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Financial Policies Dich Vu Tai Chanh Chuyen Nghiep
Project & Commodity Financing PROFESSIONAL FINANCIAL SERVICES
Procedures & Documents Services Financiers Professionnels
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Professional Advice & Introduction: Commodity Financing. Project Funding. Self-Liquidating Loans. Assets Management. High Yield Investment Programs. Discounting Documents PN,L/C,SL/C,BG. Banking and Insurance Documents. Secured Financial Procedures. Doc.Texts. Transactions of Precious Stones, Metals. Asset Management
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SOME EXAMPLES OF JVA & TRADING CONTRACTS
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Example 1 of a Trading Contract (Ref.No.71 of General Procedures)
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INVESTMENT AGREEMENT AND MANAGEMENT CONTRACT
BETWEEN
___________________________________
AND
____________________________________
DATED THIS _____th DAY OF _______ 2004
THIS AGREEMENT IS MADE THIS _____th Day of ______ 2004
BETWEEN
__________________________________________
Address:___________________________________
represented by: ____________________________
AND
__________________________________________
Address:___________________________________
Represented by:_____________________________
RECITALS:
A ___________ is a trading company with the ability, knowledge and affiliations with banks and commitment holders to manage this trading transaction.
B ___________ is an investor wishing to enter into a Buy/Sell trading transaction involving MTNs and Bank Guarantees for profit.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 In construing this Agreement no regard shall be had to the clause headings and in and for the purposes of this Agreement the following words and expressions shall have the following meanings (unless the context otherwise requires):
"Buy/Sell" means buying and selling of bank instruments.
"MTNs" means Medium Term Notes and or Bank Debentures.
"Fed" means Federal Reserve Bank of United States of America..
"Securities" means MTNs , Bank Guarantees. Etc
"Bank Instruments" means any document issued officially by banks with monetary value.
1.2 In this Agreement words denoting the singular number include the plural and vice versa and words importing one gender include the other genders and references to persons shall include corporations and vice versa.
1.3 The following Agreement shall be in effect for a period of one (1) year from date of the execution.
2. WHEREAS:
2.1 The investor has provided ____________________ in the amount of _________________ USD(_________________ United States Dollars) for the purpose of entering into a Buy/Sell Investment Program Managed by ____________, trading company, which consists of the purchase and sale of MTN's and BG's.
2.2 WHEREAS: The Investor has requested and Trader is ready to provide certain Guarantees and warranties with respect to;
2.3 NOW THEREFORE, in consideration of mutual covenants contained herein and of the investor providing the said Funds/Certificate of Deposit the Parties agree as follows:
3. WARRANTS AND CONFIRMS
3.1 Trading Company warrants and confirms that they have the capacity to contract directly with their banks and commitment holders to purchase and sell simultaneously various SECURITIES without risk and to provide a profit for the investor. Trading Company will act as Program Manager and Coordinator and is responsible for the program and contract performance.
3.2 The Investor herein is granting M.______________ of Trading Company a limited Power of Attorney to act on the Investors behalf in negotiations with bank officers, bank contracts agreements, guarantees, receipts and to have exclusive authority in the trading of bank instruments (buying and selling MTNs and Bank Guarantees). M.______________ of the Trading Company is hereby granted the power of attorney to negotiate and finalise the transaction for and on behalf of the investor
4.1 M.___________ of the Trading Company has at all times the authority to check incoming and outgoing document at the trading bank referring to this buy/sell transaction. The investor will inform the trading bank that this authority has been given to M.___________ of the Trading Company upon request.
4.PROCEDURES
4.1 After acceptance of all documentation by Trading Co. and agreements have been issued, signed and received by all parties, the investor will instruct his bank to issue a SWIFT Bank Commitment of Reservation of Funds, verification of funds into the following account:
Bank Name and Address: __________________________
Bank Account Number :____________________________
SWIFT Code: ____________________________________
Bank Telephone Number: __________________________
Bank Officer: M___________________________________
Account Holder: __________________________________
4.2 Upon receipt of the Bank Commitment of Reservation, Trading Co. will proceed in obtaining a cash back credit line for and on behalf of the Investor. The Credit Facility will request an (__(bank Document)___) be issued by the Investor’s bank upon granting the Credit Line.
4.3 Once the credit line has been obtained Trading Co. will open a joint account in ____________ Bank (Trading Bank) located in ____________, Switzerland for the receipt of the Cash Back Credit Line.
4.4 Upon receipt of the funds in Trading Bank, trading will commence within 2-3 banking days.
5. RETURNS
5.1 Subject to the fluctuations of the market it is envisaged the gross returns will be at a minimum of 15% (fifteen percent) and a high of 22% (twenty-two percent) normally somewhere in the middle of that range.
5.2 Number of transactions in the first two weeks, approximately three transactions per week, thereafter approximately eight per week
5.3 The gross profit percentages in clause 6.1 is after the 20% (twenty percent) deduction for the Federal Reserve Bank of America for humanitarian projects
6. PROFIT DISTRIBUTION
6.1 Out of the gross amount the profit will be distributed equally in two parts 50% (fifty percent) to the investor and 50% (fifty percent) to the trading entity. All fees, commissions, bank expenses, trading expenses, account expenses and recording expenses and any additional costs will be incurred concerning this buy/ sell transaction by the Trading entity. The net profit for the investor will be a MINIMUM of 50% per week.
6.2 For the distribution as in clause 6.1 a bank account in will be opened at Trading Bank in joint names and with joint signatures of the investor and the trader for the placement of the gross profit, being the difference between the buying price and the selling price of the MTNs and or the Bank Guarantees.
6.3 The joint bank account as set up in clause 4.4 is for the sole purpose as described in clause 6.2.
6.4 Distribution will take place after every Tranch and sent by SWIFT to the designated bank accounts nominated by the investor, trader and others.
6.5 The trader will submit the costs, expenditure and the break up of the distribution of profit by e-mail or fax to the investor, on receiving this submission the investor without delay, check to their satisfaction, and then authorise the bank and trader to released the funds as required.
7. CONFIDENTIAL
7.1 The information given in this agreement is STRICTLY CONFIDENTIAL BETWEEN THE PARTIES and must not be revealed to any third party.
7.2 All parties hereby acknowledge that the Non-Circumvention and Non- Disclosure conditions apply to this transaction for a period of 12 months from the date of execution of the agreement.
8. RISK
8.1 During each and every stage of the transaction, under no circumstances shall the investor’s principal funds be put at risk, loss or depletion. The funds will always remain under the investor’s full and sole control, with this control the investor, the program manager and any other parties will be unable to encumber the investor's funds in any way, so as to ensure that the investor's funds will be used only and exclusively for obtaining a credit line for the above mentioned buy/sell transaction.
9. JURISDICTION OF LAW
9.1 Parties acknowledge that this agreement is a full recourse commercial obligation constructed, concluded, and subject to interpretation under the laws of the courts of the United Kingdom, Switzerland and the United States of America under which laws the construction, interpretation, execution, validity, enforceability, performance and such other matters about this agreement shall be governed.
10. CONCLUSION.
10.1 After completion of the buy/sell transaction, this agreement shall end, taking into account the fact stated in clause 1.3
10.2 All parties have read and fully understand and irrevocably accept the contents of this agreement.
11. NOTICES
11.1 Any notices, documents, approvals, consents or other communications required or permitted or authorised to be given;
(a) By or to ______________ shall be given by or to him or his authorised representative
(b) By or to Trading Co. shall be given by or to its General Manager or his authorised representative.
11.2 Any notices, documents, approvals, consents or other communications required or permitted or authorised to be given to or served on any party hereunder shall be in writing and may be given by facsimile or by registered or certified mail and shall be deemed sufficiently given or duly received if addressed to the party intended as the recipient thereof at the respective addresses specified above, or to such address as either party may specify as its address for this purpose by notice in writing to the other. Any notices, documents, approvals, consents or other communications required or permitted or authorised to be given to or served on
(a) If by facsimile on the business day following its dispatch; or
(b) If by mail on the second business day following the day of posting.
A facsimile of this document shall be deemed as original, legally binding with full force and effect.
IN WITNESS WHEREOF the parties have executed this Agreement on this day.
Dated this __th day of __________ 2004
Signed for and on behalf of Signed for and on behalf of
____________(Investor Co.) _____________(Trading Co.)
___________________________ __________________________
Signature Signature
M._________________________ M._________________________
____________________________ __________________________
(Signature of Witness) (Signature of Witness)
Prof.Dr.NGUYEN PHUC LIEN M.________________________
(Name of Witness in Full)
AUTHORIZATION TO OBTAIN A CREDIT LINE (NO.72)ON INVESTOR’S LETTERHEAD
---------------------------------------------------------------------------------------------------------- AUTHORIZATION TO OBTAIN A CREDIT LINE
Between:
Company: ____________________________
Address: ____________________________
____________________________
Represented by: ___________________(Title)_____
And:
Trading Co.: ____________________________
____________________________
____________________________
Represented by: ___________________(Title)_____
We, __(Company)_________, represented by M._____________, (Title)_____ exclusively authorizes _______(Company)____ to obtain a Cash Backed Credit Line against the herein mentioned ___(bank Document)____ issued by Citibank, Singapore in the amount of ______________________ United States Dollars (_____,000,000.00 USD).
Both parties hereby fully agree that the cash backed credit line will be between _____% and _____% of face value less ____% to ____% for processing and application fees.
It is further agreed that ___(Company)__ will arrange for and open a bank account in ___(Trading Bank)___ for and on behalf of the owner to lodge the credit line. The credit line will be for the purpose of entering into a buy/sell transaction as outline in the Management and Investment Agreements.
Both parties hereby attest and agreed this __th day of _____ 200_.
Investor Trading Co.______________________
____________________________ _______________________________
M._____________________ M.__________________________
Title:___________________ Title:________________________
Passport No.: ___________ Passport No.: ________________
Country of Issue: _________ Country of Issue: ______________
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Example 2 of a Partnership Agreement (JVA Ref.No.71 of General Procedures)
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| | | PARTNERSHIP AGREEMENT
This Agreement is entered into by and between:
Financial Group ______, a _________(Name of Conutry) Corporation registered in the _____________ and/or its assigns (“XXXX”)
and
______________(Individual or Company) (Investor) and/or assigns (“UNDERWRITER”).
R E C I T A L S:
WHEREAS, the parties herein propose to form a partnership to engage in the business of buying and selling (“trading”) certain financial instruments;
WHEREAS, XXXX is organized under the laws of the State of California and the United States of America for the purposes of providing counsel and advice to clients regarding the management of various tangible and intangible assets;
WHEREAS, UNDERWRITER has tangible assets in the form of unencumbered United States Dollars that it wishes to use to engage in the buying and selling of certain financial instruments;
WHEREAS, XXXX has certain specific capabilities to arrange for the purchase and sale of financial instruments;
WHEREAS, UNDERWRITER desires to avail itself of the experience, sources of information, advice, assistance and certain facilities of, or available to, XXXX and to have XXXX undertake the duties and responsibilities hereinafter set forth;
WHEREAS, XXXX is willing to undertake to render such services on the terms and conditions hereinafter set forth and to contribute its expertise, knowledge, and capabilities to the mutual benefit of the parties hereto;
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WHEREAS, UNDERWRITER has agreed to make available a BG from ______________Bank, in the amount of $300,000,000 or More (Three hundred Million US dollars or More) (the “ASSETS”) for the purpose of underwriting certain buy and sell transactions, first by short term Program then by long term Program during 40 (forty) weeks renewable by mutual consent as described herein for the mutual benefit of the parties hereto;
WHEREAS, the parties desire to form a partnership (the “PARTNERSHIP”), by execution of this Agreement for the purposes provided to fix and define their respective responsibilities, interests, and liabilities in connection with the performance of the before mentioned;
NOW, THEREFORE, in consideration of mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to constitute themselves as joint partners (the “PARTNERS”) for the purposes set forth herein, and intending to be legally bound hereby, the parties hereto do covenant, agree, and certify as follows:
1. Formation of Partnership
The PARTNERSHIP shall be formed as a Limited Partnership organized under the laws of __________________________.
1.1 General Partner
XXXX shall act as the General Partner and assume all duties and responsibilities, as described herein, for operating and managing the PARTNERSHIP. In exchange for accepting these responsibilities and contributing its skill, expertise, contacts, technology, and other resources to the PARTNERSHIP, XXXX shall participate in any profits generated by the PARTNERSHIP as set forth herein.
1.2 Limited Partners
The UNDERWRITER shall act as a Limited Partner and have no responsibilities for operating or managing the PARTNERSHIP. In exchange for providing certain financial consideration herein described, the UNDERWRITER shall participate in any profits generated by the PARTNERSHIP as set forth herein.
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1.3 Name
The PARTNERSHIP shall be known by the name: SOWELL Trading LLP (or to be determined)
Principal Place of Business:
The PARTNERSHIP shall have its principal business office co-located with the offices of
______ ___________________, Address:____________________________
or at some other location agreeable to the PARTNERS.
2. Contributions and Participation of Partners
2.1 UNDERWRITER
The UNDERWRITER shall contribute funds in the amount of $300,000.000 or more (Three Hundred Million US Dollars or more) (the “ASSETS”) in the form of BG/LC from _________________Bank. The ASSETS shall be returned to the UNDERWRITER in its entirety at the completion of this Agreement. The UNDERWRITER and/or assigns will be paid 50% (Fifty Percent) of all net profits and be responsible for 50% (Fifty Percent) of all expenses, fees, and other legitimate costs of the business of the PARTNERSHIP. (These expenses will be deducted out from the settlement of the first tranche transaction).
2.2 XXXX.
E.D.E.S shall contribute the skills, experience, expertise, technology, contacts, relationships, and other resources required to earn profits for the PARTNERS by leveraging the ASSETS in certain financial transactions as described herein. XXXX and/or assigns will be paid 50% (Fifty Percent) of all profits and be responsible for 50% (Fifty Percent) of all expenses, fees, and other legitimate costs of the business of the PARTNERSHIP. (These expenses will be deducted out from the settlement of the first tranche transaction).
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3. Duties and Responsibilities of Partners
3.1 UNDERWRITER
The UNDERWRITER agrees to make the ASSETS available to the PARTNERSHIP for the term of this AGREEMENT and to provide XXXX, as the General Partner, with sufficient access to the ASSETS to establish a line of credit secured by the ASSETS for the mutual benefit of the partners. The proceeds of this line of credit shall be used to make such investments as may be acceptable to the PARTNERS.3.2 XXXX
XXXX agrees to structure, operate, and manage the PARTNERSHIP, to procure a line of credit secured by the ASSETS, and to arrange, execute and monitor all financial transactions as described herein for the mutual benefit of the PARTNERS. The PARTNERS agree that XXXX, as General Partner, shall have the legal authority and Power of Attorney to negotiate and execute binding contracts on behalf of the PARTNERSHIP for the purposes of and within the restrictions set forth in this AGREEMENT. XXXX agrees to safeguard, on a “best effort” basis and to the limit of its abilities, the integrity of the ASSETS and to return the ASSETS in its entirety and unencumbered to the UNDERWRITER at the completion of this AGREEMENT.
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4.1 Line of Credit
XXXX shall, on a “best effort” basis, attempt to procure a credit line secured by the ASSETS. The proceeds derived from this line of credit (the “FUNDS”) shall be used by the PARTNERSHIP to engage in trading transactions as described herein for the mutual benefit of the PARTNERS. The PARTNERS agrees that the UNDERWRITER will provide XXXX with such access to the ASSETS as may be required to procure this line of credit. XXXX agrees that it will make a “best effort” attempt to secure a line of credit equal net to __% of the authenticated value of the ASSETS after minus Banking fee and interest. The Bank Guarantee from _______(issuing Bank) will be sent to ______________Bank (or other major Banks, if there is a need to change the bank due to any event requirement, the replacing bank will have the same or better) The PARTNERS further agrees that, upon the successful issuance of the line of credit, XXXX is authorized to make payments of ___% of the authenticated value of the assets to cover banking fees, interest.
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Location of FUNDS: The PARTNERS agrees to establish a joint account with Wells Fargo Bank, USA (We reserve the right to change the bank for the Short term program, but, the bank will be equivalent or better) and deposit the FUNDS into this account. The bank, the type of account, and the location must be acceptable to the PARTNERS. This bank account will be the PARTNERSHIP’S “HOME ACCOUNT”. The UNDERWRITER agrees to leave the principal amount of the FUNDS as set forth above on deposit in the HOME ACCOUNT and available to the PARTNERSHIP under the conditions and provisions set forth herein for the duration of the term of this AGREEMENT. The PARTNERS further agree that all profits will be deposited into the HOME ACCOUNT, and all payments and disbursements will be made from the HOME ACCOUNT.
4.2 Security of FUNDS
E.D.E.S acknowledges and agrees that its first and foremost responsibility to the UNDERWRITER is to maintain the security and integrity of the FUNDS. The UNDERWRITER requires, and _______ agrees, that the FUNDS and/or purchased bank instruments shall be held in the name of the PARTNERS at all times, and that ______ shall not take possession of, pledge, promise, encumber, or otherwise diminish the value of the FUNDS at any time except under the terms and conditions set forth herein.
4.3 Restricted Use of FUNDS
XXX shall make use of the FUNDS to generate earnings, dividends, profit sharing, and other returns for the PARTNERS (the “RETURNS”) by buying certain debentures and other financial instruments and re-selling them at a profit. Any and all RETURNS will be shared between the PARTNERS as set forth herein above. The PARTNERS understand and agree that _______, as General Partner, is restricted in the use of the FUNDS by the provisions set forth herein. _______ shall use the FUNDS only to buy and sell Senior Bank Debentures in the form of Medium Term Notes issued by major Western European or US banks (the “INSTRUMENTS”) in various denominations of US Dollars, Euros, or other currencies to be approved by the UNDERWRITER.
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4.4 Transactions
During the term of this AGREEMENT, the PARTNERS expect to participate in one or more “TRANSACTIONS” in which INSTRUMENTS may be bought and sold. Each TRANSACTION shall be governed by a “Purchase Contract” defining the purchase of INSTRUMENTS from a seller, and an “Exit Contract” defining the sale of INSTRUMENTS to a buyer. The PARTNERS agree that ______ shall have full authority to negotiate and bind all Purchase and Exit contracts on behalf of and for the mutual benefit of the PARTNERS.
4.5 Transaction Tranches
Each purchase and subsequent sale of an INSTRUMENT or group of INSTRUMENTS within a TRANSACTION shall be considered to be one trading “TRANCHE”. Each TRANCHE shall be completed (“settled”) when the FUNDS used to purchase the INSTRUMENTS along with any profits generated by the sale of the INSTRUMENTS are re-deposited in the HOME ACCOUNT. All TRANCHES shall be initiated from the HOME ACCOUNT and settled into the HOME ACCOUNT, excepting for the distribution of profits, costs, fees, and other expenses as set forth herein.
4.6 Returns and Costs
The PARTNERSHIP will distribute “RETURNS” earned by the completion of TRANCHES to the PARTNERS, and shall pay all fees, commissions, costs, and other expenses related to each TRANCHE at the successful conclusion and settlement of each TRANCHE.
Short Term Program:
To be announced precisely when fund is available. During this period of time, we recommend funds to stay for accumulation and only a very small portion of profit can be disbursed.
Long term Program:
a) Rate of Returns
_______ agrees not to engage in TRANSACTIONS in which it cannot reasonably expect to earn a profit. As of the date of execution of this agreement, _______ has full expectations of being able to earn a gross profit of up to 20% or better per TRANCHE
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Rate of Accrual
RETURNS shall be accrued to the PARTNERSHIP as TRANCHES are settled. _______ has expectations to achieve one or more TRANCHE settlements per banking day.
b) Frequency of Payments
RETURNS, fees, commissions, wire charges, and other expenses shall be paid by the PARTNERSHIP as TRANCHES are settled.
c) Ability to Achieve Results
XXXX attests and represents that on the date of execution of this AGREEMENT that it has the ability and full expectations of achieving the results defined by the terms and conditions of this Agreement.
d) Methodology of Payments
Payments shall be made via bank wire to the PARTNERS as each TRANCHE is settled. Full banking coordinates for the PARTNERS shall be exchanged upon the execution of this AGREEMENT.
4.7 Accountability
E.D.E.S shall provide the PARTNERS with monthly statements, delivered electronically via email, via facsimile, or via courier as requested by the PARTNERS. These statements shall detail the TRANCHES opened and settled, and the RETURNS accrued during the preceding month.
4.8 Records and Auditing
The FUNDS and all transactions completed in the operation of the PARTNERSHIP are to be recorded in books of account in accordance with accepted accounting procedures. These books are to be open for the inspection of each of the PARTNERS at all times.
5. The Contract Amount
The PARTNERS enter into this PARTNERSHIP with the intention and purpose of engaging in a total transaction value of at least $500,000,000,000.00 (five hundred billion US dollars) (the “CONTRACT AMOUNT”). Extensions to the CONTRACT AMOUNT may be possible with the permission and cooperation of all PARTNERS.
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6. Effective Date, Term, and Termination
6.1 Effective Date of the AGREEMENT
This AGREEMENT shall commence and become effective on the date on which all PARTNERS have executed it and a countersigned original has been delivered to all PARTNERS (the “EFFECTIVE DATE”). The PARTNERS understand and agree, however, that following the Effective Date of this AGREEMENT, XXXX, as General Partner, will execute contracts on behalf of the PARTNERSHIP with Third-Party providers and buyers of Medium Term Notes in volumes sufficient to satisfy the CONTRACT AMOUNT as set forth above. As of the date of execution of this AGREEMENT, XXXX attests that it has written offers in hand that have been delivered to XXXX by both providers and buyers in sufficient quantities to satisfy the CONTRACT AMOUNT. The PARTNERS understand and agree that XXXX has no control or authority over the providers and buyers, and that this AGREEMENT may therefore be terminated without prejudice or penalty by XXXX until such time as binding contracts have been executed between the PARTNERSHIP and the Third-Party providers and buyers sufficient to satisfy the CONTRACT AMOUNT.
6.2 Term of the AGREEMENT
This AGREEMENT shall remain in force until the total value of all TRANCHES meets or exceeds the CONTRACT AMOUNT, at which time the AGREEMENT shall be considered to have been “completed” unless extended by mutual consent of the PARTNERS. The PARTNERS understand and agree that once contracts have been established with Third-Party providers and buyers, the PARTNERS will be irrevocably committed to the terms and conditions of this AGREEMENT until the AGREEMENT has been completed as defined herein above.
6.3 Dissolution Upon Completion
Upon the completion of this AGREEMENT as set forth herein above, any and all residual RETURNS will be distributed to the PARTNERS, any and all residual expenses, fees, and other legitimate costs of doing business shall be paid by the PARTNERSHIP, and the entirety of the FUNDS shall be returned intact to the UNDERWRITER.
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6.4 Early Termination of the AGREEMENT
The PARTNERS understand and agree that upon execution of this AGREEMENT commitments will be made to, and contracts will be signed with, providers and purchasers of Medium Term Notes sufficient to satisfy the CONTRACT AMOUNT. The PARTNERS further understand and AGREE that once these commitments and contracts have been made with such Third-Parties, this AGREEMENT may not be terminated by the PARTNERS for any reason until the AGREEMENT has been completed as set forth above and that any inability to complete this AGREEMENT after it has been executed may expose the PARTNERS to criminal and/or civil prosecution. Noting in this AGREEMENT, however, shall be construed to prohibit XXXX from terminating this agreement without penalty prior to executing contracts with Third-Party providers and buyers as set forth above, or from terminating this contract at any time, and at its sole option, without penalty should a Third-Party provider or buyer fail to perform according to the terms and conditions of an executed purchase or sale agreement. Further, the PARTNERS agree that XXXX has the right to terminate this AGREEMENT without penalty should it be unsuccessful for whatever reason in procuring a suitable line of credit as defined above. Nothing in this AGREEMENT shall prevent a PARTNER from enforcing its rights by such remedies as may be available in lieu of termination.
7. Notices
All notices, consents, and demands under this AGREEMENT shall be in writing and may be delivered personally, sent by telegram, telex, air courier, or facsimile or may be forwarded by first-class registered or certified mail to the address for each party set forth below, or to such address as each party may from time to time specify by notice. Any notice delivered or sent by telegram, telex, or facsimile shall be deemed to have been given and received on the business day next following the date of delivery, but only if written proof of delivery can be produced. Any notice mailed as aforesaid shall be deemed to have been given and received on the fifth (5th) business day following the date it is posted, providing that if between the time of mailing and the actual receipt of the notice there shall be a mail strike, slowdown, labor dispute or other condition which might affect delivery of the notice by the mail, then the notice shall be effective only if actually delivered. Each party’s proper address shall be the address set forth below unless and until a party specified another address by written notice to the other party:
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XXXX________________
Name:________________
Address:______________
_____________________
Telephone:____________
Facsimile:_____________
UNDERWRITER
_______________________
__________, ____________
Telephone: _____________
Facsimile: ______________
8. Force Majeure
This Agreement is subject to the terms and conditions set forth by the International Commerce Commission regarding Force Majeure and Hardship and popularly known as the “ICC Force Majeure Clause 2003” and “ICC Hardship Clause 2003” as they are commonly applied to international banking and financial transactions. Further, XXXX will not be held responsible for the inability or failure to perform of any Third-Party not under its direct control.
9. Severability
If any provision of this AGREEMENT, or the application thereof to any person or circumstance, shall for any reason or to any extent be invalid or unenforceable, such invalidity or unenforceability shall not in any manner affect or render invalid or unenforceable the remainder of this AGREEMENT, and the application of that provision to other persons or circumstances shall not be affected but, rather, shall be enforced to the extent permitted by law.
10. Assign ability
Neither this AGREEMENT, nor any rights or obligations conferred hereunder may be assigned in whole or in part by either party without obtaining the prior written consent of the other party. XXXX reserves the right, however, to assign this AGREEMENT at its option to any company or legal entity entirely under its control.
11. Successors
This AGREEMENT shall extend to and be binding upon the heirs, personal representatives, successors, and assigns of the parties hereto.
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12. Warranty of Authority
The persons executing and delivering this AGREEMENT on behalf of the parties represent and warrant that each of them is duly authorized to do so and that the execution of this AGREEMENT is the lawful and voluntary act of the parties.
13. Modifications
It is agreed by and between the parties hereto that this AGREEMENT may be modified only by a written instrument signed by all of the parties.
14. Waiver of Breach
The failure of either party to enforce for any time or for any period of time any of the provisions of this AGREEMENT shall not be construed as a waiver of the right of such party thereafter to enforce each and every such provision.
15. Governing Law
This AGREEMENT, and any disputes hereunder, shall be governed by the laws of the United States and the State of California. Any controversy or claim arising out of or in relation to this Agreement, or breach hereof, shall be finally settled by arbitration in California, U.S.A
a) The arbitration shall be conducted before three arbitrators in accordance with the Rules of Arbitration and Conciliation of the International Chamber of Commerce then in effect.
b) The PARTNER or PARTNERS requesting arbitration shall appoint one arbitrator and the other PARTNER or PARTNERS in the position of defendant shall jointly appoint a second arbitrator within thirty (30) days after receipt of a demand for arbitration. The arbitrators shall be freely selected, and the PARTNERS shall not be limited to any prescribed list. The two arbitrators thus appointed shall, within thirty (30) days after both shall have been appointed, appoint a third arbitrator who shall preside over the arbitration proceedings.
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16. Costs and Attorneys Fees
In the event that either party institutes mediation or legal action for the enforcement of any right, obligation, provision, or covenant of this AGREEMENT, the prevailing party shall be entitled to a reasonable attorney fees in addition to costs of suit.
17. Counterparts
This AGREEMENT may be executed simultaneously in two or more counterparts, all of which together shall constitute one and the same instrument and when so signed shall be deemed to bear the date first written below.
18. Language and Translations
This AGREEMENT is written in the English language and executed in two counterparts, each of which shall be deemed an original. The English language text of the AGREEMENT shall prevail over any translation thereof.
19. Confidentiality
Except as required by law or as reasonably required in order to enable and execute the transactions contemplated herein, the PARTNERS agree to maintain the confidentiality of all information and data relating to the business of the PARTNERSHIP and each other, including, without limitation, economic, financial and/or personal information, disclosed, directly or indirectly, or disclosed by visual inspection, and shall not disclose such information and data to a third party without the prior written consent of the other PARTNERS
20. Entire Agreement
All of the terms and conditions of the AGREEMENT between the parties are contained herein, and no representations or inducements have been made other than those specifically set forth.
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IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first written above.
For XXXX Group For_____________ . (“UNDERWRITER”):
Signature ________________________ Signature ________________________
Name: __________________ Name:_____________________
Title: __________________ Title: ______________________
Date: __________________ Date: ______________________
Witnesses:
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