Member Lounge QVC

These Rules of Occupation

These Rules of Occupation (the “Rules”) shall apply to all Holiday Owners of Quality Vacation Club.

RIGHTS OF OCCUPATION

  • (a) The Trustee shall use its best endeavours to keep the respective Apartments free from any mortgage, lien or encumbrance unless for the protection of the Holiday Owners’ Exclusive Rights of Occupation and to ensure that nothing is done which might prejudice beneficial ownership of the Exclusive Rights of Occupation of the Apartments by the Vendor and/or Holiday Owners until the Termination Date.
  • (b) Any person by entering into a Purchase Agreement, a Form of Surrender and Request, or such other suitable document in use from time to time and complying with the legal obligations contained therein shall upon the completion thereof become a Holiday Owner. Such document shall, at all times, be deemed to include, inter alia, a commitment by the purchaser, to be bound by the Rules. On becoming a Holiday Owner, the Holiday Owner’s name and details will be added to the Register.
  • (c)
    • (i) The Trustee shall issue one Holiday Certificate per Annual or Alternate Year Weekly Period purchased, which shall indicate its period of validity, the Apartment, or type of Apartment, and the Weekly Period or number of Weekly Periods allocated to the Holiday Owner and, in the case of Alternate Year Weekly Periods, whether the Holiday Certificate relates to Odd or Even Years.
    • (ii) Each Holiday Certificate shall be valid for the period indicated thereon and will entitle the Owner thereof to exclusively occupy the Apartment or type of Apartment, for the Weekly Period or number of Weekly Periods in each Annual or Alternate Year, as specified in the Holiday Certificate, provided that:-
      • (a) Holiday Certificates shall not be issued such that the Weekly Period for any year, as indicated therein, is duplicated, and
      • (b) the aggregate number of Weekly Periods conferred on all Holiday Certificates issued for a particular type of Apartment , for any year shall not exceed the aggregate number of such Weekly Periods vested in the Trustee for that year in all the Apartments of that type.
    • (iii) In the event that no last year of occupation is specified on a Holiday Certificate, the Exclusive Rights of Occupation attached thereto shall cease at the Termination Date defined herein for Holiday Owners of Odd Year Weekly Periods and one year earlier for Holiday Owners of Even Year Weekly Periods.
    • (iv) In accordance with the requirements of the Trustee to safeguard the long term interests of the Holiday Owners a specific Apartment and Weekly Period shall be allocated to each Holiday Certificate. This shall not preclude the Holiday Owner from applying for a Weekly Period for any of the Apartments at any of the Resorts, in common with all other Holiday Owners, in accordance with these Rules. In the event of a specific Apartment being referred to on a Holiday Certificate, the Vendor, at its sole discretion, shall have the right to replace it with a different Apartment of similar or better standard and size.
    • (v) All Exclusive Rights of Occupation shall continue in existence until the Termination Date attributed to them in the Holiday Certificates relating to them and, upon the expiration of the last Termination Date in an Apartment, shall lapse.
    • (vi) The Weekly Periods will be numbered from 1 to 52 in accordance with the IEEO table of Weekly Periods.
    • (vii) The Vendor is beneficially entitled to the Exclusive Rights of Occupation attributable to all unsold Holiday Certificates and is at liberty to transfer such beneficial entitlement by entering into and completing Purchase Agreements as contemplated in these Rules.
  • (d) Unless his Holiday Certificate specifies a particular Weekly Period, each Holiday Owner shall apply for and be allocated occupation of the Apartments in accordance with the following provisions:-
    • (i) Holiday Owners may apply for particular Weekly Periods to be allocated to them, up to 12 months in advance of the first day of their proposed occupation. Such applications shall be made in the form prescribed by the Vendor for that purpose.
    • (ii) In the event of the Holiday Owners first choice not being available, the Vendor will offer Holiday Owners whose applications cannot be met, alternative Weekly Periods.
    • (iii) Any unused Annual or Alternate Year holiday entitlement will expire at the end of the applicable calendar year and may not be carried forward to the following applicable year unless saved within the external exchange system as outlined herein.

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EXTERNAL EXCHANGE

  • (a) The Vendor shall use its best endeavours to maintain in force an affiliation agreement with the IEEO.
  • (b) Each Holiday Owner will be automatically enrolled as a member of the IEEO for the period specified on his Purchase Agreement. The cost of external exchanges through and renewals of membership of the IEEO, shall be borne by the Holiday Owner.
  • (c) The external exchange programme of the IEEO will operate as follows:-
    • (i) A Holiday Owner shall reserve a Weekly Period through the Vendor, stating at the time of requesting the reservation that he intends to make an external exchange. The Vendor will deposit that Weekly Period with the IEEO on behalf of the Holiday Owner who may then effect an external exchange under the normal terms and conditions of the IEEO.
    • (ii) An allocation which has been deposited within the IEEO may not be retrieved by the Holiday Owner.
    • (iii) A Holiday Owner will not be permitted to occupy accommodation reserved through the IEEO unless the Management Charge and any other charges or fees due in respect of his Weekly Period has been paid, irrespective of whether an allocation has been made.
    • (iv) Availability of accommodation through the IEEO is entirely dependent upon the weeks deposited therein by its members and any representations made by the IEEO in this or any other respect are theirs and theirs alone.

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MANAGEMENT & MANAGEMENT CHARGE

The Vendor has appointed a Management Company to manage and administer the affairs of Quality Vacation Club and to collect the annual Management Charges.

  • (a) Holiday Owners shall contribute in the form of an annual Management Charge to all reasonable costs incurred in connection with the management of the Club, the Resorts and Apartments and shall pay in addition the fees of the Management Company for performing its obligations under these Rules. Such costs shall include, without prejudice to the generality of the foregoing, the following:-
    • (i) Maintenance, repair, redecoration, cleaning, and (where necessary) renewal of the Apartments, services and facilities provided for the benefit of the Holiday Owners whether exclusive or in common with others entitled.
    • (ii) Maintenance, repair and (when necessary) replacement of furniture, equipment, utensils, provisions, furnishings, fittings and fixtures in or about or used with the Apartments.
    • (iii) Insurance of the Apartments and the contents provided at the Resorts for their full reinstatement cost, and other insurance whether or not relating to the Apartments which shall reasonably be considered necessary.
    • (iv) All outgoings incurred in respect of the Apartments including electricity, gas, water, rates, contributions to the upkeep of areas used in common with third parties and any taxes or other charges or impositions whether of an annual or recurring nature or otherwise.
    • (v) Any reasonable charges which may be incurred in the management and preservation of the value of the Apartments and the running of the Club’s affairs and their common facilities, including, inter alia, insurance of the Apartments and the provision of reception and security services.
    • (vi) The maintenance of a sinking fund (if one is to be established) to meet capital expenditure.
    • (vii)The fees and expenses of the Trustee and all other costs, expenses or payments to the Trustee under the Deed of Trust and the fees and expenses of the auditor, lawyers and other professional advisers to the Club.
    • (viii) Charges in respect of any golf, tennis, swimming pool, fitness centre or other facilities made available to the Holiday Owners pursuant to any arrangements made by the Vendor or Management Company.
    • (ix) All work and acts which are required to be done to comply with any statutory provisions or the directions or notices of any governmental, local or public authority.
    • (x) The maintenance of any reserve funds requested by the Trustee in accordance with the Deed of Trust.
    • (xi) Any bank or administrative charges levied by the Management Company to take account of the costs of receiving Management Charges in foreign currencies or from overseas.
  • (b) Owners of Alternate Year Weekly Periods shall be liable to pay the Management Charge applicable only in the years to which they are entitled to occupy the Apartments.
  • (c) Without prejudice to the generality of the foregoing, the powers that the Vendor may delegate to the Management Company shall include the power to collect any sums payable by, and to enforce the obligations of Holiday Owners pursuant to these Rules, including the powers assigned to it under paragraph 6 of these Rules.
  • (d) The Management Company shall have sole discretion in deciding what monies should be spent for any of the purposes set out above and when the same shall be expended.
  • (e) Each Holiday Owner shall pay the Management Charge to the Management Company in accordance with the following terms:
    • (i) The first Management Charge, in advance, at the date of purchase of the Holiday Owner's Exclusive Rights of Occupation.
    • (ii) Subsequent Management Charges by the 1st November of the year preceding the year of occupation to which they relate or within one month of invoice whichever is the later (the “Due Date”).
    • (iii) Interest at the rate of 2% per month shall be added to any Management Charges not paid by the Due Date.
  • (f) The Management Charge for year 2022 is
    • US$485 per Weekly Period for a Studio Apartment
      US$619 per Weekly Period for a One Bedroom Apartment
      US$748 per Weekly Period for a Two Bedroom Apartment
    • US$645 per Weekly Period for a Studio Villa
      US$785 per Weekly Period for a One Bedroom Villa
      US$932 per Weekly Period for a Two Bedroom Villa
  • (g) With effect from 14th September 2001 the above fees are subject to any VAT or other similar tax which is required by law.
  • (h) Except as otherwise outlined herein, the increase in the Management Charge for any year shall not exceed 5% unless the rates of inflation in Thailand or any of the countries in which the Resorts are situated are higher and result in the weighted average of the rates of inflation being greater than 5% between the Commencement Date and the date of issue of the invoice for Management Charges, in which case the higher rate will be applied to the increase. In the event of the Management Company wishing to impose a higher increase (for example as a result of government action, uninsured natural disaster, the need to provide additional services, etc), the Management Company shall invoice all Holiday Owners with the proposed Management Charge. The Management Company shall provide an annual budget for the forthcoming year covering the costs mentioned in Clause 4(a) hereof. The administration and management fee due to the Management Company shall be calculated at 20% of the gross invoiceable Management Charges.
    In the event of the Management Company resigning or being unable to continue to provide the services required the Vendor shall appoint another legal entity to act as Management Company with a Management Charge calculated in accordance with the terms of this clause, or shall act as the Management Company itself. Should the Vendor fail to appoint a replacement Management Company, the Trustee may, at its sole discretion, make such appointment in accordance with the Deed of Trust.
  • (i) The Management Company shall promptly collect all Management Charges and shall promptly pay and discharge out of all such monies so collected, all expenses in relation to the management and administration of the Club, the Resorts and the Apartments and shall maintain and keep proper records and books of account and make them available at all reasonable times for inspection by the Vendor.
  • (j) The Vendor shall not be liable to pay Management Charges in respect of unsold Holiday Certificates unless a Weekly Period attributable thereto is occupied other than by Holiday Owners.
  • (k) Where the Vendor has appointed a Management Company any dispute or difference between them arising out of these Rules shall be referred to the decision of a single expert to be agreed between the Vendor and the Management Company or in default of agreement to be appointed on the application of either party by the Trustee.
  • (l) In respect of any sums advanced or expended by the Trustee in connection with the Deed of Trust, the Club, the Resorts, the Project Documentation or the parties thereto in accordance with clause 6.2(d) of the Deed of Trust, the Trustee shall be entitled to have recourse to and be indemnified jointly and severally out of such part of the Trust Property, Management Charges and any other assets as are held, by the Trustee, to the order of the Vendor, the Management Company or the Club, including the proceeds of sale thereof. For such purposes, the Trustee shall have all the powers of an absolute owner to sell, let, mortgage or otherwise dispose of same, or any part thereof, unrestricted by clause 3 of the Deed of Trust and the Rules

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FURTHER OBLIGATIONS OF HOLIDAY OWNERS

Each Holiday Owner shall be subject to the following further obligations:-

  • (a)
    • (i) To notify in writing the Management Company 14 days in advance of the commencement of the relevant Weekly Period of the name of the persons who will be occupying the relevant Weekly Period or of the fact that the Holiday Owner has deposited the relevant Weekly Period into the system of the external exchange organisation.
    • (ii) To occupy the Apartment only between the check-in time on the first day and the check-out time on the last day of each period of occupation allocated to him in any year.
  • (b) To keep and maintain the interior of the Apartment occupied in a good and tenantable state and condition during the period of the Holiday Owner's occupancy, and to pay or indemnify the Management Company against any damage, deterioration or dilapidation, other than as a result of fair wear and tear, and damage or destruction by fire or any other insured risk, which may have occurred during his occupancy period, of which the Management Company shall be the sole judge.
  • (c) In the event that any repair or maintenance work is required to an Apartment or its contents whilst it is occupied by a Holiday Owner, to allow reasonable access on reasonable notice except in the case of emergency, to enable such work to be carried out.
  • (d) Not to make any alterations to any Apartment or its contents and to pay all other expenses incurred by the Holiday Owner including all telephone calls (levied either by meter or by standing charge) and to pay such reasonable deposit as the Management Company may demand against such charges.
  • (e) To notify the Trustee and Management Company forthwith of any change in his permanent address.
  • (f) At all times to observe the Rules as amended from time to time.
  • (g) Not to do anything which would make void or voidable the insurance of the Resorts or which may operate to increase the premium.
  • (h) To pay within one month of the same being demanded, the proposed Management Charges previously provided for and if the same is not paid by such date interest at 2% per month on the arrears from such date.

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SUSPENSION AND CANCELLATION OF EXCLUSIVE RIGHTS OF OCCUPATION

If in the absolute discretion of the Management Company, any Holiday Owner shall have committed a substantial breach of the obligations imposed on him herein, then the Holiday Owner’s Exclusive Rights of Occupation may be suspended by the Management Company by giving written notice to this effect to the Holiday Owner. If such breach is not remedied within 60 days of the notice first being given, the Management Company shall send a further notice to the Holiday Owner advising that failure to remedy such breach (as well as the consequences or effects of such breach) within 60 days, will result in the cancellation of the Holiday Owner's Exclusive Rights of Occupation. If such breach remains unremedied within that period of notice, the Holiday Owner's Exclusive Rights of Occupation shall be cancelled and sold as soon as possible at whatever price the Management Company can achieve and the Management Company is irrevocably and unconditionally appointed as an attorney for the Holiday Owner. The Management Company may delegate this power to another party for the specific purpose of selling the Exclusive Rights of Occupation to execute and deliver any necessary instrument of sale of such Exclusive Rights of Occupation on the Holiday Owners behalf. The Management Company may receive the sales proceeds and shall cause the purchaser to be registered as holder of such Exclusive Rights of Occupation. The proceeds of such sale will be used first in remedying the aforementioned breach and any expenses and commissions incurred by the Management Company and/or Trustee in effecting the cancellation, sale and transfer of the Exclusive Rights of Occupation and the balance, if any, shall be held on behalf of the former Holiday Owner. The Management Company shall not be bound to earn or pay interest on any such proceeds of sale and shall not pay such money to the Holiday Owner until he shall have provided any documents of title for the Exclusive Rights of Occupation. The receipt by the Management Company of such sales proceeds shall be a good discharge to the purchaser who shall not be bound to see the application thereof and after the name of the purchaser has been registered as the new holder of the Exclusive Rights of Occupation in exercise of the power contained in this clause the validity of such proceedings shall not be questioned by any person.

For the avoidance of doubt:

  • (a) Non-payment by a Holiday Owner of his Management Charge shall constitute a substantial breach of his obligations under the above provisions of this clause;
  • (b) Upon cancellation by the Management Company of his Exclusive Rights of Occupation, the Holiday Owner shall be deemed to have appointed the Management Company as agent with power to nominate a successor on such terms and conditions as it shall reasonably determine.
  • (c) It should be understood that the balance available, if any, to the former Holiday Owner is likely to be a small fraction of the original purchase price once the above-mentioned expenses and charges have been deducted;
  • (d) Should the former Holiday Owner make payment of all sums to remedy the applicable breach, together with interest and a reinstatement fee to be determined by the Management Company within a period of 12 months from the date of permanent cancellation of his Exclusive Rights of Occupation, then (provided that the reinstated Holiday Owner has surrendered his previous Holiday Certificate) the former Holiday Owner’s Exclusive Rights of Occupation shall be reinstated in an Apartment of the same type subject only to there being unsold Holiday Certificates available and such Holiday Owner shall be issued with a new Holiday Certificate.

Each Holiday Owner by entry into and completion of a Purchase Agreement or registering the transfer to him of a Holiday Certificate as contemplated at clause 7 subscribes to the provisions of these Rules (as from time to time revised).

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TRANSFER OF EXCLUSIVE RIGHTS OF OCCUPATION

  • (a) Subject to the provisions of the above clause, any Holiday Owner may apply to dispose of his Exclusive Rights of Occupation to any person, whether by sale, gift or otherwise, by means of the certificate of transfer appearing on the reverse of the Holiday Certificate.
  • (b) On the death of a Holiday Owner, his personal representative may apply to dispose of his Exclusive Rights of Occupation in a like manner.
  • (c) Upon delivery to the Trustee of the Holiday Certificate evidencing the Exclusive Rights of Occupation to be transferred, together with a completed certificate of transfer signed by the transferor and the transferee, and such fee as the Trustee shall from time to time determine and provided that no Management Charges or other sums contemplated under these Rules are owed by the transferor, the Trustee shall replace the name of the transferor by that of the transferee in the Register and issue a new Holiday Certificate in the name of the transferee. Pending such replacement and issue no effective disposal as contemplated at sub clauses (a) or (b) above shall be deemed to have taken place.
  • (d) From the date of the entry of the name of the transferee in the Register, all obligations to the Vendor or the Management Company or the transferor under these Rules (other than obligations of the transferor accrued at the time of the disposal of the Holiday Certificate by the transferor to the transferee) shall thereupon cease and the transferee shall be entitled to exercise the rights of the Holiday Owner.

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OBLIGATIONS OF THE VENDOR AND TRUSTEE

The Vendor and Trustee shall observe and perform all their obligations set out herein and in the Deed of Trust from the date hereof until the Termination Date including inter alia control by the Trustee over the Exclusive Rights of Occupation to be held for the benefit of the Vendor and Holiday Owners. The Vendor, Trustee and all other parties with access to the Register shall keep the contents thereof confidential unless obliged to disclose same by law or, in the opinion of the Trustee, duly authorised government body.

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HOLIDAY OWNERS’ GUESTS

  • (a) A Holiday Owner may without effecting a transfer within the meaning of clause 7, permit another person or persons to take advantage of his Exclusive Rights of Occupation to which his Holiday Certificate relates provided that if he wishes to do so he shall give the Management Company not less than 14 days prior notice in writing of his intention to do so, together with the name and address of such person.
  • (b) Notwithstanding any such permission as aforesaid, the holder of the Holiday Certificate shall remain liable under the provisions of these Rules for Management Charges and in all other respects.

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No Holiday Owner shall be considered to be acquiring a property right on entering into a Purchase Agreement.

Any clause or sub-clause of these Rules shall be null and void in respect of any particular Purchase Agreement if the application of that clause or sub-clause would bring any party to this Project Documentation or that Purchase Agreement within the scope of any legislation relating to investment or to property rights in the country in which that Purchase Agreement was entered into. Notwithstanding the fact that any clause or sub-clause of these Rules may have become null and void as a result of the application of this sub-clause, all other clauses or sub-clauses of these Rules shall remain valid and enforceable in their entirety.

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DEFINITIONS

The following expressions shall have the following meanings:-

“Alternate Year” means every other year.

“Annual” means every year.

“Apartments” means the completed, furnished and unencumbered apartments, villas, townhouses or other residential accommodation or Weekly Periods therein, the Exclusive Rights of Occupation of which have been vested in the Trustee (or a wholly owned subsidiary of the Trustee) and are held in trust for the Vendor and the Holiday Owners to whom the Vendor may have transferred Exclusive Rights of Occupation.

“Commencement Date” means 1st January 2002.

“Deed of Trust” means the deed between the Vendor and the Trustee annexed to these Rules.

“Even Years” means calendar years ending in an even digit.

“Exclusive Rights of Occupation” means the beneficial right to occupy and enjoy (and to allow others to occupy and enjoy), the type of Apartment for the number of Weekly Periods each year or each Alternate Year referred to at one of the Resorts in the Purchase Agreement and/or Holiday Certificate), subject to the operation of these Rules between the date of the Holiday Certificate and the Termination Date.

“Holiday Certificate” means the Certificate granted to a Holiday Owner by the Vendor evidencing the Holiday Owner's entitlement to the Exclusive Rights of Occupation specified therein. A specimen Holiday Certificate is attached hereto.

“Holiday Owner” means the purchaser as outlined in a Purchase Agreement after completion by the purchaser of all his contractual obligations outlined in that Purchase Agreement.

“IEEO” means Resort Condominiums International (RCI) the international external exchange organisation and/or such other like organisation as the Vendor may from time to time select.

“Management Charge” means the charge to Holiday Owners provided for herein.

“Management Company” means the Vendor or its appointee from time to time.

“Odd Years” means calendar years ending in an odd digit.

“Project Documentation” means the Deed of Trust and all other documents governing the running of Quality Vacation Club which underlie these Rules and the sale of the Exclusive Rights of Occupation to the Purchaser.

“Purchase Agreement” means the Purchase Agreement by which the Vendor agrees to sell and the purchaser to purchase a Holiday Certificate at the price and in accordance with the conditions set out therein.

“Register” means the register of current Holiday Owners maintained by the Trustee or other competent body.

“Resorts” means the holiday resorts at which Exclusive Rights of Occupation in one or more Apartments for one or more Weekly Periods has been vested in the name of the Trustee (or a wholly owned subsidiary of the Trustee).

“Termination Date” means 31st December 2031 subject to the provision to renew the lease to the Owning Company as provided in the lease agreement being successfully exercised at the expiry of the initial lease period.

“Trustee” means Hutchinson & Co Trust Company Ltd whose main place of business is at Priory Court, Tuscam Way, Camberley, Surrey, England, GU15 3YX or any successor.

“Vendor” means Samui Peninsula Co. Ltd, a company registered in Thailand or any of its successors in title or assigns.

“Weekly Period” means the seven night period in respect of which Exclusive Rights of Occupation of an Apartment are granted under a Purchase Agreement and allocated annually or on Alternate Years to a Holiday Owner in accordance with these Rules.

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MODIFICATION OF THE RULES

The Vendor and Trustee may modify or add to the provisions of these Rules in such manner and to such extent as they may consider necessary or expedient provided that the Trustee shall certify in writing that in its opinion such modification, alteration or addition does not materially prejudice the interests of the then existing Resorts and Holiday Owners and does not operate to release any of the parties hereto from any responsibility to the then existing Resorts and Holiday Owners.

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RENEWAL PROVISION

Within the two years preceding the Termination Date or as soon as practicable thereafter, the Vendor shall ballot all Holiday Owners as to whether to extend the term of the Club for a further period of time using the Apartments at the Resorts with which there remains in force an agreement for the provision of Exclusive Rights of Occupation to Holiday Owners, supplemented by any new Resorts and or Apartments that may be necessary to provide adequate Apartments for all those Holiday Owners wishing to extend the term of the Club. No Holiday Owner shall be obliged to extend his period of membership of the Club beyond the Termination Date unless he votes in favour of the proposition.

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LAW AND ORIGINAL LANGUAGE

  • (a) The English Language shall be the original language of these Rules and all other documents which form part of the Project Documentation. Where these documents are translated into any other language, in the case of conflict the English original shall prevail.
  • (b) These Rules shall be governed by the Laws of Thailand.