cedar to Bluegreen on or about the date
hereof. Such Additional Property is as described in such deed of trust, and is
defined in the Contribution Agreement by and between Bluegreen and Big Cedar,
made on or about the date hereof. Big Cedar's pledge of the membership interests
shall be pledged for a period of six (6) years following the date of the
security agreement given in respect to the membership interest. The Additional
Property deed of trust to Bluegreen shall have be for a term, the earlier of:
(i) seven (7) years from the date of the Additional Property deed of trust, or
(ii)until ninety percent (90%) of the Big Cedar Timeshare Project timeshares
contemplated to exist therein have been sold and conveyed.
(iv) In the event that Bass Pro and/or a Bass Pro
Affiliate is in default of this Agreement or a License Agreement (or otherwise
fails to make the Bass Pro Mailing List available for use by Bluegreen and the
LLC for the term of this Agreement, then Bluegreen shall be entitled to receive
immediately physical possession and custody of a copy of the Bass Pro Mailing
List in the form as exists on the date of default, and Bass Pro and Bass Pro
Affiliates, including Bass Pro Trademarks, LLC, or the third party administrator
holding the Bass Pro Mailing List for use by Bluegreen and the LLC hereunder,
shall immediately upon such default deliver to Bluegreen physical possession and
custody of a copy of the Bass Pro Mailing List in the form as it exists on the
date of such default. Any agreement with a third party administrator shall so
provide. From and after delivery to Bluegreen of the Bass Pro Mailing List,
Bluegreen shall be entitled to retain physical possession and custody of a copy
of the Bass Pro Mailing List and Bluegreen's use of the Bass Pro Mailing List
shall continue indefinitely and unrestricted as may be determined from time to
time by Bluegreen, subject to the restriction that Bluegreen's use of the Bass
Pro Mailing List shall be only within the timeshare industry and the Bass Pro
Mailing List shall not be sold by Bluegreen to any competitor of Bass Pro or
Bass Pro Affiliates. Delivery of the Bass Pro Mailing List in accordance with
the terms hereof shall be in such a media form as to be usable by Bluegreen. The
right of Bluegreen to receive the Bass Pro Mailing List shall be specifically
enforceable by Bluegreen.
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(b) FAILURE TO PERFORM BY LLC. In the event of material
failure to perform or observe this Agreement by the LLC, which failure is not
cured before expiration of the period for cure as provided for in paragraph
10(d) hereinbelow, then the LLC shall be deemed in default of this Agreement. If
the LLC is in default of this Agreement, then such other party or parties hereto
who are not in default shall be entitled to all rights and remedies as may be
available under law or in equity as applicable thereto. Specifically, by way of
example and not limitation, Big Cedar, Bass Pro and Bass Pro Affiliates shall,
if the LLC is in default of this Agreement, independently and severally, be
entitled to any and all damages provable as a consequence thereof, including
incidental damages or any consequential damages resulting therefrom.
(c) FAILURE TO PERFORM BY BLUEGREEN. In the event of material
failure to perform or observe this Agreement by Bluegreen which failure is not
cured before expiration of the period for cure as provided for in paragraph
10(d) hereinbelow, then Bluegreen shall be deemed in default of this Agreement.
If Bluegreen is in default of this Agreement,, then such other party or parties
hereto who are not in default shall, unless stated otherwise as between
Bluegreen and Big Cedar in the LLC Operating Agreement, be entitled to all
rights and remedies as may be available under law or in equity as applicable
thereto. Specifically, by way of example and not limitation, Big Cedar, Bass Pro
and Bass Pro Affiliates shall, if Bluegreen is in default of this Agreement,
independently and severally, be entitled to any and all damages provable as a
consequence thereof, including incidental damages or any consequential damages
resulting herefrom. Because, however, the provisions of this Agreement providing
for use of Bluegreen's Mailing Lists by Big Cedar and Bass Pro, in accordance
with the terms of this Agreement, would cause irreparable harm and significant
injury that would be difficult to ascertain, it would not be compensable by
damages alone, the parties agree that Big Cedar and Bass Pro shall,
independently and severally, have the right to enforce such provisions by
injunction, specific performance or other equitable relief without prejudice to
any other rights and remedies the enforcing party may have. The reference to
specific provisions of this Agreement and in this section is not a waiver of any
party's right to seek equitable relief for breaches of other sections.
(d) NOTICE/DEFAULT. Notwithstanding any provision herein
otherwise, no default of this Agreement shall be determined to exist until and
unless any failure to observe or perform any provision of this Agreement
continues for ninety (90) days after written notice thereof by a party hereunder
to a party not so performing or observing; provided, however, that if the nature
of such failure is such that it cannot reasonably be cured within such ninety
(90) day period, and such non-performing party, within the ninety (90) day
period commences to cure, and thereafter diligently processes such cure to
completion, such cure period shall be extended for a period of no more than
sixty (60) days.
(e) EFFECT OF DEFAULT. Except as stated in paragraph 12(b)
below, notwithstanding any of the provisions contained herein to the contrary,
in the event of a default of this Agreement entitling any party to remedies as
may be available under law or in equity, as applicable thereto, the License
Agreements and services to be provided hereunder shall continue uninterrupted
for the term specified therein.
(f) EFFECT ON AD LOAN OF DEFAULT HEREOF. If Big Cedar, Bass
Pro or Bass Pro Affiliates is in default, paragraph 12 shall govern the effect
on the Ad Loan.
11. SPECIAL DISPUTE RESOLUTION PROCEDURE. Notwithstanding the
provisions of the preceding paragraph regarding Default/Remedies, if any dispute
or disagreement between Big Cedar, Bass Pro and Bass Pro Affiliates and
Bluegreen, Bluegreen Affiliates or the LLC, shall arise relating to any
provision of this Agreement, and such provision shall require or permit either
party to invoke the provisions of Default/Remedies set forth immediately
hereinabove, the following procedures shall apply as a condition precedent to
the exercise of any Default/Remedies provision provided hereinabove which
procedures may run simultaneous in time with the ninety (90) days notice
hereinabove set forth:
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(a) Such party shall give written notification of such dispute
or disagreement to, if such party is Big Cedar, Bass Pro or Bass Pro Affiliates,
Xxxxxx Xxxxxxx, or the person then performing the duties at Bluegreen currently
performed by Xxxxxx Xxxxxxx ("Bluegreen, CEO") and if such party is Bluegreen,
acting as Bluegreen, Bluegreen Affiliates or the LLC, to Xxxx X. Xxxxxx, or the
person performing the duties at Marketer currently performed by Xxxx X. Xxxxxx
("Marketer, CEO"); and (iii) the CEOs shall communicate with each other promptly
with a view to resolving such dispute or disagreement within twenty (20) days of
commencing any negotiations (or such extended period as the CEOs agree is
appropriate in any such case). The foregoing shall be a condition precedent to
applicability of the Default/Remedies section, as provided in paragraph 10, set
forth hereinabove. During any period of such communications, services as
provided herein prior to any claimed default shall continue without any
alteration or modification, except as acceptable to the party receiving such
services.
12. EFFECT ON AD LOAN OF DEFAULT HEREOF.
(a) If Big Cedar is in default of this Agreement, Bluegreen
may declare the balance of the Ad Loan due and payable, and Big Cedar shall be
personally liable for and pay the balance due thereof and Bluegreen may proceed
to foreclose on its lien against the membership interest of Big Cedar in the LLC
and foreclose on its deed of trust concerning the Additional Property. In the
event Bass Pro or Bass Pro Affiliates are in default of this Agreement, then
Bluegreen shall be entitled to all of the remedies set forth hereinabove;
provided, however, that the Ad Loan shall not be immediately due and payable by
Big Cedar.
(b) Pursuant to the terms of the Ad Loan, if Bluegreen
defaults under the LLC Operating Agreement by committing acts of fraud in
management of the LLC in a manner inconsistent with the terms thereof and such
default causes actual damages to Big Cedar in an amount equal to or in excess of
thirty five percent (35%) of the then outstanding principal amount due on the Ad
Loan, and in such event Bluegreen fails to cure such default within thirty (30)
days after receiving written notice of the specific facts claimed by Big Cedar
to constitute such default then, so long as Big Cedar, Bass Pro or a Bass Pro
Affiliate is not in breach or default of this Agreement, nor is Big Cedar in
default of the Operating Agreement of the LLC, then (i) there shall be no
further obligation of Big Cedar whatsoever to repay the outstanding balance of
the Ad Loan, and Bluegreen shall execute any and all documents necessary to
acknowledge release of Big Cedar's obligations with respect to the Ad Loan and
security therefore; provided any payments previously received by Bluegreen from
Big Cedar respecting payoff of the Ad Loan shall remain the property of
Bluegreen; and (ii) this Agreement and all License Agreements shall terminate.
13. NOTICES. All notices required or permitted by the terms hereof
shall be given by hand delivery or by sent and paid Federal Express or other
overnight delivery, at the following addresses or at such other addresses as
either party hereto shall, in writing, advise the other:
If to Bluegreen: Bluegreen Corporation, Attn: Xxxxxxx Xxxxxxx
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
With a copy to: Xxxxx X. Xxxxx, Esq.
XXXXXXXXX & XXXXX, P.C.
0000 Xxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
e-mail address: XXXXXX@XXXXX.XXX
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(Delivery hereto, however, shall not be deemed notice
to Bluegreen).
If to Big Cedar, Bass Pro or Big Cedar Affiliates or Bass
Pro Affiliates:
Big Cedar, L.L.C. : 0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx
With a copy to: J. Xxxxxxxxxxx Xxxxxx, Esq.
XXXXXX & XXXXXX, L.L.P.
0000 Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
e-mail address: XXXXXXXX@XXX.XXX
(Delivery hereto, however, shall not be deemed notice to Big
Cedar or Bass Pro).
If to the LLC: Bluegreen/Big Cedar Vacations, LLC
Attn: Xxxxxxx Xxxxxxx
C/o Bluegreen Corporation
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
With a copy to: Xxxxx X. Xxxxx, Esq.
XXXXXXXXX & XXXXX, P.C.
0000 Xxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
With a copy to: J. Xxxxxxxxxxx Xxxxxx, Esq.
XXXXXX & XXXXXX, L.L.P.
0000 Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
e-mail address: XXXXXXXX@XXX.XXX
All notices shall be deemed given at the time of hand delivery
or the time such deposited with Federal Express or other reputable overnight
delivery for transmittal as aforesaid; provided, however, that the time at which
response or action in response to any notice must be given or taken shall run
from the time of actual receipt of such notice.
14. ASSIGNMENT. No party shall assign this Agreement nor any of its
rights or obligations hereunder without the prior written consent of the other
parties, except that no such consent shall be required for a transfer by
operation of law in connection with a merger or consolidation of such party. Any
attempt to assignment of this Agreement in violation of this section, shall be
void and of no effect. This Agreement shall be binding upon, inure to benefit of
and be enforceable by the parties hereto and their respective successors and
permitted assigns. Notwithstanding the foregoing, Big Cedar shall have the right
to transfer its interests in the LLC at any time to an entity which is
controlled by Xxxx X. Xxxxxx, provided, however, that (i) neither the LLC nor
Bluegreen, nor any Bluegreen Affiliate shall be subject to any liability,
expense, cost or obligation arising or resulting from such assignment; (ii) Xxxx
X. Xxxxxx and Big Cedar shall indemnify the LLC, Bluegreen and Bluegreen
Affiliates from any cost, expenses, liabilities or obligations as might arise or
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result from such assignment; and (iii) legal counsel to Big Cedar and Xxxx X.
Xxxxxx shall provide an opinion to the LLC, Bluegreen and Bluegreen Affiliates
that, to the best of their knowledge, information and belief, after due inquiry
and investigation, such assignment is valid, enforceable and in compliance with
applicable law.
15. CONFIDENTIALITY. Bluegreen, Big Cedar, Bass Pro and Bass Pro
Affiliates on behalf of themselves and their respective agents, employees and
attorneys each hereby covenant and agree to keep confidential all information
regarding this transaction and the advertising, marketing and promotional
services to be provided hereunder (provided, however, that they may divulge such
information as required and requested by lenders or governmental authorities,
including within such releases or announcements as may be required by law, or by
the rules or regulations of any securities exchange) and they shall keep
confidential all information regarding projections concerning marketing and sale
of the Big Cedar Timeshare Project or any Bluegreen Timeshare Facility,
development of the Big Cedar Timeshare Project and methods of marketing and
sale. All notices to third parties and all publicity or press releases with
respect to the transaction contemplated hereof shall be mutually approved by the
LLC, Bluegreen, Big Cedar and Bass Pro, Inc. (Big Cedar and Bass Pro to act
through Xxxx X. Xxxxxx or his lawful designate) prior to release or
dissemination.
16. GOOD FAITH COOPERATION, NEGOTIATION, OPERATION AND PERFORMANCE.
The parties hereby agree to cooperate, negotiate, operate, and perform in good
faith to accomplish the intentions and fully effectuate the purposes of this
Agreement, including but not limited to, in the creation, execution, and
delivery of any document or service contemplated hereunder. Upon reasonable
request, from time to time, the parties shall execute and deliver all documents
and instruments and do all of the acts as may be reasonably necessary or
desirable to give effect to the performance of this Agreement and all the
services hereunder to be provided or to exercise by the other parties their
respective rights hereunder. Big Cedar, Bass Pro and Bass Pro Affiliates shall,
for each license, right or easement specified in this Agreement deliver to
Bluegreen appropriate documentation on a form acceptable to Bluegreen to
identify such right in specific documentation.
17. APPLICABLE LAW; WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. The
validity, construction and performance of this Agreement shall be governed by
and construed in accordance with the laws of the State of Missouri, applicable
to contacts executed and performed entirely within such State, without reference
to any choice of law principles of such State. With respect to any litigation or
controversy arising out of this Agreement, the parties expressly waive any right
they may have to a jury trial and agree that any such litigation shall be tried
by a judge without a jury. Each party agrees to non-exclusive personal
jurisdiction and venue in the United States District Court for the Western
District of Missouri, Southern Division (and any Missouri state court within
that district and division). Litigation shall mean and include any written
claim, action, lawsuit, or proceeding.
18. SEVERABILITY. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable, that provision will be enforced to the
maximum extent permissible, so as to effect the intent of the parties, and the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby. If necessary to effect the intent of
the parties, the parties will negotiate in good faith to amend this Agreement to
replace the unenforceable language with the enforceable language which as
closely as possible reflects such intent. The provisions of this Agreement to
the benefit of Bluegreen and Bluegreen Affiliates are severable and distinct
from the provision of this Agreement to the benefit of the LLC, and shall be
enforceable one independent from the other.
19. WAIVER. The wavier by any party of any instance of any other
party's non-compliance with any obligation or responsibility herein shall not be
deemed a waiver of other instances or of any party's remedies for such
non-compliance.
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20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts shall have been signed by
each party and delivered to each other party.
21. ENTIRE AGREEMENT. The provisions of this Agreement set for the
entire Agreement and understanding among the parties as to the subject matter
hereof, and supercede all prior agreements, oral or written, and all other
communications between the parties relating to the subject matter hereof.
22. SURVIVAL OF AGREEMENT. All covenants, agreements, representations
and warranties made by any party herein shall be considered as having been
relied upon by the other parties, and shall survive and be enforceable
regardless of any investigation made by any other parties hereto, or on their
behalf.
23. THIRD PARTY BENEFICIARIES. This Agreement is for the sole benefit
of the parties and their permitted assigns, and nothing herein, expressed or
implied, shall give or be construed to give any person, other than the parties
and such assigns, any legal or equitable rights hereunder, except, that
paragraph 10 hereof is intended to be for the benefit of owners and prospects of
timeshare interests and the same shall be entitled to the benefits of such
Section.
24. CONSTRUCTION. This Agreement has been negotiated by the parties and
their respective counsel, and shall be fairly interpreted in accordance within
the terms, and without any strict construction in favor of or against any party.
In construing this Agreement, the singular sense shall be deemed to include the
plural, and the male and neuter gender shall mean and comprehend all genders,
whenever such meaning or interpretation is necessary and appropriate. Headings
contained in this Agreement are for reference purposes only, and shall not
affect in any way the meaning or interpretation of this Agreement.
25. PRIOR DISCUSSIONS AND AMENDMENTS. This Agreement constitutes the
entire agreement between the parties hereto as to the subject matter contained
herein and supersedes all prior discussions, understandings, and agreements
between them as to the subject matter contained herein. This Agreement may not
be modified or amended unless such amendment is set forth in writing and signed
by each party.
26. CONSIDERATION. Big Cedar, Bass Pro and Bass Pro Affiliates
acknowledge that certain promises of Bluegreen and the LLC herein run to the
benefit of Big Cedar and certain promises of Bluegreen and the LLC herein run to
the benefit of Bass Pro and Bass Pro Affiliates. The promises of Bluegreen and
the LLC to the benefit of Bass Pro and Bass Pro Affiliates, include by way of
example and not limitation, the LLC and Bluegreen's agreements concerning use of
promotional retail certificates, retail merchandise, Tracker Marine boats,
extension of executive privileges, and Bluegreen's agreement to restrict its
affiliation with those in competition with Bass Pro or Bass Pro Affiliates.
Other promises of Bluegreen and the LLC set forth herein and otherwise run to
the benefit of Big Cedar In exchange for the foregoing, as well as in exchange
for other good and valuable consideration, the receipt and sufficiency of which
is acknowledged by Big Cedar, Bass Pro and Bass Pro Affiliates, Big Cedar, Bass
Pro and Bass Pro Affiliates agree that they are bound to this Agreement and to
the performance of the obligations hereunder to the benefit of Bluegreen and the
LLC.
27. NO CONDITION PRECEDENT. The obligations of the parties hereto shall
be determined by the terms of this Agreement and shall not be subject to any
other, additional or extraneous condition precedent occurring. By way of example
and not limitation, the terms of this Agreement shall be binding amongst and
between the parties hereto, despite any absence of agreement concerning
construction, improvement or development of the Big Cedar Timeshare Project.
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28. CONSTRUCTION OF BIG CEDAR TIMESHARE PROJECT. It is the intention of
this Agreement that all benefits to be provided hereunder to the LLC and
Bluegreen shall be governed by the terms hereof, and shall, from the date of
execution and thereafter, be available and any restriction or limitation
respecting benefits to be received to the Big Cedar Timeshare Project shall,
until the timeshare units therein are available for sales and marketing in
accordance with the customary practices of Bluegreen, be made available to
Bluegreen and the Bluegreen Timeshare Facilities.
29. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as to the
day and year first above set forth.
BLUEGREEN VACATIONS UNLIMITED,
INC., a Florida corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: President
BIG CEDAR, L.L.C.,
A MISSOURI LIMITED LIABILITY COMPANY
By: Three Xxxxx Company, a Missouri corporation,
its sole member
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Print Name: Xxxx X. Xxxxxx
Title: Vice President Finance
BASS PRO, INC.,
A DELAWARE CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Print Name: Xxxx X. Xxxxxx
Title: Vice President Finance
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BLUEGREEN/BIG CEDAR VACATIONS, LLC,
A DELAWARE LIMITED LIABILITY COMPANY:
By: Bluegreen Vacations Unlimited, Inc.
a Florida corporation, its Managing Member
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: President
By: BIG CEDAR L.L.C., its Member
By: Three Xxxxx Company, a Missouri corporation,
its sole member
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Print Name: Xxxx X. Xxxxxx
Title: Vice President Finance
BASS PRO OUTDOOR WORLD, L.L.C.,
A MISSOURI LIMITED LIABILITY COMPANY
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Print Name: Xxxx X. Xxxxxx
Title: Vice President Finance
BASS PRO OUTDOORS ONLINE, L.L.C.,
A MISSOURI LIMITED LIABILITY COMPANY
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Print Name: Xxxx X. Xxxxxx
Title: Vice President Finance
BASS PRO TRADEMARKS, L.L.C.,
A MISSOURI LIMITED LIABILITY COMPANY
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Print Name: Xxxx X. Xxxxxx
Title: Vice President Finance
BPS CATALOG, L.P., A MISSOURI LIMITED
PARTNERSHIP
By: Its General Partner, BPS Catalog
GP, Inc., a Missouri Corporation
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Print Name: Xxxx X. Xxxxxx
Title: Vice President Finance
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BPS CATALOG GP INC., A MISSOURI CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Print Name: Xxxx X. Xxxxxx
Title: Vice President Finance
WORLD WIDE SPORTSMAN, INC.
A SOUTH CAROLINA CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Print Name: Xxxx X. Xxxxxx
Title: Vice President Finance
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