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AZB & Partners Privileged and confidential AZB及合作伙伴 特权及机密文件January 20, 2014 Preliminary draft for discussions2014年1月20日 供讨论初稿DEVELOPMENT AGREEMENTAZB Comment: We understand that this agreement is proposed to be executed in and governed by the laws of Kenya. As such, the draft would require to be vetted and confirmed by Kenyan counsel to ensure that the same complies with and in consonance with the laws of Kenya. AZB评论：我们理解本协议拟根据XXX法律执行及受XXX法律规管。因此，本草案须经XXX顾问审查及确认，以确保该草案符合XXX法律。开发协议1This development agreement (“Agreement”) is made at this day of Two Thousand and Fourteen BY AND BETWEEN本开发协议（“本协议”）由以下双方于2014年_月_日订立。_, a company incorporated and registered under the provisions of the _ having its registered office at _ hereinafter referred to as “the Owner” (which expression shall unless it be repugnant to the context or meaning thereof be deemed to mean and include its successors and permitted assigns) of the FIRST PART;_，一家根据_规定注册成立的公司，其注册办事处位于_（以下简称甲方的“业主”）（除非与本文件中的上下文或含义矛盾，否则此表述应被视为及包括其继承者及经批准的受让人）；AND 及_, a company incorporated and registered under the provisions of the _ having its registered office at XXXX hereinafter referred to as “the Developer” (which expression shall unless it be repugnant to the context or meaning thereof be deemed to mean and includes its successors) of the SECOND PART; _，一家根据_规定注册成立的公司，其注册办事处位于XXX市XX区XXX（以下简称乙方的“开发商”）（除非与本文件中的上下文或含义矛盾，否则此表述应被视为及包括其继承者）；The Owner and the Developer are hereinafter collectively referred to as the “Parties” and individually as a “Party”. 业主及开发商以下统称为“订约方”，及分别被称为“一方”。WHEREAS:- 鉴于：A. Devolution of title of the property to be captured; 拟取得物业产权转让B. The Owner is seized and possessed of or otherwise well and sufficiently entitled to all that piece or parcel of land admeasuring an area of 2.5 Acres located in Athi River, Nairobi, Kenya, as more particularly described in the Annexure A hereunder written and as delineated by red colour boundary line on the plan hereto annexed and marked as Annexure B (hereinafter referred to as “the said Property”); 业主占有及持有或以其它方式有权充分享有整片或整块土地，该土地面积为2.5公顷，位于XXX。更多详细说明见本文件下的附录A，并在随附及标记为附录B的平面图上用红色边界线描绘（以下简称“上述物业”）。C. The Developer has independently verified and duly satisfied with the title of the Owner to the said Property. 开发商已独立确认及对业主所持上述物业的所有权满意。 D. The Developer has favorable advantages on investment and financing and capability of project development, operation and management and has represented to the Owner that he has the necessary expertise to undertake/carry out the Project (as defined below) in the manner as set out herein; 开发商在投资和融资及项目开发、经营及管理能力方面具有有利优势并已向业主表明，其具有根据本文件内所载方式承担/实施项目（定义见下文）所需专有知识；E. Pursuant to discussions and negotiations held between the Owner and the Developer they have agreed to develop, on the said Property, a project comprising of an urban complex in Nairobi and a new general office building integrating hotels, offices and apartments AZB Comment: Client to confirm AZB评论：客户确认 on the said Property, together with such amenities and facilities as are commensurate to a project of this nature, and as more particularly set out in Annexure C hereto (“Project”) for the consideration and in the manner and on the terms and conditions mutually agreed upon by and between the Parties hereto; 根据业主与开发商之间的讨论及协商，双方已同意在上述物业上开发一个项目，包括 内罗毕市的城市综合体及上述物业上一栋集酒店、办公室及公寓于一体的新综合办公大楼2以及与该性质项目相适应的便利设施及设施。更多详情载于附录C供订约方审议，其方式及条款和条件由订约方约定（“项目”）。F. The Parties are now desirous of recording the terms and conditions mutually agreed upon by and between them as hereinafter appearing: 订约方现希望记录下文出现的经双方约定的条款及条件：NOW THEREFORE THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:- 因此，订约方现协议及约定如下：-1. Definitions and Interpretation 定义及解释1.1 Definitions 定义1.1.1. “Actual Saleable Area” shall have the meaning as ascribed to it under Clause 3.1 below; “实际可售面积”应具有下文第3.1条所赋予之涵义；1.1.2. “Business” shall mean and refer to development and construction projects and all other activities incidental thereto, including but not limited to the Project described herein; “业务”应指开发和建设项目及所有其它附带的活动，包括但不限于本文件内所述的项目；1.1.3. “Construction Schedule” shall have the meaning as ascribed to it under Clause 8.2 below; “施工进度”应具有下文第8.2条所赋予之涵义；1.1.4. “Development Rights” shall have the meaning as ascribed to it under Clause 2 below; “开发权”应具有下文第2条所赋予之涵义；1.1.5. “Force Majeure” shall have the meaning as ascribed to it under Clause 9 below; “不可抗力”应具有下文第9条所赋予之涵义；1.1.6. “FSI” shall stand for Floor Space Index; “FSI”指建筑面积指标；1.1.7. “Gross Sale Proceeds”AZB Comment: Definition to be mutually agreed between the Parties AZB评论：双方同意的定义 shall mean and refer to the total sum agreed by the Developer under any contract for the sale of any unit / premises in the Project to a third party, but shall not include the following: “销售总额”应指开发商在将项目中任何单位/房屋出售予第三方的任何合同中约定的总额，但不包括下列内容：(i) All deposits collected from the prospective purchasers for payments to be made to the concerned government, quasi-government bodies and local authorities; 从准买家收到的用于向有关政府、半政府机构和地方当局付款的所有存款； (ii) Any deposit collected from the purchasers for payment to the relevant authority for availing electricity; 从买家收到的用于就援用电力向相关当局付款的任何存款；(iii) All deposits collected from the prospective purchasers for payment to be made in respect of society formation, legal expense towards share money, corpus fund, maintenance deposit and / or monthly maintenance charges; 从准买家收到的用于就社会形态、份额资金法律费用、本金、维护存款和/或每月维护收费付款的所有存款；(iv) Funds collected from the prospective purchasers towards various facilities such as gas pipeline, solar system, cable TV, broadband facilities, security systems, club house membership charges, charges for extra work / facilities if provided in the unit etc. which may be provided in the Project; (v) 从准买家收到的与项目中可能提供的各种设施（如天然气管道、太阳能系统、有线电视、宽带设施、安全系统、会所会籍费、单位内提供的额外工程/设施的收费等）有关的资金； (vi) The amount collected from the purchasers for payment of stamp duty, registration fees and other incidental and other allied costs and expenses payable on agreements, deeds, documents and instruments, writings which are collected and recovered from the prospective purchasers; and 从买方收到的用于支付印花税、登记费和其它杂费及其它根据协议、契据、文件和文书、著作应从准买家收取及收回的成本及费用；及(vii) The amounts collected towards payment of service tax, value added tax, or any such levy and / or towards any other taxes to be made under any concerned statute which will be made applicable from time to time by the Central and / or State Governments or any local authority. 就支付服务税、增值税或根据中央及/或州政府或任何地方当局不时制定的适用相关法令应支付的任何征费及/或任何其它税务收取的金额。 1.1.8. “Master Plan” shall have the meaning as ascribed to it under Clause 8.1 below; “总体规划”应具有下文第8.1条所赋予之涵义；1.1.9. “Minimum Saleable Area” shall have the meaning as ascribed to it under Clause 3.1 below; “最低可售面积”应具有下文第3.1条所赋予之涵义；1.1.10. “Project” shall have the meaning as ascribed to it under Recital E above; “项目”应具有上文陈述E中所赋予之涵义；1.1.11. “said Property” shall have the meaning as ascribed to it under Recital B above; and “上述物业”应具有上文陈述B中所赋予之涵义；及1.1.12. “Territory” shall mean include the countries of Nairobi, and AZB Comment: Client to confirm the countries to be captured and included in the definition of Territory, for the purposes of the exclusivity provision covered under Clause 17 below. AZB评论：客户根据下文第17条项下的独占性规定确认领地定义内包含的国家。. “领地”应包括内罗毕、 和 4等国。1.2 Interpretation 解释In this Agreement: 本协议中：1.2.1 Headings are used for convenience only and shall not affect the interpretation of this Agreement. 标题仅为了方便且不得影响本协议的解释。1.2.2 unless inconsistent with the context or meaning thereof, reference to the singular includes a reference to the plural and vice versa, and reference to any gender includes a reference to all other genders. 除非不符合本文件中的上下文或含义，否则单数应包括复数，反之亦然，且任何词性包括所有其它词性。 1.2.3 the words “hereof”, “herein” and “hereunder” and words of similar import, when used generally in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement. 本协议中使用的“本文件中”、“本文件内”和“本文件下”及类似含义的词汇指整份协议，而不是指本协议中的任何特定条文。1.2.4 where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase shall have the corresponding meanings. 如已定义一个词或短语，则该词或短语的其它词性及语法形式应具有相应含义。1.2.5 any reference to writing includes printing, typing, lithography and other means of reproducing words in visible form. 任何“著作”包括印刷、打印、平板印刷及以其它可见形式复制文字的其它手段。1.2.6 in construing this Agreement, references to Recitals, Articles, Sections, Clauses, Annexures or Schedules are references to Recitals, Sections, Clauses, Articles, Annexures or Schedules of and to this Agreement. 解释本协议时，陈述、条文、章节、条款、附录或附件指本协议的陈述、条文、章节、条款、附录或附件。1.2.7 reference to any legislation or law or to any provision thereof shall include references to any such law as it may, after the date hereof, from time to time, be amended, supplemented or re-enacted, and any reference to statutory provision shall include any subordinate legislation rules and regulations framed there under from time to time under that provision and include any statutes and rules or regulations made or guidelines issued there under, and any other rules, regulations, guidelines, policy statements, orders or judgments having the force of law. 任何立法或法律或本文件中的任何规定应包括本文件日期后不时修订、补充或重新制定的任何法律，及任何法定规定应包括根据该规定不时制定的任何次级立法条例及规定并包括根据本文件项下规定制定的任何法令及条例或规定或签发的指南，及任何其它具有法律效力的条例、规定、指南、政策声明、命令或判决。 1.2.8 reference to the word “include” shall be construed without limitation. “包括”一词的解释应不受限制。2. Grant of Development Rights 授予开发权The Owner hereby grants to the Developer and the Developer hereby accepts from the Owner all such rights and authority as are required to develop the Project on the said Property (“Development Rights”), strictly in accordance with the terms and conditions contained in this Agreement. 业主特此严格根据本协议所含条款及条件授予及开发商特此接受业主在上述物业上开发项目所需的所有权利及权限（“开发权”）。3. Constructed saleable area in respect of the said Property与上述物业有关的建筑可售面积 3.1 The Developer represents that it shall, at its own cost and expenses, obtain all necessary permissions, approvals and sanctions from the relevant authorities for the development of at least square feet of area on the said Property including for construction of the Project (“Minimum Saleable Area”)AZB Comment: Client to confirm retention of the concept of minimum saleable area. AZB评论：客户确认保留同意最低可售面积。. However, in the event the same is permitted and the required approvals are granted by the competent authorities, the Developer may develop and construct such additional area over and above Minimum Saleable Area as may be permitted. The actual area constructed and developed by the Developer on the said Property shall be hereinafter referred to as “Actual Saleable Area”. 开发商表示其应自行承担成本和费用从相关当局取得在上述物业上开发至少平方英尺面积（“最低可售面积”）5（包括项目施工）所需的许可、批准及审批。然而，如果获得许可及主管部门授予所需批准，则开发商可开发及构建经批准的超过最低可售面积的额外面积。开发商在上述物业上修建及开发的实际面积在下文被称为“实际可售面积”。3.2 In the event the Actual Saleable Area is greater than the Minimum Saleable Area, the development of the same shall be carried out on the same terms and conditions as recorded in this Development Agreement. 如果实际可售面积大于最低可售面积，则实际可售面积的开发应根据本开发协议中的相同条款及条件实施。 3.3 In the event the Developer does not consume the Floor Space Index (“FSI”)/area over and above Minimum Saleable Area as aforesaid, all the remainder /residue FSI shall belong exclusively to the Owner. The Owner, subject to the applicable law, shall be entitled to sell the aforesaid residue FSI in the open market or otherwise deal with the same in such manner as it deems fit. 如果开发商不承担建筑面积指标（“FSI”）/超出上述最低可售面积的面积，所有其余/剩余FSI 应专属于业主。根据适用法律，业主应有权在公开市场上出售上述剩余FSI或以其认为适当的其它方式处理上述剩余FSI。 4. ConsiderationAZB Comment: To be finalized based on clients comments. AZB评论：根据客户的评论最终确定。 代价64.1 In consideration for the grant of the Development Rights by the Owner to the Developer in respect of the said Property: 业主在就上述物业授予开发商开发权的考虑时：a. The Developer has, prior to execution of this Agreement, paid to the Owner, a sum of AZB Comment: Client to confirm if an advance payment is contemplated. AZB评论：客户确认是否考虑预付款。; 开发商已在签署本协议之前向业主支付 7；b. Upon execution hereof, the Developer shall deposit 30% of total project cost an initial contribution amount of , in the designated joint bank account which would be operated by the Owner and developer jointly to be utilized towards the Project costs pursuant to and in furtherance of its obligations under this Agreement; 签署本协议后，开发商应根据其在本协议项下的义务在业主与开发商联合用于项目成本的指定联合银行账号中存入项目总成本的30%作为初始出资 ；c. Further, in addition to the above, the Owner shall also be entitled to receive and retain: 此外，除上述情况外，业主也应有权获得和保留：(i) 30% of the Actual Saleable Area of the Project (“Owners Area”); or 项目实际可售面积的30%（“业主的面积”）；或(ii) 30% of the Gross Sale Proceeds arising out of the Project. 项目产生销售总额的30%；For the purposes of this Clause 4.1 (c) (ii), the payment of the Gross Sale Proceeds to the Owner shall be made on a collection basis, within days of the end of each quarter of every calendar year during the subsistence of this Agreement. 就此第4.1 (c) (ii)款而言，向业主支付的销售总额应在本协议存续期间各日历年的各季度末的 天内收取。5. Refundable Security DepositAZB Comment: Client to confirm retention. ZAB评论：客户确认保持。 可退保证金8In addition to the above, the Developer shall deposit and keep deposited with the Owner a sum of as interest free refundable security deposit, which will be refunded by the Owner to the Developer in terms of the Agreement at the time of delivery of the Owners Area to it / completion of the Project in accordance with the Construction Schedule, unless forfeited in accordance with Clause 19.4 below. 除以上所述外，开发商应向业主缴存及保持缴存 作为免息可退保证金。除非根据下文第19.4款被没收，否则该保证金将由业主根据协议的条款在根据施工进度将业主的面积向其交付/项目竣工时退还予开发商。 6. Ownership of the said Property 上述物业的所有权6.1 On the execution of this Agreement, the Owner shall grant to the Developer a license to enter and remain upon the said Property for enabling them to construct and develop the Project subject to the terms and conditions set out herein. 签署本协议后，业主应授予开发者进入及停留在上述物业上以根据本文件内的条款及条件修建及开发项目的许可。 6.2 It is clarified that the said license is exclusively given to the Developer for entering upon the said Property and to develop the Project on the terms and conditions herein provided and that the same shall not be construed to be grant of possession of the said Property in part performance. 需澄清的是，上述许可专用于开发商进入上述物业根据本文件内的条款及条件开发项目，前提条件是，不得将该许可解释为授予其持有部分上述物业。 6.3 The Developer shall not do and/or cause to be done anything that may in any manner prejudicially affect the rights and interest of the Owner and/or obstruct or interfere with their ownership. Accordingly, the Developer shall hereafter alone at its own costs, charges and expenses in all respects be liable to look after and safeguard the said Property and it shall, therefore, ensure and take proper steps and precautions to prevent any unauthorized persons and trespassers from entering and/or encroaching upon the said Property or any part thereof. 开发商不得执行及/或促使执行任何可能以任何方式对业主的权利及权益产生不利影响及/或妨碍或干扰所有权的事件。因此，开发商应在之后自行承担所有方面的成本、收费及费用负责照看及保护上述物业，且其因此应确保及采取适当步骤及预防措施防止任何未授权人士及侵入者进入和/或侵占物业或其任何部分。6.4 The Developer undertakes that it shall not, create any encumbrance/third party right/ interest in respect of the said Property. 开发商承诺，其不会就上述物业设立任何产权负担/第三方权利/权益。6.5 The Developer shall, at its own expense, develop and market the said Project under the brand name of “ZURI”. 开发者应自行承担费用以“ZURI”品牌名称开发和销售该项目。7. Construction costs and assurances 建设成本和保证7.1 The Developer shall incur the entire construction cost for the development/construction of the Project (including but not limited to construction cost for sub-structure, car parking space whether in basement or at stilt level, super-structure, club, infrastructure, finishing, soft-scapping and hard-scapping etc), architect fees, site overheads, payment to any consultant, expenses incurred by the Developer in seeking various approvals and any other expenses incurred by the Developer during the course of the development of the Project. 开发商应承担项目开发/建设的全部建设成本（包括但不限于低层结构、地下室或倾斜停车场、上层结构、俱乐部、基础设施、修整、软刮削和硬刮削等的建设成本）、建筑师费、场地费用、向任何顾问的付款、开发商在寻求各种批文时招致的费用及开发商在项目开发过程中招致的其它任何费用。7.2 The Parties agree that the development of the Project shall, from the commencement to the completion, be done by the Developer exclusively at its own cost and expense. The Owner agrees that it will not interfere in the development of the construction activity to be carried out by the Developer unless the Developer commits any act of commission/omission which amounts to breach of any of the terms and conditions of this Agreement. The Developer undertakes that the quality of the construction material will match with norms prescribed by the government of Kenya any other applicable law that may be in force at that point of time. 订约方同意，项目的开发（从开工到竣工）应由开发商自行承担成本及费用。业主同意，其将不会干涉开发商进行的施工活动，除非开发商存在违反本协议条款及条件的任何过失/疏忽。开发商承诺建筑材料的质量将符合肯尼亚政府制定的标准及当时可能生效的任何其它适用法律。7.3 The Developer shall be entitled to appoint architects, consultants, contractors, structural engineers, supervisors, labourers and all other third persons/ parties as may be required for the development of the Project, subject to the prior written consent of the Owner. 经业主事先书面同意，开发商应有权委任建筑师、顾问、承包商、结构工程师、监理、劳工及项目开发所需的所有其他第三人/方。8. Construction Schedule 施工进度8.1 Within a period of months from the date of execution hereof, the Parties shall mutually formulate and agree upon a master building plan for the development of the Project (“Master Plan”). 自本协议签署之日起 个月内，订约方应就项目开发共同制定和商定项目的总体建设规划（“总体规划”）。8.2 The Developer shall carry out and complete the construction of the entire Project within a period of calendar years from the date of obtaining the commencement certificate from the competent authority / any other like event, with each construction milestone more particularly described in Annexure D hereto (hereinafter referred to as the “Construction Schedule”). 开发商应在从主管机关取得施工许可证/任何其它类似事件后 个日历年内开展和完成整个项目的建设，各建设里程碑更多详情载于本协议附录D中（以下简称“施工进度”）。8.3 In the event the Developer is unable to complete the development activities within the prescribed timeframes, it shall be liable to pay the Owner liquidated damages of for each month of delay. 如果开发商无法在规定的时限内完成开发活动，其应有责任就延期的每个月份向业主支付 的违约金。8.4 In addition to the above, in the event that the Developer is unable to complete the development activities contemplated under each construction milestone within months from the actual date of such milestone, the Owner may, at its sole discretion, terminate this Agreement in accordance with the provisions of Clause 18 hereunder. 除上文所述外，如果发展商无法在各建设里程碑的实际日期起 个月内完成该里程碑项下的开发活动，则业主可绝对酌情根据本协议下的第18条的规定终止本协议。 8.5 Provided however that in the event the construction of the Project is not completed in accordance with the Construction Schedule on account of a Force Majeure event (described herein below), then the Construction Schedule shall stand accordingly modified, as may be mutually decided by the Parties. 如果因不可抗力事件（说明见下文）导致项目建设未能根据施工进度完成，则经订约方双方决定可相应修改施工进度。8.6 It is the clear understanding between the Parties that upon completion of the their respective obligations under this Agreement, the maintenance of the construction and all other facilities in
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