SALE AND PURCHASE AGREEMENT FOR AU METAL Off the Market Deal

Transcription

1 KNOW ALL MEN BY THESE PRESENTS: This Sale and Purchase Agreement for AU Metal (hereinafter referred to as the Agreement ) is entered into and executed on this day, the th of, 2015, by and between the following Parties: SELLER Seller Name Passport Number Nationality Address Telephone Number Fax Number Address Hereinafter referred to as the SELLER BUYER Buyer Name Passport Number Nationality Address Telephone Number Fax Number Address Hereinafter referred to as the BUYER WHEREAS, the undersigned, Seller, has the authority to sell and deliver this AU Metal and enter into this Sales and Purchase Agreement for AU Metal under the Transaction Code:. The Seller also confirms with full corporate authority and legal responsibility that he is ready, willing and able to sell the said Gold Bars (AU Metal) and provides his Bank Deposit Account, with banking details attached hereto as Appendix A. WHEREAS, The Buyer confirms, with full corporate authority and legal responsibility, that he is ready, willing and able to buy the said Gold Bars (AU Metal). The Buyer is prepared to provide proof of funds to confirm that Buyer has sufficient funds to purchase and guarantee for the payment of 200MT of AU Metal as a first tranche. And that he will also provide his Bank Deposit Account, with banking details attached hereto as Appendix A. Seller Initial Page 1 of 16 Buyer Initial

2 NOW THEREFORE, in consideration of the mutual interests and covenants, the Parties hereby confirm, with full personal and corporate and legal responsibility, under penalty of perjury, and unconditionally agree to the following terms and conditions stipulated hereunder: NOTICES: (i) (ii) (iii) (iv) (v) (vi) (vii) The Au Metal is Sovereign-owned Bullion. The commodity has been moved into Hong Kong over the past twenty (20) years. The supporting records are held at the Seller's Bank, HSBC, Hong Kong, Main Office, and will be made available to the Buyer for inspection at the appropriate time. The Au Metal is insured for its full LBMA market value by a major, world-ranked insurance carrier (Lloyd's of London). The Au Metal is offered for sale on an FOB Seller's warehouse basis. However, the Seller is willing, upon request, after the Buyer's funds are blocked, to deliver the commodity to Metalor Refinery (Hong Kong) for a new, final assay prior to sale. There is substantially more than 5,000 MT of AU Metal held under custodial safekeeping in private warehouse storage in Hong Kong. The commodity is offered for sale to qualified Buyers, subject to availability and acceptance by the Parties. The Au Metal is freely tradeable and liftable and fully exportable, and is free of liens, charges and encumbrances. There is no advance POF requirement. The verification of Seller's product and Buyer's cash funds is conducted simultaneously on a "bank-to-bank" basis after the Agreement has been lodged with the Parties' respective Banks. The "transferof-title-for-payment" is performed on a "ledger-to-ledger" basis within the Seller's Bank. The Seller can assist the Buyer to open accounts in the Bank. The Seller is willing to attend a pre-table Top Meeting at the Buyer's Hong Kong offices (or Hong Kong Law Firm) to discuss the proposed transaction and answer any questions that the Buyer's might have and, thereafter, to manually sign the Agreement. (viii) The Seller intends to lodge the Agreement with the Hong Kong Monetary Authority. Non-performance is considered a serious offence which may subject the offending Party to the full weight of sanctions under the law. This may include the imposition of a substantial jail sentence. 1. TERMS & CONDITIONS Commodity Size Quantity Hallmark : AU Metal (Gold) in Bar Form, GLD Standard Specifications : 12.5 Kilogram Bar : Two Hundred Metric Tons (200 MT), with possible rolls & extensions : International Acceptable Hallmarks less than 5 years old Seller Initial Page 2 of 16 Buyer Initial

3 Purity : 999.5/1000 fineness Price : The second fixing London Bullion Market Association (LBMA) Discount : Gross Discount of Eight Percent (8%) based on the second fixing of the LBMA; Net Discount of Six Percent (6%) to the Buyer Consultancy Fees : 2% total consultancy fees 1% for Buyer s Intermediaries paid by Seller s account (or Buyer's account) 1% for Seller s Intermediaries paid by Seller s account Transfer/Delivery : FOB Seller's security warehouse in Hong Kong (preferred delivery) First lift : Two Hundred Metric Tons (200 MT) Second lift : To be mutually agreed (minimum 200 MT) Payment : "Ledger-to-Ledger" transfer of payment in United States Dollars 2. DOCUMENTATION 1. Certificate of Purity 2. Commercial Invoice 3. Certificate of Ownership 4. Packing List 5. Safe Keeping Receipt (SKR) from storage/warehouse in Hong Kong 6. Certificate of Origin 7. All Export documents 8. Tax Clearance including Declaration that the Product is Free from Liens and Encumbrance 9. Insurance Certificate 3. PAYMENTS Based on the discount rate: Gross discount 8% / Net discount 6% to the Buyer (i) Buyer pays 94% to Seller (ii) Seller pays 1% to Buyer's Consultants, to their designated Group Paymaster, as Consultancy Fees as per the attached IMFPA (Appendix D) (iii) Seller pays 1% to Seller's Consultants, to their designated Group Paymaster, as Consultancy Fees as per the attached IMFPA (Appendix D) 4. PROCEDURES The transaction shall be performed as an Off-Market Private Treaty transaction in the mode of a ledger-to-ledger", "transfer-of-title-for-payment" transaction, under the following procedures: 4.1. Seller and Buyer sign the Agreement via a "face-to-face" meeting or electronically; electronic signatures are deemed acceptable to both Parties. Seller Initial Page 3 of 16 Buyer Initial

4 4.2. Buyer and Seller lodge the signed Agreements with their respective Banks. Buyer issues a Confirmation Letter to Seller for setting up the "window time for their Bank Officers to commence the transaction On the appointment day, during the scheduled window time, Seller s Bank Officer shall directly contact Buyer s Bank Officer to acknowledge receipt of the Agreement and Seller's readiness to perform the Agreement as per Transaction Code: ; then Buyer s Bank Officer will confirm availability of cash funds on deposit to purchase 200 MT of AU Metal by providing written confirmation of Buyer's financial capacity and, simultaneously, Seller s Bank Officer will confirm availability of product by providing a copy of the SKR in the amount of 200 MT of Au Metal After verification of the POF and POP has been confirmed and accepted by both Parties Bank Officers, Buyer shall instruct his Bank Officer to transfer the cash funds by SWIFT MT103 into Buyer s bank account in HSBC, Hong Kong, Main Office, in the amount of 200 MT of AU Metal for the transaction as per Transaction Code:. Note: The Seller can assist the Buyer to open bank accounts at HSBC, Hong Kong, Main Office After Buyer s funds have been transferred into Buyer s bank account in HSBC, Main Office and confirmed to Buyer's HSBC Bank Officer, Seller's Bank Officer shall issue an Invitation Letter as Appendix B to invite Buyer s delegation to attend a Table Top Meeting (TTM) in HSBC, Hong Kong, Main Office for verification of copies of the SKR identified in Section 2 of the Agreement and copies of all related documentation pertaining to the amount of 200 MT of Au Metal. Upon receiving the above Invitation Letter, Buyer shall sign to acknowledge receipt thereof After Buyer s Bank Officer has completed the verification of the Seller's SKR and related documentation, the Buyer's Bank Officer and Seller s Bank Officer shall jointly calculate and fix the final purchase price for 200MT of AU Metal based on the second fixing of the LBMA price on the previous day. After the final purchase price has been calculated and confirmed, Buyer will instruct his Bank Officer to block the Buyer's funds for guaranteeing the payment of 200 MT of AU Metal under the terms of the Agreement as per Transaction Code: On the next banking day after the Buyer s funds have been blocked, Seller shall invite Buyer for physical inspection of the AU Metal at the Seller s Security Warehouse in Hong Kong. Seller shall also provide the original SKR for 200MT of AU Metal and the related documentation to the Buyer. The Buyer shall sign for receipt of the said SKR and documentation On the next banking day after AU Metal has been physically inspected by the Buyer at the Seller s Security warehouse in Hong Kong, Seller shall issue an Invitation Letter to invite Buyer to the Seller s Bank, HSBC Hong Kong, Main Seller Initial Page 4 of 16 Buyer Initial

5 Office, for concluding the transaction. Upon receiving the Invitation Letter, Buyer shall sign to acknowledge receipt thereof. Note: Alternatively, at Buyer's option, in lieu of Sections 4.7 and 4.8 herein, after Buyer s funds have been blocked, Seller shall deliver the amount of 200MT of AU Metal under Seller s name to Metalor refinery in Hong Kong for a new, final assay. Once the assaying is completed and the assay report matches the specifications and requirements of Buyer, then Seller shall issue an Invitation Letter to invite Buyer to Seller s Bank, which is HSBC, Hong Kong Main Office, for concluding the transaction. Upon receiving the Invitation Letter, Buyer shall sign to acknowledge receipt thereof On the appointment day, which shall be the next banking day, Seller and Buyer shall have a meeting in Seller s Bank for concluding the transaction. Seller shall transfer the ownership of 200MT of AU Metal for the first lift and all related documentation to the Buyer and, simultaneously, Buyer shall instruct his Bank Officer to release the full payment for 200 MT of AU Metal, into Seller s bank account in HSBC, Hong Kong, Main Office. The conclusion of the transaction shall take place under acknowledgement of Seller s and Buyer s Bank Officers, who shall endorse the document of transferring the Ownership On the same day, Seller shall instruct his Bank Officer to immediately transfer the Consultancy fee to the designated accounts of consultants and intermediaries (to their nominated Group Paymaster) as per the attached IMFPA (Appendix D) Upon transfer of title and Ownership by the Seller to the Buyer, Buyer will take delivery from the bonded storage/warehouse in Hong Kong Further deliveries of size and frequency of lifts shall be followed in accordance with the delivery schedule and pursuant to the procedures as set forth herein by Buyer and Seller until the commodity is fully exhausted The total contract quantity shall be completed within one (1) month from the date of the contract signing, unless otherwise agreed. 5. NON-CIRCUMVENTION & NON- DISCLOSURE Seller and Buyer agree to accept the provisions of the International Chamber of Commerce, Paris, France, for non-circumvention and non-disclosure, with regards to all and everyone of the third-party assignments with full reciprocation for a period of five (5) years from the last performance of delivery. 6. BANKING COORDINATES Seller s Banking Detail and Buyer s Banking Detail, in the attached Appendix A. Seller Initial Page 5 of 16 Buyer Initial

6 7. TIME LIMITATION It is understood and agreed that should Buyer be unable to provide proof of financial capability on a "bank-to-bank" basis within Ten (10) banking days after setting the window time to commence the transaction as per Procedures, Paragraph #2 herein, the Agreement shall be automatically rendered null and void, without any written notification. 8. OTHER CONDITIONS 8.1. Unless otherwise agreed, the Buyer, in lieu of providing an advance Bank Capability Letter to the Seller, is required to pay to the Seller the Bank Lodgement Fees of $16,500 USD, which charges are required to be paid by the Seller to HSBC, Hong Kong, Main Office for lodging the Agreement with the Bank and for securing a dedicated Bank Officer assigned to the transaction, and for setting the window time for "bank-to-bank" communications between the Buyer's Bank Officer and the Seller's Bank Officer. These fees are not recoverable by the Seller from the Bank in the event of non-performance by the Buyer. The Seller promises to refund the Bank Lodgement Fees to the Buyer, in full, upon the successful completion by the Buyer of the initial Lift of 200 MT of Au Metal. This provision is an attempt by the Seller to discourage non-performing buyers from accepting to transact with the Seller. The requirement does not apply to Sovereign Buyers. The Seller may pay the Bank Lodgement Fees to the Seller at any time up until the day prior to the Seller lodging the Agreement with HSBC, Hong Kong, Main Office. The Seller is willing to meet with the Buyer in Hong Kong (or attend, in person, at the Buyer's Law Firm in Hong Kong) to take receipt of the Bank Lodgement Fees; the Seller will provide acceptable proof of identity and a written receipt for the fees collected Any communication (or attempted communication) with the other Party s Bank or Bank Officer without prior written authorization is strictly forbidden and shall be deemed grounds for immediate cancellation of the Agreement and shall subject the offending party to legal damages hereunder. 9. APPENDIX The following pages have been added to and are considered by all Parties to be an integral part of this Agreement: APPENDIX A: Banking Details APPENDIX B: Bank Invitation Letter APPENDIX C: Compliance Documents (Copies of Passports, etc.) APPENDIX D: Irrevocable Master Fee Protection Agreement (IMFPA) APPENDIX E: Consultants/Paymasters (Copies of Passports) All signatories hereto acknowledge that they have read and fully understand the terms and conditions contained in this Agreement and by their initials and signatures hereby unconditionally agree to adhere to its terms and conditions as of the date noted herein. Seller Initial Page 6 of 16 Buyer Initial

7 SIGNATORIES BELOW ARE BOTH PERSONAL AND CORPORATE LIABILITIES SELLER Name Passport Number Signature Date SELLER S WITNESS Name Passport Number Signature Date BUYER Name Passport Number Signature Date BUYER S WITNESS Name Passport Number Signature Date Seller Initial Page 7 of 16 Buyer Initial

8 SELLER S BANKING DETAILS APPENDIX A Bank Name Bank Address The Hong Kong And Shanghai Banking Corporation Limited HSBC Main Building, 1 Queen s Road Central, Hong Kong. Bank Officer SWIFT Code Bank Telephone Bank Fax Account Name Account Number BUYER S BANKING DETAILS Bank Name Bank Address The Hong Kong and Shanghai Banking Corporation Limited HSBC Main Building, 1 Queen s Road Central, Hong Kong, Bank Officer SWIFT Code Bank Telephone Bank Fax Account Name Account Number Seller Initial Page 8 of 16 Buyer Initial

9 APPENDIX B INVITATION LETTER ISSUED BY SELLER S BANK OFFICER (On Bank Letterhead with Full Contact Details) Date : To : The Hong Kong and Shanghai Banking Corporation Limited, Hong Kong, Main Office, 1 Queen s Road, Central, Hong Kong Attention : Mr. Account Number : Reference : Transaction Code: We, The Hong Kong And Shanghai Banking Corporation Limited, Hong Kong, Main Office, with Bank Address, 1 Queen s Road, Central, Hong Kong. On behalf of our client,, holder of Account No., we hereby confirm, with full bank responsibility, that we have in our possession and will provide the same as required, the Seller s Proof of Product (POP), being the original Warehouse Receipt issued by the private security warehouse in Hong Kong, with attached, the original Certificate of Hallmark and Certificate of Assay from various international recognized refineries less than five (5) years old, in lots of Two Hundred Metric Tons (200 MT) of Au Metal, as required and set out in the Agreement referenced Transaction Code. We, The Hong Kong And Shanghai Banking Corporation Limited, Hong Kong, Main Office, hereby invite you to be present at The Hong Kong And Shanghai Banking Corporation Limited, Hong Kong, Main Office, on, 2015, at am for verification of the copies of the SKR and supporting documentation, and for blocking the funds in the amount equivalent to Two Hundred Metric Tons (200 MT) of Au Metal based on the second fixing, London Bullion Market Association (LBMA) for the Agreement, as per Transaction Code:. For And On Behalf Of (Seller s Bank) Bank Officer Title PIN Code Seller Initial Page 9 of 16 Buyer Initial

10 APPENDIX C: COMPLIANCE DOCUMENTS SELLER S PASSPORT SELLER S WITNESS' PASSPORT BUYER'S CERTIFICATE OF INCORPORATION (Where Applicable) BUYER S PASSPORT BUYER S WITNESS' PASSPORT Seller Initial Page 10 of 16 Buyer Initial

11 APPENDIX D: IRREVOCABLE MASTER FEE PROTECTION AGREEMENT Notice: This Irrevocable Master Fee Protection Agreement ("IMFPA") is valid only upon the successful completion of the above Transaction (Transaction Code ) (the "Transaction"); otherwise it is null and void. Upon execution of the Agreement between the Buyer and the Seller for the Transaction (the Agreement ), this IMFPA shall become an integral part ("Appendix D") of this Sale and Purchase Agreement for Au Metal FOR VALUABLE CONSIDERATION, the receipt and adequacy of which is hereby acknowledged, I,, (Company Title), the authorized signatory for, the "Seller" named in the above-referenced Transaction, do hereby agree and covenant to honor the terms and conditions of this Irrevocable Master Fee Protection Agreement ("IMFPA") as follows: 1. The Seller hereby agrees, irrevocably and unconditionally, to pay to the participating beneficiaries (collectively the "Consultants; and each, individually, a "Consultant") via their respective designated Paymasters, their full contracted consulting fees and expenses (collectively, the Consultancy Fees ) as provided herein, which Consultancy Fees are related to services performed by Consultants for the Seller and Buyer to originate and complete the Transaction. 2. This Appendix D shall serve as a pay order (the Pay Order ) to the Seller's Bank for the Consultancy Fees, as described herein below. This Pay Order is hereby irrevocably confirmed and payable to participating Consultants via their designated Paymasters upon the closing of each and every lift ( Lift ) of the Transaction as per the Agreement, including any and all rolls and extensions thereof ( Rolls & Extensions ), without any protests, delays (other than routine banking delays), and/or deductions (other than of bank wire transfer fees, and/or of potential foreign exchange fees for any sums to be remitted in non-u.s. currency). 3. The Seller agrees to place this IMFPA in full force with the Seller's Bank for the purpose of ordering payment to the participating Consultants via their designated Paymasters listed below, to the Paymasters' payment coordinates as herein provided. All Consultancy Fees will be immediately and directly paid by the Seller's Bank via SWIFT Wire Transfer to the hereafter-designated Paymasters, to each Paymaster's respective bank account, simultaneously to the Sellers Bank s receipt of payment to the Seller for the Product contained in each Lift during the term of the Agreement, commencing from the delivery of the Initial Lift of the Transaction and continuing until the final Lift of the Transaction is delivered, including any and all Rolls & Extensions of the Agreement. 4. This IMFPA is an irrevocable commitment and Pay Order by the undersigned to remit to the participating Consultants via their designated Paymasters listed below, to the respective Paymaster's bank coordinates as shown, the amount of Consultancy Fees as given pertaining to each and every Lift of the Transaction. This IMFPA shall remain in full force and effect for a period of five (5) years from the date of this IMFPA, possible rolls and extensions, additions or any new or transfer contracts which might otherwise originate from this transaction. All entitlements under this Pay Seller Initial Page 11 of 16 Buyer Initial

12 Order shall include the entire Transaction named herein and any and all Rolls & Extensions of the Agreement, and any and all negotiated transactions leading to new agreements by and between the Buyer/Buyer s Mandate and the Seller/Seller s Mandate. 5. The Seller hereby acknowledges and accepts that each of the below-designated Paymasters may, just once after each Three (3)-Month period subsequent to the Commencement Date of the Agreement, at its discretion and upon written notice to said effect delivered to the Seller's Bank via , fax, letter, or courier, provide alternate banking instructions to the Seller's Bank for its own Consulting Fees, naming a single alternate bank account to which said fees shall be redirected and paid by the Seller's Bank, without fail, from the first business day subsequent to the date of delivery of said written notice to the Seller's Bank. 6. The Seller irrevocably agrees that the participating Consultants involved in introducing the transaction to the Buyer and Seller do not assume any responsibility for the above-referenced Transaction and that they cannot be held liable for any reason associated with said Transaction, except for potential Non-Circumvention and Non-Disclosure (NCND) violations. Neither the Seller nor Seller s Mandate shall have any claims against any of the Consultants dealings with the Buyer whatsoever outside of this IMFPA. 7. The Seller, hereby irrevocably guarantee, with full corporate authority and responsibility, and under penalty of perjury, to provide fee protection to each participating Consultant via their designated Paymaster relating to the total sales amount of the contracted volume of the Transaction, so that 100% of the resulting Consultancy Fees are paid to each Consultant s designated Paymaster's banking coordinates in United States Dollars (USD) or in other currencies as specified herein as per the terms of this IMFPA. The Seller will pay all Consultancy Fees on the date of receipt of payment of the TT transfer by direct bank transfer. 8. It is mutually understood that the participating Consultants and each party named in this IMFPA agrees to keep confidential the above Transaction, and not to disclose to any third parties the Transaction Code(s), any description of the Transaction, or the names of the Buyer, the Owner/Seller, or of any Banks or other institutions who are parties to this specific Transaction, with the exception of necessary disclosure of such confidential information to each party s own banking officers and attorneys. 9. It is likewise understood that the Seller expressly reserves the right to: (a) deal with any bank or depository, public or private, that it has in the past; or (b) decide to pursue transactions with said parties in the future, including those institutions that may be used in completing this Transaction. It is understood that the participating Consultants will be part of any future transactions for the next five (5) years conducted between the Seller/its assigns/its representatives and the Buyer/its representatives. Seller Initial Page 12 of 16 Buyer Initial

13 CONTRACTED-FOR CONSULTING FEES: Total Consultancy Fees of Number Percent (X%) of One-Hundred Percent (100%) of the purchase value of each Lift of the Transaction shall be distributed by the Seller to the below-designated Consultants' Paymasters as follows: NUMBER 1: CONSULTANTS' PAYMASTER Number Percent (X%) of One-Hundred Percent (100%) of the purchase value of every Lift as per the Agreement and covering also eventual rolls & extensions, revisions or additions or new or transfer contracts payable to: Name of Company Bank Bank Branch Bank Address Account Name Account Number Account Signatory SWIFT Code IBAN No. Bank Officer/Title Bank Telephone Bank Fax Instructions Same-day transfer and immediate credit for each Lift/transfer payment together with the Transaction Code(s). Please to (Name of Paymaster or Banker) - via the following address: (please insert one address only) - that a bank wire has been sent for (Name of Paymaster or Banker). All transfer instructions shall state: Funds are clean and clear, of non-criminal origin and are payable in cash immediately upon receipt by the Beneficiary's Bank". Note: Allocation and distribution of received amounts by the above-named Paymaster to participating Consultants will be done by the Paymaster under his full individual and/or Seller Initial Page 13 of 16 Buyer Initial

14 corporate responsibility via separate agreement with the Consultants involved. The Seller is not responsible for the actions of the Paymaster. NUMBER 2: CONSULTANTS' PAYMASTER Number Percent (X%) of One-Hundred Percent (100%) of the purchase value of every Lift as per the Agreement and covering also eventual rolls & extensions, revisions or additions or new or transfer contracts payable to: Name of Company Bank Bank Branch Bank Address Account Name Account Number Account Signatory SWIFT Code IBAN No. Bank Officer/Title Bank Telephone Bank Fax Instructions Same-day transfer and immediate credit for each Lift/transfer payment together with the Transaction Code(s). Please to (Name of Paymaster or Banker) - via the following address: (please insert one address only) - that a bank wire has been sent for (Name of Paymaster or Banker). All transfer instructions shall state: Funds are clean and clear, of non-criminal origin and are payable in cash immediately upon receipt by the Beneficiary's Bank". Note: Allocation and distribution of received amounts by the above-named Paymaster to participating Consultants will be done by the Paymaster under his full individual and/or corporate responsibility via separate agreement with the Consultants involved. The Seller is not responsible for the actions of the Paymaster. Seller Initial Page 14 of 16 Buyer Initial

15 SELLER S ACKNOWLEDGEMENT This IMFPA constitutes a guaranteed, irrevocable, unconditional and non-retractable Pay Order issued to the benefit of the participating Consultants via their designated Paymasters named herein, given with full corporate responsibility, by which we hereby instruct the Seller's Bank to simultaneously pay, without any protests, delays, or deductions (other than those referenced hereinabove), upon the closing of each and every Lift of the subject Transaction, every month until the Transaction under the aboveentered Transaction Codes is totally completed, the full Consultancy Fees for each Consultant, as stipulated herein, to the Consultants designated Paymaster, to the respective Paymaster's bank coordinates as hereinabove given. IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Master Fee Protection Agreement on this day of, 2015 on behalf of the Seller: SELLER Name Passport No Country of Issuance Expiration Date Seller Initial Page 15 of 16 Buyer Initial

16 APPENDIX E: CONSULTANTS/PAYMASTERS (PASSPORT COPIES) Copies of the Passports of Consultant s/paymasters (Numbers 1-2) identified in the IMFPA ("APPENDIX D") CONSULTANT/PAYMASTER NO. 1 CONSULTANT/PAYMASTER NO. 2 END OF AGREEMENT TOTAL NUMBER OF PAGES, INCLUDING EXHIBITS: 16 Seller Initial Page 16 of 16 Buyer Initial