PINNACLE FUNDING PTY LTD having business address at 6 Picton Avenue, Picton NSW Australia and ACN 123 980 825 (“Pinnacle”) OF THE FIRST PART.
AND
The PARTY referred to in Schedule A OF THE SECOND PART (“Client”)
RECITALS
A. Pinnacle is a limited liability company incorporated in Australia. Pinnacle acts, inter alia, as a finance facilitator and broker to source finance, by way or debt and/or equity, for and/or on behalf of clients of Pinnacle in respect of a business activity.
B. The Client is a natural person. The Client is seeking finance for the purpose of development and construction of condominium building, including discharge of existing mortgage, on a property situate and known as Sea Max Condominium, Chaiyapruek Rd, T.Nongprue Banglamung Chonbri, Thailand (“Project”).
C. The Parties hereby enter into this Agreement whereby the Client shall engage Pinnacle, upon the terms and conditions herein contained, to source finance in respect of the Project. This Agreement shall regulate the conduct of the appointment by the Client of Pinnacle.
SUBSTANTIVE PROVISIONS
On the basis of the mutual promises made herein the Parties agree as follows:
1.Definition:
1.1 For the purpose of this Agreement, certain terms and phrases which appear in bold type are defined by the words and phrases appearing before the bold type and to which same relates.
1.2 Words appearing in this Agreement in the singular shall include the plural and vice-a-versa, words importing the masculine shall include the feminine and vice-a-versa and words importing the corporate shall include the natural person and vice-a-versa.
1.3 The headings contained in this Agreement are only included for the sake of convenience and shall have no bearing upon the interpretation of this Agreement in general or in respect of any clauses contained herein.
1.4 The contents of any Schedule to this Agreement shall be construed as term and condition of this Agreement.
1.5 This Agreement, unless the context requires or the definition clause applies, shall be interpreted in accordance with the rules applicable in the jurisdiction under which this Agreement is enforceable.
2. Commencement Date: The Parties shall be bound by the provisions of this Agreement and the Agreement shall commence upon the proper execution and submission to Pinnacle of this Agreement by the Client (“Commencement Date”).
3. Appointment:
3.1 SUBJECT TO clause 6.1 hereof the Client appoints Pinnacle, and Pinnacle accepts that appointment, to source finance for the Client to fund the Project upon the terms and conditions contained herein.
3.2 The Client appoints Pinnacle on an exclusive basis such that the Client shall not appoint or engage any other finance broker or facilitator for the purpose of sourcing finance for the Project during the Term unless with the express consent of Pinnacle in writing. For the avoidance of doubt Pinnacle is not required to work exclusively for the Client.
3.3 The Client appoints Pinnacle as an agent on its behalf but and except Pinnacle does not have the authority, express, implied or otherwise, to bind the Client to any agreement.
3.4 The finance that Pinnacle shall seek to source on behalf of the Client is to take into account the criteria set out in Schedule B hereto (“Finance”). The contents of the Schedule are by way of guidance to Pinnacle only. In the event any finance package proposed does not meet such criteria but the Client accepts same then Pinnacle has performed, for the purposes of and SUBJECT TO the provisions of this Agreement, the appointment successfully.
3.5 Pinnacle does not and cannot give any guarantee that it shall source the Finance or that, having sourced the Finance, the Finance shall be implemented.
3.6 Pinnacle enters into this Agreement as an independent contractor and nothing in this Agreement shall constitute, expressly or by inference, the creation, establishment or relationship of a partnership, joint venture, agency or employer and employee as between the Parties.
4. Term: The appointment shall be for the period set out in Schedule C hereto but shall continue thereafter until either Party gives the other Three (3) months’ notice in writing of termination of this Agreement (“Term”). The Term shall expire at the conclusion of the notice period.
5. Process:
5.1 Pinnacle shall attempt to do as follows:
5.2.1 Source a reputable and recognised Funder and/or or Business Angel Network (collectively referred to as “Funder”) to provide and/or source the Finance;
5.2.2 Liaise between the Funder and the Client to provide the Funder with all necessary information and documentation to facilitate the sourcing of the Finance including, if necessary, an application for Finance and/or all due diligence in respect thereto;
5.2.3 If an application is accepted by the Funder, to negotiate provisions relating to and facilitate the implementation of the Finance.
5.3 The Client shall do as follows:
5.3.1 Properly instruct Pinnacle, in writing and in a form acceptable to Pinnacle, in respect of the Finance;
5.3.2 Do all things, including but not necessarily limited to the execution of all documents, in accordance with any request to do so from Pinnacle or a Funder to assist and facilitate the appointment or as otherwise, necessary to enable Pinnacle to perform the appointment successfully;
5.3.3 Co-operate with all reasonable requisitions made of it by Pinnacle or the Funder for information/documentation including but not limited to information and documentation relating to due diligence on the Project and/or all relevant crime prevention requirement, regulations and/or policies including anti money - laundering/counter terrorism (“AML”) and Know Your Client (“KYC”). Any such requisition made to the Client shall be in writing only and the Client shall comply with such requisitions within a reasonable period of time of such requisition being made.
5.3.4 Agree to and facilitate any request Pinnacle may make of the Client which is in writing and reasonable to protect payment to Pinnacle of any fees, commissions or costs/expense to which it may be entitled in accordance with this Agreement including the incorporation of any provision in the legal transaction documents underlying any finance agreement between the Funder and the Client which may take the form of an irrevocable authority to ensure payment of same form the Finance funds before the client receives same.
5.4 The onus of disclosure of all information, documentation or any other matter relevant to a proper consideration of the Project and the financing thereof is upon the Client irrespective of whether such matter has specifically been requisitioned for such information, documentation and/or matter or thing. Moreover, the Client is under an obligation to ensure that all information/documentation provided by them in association with and for the purpose of this appointment is to the best of their knowledge is true, correct and complete and in no way misleading. These obligations are continuing obligations during the currency of this Agreement.
5.5 The Client ACKNOWLEDGES that the Funder will be an independent organisation of Pinnacle and the Funder is at liberty to (a) request information and/or documents to consider the loan application and (b) attach provisions to any legal transaction documents underlying any loan approved by the Funder in favour of the Client that are not within the contemplation of Pinnacle. Moreover, this is not within the control of Pinnacle.
5.6 Pinnacle shall at all times, to the exclusion of the Client and during the currency of this Agreement, communicate with the Funder and any such communication shall be deemed to be on behalf the Client.
5.7 The Client shall not do anything to circumvent either the relationship between Pinnacle and the Funder or the fees/commission which may be payable to Pinnacle including but not necessarily limited to making contact, either directly or indirectly, with the Funder even if the Funder makes direct contact with the Client unless otherwise expressly permitted such contact by Pinnacle. Pinnacle shall not be at liberty to disclose the identity of a prospective Funder, if it is available, until this Agreement commences.
5.8 The Client shall notify Pinnacle, in writing, providing details and, if applicable, a copy of any written instrument or letter of any communication as between the Funder and the Client.
6. Remuneration: Pinnacle shall charge the Client fees, in consideration for the work Pinnacle shall perform in carrying out the appointment, as follows:
6.1 A fee as prescribed in Item 1 of Schedule D (“Engagement Fee”). The Client shall be obliged to pay the Engagement Fee simultaneous with commencement of this Agreement. The obligations of Pinnacle, if any, shall not commence until such time as Engagement Fee is paid. The Engagement Fee once paid is not refundable by Pinnacle to the Client or otherwise under any circumstance.
6.2 In addition the Client shall also be required to pay and/or provide Pinnacle with further consideration relative to the Finance provided to the Client as a result of Pinnacle sourcing finance in respect of the Project, irrespective of whether that financial gain or benefit is in accordance with the criteria set out in Schedule B hereto or direct to the Client, being a commission payable in accordance with Item 2 of Schedule D hereto (“Commission”).
6.3 The Commission shall only become due and payable by the Client to Pinnacle when the Finance becomes available for draw down for the purposes of the Project and upon receipt of an Invoice or a written request for the Equity, whichever is applicable, from Pinnacle.
6.4 In addition the Client shall be obliged to pay any costs or expenses of Pinnacle that are (a) reasonably incurred by Pinnacle in respect of the appointment and fall within the nature of such costs and expenses as prescribed in Item 4 of Schedule D and (b) are approved by the Client,
PINNACLE FUNDING PTY LTD having business address at 6 Picton Avenue, Picton NSW Australia and ACN 123 980 825 (“Pinnacle”) OF THE FIRST PART.
AND
The PARTY referred to in Schedule A OF THE SECOND PART (“Client”)
RECITALS
A. Pinnacle is a limited liability company incorporated in Australia. Pinnacle acts, inter alia, as a finance facilitator and broker to source finance, by way or debt and/or equity, for and/or on behalf of clients of Pinnacle in respect of a business activity.
B. The Client is a natural person. The Client is seeking finance for the purpose of development and construction of condominium building, including discharge of existing mortgage, on a property situate and known as Sea Max Condominium, Chaiyapruek Rd, T.Nongprue Banglamung Chonbri, Thailand (“Project”).
C. The Parties hereby enter into this Agreement whereby the Client shall engage Pinnacle, upon the terms and conditions herein contained, to source finance in respect of the Project. This Agreement shall regulate the conduct of the appointment by the Client of Pinnacle.
SUBSTANTIVE PROVISIONS
On the basis of the mutual promises made herein the Parties agree as follows:
1.Definition:
1.1 For the purpose of this Agreement, certain terms and phrases which appear in bold type are defined by the words and phrases appearing before the bold type and to which same relates.
1.2 Words appearing in this Agreement in the singular shall include the plural and vice-a-versa, words importing the masculine shall include the feminine and vice-a-versa and words importing the corporate shall include the natural person and vice-a-versa.
1.3 The headings contained in this Agreement are only included for the sake of convenience and shall have no bearing upon the interpretation of this Agreement in general or in respect of any clauses contained herein.
1.4 The contents of any Schedule to this Agreement shall be construed as term and condition of this Agreement.
1.5 This Agreement, unless the context requires or the definition clause applies, shall be interpreted in accordance with the rules applicable in the jurisdiction under which this Agreement is enforceable.
2. Commencement Date: The Parties shall be bound by the provisions of this Agreement and the Agreement shall commence upon the proper execution and submission to Pinnacle of this Agreement by the Client (“Commencement Date”).
3. Appointment:
3.1 SUBJECT TO clause 6.1 hereof the Client appoints Pinnacle, and Pinnacle accepts that appointment, to source finance for the Client to fund the Project upon the terms and conditions contained herein.
3.2 The Client appoints Pinnacle on an exclusive basis such that the Client shall not appoint or engage any other finance broker or facilitator for the purpose of sourcing finance for the Project during the Term unless with the express consent of Pinnacle in writing. For the avoidance of doubt Pinnacle is not required to work exclusively for the Client.
3.3 The Client appoints Pinnacle as an agent on its behalf but and except Pinnacle does not have the authority, express, implied or otherwise, to bind the Client to any agreement.
3.4 The finance that Pinnacle shall seek to source on behalf of the Client is to take into account the criteria set out in Schedule B hereto (“Finance”). The contents of the Schedule are by way of guidance to Pinnacle only. In the event any finance package proposed does not meet such criteria but the Client accepts same then Pinnacle has performed, for the purposes of and SUBJECT TO the provisions of this Agreement, the appointment successfully.
3.5 Pinnacle does not and cannot give any guarantee that it shall source the Finance or that, having sourced the Finance, the Finance shall be implemented.
3.6 Pinnacle enters into this Agreement as an independent contractor and nothing in this Agreement shall constitute, expressly or by inference, the creation, establishment or relationship of a partnership, joint venture, agency or employer and employee as between the Parties.
4. Term: The appointment shall be for the period set out in Schedule C hereto but shall continue thereafter until either Party gives the other Three (3) months’ notice in writing of termination of this Agreement (“Term”). The Term shall expire at the conclusion of the notice period.
5. Process:
5.1 Pinnacle shall attempt to do as follows:
5.2.1 Source a reputable and recognised Funder and/or or Business Angel Network (collectively referred to as “Funder”) to provide and/or source the Finance;
5.2.2 Liaise between the Funder and the Client to provide the Funder with all necessary information and documentation to facilitate the sourcing of the Finance including, if necessary, an application for Finance and/or all due diligence in respect thereto;
5.2.3 If an application is accepted by the Funder, to negotiate provisions relating to and facilitate the implementation of the Finance.
5.3 The Client shall do as follows:
5.3.1 Properly instruct Pinnacle, in writing and in a form acceptable to Pinnacle, in respect of the Finance;
5.3.2 Do all things, including but not necessarily limited to the execution of all documents, in accordance with any request to do so from Pinnacle or a Funder to assist and facilitate the appointment or as otherwise, necessary to enable Pinnacle to perform the appointment successfully;
5.3.3 Co-operate with all reasonable requisitions made of it by Pinnacle or the Funder for information/documentation including but not limited to information and documentation relating to due diligence on the Project and/or all relevant crime prevention requirement, regulations and/or policies including anti money - laundering/counter terrorism (“AML”) and Know Your Client (“KYC”). Any such requisition made to the Client shall be in writing only and the Client shall comply with such requisitions within a reasonable period of time of such requisition being made.
5.3.4 Agree to and facilitate any request Pinnacle may make of the Client which is in writing and reasonable to protect payment to Pinnacle of any fees, commissions or costs/expense to which it may be entitled in accordance with this Agreement including the incorporation of any provision in the legal transaction documents underlying any finance agreement between the Funder and the Client which may take the form of an irrevocable authority to ensure payment of same form the Finance funds before the client receives same.
5.4 The onus of disclosure of all information, documentation or any other matter relevant to a proper consideration of the Project and the financing thereof is upon the Client irrespective of whether such matter has specifically been requisitioned for such information, documentation and/or matter or thing. Moreover, the Client is under an obligation to ensure that all information/documentation provided by them in association with and for the purpose of this appointment is to the best of their knowledge is true, correct and complete and in no way misleading. These obligations are continuing obligations during the currency of this Agreement.
5.5 The Client ACKNOWLEDGES that the Funder will be an independent organisation of Pinnacle and the Funder is at liberty to (a) request information and/or documents to consider the loan application and (b) attach provisions to any legal transaction documents underlying any loan approved by the Funder in favour of the Client that are not within the contemplation of Pinnacle. Moreover, this is not within the control of Pinnacle.
5.6 Pinnacle shall at all times, to the exclusion of the Client and during the currency of this Agreement, communicate with the Funder and any such communication shall be deemed to be on behalf the Client.
5.7 The Client shall not do anything to circumvent either the relationship between Pinnacle and the Funder or the fees/commission which may be payable to Pinnacle including but not necessarily limited to making contact, either directly or indirectly, with the Funder even if the Funder makes direct contact with the Client unless otherwise expressly permitted such contact by Pinnacle. Pinnacle shall not be at liberty to disclose the identity of a prospective Funder, if it is available, until this Agreement commences.
5.8 The Client shall notify Pinnacle, in writing, providing details and, if applicable, a copy of any written instrument or letter of any communication as between the Funder and the Client.
6. Remuneration: Pinnacle shall charge the Client fees, in consideration for the work Pinnacle shall perform in carrying out the appointment, as follows:
6.1 A fee as prescribed in Item 1 of Schedule D (“Engagement Fee”). The Client shall be obliged to pay the Engagement Fee simultaneous with commencement of this Agreement. The obligations of Pinnacle, if any, shall not commence until such time as Engagement Fee is paid. The Engagement Fee once paid is not refundable by Pinnacle to the Client or otherwise under any circumstance.
6.2 In addition the Client shall also be required to pay and/or provide Pinnacle with further consideration relative to the Finance provided to the Client as a result of Pinnacle sourcing finance in respect of the Project, irrespective of whether that financial gain or benefit is in accordance with the criteria set out in Schedule B hereto or direct to the Client, being a commission payable in accordance with Item 2 of Schedule D hereto (“Commission”).
6.3 The Commission shall only become due and payable by the Client to Pinnacle when the Finance becomes available for draw down for the purposes of the Project and upon receipt of an Invoice or a written request for the Equity, whichever is applicable, from Pinnacle.
6.4 In addition the Client shall be obliged to pay any costs or expenses of Pinnacle that are (a) reasonably incurred by Pinnacle in respect of the appointment and fall within the nature of such costs and expenses as prescribed in Item 4 of Schedule D and (b) are approved by the Client,
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