Execution Copy
AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
THIS
AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT (“
Agreement ”) dated as of the 31st day of December,
2007, is made by and among Bluegreen/Big Cedar Vacations, LLC, a
Delaware limited liability company (the “ Company
”), Bluegreen Vacations Unlimited, Inc., a Florida
corporation (“ Bluegreen ”), and Big Cedar,
L.L.C., a Missouri limited liability company (“ Big
Cedar ”). The Company, Bluegreen and Big Cedar are each
referred to herein as a “ Party ”, and
collectively as “ Parties .”
RECITALS:
WHEREAS , the Company and Bluegreen previously entered into
that certain Administrative Services Agreement dated as of June 16,
2000 (the “ Original Administrative Services Agreement
”), which provided for an arrangement by which Bluegreen
provided certain general and administrative services relating to
the Big Cedar Timeshare Project on the terms set forth therein;
and
WHEREAS , the Company and Bluegreen now desire to amend and
restate the Original Administrative Services Agreement in its
entirety on the terms and conditions set forth herein.
NOW, THEREFORE , for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and the
mutual promises contained herein, the Original Administrative
Services Agreement is hereby amended by striking said Original
Administrative Services Agreement in its entirety and substituting
therefore the following Amended and Restated Administrative
Services Agreement:
1.
Definitions .
(a)
Annual Sales Volume shall mean the annual gross sales of
timeshare interests in the Timeshare Projects, less purchaser
cancellation and defaults, determined quarterly.
(b)
Big Cedar Timeshare Project shall mean that certain
timeshare project developed by the Company known as the Wilderness
Club at Big Cedar and located contiguous to the Big Cedar Lodge in
Ridgedale, Taney County, Missouri, including that portion of the
Big Cedar Timeshare Project known as “Building 3000,”
which timeshare project is located on that certain property
described on Exhibit “B” to the Operating Agreement and
incorporated herein by this reference.
(c)
Operating Agreement shall mean that certain Amended and
Restated Operating Agreement of Bluegreen/Big Cedar Vacations, LLC,
dated as of the date hereof, by and among Bluegreen and Big
Cedar.
(d)
Red Rock Bluff Timeshare Project shall mean that certain
timeshare project to be developed by the Company, located in Taney
County, Missouri, which timeshare project shall be located on that
certain property described on Exhibit “C” attached to
the Operating Agreement and incorporated herein by this
reference.
(e)
Servicing Agreement shall mean that certain Amended and
Restated Servicing Agreement, dated as of the date hereof, by and
among Bluegreen Corporation, the Company, and Big Cedar.
(f)
Timeshare Projects shall mean collectively the Big Cedar
Timeshare Project and the Red Rock Bluff Timeshare Project,
together with such other timeshare projects as may be owned,
developed and sold by the Company from time to time.
2.
Services to be Provided . In consideration of the Fee
set forth in Section 5 , Bluegreen agrees to perform the
following services for the benefit of the Company:
(a) Hiring,
firing and setting compensation for the Company’s employees
and managers in accordance with the Company’s approved Annual
Budget (as defined in the Operating Agreement), excepting the
General Manager who shall be employed in accordance with the
Operating Agreement.
(b) Performing
business functions of the Company as respects the use of internal
accounting, management information, human resources and other
back-office services.
(c) Supervising
marketing and sales closings of timeshare interests in the
Timeshare Projects.
(d) Providing
and/or coordinating for the centralized accounting, financing,
legal, human resource, management information services, budget
preparation and management.
3.
Exception from Services . Bluegreen shall not be
responsible for providing, and the Fee shall not be deemed to be
compensation for, any services provided by Bluegreen Corporation,
an affiliate of Bluegreen, for collecting or servicing purchaser
notes, which is the subject of the Servicing Agreement.
4.
Outside/Third Party Services . All fees, costs and
expenses payable to third parties incurred by or on behalf of the
Company for outside services, as opposed to in-house services
necessary to provide the foregoing services including, by way of
example and not limitation, legal, accounting and audit fees,
employee benefits, technological and similar services, and all
other mutually agreed-upon expenses as may be provided from time to
time for the benefit of the Company, shall be at the full cost and
expense of the Company (collectively, the “ Permitted
Company Expenses ”). All of the foregoing Permitted
Company Expenses shall be directly paid by the Company or, if paid
by Bluegreen, reimbursed by the Company, as applicable. Bluegreen
may elect to use its available in-house staff to perform some or
all of the foregoing services when reasonably appropriate,
provided , that Bluegreen shall first obtain approval of Big
Cedar and that such services performed by Bluegreen in-house staff
shall be at rates at least as favorable to the Company as those
available from unaffiliated parties.
5.
Fee . For the performance of the services hereunder,
the Company shall pay to Bluegreen or Bluegreen Corporation (as
Bluegreen may determine in its sole discretion), a fee (“
Fee ”) equal to three percent (3%) of the Annual Sales
Volume of the Company, determined quarterly. The Fee shall be due
and payable in arrears on the last day of each fiscal quarter, and
the Company shall make such payment in full no later than twenty
(20) days after such date. At such time, in addition to payment of
the Fee, the Company shall reimburse Bluegreen within thirty (30)
days of the Company’s receipt of an invoice for the Permitted
Company Expenses incurred by Bluegreen as set forth in Section
4 .
6.
No Reimbursement of Bluegreen Expenses .
Notwithstanding the Permitted Company Expenses provided by
Section 4 of this Agreement, Bluegreen shall not be entitled
to receive payment of or reimbursement for any of its general and
administrative fees, overhead, costs or expenses incurred on behalf
of the Company relating to the Timeshare Projects including,
without limitation, expenses incurred
2
by Bluegreen representatives for travel to the Timeshare
Projects in Missouri for the purpose of providing services for this
Agreement or other related expenses.
7.
Breach . In the event of breach of this Agreement by
any Party, each Party shall be entitled to all remedies
at
