THIS JOINT VENTURE AGREEMENT (this Agreement) is made the 29th day of August 2020
(Effective Date) BETWEEN:
1.
Worldnance Co., Ltd. (Company No. 0135563018554), a private company limited by
shares incorporated under the laws of the Kingdom of Thailand whose registered office
is situated at 57 Soi Rangsit-Nakornnayok 27 Soi 1, Prachathipat Sub-District,
Thanyaburi District, Pathum Thani 12130 Thailand (WCL), and which is represented by
[name, holder of Thai passport no. #];
and
2.
Essence Investments Limited (Company Number 43718), a limited liability company
incorporated in the Marshall Islands whose registered office address is Trust Company
Complex, Ajeltake Road, Ajeltake Island, Majuro, Republic of the Marshall Islands MH
96960 (EIL) and which is represented by Komal Patel;
(together the Parties and each a Party)
RECITALS
A.
EIL has identified an opportunity to purchase, export and on-sell gold bullion
(Opportunity), for which it requires trade finance.
B.
WCL has the necessary resources to provide the trade finance required by EIL for the
purposes of the Venture.
C.
The Parties recognise that it is to their mutual commercial benefit to combine their
knowledge, expertise, talents and resources in order to efficiently and profitably exploit
the Opportunity.
D.
The Parties have accordingly agreed to jointly venture in order to achieve the
commercial benefit referred to in Recital C (Joint Venture), and the Parties enter into
this Agreement to record their respective rights, duties and obligations under, and the
terms and conditions of, the Joint Venture.
OPERATIVE PROVISIONS
1.
DEFINITIONS AND INTERPRETATION
1.1.
In this Agreement (including its Recitals) unless the context otherwise requires the
following terms shall have the following meanings:
Agreement means this Agreement, including the schedules and annexures, as amended
from time to time;
Business means the purchase and on-sale of gold bullion and such other commercial
activities as the Parties may agree from time to time;
Consent means a Party’s express written consent, such consent not to be unreasonably
withheld, delayed or conditioned;
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Event of Default has the meaning given at clause 9.1;
Expense has the meaning given at clause 6.2.
Instrument has the meaning provided at clause 2.3;
Interest means, in relation to a Party, that Party's undivided right, title and interest at
that time in:
(a)
the profits of the Joint Venture; and
(b)
all the Party's rights, title, obligations and interest into and under this Agreement;
which are expressed at clause 2.4 as a percentage of the aggregate of both the Parties'
interests referred to above at that time;
Joint Venture and JV means the association constituted by this Agreement;
Joint Venture Assets means:
(a)
property of every nature owned by the Joint Venture or in which the Joint
Venture has an interest, to the extent of that ownership or interest; and
(b)
accrued and undistributed profits of the Business;
Opportunity means the establishment and operation of the Business;
Price means the price for which the Product is sold following its delivery to Dubai.
personal protective equipment;
Prescribed Amount means such sum as is from time to time equal to the London Bullion
Market Association 2nd gold fix price;
Product means gold (Au) the subject of a Transaction;
Purchaser means the party purchasing Product (prospectively or actually) in a
Transaction;
SPA means the Sale and Purchase Agreement for gold bullion (HS Code 71081200) to
which EIL is a party as Buyer, in substantially the terms of the draft annexed hereto as
Schedule 2, as executed and subject to such amendments as may be made from time
to time;
Transaction means a discrete transaction of Business; and
Transaction Documents means the sale and purchase agreement and any other related
documentation required for the Transaction.
1.2.
In this Agreement, unless the contrary intention appears:
1.2.1
a reference to this Agreement includes any variation or replacement thereof;
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1.2.2
the singular includes the plural and vice versa;
1.2.3
the word person includes a firm, a body corporate and unincorporated
association or an authority;
1.2.4
a reference to a person includes a reference to the persons executors,
administrators, successors, substitutes and assigns;
1.2.5
the period specified and the dates from a given day or the date of an act or
event, will be calculated exclusive of that day;
1.2.6
a reference to a recital, annexure, attachment or schedule is a reference to a
recital, annexure, attachment or schedule to this Agreement;
1.2.7
headings are inserted for convenience and do not affect interpretation of this
Agreement;
1.2.8
a reference to any legislation or any provision of any legislation includes any
modification or re-enactment of the legislation or any legislative provisions
substituted for, and all legislation statutory instrument and regulation issued
under, for legislation;
1.2.9
where any work or phrase is given a definite meaning in this Agreement any
part of speech or other grammatical form in respect of such word or phrase
has a corresponding meaning; and
1.2.10
if a party is or includes a Trustee, the Trustee is bound by the provisions of
this Agreement both as Trustee and in its own right.
2.
JOINT VENTURE
2.1
The Parties will from the Effective Date jointly pursue the Business.
2.2
The respective roles of the Parties in the Joint Venture are:
2.3
2.2.1
WCL will be responsible for providing and maintaining the validity and
effectiveness of the Instruments; and
2.2.2
EIL will be responsible for all other aspects of the Business.
For the purposes of this Agreement, Instruments means:
2.3.1
a BCL (bank comfort letter) in SWIFT MT 799 format, referencing the
Prescribed Amount, with verbiage substantially similar to that appearing at
Schedule 1; and
2.3.2
a SBLC (standby letter of credit) in SWIFT MT 760 format, referencing the
Prescribed Amount, with verbiage substantially similar to that appearing at
Schedule 2; and
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2.3.3
2.4
such further or other financial accommodation as is from time to time
required by the Seller under, and for the purposes of, the SPA.
The respective Interests of each of the Parties in the JV are:
2.4.1
WCL – fifty per cent (50%); and
2.4.2
EIL – fifty per cent (50%).
3.
CONDUCT OF THE BUSINESS
3.1
Each Party will deal with the other Party through its nominated representative (each a
Representative) subject always to the right of each Representative to delegate to the
extent necessary for operational efficiency, and the initial Representative of:
3.2
3.1.1
WCL is [name]; and
3.1.2
EIL is Komal (Karl) Patel.
The Parties contemplate that every Transaction will be undertaken by the JV as set out
in the SPA, and EIL undertakes discuss with WCL and to at all keep WCL informed as to:
3.2.1
all Transactions whether past, current of future;
3.2.2
any amendments proposed in respect of the JVA.
PROVIDED ALWAYS that in accordance with clause 2.2.2, EIL will have sole responsibility
for executing all transactional aspects of the Business including without limitation
determining the:
(a) Price for which the Product is sold; and
(b) Expenses incurred in every Transaction.
3.3
3.4
The Parties declare that in pursuing the JV they intend to maintain high standards of
organisation, execution and communication notwithstanding which they may agree to
vary and/or waive formalities in respect of a Transaction as and to the extent that the
particular elements of the Transaction may require so as to achieve such commercially
reasonable balance between flexibility and formality as is:
3.3.1
reasonably necessary in all the circumstances; and
3.3.2
consistent with full and complete accountability and transparency between the
Parties inter se, and the JV and the Purchaser.
It is contemplated by the Parties that they may in the future wish to pursue the Joint
Venture through a special purpose vehicle (SPV) in which event the constitutive
documents of the SPV, including any shareholders’ agreement, will grant to each Party
the same Interest in the SPV as under this Agreement.
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3.5
3.6
Unless and to the extent otherwise provided herein or expressly agreed by the Parties,
all decisions of and in relation the Business (including without limitation the
organisation and management of the Business, and each Transaction) shall be
unanimously agreed between each Party’s Representative, and, in the event that
unanimity is not achieved, the subject matter in respect of which unanimity is not
achieved shall not be pursued by:
3.5.1
the JV; or
3.5.2
a Party, unless the other Party has given its Consent to such pursuit.
Each Party acknowledges and agrees that the other Party:
3.6.1
participates in the Joint Venture on a non-exclusive basis; and
3.6.2
may freely pursue commercial opportunities whether in relation to the Product
or otherwise independently of the Joint Venture PROVIDED ALWAYS that such
independent operations do not:
(a)
compete with the JV;
(b)
breach the non-circumvention provisions of clause 12 of this Agreement;
or
(c)
exploit any contribution (whether tangible or intangible) made to the JV
by the other Party.
4.
TERM OF THE JOINT VENTURE
4.1
The Joint Venture shall be deemed to have commenced on the Effective Date and shall,
unless previously terminated pursuant to the provisions of this Agreement, continue
until the completion of the distribution of the distribution of profit generated by the
sale of the Product comprising the final Shipment under the SPA.
4.2
The Joint Venture shall terminate in any of the following events:
4.2.1
by mutual consent of all the Parties;
4.2.2
on the occurrence of any unremedied Event of Default.
4.3
On the expiry or termination of the Joint Venture all Joint Venture Assets shall be
distributed to or held for the benefit of the Parties in such a manner as the Parties may
agree or failing agreement may be liquidated on behalf of the Parties.
4.4
In the event of a sale of Joint Venture Assets the net proceeds (if any) shall be divided
amongst the Parties on a pro-rata basis in accordance with their respective Interests.
5.
THE JOINT VENTURE RELATIONSHIP
5.1
The Parties have entered into this Agreement:
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5.2
5.3
5.1.1
with the intention that it shall operate between them with fairness and without
detriment to the interest of any of them on the basis of a relationship involving
mutual trust, good faith and confidence; and
5.1.2
on the understanding that, subject always to the terms of this Agreement, each
Party has the right to participate in the profits of the Joint Venture in proportion
to their Interest from time to time.
The Parties agree that:
5.2.1
the Business shall be conducted as a commercial venture in accordance with
good commercial practice;
5.2.2
the relationship between the Parties shall be one of joint venturers and limited
to carrying out the Business so that nothing contained in this Agreement shall
constitute either of them as agent or partner of any other of them or create any
agency or partnership for any purpose whatsoever;
5.2.3
except as otherwise specifically provided in this Agreement a Party shall not
have authority to act for, or to create or assume any responsibility or obligation
on behalf of, any other Party.
Each Party covenants and agrees with the other Party:
5.3.1
to refer to the Joint Venture all business opportunities that it reasonably
considers may be profitably exploited by the Joint Venture;
5.3.2
to diligently observe and perform their obligations and commitments in respect
of the Joint Venture and pursuant to this Agreement;
5.3.3
not to engage (whether alone or in association with the others) in any activity
in respect of the Business except as provided and authorised by this Agreement;
5.3.4
to make available for the purposes of the Business the Interest owned or
controlled by it;
5.3.5
not without the consent of the other Party to:
5.5.1
(a)
give any credit and/or lend any money on behalf of the Joint Venture to
any person, firm, company or entity other than in the ordinary course of
business of the Joint Venture conducted in a normal and proper manner:
or
(b)
borrow or raise any money or incur any debt on account of the Joint
Venture;
not to compound, release or discharge any debt which shall be due or owing to
the Joint Venture without receiving the full amount thereof other than the
ordinary course of the business of the Joint Venture conducted in a normal and
proper manner; and
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5.5.2
not to be a party to the doing of any act, matter or thing whereby the good will,
commercial reputation of or image of any of the Parties and/or the Joint
Venture may be prejudicially affected.
5.6
No Party is empowered or authorised to do anything whatsoever with the Joint Venture
Assets or to bind the Parties unless provided for in this Agreement, and without limiting
the generality of the foregoing no Party shall Encumber the Joint Venture Assets or its
Interest without the prior consent of the other Party.
5.7
Each Party hereby indemnifies the other Party from and against any loss or damage of
any kind whatsoever suffered sustained or incurred by any other Party arising from a
breach of default in the performance or observance of any duties or obligations by such
Party under this Agreement, and the indemnity hereby granted shall:
5.7.1
continue for the benefit of the other Party notwithstanding termination of the
Joint Venture;
5.7.2
not be released by any waiver, indulgence, neglect or forbearance on the part
of the other Party nor expire with the effluxion of time;
5.7.3
not be affected by any variation of this Agreement, lack of capacity or due
execution by either Party hereto or by any other act, matter or thing which, but
for this clause, would have the effect of modifying or abrogating the obligations
of any indemnifying Party under the law relating to sureties.
5.8
Save as otherwise provided in this Agreement until termination of this Joint Venture
unless the Parties otherwise agree no Party shall be entitled to call for any return of any
capital contributed and no Party shall be entitled to call for a transfer to it of the Joint
Venture Assets or part thereof or any specific asset of the Joint Venture or part thereof.
6.
PROFITS AND LOSSES
6.1
The net profit of the Joint Venture after payment of all Expenses and operating
expenses in each year shall, unless applied to the Business for the following year or held
as a capital reserve for the use of the Business, be distributed to the Parties in
proportion to their respective Interests.
6.2
In this Agreement Expense means a payment to be made by or on behalf of a Party in
the course, and for the purpose, of the Business PROVIDED ALWAYS that any and all
costs, charges, fees and expenses of every kind or description incurred by reason of
arising from the provision of any one or more of the Instruments are not Expenses or
operating expenses, and are:
6.3
6.2.1
for the sole account and responsibility of WCL; and
6.2.2
not taken into account when calculating profits and losses of the JV.
Each Party shall bear and be liable for the amount, proportionate to their respective
Interest, of all losses (if any) arising from the Business throughout the course of the
Joint Venture.
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7.
ACCOUNTS
7.1
Each Party and the Business shall:
7.1.1
maintain accurate and proper books of accounts and records (together,
Accounts) of all income received and expenditure incurred in connection with
the Joint Venture; and
7.1.2
retain all documents evidencing entries in the Accounts;
and the Accounts shall be available on 48 hours prior written notice during ordinary
business hours for inspection by a Party or their authorised representatives.
7.2
7.3
Further, a Party shall if requested by express written notice given by the other Party at
any time, and in any event as soon as practicable after 31 December in each year during
which the JV subsists, cause an account to be taken of:
7.2.1
all monies received and disbursed by that Party in connection with the Joint
Venture during the immediately preceding year ended 30 June; and
7.2.2
the profit and loss for such period.
The accounts referred to in clause 7.2 shall be combined to produce:
7.3.1
a profit and loss statement; and
7.3.2
balance sheet;
for the Business for the same period and the Parties shall be bound by each profit and
loss account and balance sheet unless some manifest error therein is identified and
communicated between the Parties within sixty (60) days of receipt thereof, in which
case the error shall be rectified.
8.
TRANSFERS
Save as contemplated by clause 3.4, no Party shall transfer the whole or any portion of
its Interest to any third party (other than a Related Corporation) without the Consent
of the other Party.
9.
DEFAULT
9.1
An Event of Default occurs if a Party:
9.1.1
is placed in liquidation (whether compulsory or voluntary, otherwise and for
the purpose of reconstructions or amalgamation) or has a Receiver or Receiver
and Manager or Official Manager appointed in respect of its business generally,
or any part thereof, or compromises or attempts to compromise generally with
any class of creditors, or any analagous process or event applicable to a natural
person is instituted or occurs;
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9.1.2
has any distress or execution levied against any of their assets and fails to have
such distress or execution set aside or satisfied within 30 days;
9.1.3
suffers a judgment in excess of USD10,000.00 which remains unpaid or has
noted an appeal within the period of 30 days or an appeal having been noted
as withdrawn or disallowed and the judgment is not satisfied within 30 days;
then such Party (Defaulting Party) shall thereupon be deemed to have
transferred to the other Party (Non-Defaulting Party) the entire Interest of the
Defaulting Party;
9.1.4
commits a breach of this Agreement which, if capable of remedy, is not
remedied within ten (10) Business Days of its receipt of a written notice from
the Party alleging the breach setting out in such detail as is reasonably required
by the Party alleged to be in breach as to:
(a) the breach alleged and whether the same breach is considered by the NonDefaulting Party as being capable of remedy; and
(c) if the alleged breach is considered by the Non-Defaulting Party as being capable of
remedy, the measures required to be taken by the Party alleged to be in breach to
remedy the alleged breach.
9.2
Further, an event of default will occur if an Instrument lapses or is cancelled, withdrawn
or its terms and/or conditions varied without the Consent of EIL.
10.
ACKNOWLEDGMENTS AND WARRANTIES
10.1 Each Party represents and warrants to all the other Party that it is a company duly
incorporated and validly existing and has all requisite powers to enter into this
Agreement and perform and observe the obligations hereunder.
10.2 Each Party to this Agreement represents and warrants to and for the benefit of each
other Party that this Agreement has been validly executed and delivered and that it
constitutes their valid, binding and enforceable obligations in accordance with its
terms.
11.
CONFIDENTIALITY
11.1 Confidential Information
11.1.1
For the purposes of this Agreement, Confidential Information means all
information (whether written or oral, and including but not limited to
proprietary information or trade secrets of the other Party including
information relating to the Business) disclosed by a Party (Disclosing Party) to
the other Party (Receiving Party) which is either:
(a)
Identified as confidential by the Disclosing Party at the time of
disclosure; or
(b)
of a nature which should reasonably be regarded by the Receiving Party
as confidential,
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but does not include information which:
11.1.2
(c)
was in the public domain when it was given to the Receiving Party;
(d)
becomes, after being given to the Receiving Party, part of the public
domain, except through disclosure contrary to this Agreement;
(e)
was in the Receiving Party's possession at the time of disclosure;
(f)
the Receiving Party lawfully receives from a third party who has the
right to disclose it to the Receiving Party; or
(g)
the Receiving Party is required to disclose by law, by an order of a court
or tribunal, by the requirements of a stock exchange, or by a
governmental authority or other authority with relevant powers to
which the Receiving Party is subject or submits, whether or not the
requirement has the force of law PROVIDED that the disclosure shall be
made after consultation with the Disclosing Party and after taking into
account the Disclosing Party’s requirements as to the timing, content
and manner of making or despatch of the disclosure.
The subject matter and terms and conditions of this Agreement, the conduct
of the Business and of the business of each Party and negotiations between
the Parties will be regarded as Confidential Information (unless such
information is the subject of clauses 11.1.1(c)–(g)) and is deemed to:
(a)
have been disclosed by each Party to the other; and
(b)
be of a nature which should reasonably be regarded by each Party as
confidential.
11.2 The Receiving Party must, both during the validity of this Agreement and thereafter:
11.2.1
use the Confidential Information solely as contemplated by this Agreement,
unless further use of the Confidential Information is specifically authorised in
writing by the Disclosing Party;
11.2.2
keep all Confidential Information strictly secret and confidential;
11.2.3
use reasonable care to protect the confidentiality of the Confidential
Information, whether in storage or in use, against public disclosure, by
implementing procedures consistent with the higher of the standard of care
that:
(a)
each Party exercises with respect to their own confidential information;
or
(b)
an ordinarily prudent business similar to that of the Party would
exercise to protect its own confidential information.
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11.2.4
not disclose the Confidential Information to or in the presence of any director,
officer, employee, adviser, financier, potential financier or agent of the
Receiving Party other than those for whom such knowledge is essential for
the purposes of or as permitted by this Agreement and upon those persons
undertaking to keep strictly confidential any Confidential Information so
disclosed; and
11.2.5
promptly notify the Disclosing Party if it becomes aware of any breach of
confidentiality by any person, firm or corporation to whom it has divulged any
Confidential Information or by any person, firm or corporation who becomes
aware of it in an unauthorised way and provide the Disclosing Party and each
other party all reasonable assistance in connection with any proceedings
which a party may institute against such person, firm or corporation for
breach of confidentiality or otherwise.
11.3 Nothing in this clause 11 is to be treated as prohibiting or restraining any information
concerning the business or affairs of the Company:
11.3.1
which is received by a Representative, whether orally or otherwise, from
being disclosed by that Representative its nominating Party or to any other
person to whom that Party has a duty to disclose such information, provided
the recipient undertakes to keep confidential the information disclosed;
11.3.2
which is in the possession of a Party which is a related body corporate of
another corporation, from being disclosed to that corporation, provided that
the corporation undertakes to keep confidential the information disclosed; or
11.3.3
from being disclosed if the Parties agree it is no longer Confidential
Information, and the Parties agree to take no action to prohibit or prevent any
such disclosure.
11.4 Return of Confidential Information
11.4.1
All Confidential Information (including any physical, written or electronic
records, and any translations, containing any Confidential Information, and
whether in physical, written or electronic form) provided by a Disclosing Party
to a Receiving Party together with any copies made by the Receiving Party's
directors, officers or employees or any other person to whom the Receiving
Party disclosed the Confidential Information in accordance with this
Agreement must be promptly returned to the Disclosing Party (or, at the
Disclosing Party’s option, destroyed by the Receiving Party) on the:
(a)
expiration or termination of this Agreement; or
(b)
receipt of a request from the Disclosing Party for its return;
except to the extent that the Receiving Party is obliged by law to keep records
of its business.
11.4.2
If the Receiving Party has generated its own internal documents containing
the Confidential Information, then these may be destroyed rather than
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returned to the Disclosing Party and the Receiving Party must provide to the
Disclosing Party written confirmation that such destruction has taken place.
11.5 Nothing in this Agreement prohibits the Receiving Party from disclosing the contents
hereof to the extent necessary to enable it to enforce its rights hereunder or any other
agreement.
11.6 The provisions of this clause 11 shall survive any expiration or termination of this
Agreement.
12.
NON-CIRCUMVENTION
12.1 Neither Party shall directly or indirectly, actively or passively, in any manner
whatsoever:
12.1.1 solicit or accept business from sources (or affiliates of sources) that are made
available by the other Party, at any time, without the prior Consent of the Party
which made the source available;
12.1.2 circumvent or attempt to circumvent the other Party’s legitimate commercial
rights, expectations, and interests.
12.2 Each Party shall maintain complete confidentiality regarding the other Party’s business
sources, contacts and/ or their identities and shall disclose such only pursuant to the
Consent of the Party that made the source available.
12.3 A Party shall not use confidential information provided by the other Party to:
12.3.1 circumvent the providing Party in commercial dealings with any suppliers under
the contract, or
12.3.2 knowingly do anything to cause the providing Party or its agents to lose any
fees, commissions credits or other benefits that are, or may become, due under
the providing Party’s agreement(s) with its own sources and suppliers engaged
for the purpose of this Agreement, if any; or
12.3.3 do anything to circumvent the providing Party in such a way as to put the
providing Party at a commercial disadvantage with the providing Party’s
suppliers or commercial or government.
12.4 The Parties shall keep each other fully informed about the progress of all current and
future negotiations and about the Business generally.
12.5 The non-circumvention provisions of this clause 12, and the duty of confidentiality
under clause 11, shall remain in force for a period of one (1) year from the date of expiry
(or earlier termination) of this Agreement.
13.
WAIVER
13.1 No failure, delay or omission by a Party to exercise any power or right conferred under
this Agreement will operate as a waiver of that power or right, nor will single exercise
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of any such power or right preclude any other or future exercise of the power, or the
exercise of any other power or right under this Agreement.
13.2 To be effective, any waiver of a provision of this Agreement must be in writing and
signed by the Party or Parties whose rights are being waived, and is effective only to
the extent to which it is given.
14.
NOTICES
14.1 Every notice required or permitted to be served (Notice) by a Party (Sender) on the
other Party (Recipient) pursuant to this Agreement must be in writing.
14.2 Subject to clause 0 a Notice will be deemed to have been effectively served:
14.2.1
if sent by prepaid post to the Recipient at the address of the Recipient as set
out in this Agreement on the third business day following the date of postage
by the sender
14.2.2
if hand delivered or sent by email, on the date of delivery to the Recipient's
physical or email address as set out in clause 14.3 unless such deliver occurs
after 5.00pm or at any time on a day which is not a business day, in which case
the Notice will be deemed to have been effectually served on the next
business day.
14.3 The addresses referred to in clause 14.2 are:
WCL
EIL
Physical Address
:
Email Address
:
Physical Address
:
Email Address
:
57 Soi Rangsit-Nakornnayok 27 Soi 1,
Prachathipat Sub-District,
Thanyaburi District,
Pathum Thani 12130 Thailand
[????]@[???]
4 Battery Road,
Bank of China Building #25-01,
Singapore 049908
karl@essenceinvestmentsltd.com
14.4 A Party may change their physical or email address of facsimile number for the receipt
of notices by giving written notice to that effect to the other Party.
15.
GOVERNING LAW AND DISPUTE RESOLUTION
15.1 This Agreement shall be governed by and construed in all respects in accordance with
the laws of Singapore and each Party hereby irrevocably submits to the non-exclusive
jurisdiction of the courts of Singapore.
15.2 Any dispute arising out of or in connection with this Agreement (Dispute), including any
questions regarding its existence, validity or termination, shall be referred to and finally
resolved by arbitration in Singapore in accordance with the Arbitration Rules of the
Singapore International Arbitration Centre for the time being in force which rules are
deemed to be incorporated by reference to this clause 15: and
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15.2.1
the seat of the tribunal shall be Singapore;
15.2.2
the language of the arbitration shall be English;
15.2.3
the arbitral tribunal shall comprise of one arbitrator; and
15.2.4
decisions of the tribunal shall be final, binding and conclusive.
15.3 Notwithstanding the foregoing provisions of this clause 15, pending the resolution of any
Dispute the Parties to this Agreement must without delay continue to perform their
respective obligations under this Agreement except, provided that a Party has acted
reasonably and bona fide in relation to the Dispute (including without limitation in respect
to its subject matter and the circumstances giving rise to it), to the extent that the subject
matter of the Dispute and matters necessarily dependent on it cannot be proceeded with
until the Dispute has been determined.
16.
DUTY OF GOOD FAITH
In entering into this Agreement the Parties:
16.1 recognise that it is impractical to make provision for every contingency that may arise
in the course of the observance or performance thereof and accordingly;
16.2 hereby declare that if in the course of the performance of this Agreement unfairness to
a Party is disclosed or anticipated the Parties shall use their best endeavours to agree
upon such action as may be necessary and equitable to remove the cause of the same.
17.
GENERAL
17.1 This Agreement comprises the entire agreement between the Parties in relation to its
subject matter and no earlier agreement, oral or written, in relation to any matter dealt
with in this Agreement will have any effect from the date hereof.
17.2 Each Party must do or cause to be done or refrain from doing all such acts or things
necessary to give effect to this Agreement.
17.3 This Agreement may not be amended or varied except in writing signed by both Parties.
17.4 If all or part of any clause of this Agreement is illegal or unenforceable that part or
clause shall be severed from the other provisions of this Agreement which will remain
in full force and effect.
17.5 This Agreement may be executed in two or more counterparts, each of which:
17.5.1
shall be deemed an original but all of which together shall constitute one and
the same Agreement; and
17.5.2
may be:
(a)
executed by means of electronic signature; and/or
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(b)
may be delivered by facsimile or other electronic means by any of the
Parties to any other Party;
and the receiving Party may rely on the receipt of such document so executed
and delivered by facsimile or other electronic means as if the original had
been received.
IN WITNESS whereof this Agreement has been executed by the Parties.
EXECUTED by Worldnance Co., Ltd. by ) x
??
x
[name]
) …………………………………
EXECUTED for Essence Investments )
Limited by Komal Patel
)
)
x
KP
x
…………………………………
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SCHEDULE 1
BCL MT799 WORDING
SWIFT INPUT : FIN 799 FREE FORMAT MESSAGE SENDER : MIAVINB2XXX
RECEIVER : BKKBTHBKXXX ------------------------------------------- F20: Transaction
Reference Number XXXXXXXXXXXXXXXXX
F79: Narrative
(SEQUENCE - 1/2) .
PLEASE FIND BELOW MESSAGE FROM XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
WITHOUT ANY INVOLVEMENT
.QUOTE
TO NAME OF BANK: BANGKOK BANK PUBLIC COMPANY LIMITED ADDRESS: 587/2
VIRIYATHAVORN BUILDING SUTHISARNVINICHAY,DINDANG, BANGKOK, 10400,
THAILAND SWIFT CODE: BKKBTHBK
ACCOUNT NAME: DINAR INTERNATIONAL TRADING CO.,LTD C/O SIAMKORN
INTERNATIONAL TRADING AND CONSULTING Co LTD
DEAR SIRS, .
WE, XXXXXXXXXXXXXXXXXXXXXXX, HEREBY CONFIRM WITH FULL LEGAL AND
RESPONSIBILITY ON BEHALF OF OUR ACCOUNTHOLDER, XXXXXXXXXXXXXXXXXXX,
CASH FUNDS IN THE AMOUNT OF USD XXXXXXXXX (UNITED STATES DOLLAR
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX ONLY)
ON DEPOSIT IN ACCOUNT NUMBER: XXXXXXXXX AS AT
THE DATE OF THIS TRANSMISSION, AND IN FAVOR OF
DINAR INTERNATIONAL TRADING CO LTD C/of SIAMKORN INTERNATIONAL
TRADING AND CONSULTING Co LTD IN
ACCORDANCE WITH THE SALES AND PURCHASE AGREEMENT WITH THE
BUYER/TRANSACTION REFERENCE CODE XXXXXXXXXXXXXXX.
WE FURTHER CONFIRM WITH FULL RESPONSIBILITY THAT THE SAID CASH FUNDS
WILL BE HELD WITH SPECIFIC NON-WITHDRAWAL / NON-DEPLETION INSTRUCTIONS
FOR A PERIOD OF 366 BANKING DAYS FROM THE OPERATIVE DATE OF THIS
INSTRUMENT.
CFXXXXXXXXXXXXXX
SWIFT INPUT : FIN 799 FREE FORMAT MESSAGE SENDER : XXXXXXXXXX
RECEIVER : BKKBTHBKXXX ------------------------------------------- F20: Transaction
Reference Number XXXXXXXXXXXXXXXXX
F79: Narrative
(SEQUENCE - 2/2) .
THE OPERATIVE DATE OF THIS INSTRUMENT COMMENCES ON THE DATE THAT THE
2 % PERFORMANCE BOND IS RECEIVED TO OUR ACCOUNTHOLDERS VIA SWIFT
FROM DINAR INTERNATIONAL TRADING CO LTD C/of SIAMKORN INTERNATIONAL
TRADING AND CONSULTING Co LTD ISSUED BY BANGKOK BANK PUBLIC COMPANY
LTD.
.THESE FUNDS ARE CLEAN, CLEAR, AND FREE OF ANY LEVY, LIENS OR
ENCUMBRANCES AND THE RULE OF DISCLOSURE HAS BEEN ESTABLISHED THAT
THESE ASSETS ARE LEGALLY OBTAINED FROM TRUSTWORTHY (NON- CRIMINAL)
BUSINESS ACTIVITIES.
.WE CONFIRM THAT THESE FUNDS, AS PER THE AGREEMENTS WITH TRANSACTION
CODE: XXXXXXXXXXXXX, WILL NOT BE WITHDRAWN OR PLEDGED FOR A PERIOD OF
366 BANKING DAYS FROM THE OPERATIVE DATE, AS PER THE AGREEMENT SIGNED
BY OUR CLIENT UNDER BUYERS/TRANSACTION CODE: XXXXXXXXXXXXXX.
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.THIS MESSAGE IS SUBJECT TO OUR NORMAL BANKING TERMS AND CONDITIONS.
THIS MESSAGE MAY NOT BE DEEMED AN OFFER OF FUNDS TO ANY THIRD PARTIES
WITHOUT PRIOR AGREEMENT.
.REGARDS, XXXXXXXXX.
UNQUOTE
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SCHEDULE 2
SBLC MT760 VERBIAGE
SWIFT INPUT: FIN 760
MT760 STANDBY LETTER OF CREDIT
NOTIFICATION:
DELIVERY STATUS:
PRIORITY/DELIVERY:
MESSAGE INPUT REFERENCE:
----------------------------------------------------------------------MESSAGE-HEADER------------------------------------------------------------------------STANDBY LETTER OF CREDIT FORMAT SWIFT MT 760
(FINAL TEXT PER ISSUING BANK-ICC 758 FORMAT)
SENDER BANK DETAILS
BANK NAME:
ADDRESS:
ACCOUNT NUMBER:
ACCOUNT NAME:
BANK OFFICER:
SWIFT CODE:
BENEFICIARY
BANK NAME : BANGKOK BANK
BANK ADDRESS: 587/2 VIRIYATHAVORN BUILDING, SUTHISARNVINICHAY, DINDANG, BANGKOK
10400. THAILAND
ACCOUNT NAME: DINAR INTERNATIONAL TRADING CO., LTD. C/O SIAMKORN INTERNATIONAL
TRADING AND CONSULTING
CO., LTD
ACCOUNT NUMBER: 138 – 310923 – 6
SWIFT CODE: BKKBTHBK
BANK OFFICER: MR. WEERAPONG KANJANUMPORN
TEL.: + 66 2 277 2251 – 52/ +66 86 082 9736 (MOBILE)
-----------------------------------------------------------------------------NORMAL-----------------------------------------------------------------------------STANDBY LETTER OF CREDIT #:
CURRENCY: DOLLAR
PRINCIPAL AMOUNT:
DATE OF ISSUE:
MATURITY DATE:
DATE OF EXPIRY:
PLACE OF ISSUE:
WE (…………………………………..), (ISSUING BANK), AT (ADDRESS), (……) HEREBY IRREVOCABLY AND
UNCONDITIONALLY WITHOUT PROTEST OR NOTIFICATION PROMISE TO PAY AGAINST THIS STANDBY
LETTER OF CREDIT NO XXXXXXXXXX TO DINAR INTERNATIONAL TRADING CO., LTD. C/O SIAMKORN
INTERNATIONAL TRADING AND CONSULTING CO., LTD (reference Seller Code – JRF 4800 024 2020)
ON EXPIRY DATE THE SUM OF USD 000,000,000.00 (xxx USD) IN LAWFUL CURRENCY OF THE UNITED
STATES OF AMERICA UPON PRESENTATION TO US OF THE ORIGINAL OF THIS STANDBY LETTER OF
CREDIT AT OUR COUNTERS ON EXPIRY DATE OR NOT LATER THAN 15 DAYS AFTER THE EXPIRY DATE.
SUCH PAYMENT SHALL BE MADE WITHOUT SET OFF AND FREE AND CLEAR OF ANY DEDUCTIONS OR
CHARGES, FEES, DUTIES OR WITHOUT HOLDINGS IF ANY NATURE NOW OR HEREINAFTER IMPOSED,
LEVIED, COLLECTED, WITHHELD OR ASSESSED BY THE GOVERNMENT OF THE ISSUING BANK OR ANY
POLITICAL SUBDIVISION OR AUTHORITY THEREOF OR THEREIN.
THIS OPERATIVE STANDBY LETTER OF CREDIT IS FREE AND CLEAR OF ANY LIEN OR ENCUMBRANCE AND
IS TRANSFERABLE, DIVISIBLE AND ASSIGNABLE WITHOUT PRESENTATION TO US OR PAYMENT OF ANY
TRANSFER OR ASSIGNMENT FEE. THIS STANDBY LETTER OF CREDIT SUBJECT TO THE UNIFORM RULES
FOR STANDBY LETTER OF CREDIT UNDER ICC PUBLICATION NO.600.
FOR AND ON BEHALF OF ISSUING BANK
_____________________________
BANK OFFICER NAME
ISSUER BANK
DESIGNATION
OFFICER CODE
_________________________________
BANK OFFICER NAME
ISSUER BANK
DESIGNATION
OFFICER CODE
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