EXHIBIT 10.13
FORM OF MARKETING AND SALES AGREEMENT
THIS MARKETING AND SALES AGREEMENT (this "Agreement") is made and
entered into as of December __, 1997, by and between Snowdance, Inc., a Delaware
corporation ("Snowdance"), and Westerly Resorts Group, Inc., a Virgin Islands
corporation ("Westerly").
RECITALS
A. Snowdance is the owner of the Ascutney Mountain Resort (the
"Resort") located in Brownsville, Vermont and the Ascutney Mountain Resort Hotel
(the "Hotel") located within the Resort.
B. Westerly is an experienced marketer and developer of vacation
ownership intervals (also known as time shares).
C. Snowdance desires to develop and sell weekly vacation ownership
intervals in the Hotel (the "VOIs") and to engage Westerly to assist it in the
marketing and sale of such VOIs. Additionally, Snowdance wishes to develop a
Snowdance Club (the "Club") through which purchasers of VOIs will be able to
receive additional services. Snowdance and Westerly are entering into this
Agreement in order to set forth the rights and duties of each of the parties
with respect to the marketing and sale of the VOIs and the creation and
management of the Club.
AGREEMENT
NOW, THEREFORE, Snowdance and Westerly do hereby agree as follows:
1. Recitals. The foregoing Recitals are hereby incorporated herein and
made a part hereof.
2. Relationship Between the Parties. Snowdance is contracting with
Westerly to provide the functions and services set forth in this Agreement (the
"Services") and Westerly agrees to use its best efforts in the provision of the
Services in a prompt and timely manner. In all matters in connection with this
Agreement, final decision authority shall rest with Xxxxxx X. Xxxxxxxxxxx for
Snowdance and Xxx Xxxxxx and Xxxx Xxxx for Westerly.
3. Scope of Agreement. This Agreement encompasses the provision of the
Services regarding the sale of VOIs in the Hotel and Snowdance agrees that for
such time as this Agreement is in effect it will not engage any other party to
perform such Services in connection with the sale of VOIs in the Hotel. Should
Snowdance decide to sell other timeshare products in the Resort (other than in
the Hotel), Snowdance agrees to negotiate in good faith on an exclusive basis
with Westerly for a period of two months (after written notice from Snowdance to
Westerly) to engage it as marketing partner for the sale of such
additional products. If at the end of such two month period no agreement is
reached then Snowdance shall be free to enter into an agreement with another
party regarding the sale of such additional products.
4. Units Available for Sale. A "Unit" shall consist of one suite in the
Hotel which has been properly converted so as to allow for the sale of VOIs in
the Unit. Snowdance shall be responsible for upgrading the Units and for making
them available to Westerly for sale to the public. Initially, Snowdance will
make available to Westerly five (5) Units in the Hanover building of the Hotel
for VOI sales. Snowdance, at its sole discretion, shall make available
additional Units to Westerly for sale. Once all of the Units in the Hanover
building of the Hotel are sold, additional Units shall be made available in the
Windsor, Bennington, Xxxxxxx and Essex buildings of the Hotel, at such time and
in such order as Snowdance in its sole discretion, with the advice of Westerly,
deems appropriate.
5. Roles and Duties of the Parties. Westerly will create, subject to
prior written approval of Snowdance, the overall Club concept, including
membership classifications and related features and benefits of the memberships,
and be responsible for the marketing and sales of memberships and for
identifying operational and facility requirements for the Club, which shall
include but not be limited to the following:
5.1 Marketing Plan. Westerly will develop and implement,
subject to the prior written approval of Snowdance, a Marketing/Sales Plan (the
"Marketing Plan"), attached hereto as Exhibit A, for the sale of Club
memberships, which Marketing Plan shall include the development of marketing
materials, media advertising, and in-house marketing and sales programs, the
staffing requirements for the Club and methods of implementing and supervising a
membership marketing and sales program. The Marketing Plan will also include
goals and objectives, tactics, expectations and the anticipated costs of each
program. The Marketing Plan shall be updated on an annual basis, with each new
plan subject to the prior written approval of Snowdance. The programs and
activities provided for in the Marketing Plan shall be implemented and conducted
in accordance with the terms and conditions provided for therein. All sales and
marketing materials, including but not limited to direct mail pieces, print
advertisements and telemarketing scripts, shall require the written approval of
Snowdance prior to being used by Westerly. Westerly will be responsible for
payment of all sales and marketing costs associated with the implementation of
the Marketing Plan except for Resort brochures and credit card commissions on
deposits made on the purchase of a VOI. Any customer requests to pay the entire
sales price of a VOI via credit card must be approved by Snowdance prior to
acceptance. If Westerly chooses to use the Ascutney Magazine for mailings, then
Westerly shall reimburse Snowdance for the actual proportional costs incurred by
the use of the magazine.
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The Marketing Plan shall also contain a sales and marketing package and
an owner's membership package which will include, among other things, discounted
hotel, lift ticket and ski school rates, as well as food and beverage discounts.
Snowdance will provide Westerly with discounted rates for mini-vacation programs
for sales and marketing purposes. Snowdance will also coordinate the Resort's
overall marketing and advertising programs to include and feature the sale of
VOIs and the Club program. A current listing of agreed upon rates and discounts
is attached hereto as Exhibit B.
5.2 VOI Sales. Subject to Westerly's approval, Snowdance will
have the responsibility for drafting all forms of documents required for the
sale of VOIs, including but not limited to, condominium documents, by-laws,
sales agreements, consumer note agreements and Federal-Truth-In-Lending
disclosure documents. Snowdance shall be responsible that all documents comply
with any applicable local or state requirements concerning the sale of VOIs.
Westerly shall be responsible for the sale and marketing of Club memberships and
VOIs, including sales representatives' hiring, training, compensation and
management. Westerly will also be responsible for the payment of all sales
commissions.
5.3 Exchange Company. Snowdance and Westerly shall select a
VOI exchange company (the "Exchange Company"). Snowdance shall be responsible
for the affiliation of the Resort with the Exchange Company and it will be the
responsibility of Westerly to enroll the VOI purchaser in the Exchange Company.
It is anticipated that the sale of VOIs will be structured by using a contract
for a deed where the deed is held in escrow until either (a) any loan made by
Snowdance or a third party financing source to the purchaser of the VOI is fully
satisfied, or (b) the purchaser has paid in full and funds have cleared. As part
of the sales contract, each purchaser will be responsible for all costs to
record the deed and Snowdance agrees to obtain the necessary releases required
to record such deeds.
5.4 Operating Budgets. Westerly will advise Snowdance in
preparing operating budgets for the condominium and/or timeshare association for
the Units in the Hotel, required to be organized in order to sell the VOIs, and
as to an appropriate per Unit maintenance fee pricing. Westerly and Snowdance
recognize that the ultimate responsibility for setting the operating budget for
such condominium and/or timeshare association will be borne by the manager or
the Board of Directors of the condominium and/or timeshare association.
5.5 Club Membership Documents. Westerly will advise Snowdance
in developing the Club and in preparing all necessary Club documents, including,
without limitation, declaration of condominium, membership plan, articles of
incorporation, membership by-laws, membership policies, Club rules, membership
applications, membership agreements and membership sales contracts. All of the
above documents shall be prepared at the expense of Snowdance and, in addition
to the ownership structure of the Club, are subject to review by Westerly.
Snowdance will provide all necessary documents required to sell the VOIs in the
State of Vermont as a contract for deed, including purchase contracts, mortgage
notes, Federal-Truth-In-Lending documents and owner's disclosure checklists.
Maintenance
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fee schedules and per week maintenance pricing for the Units will also be
provided by Snowdance. Should Westerly and Snowdance mutually agree to sell VOIs
in any other state besides Vermont, the costs required to comply with such
states regulations on sales shall be shared equally.
5.6 Goals and Budget. Snowdance and Westerly have agreed to
the sales price schedule for the VOIs attached hereto as Exhibit C and Westerly
agrees to use its best efforts to sell such VOIs as set forth in Exhibit C and
to otherwise comply with the schedule. Any changes in the sales price for VOIs
or in any VOI sales discount program must be approved in advance in writing by
Snowdance. Westerly and Snowdance agree to periodically review the VOI sales
prices set forth in Exhibit C and to compare these prices with timeshare
projects in the region. Any changes in VOI prices shall be mutually agreed upon
in writing by Westerly and Snowdance.
5.7 Reporting and Controls. Westerly will provide the
following reports to Snowdance:
(a) Weekly VOI sales and marketing reports
(b) Monthly VOI sales and commission reports
(c) Quarterly marketing expense reports, reconciled
against marketing and sales fees.
(d) the Marketing Pan described in Section 5.1.
5.8 Design. Snowdance will, with the assistance of Westerly,
redecorate the Club residences and provide the necessary model Units (at least
1-2 bedroom Unit and 1-3 bedroom Unit) and renderings necessary for the VOI
sales and marketing program with a target completion date for such redecoration
of February 15, 1998. In addition, Snowdance will provide Westerly with the
already existing details and renderings of the Resort expansion, including the
details and renderings of the proposed golf course, for use as sales tools on or
before the commencement of VOI sales. The owner's disclosure checklist to be
provided to potential VOI purchasers will contain a Snowdance and Westerly
approved statement disclosing the plans for the completion of the proposed golf
course. As more detailed plans become available, Snowdance will provide these
plans to Westerly for sales and marketing purposes. Notwithstanding anything to
the contrary, Westerly shall have no responsibility or liability for any design
or construction defects concerning the buildings containing the VOIs.
5.9 Construction of Facility. Snowdance will furnish and equip
the Club facilities in accordance with plans and specifications mutually and
reasonably satisfactory to Snowdance and Westerly and obtain and maintain all
certificates of occupancy or other permits required to operate the Club.
Snowdance shall be responsible for all renovation costs related to the
renovation of the Club residences and facilities.
5.10 Participation of Westerly Principals. Westerly hereby
designates Xxxxxxx Xxxx to be the on-site principal for marketing and sales of
VOIs and Xxx Xxxxxx for overall Westerly responsibilities under this Agreement.
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6. Expense Advance. On the 8th day of each month, Snowdance shall pay
to Westerly the sum of 45% of the previous month's Approved Sales (as
hereinafter defined) presented to Snowdance (the "Expense Advance"), less any
Chargebacks (as hereinafter defined) and any monies owed to Snowdance for
promotions, premiums or other charges that Westerly may owe.
An "Approved Sale" is a sale of a VOI in which all deposits or
other full or partial payments have cleared the bank, the applicable five (5)
day rescission period has passed and the following information, in a form
satisfactory to Snowdance and Westerly, has been obtained:
(a) Signed and notarized Deed (if applicable)
(b) Signed sales agreement
(c) Signed mortgage note (if applicable)
(d) Signed Truth-In-Lending Agreement (if applicable)
(e) Signed owner's checklist
(f) Signed sure-pay agreement (if applicable)
(g) other documentation that may be mutually agreed upon from
time to time
7. Chargebacks. A loan to a purchaser of a VOI shall be considered in
default (a "Defaulted Loan") if any payment required to paid thereunder is more
than ninety (90) days in arrears. In the case of a Defaulted Loan in which a
purchaser has made less than (12) scheduled monthly payments, Westerly shall pay
to Snowdance (a "Chargeback") the sum of any monies received from Snowdance in
regards to the sale of the VOI which resulted in the Defaulted Loan, less the
sum of any down payments or scheduled principal and interest payments received
by Snowdance in connection with such sale.
8. Quarterly Reconciliation. Within seven (7) days after the end of
each three (3) month period (a "Quarter"), with the first Quarter to begin on
January 1, 1998, or at such other period as is mutually agreed to by the
parties, Snowdance and Westerly shall each submit to the other an accrual basis
accounting of the sales and marketing expenses and the sales revenue for the
Quarter (the "Accounting"). Each party shall have five (5) days after the end of
such seven (7) day period to present in writing to the other any dispute that it
may have regarding the Accounting furnished by the other party. If there is no
dispute between the parties, then the parties shall pay each other any amounts
owed as determined pursuant to Section 9 below. Should there be a dispute, the
parties shall then have an additional five (5) days to resolve any such dispute.
Should any such dispute not be resolved within such five (5) day period, then
the parties shall submit the Accounting to a certified public accounting firm
(the "CPA Firm") mutually agreed to by the parties. The CPA Firm shall render a
decision in the dispute within ten (10) days and both parties agree to abide by
the terms of such decision. Regardless of whether or not there is a dispute,
Snowdance shall have the right, upon giving five (5) days prior notice, to
review all of Westerly's tax returns and books and records, and any working
papers produced in connection therewith, which, in the
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reasonable discretion of Snowdance, relate to any actions taken by Westerly
pursuant to this Agreement.
9. Marketing and Sales Fees. In accordance with the terms of Section 8
above, at the end of each Quarter, Westerly shall be paid the sum of (a) its
Marketing and Sales Expenses (as hereinafter defined) for the Quarter and (b)
32.5% of the Net Proceeds (as hereinafter defined) for the Quarter, less the sum
of (x) any Expense Advances previously paid during the Quarter and (y) any
Chargebacks for the Quarter that have not yet been applied to an Expense
Advance. "Marketing and Sales Expenses" shall include all actual out of pocket
expenses incurred by Westerly in the sale and marketing of VOIs during the
Quarter. The Marketing and Sales Expenses shall be limited at 50% of the gross
sales from VOIs for the Quarter ("Gross Sales"); provided, however, that such
limit shall be 60% for the that Quarter beginning on January 1, 1998. Should the
Marketing and Sales Expenses for any Quarter be less than 43% of Gross Sales,
then the Marketing and Sales Expenses shall be deemed to be 43% of Gross Sales.
"Net Proceeds" is the sum of 75% of Gross Sales, less the sum of (a) the
Marketing and Sales Expenses, and (b) any out of pocket expenses incurred by
Snowdance for any marketing or sales activities which it performs (except for
those activities provided required to be performed pursuant to this Agreement).
10. Term. This Agreement shall have an initial term of five (5) years
from the date hereof, with the option to renew, subject to approval in writing
by both parties, for five (5) year increments thereafter.
11. Indemnification.
11.1 Indemnification by Snowdance. Snowdance shall indemnify
and hold Westerly and Westerly's shareholders, officers, directors, employees,
agents and representatives harmless from all liability, loss, damage, cost or
expense (including reasonable attorney's fees and expenses) resulting from
Westerly's activities contemplated in this Agreement, to the fullest extent
permitted by law, except those liabilities arising from or in any manner in
connection with (i) any failure of Westerly or any of its shareholders,
officers, directors, employees, agents or representatives to observe or properly
perform Westerly's duties or obligations under this Agreement, or (ii)
Westerly's or any of its shareholders, officers, directors, employees, agents or
representatives negligence, recklessness, improper sales practices or
solicitations including contacts in non-registered areas, willful misconduct or
illegal acts. Westerly will notify Snowdance of such action, suit or proceeding,
and Snowdance may, and upon Westerly's request shall, at Snowdance's expense,
defend such action, suit or proceeding, or cause the same to be defended by
counsel designated by Westerly, provided that Snowdance shall have the right to
approve such counsel, such approval, however, not to be unreasonably withheld.
11.2 Indemnification by Westerly. Westerly shall indemnify and
hold Snowdance and Snowdance's shareholders, officers, directors, employees,
agents and legal representatives harmless from all liability, loss, damage, cost
or expense (including reasonable attorney's fees and expenses) resulting from
Snowdance's activities contemplated in this
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Agreement, to the fullest extent permitted by law, except those liabilities
arising from or in any manner in connection with (i) any failure of Snowdance or
any of its employees, agents or representatives to observe or properly perform
Snowdance's duties or obligations under this Agreement, or (ii) Snowdance's or
any of its employees, agents or representatives negligence, recklessness,
improper sales practices or solicitations including contacts in non-registered
areas, willful misconduct or illegal acts. Snowdance will notify Westerly of
such action, suit or proceeding, and Westerly may, and upon Snowdance's request
shall, at Westerly's expense, defend such action, suit or proceeding with
counsel reasonably acceptable to Snowdance, or cause the same to be defended by
counsel designated by Snowdance, provided that Westerly shall have the right to
approve such counsel, such approval, however, not to be unreasonably withheld.
12. Events of Default. The occurrence of any one or more of the
following events which is not cured in the time permitted shall constitute a
default under this Agreement ("Event of Default"):
12.1 Failure to Pay Sums Due. Either party's failure to pay
any sums payable under this Agreement when due and such failure shall continue
for a period of thirty (30) days after written notice to the defaulting party
specifying the sums not paid.
12.2 Failure to Comply. Either party's failure to comply with
any of the covenants, agreements, terms or conditions of this Agreement and such
failure shall continue for a period of thirty (30) days after written notice to
the defaulting party specifying in detail the nature of such failure.
12.3 Bankruptcy. If either party (i) applies for or consents
to the appointment of a receiver, trustee, or liquidator of itself or any of its
property, (ii) is unable to pay its debts as they mature or admits in writing
its inability to pay its debts as they mature; (iii) makes a general assignment
for the benefit of creditors; (iv) is adjudicated as bankruptcy or insolvent; or
(v) files a voluntary petition in bankruptcy or a petition or an answer seeking
reorganization or an arrangement with creditors, or taking advantage of any
bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or
liquidation law or statute, or admits the material allegations of a petition
filed against it in any proceedings under any such law, or if any action shall
be taken by said party for the purpose of effecting any of the foregoing.
12.4 Reorganization, Receiver. An order, judgment, or decree
is entered without the application, approval or consent of either party by any
court of competent jurisdiction approving a petition seeking reorganization of
said party or appointing a receiver, trustee, or liquidator of said party, or of
all or a substantial part of any of the assets of said party, and such order,
judgment, or decree remains unstayed and in effect for a period of ninety (90)
days from the date of entry thereof.
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13. Remedies Upon Default. Upon the occurrence of an Event of Default,
the non-defaulting party may exercise any remedies in equity and in law.
Remedies shall include damages, specific performance and the right to terminate
this Agreement.
14. Termination.
14.1 Termination Events. This Agreement shall terminate upon
the first to occur of the following:
14.1.1 An Event of Default by Westerly, and Snowdance
sends to Westerly a written notice of termination;
14.1.2 An Event of Default by Snowdance, and Westerly
sends to Snowdance a written notice of termination;
14.1.3 Upon sixty (60) days written notice from
Snowdance to Westerly that the progress of membership sales is materially behind
the sales schedule set forth on Exhibit C, and provided that being materially
behind schedule is a result of deficiencies in the Marketing Plan and not
mitigating factors beyond Westerly's control, and Westerly fails to restore
material compliance with the schedule set forth on Exhibit C within the 60 day
period following the receipt of such notice from Snowdance, and Snowdance sends
to Westerly a written notice of termination. Should Snowdance send such notice
of termination as provided for in this Section 14.1.3, then the effective date
of the termination of this Agreement and the date that is 120 days thereafter
shall each be deemed to be the end of a Quarter for the purposes of Section 9
above and following such dates Westerly shall receive such sums as it would
receive upon the end of Quarter as provided for in Section 9 above.
14.1.4 The exercise of a party's right to terminate,
as expressly set forth in this Agreement;
14.1.5 The parties mutually agree in writing to
terminate this Agreement;
14.1.6 Snowdance exercises its right, in its sole
discretion, to terminate this Agreement, by 30 days written notice to Westerly,
provided, however, that Snowdance agrees it shall not sell VOIs in the Hotel for
a period of two years from the date of such termination.
14.1.7 Westerly exercises its right, in its sole
discretion, to terminate this Agreement. Westerly agrees that Westerly, it
shareholders, directors and officers will not engage, directly or indirectly, in
the VOI or timeshare business in the State of Vermont for a period of two years
from the date of such termination.
14.2. Post Termination Obligations. Upon termination
of this Agreement, the following shall occur:
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14.2.1 All sums owed by either party to the other
shall be paid when required under the terms of this Agreement, provided that any
sums due and payable under this Agreement at the time of termination shall be
paid within thirty (30) days of the effective date of such termination except as
set forth herein. Such payments shall be subject to such adjustments, if any,
net of any monies owed to Ascutney.
14.2.2 The rights and obligations of the parties
under this Agreement will cease except as to amounts due from one party to the
other and as set forth in Section 14.1.6 and 14.1.7, and claims of either party
against the other or liabilities of either party to the other. Any termination
of this Agreement shall not release either party from the indemnification
provisions under Section 11 of this Agreement or the confidentiality provisions
under Section 27 of this Agreement which shall survive the termination of this
Agreement.
15. Notices. Any notices or any communications required or permitted
hereunder shall be sufficiently given if in writing and (i) delivered
personally; or (ii) sent by certified mail, return receipt requested, postage
prepaid, addressed as shown on the signature page, or to such other address as
the party concerned may substitute by written notice to the other. All notice
personally delivered shall be deemed received on date of delivery. All notices
forwarded by mail shall be deemed received on a date three (3) business days
following date of deposit in the U.S. mail, provided, however, the return
receipt indicating the date upon which all notices were received shall be prima
facie evidence that such notices were received on the date of the return
receipt.
16. Amendment and Waiver. This Agreement may not be amended except in a
writing executed by all parties. Waiver of a term of this Agreement shall not
affect any other term or subsequent performance of the waived term.
17. Attorney's Fees. Except as set forth in Section 20, should any
action be taken by any party to enforce or interpret this Agreement, the
nonprevailing party shall reimburse the prevailing party for all reasonable
expenses incurred, including out-of-pocket expenses and attorneys and legal
assistant fees.
18. Headings. The headings are not intended to affect the
interpretation of this Agreement.
19. Choice of Law. THIS AGREEMENT SHALL BE INTERPRETED UNDER THE
LAWS OF THE STATE OF VERMONT.
20. Arbitration. If any controversy, disagreement or dispute should
arise between or among the parties in the performance, interpretation or
application of this Agreement, any party may serve upon the other a written
notice stating that such party desires to have the controversy, disagreement or
dispute reviewed by a board of three arbitrators and naming the person whom such
party has designated to act as an arbitrator. Within fifteen (15) days after
receipt of such notice, the other party shall designate a person to act as
arbitrator and shall
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notify the party requesting arbitration of that designation. The two arbitrators
designated shall promptly select a third; provided, however, if the two shall
fail to designate a third within ten (10) days after the second arbitrator is
appointed, then either arbitrator on five (5) days written notice to the other,
shall apply to the American Arbitration Association to designate and appoint a
third arbitrator. If the party upon whom the original request for arbitration is
served shall fail to designate its arbitrator within the fifteen (15) day period
after receipt of the notice, then the arbitrator designated by the party
requesting arbitration shall act as sole arbitrator and shall be deemed to be
the single common mutually approved arbitrator to resolve the controversy,
disagreement or dispute. A decision and award of the majority of the
arbitrators, or of such sole arbitrator shall be binding upon the parties and
shall be enforceable in accordance with the applicable laws of the State of
Vermont. The fees and expenses of the sole arbitrator or arbitrators, as the
case may be, incurred in connection with such arbitration proceeding shall be
borne or apportioned and paid as determined by the arbitration. Arbitration
shall take place in Vermont, in accordance with the applicable rules of the
American Arbitration Association and judgment upon the arbitration award may be
entered in a court of competent jurisdiction.
21. Entire Agreement. This Agreement contains all the understandings
between the parties with respect to this subject matter.
22. Savings Clause. The invalidity of any part of this Agreement shall
not render the remainder ineffective or unenforceable.
23. Time. Time is of the essence in this Agreement.
24. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
legal representatives, and assigns, where permitted herein. Snowdance shall be
allowed to assign this Agreement to its affiliate without the prior consent of
Westerly.
25. Outside Businesses. Except as set forth in Section 14.1.6 and
Section 14.1.7, nothing contained in this Agreement shall be construed to
restrict or prevent any party or any party's affiliates from engaging in any
other businesses or investments.
26. Unavoidable Delays. The provisions of this Section shall be
applicable if there shall occur during the term of this Agreement any (i)
strikes, lockouts or labor disputes; (ii) inability to obtain labor or
materials, or reasonable substitutes therefor; (iii) acts of God, governmental
restrictions, regulations or controls, enemy or hostile governmental action,
civil commotion, fire, or other casualty; or (iv) other conditions similar to
those enumerated in this Section beyond the reasonable control of the party
obligated to perform. If either party shall, as the result of any of the
above-described events, fail punctually to perform any obligation on its part to
be performed under this Agreement, then, upon written notice to the other,
within ten (10) days of such event, such failure shall be excused and not be a
breach of this Agreement by the party claiming an unavoidable delay (an
"Unavoidable Delay"), but only to the extent occasioned by such event. If any
right or option of either party to take any action
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under or with respect to this Agreement is conditioned upon the same being
exercised within any prescribed period of time or at or before a named date,
then such prescribed period of time or such named date shall be deemed to be
extended or delayed as the case may be, upon written notice, as provided above,
for a time equal to the period of the Unavoidable Delay. The provisions of this
section shall not apply to either party's obligation to pay any sums of money.
27. Confidentiality. Westerly acknowledges that certain of the
information concerning Snowdance furnished or made known hereunder to Westerly
or its directors, officers, agents or representatives, including but not limited
to all financial information and information regarding sales, expenses, progress
of marketing and sales efforts, may contain material, non-public information and
accordingly, is confidential and Westerly will maintain the confidentiality of
all such information and not use the information for any other purpose other
than to assist the Company as contemplated hereunder. Such information shall not
be deemed to be confidential to the extent it is publicly available from a
source other than Snowdance. Westerly may disclose such information if it is
required to do so by law or by any governmental body or agency. Westerly shall
give Snowdance prior written notice of any such disclosure. Notwithstanding
anything contained herein to the contrary, the provisions of this Section 27
shall provide the termination of this Agreement.
28. No Hires. Westerly and Snowdance hereby acknowledge that each has
spent considerable time and money in the training of its employees and that such
employees constitute a valuable asset of each. As such, Westerly and Snowdance
hereby agree that so long as this Agreement is in effect and for a period of six
(6) months thereafter, each party will not hire the other's employees without
the other party's prior written consent.
27. Consent to Jurisdiction. With respect to any suit, action or
proceeding relating to this Agreement (a "Proceeding"), Westerly and Snowdance
irrevocably (a) submit to the non-exclusive jurisdiction of the courts of the
State of Vermont and the United States District court located in Vermont; and
(b) waive any objection which they may have at any time to the laying of venue
of any Proceeding brought in any such court, waive any claim that any such
Proceeding has been brought in an inconvenient forum and further waive the right
to object, with respect to such Proceeding, that such court does not have
jurisdiction over such party.
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IN WITTNESS HEREOF, the parties below do hereby sign their name below
as of the date first written above.
SNOWDANCE, INC., a Delaware corporation
By :
Name:__________________
Title:___________________
WESTERLY RESORTS GROUP, INC., a Virgin
Islands corporation
By :
Name:__________________
Title:___________________
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EXHIBITS
EXHIBIT A: Marketing Program
EXHIBIT B: Owners Club Benefits
EXHIBIT C: VOI Sales Prices
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EXHIBIT B
Premiums
1) Room Rates 50% off published rates
2) Lift tickets prices for the 1997/1998 ski season:
a) For OPC programs $20
b) For Mini Vacation's $15
3) 30% off food and beverages in Hotel restaurants
Club Benefits
1) 25% off daily lift ticket prices anytime during ski season
2) Year round membership in swim and fitness facilities for immediate
family
3) Year round 10% discount on food and beverages at Hotel restaurants
4) Year round room discounts of 25% off published rates
5) Bonus time year round discounts - 50% off any room booked within 5 days
of arrival
Administration
1) Xxx Xxxxxx and Xxxx Xxxxxxxx receive complimentary room nights during
their stay at the Resort.
2) Project Manager, Xxxx Xxxx, first 90 days complimentary (except for
utilities) at Mt. Edge condominium. After 90 days, $500 per month plus
utilities with possible annual increases to be mutually agreed upon.
3) Potential new employees of Westerly receive complimentary room nights
in the Hotel for initial visit, hired 30 days complimentary room nights
in the Hotel; thereafter rate per room night to be mutually agreed
upon.
4) Sales Office space - Real Estate office on ground floor complimentary,
phone service direct or through Hotel. If Westerly uses Hotel telephone
switch Snowdance will xxxx Westerly monthly for usage rates. Snowdance
will make available to Westerly its sales offices and presentation
rooms for any FF&E it may need to conduct sales. Snowdance will make
its best efforts to provide Westerly with chairs and couches for the
sales reception center. Office equipment such as a computer, copier and
fax machines, will be Westerly's responsibility. (For the first 30 days
Westerly may need to use Snowdance's copier and fax machines)
5) Private office space off of sales office included with sales office
with the same terms as number 4 above.
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