Excution Copy
AMENDED AND RESTATED
MARKETING AND PROMOTIONS AGREEMENT
December 31, 2007
TABLE OF CONTENTS
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ARTICLE I - DEFINITIONS
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2
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Section 1.1
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Definitions
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2
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ARTICLE II - MARKETING AND PROMOTION OF BLUEGREEN’S
TIMESHARE FACILITIES
AND THE
TIMESHARE PROJECTS
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7
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Section 2.1
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General
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7
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Section 2.2
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Term
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7
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Section 2.3
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Bass Pro Catalog
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8
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Section 2.4
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Bass Pro Shops
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9
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Section 2.5
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Website Links
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14
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Section 2.6
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Mailing Lists
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17
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Section 2.7
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Big Cedar Lodge
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21
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Section 2.8
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Signage
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22
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Section 2.9
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Tradenames and Marks
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23
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Section 2.10
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Preferential Treatment
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28
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Section 2.11
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Proprietary Information
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28
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Section 2.12
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Other Promotional Agreements and Channels
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28
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Section 2.13
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Lead Generation Programs
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29
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ARTICLE III - RESTRICTIONS
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30
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Section 3.1
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Restriction on BP/BC Marketing Channels
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30
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Section 3.2
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Restriction on Bluegreen Marketing Channels
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30
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ARTICLE IV - GENERATION COMMISSION
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31
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Section 4.1
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Generation Commission
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31
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Section 4.2
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Annual Prepayments
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32
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ARTICLE V - PERMITTED USE; CONTENT; APPROVAL RIGHTS
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33
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Section 5.1
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Permitted Use
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33
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Section 5.2
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Content and Approval Rights
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34
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ARTICLE VI - INDEMNIFICATION / LIMITATION OF
LIABILITY
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35
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Section 6.1
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Indemnification—Bluegreen
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35
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Section 6.2
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Indemnification –The Company
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35
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Section 6.3
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Indemnification – Service Provider
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35
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Section 6.4
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Limitation of Liability
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35
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i
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ARTICLE VII - MISCELLANEOUS
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36
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Section 7.1
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GOVERNING LAW
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36
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Section 7.2
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Submission to Jurisdiction
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36
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Section 7.3
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Remedies
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36
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Section 7.4
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Notice/Default
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37
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Section 7.5
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Notices
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37
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Section 7.6
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Assignment
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39
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Section 7.7
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Confidentiality
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39
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Section 7.8
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Good Faith Cooperation, Negotiation, Operation and
Performance
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39
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Section 7.9
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Severability
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39
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Section 7.10
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Counterparts
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40
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Section 7.11
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Entire Agreement
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40
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Section 7.12
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Construction
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40
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Section 7.13
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No Condition Precedent
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40
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Section 7.14
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Time is of the Essence
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40
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Section 7.15
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Consideration
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40
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List of Exhibits
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Exhibit A-1
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Bass Pro Trademarks, Trade Names, Service Marks, Proprietary
Marks, Logos and Unique Signs
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Exhibit A-2
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Big Cedar Trademarks, Trade Names, Service Marks, Proprietary
Marks, Logos and Unique Signs
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Exhibit B-1
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Big Cedar Timeshare Project Property Description
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Exhibit B-2
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Red Rock Bluff Property Description
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Exhibit C
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Prospect Track (to be revised within 30 days)
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ii
AMENDED AND RESTATED
MARKETING AND PROMOTIONS AGREEMENT
THIS AMENDED AND RESTATED MARKETING AND PROMOTIONS AGREEMENT
(this “ Agreement ”) is made and entered into as
of this 31st day of December, 2007 by and among Big Cedar, L.L.C.,
a Missouri limited liability company (“ Big Cedar
”), Bass Pro, Inc., a Delaware corporation (“ Bass
Pro ”), Bass Pro Outdoor World, L.L.C., a Missouri
limited liability company (“ BPOW ”), Bass Pro
Outdoors Online, L.L.C., a Missouri limited liability company
(“ BP Online ”), BPS Catalog, L.P., a Missouri
limited partnership (“ BPS Catalog ”), Bass Pro
Trademarks, L.L.C., a Missouri limited liability company (“
BP Trademarks ”), World Wide Sportsman, Inc., a South
Carolina corporation (“ WW Sportsman ”), Bass
Pro Shops Canada, Inc., an Ontario corporation (“ BPS
Canada ”), Bass Pro Shops Canada (Calgary), Inc., a
Canada corporation (“ BPS Canada Calgary ”),
BPIP, LLC, a Virginia limited liability company, (“
BPIP ”), Tracker Marine, L.L.C., a Missouri limited
liability company (“ Tracker Marine ”),
Bluegreen Vacations Unlimited, Inc., a Florida corporation (“
Bluegreen ”), and Bluegreen/Big Cedar Vacations, LLC,
a Delaware limited liability company (the “ Company
”). Each of Big Cedar, Bass Pro, BPOW, BP Online, BPS
Catalog, BP Trademarks, WW Sportsman, BPS Canada, BPS Canada
Calgary and BPIP are sometimes referred to herein as a “
Service Provider ,” and they are sometimes
collectively referred to herein as the “ Service
Providers .” Each of Bluegreen and the Company are
sometimes referred to herein as an “ Advertiser
,” and they are sometimes collectively referred to herein as
the “ Advertisers .”
WITNESSETH
WHEREAS , Big Cedar, Bass Pro, Bluegreen, and the Company
previously entered into that certain Marketing and Promotions
Agreement dated as of June 16, 2000 (the “ Original
M&P Agreement ”), which provided for an arrangement
by which Big Cedar, Bass Pro and certain Affiliates of Bass Pro
provided to Bluegreen and certain Affiliates of Bluegreen,
promotional, marketing and advertising services;
WHEREAS , Big Cedar and Bluegreen are members of the
Company, and the Company has acquired certain real property
adjacent to the Big Cedar Timeshare Project (as defined herein) for
purposes of the construction and development of the Building 3000
Project (as defined herein), and has acquired the Red Rock Bluff
Property (as defined herein) for purposes of the construction and
development of the Red Rock Bluff Timeshare Project (as defined
herein); and
WHEREAS , in connection with the acquisition of the Red Rock
Bluff Property and the construction and development of the Building
3000 Project and the Red Rock Bluff Timeshare Project, Big Cedar,
Bass Pro, Bluegreen, the Company and the other parties hereto now
desire to amend and restate the Original M&P 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 parties
hereby agree as follows:
ARTICLE I - DEFINITIONS
Section
1.1 Definitions .
(a) As
used herein, the following terms have the following
meanings:
(i)
Affiliate as to any Person means (1) any other Person
directly or indirectly through one or more intermediaries
controlling, controlled by or under common control with such
Person, or (2) a trust which has as its principal income
beneficiaries or remaindermen such Person and/or a member or
members of such Person’s Immediate Family. The terms
“controlling,” “controlled” and
“common control with” mean the ability, by ownership of
voting securities or otherwise, directly or indirectly, to direct
the managerial and operating policies of a Person. Except as used
in Section 2.11 , Affiliates of the Service Providers shall
only include Bass Pro and any controlled subsidiary of Bass Pro.
Affiliates of Bluegreen shall only include Bluegreen Corporation
and any controlled subsidiary of Bluegreen Corporation.
(ii)
Approved Alternative Marketing Programs shall mean, certain
additional marketing programs which from time to time may be
determined by the Company to be in the best interests of the
Company. Such programs may include, but not be limited to,
sponsorship of NASCAR events and/or Drivers.
(iii)
Bankruptcy Event means, with respect to any Person, (i) the
commencement by such Person of a voluntary case under, or the
consent by such Person to the entry of an order for relief in an
involuntary case under, any bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar law now or
hereafter in effect, or (ii) the consent by such Person to the
appointment of, or taking possession by, a receiver, custodian,
liquidator, assignee, trustee or sequestrator (or other similar
official) of such Person or of any substantial part of its assets,
or (iii) the making of a general assignment by such Person
generally to pay its debts as they benefit creditors, or (iv) the
admission in writing of such Person of its inability to pay its
debts as they become due in the ordinary course of business, or (v)
the adoption of a resolution by its directors or shareholders (or
analogous managers or equity owners) in furtherance of any of the
foregoing, or (vi) the entry by a court of competent jurisdiction
of a decree or order for relief in respect of such Person in an
involuntary case under any bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar Law now or
hereafter in effect and the continuance of such decree or order
unstayed and in effect for a period of sixty (60) days, or (vii)
the appointment of a receiver, examiner, custodian, liquidator,
assignee, trustee or sequestrator (or other similar official) of
such Person or of any substantial part of its assets, or (viii) the
ordering of the winding up or liquidation of its affairs, or
conversion of a pending reorganization proceeding into a proceeding
under Chapter 7 of the Bankruptcy Code or other proceeding to
liquidate or otherwise dispose of a substantial part of such
Person’s properties.
2
(iv)
Bass Pro Catalog means those certain retail catalogs
published seasonally by BPS Catalog.
(v)
Bass Pro Mailing List means the lists of the names and
mailing addresses of the customers and clients of Bass Pro and its
subsidiaries as are customarily kept by BP Trademarks;
provided , however , the Bass Pro Mailing List shall
only include such information to the extent it is available and
permitted to be shared with others pursuant to applicable law. The
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.
(vi)
Bass Pro Marks means those certain trademarks, trade names,
service marks, proprietary marks, logos and unique signs or marks
owned by BP Trademarks and identified on Exhibit A-1
hereto.
(vii)
Bass Pro Shops means those certain retail stores operated by
Bass Pro, BPOW, WW Sportsman, BPS Canada, BPS Canada (Calgary) or
Affiliates of Bass Pro, known as “Bass Pro Shops,”
“Bass Pro Outdoor World,” Bass Pro Sportsman’s
Warehouse,” and “Bass Pro Shops White River
Outpost,” and they are each individually referred to herein
as a Bass Pro Shop .
(viii)
Bass Pro Website means that certain internet website owned
and operated by BP Online, and located at the top level domain name
basspro.com.
(ix)
Big Cedar Lodge means that certain resort facility known as
the Big Cedar Lodge located in Ridgedale, Taney County, Missouri,
which as of the date hereof is owned and operated by Big
Cedar.
(x)
Big Cedar Mailing List means the lists of the names and
mailing addresses of the customers and clients of Big Cedar,
including occupants of the Big Cedar Lodge, as are customarily kept
by Big Cedar; provided , however , the Big Cedar
Mailing List shall only include such information to the extent it
is available and permitted to be shared with others pursuant to
applicable law. The Big Cedar 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.
(xi)
Big Cedar Marks means those certain trademarks, trade names,
service marks, proprietary marks, logos and unique signs or marks
owned by Big Cedar and identified on Exhibit A-2
hereto.
(xii)
Big Cedar Timeshare Project means that certain timeshare
project developed or to be developed by the Company, inclusive of
the Building 3000 Project, located contiguous to the Big Cedar
Lodge in Taney County, Missouri, which timeshare project is located
or is to be located on that certain property described on
Exhibit B-1 hereto.
(xiii)
Big Cedar Timeshare Website means that certain internet
website owned and operated by the Company, designed to advertise,
market and promote the Timeshare Projects, and located at the
top-level domain name wildernessclubatbigcedar.com.
3
(xiv)
Bluegreen Mailing List means the lists of the names and
mailing addresses of the customers and clients of Bluegreen and its
Affiliates, including (without limitation) owners of timeshare
interests in Bluegreen’s Timeshare Facilities, as are
customarily kept by Bluegreen and its Affiliates; provided ,
however , the Bluegreen Mailing List shall only include such
information to the extent it is available and permitted to be
shared with others pursuant to applicable law. The Bluegreen
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.
(xv)
Bluegreen Website means that certain internet website owned
and operated by Bluegreen, and located at the top-level domain name
bluegreenvacations.com.
(xvi)
Bluegreen Timeshare Website means that certain internet
website Bluegreen has created and developed, which has been
designed to advertise, market and promote Bluegreen’s
Timeshare Facilities, located at the top-level domain name
bluegreenonline.com.
(xvii)
Bluegreen Vacation Club means that certain vacation club
operated by Bluegreen, which was initially filed pursuant to
Florida Statutes Chapter 721 (The Florida Vacation Plan and
Timesharing Act), and is identified in accordance with such
registration as the Bluegreen Vacation Club.
(xviii)
Bluegreen’s Timeshare Facilities means the Resort
Interest Programs, including but not limited to the Bluegreen
Vacation Club, designed, developed, marketed and/or sold by
Bluegreen or its Affiliates, excluding the Timeshare Projects,
whether such facilities now exist or may from time to time exist in
the future.
(xix)
BP/Tracker Competitor means any Person that engages in,
whether as shareholder, partner, member, manager, independent
contractor, consultant, agent, principal, creditor, or otherwise,
or is an Affiliate of a Person that engages in, the sale of
hunting, fishing, camping, marine and/or boating products,
equipment or services that directly compete with the products,
equipment and services sold by Bass Pro, Tracker Marine or Tracker
Marine Retail, LLC, or their respective subsidiaries,
provided , however , that a BP/Tracker Competitor
shall not include any Person that sells hunting, fishing, camping,
marine and/or boating products, equipment or services as an
incidental part of its business. Sales shall be deemed
“incidental” to a Person’s business if sales of
hunting, fishing, camping, marine and/or boating products,
equipment or services amount to less than 50% of such
Person’s revenues. Examples of BP/Tracker Competitors
include, but are not limited to, Cabela’s, Gander Mountain
and Sportsman’s Warehouse. For purposes of clarity, Sports
Authority, Dick’s Sporting Goods, as they are currently
constituted, and similar sporting goods companies, would not be
deemed to be a BP/Tracker Competitor.
(xx)
Building 3000 Project means that certain portion of the Big
Cedar Timeshare Project currently referred to as “Building
3000” to be developed by the Company in accordance with the
terms of the Operating Agreement, which is further described on
Exhibit B-1 hereto.
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(xxi)
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 of kindred of any of the
foregoing, or any other person or entity which is controlled by 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. For purposes of this Agreement, the Timeshare Projects
and any Fractional Interest Development shall not be deemed Resort
Interest Programs “in direct competition with Bluegreen or
its Affiliates.”
(xxii)
Fractional Interest Development means a Resort Interest
Program in which the interests that are conveyed to purchasers are
in increments of time that are greater than or equal to six weeks
per year.
(xxiii)
Immediate Family means, with respect to any Person, the
parents, siblings, spouse and lineal descendants, spouses of such
lineal descendants and any trust for the benefit of, or the legal
representative of, any of the preceding persons, or any partnership
substantially all of the partners of which are one or more of such
persons or the Person or any limited liability company
substantially all of the members of which are one or more of such
persons or the Person.
(xxiv)
Mailing Lists means the Bass Pro Mailing List, the Big Cedar
Mailing List and the Bluegreen Mailing List,
collectively.
(xxv)
Marks means Big Cedar Marks and Bass Pro Marks.
(xxvi)
Net Sales Volume means the dollar amount of gross annual
sales of timeshare interests less the aggregate dollar amount of
purchaser cancellations, rescissions, equity trade allowances, and
defaults.
(xxvii)
Operating Agreement means that certain Amended and Restated
Operating Agreement of Company, dated as of the date hereof, by and
between Bluegreen and Big Cedar.
(xxviii)
Person means an individual, partnership, corporation,
limited liability company, trust, governmental entity or other
association or entity.
(xxix)
Preferential Treatment means 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, not an
Affiliate of any of the Service Providers or Tracker Marine or its
Affiliates or Tracker Marine Retail, LLC or its Affiliates, and at
all times at least as favorable to the best pricing offered to any
other Person, not an Affiliate of any of the Service Providers,
Tracker Marine or its Affiliates or Tracker Marine Retail, LLC or
its Affiliates.
5
(xxx)
Red Rock Bluff Property means that certain property, more
particularly described in Exhibit B-2 hereto, purchased by the
Company for the development of the Red Rock Bluff Timeshare
Project.
(xxxi)
Red Rock Bluff Timeshare Project means that certain
timeshare project to be developed on the Red Rock Bluff Property by
the Company in accordance with the terms of the Operating
Agreement.
(xxxii)
Resort Interest Program means any form of timeshare,
interval interest, timeshare exchange, undivided interest program,
timeshare club membership, points-based program, or occupancy
program, whereby the use, occupancy or possession of real property
or real property improvements has been made subject to a
conveyance, use or occupancy or possession right, which 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.
(xxxiii)
Timeshare Projects means collectively the Big Cedar
Timeshare Project and the Red Rock Bluff Timeshare Project,
together with such other Resort Interest Programs as may be owned,
developed and sold by the Company from time to time.
(xxxiv)
Tracker Website means that certain internet website owned
and operated by Tracker Marine, and located at the top level domain
name trackerboats.com.
(b) Each
of the following terms shall have the meaning assigned to such term
in the Section indicated:
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Term
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Section
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Advertisers
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Preamble
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Advertising Space
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2.3(a)
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Agreement
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Preamble
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Annual Prepayment
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4.2(a)
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BG Mailing List Licensee
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2.6(c)
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Big Cedar Mailing List License
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2.6(b)
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Big Cedar Marks License
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2.9(b)
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Bluegreen CEO
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7.3(d)
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Bluegreen Hyperlink License
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2.5(b)(i)
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Bluegreen Mailing List License
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2.6(c)
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BP Hyperlink License
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2.5(a)(i)
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BP/BC Marketing Channels
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2.1
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BP Icon
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2.5(b)(ii)
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BP Marks License
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2.9(a)
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BP Mailing List License
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2.6(a)
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CEOs
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7.3(d)
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6
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Term
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Section
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Commission Report
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4.1(b)
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Concierge Desk
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2.7(c)
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Floor Space License
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2.4(a)
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Generation Commission
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4.1(a)
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Intellectual Property
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2.11
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Licensed Space
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2.4(a)
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Mailing List Intermediary
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2.6(a)(i)
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Original M&P Agreement
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Recitals
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Post-Termination Generation Commissions
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4.2(f)
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Resort Icon
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2.5(a)(ii)
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Service Provider(s)
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Preamble
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Shop Licensor
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2.4(a)
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Shortfall
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4.2(g)
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Submission Date
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2.3(b)
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Tracker Icon
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2.5(b)(ii)
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Utility Service
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2.4(j)
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ARTICLE II - MARKETING AND PROMOTION OF
BLUEGREEN’S
TIMESHARE FACILITIES AND THE TIMESHARE PROJECTS
Section
2.1 General . During the term
of this Agreement, the Service Providers shall provide the
promotional, marketing and advertising services described in this
Article II , including, without limitation, the Advertising
Space, the Floor Space License, the Big Cedar Mailing List License,
the BP Mailing List License, the Big Cedar Hyperlink License, the
BP Hyperlink License, the Big Cedar Marks License, the BP Marks
License, use of Big Cedar Lodge as described in Section 2.7
, and placement of signage as described in Section 2.8
(collectively referred to herein as the “ BP/BC Marketing
Channels ”), to Bluegreen for the benefit of
Bluegreen’s Timeshare Facilities, and to the Company for the
benefit of the Timeshare Projects. The BP/BC Marketing Channels
shall be provided in the amount and quantities and at such times as
specified in this Agreement, subject to the restrictions,
limitations and conditions set forth in this Agreement.
Section
2.2 Term . The initial term of
this Agreement shall expire on January 1, 2015. This Agreement
shall automatically renew for additional one (1) year periods on
January 1 each subsequent year unless one party delivers written
notice of intent to terminate this Agreement to the other parties
on or before September 1 of the preceding year. Notwithstanding the
foregoing, if Big Cedar has not received the Annual Prepayment
(defined below) for the year 2015 or any succeeding year on or
before January 1 of each such renewal year (or within ten (10) days
thereafter), any Service Provider may elect to terminate this
Agreement for all purposes and with respect to all parties at any
time upon written notice to the Advertisers.
7
Section
2.3 Bass Pro Catalog
.
(a)
Advertising . During the term of this Agreement, BPS Catalog
agrees to make advertising, marketing and promotion copy space
within each Bass Pro Catalog (the “ Advertising Space
”) routinely and consistently available to the Advertisers as
would be commercially reasonable. The Advertising Space shall be
used by the Advertisers solely for advertising, marketing and
promotion relating to or connected with the Timeshare Projects and
Bluegreen’s Timeshare Facilities; provided ,
however , that the Advertising Space shall be used to give
priority to promotion of the Timeshare Projects, and the Timeshare
Projects’ inclusion in the Bluegreen Vacation Club over
promotion of Bluegreen’s Timeshare Facilities. The size and
placement of the Advertising Space shall be as determined by BPS
Catalog, but will be sufficient to establish prominent marketing
support for the Timeshare Projects and Bluegreen’s Timeshare
Facilities, and at least one full page per Bass Pro Catalog shall
be available to the Advertisers. While the Advertising Space shall
be made available by BPS Catalog, nothing herein contained shall
require the Advertisers to use the Advertising Space on each and
every occasion.
(b)
Terms of
Advertising . BPS Catalog agrees to notify Bluegreen at least
ninety (90) days before the date necessary for submission of an
advertisement for publication (“ Submission Date
”) in each of the Bass Pro Catalogs. Bluegreen agrees to
submit a copy of its advertising copy, together with all layouts,
cuts, mats and electrotypes, intended for publication, at least
thirty (30) days in advance of the Submission Date. If BPS Catalog
notifies Bluegreen ninety (90) days before the Submission Date and
Bluegreen fails to submit a copy of its advertising for publication
to BPS Catalog at least thirty (30) days in advance of the
Submission Date, then BPS Catalog will not be obligated to insert
the advertisement in the applicable Bass Pro Catalog, unless
otherwise agreed by the BPS Catalog and Bluegreen. Bluegreen
acknowledges that BPS Catalog requires significant lead times to
plan and paginate Bass Pro Catalogs. Therefore, once Bluegreen
submits a copy of its advertising for publication, Bluegreen shall
be responsible for all costs associated with publication of such
advertisement as described in Section 2.3(c) , without
refund. Within five (5) days after the publication of each Bass Pro
Catalog in which Bluegreen or the Company has placed an
advertisement, BPS Catalog shall furnish Bluegreen with three (3)
copies of such Bass Pro Catalog. All positions are at the option of
BPS Catalog. Under no circumstances can any claim for adjustment,
refund or re-insertion be allowed because of the position in which
an advertisement has been published or inserted. It is the sole
responsibility of the Advertisers to check the correctness of each
insertion of an advertisement. Advertisements submitted after the
deadline for proof service are submitted at the Advertiser’s
own risk, and Service Providers shall have no liability for errors
or omissions in such Advertisements. Service Providers assume no
responsibility for the repetition of errors in advertising ordered
for more than one insertion, unless notified before the printing
closing time on the same day an error occurs.
(c)
Consideration; Expenses . The Advertising Space shall be
made available to the Advertisers at no further cost or expense to
the Advertisers, and BPS Catalog agrees that the Advertising Space
has been paid for in full so long as the Advertisers comply with
their obligations set forth in this Agreement, including, without
limitation, the timely payment by Bluegreen of Generation
Commissions; provided , however , that the
Advertisers agree to pay BPS Catalog publication costs in relation
to the Advertisers’ use of the Advertising Space, which shall
include direct cost of postage, printing, paper, creative color
separation, bind-ins, and
8
service bureau charges and a fair and reasonable allocation of
administrative overhead, at cost, and without markup, on a
Preferential Treatment Basis, which payments shall be due within
thirty (30) days after receipt of proof of insertion and
publication in the Bass Pro Catalog and the invoice for publication
costs.
(d)
Restrictions . During the term of this Agreement, except as
otherwise provided herein, the Service Providers shall not 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 the
Service Providers, which reference, promote or relate to any
Competing Resort; provided , however , that the
Service Providers 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 Resort Interest Program advertisement, nor
do the properties included in such advertisements constitute a
Resort Interest Program. Nothing herein contained shall limit the
right of the Service Providers to sell their retail products in
stores, via the internet, and through catalogs to other purchasers,
even though such purchasers may be in competition with the Company
or Bluegreen (such entities including, but not limited to,
Opryland, Disney World, John Q. Hammons Industries and other
similar enterprises). The Service Providers may advertise such
companies and other resorts in Bass Pro Shops, on the Bass Pro
Website and within the Bass Pro Catalogs, so long as the Service
Providers 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.
Section
2.4 Bass Pro Shops
.
(a)
Grant of
License . During the term of this Agreement, Bass Pro (on
behalf of itself and any Affiliate of Bass Pro that may operate a
Bass Pro Shop in the future), BPOW, WW Sportsman, BPS Canada and
BPS Canada Calgary (each, a “ Shop Licensor ,”
and collectively, the “ Shop Licensors ”) hereby
grant, bargain and exchange unto the Advertisers, during the term
of this Agreement, a limited, non-exclusive license (the “
Floor Space License ”) to use floor space, including
kiosk space, in each Bass Pro Shop (the “ Licensed
Space ”)for marketing and promotion of the Timeshare
Projects and Bluegreen’s Timeshare Facilities, on the terms
and conditions set forth herein. The Advertisers hereby accept the
Floor Space License. The Floor Space License shall apply to
existing and future Bass Pro Shops. The Floor Space License is
granted by Bass Pro for those Bass Pro Shops that are operated by
Bass Pro or that will be operated by Bass Pro or an Affiliate of
Bass Pro in the future; the Floor Space License is granted by each
other Shop Licensor for those Bass Pro Shops that are operated by
such Shop Licensor.
(b)
Floor
Space .
(i) The total
amount of Licensed Space available in each existing Bass Pro Shop
in which floor space was licensed to the Advertisers pursuant to
the Original M&P Agreement shall be equal to the amount of
floor space currently used by the Advertisers. The total amount of
Licensed Space available in all other Bass Pro Shops shall be as
mutually agreed
9
by the Advertisers and the applicable Shop Licensor,
provided that the amount of Licensed Space available in each
Bass Pro Shop shall be no less than one hundred (100) square feet
and no greater than one thousand (1000) square feet, used
singularly or in multiple separate areas in and throughout each
Bass Pro Shop. The configuration of the Licensed Spaces shall be
determined by the Advertisers and the Shop Licensors as may
mutually be agreed from time to time.
(ii) All
Licensed Spaces shall be located to effectively promote, market and
advertise the Timeshare Projects and Bluegreen’s Timeshare
Facilities. Licensed Spaces 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 Advertisers.
The location of the kiosks, computers, marketing tracks or similar
uses, shall not interfere with the customary and normal retail
operations of the applicable Bass Pro Shop. 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 the applicable Shop Licensor, whose
approval shall not be unreasonably withheld or denied. Except as
otherwise provided in this Section 2.4 , including, without
limitation, Section 2.4(f) , all potential sales prospects
who are originated from contact at any of such Licensed Spaces
shall not be limited to marketing or sales for any particular or
specific Bluegreen Timeshare Facility or the Timeshare
Projects.
(c)
Additional Space . In addition to the Licensed Space
specified in Section 2.4(b)(i) , the Shop Licensors agree
that additional Licensed Spaces in each Bass Pro Shop may be made
available to the Advertisers on terms to be negotiated on a
store-by-store basis, upon request by the Advertisers to the
applicable Shop Licensor for such additional Licensed Spaces;
provided , such additional space shall not interfere with
the customary normal operations of any Bass Pro Shop and shall only
be available upon establishment that the existing Licensed Space is
effectively inducing prospects in respect to timeshare sales. Any
additional Licensed Space provided pursuant to this Section
2.4(c) shall be made available in the applicable Store
Licensor’s sole discretion.
(d)
Purpose
of Floor Space License . The Floor Space License is limited to
the operation of an area from which the Advertisers may market,
promote and otherwise solicit interest in respect to acquisition of
timeshare interests in the Timeshare Projects or Bluegreen’s
Timeshare Facilities, as limited by Section 2.4(f)
.
(e)
Exclusivity / Non-Exclusivity . Except as otherwise
specifically provided herein, the Floor Space License shall be
non-exclusive to the Advertisers, and the Shop Licensors reserve
the right to use the Bass Pro Shops in respect of any product or
service. Nothing in this Agreement shall prevent any Shop Licensor
from granting any other licenses for the use of the floor space in
Bass Pro Shops or from permitting others to use floor space within
Bass Pro Shops in any manner whatsoever, provided ,
however , that, during the term of this Agreement, no floor
space in any Bass Pro Shop shall be provided, made available or
offered to any Competing Resort or any operator or marketer thereof
for the purpose of marketing, promoting or soliciting timeshare
interests or prospects therefor.
10
(f)
Radius
Restriction. Notwithstanding anything herein to the contrary,
beginning at such time as there are timeshare units available for
sale at the Big Cedar Timeshare Project (including Building 3000)
or the Red Rock Bluff Timeshare Project, and continuing until such
time as 90% or more of the timeshare interests in the Big Cedar
Timeshare Project (including the Building 3000 Project) and 90% or
more of the timeshare interests in the Red Rock Bluff Timeshare
Project have been sold, the Bass Pro Shops located in Springfield,
Missouri and Branson, Missouri shall not be used to promote or
market any Bluegreen Timeshare Facility located within 50 miles of
the Timeshare Projects, including, without limitation, the Falls
Village Resort located in Branson, Missouri.
(g)
Use of
Licensed Space . The Floor Space License shall authorize the
Advertisers to operate during the regular business hours of each
Bass Pro Shop. The Advertisers’ method of conducting business
shall at all times be in keeping with and not inconsistent with or
detrimental to the operation of each Bass Pro Shop by the Shop
Licensors.
(h)
Personnel. All personnel staffing the Licensed Space will be
employed by Bluegreen. The business to be conducted by the
Advertisers under the Floor Space License shall at all times be
adequately staffed with competent personnel. In no event shall the
operators or employees of the Advertisers engage in “high
pressure salesmanship” in the solicitation or marketing to
customers. Activities of the Advertisers and their personnel
conducted pursuant to the Floor Space License shall be in a manner
not offensive to the customers of the Shop Licensors, and in
compliance with all applicable requirements of law. Advertisers and
their personnel shall not use endorsements or testimonials of any
Service Provider, any Affiliate of a Service Provider or any Person
controlling a Service Provider, and shall not represent to
potential customers that any Service Provider, any Affiliate of a
Service Provider or any Person controlling a Service Provider
recommends the Timeshare Projects or Bluegreen’s Timeshare
Facilities. The Advertisers shall each indemnify and defend the
Service Providers from any losses, damages, lawsuits or other
claims resulting from the violation by personnel of an Advertiser
of the requirements set forth in this Section 2.4(h) or
violations of law by personnel of the Advertisers within a Bass Pro
Shop pursuant to the Floor Space License.
(i)
Shop
Licensors Rights to Approve Personnel . Notwithstanding
anything to the contrary in this Agreement, the Shop Licensors
shall have the right to approve decisions by the Advertisers
relating to personnel working in any Bass Pro Shop pursuant to the
Floor Space License, including the right, upon written notice to
the applicable Advertiser, to direct removal of any individual
employee, consultant or other agent of the Advertisers from any
Bass Pro Shop for good cause shown, including, but not limited to,
Shop Licensors believing that the individual employee’s
actions are detrimental to the respective Bass Pro Shop.
(j)
Utilities
and Services . The Shop Licensors agree that each Bass Pro Shop
will be made available to the Advertisers in a condition that will
provide air conditioning, lighting, heating, water and toilet
facilities and electrical service (“ Utility Service
”). The Shop Licensors shall, during the term of this
Agreement, promptly pay all costs and expenses accruing or payable
in connection with such Utility Service, except in the event such
costs or expenses relate to improvements made by the Advertisers
with respect to the Licensed Spaces. The Advertisers shall be
responsible for expenses of telephone services and computer
services to the areas in which the Advertisers exercise their
business under the Floor Space License.
11
(k)
Telephone
Lines . The Shop Licensors acknowledge that telephone services
are available to each Bass Pro Shop. The Advertisers shall bear the
expense of extending the telephone service as necessary or
convenient for the Advertisers’ business, pursuant to the
terms of the Floor Space License, including acquisition costs of
telephones and computers and installation of telephones or
additional facilities or improvements, including
computers.
(l)
Alterations and Additions . Neither Advertiser shall make
any alterations, decorations, modifications or improvements in
furtherance of its business under the Floor Space License unless
such Advertiser has submitted the plans and specifications showing
the design, type, style, color and materials to the applicable Shop
Licensor, and the applicable Shop Licensor has given prior written
approval. The Shop Licensors will exercise reasonable discretion in
determining these requirements. Any alterations, decorations,
additions, installations or improvements made by the Advertisers
shall, at the discretion of the Shop Licensors become the property
of the Shop Licensors upon termination of the Floor Space License,
provided that the foregoing shall not apply to personal
property such as telephones, computers, etc. Any equipment or
personal property of the Advertisers within a Bass Pro Shop shall
not become or at any time be considered a fixture of a Bass Pro
Shop, regardless of the means by which it may be attached to the
premises. If the applicable Shop Licensor directs the Advertisers
to remove any and all such alterations, decorations, additions,
installations or improvements made at a Bass Pro Shop, the
Advertisers shall so remove the alterations, decorations,
additions, installations or improvements at their respective sole
cost and expense and make all repairs necessary to restore the
premises to the original condition at the time of commencement of
the Floor Space License.
(m)
Insurance
/ Risk of Loss . At all times during the term of the Floor
Space License, the Advertisers shall, at their sole cost and
expense, keep all of the Advertisers’ inventory of product,
merchandise and contents and all of Advertisers’
improvements, furniture, equipment and fixtures within the licensed
space insured against loss or damage by fire and the hazards
covered by broad-form extended coverage clauses as well as coverage
against loss of the merchandise within the Licensed Space due to
theft or embezzlement in an amount at least equal to the
replacement value thereof. At all times during the term of the
Floor Space License, the Advertisers shall provide, at
Advertisers’ cost and expense, policies of commercial general
liability insurance insuring the Shop Licensors and Advertisers
against claims for injury and wrongful death occurring within the
Licensed Space. Advertisers shall indemnify and hold Shop Licensors
harmless from and against all liabilities, obligations, losses,
damages and claims, actions, suits and proceedings, charges and
expenses, including reasonable attorneys’ fees, which may be
imposed upon or incurred by or asserted against Shop Licensors in
respect of any use or condition of the Licensed Space or attributed
to Advertisers’ use thereof. The Advertisers shall provide
the Shop Licensors with certificates of insurance on an annual
basis verifying the insurance required hereunder and all such
policies shall name the applicable Shop Licensor as an additional
insured thereunder and shall waive all rights of subrogation
against the Shop Licensor.
(n)
Destruction of Premises . In the event that a Bass Pro Shop
is damaged or destroyed during the term of this Agreement to the
extent that it cannot be put into tenantable condition by the
applicable Shop Licensor within one hundred eighty (180) days after
damage or destruction, the Advertisers shall have the right to
suspend operations under the Floor Space
12
License for that specific Bass Pro Shop. The Shop Licensors
shall not be responsible for replacement, repairing or restoring
any merchandise, fixtures or equipment installed by the Advertisers
or that are otherwise the property of the Advertisers which may be
damaged or destroyed in such event.
(o)
Maintenance . The Shop Licensors shall be responsible for
and furnish normal janitorial services for each Bass Pro Shop,
including the Licensed Space, on a regular basis, as often as
necessary to keep the premises in a neat, clean and presentable
condition consistent with the remainder of the Bass Pro Shop in
which the Floor Space License is exercised by the
Advertisers.
(p)
Eminent
Domain . If during the term of this Agreement the whole or any
part of any Bass Pro Shop is acquired or condemned by eminent
domain, then the Floor Space License shall terminate and cease as
to such Bass Pro Shop on the date of the title vesting in such
proceeding, and the Advertisers shall not have any claim against
the applicable Shop Licensor or the owner of the property (if other
than the applicable Shop Licensor), nor the condemning authority
for the value of the Floor Space License; provided that if
the condemnation is partial, then the foregoing shall apply only if
the Bass Pro Shop is unsuitable for the business of the
Advertisers. In the event of the partial taking or condemnation
that is not extensive enough to render the Bass Pro Shop unsuitable
for business (which decision shall be determined by the Shop
Licensors) then the Floor Space License shall continue in full
force and effect.
(q)
Interest
of the Advertisers . The interests, rights and responsibilities
of the Advertisers under the Floor Space License are solely as
nonexclusive licensees. The Shop Licensors and their respective
designees shall have the unconditional right and privilege to enter
the Licensed Spaces at any time, and the Shop Licensors retain
possession, ownership or leasehold interest (as applicable),
control, occupancy and use of the Licensed Spaces. The Floor Space
License is in all respects subordinate to any lease or sublease
applicable to any of the Bass Pro Shops. No real property is leased
or subleased to the Advertisers by the Floor Space License, and the
Floor Space License shall not create any estate, right, title or
interest in real property or vest the Advertisers with any other
property rights to or in the Licensed Space. The Advertisers shall
have no rights as a tenants or subtenants of the Licensed Space.
The rights conferred by the Floor Space License are personal to the
Advertisers and shall not be construed to run with the
land.
(r)
Consideration; Expenses . The Floor Space License is granted
to the Advertisers at no further cost or expense to the
Advertisers, and the Shop Licensors agree that the Floor Space
License has been paid for in full so long as the Advertisers comply
with their obligations set forth in this Agreement, including,
without limitation, the timely payment by Bluegreen of Generation
Commissions; provided , however , that the Company
agrees to pay the actual expenses incurred by the Advertisers as
provided in this Section 2.4 in relation to the Bass Pro
Shop located in Springfield, MO, including for telephones (and
telephone usage) and/or additional facilities or improvements,
including computers, installed in or operating from the Licensed
Spaces, and staff personnel, and provided further ,
that the Advertisers agree to pay the actual expenses incurred by
the Advertisers as provided in this Section 2.4 in relation
to all other Bass Pro Shops, including for telephones (and
telephone usage) and/or additional facilities or
13
improvements, including computers, installed in or operating
from the Licensed Spaces, and staff personnel.
Section
2.5 Website Links .
(a)
Bass Pro Website
.
(i) Grant of License . During
the term of this Agreement, BP Online hereby grants to each of the
Advertisers, a worldwide, royalty free, non-exclusive license to
establish hyperlinks from the Bass Pro Website as further provided
in this Section 2.5(a) (the “ BP Hyperlink
License ”), which shall be on the terms and subject to
the conditions set forth in this Agreement.
(ii) Links from Bass Pro
Website . Pursuant to the BP Hyperlink License, during the Term
of this Agreement, BP Online shall maintain an icon on the Bass Pro
Website identified as “Resorts” (or such other icon as
is mutually acceptable to Bluegreen, the Company, Bass Pro and BP
Online) (hereinafter “ Resort Icon ”). Upon
clicking the Resort Icon by an internet user:
(A) an additional icon shall exist to
provide direct access to the Big Cedar Timeshare Website. In
addition, if the Bass Pro Website contains a search box feature,
internet user(s) shall by use of the search box feature be given an
option to choose the icon for the Big Cedar Timeshare Website. Upon
accessing the icon for the Big Cedar Timeshare Website, internet
user(s) shall be directly linked to the Big Cedar Timeshare
Website.
(B) an additional icon shall exist to
provide direct access to the Bluegreen Timeshare Website. In
addition, if the Bass Pro Website contains a search box feature,
internet user(s) shall by use of the search box feature be given an
option to choose the icon for the Bluegreen Timeshare Website. Upon
accessing the icon for the Bluegreen Timeshare Website, internet
user(s) shall be directly linked to the Bluegreen Timeshare
Website.
(C) an additional icon shall exist to
provide direct access to the Bluegreen Website. In addition, if the
Bass Pro Website contains a search box feature, internet user(s)
shall by use of the search box feature be given an option to choose
the icon for the Bluegreen Website. Upon accessing the icon for the
Bluegreen Website, internet user(s) shall be directly linked to the
Bluegreen Website.
(iii) The BP Hyperlink License shall
also permit Bluegreen to establish on the Bluegreen Website an icon
and link to the Bass Pro Website and to internet information
concerning the Timeshare Projects, inclusive of use of the Bass Pro
Marks and Big Cedar Marks, subject to the approval of BP Trademarks
or Big Cedar as provided in Section 2.9(c) , to reflect such
connection.
(iv) Exclusivity /
Non-Exclusivity . Except as otherwise specifically provided
herein, the BP Hyperlink License shall be non-exclusive to the
Advertisers and BP Online reserves the right to use the Bass Pro
Website in respect of any product or service. Nothing in this
Agreement shall prevent BP Online from granting any other licenses
for the use of the Bass Pro Website or from utilizing the Bass Pro
Website or permitting the Bass Pro
14
Website to be utilized by others in any manner whatsoever;
provided , however , BP Online agrees that it shall
not grant any other licenses for use of the Bass Pro Website for
the purpose of developing, marketing, promoting or advertising any
Competing Resort, except as may otherwise be expressly provided for
in this Agreement or otherwise agreed by the
Advertisers.
(v) Consideration; Expenses .
The BP Hyperlink License is granted to the Advertisers at no
further cost or expense to the Advertisers, and BP Online agrees
that the BP Hyperlink License has been paid for in full so long as
the Advertisers comply with their obligations set forth in this
Agreement, including, without limitation, the timely payment by
Bluegreen of Generation Commissions; provided ,
however , that Bluegreen shall pay the actual expenses
reasonably incurred by BP Online in the establishment of such
hyperlinks and reasonable incremental costs associated with future
changes in the internet platform.
(b) Bluegreen
Website .
(i) During the term of this
Agreement, Bluegreen hereby grants to BP Online and Tracker Marine,
a worldwide, royalty free, non-exclusive license to establish
hyperlinks from the Bluegreen Website as further provided in this
Section 2.5(b) (the “ Bluegreen Hyperlink
License ”) which shall be on the terms and subject to the
conditions set forth in this Agreement.
(ii) Links from Bluegreen
Website . Pursuant to the Bluegreen Hyperlink License,
Bluegreen shall maintain on the Bluegreen Website an icon to
identify the Bass Pro Website (“ BP Icon ”) and
an icon to identify the Tracker Website (the “ Tracker
Icon ”) as are mutually acceptable to BP Online, Tracker
Marine and Bluegreen. Upon clicking on the BP Icon or the Tracker
Icon, internet user(s) will be provided direct access to the Bass
Pro Website or the Tracker Website, respectively. In addition, if
the Bluegreen Website contains a search box feature, internet
user(s) shall be given an option to link to the Bass Pro Website or
the Tracker Website through a separate BP Icon or Tracker Icon if
they search BASS PRO, TRACKER or any similar term through such
feature.
(iii) Consideration; Expenses
. The Bluegreen Hyperlink License is granted to BP Online and
Tracker Marine at no further cost or expense to BP Online or
Tracker Marine, and Bluegreen agrees that the Bluegreen Hyperlink
License has been paid for in full so long as the Service Providers
comply with their obligations set forth in this Agreement;
provided , however , that BP Online and Tracker
Marine shall pay the actual expenses reasonably incurred by
Bluegreen in the establishment of such hyperlinks and reasonable
incremental costs associated with future changes in the internet
platform.
(iv) Discontinuation .
Tracker Marine and BP Online may request that the BP Icon and/or
the Tracker Icon, and all links to the Bass Pro Website and the
Tracker Website be removed from the Bluegreen Website at any time.
Upon receipt of a written request for such removal, Bluegreen shall
promptly, but in any event not more than three business days after
receipt, comply with such request; provided , however
, that Tracker Marine and BP Online shall pay the actual expenses
reasonably incurred by Bluegreen in the removal of the BP Icon and
Tracker Icon and removal of the related hyperlinks.
15
(c)
Insurance . Bluegreen, the
Company and BP Online shall have obtained within one hundred twenty
(120)days after the date hereof, and shall maintain at all
subsequent times during the term of this Agreement, at their sole
cost and expense, cyber liability insurance coverage, which shall
include, without limitation, privacy liability coverage (including
for non-electronic security breaches) and regulatory liability
coverage (including for breaches of state and federal privacy
statutes and regulations such as the Fair and Accurate Credit
Transaction Act of 2003), in such amounts and with such specific
coverages as shall be commercially reasonable, provided that such
insurance can be obtained on commercially reasonable terms at a
cost not to exceed $100,000 per year, and to the extent that such
costs would exceed $100,000 per year then such insurance shall
either be scaled back so that it can be obtained within such price
parameters or shall not be required to be obtained..
(d)
Affirmation Obligations . BP
Online and the Advertisers agree at all times during the term of
this Agreement: (i) the quality of their respective websites shall
not be less than the quality that exists as of the date hereof;
(ii) they shall each maintain a technologically capable web site
utilizing state-of-the-art or legally required internet security
protocol and encryption technology to secure electronic commerce
transactions and to prevent unauthorized interception of
transmitted data, along with appropriate notices to internet users
and consumers; (iii) they shall not permit links to pornographic,
lewd, immoral or sexually suggestive websites from their respective
websites; and (iv) BP Online shall not permit any links from the
Bass Pro Website to websites maintained by or on behalf of any
Competing Resort, and Bluegreen shall not permit any links from the
Bluegreen Website or the Bluegreen Timeshare Website to websites
maintained by or on behalf of any BP/Tracker Competitor.
(e)
Representations and
Warranties .
(i)
BP Online .
(A)
BP Online hereby represents and
warrants to the Advertisers as of the date hereof and through the
term of this Agreement that: (i) BP Online has the power and
authority to enter into and perform its obligations under this
Agreement; (ii) BP Online owns or has permission to use the Bass
Pro Website and all intellectual property rights therein; (iii) to
its knowledge, the Bass Pro Website does not contain any content,
materials, data, work, trade or service mark, trade name, links,
advertising or services that actually or potentially violate any
applicable law or regulations or infringe or misappropriate any
proprietary, intellectual property, contract or tort right of any
Person; and (iv) BP Online has secured the appropriate rights,
under applicable state and federal law to grant the BP Hyperlink
License.
(B) BP Online shall indemnify and
hold harmless the Advertisers from any and all damages, losses,
claims, causes of action, or injury arising out of a breach of the
representations and warranties set forth in Section
2.5(e)(i)(A) or of the covenants set forth in Section
2.5(d).
(ii)
Bluegreen .
(A) Bluegreen hereby represents and
warrants to the Service Providers as of the date hereof and through
the term of this Agreement that: (i) Bluegreen has
16
the power and authority to enter into and perform its
obligations under this Agreement; (ii) Bluegreen owns the Bluegreen
Website and the Bluegreen Timeshare Website and all intellectual
property rights therein; (iii) the Bluegreen Website and the
Bluegreen Timeshare Website do not contain any content, materials,
data, work, trade or service mark, trade name, links, advertising
or services that actually or potentially violate any applicable law
or regulations
