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AMENDED MARKETING AND SALES PARTNERSHIP AGREEMENT
This Amended Marketing and Sales Partnership Agreement (hereinafter
referred to as the ("Agreement"), effective as of the 10th day of March 2010:
Between GOLDEN GATE HOMES, INC., whose business office is located at 855
BORDEAUX WAY, SUITE 200, Napa, California, U.S.A.
(Hereinafter referred to as the "Owner")
And PREMIER CAPITAL LIMITED, whose business office is located at Room 2813, SHUN
TAK CENTER, 168 CONNAUGHT ROAD, Sheung Wan Central, Hong Kong
(Hereinafter referred to as the "Agent").
RECITALS:
WHEREAS, the Owner and the Agent have previously entered into that certain
Marketing and Sales Partnership Agreement dated September 23, 2009 (hereinafter
referred to as the "Original Agreement"); and
WHEREAS, the Owner and the Agent wish to amend certain provisions of the
Original Agreement, and to clarify certain other provisions of the Original
Agreement; and
WHEREAS, to amend and clarify such provisions, the Owner and the Agent
agree to terminate and cancel the Original Agreement and to replace it with this
Agreement.
IN consideration of the mutual covenants and agreements herein contained,
and for valuable consideration hereby acknowledged, the parties, the Owner and
the Agent, agree as follows:
1. Subject to the terms and conditions set forth herein, the Owner
hereby grants to the Agent, and the Agent hereby accepts, the exclusive
authority and right to list, market and sell in Hong Kong and China (such
territory hereafter referred to as the "Exclusive Territory") real estate
properties located in the states of California, Arizona, Nevada or Washington
(such states hereinafter referred to as the "Exclusive States") that (a) the
Owner has identified and presented real estate properties to the Agent for
approval to sell to third parties, and (b) the Agent has approved these real
estate properties and the Owner and the Agent have agreed to market for sale in
the Exclusive Territory (such properties and developments hereinafter referred
to as the "Approved Properties"). Real estate properties not identified as
Approved Properties will not be covered by this Agreement.
2. The Agent shall have the exclusive right to market and sell the
Approved Properties in the Exclusive Territory during the term of this
Agreement, which shall commence on the date first set forth above and shall
terminate at the close of business on the 14th of October 2014 (such times
period hereinafter referred to as the "Listing Period"), provided, however,
that the Listing Period shall be extended by one year for every year that Agent
sells at least one hundred (100) Approved Properties. Any extension thereof
shall be referred to hereinafter as the "Extended Listing Period". The Agent
will not list, market or sell any properties in the Exclusive States without the
approval of the Owner during the Listing Period or the Extended Listing Period.
3. The Owner shall provide at its own expense to the Agent, at least
four (4) weeks before the exhibition held for the promotion of an Approved
Property, the following materials in English:
a. reasonably and customary promotional materials required by the marketing
plan, including display boards, photographs, and brochures in the quantity
approved of in the marketing plan. The exhibition budgets for Hong Kong are
estimated to be USD $15,000, and the exhibition budgets for China are estimated
to be USD $18,000. These may vary if changes to the marketing plans or the costs
change and are mutually agreed upon. The Owner will pay for all out-of-pocket
expenses associated with such agreed upon marketing materials. The Agent shall
pay for any costs of translating or reproducing these materials into Chinese.
The initial budgets are attached for reference purposes;
b. sufficient copies of all necessary legal documents (e.g., Disclosure
Statement, Reservation Form, Contract of Sale) for each of the Approved
Properties; and
4. The owner agrees to pay the Agent seventy-five percent (75%) of the cost
of the out-of-pocket third party advertising expenses for exhibitions incurred
by the Agent (such advertising costs hereinafter referred to as the "Approved
Budget"). The Owner shall advance fifty percent (50%) of the Approved Budget
against presented actual out-of-pocket expenses. Copies of all invoices for
expenditures under the Approved Budget shall be sent to the Owner. The remaining
actual expenses owed to the Agent pursuant to this Paragraph 4 shall be paid
within fifteen (15) days of the close of the exhibition. In the event that the
Owner pay a greater proportion of the Approved Budget than is contemplated by
this Paragraph 4, the Owner shall have the right to seek reimbursement from the
Agent or set off such amount against the commissions set forth in Paragraph 5
below.
5. In respect of the sale of any Approved Property to a purchaser
(hereinafter referred to as a "Purchaser"), whether or not introduced by the
Agent, in the Exclusive Territory during the Listing Period or Extended Listing
Period, the Owner agrees to pay to the Agent a commission equal to seven percent
(7%) of the purchase price of such Approved Property sold, such commission to be
paid upon the closing of the sale to Purchaser. However, when the Owner is
selling units on consignment option agreements the Owner agrees to pay to the
Agent a commission equal to six percent (6%) of the purchase price. Agent's
commission will not be paid from escrow but will be paid directly to Agent upon
closing. However, in the event that the escrow agent for such Approved Property
releases funds to the Owner, the Agent shall be entitled to receive up to
one-half of the commission (i.e., 3%) depending upon the amount of funds
released. The Owner further agrees that unless cleared with the Agent, the only
party receiving funds released from escrow will be the Agent until the final
closing of the sale of the Approved Property.
6. The Owner and the Agent agree that under the terms of any purchase
agreement for the purchase of an Approved Property, the prospective Purchaser
will be required to place into escrow a non-refundable ten percent (10%)
deposit. In the vent that the prospective Purchaser defaults, the Owner and the
Agent will first be reimbursed their respective expenses related to the costs of
processing the individual Purchaser. If the expenses incurred exceed the
deposit, then expenses will be reimbursed pro-rata. In the event that the
deposit exceeds the expenses incurred, then the Agent will receive forty percent
(40%) of the amount remaining after expenses are reimbursed, with the Owner
receiving the remaining sixty percent (60%).
7. The Owner will either own title to the Approved Property or have an
option to purchase the Approved Property and engage the services of title
companies based in the United States of America. These title companies will
receive all escrow funds directly from Purchaser or Purchaser's designated
agent. No escrow funds will be released until closing without approval of the
Purchaser.
8. In the event that the Agent introduces and properly registers potential
purchasers to an Approved Property in the Exclusive Territory and the same
individual(s) subsequently purchases such Approved Property during the Listing
Period or the Extended Listing Period, then the Owner shall pay the Agent the
same commission set forth in Paragraph 5.
9. The Owner shall fully and completely indemnify Agent from and against all
actions, proceedings, claims and demands whatsoever, directly or indirectly
resulting from promoting the Approved Properties, and any representations made
during such promotions, provided that the representations and statement, sales
and marketing techniques or literature comply with the advice, instructions or
statements previously conveyed to the Agent by the Owner or its representatives.
10. The Agent shall fully and completely indemnify the Owner from and
against all actions, claims and demands whatsoever arising directly or
indirectly from errors or omissions make by the Agent's employees,
representatives or agents.
11. All marketing information, prospect leads and such other commercial
information acquired by the Agent with respect to an Approved Property shall be
the exclusive property of the Agent and shall remain with the Agent upon
termination or expiration of this Agreement.
12. The prices at which any Approved Property is offered for sale in the
Exclusive Territory shall be pursuant to a mutually agreed upon price schedule
and price expiration date.
13. Upon the expiration or termination of this Agreement, all promotional
documents and other materials in the possession of Agent shall become the
property of the Owner and shall be returned to the Owner. The Owner shall at its
cost and expense pay for the shipping of such promotional documents and
materials from the Agent within a reasonable period of time after the expiration
of this Agreement; otherwise the Agent, in its absolute discretion, may dispose
of these promotional documents and materials that are in its possession.
(However, as stated in Paragraph 11, the leads and prospects generated from the
exhibition and newspaper advertising campaign shall remain the property of the
Agent).
14. Time is of the essence in this Agreement. No modification of this
Agreement shall be effective unless set forth in writing and signed by both
parties. This Agreement shall be binding and inure to the benefit of the
respective successors and assigns of the respective parties. This Agreement
contains the entire agreement between the parties and no amendment shall be
effective unless the same shall have been executed by the party obligated
thereunder. Each party acknowledges that no representations, inducements,
promises or agreements that are not embodied herein have been made by either
party or anyone acting on behalf of either party.
15. This Agreement is governed by the laws of Hong Kong. It is
understood that all contracts written by the Owner for sale of Approved
Properties will be governed by California law. Also, both the Owner and the
Agent agree that all contracts to purchase Approved Properties will have a JAMS
arbitration clause, with the arbitration to be held under California law. This
is to protect all parties.
The parties hereto have caused this Agreement to be executed on the day and year
first written above.
Signature Page follows this page
SIGNED BY Tim Wilkens
For and on behalf of the Owner
In the presence of Amy Flint
SIGNED BY Philip Leung
For and on behalf of the Agent
In the presence of Erica Ton
