[EXHIBIT 10.2]
Appendix I
JOINT VENTURE AGREEMENT
executed by and between
LAND BRIDGE HOLDINGS INTERNATIONAL, S.A.
and
SIX DIAMOND RESORT INTERNATIONAL, S.A.
Dated As of April 1, 2007
This Joint Venture Agreement (the "Agreement") is executed this as of
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the 1st day of April, 2007 by and between LAND BRIDGE HOLDINGS
INTERNATIONAL, S.A. (hereinafter referred to as "LBHI") and SIX
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DIAMOND RESORT INTERNATIONAL, S.A. (hereinafter referred to as "SDRI",
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and jointly with LBHI shall be referred to as the "Parties"), in
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accordance with the following recitals and clauses:
RECITALS:
I. WHEREAS, LBHI is a corporation duly organized and validly
existing under the laws of the Republic of Panama, as evidenced
in Public Instrument 1651 dated on February 2, 2007, and is
engaged in developing directly and or indirectly, residential
projects.
II. WHEREAS, LBHI has legal ownership and title over certain real
properties located in the Republic of Panama that along with
certain technical information, documents and studies, desires to
contribute to a joint venture under the terms and conditions of
this Agreement.
III. WHEREAS, SDRI is a corporation duly organized and validly
existing under the laws of the Republic of Panama, as evidenced
in Public Instrument 3591 dated on March 14, 2007, with the
necessary expertise to develop, construct, market, sell and
manage directly or indirectly ultra luxury resorts, retirement
communities and real estate developments in the Republic of
Panama.
V. WHEREAS, both Parties desire to join efforts by entering into
this Agreement and set up the terms and conditions under which
they will develop certain residential projects in the Republic of
Panama.
VII. WHEREAS, the Parties hereto acknowledge and agree on the terms
and conditions under which they will govern the joint venture and
the Parties relation thereto.
NOW THEREFORE, in consideration of the foregoing recitals and the
mutual covenants, agreements, representations and warranties contained
in this Agreement, the Parties, intending to be legally bound, agree
as follows:
CLAUSES
ARTICLE I
DEFINITIONS
1. DEFINITIONS
As used in this Agreement, the following terms shall have the
respective meanings set forth below:
1. Affiliate shall mean with respect to (i) any Person, and only
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to such Person, any Person which directly or indirectly
Controls, is Controlled by, or is under common Control with
such Person; (ii) a Person owning or controlling ten (10%)
percent or more of the ownership interest in such Person; or
(iii) an officer, director or partner, or member of the
immediate family of an officer, director or partner, of such
Person.
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2. Agreement shall mean this joint venture agreement, as the same
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may be amended from time to time and its corresponding
schedules.
3. Adjusted Joint Venture Contributions shall mean the excess of:
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(a) Such Party Initial Joint Venture Contribution or Joint
Venture Contribution over, and
(b) the distributions made to such Party from time to time
pursuant to the terms and conditions of this Agreement
and Section 9.1.(b).
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4. Advances on Distributable Cash Flow shall mean the
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distributable proceeds resulting from the incoming cash flow
of the Projects after deducting all Operating and Sales Costs
and any other Project Financing costs, payments and fees, as
provided under Services Agreements to be mutually agreed by
the Parties and executed by them at a future date.
5. Board shall mean the board of directors of the Joint Venture
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or any other similar body with ultimate management decisions-
making power.
6. Business Plan shall have the meaning given to such term in
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Section 2.2 hereof.
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7. Business Activities means, but not limited, to engage in
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commercial exploitation, financing, marketing, constructing
and developing in the Territory or elsewhere, in connection
with the Projects or any other real estate development
according to the terms and conditions hereof; provided,
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however that the Joint Venture may engage in the Territory or
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elsewhere in such other activities and businesses related
either directly or indirectly to the foregoing as may be
necessary, advisable or convenient to the promotion, operation
and conduct of the Joint Venture.
8. Capital Account of a Party to this Agreement shall mean:
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(a) The amount of money or any other Initial Joint Venture
Contributions or Joint Venture Contribution
contributed by a Party to the Joint Venture, increased
by the fair market value of property, assets (tangible
or intangible) or Loans contributed by a Party to the
Joint Venture (net of liabilities secured by the
property or to which the property is subject); and
(b) The amount of net Profits allocated to each of
the Parties, and decrease by:
(i) The amount of Profits distributed to each of the
Parties,
(ii) The fair market value of any property or
distributed to each of the Parties by the Joint
Venture (net of liabilities secured by the
property or to which the property is subject),
(iii) Each of the Parties share of expenditures of the
Joint Venture,
(iv) Each of the Parties share of amounts paid or
incurred by the Joint Venture to organize the
Joint Venture (except to the extent properly
amortizable for tax purposes), and
(v) The amount of Losses allocated to each of the
Parties.
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9. Change of Control shall have the meaning given to such term in
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Section 11.3(g) hereof.
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10. Confidential Information, shall mean such written, oral,
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graphic or electromagnetic information identified by any of
the Parties hereto as confidential information, including but
not limited to financial, technical and strategic business
information about names of potential partners, proposed
businesses deals, reports, plans, market projections, data and
any other confidential and proprietary information, together
with analysis, work papers, compilations, comparisons,
studies, or other documents prepared by the furnishing party
(or its partners, directors, employees, representatives,
advisors or agents) and which is marked as confidential, as
well as such analysis, work papers, compilations, comparisons,
studies or other documents prepared by the receiving party (or
its partners, directors, employees, representatives, advisors
or agents) which has been identified as or reflects the terms
"Confidential Information" shall not include information
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which: (a) has become generally available to the public domain
other than as a result of an unauthorized disclosure by a
party hereto, its representatives, or its agents; (b) is or
has been independently developed or acquired by the receiving
party without violation of this Agreement; (c) becomes
available on a non-confidential basis from a third party
source, provided that such third party source is not bound by
a confidentiality agreement with the furnishing party; (d) is
explicitly approved for disclose by written authorization to
the disclosing party by the furnishing party, or (e) oral
information which is not otherwise reduced to and identified
as confidential in writing by the disclosing party to the
other party within seven (7) days after initial disclosure.
11. Control shall mean the ownership of fifty-one (51%) percent
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or more of the issued and outstanding voting shares or other
equity interests of any Person or possession, directly or
indirectly, of the power to direct or cause the direction of
the management of any Person, whether through the ownership of
voting securities, by contract or otherwise, provided,
however, that notwithstanding anything to the contrary
provided herein or elsewhere, because SDRI will become a
wholly-owned subsidiary of a Cayman Island entity ("Pubco")
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who files periodic reports with the United States Securities
and Exchange Commission (the "SEC"), (i) the transaction
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pursuant to which SDRI shall become a subsidiary of Pubco, as
described in the PPM (as defined below) shall not be deemed a
Change of Control (as defined herein), and (ii) SDRI shall be
deemed for purposes hereof, wholly-owned by Pubco and the
stock ownership of Pubco for purposes of this Agreement shall
be calculated after the closing of the offering of Pubco's
Series I Preference Shares pursuant to a Private Placement
Memorandum of Pubco (the "PPM").
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12. Critical Target shall mean the Joint Venture proposed
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operations, and identifies items the Parties or the Board deem
to be critical to the Joint Venture success according to its
respective Business Plans.
13. Default Rate shall have the meaning set forth in Section
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4.3(d).
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14. Distributable Cash shall mean at any time any cash in hand
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of the Joint Venture accounts as is then available for
distribution to the Parties according to the terms and
conditions of this Agreement, after all current debts,
expenses, fees, initial contributions, liabilities and any
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other obligations of the Joint Venture have been paid or
provisions therefore has been made.
15. Distribution shall mean the transfer of money, rights or
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any other properties to any of the Parties.
16. DDC shall mean DIAMOND DESIGN AND CONSTRUCTION a division
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of SDRI and a Panamanian firm that provides architectural and
design services to third parties in the Territory and
elsewhere.
17. DP shall mean DIAMOND PROPERTIES a division of SDRI and a
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Panamanian real estate firm that provides brokerage, marketing,
sales and re-sales services to third parties in the Territory and
elsewhere.
18. Fair Market Value or FMV for a particular property shall
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mean the dollar value established pursuant to the appraisal made
by three (3) recognized independent appraisers, one (1) to be
designated by LBHI (the "LBHI Appraiser"), one (1) to be
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designated by SDRI (the "SDRI Appraiser") and the third to be
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mutually agreed upon by the SDRI Appraiser and the LBHI Appraiser
(or only the SDRI Appraiser and the LBHI Appraiser, if such two
(2) appraisers cannot, for any reason, agree upon or locate a
third independent appraiser). The FMV of a particular property
shall equal the average of the appraisals submitted for the
particular property by each of the three (3) appraisers (or two
(2), as the case may be), as set forth above; provided, however,
that notwithstanding anything to the contrary provided herein or
elsewhere, if any of the appraisals submitted by the appraisers
for a particular property as provided in this Section 18 of
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Article I is thirty (30%) percent greater or lesser than the
average of all the appraisals submitted by the appraisers for
such particular property, then the FMV of such property shall be
determined by the Joint Venture's Board of Directors.
19. Initial Joint Venture Contributions shall mean the initial
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amount of cash, properties including, but not limited to, real
estate properties or services rendered, notes or any other
obligation to contribute money, properties or any other
appreciation and/or assets contributed by any of the Parties to
the Joint Venture and/or the Projects prior to the execution of
this Agreement.
20. Joint Venture shall mean the joint venture to be formed
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pursuant to and in accordance with this Agreement.
21. Joint Venture Contribution shall mean the amount of all
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cash, assets, including, but not limited to, real estate
properties or services rendered, technical information, documents
and studies, notes or any other obligation to contribute money,
property(ies) or appreciation and/or assets contributed by any of
the Parties to the Joint Venture and/or to the Projects.
22. LBHI shall mean the corporation named Land Bridge Holdings
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International, S.A., a Panamanian corporation ("LBHI").
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23. LBHI Purchase Option shall have the meaning referred to in
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Section 10.
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24. Liabilities shall mean any losses, damages, liabilities,
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expenses (including costs and actual attorney fees and
disbursements) judgments, fines, settlements and other amounts
that may be enforceable by law.
25. Licenses shall have the meaning given to such term in
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Section 2.4(1).
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26. Losses shall mean all the items of loss of the Joint
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Venture, including but not limited to all deductions, tax
deductions, sudden, unexpected or irrecoverable cost from which
no present or future benefit may be expected by the Joint
Venture, as properly determine for accounting and or fiscal
purposes. All losses shall be determined based on the Joint
Venture assets as set forth on the Joint Venture books and
records.
27. Marina Notice shall have the meaning given to such term
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under Section 2.4(4).
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28. Operating Cash Flow shall mean regarding the Joint Venture
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for any period excess or shortfall of: (i) the aggregate cash
receipts by the Joint Venture during such period from the
Business Activities other than the proceeds received from the
sale or disposition (other than in the ordinary course of
business) of, or any financing and or refinancing of, any assets
of the Joint Venture, as compare to, and any other financing
means, (ii) all cash disbursements made by the Joint Venture in
such period in the conduct of the Business Activities, other than
payments of principal, interests and expenses on the Joint
Venture indebtedness and other than payments made toward the
creation of reserves for contingencies and anticipated
expenditures.
29. Operating and Sales Costs shall mean, direct costs and
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expenses, associated, sale and management sale activities,
including sales commission, etc. or any other commission paid for
the sale of any real property, home, villas, lots, condominium,
pier(s), dock(s), or a any combination thereof developed in any
of the Projects.
30. Parties shall have the meaning set forth in the
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introductory paragraph.
31. Party shall mean any of the Parties to this Agreement.
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32. Person shall mean any individual, firm, corporation,
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company, partnership, association, trust or any other entity.
33. Percentage Interest shall mean each of the Parties
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percentage interest in the Joint Venture, as may be amended from
time to time. The initial percentage interest ownership of the
Parties shall be as follows:
Party Percentage Interest
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LBHI 50%
SDRI 50%
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Total Percentage Interest: 100%
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34. Prime Rate shall mean the prime rate as published in the
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"Money Rates" table of The Wall Street Journal on the first
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publication day of the calendar quarter of a given period and as
adjusted as of the first publication day of each subsequent
calendar quarter.
35. Profits shall mean all excess of revenues, proceeds, or
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selling price of the properties developed in any Project less
related costs and expenses (including but not limited to
construction and infrastructure costs), any pecuniary benefit
derived from the commercial operation, transactions and sale of
the properties developed in any Project.
36. Project(s) shall mean each business project (each, a
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"Project" and, collectively, the "Projects"), that the Joint
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Venture agrees to develop. It is currently contemplated that the
Joint Venture in the future will elect to develop one (1) or more
of the following Projects:
(a) Xxxxxxx del Mar Phase I Project. This Project is
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currently contemplated to be developed on a beachfront
and bayfront piece of land with approximate 5 (five)
acres surface, located at Isla xx Xxxxx, Panama, which
will include but not be limited to, 3 four story
condominium buildings, 1 three story condominium
building, 1 six story condominium building and a marina,
which Project and specifications will be set forth in a
Business Plan to be prepared by the Parties pursuant to,
and in accordance with, the Agreement.
(b) Xxxxxxx del Mar Phase II Project. This proposed
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Project is currently contemplated to be developed on a
beachfront piece of land with approximate 5 (five) acres
surface, located at Isla xx Xxxxx, Panama, which will
include, but not be limited to, a condominium building of
approximately 250 units, which Project and specifications
will be set forth in a Business Plan to be prepared by
the Parties pursuant to, and in accordance with, this
Agreement.
(c) Xxxxxxx del Mar Marina (PDM) Project. This proposed
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Project is currently contemplated to be developed as a
stand alone Project, developed in the Xxxxxxx del Mar
Phase I Project. This Project is proposed to be a
separate Project from Xxxxxxx del Mar Phase I. It is
currently contemplated that this Project will consist of
a marina with a minimum capacity of 50 (fifty) boats,
that will include docks, piers, moorings, launching
ramps; dock hand and concierge, service supplies engaged
in its day to day operation, as well as, rent boat slips,
store boats, cleaning and incidental boat repair, food
sale, fuel, fishing supplies, boats sales and various
other items; which Project and specifications to be set
forth in a Business Plan to be prepared by the Parties
pursuant to and in accordance with, the terms of this
Agreement.
(d) Isla Diamante Project. This proposed Project is
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currently contemplated to be developed on an island with
approximate five (5) acres, located at Archipelagos of
Bocas del Toro, Panama, which shall include, but not be
limited to, a villa or house, which Project and
specifications will be set forth in a Business Plan to be
prepared by the Parties pursuant to the terms of this
Agreement.
(e) Playa Xxxxxxxx Xxxxx 0 Project. This proposed Project
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is currently contemplated to be developed as a
residential development to be constructed on
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approximately fifty (50) acres, located at Archipelagos
of Bocas del Toro, Panama, which will include 38
beachfront villas, 29 lakefront beach villas, 38
lakefront condominiums and 140 beachfront 8 story
condominiums, which Project and specifications will be
set forth in a Business Plan to be prepared by the
Parties pursuant to, and in accordance with, the terms of
this Agreement.
For purpose of this Agreement each Project may be
hereinafter defined as a Project, and, collectively, the
"Projects."
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37. Project Financing shall mean as set forth in Section 4.2.
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38. SDRI shall mean the corporation named Six Diamond Resorts
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International, S.A., a Panamanian corporation.
39. Services Agreements shall mean all agreements to provide
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services to, for and/or on behalf of, the Joint Venture by SDRI,
LBHI, any of their respective affiliates and/or any third parties
which may include, but not be limited to, any and all management
services agreement, architectural design services agreement,
brokerage and sales services agreement. The terms and conditions
of any such Service Agreement must be mutually agreed upon by the
Parties.
40. Territory shall mean the territorial extension of the
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Republic of Panama.
ARTICLE II
BUSINESS OF THE JOINT VENTURE
2.1. SCOPE OF THE JOINT VENTURE
The Parties agree to enter into this Joint Venture Agreement to set up
the basis under which they (i) will participate in the development of
the Project, (ii) will contribute to the Joint Venture all necessary
funds, real estate, services and other necessary items to develop the
Projects and (iii) which the Joint Venture will conduct its Business
Activities.
2.2. BUSINESS PLANS
(a) Business Plans. The Parties agree that the Joint Venture shall
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operate according to the terms and conditions of this Agreement
and with regard to a particular Project, pursuant to the Business
Plan to be prepared by the Parties and approved by the Parties
and the Board for each particular Project the Joint Venture
elects to develop. Each Business Plan for a Project shall
include, but not be limited to, all the plans for the operational
matters, studies, research, marketing, exploitation and sales
regarding the execution and development of the particular
Project. Each Project will have its own Business Plan.
The Business Plan for each Project shall cover each phase of a
Project's development and execution, and shall identify Critical
Targets, and provided that if Critical Targets are not met, will
give one or both Parties the rights described in Section 11.1.
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The Parties agree that each Business Plan shall be reviewed and
modified, supplemented or amended, as the Parties shall so agree,
at least on annual basis by the Parties in accordance with this
Agreement.
(b) Preparation of Budget. During the term of this Agreement, the
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Parties agree that the Joint Venture will prepare and submit to
the Parties for their consideration and approval a budget for
each Project and for each Joint Venture fiscal year. Such
budgets shall be part of the Business Plan for each Project. The
budgets will include, but not be limited to:
(i) a projected income statement, balance sheet and
capital budget for the forthcoming fiscal year; and
(ii) a projected Cash Flow statement showing in reasonable
detail the projected receipts, disbursements, and
distributions (including the payment of Initial Joint
Venture Contributions, Joint Venture Contributions,
expenses, fees, et cetera); the amounts of any
corresponding projected cash deficiencies or
surpluses; and the amounts and due dates of all
projected calls for additional Joint Venture
Contributions for the forthcoming fiscal year
("Additional Joint Venture Contributions") is defined
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at Section 4.3(a).
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(c) Consideration of Proposed Plans. Each proposal to amend,
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supplement and/or modify a Business Plan and/or a budget
("Changes") will be considered for approval by the Parties at two
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(2) months prior to the beginning of the fiscal year to which it
pertains. The Board and each Party must approve all Changes.
(d) Continuation of Existing Business Plan. Until a Business Plan
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for a Project is approved by the Board and each Party, the Joint
Venture will manage a particular Project consistently with the
most recent Business Plan of said Project approved by the Parties
and the Board.
2.2. XXXXXXX DEL MAR MARINA (PDM) PROJECT
The Parties agree that the Joint Venture shall do such acts and
things, and to execute and deliver such documents, filings and
instruments, that are necessary and/or advisable to develop,
construct, market and sell the Xxxxxxx del Mar Marina (PDM) Project
according to a to be prepared Business Plan, to be prepared by the
Parties and approved by each Party and the Board, which Business Plan
shall include, but not be limited to, the following:
1. The Joint Venture shall apply to the Panamanian Government or any
other competent authority for the authorization and granting of
each and all of the necessary concessions, licenses,
authorizations, permits to develop, construct, build, operate and
manage the Xxxxxxx del Mar Marina (PDM) Project (the "Licenses").
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2. All Licenses shall be issued under LBHI name.
3. Upon receiving the Licenses, LBHI shall give notice to SDRI about
its intention to initiate the construction and operation of the
Xxxxxxx Del Mar Marina (PDM) Project giving SDRI a thirty (30)
day option to elect to participate in the Xxxxxxx del Mar Marina
(PDM) Project (hereinafter referred to as the "Marina Notice").
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4. If SDRI elects to participate in the development of this Project,
SDRI shall confirm such election in writing to LBHI. If such
election is not received by LBHI within thirty (30) calendar days
following SDRI's receipt of the Marina Notice, LBHI will be
authorized to develop the Xxxxxxx del Mar Marina (PDM) Project
through its own means or in association with a third party.
5. If SDRI elects to participate in the development of the Xxxxxxx
del Mar Marina (PDM) Project, then (i) SDRI shall secure and/or
provide all the necessary financing (which may at its option
include Project Financing(s)) according to terms mutually agreed
to by LBHI and SDRI, and bear any and all the Operating and Sales
Cost related to the development of said Project, and (ii) the
Parties shall negotiate and execute a Management and Operation
Agreement governing the operation of the Xxxxxxx del Mar Marina
(PDM) Project pursuant to which, among other items, LBHI and SDRI
shall share Profits and Losses on a 50/50 basis.
ARTICLE 3
TERM OF THE JOINT VENTURE
3.1. TERM OF THE JOINT VENTURE
This Joint Venture shall commence as of April 1st, 2007 (hereinafter
referred to as the "Execution Date") and shall continue until December
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31, 2012 (hereinafter referred to as the "Expiration Date") unless
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terminated earlier according to the provisions set forth in Section
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11.1 hereof or by operation of law. If, however, on the Expiration
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Date, any Project actually undertaken by the Joint Venture has not
been completed pursuant to the terms of this Agreement, the Parties
shall extend the Expiration Date for a reasonable period to complete
any such ongoing Projects.
ARTICLE 4
JOINT VENTURE CONTRIBUTIONS
4.1 INITIAL JOINT VENTURE CONTRIBUTIONS
4.1.1 XXXXXXX DEL MAR PHASE I PROJECT CONTRIBUTION
The Parties agree that with respect to the proposed Xxxxxxx del Mar
Phase I Project, each Party, upon the Board and each Party approving a
Business Plan for this Project, will contribute to the Joint Venture
the following Joint Venture Contributions:
1. LBHI will contribute a beachfront and bayfront real estate
property with an approximate 5 (five) acres located in Isla xx
Xxxxx, Panama. The dollar value of such property shall be the
FMV of the property. The meters, bounds, characteristics and
other specifications for this Project shall be as provided in the
Business Plan for this Project.
2. LBHI will contribute all information that it has to date (and/or
obtains in the future), such as drawings, master(s) plan(s),
environmental impact studies, boundary studies, topographical
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work, any core boring samples, data for geophysical work and any
other work, papers, documents and or information performed in
connection with or necessary for the development of Xxxxxxx del
Mar Phase I Project according to the specifications to be
mutually agreed by the Parties.
3. SDRI will contribute all architecture and design work,
construction management, marketing and sales plans, marketing,
sales and any other work, papers, documents and or information
performed or to be performed in connection with or necessary for
the development of this Project, as provided in a Business Plan.
4. SDRI will secure and/or obtain all the necessary funds to develop
this Project whether through itself or through a third party.
4.1.2 XXXXXXX DEL MAR MARINA (PDM) CONTRIBUTION
The Parties agree that with respect to Xxxxxxx del Mar Marina (PDM)
Project each party upon approval by the Board and each Party of a
Business Plan for the Project, will contribute to the Joint Venture
the following Joint Venture Contributions:
1. LBHI will contribute all the Licenses under LBHI name, for the
operation and management of the Xxxxxxx del Mar Marina (PDM)
Project.
2. LBHI will contribute all information that it has to date (and/or
obtains in the future) such as drawings, master(s) plan(s),
environmental impact studies, boundary studies, any core boring
samples, data for geophysical work and any other work, papers,
documents and or information performed in connection with or
necessary for the development of the Xxxxxxx del Mar Marina (PDM)
Project in accordance with the Business Plan for this Project.
3. SDRI will contribute all architecture and design work,
construction management, marketing and sales plans, marketing,
sales and any other work, papers, documents and or information
performed or to be performed in connection with or necessary for
the development of the Xxxxxxx del Mar Marina (PDM) Project
according to specifications to be provided in the Business Plan
to be prepared for this Project.
4. SDRI will secure and or obtain all funds and aids whether through
itself or through a third party.
5. Profits and losses shall be split 50/50 by SDRI and LBHI.
4.1.3 XXXXXXX DEL MAR PHASE II PROJECT CONTRIBUTION
The Parties agree that with respect to Xxxxxxx del Mar Phase II
Project, upon approval of a Business Plan for such Project by the
Board and the Parties, the Parties will contribute to the Joint
Venture the following Joint Venture Contributions:
1. LBHI will contribute a piece of land with an approximate 5 (five)
acres surface, located at Isla xx Xxxxx, Panama. The dollar
value of such land shall be the FMV. The meters, bounds,
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characteristics and other specifications of the Xxxxxxx del Mar
Phase II Project shall be as provided in a Business Plan prepared
for this Project.
2. LBHI will contribute all information that it has to date (and/or
that it acquires in the future), such as drawings, master(s)
plan(s), environmental impact studies, boundary studies, any core
boring samples, data for geophysical work and any other work,
papers, documents and or information performed in connection with
or necessary for the development of the Xxxxxxx del Mar Phase II
Project according to the specifications set forth in a Business
Plan for this Project.
3. SDRI will contribute all architecture and design work,
construction management, marketing and sales plans, marketing,
sales and any other work, papers, documents and or information
performed or to be performed in connection with or necessary for
the development of the Xxxxxxx del Mar Phase II Project according
to the to be prepared specifications in the to be prepared
Business Plan for this Project.
4. SDRI will secure and or obtain all the necessary financial funds
and aids whether through itself or through a third party.
4.1.4. ISLA DIAMANTE CONTRIBUTION
The Parties agree that with respect to Isla Diamante Project each
Party, upon the Board and each Party approving a Business Plan for
this Project, will contribute to the Joint Venture the following Joint
Venture Contributions:
1. LBHI will contribute an island with approximately five (5) acres,
located at Archipelagos Boca del Toro, Panama. The dollar value
of such property shall be the FMV. The meters, bounds,
characteristics and other specifications for the Isla Diamante
Project shall be as provided in a to be prepared Business Plan
for this Project.
2. LBHI will contribute all information that it has to date (or
obtains in the future), such as drawings, master(s) plan(s),
environmental impact studies, boundary studies, topographical
work, any core boring samples, data for geophysical work and any
other work, papers, documents and or information performed in
connection with or necessary for the development of Isla Diamante
Project according to the specifications set forth in a to be
prepared Business Plan for this Project.
3. SDRI will contribute all architecture and design work,
construction management, marketing and sales plans, marketing,
sales and any other work, papers, documents and or information
performed or to be performed in connection with or necessary for
the development of Isla Diamante Project according to the
specifications set forth in a to be prepared Business Plan for
this Project.
4. SDRI will secure and or obtain all the necessary financial funds
and aids whether personally or through a third party.
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4.1.5 PLAYA XXXXXXXX XXXXX 0 PROJECT CONTRIBUTION
The Parties agree that with respect to the Playa Xxxxxxxx Xxxxx 0
Project each party upon the Board approving a Business Plan for such
Project will contribute to the Joint Venture the following Joint
Venture Contributions:
1. LBHI will contribute a beachfront and lakefront real estate
property with an approximate 50 (fifty) acres located in
Archipelago of Bocas del Toro, Panama, the dollar value of which
shall be the FMV. The meters, bounds, characteristics and other
specifications for the Playa Xxxxxxxx Xxxxx 0 Project shall be as
provided in a to be prepared Business Plan for this Project.
2. LBHI will contribute all information that it has to date (or
obtains in the future) such as drawings, master(s) plan(s),
environmental impact studies, boundary studies, topographical
work, any core boring samples, data for geophysical work and any
other work, papers, documents and or information performed in
connection with or necessary for the development of Playa
Xxxxxxxx Xxxxx 0 Project as provided in a to be prepared Business
Plan for this Project.
3. SDRI will contribute all architecture and design work,
construction management, marketing and sales plans, marketing,
sales and any other work, papers, documents and or information
performed or to be performed in connection with or necessary for
the development of Playa Xxxxxxxx Xxxxx 0 Project according to
the specifications provided in a to be prepared Business Plan for
this Project.
4. SDRI will secure and or obtain all the necessary financial funds
and aids whether personally or through a third party Project
Financing.
4.2. PROJECT FINANCING
As additional funds are required by the Joint Venture to carry out the
Business Activities for each of the Projects pursuant to the terms and
conditions of the Business Plans be prepared by the Parties and this
Agreement for each Project, SDRI will obtain all necessary Project
Financing from one or more third parties (hereinafter referred to as
the "Project(s) Financing"). Any and all Project(s) Financing shall
--------------------
require prior approval of the Board.
4.3. ADDITIONAL JOINT VENTURE CONTRIBUTIONS AND LOANS
(a) Additional Joint Venture Contributions.- Each of the
Parties will make any additional Joint Venture
Contributions (hereinafter referred to as "Additional Joint
----------------
Venture Contribution") or loans (hereinafter referred to as
--------------------
"Loans") to the Joint Venture in accordance with its
-----
respective Percentage Interest but only in the amounts and
at the times set forth in the respective Business Plan as
amended from time to time for a particular Project, as
provided and in accordance with this Agreement. Except to
the extent set forth in the respective Business Plan as
amended from time to time, none of the Parties will be
required to contribute capital or make any Loans to the
Joint Venture.
13
(b) Additional Joint Venture Contributions Calls.- All
--------------------------------------------
requirements or requests for Additional Joint Venture
Contributions or Loans will be determined by the Board and
will: (i) be in writing delivered to each of the Parties,
(ii) provide the additional amount of Joint Venture
Contributions needed by the Joint Venture; and (iii) the
date on which the Additional Joint Venture Contribution or
Loan is to be made, which will not be sooner than forty-
five (45) business days following the Parties receipt of
the Additional Joint Venture Contribution request.
Each of the Parties shall be bound and bear all the
expenses, Liabilities and obligations for any deficit in
its Capital Account.
(c) No Withdrawal of Interests or Contributions.- Except as
-------------------------------------------
expressly provided herein and/or pursuant to written
consent of the Board, no part of the Initial Joint Venture
Contributions, Joint Venture Contributions and/or
Additional Joint Venture Contributions (collectively, the
"JV Contributions") shall be withdrawn and/or distributed
----------------
and neither Party shall be entitled to receive and/or
accrue interest on any JV Contributions or on its Capital
Account.
(d) Loans.- Except with prior written consent of the Board or
-----
as provided in a Business Plan, neither Party shall loan or
advance any money to the Joint Venture and/or a Project.
Any Loan by a Party to the Joint Venture shall be
separately recorded in the Joint Venture books as a Loan to
the Joint Venture and will be evidenced by a promissory
note bearing interest at a fluctuating rate equal to two
(2) percentage points over Prime Rate (the "Default Rate")
------------
on any accrued but unpaid interest and principal not paid
when due. Such Loans will (a) be for such term and subject
to such security, if any, as determined by the Board, (b)
if necessary to secure financing for the Joint Venture, be
subordinated to any other indebtedness of the Joint Venture
or a portion thereof, (c) become due and payable in the
event the Joint Venture is terminated, and (d) rank pari
passu with any and all other Loans made by a Party.
(e) Additional Joint Venture Contributions Requirements
---------------------------------------------------
Default.- If a Party (hereinafter referred to as the
-------
"Defaulting Party") fails to timely make a required
----------------
Additional Joint Venture Contribution or make a required
Loan within ten (10) business days after such JV
Contribution or Loan is required, as provided herein, the
other Party (hereinafter referred to as the "Non-Defaulting
--------------
Party") may exercise one or more of the following remedies
-----
(but not any other):
(i) File a proceeding to compel the Defaulting Party to
contribute the Additional Joint Venture Contribution
or Loan;
(ii) Loan to the Joint Venture on behalf of the Defaulting
Party the amount of the Additional Joint Venture
Contribution or Loan due from the Defaulting Party
("Default Loan"), in which case the Defaulting Party
------------
(i) will be liable to the Non-Defaulting Party for the
amount of such advance, plus all expenses incurred by
the Non-Defaulting Party and the Joint Venture in
connection with such advance, including reasonable
attorneys' fees, and interest at the Default Rate, and
(ii) any distributions otherwise due from the Joint
Venture to the Defaulting Party will be applied first
14
to repayment of any Default Loans outstanding;
(iii) Borrow on behalf of the Joint Venture from a lender
other than the Non-Defaulting Party the amount of the
Additional Joint Venture Contribution or Loan due from
the Defaulting Party on such terms as the Non-
Defaulting Party, in its sole discretion, may be able
to obtain, in which case, the Defaulting Party will be
liable to the Joint Venture for the principal amount
of, and interest on, such borrowing, plus all expenses
reasonably incurred by the Joint Venture in connection
with such borrowing, including reasonable attorneys'
fees, and any distributions otherwise due from the
Joint Venture to the Defaulting Party may be set off
against, and applied secondly to the payment of, such
liability;
(iv) Refuse to make any Additional Joint Venture
Contributions or Loans to the Joint Venture without
being in default of any provision of this Agreement;
or
(v) Exercise its rights under Section 11.4.
------------
Unless and until a Project is expressly elected by the Parties to be
developed by the Joint Venture, no Party shall have any obligation to
take any actions for and/or on behalf of the Joint Venture and/or to
make JV Contributions, Loans and/or advances to the Joint Venture.
4.4.1. RIGHT OF CREDITORS
No creditor who makes a Loan to the Joint Venture shall have or
acquire at any time, as a result of making such Loan, any direct or
indirect interest in its Profits, Cash Flow, capital or property of
the Joint Venture other than as a creditor.
4.5. RETURN OF JV CONTRIBUTIONS
Except as may otherwise be provided herein or in a Business Plan for a
particular Project, all the JV Contributions for a Project pursuant to
this Agreement shall be repaid by the Joint Venture to the
contributing Party as set forth below and/or in any Business Plan
approved by the Parties and the Board for a particular Project.
(a) Xxxxxxx del Mar Phase I Project Return Contribution.
---------------------------------------------------
1. Until the FMV of the property contributed by LBHI for this
Project is paid in full by the Joint Venture to LBHI, LBHI
shall receive (i) on a quarterly basis Advances on
Distributable Cash Flow as the buildings progress regarding
Xxxxxxx del Mar Phase I Project properties sales. For such
purpose every time a condominium building has a completed
construction and the Joint Venture is selling and closing on
the units of said condominium and since the accounting
treatment of said condominium construction is WIP, then the
Joint Venture will be able to identify the Profits on a
particular unit of said condominium and distribute (i) fifty
(50%) percent of those profits to LBHI withholding ten (10%)
per cent until the building of said Xxxxxxx del Mar Phase I
Project is completed according to this Agreement and then the
15
ten (10%) percent withholding amount shall be immediately
repaid; and (ii) fifty (50%) percent of all Project Financing
obtained by the Joint Venture for this Project, provided such
Project Financing is for no less than $20 million.
(b) Isla Diamante Project Return Contribution.
-----------------------------------------
1. Until the FMV of the property contributed by LBHI for this
Project is paid in full by the Joint Venture to LBHI, LBHI
will receive on a quarterly basis (i) fifty (50%) percent of
all cash payments for Isla Diamante Project properties sales;
and (ii) fifty (50%) percent of all Project Financing
obtained by the Joint Venture for this Project, provided such
Project Financing is for no less than $20 million.
1. (c) Playa Xxxxxxxx Xxxxx 0 Project Return Contribution.
--------------------------------------------------
Until the FMV of the property contributed by LBHI to the
Joint Venture for this Project is paid in full by the Joint
Venture to LBHI, LBHI will receive (i) on a quarterly basis
Advances on Distributable Cash Flow as the buildings progress
regarding Playa Xxxxxxxx Xxxxx 0 Project properties sale. For
such purpose every time a condominium building has a
completed construction and the Joint Venture is selling and
closing on the units of said condominium and since the
accounting treatment of said condominium construction is a
work in process ("WIP"), then the Joint Venture will be able
---
to identify the Profits on a particular unit of said
condominium and distribute 50% (fifty per cent) of those
Profits to LBHI withholding 10% (ten per cent) until the
building of said Playa Xxxxxxxx Xxxxx 0 Project is completed
according to this Agreement, and then shall immediately repay
such withheld ten (10%) percent, and (ii) fifty (50%) percent
of all Project Financing obtained by the Joint Venture for
this Project, provided such Project Financing is for no less
than $10 million.
LBHI shall have the right to receive the FMV of any other
property it contributes to the Joint Venture on the terms set
forth in any amendment hereto, in any separate documents approved
by the Parties and the Board and/or in any Business Plan for a
Project relating to the contributed property if approved by the
Parties and the Board.
LBHI shall have the right to sell any portion or a lot on Playa
Xxxxxxxx Xxxxx 0 Project and receiveall of the sale proceeds
therefrom (less selling commissions and related costs and
expenses, if any) until construction begins on such Project.
ARTICLE 5
CERTAIN RIGHTS AND OBLIGATIONS OF PARTIES
5.4 PARTIES RIGHT AND OBLIGATIONS
5.4.1 RIGHTS AND OBLIGATIONS OF LBHI. Except as otherwise
provided in this Agreement or in an applicable Business Plan, for
each Project the Parties elect to develop pursuant to this
Agreement, LBHI shall, as applicable:
16
a. Contribute all JV Contributions as applicable for each Project
pursuant to the terms and conditions of this Agreement,
b. Contribute the Licenses.
c. Comply with all the obligations set forth in this Agreement.
d. Receive and collect all Profits, return of contributions, capital
distributions, contributions, allocations, Loans and any other
accounts receivable according to the terms and conditions of this
Agreement.
e. Have the right to enjoy any and all of the rights provided in this
Agreement, including but no limited to the option set forth in
Section 10.1 hereof.
------------
5.4.2. RIGHTS AND OBLIGATIONS OF SDRI. Except otherwise is
provided in this Agreement or in an applicable Business Plan,
SDRI shall, for each Project the Parties elect to develop
pursuant to this Agreement, LBHI, as applicable:
a. Contribute all JV Contributions as applicable for each of the
Project pursuant to the terms and conditions of this Agreement
and/or a Business Plan.
b. Manage any and pay for all legal proceeding filings fees, costs,
expenses and any amount related or derived thereto, and all legal
actions or claims associated with or related to any of Projects,
whether or not the Project at such time is actually being
developed by the Joint Venture or the Joint Venture is
contemplating developing the Project.
c. SDRI shall pay to LBHI, as a result of LBHI acquiring the
following properties and allowing SDRI to defer the expenses and
costs related to said acquisitions: (i) for the property
covering the proposed Playa Xxxxxxxx Xxxxx 0 Project, US
$150,000, and (ii) for the property covering the proposed Xxxxxxx
del Mar Phase I Project, US $100,000 Such amounts shall be due
and payable upon execution of this Agreement and will be paid
upon the closing of the Minimum Offering Amount (as defined in
the PPM).
d. Once SDRI begin actively marketing and promoting the Xxxxxxx del
Mar Phase II Project, SDRI shall pay to LBHI US $150,000.00.
e. To provide all architecture and design work, financing or arrange
financing, construction management, marketing and sales plans,
marketing, sales and any other work, papers, documents and or
information performed or to be performed in connection with or
necessary for the development of the Projects according to each
Project's specifications, as provided in a to be prepared
Business Plan for such Project.
f. Comply with all the obligations set forth in this Agreement.
g. Manage, administrate and supervise directly all development,
according to the terms and conditions of the applicable Business
plan for each Project the Joint Venture develops and this
Agreement, and supervise all the sub-contractors services and
work for each such Project.
17
h. Receive and collect all Joint Venture profits, capital
distributions, contributions, allocations, Loans and any other
accounts receivable according to the terms and conditions of this
Agreement and any applicable Business Plan.
i. In the event the Board determines that additional JV
Contributions, Loans and or third party financing are not
required for the continued development of a particular Project,
then SDRI shall be reimbursed for all JV Contributions made by it
for such Project, provided LBHI has been paid the FMV by the
Joint Venture for its corresponding property contribution to the
Joint Venture for such particular Project.
ARTICLE 6
JOINT VENTURE MANAGEMENT
6.1. BOARD OF DIRECTORS
Except as otherwise provided herein, all decisions relating to the
management of the Joint Venture shall be made by the Joint Venture's
Board of Directors (the "Board"). The Board shall be comprised of at
-----
least three (3) members, of which LBHI shall appoint one (1) member
and SDRI shall appoint one (1) member, and the LBHI and SDRI
designees shall mutually agree and appoint a third memberto the Board.
Including the appointment of the third member of the Board, all
appointments will be in writing, a copy of which will be given to each
Party.
Except otherwise is provided by the Board, the President of the Board
shall preside the chair for 1 (one) year.
6.2. BOARD GENERAL PROVISIONS
The Board shall observe and comply with the following general
provisions:
1. The Board shall meet at least once every three (3) months or
at any other time if necessary.
2. The meetings of the Board, for any purpose or purposes, may
be called only by the President of the Board, prior written
notice served personally to the members of the Board.
3. Meetings of the Board will be preside by the President of
the Board and conducted in the English language and minutes
of such meetings will be prepared in writing by the
Secretary of the Board in English and distributed to each
member promptly following each meeting.
4. Meetings of the Board will be held in the Territory or
abroad, provided that all the expenses related to the
attendance of the members of the Board to the meeting will
be borne by the Joint Venture. In case any member bear with
the expenses derived or in connection with its attendance to
any Board meeting the Joint Venture will reimburse said
reasonable expenses to the member.
18
5. The Board may designate any place, either within or outside
the Territory, as the place of meeting of the Board. If no
designation is made, the place of meeting will be the
principal place of business of the Joint Venture in the
Territory.
6. Proposals or reports brought before any Board meetings for
information or action (including, without limitation, the
Joint Venture quarterly and annual financial statements)
will be prepared in English and in US Dollars.
7. Except for the Super Majority resolutions, a majority of the
Board will constitute a quorum at meetings of the Board. If
a quorum is present, the affirmative vote of a majority of
the members voting will constitute the act of the Board.
Any member may participate in a meeting by means of
conference telephone or similar communications equipment by
means of which all persons participating in the meeting can
hear each other and participation in the meeting by means of
such equipment will constitute presence in person at such
meeting. Action may be taken without a meeting if the
action is evidenced by one or more written consents signed
by all the members of the Board.
8. There shall not be any kind of casting vote, provided that
each member of the Board shall have one vote in each Board
meeting.
9. The Board may adopt, without prior call or summon to hold a
Board meeting, resolutions, if said resolutions are taken
unanimously by all of the members of the Board.
10. The Board shall act at all times under the terms and
conditions of this Agreement.
11. All decisions with respect to the management and control
of the Joint Venture shall be binding on the Parties and its
Affiliates; and
12. Neither Party shall have any authority to act for or on
behalf of the Joint Venture or to make any decision
pertaining to the Joint Venture Business Activities without
the prior written consent of the Board, including, without
limitation, the authority to bind the Joint Venture in the
making of contracts or the incurring of obligations in the
name or on the Project Financing of the Joint Venture.
13. Any vacancy occurring for any reason, including but not
limited to, death, removal, resignation or any other cause,
in the Board may be filled by any other member appointed by
the Board.
6.3. BOARD MANAGEMENT AND CONTROL POWERS.
Except as otherwise expressly provided for in this Agreement, the
complete and exclusive management and control of the Joint Venture
shall be vested solely in Board which shall have all of the rights and
powers which are generally conferred by law or are necessary,
advisable or convenient for the management and conduct of the Joint
Venture and the Business Activities. The Board shall have the complete
and exclusive power and authority:
19
(I) To cause the Joint Venture to sell, exchange, dispose of, hold
for sale, or consignment or otherwise, purchase, lease,
sublease, operate, deal in and manage any Joint Venture
property,
(II) To authorize any officer or officers of the Joint Venture to
execute and deliver any deeds, bills of sale, assignments or
other instruments of conveyance of Joint Venture property, and
to cause the Joint Venture to enter into and perform
agreements with others with respect to any such transactions
or in connection with any Project, which agreements may be
with Affiliates of the Parties on an arm's length bases and
may contain such terms, provisions and conditions as the Board
in its sole and absolute discretion approved;
(III) To cause the Joint Venture to spend its capital, capital
gains, Profits and incomes in the execution of the Business
Activities in connection with the execution of any Project;
(IV) To cause the Joint Venture to borrow monies or otherwise incur
indebtedness and to encumber its properties as security
therefore;
(V) To cause the Joint Venture to purchase from third parties or
Affiliates under an arm's length relation, at the expense of
the Joint Venture, contracts of liability, casualty and other
insurance which the Board deems advisable, appropriate or
convenient for the protection of the Joint Venture properties
or affairs or for any other purpose convenient or beneficial
to the Joint Venture;
(VI) To determine from time to time those persons who shall have
the authority to sign or endorse, as the case may be, all
checks, drafts, or other orders for payment of money, notes,
or other evidences of indebtedness, issued in the name of or
payable to the Joint Venture;
(VII) To hire, promote and terminate from time to time in its sole
discretion independent accountants, agents and other advisors
as the Board deems advisable for the proper operation of the
Joint Venture Business Activities;
(VIII) To cause the Joint Venture to do any and all acts and
conduct all proceedings and execute all rights and privileges,
contracts and agreements of any kind whatsoever, although not
specifically mentioned in this Agreement, that the Board deems
necessary or appropriate to conduct the Joint Venture or to
carry out the Business Activities.
6.4. OFFICERS OF THE JOINT VENTURE.
I. Officers. The officers of the Joint Venture shall be a Chief
--------
Executive Officer, a Secretary, and a Chief Financial Officer,
each of whom shall hold office for such period, have the
authority and perform the duties as are provided and resolved
by the Board from time to time determine. Any number of
offices may be held by the same individual.
20
II. Election of Officers. The officers of the Joint Venture shall
--------------------
be chosen by the Board and each shall serve according to the
Board instructions, subject to the rights and obligations, if
any, of an officer under any contract of employment.
III. Removal and Resignation. Without prejudice to his rights, if
-----------------------
any, under any contract of employment, any officer may be
removed, either with or without cause, by the Board, provided
that the Board shall give prompt notice to the officer
removed. Any officer may resign at any time by given written
notice to the Board. Any resignation shall take effect at the
date of the receipt of notice or at any later time specified
in the notice, and, unless otherwise specified in such notice,
the acceptance of the resignation shall not be necessary to
make it effective. Any such resignation shall be without
prejudice to the rights, if any, of the Joint Venture under
any contract to which the officer is a party.
IV. Vacancies. A vacancy in any office due to death, resignation,
---------
removal, disqualification or any other reason shall be filled
by the officer appointed by the Board.
V. President. The President of the Board shall serve as the
---------
Chief Executive Officer ("CEO") of the Joint Venture, and
---
shall be responsible for the general supervision, direction
and control of the day-to-day business of the Joint Venture.
The President shall have the general powers and duties of
management vested and prescribed by the Board from time to
time. Until changed by resolution of the Board the Parties
agree that the President shall be XXXXX X. XXXX
VI. Secretary. The Secretary of the Joint Venture shall keep or
---------
cause to be kept, at the principal place of business of the
Joint Venture and at such other place(s) as the Board may
direct, a copy of this Agreement and a book of minutes of all
meetings of the Board, with the time and place of holding,
whether regular or special, and, if special, how authorized,
the notice given, the names of those present at such meetings
and the proceedings thereof. The Secretary shall have the
general powers and duties vested and prescribed by the Board
from time to time.
VII. Chief Executive Officer ("CEO"). The CEO of the Joint Venture
-------------------------------
shall have all of the general powers and duties vested and
prescribed by the Board from time to time.
Subject to the power and authority of the Board to revoke or
modify the following or to direct the actions of the CEO, the
CEO will have responsibility and authority for:
a. Operating and managing the day-to-day business and affairs
of the Joint Venture, and keeping the Board advised
thereon, in a manner consistent with the respective
Business Plan and the current budgets;
b. Proposing revisions to the respective Business Plan or
budget for submission on a timely basis to the Board for
approval;
c. Implementing the respective Business Plan and budget as
approved by the Board;
21
d. Making any non-material changes to or taking actions that
would constitute a non-material deviation from the
respective Business Plan or budget;
e. Authorizing the Joint Venture to enter into contracts
according to the Board resolution;
f. Subject to obtaining previous required approval from the
Board, execute bonds, mortgages or other contracts,
agreements or instruments on behalf of the Joint Venture;
g. Keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the
properties and business transactions of the Joint Venture,
h. Send or cause to be sent to the Board and the Parties
quarterly financial statements;
i. Inform and report to the Board an account of all of his
transactions as the Joint Venture CEO and of the financial
condition of the Joint Venture.
VIII. Compensation. Except as otherwise expressly set forth in this
------------
Agreement, the Officers will receive the compensation for
their services according to the Board resolution.
6.5. SUPER MAJORITY
In order for any member of the Board, Party, director, officer,
manager or other Person to cause the Joint Venture to undertake, or to
cause any Person thereof to undertake, any of the matters listed below
(the "Super-Majority Resolutions"), the prior approval of two (2) of
--------------------------
the three (3) members of the Board of the Joint Venture, shall be
required to:
I. any agreement or transaction with a Party, member of the Board
or an Affiliate
II. the admission of additional parties of the Joint Venture and
the Board;
III. the approval of any new Business Plan with respect to any of
the Projects ("Business Plan" is defined in Section 2.2) or
------------- -----------
material modification of an existing Business Plan (for this
purpose, any change by 20% (twenty per cent) or more of any
line item in the budget that is included in the Business Plan
or any change in the Projects) and any Additional Joint
Venture Contribution will be considered material);
IV. merger or combination of the Joint Venture with or into
another joint venture, Person or entity;
V. sale or other disposition of all or substantially all of the
Joint Venture assets or Joint Venture Contribution;
VI. any material change in the Business Activities, respective
Business Plans, Xxxxxxx xxx Xxx Xxxxx 0 Project and any other
Projects;
VII. any material change in accounting or tax policies of the Joint
Venture;
22
VIII. conversion of the Joint Venture to another form of legal
entity;
IX. entering into or amending the terms of any transaction or
series of transactions between the Joint Venture and any
Party, or Affiliate;
X. amending the terms and conditions of this Agreement;
XI. any change in the Joint Venture auditors; provided however,
that the new auditors shall be an independent international
recognized accounting firm;
XII. the Joint Venture incurring indebtedness for borrowed money in
excess of US$30,000,000.00 (Thirty million dollars);
XIII. entering into any contract, agreement, or series of related
contracts, or agreements obligating the Joint Venture in
excess US$3,000,000.00 (Three million dollars);
XIV. the acquisition or disposition of any interest in any other
business or the participation in any increase or reduction of
the Joint Venture capital of any other business that is within
the budget and consistent with the respective and applicable
Business Plan;
XV. the purchase of real estate or other fixed assets or the sale
and disposition of real estate or other fixed assets at a
price of or valued at more than US$1,000,000.00 (One million
dollars);
XVI. the lending or advancing of any monies, including the
guaranteeing or indemnifying of any indebtedness, liability or
obligation of any person other than the granting of trade
credit and other than in the ordinary course of business as
established in the current budget;
XVII. the creation or permission to subsist or the assumption of any
encumbrance upon the whole or any part of the properties or
assets where the aggregate value of such encumbered assets
exceeds 10% (ten per cent) of the aggregate value of the Joint
Venture total assets; provided, however, that the renewal of
existing encumbrances is not included in this limitation;
XVIII. the granting of any domain faculties to the Joint Venture
officers, directors, managers, members of the Board or any
other Person;
XIX. the removal, revocation, designation or appointment of any
Joint Venture officer, directors, manager and members of the
Board; and
XX. The admittance of any new investors to the Joint Venture or to
a Project.
23
ARTICLE 7
BOOKS, RECORDS, ACCOUNTS AND REPORTS
7.1. BOOKS AND RECORDS
The Joint Venture books and records, together with all of the
documents and papers pertaining to or derived the Joint Venture
Business Activities, respective Business Plan and schedules shall be
kept at the principal place of business of the Joint Venture in the
Territory, and at all reasonable times shall be open to the inspection
of, and may be copied and excerpts taken there from by, either Party
or its duly authorized representative, provided that such inspection
is made in good faith. The minutes of proceedings of the Parties
shall be kept in written form and accounting books and records shall
be kept either in written form or in any other form capable of being
converted into written form. The books and records of the Joint
Venture management shall be kept on a fiscal year basis in accordance
with Generally Accepted Accounting Principles of the United States
(hereinafter referred as "GAAP") and shall reflect all Joint Venture
----
transactions and be appropriate and adequate for the Joint Venture
Business Activities.
7.2. ANNUAL REPORT PREPARED BY AUDITORS
On or before March 10th of each year, the Board and CEO shall cause to
be prepared by the Joint Venture's independent accountants and
delivered to each of the Parties at the expense of the Joint Venture
an annual report of the Joint Venture relating to the preceding fiscal
year, containing a balance sheet and profit and loss and cash flow
statements (which shall be accompanied by a report of such independent
accountants).
7.3. UNAUDITED MONTHLY REPORTS PREPARED BY JOINT VENTURE
The Joint Venture shall prepare on a monthly basis in accordance with
GAAP, an unaudited balance sheet and unaudited profit and loss and
Cash Flow statements for and as of the month and for the fiscal year
to date (which shall be certified by the President of the Board and
the Chief Financial Officer of the Joint Venture as being true and
correct to the best of their knowledge and belief), and shall furnish
the same to each of the Parties within ten (10) days following the
last day of the applicable month.
7.4. UNAUDITED QUARTERLY REPORT PREPARED BY JOINT VENTURE
The Joint Venture shall prepare on quarterly basis in accordance with
GAAP an unaudited balance sheet and unaudited profit and loss and Cash
Flow statements for and as of the period ending March 31st, June 30th
and September 30th (which shall be certified by the President of the
Board and the Chief Financial Officer of the Joint Venture as being
true and correct to the best of their knowledge and belief), and shall
furnish the same no later than fifteen (15) days after the last day of
the applicable quarter.
7.5. TAX RETURNS
On or before April 1st of each year, the Board and the CEO shall cause
federal, state and provincial tax returns to be prepared and file
before the proper authorities. A copy of said tax returns shall be
delivered to the each of the Parties at the expense of the Joint
Venture.
24
7.6. FISCAL YEAR
The first fiscal year of the Joint Venture shall begin on the date of
formation of the Joint Venture and shall end on December 31st of the
same year. Subsequent fiscal years shall begin on January 1 and end
on December 31st.
7.7. BANK ACCOUNTS
All funds belonging to the Joint Venture shall be deposited in the
name of the Joint Venture in such bank account or accounts as shall be
determined by the Parties. All withdrawals there from shall be made
upon cheques and/or wire transfers signed and/or authorized on behalf
of the Joint Venture by at least two (2) Persons authorized to sign
cheques on behalf of the Joint Venture.
7.8 ACCOUNTING
The LBHI and SDRI shall appoint a mutually agreed upon, independent
accountant to provide all accounting functions for the Joint Venture,
provided that SDRI will be responsible for all related costs and
expenses for such account until December 2008.
ARTICLE 8
SERVICES AGREEMENTS AND FEES
8.1. All Services Agreements executed by the Joint Venture shall be
subject to, among other terms and conditions, approved by the Board,
the following:
a. All services rendered to the Joint Venture for any Project
shall be evidenced through an executed Services Agreement
negotiated on an arm's length basis and approved by the Board.
b. All fees and or considerations paid in connection of the
execution of the Services Agreement are subject to Board
approval.
c. All fees are to be paid from the Cash Flow.
d. Each party to a Services Agreement enter into and executed by
the Joint Venture shall bear according to the applicable laws
and this Agreement their own expenses, costs and taxes derived
from the services rendered (including reasonable attorneys
fees).
e. Except as otherwise provided herein or in a Services
Agreement, the provider of services shall obtain at its own
cost and expenses all the necessary authorizations, permits
and licences required for the services being rendered to the
Joint Venture.
25
ARTICLE 9
ALLOCATIONS, DISTRIBUTIONS, ELECTIONS AND REPORTS
9.1 ALLOCATIONS OF PROFITS AND LOSSES AND DISTRIBUTION
(a) Allocations. Prior to the return (i) to LBHI of the FMV of
-----------
each property contributed to the Joint Venture by LBHI for
a Project, pursuant to the terms of this Agreement, and
(ii) to SDRI of its JV Contributions and except as may be
otherwise provided herein, Profits and Losses for a Project
may be allocated, but not distributed, as follows:
(i) Profits will be allocated:
a. First to each of the Parties in an amount equal to
prior allocations of Losses in the reverse order such
Loss allocations were made;
b. Then, to each of the Parties in accordance with their
respective Percentage Interests in the Joint Venture.
(ii) Losses will be allocated:
a. First, to each of the Parties in an amount equal to
prior allocations of Profits in the reverse order such
Profit allocations were made; and
b. Then, to each of the Parties pro rata in accordance
with their respective Percentage Interests.
Except as provided elsewhere in this Agreement, the Board may
reallocate losses or other items included in Profits or Losses
among the Parties so as to cause the Parties respective separate
capital accounts to have balances (or as close thereto as
possible) they would have if the Profits or Losses and all other
items of income, gain, deduction or loss were allocated in
accordance with the intended economic arrangements among Parties.
(b) Distributions. After (i) the FMV of a particular property
-------------
contributed to the Joint Venture by LBHI is paid in full by the Joint
Venture to LBHI, and (ii) then all JV Contributions made to the Joint
Venture by SDRI for such particular property are paid in full, the
Joint Venture shall then be entitled to make distributions relating
such property to the Parties pursuant to and in accordance with this
Section 9.1(b).
--------------
(i) "Available Net Cash" means all cash available to the
------------------
Joint Venture from its Business Activities,
activities, decisions and transactions which do not
require the prior approval of the Board in accordance
with Section 6.5 (hereinafter referred to as the
-----------
"Ordinary Course of Business") remaining after payment
---------------------------
of current expenses, Liabilities, debts or obligations
of the Joint Venture (other than principal or interest
on Loans) and after any appropriate reserves for:
26
(A) Known contingent or unforeseen obligations, debts
or Liabilities of the Joint Venture, as the Board
deems reasonably necessary;
(B) amounts required by any contracts with third
parties including but not limited to agreements
with Parties or its Affiliates (hereinafter
referred to as the "Contracts of the Joint
----------------------
Venture"); and
-------
(C) such other purposes as decided upon by the Board.
(ii) Available Net Cash Distribution. Except may otherwise
be provided herein, Available Net Cash of the Joint
Venture shall be distributed among and to the Parties
in accordance with the following order of priority:
(A) First, to those Parties with adjusted Joint
Venture Contributions, among them in proportion
to the ratio of their Adjusted Joint Venture
Contributions, until all of their Adjusted Joint
Venture Contributions have been reduced to zero;
and
(B) Thereafter, the balance, if any, to each of the
Parties in accordance with their respective
Percentage Interests.
(iii) Time and Amount of Cash Distributions. As of the
close of each fiscal quarter and each fiscal year of
the Joint Venture, and at any other time the Parties
deem appropriate, the distributable Available Net Cash
shall be calculated and, if the Parties deems the same
to be appropriate, all or any portion thereof shall be
distributed to the Parties, prior written resolution
of the Board and unless:
(A) All Liabilities of the Joint Venture have been
paid or after such distribution there will remain
Joint Venture property with a fair value
sufficient to pay such Liabilities. For these
purposes the fair value of the Joint Venture
property that is subject to a liability as to
which recourse of creditors is limited shall be
included in Joint Venture property only to the
extent that the fair value of such Joint Venture
property exceeds such Liability;
(B) The Board determine that such Available Net Cash
distribution may be made without materially
affecting the ability and financial capacity of
the Joint Venture to pay its obligations
(including contingent liabilities) as they fall
due; and
(C) Such Available Net Cash Distribution may be made
in accordance with applicable law.
(iv) Other Distributions. The Board, in its sole
discretion, may make additional annual distributions
of Available Net Cash to the Parties following the
27
close of each fiscal year. To the extent distributed,
such distributions will be made as follows:
(A) First, to repay Loans as follows:
(1) If the written terms of Parties Loans state
the order of priority of payment of
principal and interest, then those priority
rules will apply.
(2) Otherwise, the Joint Venture: first will
pay interest due on the Parties Loans, on a
proportionate basis without preference, in
accordance with the total amount of
interest outstanding on all Parties Loans;
and then will pay the principal due on the
Party Loans, on a proportionate basis
without preference, in accordance with the
total amount of principal outstanding on
all Parties Loans.]
(3) Advance Distributions. Board may also make
advance distributions during each fiscal
year, which distributions will be made in
accordance with the aforesaid priorities and
will satisfy in whole or in part such
priorities.
ARTICLE 10
LBHI PURCHASE OPTION
The Parties agree that during the term of this Agreement or any of the
extensions thereto, LBHI will have an exclusive and irrevocable option
(hereinafter referred to as the "LBHI Purchase Option") to acquire in
--------------------
each Project developed by the Joint Venture pursuant hereto, up to six
(6) units offered for sale to the public by the Joint Venture in such
Project (whether such units are condominiums, landlots, villas or
houses).The price for each such unit will be construction cost plus
fifteen (15%) percent.
ARTICLE 11
DISSOLUTION AND TERMINATION
11.1 TERMINATION IN THE ABSENCE OF DEFAULT
(a) The Joint Venture fails to achieve the Critical Target at
the time specified in the respective Business Plan
(hereinafter referred to as "Critical Target Failure") that
-----------------------
is not a result of a material breach by any of the Parties
and the Parties fail to agree upon and implement a plan to
remedy such failure within thirty (30) days (or such longer
period as may be agreed by the Parties) after either Party
has given notice of such failure to the other Party.
28
(b) Expiration of Term. Upon expiration of the term of the
------------------
Joint Venture, unless the Parties have agreed in writing to
an extension of the term of the Joint Venture.
11.2 TERMINATION IN THE ABSENCE OF DEFAULT--REMEDIES
Any of the Parties may elect to terminate the Joint Venture upon the
occurrence of any of the events specified in Section 11.1 by giving
------------
notice of termination to the other Party within ninety (90) days of
first becoming aware of the occurrence of the event giving rise to the
right of termination. That notice must specify one of the following
alternative remedies:
(a) Dissolution. Dissolve the Joint Venture in accordance with
-----------
Section 11.4 and under the terms and conditions of this
------------
Agreement.
(b) Mandatory Buy-Sell. Initiate the sale of the Joint Venture
------------------
assets subject to prior resolution of the Board and under
the terms and conditions set forth in the Board resolution.
If both Parties give notices within such time period, the notice given
first shall prevail.
11.3 TERMINATION AND OTHER RIGHTS UPON DEFAULT
This Section shall apply only if only one Party is a Defaulting Party
(as such term is define below), in which case the Non-Defaulting Party
(as such term is define below) may elect to terminate the Joint
Venture. For terms of interpretation of this Agreement a "Defaulting
----------
Party" is a Party with respect to which any of the following events
-----
has occurred and a "Non-Defaulting Party" is a Party with respect to
--------------------
which none of such events has occurred.
(a) Material Default. Any material default by the Party in the
----------------
performance of any covenant in this Agreement or in the
performance of any material provision of any related
agreement to this Agreement, which default continues for a
period of 30 (thirty) days after written notice thereof has
been given by the Non-Defaulting Party.
(b) Material Breach. A breach of any representation or
---------------
warranty set forth in this Agreement, any breach of which
shall be deemed to be a material breach for purposes of
this Agreement.
(c) Termination of Existence by a Party. The Party commences
-----------------------------------
any proceeding to wind up, dissolve, or otherwise terminate
its legal existence under the applicable law.
(d) Termination of Existence by another Party. Any proceeding
-----------------------------------------
commenced against the Parties seeks or requires the winding
up, dissolution, or other termination of its legal
existence under the applicable laws, unless the Party
defends or contests that proceeding in good faith within
thirty (30) days of its commencement, obtains a stay of
that proceeding within thirty (30) days of its
commencement, and then only so long as such stay continues
and it pursues such defense or contest diligently
thereafter.
(e) Dissociation. The Parties withdraws from the Joint Venture
------------
in violation of this Agreement.
29
(f) Transfer. The Parties agrees (a) to sell, assign, transfer,
--------
transmit or otherwise dispose totally or partially of its
rights in violation of this Agreement.
(g) Change of Control. The occurrence of a change of Control
-----------------
of the Party or entity directly or indirectly controlling
the Party or a competition of the Joint Venture obtains an
equity interest of no less than fifty (50%) percent or more
in the Party or entity directly or indirectly controlling
the Party.
(h) Bankruptcy. Either (a) the Party seeks relief in any
----------
proceeding under any laws of the [Republic of Panama] or
any other state for the relief of debtors or any similar
law of any other jurisdiction in which the Party carries on
its business or (b) the institution against the Party of a
proceeding under the [Bankruptcy Reform Act of 1978 or any
law of the United States] or any state now in existence or
hereafter enacted having the same general purpose or any
similar law of any other jurisdiction in which the Party
carries on its business unless the Party defends or
contests that proceeding in good faith within fifteen (15)
days of its commencement, obtains a stay of that proceeding
within ninety (90) days of its commencement, and then only
so long as it pursues such defense or contest diligently
thereafter.
(i) Appointment of a Receiver. The appointment of a receiver,
-------------------------
receiver-manager, trustee, custodian or like officer for
all or a substantial part of the business or assets of the
Party except if the Party defends or contests that
proceeding in good faith within fifteen (15) days of the
commencement, obtains a stay of that proceeding within
ninety (90) days of its commencement, and then only so long
as it pursues such defense or contest diligently
thereafter.
(j) Assignment for Benefit of Creditors. The Party makes an
-----------------------------------
assignment for the benefit of its creditors, including
totally or partially any right under this Agreement.
(k) Involuntary Proceedings. Any execution, attachment,
-----------------------
distress or other process of any court is made or attaches
to the Party rights under this Agreement unless the Party
defends or contests the execution, attachment, distress or
other proceeding in good faith within fifteen (15) days of
its commencement, obtains a stay of that execution within
ninety (90) days of its commencement, attachment, distress
or other proceeding, and then only so long as it pursues
such defense or contest diligently thereafter.
11.4 REMEDIES UPON DEFAULT
(a) By Non-Defaulting Party. A Non-Defaulting Party may elect
-----------------------
to terminate the Joint Venture upon the occurrence of any
of the events specified in Section 11.3 by giving notice of
------------
termination (herein after referred to as the "Termination
-----------
Notice") to the Defaulting Party within ninety (90) days of
------
first becoming aware of the occurrence of the event giving
rise to the right of termination. The Termination Notice
must specify one of the following alternative remedies.
(i) Dissolution of the Joint Venture.
30
(ii) The election to purchase the Defaulting Party
Percentage Interest for 70% (seventy per cent) of the
price at which the Parties could sell or transfer
their Percentage Interest to a third party as at the
date of the Termination Notice according to its Fair
Market Value and otherwise in accordance with Section
-------
11.9. The Non-Defaulting Party will propose such Fair
----
Market Value.
(iii) The election to sell its Percentage Interest to
the Defaulting Party for 100% (one hundred per cent)
of Fair Market Value, and otherwise in accordance with
Section 11.9. The Non-Defaulting Party will propose
------------
such Fair Market Value in the Termination Notice
according to the Fair Market Value determination rules
provided in this Agreement.
(b) Other Remedies. A Non-Defaulting Party election to
--------------
dissolve the Joint Venture will not preclude its exercise
of whatsoever rights it may also have under this Agreement
or breach thereof or at applicable(s) law(s). However, the
Non-Defaulting Party election to purchase the Defaulting
Party Percentage Interest or to sell its Percentage
Interest under the terms hereof will be an exclusive
remedy, and will preclude the exercise of any rights the
Non-Defaulting Party may have under this Agreement or
breach thereof or at applicable(s) law(s). Notwithstanding
the foregoing, no election of remedies will preclude
recourse by the Non-Defaulting Party to whatsoever
injunctive relief to which it may otherwise be entitled
under this Agreement or any other related agreement to this
Agreement.
(c) Effect of Notice. If a Party delivers a Termination Notice
----------------
electing to purchase or electing to sell (and, the former
case, the required deposit), the specified Party will sell
and the other Party will buy the Percentage Interest of the
specified Party in accordance with Section 11.9.
------------
11.5 REMEDIES IF BOTH PARTIES ARE DEFAULTING PARTIES
If both Parties are, or become, Defaulting Parties, simultaneously or
sequentially, before a sale of a Percentage Interest under Section
-------
11.4 has been consummated, then notwithstanding any election
----
previously made by a Non-Defaulting Party or steps taken to accomplish
the same, (a) the Party and the Board will proceed as soon as possible
to dissolve the Joint Venture in accordance with the provisions of
Section 11.6 as though such dissolution resulted from an election
------------
pursuant to Section 11.2, and (b) both Defaulting Parties will then
---------------------
and thereafter have and may exercise whatsoever rights and remedies as
may be available to them under this Agreement and at the applicable(s)
law(s).
11.6 DISSOLUTION PROCEDURES
Promptly after a Party delivers a Termination Notice electing to
dissolve the Joint Venture:
(a) The Board will proceed, with prior written resolution, to
wind up the affairs and businesses of the Joint Venture in
the manner hereinafter provided;
31
(b) none of the provisions of this Agreement (other than those
prescribed by this Section 11.6 relating to the management
------------
of the Joint Venture will continue to apply and the Non-
Defaulting Party will operate the Joint Venture during the
course of liquidation and wind up its affairs and
businesses in the manner hereinafter provided on behalf of
the Parties. The Non-Defaulting Party will not be
obligated to provide any additional funds by way of Joint
Venture Contribution, Loans or otherwise to or for the
Joint Venture; and
(c) in either case, each Party will immediately pay to the
Joint Venture all amounts owing by it to the Joint Venture
together with its proportionate share of all contributions
required by applicable law to be paid to satisfy the
liabilities of the Joint Venture other than Parties Loans.
11.7 METHOD OF SALE
If the Joint Venture has recorded revenue from sales of the properties
developed in Phase 1 or any other Project, the Board (in the case of a
dissolution under Section 11.4) or the Non-Defaulting Party (in the
------------
case of a dissolution under Section 11.4), as the case may be, will
------------
retain a business broker and will cause the Business Activities
(including but not limited to all the properties developed in Phase 1
according to the Project) of the Joint Venture to be listed for sale
as a going concern. If an offer acceptable to such Board or such Non-
Defaulting Party, as the case may be, acting reasonably has not been
received within one hundred twenty (120) days of listing the Business
Activities for sale, or if the Joint Venture has not recorded revenue
from sales of the properties developed in Phase 1 according to the
terms of Project, the assets of the Joint Venture will be sold in the
manner determined by the Board or the Non-Defaulting Party, as the
case may be, whether totally or partially. The Board (in the case of
a dissolution under Section 11.4) or the Non-Defaulting Party (in the
------------
case of a dissolution under Section 11.4) will liquidate the assets
------------
and discharge the Liabilities of the Joint Venture over a reasonable
time in order to minimize the Losses that may otherwise result from an
immediate liquidation.
11.8 APPLICATION OF PROCEEDS OF LIQUIDATION
The proceeds of the liquidation of the Joint Venture will be
applied in the following order:
(a) to the payment of the expenses of liquidation;
(b) to the payment of the Liabilities and obligations of the
Joint Venture, other than debts or liabilities owing to a
Party; and
(c) thereafter in accordance with Section 9.1(a)(i).
-----------------
11.9 BUY-SELL UPON DEFAULT
If either LBHI or SDRI delivers a Termination Notice in accordance
with Section 11.4(a) (hereinafter referred to as the "Notice of
--------------- ---------
Termination of Joint Interests") to the other, during the period of
------------------------------
ninety (90) days following the day on which the Notice of Termination
of Joint Interests is delivered LBHI and SDRI will attempt to reach
agreement as to the purchase by one of them of the Percentage
Interests of the Joint Venture, LBHI and SDRI owned by the other of
32
them. If they are unable to reach agreement within that ninety (90)
days, on a date specified by the Party which gave the Notice of
Termination of Joint Interests, which is not less than twenty (20) nor
more than thirty (30) days after expiration of the ninety (90) day
period, LBHI and SDRI will simultaneously exchange notices in which
each of them specifies to the other the Fair Market Value payable in
cash in United States dollars, at which it would be willing to
purchase all the Percentage Interest of the Joint Venture, LBHI and
SDRI owned by the other of them.
The offers to purchase the Percentage Interest will be subject to no
conditions other than obtaining necessary governmental approvals and
consents and customary closing conditions relating to legal (but not
business or financial) matters. If all necessary governmental
approvals and consents can be obtained, the closing of the sale of the
Percentage Interests of the Joint Venture will be completed on a date
specified by the purchaser Party which will not be later than the
later of (a) 120 (one hundred and twenty) days after the date on which
LBHI and SDRI are to specify purchase prices for the purchase of the
Percentage Interests of the Joint Venture, LBHI and SDRI owned by the
other, or (b) 10 (ten) days after all required governmental approvals
and consents have been obtained and all required waiting periods under
applicable laws and governmental regulations have expired or been
terminated.
ARTICLE 12
OTHER BUSINESS, RESTRICTIONS ON TRANSFERS AND NEW PARTIES
12.1 OTHER BUSINESS VENTURES
Any of the Parties and its Affiliates may hereafter engage in or
possess any other businesses, investments or activities of any nature
and description, independently or with others, and neither the Joint
Venture nor any other of the Parties shall have any rights in and to
said other businesses, investments or activities, or the income or
profits derived there from, by reason of this Agreement.
The fact that a Party, or an Affiliate with such Party, is directly or
indirectly interested in or connected with any Person with which the
Joint Venture has business dealings or transactions or with any Person
who is employed by the Joint Venture to render services shall not
prohibit the Joint Venture from dealing with such Person or employing
such Person, and neither the Joint Venture nor the other Party shall
have any right to any income or profits derived by such a Person there
from; provided, however, that any such transaction shall be subject to
approval of the Board and shall be enter into on an arm's length
basis.
12.2. PROHIBITION OF TRANSFER JOINT VENTURE PERCENTAGE INTEREST
Except as otherwise specifically provided for in this Agreement,
neither Party shall have the right to sell, transfer, encumber or
otherwise dispose of all or any part of its Percentage Interest in the
Joint Venture, whether voluntarily, involuntarily or by operation of
law, or assign or create a beneficial interest in its net Profits, net
Losses, or Distributions, notwithstanding the fact that such proposed
assignment, transfer, encumbrance or creation of beneficial interest
would not involve a substitution of a new Person as a Party under this
Agreement. Any attempted sale, transfer, encumbrance or other
disposition of all or any part of a Percentage Interest in the Joint
Venture by a Party not in compliance with this Agreement shall be a
33
breach of this Agreement, shall be null and void since its beginning
and shall confer no rights on the purported transferee. The transfer
restrictions contained in this Agreement shall be deemed to be of the
essence of the ownership of a Percentage Interest in the Joint
Venture. Upon application to any court of competent jurisdiction, the
Joint Venture shall be entitled to a decree against any Person
violating or about to violate the provisions hereof.
ARTICLE 13
REPRESENTATIONS AND WARRANTIES
13.1. LBHI REPRESENTATIONS AND WARRANTIES
LBHI hereby represents and warrants to SDRI as follows:
13.1.1. Each of the statements contained in this Agreement and Section
is and will be true, correct and completed with respect to SDRI,
as of the date of this Agreement.
13.1.2. Good Standing. LBHI is a corporation duly organized, validly
existing and in good standing under the laws of the Republic of
Panama and has all necessary powers, authority and approvals
required to enter into and execute this Agreement and perform
fully its obligations hereunder.
13.1.3. Enforceability; No Conflicts. This Agreement constitutes the
legal, valid and binding obligation of LBHI enforceable against
it in accordance with its terms. LBHI is not or will not be
required to give any notice to any Person or obtain any consent
or approval in connection with the execution and delivery of this
Agreement, or the consummation or performance of any of the acts,
activities and obligations contemplated in this Agreement.
Neither the execution and delivery of this Agreement or any of
the ancillary agreement, nor the consummation or performance of
any of the obligations hereof, will directly or indirectly (with
or without notice or lapse of time) (a) contravene, violate or
result in the breach of any contract, agreement, permit or law to
which LBHI is a party or by which any of his respective
properties or assets may be bound, or (b) result in the
imposition or creation of any lien upon or with respect to any of
the properties or assets of LBHI or its Affiliates.
13.1.4. Litigation. There is no suit, arbitration, or legal,
administrative or other proceeding or governmental investigation
pending or, to the best knowledge of LBHI, threatened against
LBHI with respect to LBHI consummation of the transaction
described herein.
13.1.5. Disclosure.
13.1.5.1. No recital, statement, representation or warranty of LBHI
in this Agreement contain any material untrue statement or
omits to state a material fact necessary to make the
statements (herein or therein and in light of the
circumstances in which they were made) not misleading.
34
13.1.5.2. There is no fact known by the Investor that has a
specific application to the Joint Venture and that could have
a material adverse effect on the assets, the contracts, or the
Joint Venture Business Activities that has not been set forth
in this Agreement.
13.2. SDRI REPRESENTATIONS AND WARRANTIES
SDRI hereby represents and warrants to LBHI as follows:
13.2.1. Each of the statements contained in this Agreement and Section
is and will be true, correct and completed with respect to
LBHI, as of the date of this Agreement.
13.2.2. Good Standing. SDRI is a corporation duly organized, validly
existing and in good standing under the laws of Republic of
Panama and has all necessary powers, authority and approvals
required to enter into and execute this Agreement and perform
fully its obligations hereunder.
13.2.3. Enforceability; No Conflicts. This Agreement constitutes the
legal, valid and binding obligation of SDRI enforceable
against it in accordance with its terms. SDRI is not or will
not be required to give any notice to any Person or obtain any
consent or approval in connection with the execution and
delivery of this Agreement, or the consummation or performance
of any of the acts, activities and obligations contemplated in
this Agreement. Neither the execution and delivery of this
Agreement or any of the ancillary agreement, nor the
consummation or performance of any of the obligations hereof,
will directly or indirectly (with or without notice or lapse
of time) (a) contravene, violate or result in the breach of
any contract, agreement, permit or law to which SDRI is a
party or by which any of his respective properties or assets
may be bound, or (b) result in the imposition or creation of
any lien upon or with respect to any of the properties or
assets of SDRI or its Affiliates.
13.2.4. Litigation. Except as otherwise provided in the PPM, there is
no suit, arbitration, or legal, administrative or other
proceeding or governmental investigation pending or, to the
best knowledge of SDRI, threatened against SDRI with respect
to SDRI consummation of the transaction described herein.
13.2.5. Disclosure.
13.2.5.1. No recital, statement, representation or warranty of SDRI
in this Agreement contain any material untrue statement or
omits to state a material fact necessary to make the
statements (herein or therein and in light of the
circumstances in which they were made) not misleading.
13.2.5.2. There is no fact known by the Investor that has a
specific application to the Joint Venture and that could have
a material adverse effect on the assets, the contracts, or the
Joint Venture Business Activities that has not been set forth
in this Agreement.
35
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1. NOTICES
All notices, requests, authorizations, waivers and other communications
under this Agreement shall be in writing and shall be deemed given when
delivered to the appropriate address by hand, and if they are not
delivered personally, if delivered by courier, telecopier, or prepaid
certified courier:
If to LBHI:
Xxxxx XxXxxx
000 Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
If to SDRI at:
XXXX
000 Xxxxxx Xxxxx 000
Xxxxxxx, Xxxxx, 00000
Attention: Xxxxx Xxxx
Any modification to the information set forth above shall be notified in
writing pursuant to this Article.
14.2 ENFORCEMENT OF AGREEMENT
The Parties acknowledge and agree that a Party could be damaged
irreparably if any of the provisions of this Agreement are not performed
in accordance with its specific terms and that any breach of this
Agreement by a Party could not be adequately compensated in all cases by
monetary damages alone. Accordingly, the Parties agree that, in addition
to any other right or remedy to which a party may be entitled, at law or
in equity, it will be entitled to enforce any provision of this Agreement
by a decree of specific performance and to temporary, preliminary and
permanent injunctive relief to prevent breaches or threatened breaches of
any of the provisions of this Agreement, without posting any bond or
other undertaking.
14.3 WAIVER
The rights and remedies of the Parties to this Agreement are cumulative
and not alternative. Neither any failure nor any delay by any Party in
exercising any right, power or privilege under this Agreement or any of
the documents referred to in this Agreement will operate as a waiver of
such right, power or privilege, and no single or partial exercise of any
such right, power or privilege will preclude any other or further
exercise of such right, power or privilege or the exercise of any other
right, power or privilege. To the maximum extent permitted by applicable
law, (a) no claim or right arising out of this Agreement or any of the
documents referred to in this Agreement can be discharged by one Party,
in whole or in part, by a waiver or renunciation of the claim or right
unless in a written document signed by the other Party, (b) no waiver
that may be given by a Party will be applicable except in the specific
instance for which it is given, and (c) no notice to or demand on one
Party will be deemed to be a waiver of any obligation of that Party or of
the right of the Party giving such notice or demand to take further
action without notice or demand as provided in this Agreement or the
documents referred to in this Agreement.
36
14.4 DISPUTE RESOLUTION
(a) Negotiation between Parties Executives. The Parties will
--------------------------------------
attempt in good faith to resolve any dispute arising out of or
relating to this Agreement promptly by negotiations between
executives who are not engaged in the day to day operations of
the Joint Venture and who have authority to settle the
controversy. Any Party may give the other Party written
notice of any dispute not resolved in the normal course of
business. Within twenty (20) days after delivery of said
notice, executives of both parties will meet at a mutually
acceptable time and place, and thereafter as often as they
reasonably deem necessary, to exchange relevant information
and to attempt to resolve the dispute. If the matter has not
been resolved within sixty (60) days as from the disputing
Party's notice, or if the Parties fail to meet within thirty
(30) days, either Party may initiate arbitration of the
controversy or claim as provided in Section 14.4(b).
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If a negotiator intends to be accompanied at a meeting by an
attorney, the other negotiator will be given at least three
working days' notice of such intention and may also be
accompanied by an attorney. All negotiations pursuant to this
clause are confidential and will be treated as compromise and
settlement negotiations for purposes of the federal rules of
evidence and state rules of evidence.
(b) Arbitration. This Agreement is and shall be ruled by the laws
-----------
of the [Republic of Panama]. If any dispute arises regarding
or pertaining to the validity, intention, or interpretation,
execution or compliance of the same (hereinafter referred to
as the "Dispute"), the Parties shall try to settle the Dispute
-------
through negotiations performed in good faith according to
Section 14.4.(a). If within 30 (thirty) days following the
----------------
date on which one of the Parties gives notice to the other of
the existence of such Dispute, and the same has not been
settled, it shall be resolved by arbitration whose award shall
be final and binding upon the Parties. Such arbitration shall
be conducted in the City of Houston, Texas, in English
language (Spanish simultaneous translation shall be allowed),
pursuant to the American Arbitration Association to
effectively execute this Agreement (the "AAA Rules"), by three
---------
(3) arbitrators, law experts, designated by Parties within the
following thirty (30) days as of the date when one Party serve
notice (the "Arbitration Notice") to the other Party
------------------
soliciting the resolution of the Dispute through the
arbitration, which shall at all time provide the Dispute
relevant facts and conflicts.
Each Party shall appoint (1) one arbitrator and the (2) two
arbitrators appointed by the Parties shall appoint a third
arbitrator. If the (2) arbitrators appointed by the Parties do
not agree in the appointment of the third arbitrator within
the following fifteen (15) after their designation, or if any
of the Parties do not appoint their respective arbitrator,
then said arbitrator(s) shall be designated according to the
AAA international rules.
The arbitrator's awarded by two (2) arbitrators shall be final
and binding upon the Parties, and it may be entered in any
court having jurisdiction for its enforcement, and the Parties
expressly submit to the jurisdiction of said court.
The expenses derived under the arbitration process shall be
divided equally among the Parties.
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Neither Party may appoint an arbitrator that directly or
indirectly was an employee, had or have a commercial relation
or subordination to any of the Parties hereto or any of their
Affiliates or to the Joint Venture.
14.5 ENTIRE AGREEMENT AND MODIFICATION
This Agreement and all of the documents referred to in this Agreement
supersede all prior agreements among the Parties with respect to its
subject matter and constitutes (along with the documents delivered
pursuant to this Agreement) a complete and exclusive statement of the
terms of the agreement between the Parties with respect to its subject
matter. This Agreement may not be amended, supplemented or otherwise
modified except in a written document executed by the Party against whose
interest the modification will operate.
14.6. FORCE XXXXXX
Except as otherwise expressly provided in this Agreement, if either Party
to this Agreement is temporarily or otherwise unable to perform its
obligations under this Agreement because of fire, flood, strikes, lock-
outs, or closures, labor disputes or other industrial disturbances,
freight embargoes, blockades, government restrictions or regulations
which enter into effect after execution of this Agreement, war (declared
or undeclared) invasion, riots, insurrections, unforeseeable accidents,
acts of God, or other unforeseeable causes beyond its reasonable control,
no liability shall exist to the other party for failure of performance
during such period, nor shall any such temporary occurrence constitute
cause for terminating this Agreement; provided that the affected Party
notifies the other Party in writing of such circumstance and uses its
best efforts to eliminate the effects of such circumstance as soon as
possible.
14.7. INDEMNIFICATION
Subject to the terms and conditions herein set forth, SDRI agrees that
it will defend, indemnify and hold LBHI harmless with respect to the
aggregate of all indemnifying damages (as hereinafter defined) of
LBHI. For this purpose, "Indemnifying Damages" of LBHI means the
--------------------
aggregate of all expenses, losses, costs, deficiencies, liabilities
and damages (including related counsel fees and expenses) incurred or
suffered by LBHI resulting from (i) any breach by SDRI of its
declarations and warranties set forth in this Agreement, or from (ii)
any defect or hidden defect in the properties developed, constructed,
market and sale from any of Projects and specially form the Phase 1
Project. Without limiting the generality of the foregoing, with
respect to the measurement of indemnifying damages, LBHI shall have
the right to be put in the same financial position as it would have
been if SDRI have not incurred in any situation provided hereinbefore.
LBHI shall promptly give SDRI written notice of each time that LBHI
becomes aware of any fact or circumstance which may give rise to an
obligation of SDRI to indemnify LBHI under this Section, which notice
shall be accompanied by a copy of any claim made or defect or hidden
defect detected which may result in such obligation to indemnify. The
failure to so notify SDRI shall relieve SDRI from its obligation to
indemnify LBHI only to the extent SDRI has been prejudiced by such
failure.
14.8 EXPENSES
Except as otherwise expressly provided in this Agreement, each Party to
this Agreement will bear its respective expenses incurred in connection
with the preparation, execution and performance of this Agreement or any
of the documents referred to in this Agreement, including all fees and
expenses of its representatives and attorneys. The parties will cause
the Joint Venture not to incur any out-of-pocket expenses in connection
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with this Agreement, except for professional fees not exceeding the
amount of US$300,000.00. If this Agreement is terminated, the obligation
of each Party to pay its own expenses will be subject to any rights of
such Party arising from a breach of this Agreement by another Party.
Notwithstanding the above mentioned, SDRI agree to bear and pay any and
all the legal expenses, fees and costs, including any legal costs,
expenses and attorney fees derived from any and all legal suits and or
claims regarding the properties in which the Projects will be developed
according to the terms of this Agreement and or any and all expenses and
cost incurred by any Party in connection with ownership of the properties
in which the Projects will be developed.
14.9 PUBLIC ANNOUNCEMENTS
Any public announcement or similar publicity with respect to this
Agreement or any of the documents referred to in this Agreement will be
issued, if at all, at such time and in such manner as the Board
determine. The Board and the Parties will not and will not permit the
Joint Venture to make any disclosure of this Agreement to any Person,
except with the prior written consent of the other Party and the Board or
as required by Law.
14.10. SEVERABILITY
If any provision of this Agreement is held invalid, null or unenforceable
by any court of competent jurisdiction, the other provisions of this
Agreement will remain in full force and effect. Any provision of this
Agreement deemed invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or
unenforceable.
14.11. TITLE REFERENCE AND INCORPORATION OF SCHEDULES
All references to Articles, sub-articles, schedules or exhibits shall be
considered references to the Articles, sub-articles, schedules and
exhibits of this Agreement, except if otherwise is instructed. The
schedules identified in this Agreement, are incorporated herein by
reference and made a part of this Agreement. The Articles, Articles and
sub-articles, the definitions and the headings of this Agreement are
solely for reference purposes, and shall not have any effect on the
interpretation or content of the same.
14.12. COUNTERPARTS
This English Agreement is executed in two counterparts - each one to be
considered as original.
ARTICLE 15
CONFIDENTIALITY
15.1 CONFIDENTIAL INFORMATION
Except as required by any applicable law, rule and/or regulation, each
Party will, and will cause each of its Affiliates, and its and their
respective, shareholders, directors, officers, employees and agents
(hereinafter jointly referred to as the "Representatives") to keep secret
---------------
and retain in strictest confidence any and all Confidential Information
related to the Joint Venture. Such matters may be disclosed only on a
need to know basis and only to any person that agrees in writing to keep
in confidence or confidential matters in accordance with terms of this
Section.
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15.2 EFFECTIVE TIME
The Obligations in Section 15.1 will be effective from the date of this
------------
Agreement and for a period of one (1) year after its termination
(hereinafter referred to as the "Restricted Period") and until the last
-----------------
day of the second full calendar month following completion of winding up
of the Joint Venture.
15.3 INJUNCTION
To the fullest extent permitted by law, if a Party or any of its
Affiliates or Representatives breaches, or threatens to commit a breach
of Section 15.1, the other Party and the Joint Venture will have the
------------
right and remedy to have Section 15.1 specifically enforced by any court
------------
having jurisdiction, it being acknowledged and agreed that money damages
would not provide an adequate remedy to such other party or the Joint
Venture. Nothing in this Section will be construed to limit the right of
the Party or the Joint Venture to collect money damages in the event of a
breach of this Section.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first set forth above.
"LBHI" "SDRI"
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LAND BRIDGE HOLDINGS SIX DIAMOND RESORT
INTERNATIONAL, S.A. INTERNATIONAL, S.A.
By: Xxxxx XxXxxx By: Xxxxx Xxxx
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