Dated 3rd day of November 2003
XPRESS LIMITED
- AND -
SUNSTONE GOLF RESORT, INC
EXCLUSIVE SALES & MARKETING AGREEMENT
TABLE OF CONTENTS
1 INTERPRETATION 4
2 APPOINTMENT OF THE AGENT 7
3 OBLIGATIONS OF THE DEVELOPER 6
4 AGENT'S RIGHTS AND OBLIGATIONS 13
5 SALE OF THE UNITS 15
6 FINANCIAL PROVISIONS 16
7 NON-CIRCUMVENTION 18
8 RIGHT TO ASSIGN CONTRACTS BY INTRODUCED PERSON 19
9 CONFIDENTIALITY 20
10 TERMINATION 20
11 CONSEQUENCES OF TERMINATION 22
12 LIAISON 22
13 NATURE OF AGREEMENT 22
14 ASSIGNMENT 24
15 NOTICE AND SERVICE 24
16 RIGHTS OF THIRD PARTIES 24
17 JURISDICTION 24
SCHEDULE 1 - FORM OF THE SCHEDULE 27
FORM OF THE SCHEDULE 27
PART 1 - Commencement Date 27
PART 2 - Units 27
PART 3 - Plan 28
SCHEDULE 2 - (Developer's Terms & Conditions) 29
THIS AGREEMENT is made the 3rd day of November 2003
BETWEEN:
(1) XPRESS LIMITED a company incorporated under the laws of the British Virgin
Islands on January 3, 1995 whose registered office is at Akara Building, 24
xx Xxxxxx Street, Road Town, Tortola, BVI under Registered No. 138148 and
whose address is at Xxxxxxxxx Xx Xxxxx Xxxxx, Xx Xxxxxxx, Xxxxxx XX0 0XX
(the "AGENT"); and
(2) SUNSTONE GOLF RESORT, INC.. a company organised and existing under the laws
of Florida whose principal place of business is at 0000 Xxxxxx Xxxx,
Xxxxxxx, XX 00000 (the "DEVELOPER").
WHEREAS:
(A) The Developer is in the process of developing a +/-122 acre residential
resort project located on US Hwy. 27 in Polk County, Florida, consisting of
approximately 971 townhome and condominium units "the Development" and
wishes to secure sales of Units comprised within the Development (whether
"OFF-PLAN" or completed) and wishes to appoint the Agent as its exclusive
Agent for the purpose of seeking purchasers for the Units upon the terms
and subject to the conditions of the Agreement.
(B) The Agent has sales and marketing experience in the property field and is
willing to act as the exclusive sales and marketing agent for the Units
subject to the terms and on the conditions set out in this Agreement.
NOW IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement unless the context otherwise requires the following words
and phrases shall have the following meanings:
"APPLICABLE LAW" means all applicable laws, rules,
regulations, enactments, statutory
instruments, which may from time to time
be in force in respect of or relating to
any matters arising under this Agreement
in the United Kingdom or the State of
Florida (as applicable);
"APPLICABLE UNIT FEE" APPLICABLE UNIT FEE shall mean 3 per
cent of the Sale Price to be paid as a
sales fee and 1.5% of the sales price to
be paid as a marketing fee.
"COMMENCEMENT DATE" means the date specified in the
Schedule;
"CONTRACT" means a binding commitment (whether or
not subject to conditions) to buy and
sell real property or any interest in
property including in relation to a
Unit;
"DEPOSIT" means the deposit negotiated by the
Agent under clause 4.6 below;
"DEVELOPMENT" means the property development owned by
the Developer more particularly
described in Part 1 of the Schedule;
"DEVELOPER'S TERMS means the Developer's terms and
AND CONDITIONS" conditions for the sale of units in the
Development set out in Schedule 2 as may
be amended by the Developer from time to
time in accordance with clause 3.5;
"EXCLUSIVITY PERIOD" means the period described in clause
2.5;
"INTRODUCED PERSON" means (i) any person, firm or company
whether directly or indirectly
introduced by the Agent to the
Developer; or (ii) any other person,
firm or company introduced whether
directly or indirectly to the Developer
by a person, firm or company referred to
in sub-paragraph (i) of this definition;
or (iii) any associate of any such
person, firm or company referred to in
subparagraph (i) or (ii) of this
definition;
"SALE PRICE" means the price of each of the Units
specified in Column 2 of Part 2 of the
Schedule being the price at which the
Developer agrees to sell such Units to
Introduced Persons;
"SCHEDULE" means a Schedule (in the form set out in
Schedule 1) agreed from time to time
between and signed by or on behalf of
the Developer and the Agent listing
Units to be promoted by the Agent on the
terms of this Agreement and where there
is more than one Schedule the reference
to a Schedule shall be to the relevant
Schedule;
"TRANSACTION" means any disposal (or if earlier,
contract to dispose) of any property or
interest in property of or by the
Developer or associate of the Developer;
"UNIT" means an individual unit comprised with
the Development as more particularly
described in Column 1 of Part 2 of a
Schedule and "UNITS" shall mean all or
any of them.
1.2 Any reference in this Agreement to any provisions of a statute shall be
construed as a reference to that provision as amended, re-enacted or
extended from time to time.
1.3 In this Agreement where the context so requires words denoting the singular
shall include the plural and vice versa and words denoting one gender shall
include all genders.
1.4 The headings in this Agreement are for convenience only and shall not
affect its interpretation or construction.
1.5 Any reference to any clauses or schedules is to clauses and schedules in
this Agreement and any Schedule once agreed to and executed by the Agent
and the Developer shall form part of the Agreement.
1.6 Any reference to "PERSON" includes natural persons, firms, partnerships,
companies, corporations, associations, organisations, governments, states
foundations and trusts (in each case whether or not having separate legal
personality).
1.7 Any reference to a person being an "ASSOCIATE" of another shall be
interpreted in accordance with section 435 of the Insolvency Xxx 0000, and
a person shall be regarded as "CONNECTED" or "ASSOCIATED" with any person
which is an associate of his and with any company of which any director is
an associate of his.
1.8 Any reference to "sold, "sale" or "sell" or the like in relation to a Unit
shall include reference to the disposal of any interest in relation thereto
to include without prejudice to the generality of the foregoing the grant
of a lease of the Unit.
2. APPOINTMENT OF THE AGENT
2.1 The Developer appoints the Agent for the Exclusivity Period as its
exclusive worldwide agent for the promotion of the Units and the
solicitation of purchasers for the Units and the Agent agrees to act in
that capacity subject to the terms and conditions of this Agreement.
2.2 If from time to time, as the Developer wishes to appoint the Agent to
market the units in accordance with the terms of this Agreement and the
Agent wishes to accept such appointment then they shall complete a Schedule
in relation thereto. Following execution of such Schedule by the parties
hereto the Agent shall thereby be appointed as the Developer's exclusive
worldwide agent for the promotion of all the Units therein specified on the
terms of this Agreement.
2.3 The Developer shall not during the Exclusivity Period appoint any other
person as the Developer's agent for the promotion or sale of the relevant
Units or other disposal of any interest in the Units or for the
solicitation of purchasers for the Units.
2.4 Following the expiry of the Exclusivity Period the appointment described in
clause 2.1 shall continue in respect of the relevant Schedule for six
months but on a non-exclusive basis and the relevant provisions of this
Agreement shall apply.
2.5 The Developer shall not during the relevant Exclusivity Period directly or
indirectly promote and/or solicit for purchasers whether through any site
office, through advertising or by any other means whatsoever, including
(without limitation) over the World Wide Web, nor shall the Developer sell,
agree to sell or accept any offer to sell any Units or any interest in any
Units to any purchaser, or prospective purchaser during the Exclusivity
Period other than to an Introduced Person and otherwise than in accordance
with this Agreement.
2.6 The Exclusivity Period shall commence on the Commencement Date and continue
until the earlier of:
2.6.1 the expiry of the Exclusivity Period as set out in the Schedule;
2.6.2 the date on which Contracts in respect of all of the Units have been
entered into between the Developer and the Introduced Persons;
2.6.3 termination of the Exclusivity Period in accordance with clause 10
below;
which period is referred to in this Agreement as the Exclusivity
Period.
2.7 If the Agent has not sold any Units within six months of the
commencement of the Exclusivity Period the Developer shall,
notwithstanding the provisions of clause 2.4, be entitled on written
notice to the Agent to make its own arrangements to market and sell as
principal such Units at a price which is no lower than the Sale Price.
Provided that if at any time the Developer wishes to reduce the sale
price of all or any of the Units below the Sale Price it shall
forthwith notify the Agent in writing following which the provisions
of clause 2.4 shall again apply and (1) the Sale Price of the Units
shall thereafter be the reduced sale price of such Units as notified
by the Developer and (2) the Exclusivity Period shall continue until
the later of (i) the expiry date as specified in the Schedule
applicable to the Units and (ii) six months from the date of
notification of the reduction in the Sale Price by the Developer.
3. OBLIGATIONS OF THE DEVELOPER
3.1 The Developer warrants and undertakes to the Agent that the description of
the Development in Part 1 of the Schedule and of the Units in Part 2 in the
Schedule and the plan in Part 3 of the Schedule accurately reflect the
Development and the Units and that any brochures, leaflets, plans,
photographs or other information and marketing materials supplied by the
Developer to the Agent during the Exclusivity Period shall fairly and
accurately detail and describe the Development and the Units in all
material respects. The Developer undertakes to the Agent that if at any
time during the Exclusivity Period the Developer becomes aware of any error
in such informational or materials or that any change occurs to the
Development or the Units the Developer shall forthwith notify the Agent of
any such errors or changes in writing and shall as soon as reasonably
practicable provide the Agent with amended brochures, leaflets, plans or
other applicable marketing materials which have been duly updated.
3.2 The Developer warrants and undertakes to the Agent that the Developer:
3.2.1 is and shall remain throughout the Exclusivity Period the owner of
the Development and the Units (save for those sold to Introduced
Persons pursuant to the terms of this Agreement) and is entitled and
able to transfer title to each Unit in fee simple, free and clear of
all liens and encumbrances and has all necessary power and authority
to enter into this Agreement and any Contracts in respect of each of
the Units to Introduced Persons;
3.2.2 will use reasonable skill and care in the performance of its
obligations hereunder;
3.2.3 shall at all times in the performance of its obligations hereunder
comply with all Applicable Law and applicable United States Federal,
State and local laws and regulations;
3.2.4 will obtain and maintain an appropriate policy of insurance with a
reputable insurer for the protection of any Introduced Person who
enters into a Contract (or any assignee) against any loss of Funds (as
defined in clause 6.7.1 below) paid by or on behalf of such Introduced
Person in breach of the applicable Contract and to compensate such
Introduced Person (or assignee) in respect of any failure by the
Developer to comply with its obligations under the Contract or
otherwise to achieve practical completion of the relevant Unit(s) and
the Development.
3.3 The Developer shall at its own expense promptly following request provide
to the Agent such brochures, leaflets, photographs, plans and other
marketing materials and information as the Agent may reasonably require
from time to time to enable the Agent to market and promote the Units to
potential purchasers. Such materials shall without prejudice to the
generality of the obligation include details of reputable lawyers to act on
behalf of Introduced Persons and lawyer information packs; details of any
fees and expenses payable by purchasers in relation to property management
and rental and of any applicable federal, state and local taxes and
charges; and copies of any relevant building licence, architects
certificate and planning applications and consents.
3.4 The Developer shall no less than once a month notify the Agent in writing
of the date upon which the Developer anticipates practical completion of
the Units and the Development and in the event that the Developer becomes
aware of any fact, matter or circumstances which will or is likely to
affect the date of practical completion of the Units and the Development
the Developer shall notify the Agent in writing as soon as reasonably
practicable giving details of the facts, matters or circumstances which
have or may affect such practical completion so as to enable the Agent to
advise purchasers and prospective purchasers accurately.
3.5 The Developer warrants that the Developer's Terms and Conditions applicable
to the Units as set out in Schedule 2 are at the Commencement Date and
shall remain at all times complete and accurate and are no less favourable
than the terms and conditions applied by the Developer to the sale of other
parts of the Development. The Developer agrees that it shall not vary the
Developer's Terms and Conditions for a period of 12 calendar months from
the Commencement Date and shall thereafter be required to give the Agent
not less than 3 months' written notice of any proposed change to the
Developer's Terms and Conditions.
3.6 The Developer agrees that the Sale Price shall (subject to the provisions
of this clause 3.7) be the price at which the Developer agrees to sell the
respective Units to Introduced Persons introduced to the Developer during
the Exclusivity Period and warrants that the Sale Price represents the
Developers honest estimate of the true market price of each applicable
Unit.
3.7 If the Developer shall during the Exclusivity Period (whether directly or
through any other agent or third party) offer for sale any comparable units
within the Development at a price which is less than the Sale Price of the
comparable Units as previously agreed or determined in accordance with this
Agreement then the true Sale Price of such units shall be reduced to the
price at which such comparable units have been offered for sale and the
Developer shall be obliged to notify the Agent forthwith of such reduction.
For the purpose of this clause 3.7 if no directly comparable units to the
Units exist in the Development then comparison will be made based upon the
price per square metre of the most similar other units in the Development.
If there is a dispute between the parties as to whether any of the said
units are or are not comparable with Units then the matter shall be
determined by an independent surveyor appointed in accordance with clause
3.9 below and the provisions of such clause shall apply in relation to such
appointment.
3.8 The Developer shall provide to the Agent two rental valuations for each of
the Units within 30 days of the Commencement Date and for each of the Units
which remains unsold thereafter the Developer shall provide to the Agent
updated valuations every six calendar months. Such valuations shall be
provided by reputable independent letting agents acceptable to both parties
or failing agreement as to the identity of the letting agents by such
letting agents as are chosen upon the application by either party of an
independent surveyor appointed in accordance with clause 3.9. In the event
a matter is to be determined by an independent surveyor pursuant to any of
clause 3.7 and 3.8 such surveyor shall be a Florida licensed surveyor and
shall be appointed by agreement between the parties (or failing agreement
then at the request of either party by the President for the time being of
the Institute of Chartered Surveyors). Such surveyor shall be instructed by
the Developer in accordance with the provisions of this Agreement and the
Agent shall be given every opportunity to consult with and make
representations to the independent surveyor. The surveyor shall act as an
expert and not as arbitrator. The decision of the independent surveyor
shall be rendered by way of certificate which certificate shall in the
absence of manifest error be final and binding on all parties. The surveyor
need not give reasons for his decision. The parties shall co-operate with
the surveyor in determining the matter in dispute. The costs of such
surveyor shall be borne by the Developer unless the surveyor directs.
3.9 The Developer undertakes to:
3.9.1 accept an offer to purchase any of the Units from an Introduced
Person where such Introduced Person agrees to pay the Sale Price for
the Unit and to comply with the Developer's Terms and Conditions; and
3.9.2 in respect of the Units described at 3.10.1, to use all reasonable
endeavours to proceed within 28 days, from the date of notification by
the Introduced Person that it wishes to purchase a Unit, to the
exchange of the Contract with the relevant Introduced Person on the
Developer's Terms and Conditions.
3.10 The Developer undertakes to promptly and efficiently deal with any
sales enquiry from an Introduced Person or the Agent and will also
promptly deal with any after sales enquiries related to the Units that
may be raised following exchange of contracts. The Developer shall not
act in a manner or make any statements that could be or is intended to
be detrimental to the reputation of the Agent and shall maintain good
relations in all dealings with any Introduced Persons in relation to
any matter pertaining to this Agreement.
3.11 If the Developer or any of its associates offers any additional services,
goods, products, fittings or enhancements to any Introduced Person, the
Developer shall procure that they shall be offered on no less favourable
terms than offered by the Developer or the relevant associate to any of its
other clients.
3.12 The Developer shall indemnify and keep indemnified the Agent against any
liability (including without prejudice to the generality of the foregoing,
all costs and expenses which the Agent may reasonably incur in defending
any proceedings) that it may incur by reason of its being held out as the
Developer's marketing agent.
3.13 The Developer warrants and undertakes to the Agent that in respect of any
Unit offered for sale to an Introduced Person it will have filed all
documents and instruments and will have received all approvals required
under Florida Statutes for the filing of the relevant condominium
documents, construction of the condominium and buildings and the sale of
the Units to purchasers.
4. AGENT'S RIGHTS AND OBLIGATIONS
4.1 The Agent shall use its reasonable commercial endeavours throughout the
Exclusivity Period to promote and market the Units and to seek purchasers
for the Units but the Agent shall not be entitled to sell or enter into any
contract for the sale of the Units on behalf of the Developer or to bind
the Developer in any way. In marketing and promoting the Units the Agent
shall only use such brochures, leaflets, photographs and plans and other
information provided by the Developer or approved in writing by the
Developer and shall notify to any prospective purchaser the Developer's
Terms and Conditions as the same may be amended in accordance with the
provisions of this Agreement from time to time.
4.2 The Agent shall conduct the promotion and the marketing of the Units with
reasonable care and skill and shall cultivate and maintain good relations
with purchasers and respective purchasers for the Units in accordance with
sound commercial principles.
4.3 Save as otherwise expressly provided in this Agreement the Agent shall be
entitled to perform its duties under this Agreement in such manner as it
deems appropriate.
4.4 The Agent shall be responsible for obtaining any licences, permits and
approvals which are necessary to enable the Agent to market and promote the
Units and for the performance of its duties under this Agreement.
4.5 Save for the details of any potential purchaser who agrees to enter into a
contract with the Developer to purchase a Unit the details of all other
Introduced Persons shall at all times remain the sole and exclusive
property of the Agent and none of such details (to include without
limitation of any Introduced Persons who enter into contracts with the
Developer) shall be used by the Developer for any purpose whatsoever
otherwise than as necessary for the performance of this Agreement.
4.6 The Agent shall be entitled to obtain from each Introduced Person a Deposit
in respect of each Unit at a level to be negotiated in each case by the
Agent at its sole discretion.
4.7 The Agent shall not pledge the credit of the Developer in any way.
4.8 Whilst an agent of the Developer the Agent shall in relation to the Units
be entitled to describe itself as the Developer's "EXCLUSIVE MARKETING
AGENT" during the Exclusivity Period and as the Developer's "MARKETING
AGENT" upon termination of the Exclusivity Period in accordance with clause
2.5 above.
4.9 The Agent, in its sole discretion, may contract with other parties to
perform any or all of the functions necessary to satisfy the Agents
obligations and duties as set forth herein.
4.10 The Agent also agrees to perform the following:
(a) The Agent shall identify and introduce to Developer various real estate
brokers in both International and US markets who shall promote and sell, on
a best efforts basis, residential units. Agent shall, on a best efforts
basis, strive to select only those brokers with proper licensing, good
reputations and a commitment to sell the Units.
(b) The Agent shall negotiate commission agreements with each Broker it
selects but with commission percentages not to exceed 12% of the purchase
price. Developer agrees to pay each Broker such commission percentage.
(c) As consideration for its establishment of a Broker network and
associated promotion, the scope of this Agreement shall apply to all units
sold in the Development irrespective of who makes each sale, including
sales made by other sales organizations, in-house sales staff, principal
and staff of the Developer and sales originating from any and all other
source(s).
(e) The Developer or its agent shall be responsible for erecting,
maintaining, staffing and operating a proximate sales center and sales
staff. The sales center staff employed by the Developer shall assist Agents
Brokers and their clients directed to the sales center to close sales. This
includes giving sales presentations and executing sales contracts and after
sales follow up.
(f) The Agent or its agent(s) shall inspect the Property at regular
intervals so as to be kept informed as to the stage of development and
condition of the Property.
(g) Any additional services shall be mutually agreed upon in writing by
separate agreement.
5. SALE OF THE UNITS
All sales of the Units shall be made on the Developer's Terms and
Conditions.
6. FINANCIAL PROVISIONS
6.1 In consideration of the obligations undertaken by the Agent under this
Agreement the Developer shall pay to the Agent in accordance with clause
6.3 below a commission equal to the Applicable Unit Fee for each Unit in
respect of which the Developer exchanges a contract for sale with an
Introduced Person whether such contract is entered into during the
Exclusivity Period or at any time thereafter.
6.2 Without prejudice to the rights of the Agent in respect of any breach by
the Developer of the provisions of clauses 7 and/or 9 below, in the event
that the Developer (or any associate of the Developer) enters into a
Transaction with an Introduced Person between the Commencement date and the
date 2 years following the date of Completion of the last of the Contracts
(if any) to which this Agreement relates then the Developer shall in
respect of each such Transaction pay to the Agent in accordance with this
clause 6 a commission equal to 4.5% of the selling price of the property to
which such Transaction relates save that such commission shall be payable
within 7 days of the date on which the Transaction is entered into.
6.3 Seven days before the anticipated date on which the Developer exchanges
contracts for the sale of a Unit or for the disposal of any interest in
property pursuant to a Transaction (or as soon as practicable thereafter)
the Developer shall notify the Agent in writing of such fact.
6.4 In respect of any payment due pursuant to clause 6.2 above the Developer
shall pay to the Agent on the date on which contracts are exchanged the
Applicable Unit Fee (or such other commission as shall be due pursuant to
the provisions of Clause 6.2) plus any VAT or other sales or similar tax
payable thereon.
6.5 Save as specified in clause 6.4, where the Applicable Unit Fee is 4.5 per
cent of the Sale Price, the amount of 3 per cent of the Sale Price shall be
paid by the Developer to the Agent within 7 days of the date on which the
relevant Contract is exchanged and the remaining 1.5 per cent shall be paid
by the Developer to the Agent within 7 days of the date of completion of
the relevant Contract in respect of the Unit.
6.6 The Developer covenants to procure that:
6.6.1 any sums paid by or on behalf of any Introduced Person under or pursuant
to any Contract or otherwise in connection with the purchase of any Unit or
in relation to any Transaction (the "FUNDS") shall be paid into an escrow
account in accordance with the laws of the State of Florida pending
completion of the relevant Contract in accordance with its terms;
6.6.2 not less than 7 days prior to the proposed date for completion of the
relevant Contract, the relevant escrow agent shall irrevocably undertake in
writing to the Agent to pay at completion of the Transaction from the
escrow account in which the Deposit is then held in accordance with the
provisions of clause 6.7.1 above all amounts then remaining payable to the
Agent pursuant to this Agreement in relation to the relevant Contract such
payment to be made into such to bank account as shall have been previously
notified to the Developer by the Agent (or as shall be notified to the said
escrow agent by the Agent) and the Developer shall procure that such
amounts due to the Agent are paid as aforesaid.
6.7 The Developer undertakes to the Agent to pay all legal and brokerage fees
and all taxes (to include without limitation stamp duty (or local
equivalent) incurred or otherwise payable by the Introduced Person in
connection with a purchase of any Unit to which this Agreement relates. The
Developer shall keep separate, complete and accurate records and accounts
of all sales of Units made by it and of all Transactions and such records
and accounts shall be open to inspection and audit by the Agent and by its
duly authorised agents and representatives who shall be entitled to take
copies or extracts from the same at all reasonable times. In the event that
any such inspection or audit should reveal a discrepancy between the
payments made (or as notified by the Developer) as due and the amounts
actually due and payable under this Agreement, and that discrepancy is a
shortfall, the Developer shall immediately pay the amount of such shortfall
plus interest at the rate of 3% above the base rate from time to time of
Barclays Bank plc (calculated daily) on the amount of such shortfall from
the time such moneys should have been paid to the date of actual payment
and if the shortfall is more than 5% of the amount which should have been
paid during the period in question, then the Developer shall be obliged to
pay or (as appropriate) reimburse the Agent the costs of conducting such
audit or inspection.
6.8 Any sums payable by the Developer to the Agent under this Agreement shall
be paid without any deduction or set-off. All sums payable under this
Agreement are exclusive of the value added tax (or other applicable sales
or similar tax) which shall be payable in addition to the sum in question
at the then applicable rate.
6.9 In the event that any sums due by the Developer to the Agent are not paid
on the date due the Agent shall be entitled to interest on the date payment
was due until the date that payment is received by the Agent at the rate of
4 per cent above the base rate of Barclays Bank plc from time to time in
force on the amount then outstanding calculated on a daily basis and
compounded monthly.
7. NON-CIRCUMVENTION
7.1 The Developer covenants with the Agent that it shall not and shall procure
that none of its associates shall directly or indirectly and in any
capacity whatsoever at any time pending completion of the Contract for the
sale of the last of the Units to which this Agreement relates (the
"RELEVANT PERIOD") and for a period of 12 months thereafter appoint as an
agent (or enter into an arrangement with a similar effect to an agency) for
the disposal of any interest in any property any person (or an associate or
employer of such person or a person for whom such person is providing
services) who was at any time during the Relevant Period an employee
consultant or sub-agent of the Agent and who had any dealings with the
Developer in relation to the performance of this Agreement.
7.2 The Developer shall not otherwise than as contemplated by this Agreement
represent itself as being in any way connected with the Agent or use any
trade name which could reasonably denote such a connection.
7.3 The Developer undertakes that it shall not otherwise than as contemplated
by this Agreement as appropriate for its performance (and shall procure
that none of its associates will) directly or indirectly use or disclose to
any third party any information regarding any Introduced Person (to include
without prejudice to the generality of this provision to offer or enable
any associate of the Developer to offer to any such persons any other
property whether during or after the expiration or termination of the
Exclusivity Period howsoever arising).
7.4 The Developer shall not otherwise than as contemplated by this Agreement as
appropriate for its performance (and shall procure that none of its
associates will) contact any Introduced Person for any purpose whatsoever
for the purpose of selling property.
7.5 The Developer shall not:
(i) attempt to avoid payment of fees, rewards or other benefits whatsoever
justly due to the Agent;
(ii) otherwise seek to circumvent the interest of the Agent with respect to
any Introduced Person;
(iii) act otherwise than in good faith towards the Agent.
8. RIGHT TO ASSIGN CONTRACTS BY INTRODUCED PERSON
The Developer acknowledges and agrees that any Introduced Person shall be
entitled to assign the benefit of any Contract.
9. CONFIDENTIALITY
9.1 Save as provided in this clause 9 the Developer shall at all times
during the continuance of this Agreement and after its termination
(howsoever arising) without limit as to time keep all information
regarding the Agent and any Introduced Person strictly confidential
and shall only use such information for the purposes of discharging
its obligations or as otherwise contemplated under this Agreement.
9.2 Notwithstanding the provisions of clause 9.1 the Developer may
disclose or use confidential information described in clause 9.1 where
either:
9.2.1 such information becomes public knowledge through no fault of the
Developer; or
9.2.2 the Developer obtains or develops such information entirely
independently or where such information is obtained from a third party
such party is not itself under a duty of confidentiality; or
9.2.3 such disclosure is required by law or by any court or other body of
competent jurisdiction.
10. TERMINATION
10.1 This Agreement shall commence on the Commencement Date and shall continue
until terminated in accordance with the provisions of this clause 10.
10.2 The Agent shall be entitled to terminate:
10.2.1 its appointment as agent at any time upon giving the Developer 3
calendar months written notice;
10.2.2 its obligations under this Agreement immediately by notice to the
Developer if the Developer fails to pay any amounts due to the Agent
when due in accordance with the provisions of this Agreement.
10.3 Either party shall be entitled to terminate the Agent's appointment
immediately as agent by written notice to the other if:
10.3.1 that other party commits any material breach of any of the
provisions of this Agreement and in the case of a material breach
capable of remedy fails to remedy the same within 30 days after
receipt of a written notice giving full particulars of the material
breach and requiring it to be remedied;
10.3.2 an encumbrancer takes possession or a receiver is appointed over any
of the property or assets of that other party;
10.3.3 that other party makes any voluntary arrangements with its creditors
or becomes subject to an administration order;
10.3.4 that other party goes into liquidation (except to the purposes of
amalgamation or reconstruction and in such manner that the company
resulting there from effectively agrees to be bound by or assumes the
obligations imposed on the other party in this Agreement);
10.3.5 anything which under the law of any relevant jurisdiction is
analogous to any of the acts or events specified in clauses 10.3.1 to
10.3.4 above;
10.3.6 that other party ceases or threatens to cease to carry on its
business.
10.4 For the purpose of clause 10.3.1 a breach will be considered capable of
remedy if the party in breach can comply with the provisions in question in
all respects other than as to the time of performance (providing that the
time of performance is not of the essence);
10.5 any waiver by either party for breach of any provision of this Agreement
shall not be considered a waiver of any subsequent breach for the same or
any other provision of this Agreement;
10.6 the rights to terminate this Agreement given by this clause shall be
without prejudice to any other rights or remedies of the parties in respect
of the breach concerned (if any) or any other breach.
11. CONSEQUENCES OF TERMINATION
11.1 Upon the termination of the agency of the Agent for any reason:
11.1.1 the Agent shall forthwith cease to market and promote the Units and
shall dispose of in accordance with the reasonable directions of the
Developer all brochures, leaflets, photographs, plans and other
advertising, promotional and marketing materials relating to the
Development and the Units then in the possession of the Agent.
11.1.2 the Developer shall forthwith pay to the Agent any monies due and
owing to the Agent pursuant to the provisions of this Agreement.
11.2 Notwithstanding the termination of the agency of the Agent the remaining
provisions of this Agreement shall continue in full force effect and all
such provisions shall survive termination of this Agreement for any reason.
12. LIAISON
The Agent and the Developer shall each nominate a suitable senior employee
to assume overall responsibility for its obligations under this Agreement
and shall notify the other in writing of the identity of such person (and
from time to time of any replacement). All communications between the
parties in respect of the day-to-day operation of this Agreement shall be
conducted between such persons. The first person nominated by the Agent
shall be Xxxxx Xxxxxxx. The first person nominated by the Developer shall
be Xxxxxxx Xxxxxx.
13. NATURE OF AGREEMENT
13.1 Neither party shall without the prior written consent of the other assign,
transfer or dispose of any rights or obligations under this Agreement
provided that the Agent shall be entitled to employ sub-Agents provided
that if the Agent does so every act or omission of any such sub-Agent shall
for the purpose of this Agreement be deemed to be the act or the omission
of the Agent.
13.2 Nothing in this Agreement shall create or be deemed to create a partnership
or the relationship of employer and employee between the parties.
13.3 This Agreement contains the entire Agreement and understanding between the
parties with respect to the subject matter of this Agreement and supersedes
all previous agreements and understandings between the parties with the
respect thereto and may only be modified by an instrument in writing signed
by the duly authorized representatives for each of the parties.
13.4 Each party acknowledges that in entering into this Agreement it does not do
so on the basis of and does not rely on any representation, warranty or
other provision except as expressly provided in this Agreement and all
conditions of warranties and other terms implied by statute or common law
are by this Agreement excluded to the fullest extent permitted by the
Applicable Law.
13.5 If any provision of this Agreement shall be found by any court to be
invalid or unenforceable, such invalidity or unenforceability shall not
affect the other provisions of this Agreement which shall remain in full
force and effect.
13.6 If any provision of this Agreement is so found to be invalid or
unenforceable but would be valid or enforceable if some part of the
provision were deleted, the provision in question shall apply with such
modification(s) as may be necessary to make it valid and enforceable.
13.7 The Agent may at any time up until termination of the agency of the Agent
under this Agreement amend the scope and /or period of the provisions (or
any of them) contained in clause 7 of this Agreement provided that none of
the provisions shall as a result be drafted as more restrictive in any
respect than prior to such amendment.
14. ASSIGNMENT
Neither party may assign its rights or obligations under this Agreement
except that the Agent may assign to any person or company that is from time
to time its associate.
15. NOTICE AND SERVICE
15.1 Any notice to be given by either party to the other under this Agreement
may be given by hand or sent by first class pre-paid post to the other
party at the address first shown at the above.
15.2 Any notice or other information given pursuant to clause 15.1 shall in the
case of delivery by hand be deemed to be received on the date delivered and
if sent by first class pre-paid post on the second business day following
the date of the posting and for this purpose proof that the envelope was
properly addressed, pre-paid and posted and that it has not been returned
to the sender shall be sufficient evidence if such notice or information
has been duly given.
16. RIGHTS OF THIRD PARTIES
16.1 It is expressly provided in this Agreement that save pursuant to clause
16.2 no term of this Agreement shall be enforceable under the Contracts (Rights
of Third Parties) Xxx 0000 by a third party who is not a party to this
Agreement.
16.2 Each covenant warranty undertaking indemnity and obligation given by the
Developer to or otherwise in favour of the Agent shall also be deemed to be
in favour of and directly enforceable by any sub-agent of the Agent unless
the context otherwise admits.
17. JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws of England and the parties to this Agreement irrevocably agree that
the courts of England shall have non-exclusive jurisdiction over any claim
or matter arising under or in connection with this Agreement.
IN WITNESS whereof this Agreement has been duly executed by or on behalf of the
parties the day and year first above written.
SIGNED BY )
on behalf of )
XPRESS LIMITED )
Xxxxx Xxxxxxx
(Name) (Director) ----------------------
(Signature)
Signed by )
)
On behalf of SUNSTONE GOLF RESORT, INC. )
)
Xxxxxxx X Xxxxxx
(Name) (President) ----------------------
(Signature)
SCHEDULE 1
FORM OF THE SCHEDULE
This is a Schedule as defined in the Agreement between (1) Xpress Limited and
(2) Sunstone Golf Resort, Inc. dated November 3rd 2003 (the "Principal
Agreement")
By signing this Schedule the Agent and the Developer agree that the Agent is
hereby appointed as exclusive marketing agent of the Developer for the promotion
of the Units specified below on and subject to the terms of the Principal
Agreement. On signature by or on behalf of the parties this Schedule shall be
deemed to form part of the Principal Agreement.
PART 1
Commencement Date November 3rd 2003
Exclusivity Period Thirty Six Months
Details of The Development
PART 2
Units
PART 3
Plan
-------------------------
signed for the Agent (Director)
--------------------------
signed for the Developer (President)
SCHEDULE 2
(Developer's Terms & Conditions)