BULLION TRANSACTION PROCEDURES:
Bullion Bank in Hong-Kong
· All parties involved sign the NCND Agreement.
· The Seller shall sign the Private Sales and Purchase Agreement for Bullion Metal – AU (SPA) along with IMFPA to confirm the acceptance of transaction terms & conditions. Upon receipt of the SPA signed by the Seller, the Buyer will sign the SPA together with a Ready, Willing and Able letter (RWA) and return them to the Seller. Seller will then make plans to fly to Hong Kong for the TTM. Seller will also send the Buyer an invitation letter for the TTM at XXXX Bank in Hong Kong.
· At the TTM in Hong Kong, both parties shall complete the addendum to the SPA giving their full banking coordinates and fix with their respective bank officers a window period for the simultaneous Bank-to-Bank verification purposes. Seller and Buyer are ready from, MM, DD, 2010.
· At the Table Top Meeting (TTM), at the appointed Window Time, there will be a simultaneous exchange of Proof of Product (the Seller’s bank shall confirm, with full legal responsibility, to Buyer’s bank the Proof of Product (SKR/POP) for the initial lift of XXX Thousand (X,000) Metric Tons, and that payment shall be Bank to Bank) and simultaneously the Buyer’s bank shall confirm, with full legal responsibility, to the Seller’s bank the Proof of Funds (POF), confirming that the funds are available for the Bullion Metal (AU) (Gold Bullion) transaction as agreed. Seller desires to do Transaction Procedures in one day if possible, as early MM, DD, YY or as soon as possible thereafter.
· Within one (1) banking day after positive verification of the POF and POP, both Parties shall meet at the Table Top Meeting at Seller and Buyer’s bank XXXX in HONG KONG HEAD OFFICE and sign and exchange the six (6) sets of Hard copies of the SPA along with the originals of POF and POP. The original documents, including the IMFPA, shall be lodged in both parties’ banks.
· At this Table Top Meeting the Seller shall provide the original of the Safe Keeping Receipt (SKR) in the Seller’s name confirming availability of agreed lift’s quantity, and invite the Buyer to visit the Bonded Warehouse to verify the Safekeeping Receipt, together with all accompanying documents and inspection of the physical bullion
On the same banking day, the Seller and the Buyer shall meet inside the Buyer’s Bank in Hong Kong and conclude the transaction on a LEDGER-TO-LEDGER basis.
· After positive verification of the SKR, the Seller shall deposit the transferred SKR in the Buyer’s name along with all original documents related to agreed transaction of Bullion Metal (AU) (Gold Bullion) into the Buyer’s Bank account in the Buyer’s Bank in HONG KONG.
· The Seller shall pay the Consultants’ Fees simultaneously with payment to the Seller’s Mandate & Buyer’s Mandate for each transaction.
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SPA
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PRIVATE SALE & PURCHASE AGREEMENT
FOR BULLION AU METAL (PHYSICAL GOLD)
(XXXX BULLION BANK FORMAT)
DD, MM, 2010.
Contract Number
Transaction Code
Seller’s Code
Buyer’s Code
This PRIVATE SALE & PURCHASE AGREEMENT FOR BULLION AU METAL (GOLD) (hereinafter also referred to as the “Agreement” or “SPA”) is entered into this date
DD, MM, 2010, between the following Parties; whose detailed particulars have been comprehensively set out thereto herein hereof below:
SELLER’S Full Name
Corporate Reg. No.
Full Corporate Address
Represented by
Corporate Position
Passport Number
Contact Tel. Number
Contact Email Address
Hereinafter referred to as the “SELLER”
BUYER’S Name
Corporate Reg. No.
Full Corporate Address
Represented by
Corporate Position
Passport Number
Contact Tel. Number
Contact Email Address
Hereinafter referred to as the “BUYER”
Seller’s Initial Page 1 of 9 Buyer’s Initial
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WHEREAS, SELLER desires to sell and deliver to BUYER gold bullion (AU) according to the terms herein and enter into this Agreement as a binding agreement with full corporate and personal responsibility; and
WHEREAS, BUYER desires to purchase and take delivery from SELLER gold bullion according to the terms herein and enter into this Agreement as a binding agreement with full corporate and personal responsibility .
NOW, THEREFORE, for valuable consideration, the sufficiency of which the parties hereby acknowledge, the parties agree as follows:
1.0 Sale and Purchase General Terms. SELLER agrees to sell to BUYER, and BUYER agrees to purchase from SELLER, the following hallmarked gold bullion (the “Commodity”), with the specified quantity, price, discount, currency of payment, fees, and documents to be delivered by SELLER to BUYER at Closing, as defined below:
1.1 Commodity: Gold Bullion (AU) in Bar Form of –
a. Weight: 12.5 kg (GLD specification)
b. Purity/Fineness: 999.5/1000 or better
1.2 Quantity: TOTAL X,000 Metric Tonnes with rolls and extensions
1.2a
First Tranche:
X00 Metric Tonnes, or amount as per first ORIGINAL SKR
presented at TTM within XXXx Bank Headquarters in HK
1.2b
Sub. Tranches:
Subsequent tranches as agreed between BUYER and
SELLER
1.3
Price:
Second Fix on the business day prior to Closing for the
price for gold bullion per troy ounce announced by the
London Bullion Market Association (LBMA)
1.4
Payment:
At Closing in EUROs, free and clear and of non-criminal
origin, on a Ledger to Ledger basis within the
transacting bank, HSBC Headquarters in HK
1.5
Hallmark:
Internationally accepted hallmarks and of Good
London Delivery (GLD) specification and standard
1.6
Discount:
XXX Percent (XX%) GROSS
XXX Percent (XX%) NET to BUYER
1.7
Commission:
One point Five Percent (1.5 %) to SELLER’S side
Fees:
One point Five Percent (1.5 %) to BUYER’S side
1.8
Documents:
Documents
evidencing
safe-keeping,
legal
title/ownership, origin, purity/quality, weight, assay,
commercial invoice, insurance, packing, export
permits/licenses, custom duty, deposit, and warehouse
receipt of the Commodity shall be delivered at Closing
by SELLER to BUYER upon SELLER’S full receipt of the
purchase price
1.9
Place of
Free On Board (FOB) at SELLER’S private Security
Delivery:
Warehouse, the location of the sale in Hong Kong
Seller’s Initial
Page 2 of 9
Buyer’s Initial
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2.0 Bank Details: The Parties’ bank details are set forth in APPENDIX B.
3.0 SELLER’S Representations and Warranties: SELLER represents and warrants to BUYER as follows:
3.1 That the Sale and Purchase transaction set forth in this Agreement is strictly a transaction involving the Sale and Purchase of a physical Commodity and is not a transaction involving the Sale and Purchase of securities.
3.2 The Commodity is free and clear of any liens, encumbrances, or mortgages, not subject to any legal action, nor of criminal origin.
3.3 The Commodity is of the size and fineness as specified under Term 1.1 of the Agreement.
3.4 SELLER has FULL LEGAL AUTHORITY to engage IMMEDIATELY in the transaction as per the terms of this Agreement and has the power to deliver the Commodity to BUYER and perform its obligations under this Agreement IMMEDIATELY.
3.5 That the person executing and delivering this Sale and Purchase Agreement on behalf of the true BENEFICIAL OWNER of the Commodity is DULY and FULLY AUTHORISED to bind the true BENEFICIAL OWNER of the Commodity to the terms and conditions of this Sale and Purchase Agreement.
4.0 BUYER’S Representations and Warranties. BUYER represents and warrants to SELLER as follows:
4.1 The BUYER is ready, willing and able to IMMEDIATELY conclude the purchase transaction set forth in this Agreement and warrants that it has the requisite clear funds, freely transferable, and of non-criminal origin to purchase the Commodity as described within this Agreement at Closing.
4.2 That the Sale and Purchase transaction set forth in this Agreement is strictly a transaction involving the Sale and Purchase of a physical Commodity and is not a transaction involving the Sale and Purchase of securities.
4.3 BUYER has FULL LEGAL AUTHORITY to engage in the transaction as set forth in this Agreement and has the power to perform its obligations under this Agreement.
4.4 That the person executing and delivering this Agreement on behalf of the BUYER is duly authorized to bind the BUYER to the terms and conditions of this Agreement.
5.0 Mutual Representation. The Parties mutually represent to the other that the Commodity and purchase funds do not contravene The Patriot Act and other related acts under the Laws of the United States of America and do not contravene other similar National and International Laws regarding terrorism, corruption, and narcotics.
Seller’s Initial Page 3 of 9 Buyer’s Initial
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6.0 Legal Jurisdiction: This Sale and Purchase Agreement is a FULL recourse commercial contract governed by the Laws of Hong Kong.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written .
SELLER: Witnessed By:
By:
_______________________
_________________________
Name:
Name:
Corp. Name:
Corp. Name:
Position:
Position:
Passport No.:
Passport No.:
Place of Issue:
Place of Issue:
Date of Issue:
Date of Issue:
BUYER: Witnessed By:
By:
_______________________
_________________________
Name:
Name:
Corp. Name:
Corp. Name:
Position:
Position:
Passport No.:
Passport No.:
Place of Issue:
Place of Issue:
Date of Issue:
Date of Issue:
Seller’s Initial Page 4 of 9 Buyer’s Initial
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APPENDIX A
PRIVATE SALE & PURCHASE AGREEMENT PROCEDURES AND CONDITIONS
1. Upon meeting, signing and sealing the Sale and Purchase Agreement together in person, the SELLER and BUYER shall immediately lodge the fully executed originally signed Agreement, along with any and all addendums, with their respective bank officers at XXXX Bank Headquarters, 1 Queen’s Road Central, Hong Kong.
2. Within TWO (2) BANKING DAYS from the date the Agreement is signed by both the SELLER and BUYER, the SELLER shall issue to the BUYER a formal LETTER OF INVITATION to a Top Table Meeting (“TTM”) at the SELLER’s transaction bank, being XXXX Bank Headquarters, 1 Queen’s Road Central, Hong Kong.
The LETTER OF INVITATION shall detail the SELLER’S bank officer’s full name, the bank officer’s full title, the bank officer’s bank identification code, the bank officer’s direct bank telephone number and direct bank email address.
(A draft copy of the appropriate Letter of Invitation shall be provided.)
The TTM shall take place NO LATER than TWO (2) BANKING DAYS from the date the Agreement is signed by both SELLER and BUYER, unless otherwise agreed.
2a. Failure to present an official LETTER OF INVITATION by the SELLER to the BUYER within TWO (2) BANKING DAYS of the date of signing the legally binding full recourse Sale and Purchase Agreement shall result in the SELLER paying a penalty fine to the BUYER due to the SELLER’S non-performance.
The penalty fine amount shall be equivalent to US Dollars 30 Million (USD$30,000,000.) or 5% of the TOTAL contract value in EUROS.
3. Upon receipt of the LETTER OF INVITATION by the BUYER and the bank officer to bank officer confirmation of the arranged TTM, the BUYER shall respond within a maximum of ONE (1) BANKING DAY with a LETTER OF ACCEPTANCE to the SELLER.
The LETTER OF ACCEPTANCE shall contain the full BUYER’S bank officer’s details equivalent to those presented in the LETTER OF INVITATION from the SELLER.
3a. Failure to present an official LETTER OF ACCEPTANCE by the BUYER to the SELLER within ONE (1) BANKING DAY from the date the BUYER receives the LETTER OF INVITATION and the bank officer to bank officer confirmation of the TTM has taken place shall result in the BUYER paying a penalty fine to the SELLER due to the BUYER’S non-performance.
The penalty fine amount shall be equivalent to US Dollars 30 Million (USD$30,000,000.) or 5% of the TOTAL contract value in EUROS.
4. At the TTM, when PROOF OF PRODUCT and PROOF OF FUNDS are exchanged within the bank, the SELLER’S bank officer shows the BUYER’S bank officer and the BUYER all official PROOF OF PRODUCT documentation – including the ORIGINAL SKR(s) – which evidences ownership, possession, and ability to transfer free and clear title. In front of the SELLER and SELLER’S banking officer, the BUYER verifies the authenticity of the ORIGINAL SKR(s) with the Secure Warehouse and, upon satisfactory verification, the BUYER shall instruct his bank officer to issue a BANK GUARANTEE for the full value of the agreed FIRST
Seller’s Initial Page 5 of 9 Buyer’s Initial
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TRANCHE/ORIGINAL SKR(s) shown and thence lodge the BANK GUARANTEE directly into the SELLER’S XXXX bank account .
The verbiage of the BANK GUARANTEE shall be determined between the SELLER’S and BUYER’S banking officers at the meeting and shall be specific to the Sale and Purchase Agreement’s contract code, the bank transaction code, and the ORIGINAL SKR numbers shown. The BANK GUARANTEE shall only be able to be used for the sole purpose of the agreed transaction. The same process shall then be carried out per tranche, subject to necessity and agreement between the SELLER and BUYER.
4c. It shall be known by both SELLER and BUYER that it is an extremely serious offence to misrepresent and or non-perform at a bank Table Top Meeting in Hong Kong. Consequently, the severest action shall be taken against the failing party should that occur, thereby the terms of the Agreement not being upheld, including but not limited to the arrest and long term detainment of the failing party, and legal action to recover all damages incurred, as well as compensation from the failing party being awarded to the non-failing party for the amount equivalent to the TOTAL value of the contract.
If such circumstances arise the holding of Diplomatic Immunity shall prove inconsequential.
5. After PROOF OF PRODUCT and PROOF OF FUNDS are exchanged at the bank Top Table Meeting, the SELLER and BUYER immediately arrange to view the PRODUCT at the Secure Warehouse and verify PRODUCT against DOCUMENTATION. The verification process at the Secure Warehouse shall commence no later than WITHIN ONE (1) BANKING DAY of the bank TTM, unless otherwise agreed.
It shall be the SELLER’S full responsibility to ensure the Secure Warehouse is made fully aware that a bank TTM is taking place and that the Secure Warehouse is fully ready for the BUYER’S verification of the SKR(s) presented at the bank TTM and the ensuing inspection of the Commodity at the warehouse shortly thereafter, preferably all taking place the same day.
The SELLER shall issue the BUYER a FORMAL INVITATION to the Secure Warehouse. The invitation shall include the names and passport numbers of the BUYER and his assay and documentation team, all of whom will be present at the Secure Warehouse for the verification process.
5a. It shall be known to both SELLER and BUYER that ONLY the entity on the ORIGINAL SKR(s) is able to transfer clear title to the BUYER and conclude the Agreement and the proposed transaction successfully.
The AUTHORISED SELLER may or may not be that entity. If the SELLER is NOT that entity it must be made known here:
The SELLER is FULLY AUTHORISED to transfer clear title to the BUYER: (Please mark here)
YES [ ] or NO [ ]
If the answer above is [NO] and the entity on the ORIGINAL SKR(s) is NOT the AUTHORISED SELLER signing the Agreement and the SELLER signing the Agreement is NOT FULLY AUTHORISED to transfer clear title to the BUYER; the
Seller’s Initial Page 6 of 9 Buyer’s Initial
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ENTITY ON THE ORIGINAL SKR(s) MUST BE PRESENT IN PERSON AT THE WAREHOUSE for the verification process and issuance of new documentation to the BUYER.
It is a requirement of the Secure Warehouse to officially and unequivocally qualify the entity on the ORIGINAL SKR, via biometric and other forms of data, in order to conclude the transfer of title to the BUYER. It is therefore IMPERATIVE that the entity on the ORIGINAL SKR(s) is PRESENT IN PERSON to finalize matters.
IT IS THE AUTHORISED SELLER’S FULL RESPONSIBILITY TO ENSURE THE REQUIRED ENTITIES ARE PRESENT IN HONG KONG IN ORDER TO CONCLUDE THE AGREEMENT AND TRANSACTION SUCCESSFULLY AND ON A TIMELY BASIS.
6. After the completion of the visual inspection and verification of the Commodity at the Secure Warehouse, the bank officers shall proceed to complete the closing process.
7. At the closing, the SELLER shall arrange and execute all necessary DOCUMENTS transferring title to the BUYER. The BUYER shall verify the DOCUMENTS and, upon acceptance, the BUYER shall release full payment to the SELLER on a Ledger to Ledger basis within XXXX Bank. The BUYER shall then be given the DOCUMENTS and shall have full clear title of the Commodity.
The Secure Warehouse manager shall issue new documents in the name of the BUYER and present one of two sets to the SELLER’S bank officer. The SELLER’S bank officer shall only release these documents to the BUYER after the BUYER has released full payment in clear funds into the SELLER’S account. The second set of documents shall be kept at the warehouse for future purposes on behalf of the BUYER.
The BANK GUARANTEE equivalent in value to the first tranche previously issued and lodged in the SELLER’S account shall then be made null and void, with a new BANK GUARANTEE issued equivalent in value to the second tranche/ORIGINAL SKR(s) shown should there be one and lodged in the SELLER’S XXXX bank account should it be necessary and requested.
8. Simultaneously with TRANSFER OF OWNERSHIP to the BUYER, in conjunction with payment to the SELLER, the BUYER shall instruct the BUYER’s bank officer to immediately transfer the FEES and COMMISSIONS to all consultants and intermediaries pursuant to the IMFPA, if one is required and thereby attached to the Sale and Purchase Agreement, forming an integral part of the contract.
There shall be only ONE paymaster per side on the IMFPA, unless otherwise agreed. The paymaster for the fee recipients MUST HAVE an account WITHIN the transacting bank, XXXX. No other bank is acceptable for the payment of the fees.
9. After the successful PAYMENT to the SELLER and TRANSFER OF OWNERSHIP to the BUYER of the PRODUCT and the payment of the COMMISSIONS to the CONSULTANTS and INTERMEDIARIES, the SELLER may offer to sell to the BUYER additional PRODUCT, in subsequent tranches, under the same terms and conditions or as otherwise agreed between the PRINCIPAL PARTIES.
Seller’s Initial Page 7 of 9 Buyer’s Initial
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APPENDIX B
PRIVATE SALE & PURCHASE AGREEMENT
BANKING DETAILS
SELLER’S Banking Details
Bank Name:
XXXX Banking Corporation Limited (XXXX)
Bank Address:
Account Number:
Account Name:
Swift Code:
Bank Officer’s Name:
Bank Officer’s Bank Tel:
Bank Officer’s Bank Fax:
Bank Officer’s Bank Email:
BUYER’S Banking Details
Bank Name:
Bank Address:
Account Number:
Account Name:
Swift Code:
Bank Officer’s Name:
Bank Officer’s Bank Tel:
Bank Officer’s Bank Fax:
Bank Officer’s Bank Email:
Seller’s Initial Page 8 of 9 Buyer’s Initial
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DRAFT LETTER OF INVITATION
Seller’s Letterhead
AGREEMENT NO:
SELLER’S REFERENCE CODE:
BUYER’S TRANSACTION CODE:
TRANSACTION CODE:
BANK CONTRACT CODE:
FORMAL LETTER OF INVITATION
TO THE BUYER,
I, ________________________, HOLDER OF PASSPORT NUMBER _________________ OF
_________________________, DULY APPOINTED AS SELLER, HEREBY FORMALLY INVITE YOU TO CONTACT MY BANK OFFICER AT HONG KONG XXXX BANK CORPORATION HEADQUARTERS (XXXX), QUEEN’S ROAD, CENTRAL, HONG KONG.
I AUTHORISE YOU TO MAKE CONTACT AND MEET MY BANK OFFICER ON ___th MM 2010, IN ORDER TO CONCLUDE THE TRANSACTION FOR THE FIRST TRANCHE OF ____METRIC TONNES.
THIS LETTER HEREBY AUTHORISES MY BANK OFFICER TO RELEASE FULL DOCUMENTATION AT THE MEETING, THEREBY PROVING THE AUTHENTICITY F THE FREE, CLEAN AND CLEAR AU METAL THAT I HAVE FOR SALE AS PER THE CONTRACT AGREEMENT.
MY BANK OFFICER DETAILS ARE AS FOLLOW:
BANK OFFICER’S FULL NAME: ________________________________________
BANK OFFICER’S FULL TITLE: ________________________________________
BANK OFFICER’S DIRECT CONTACT NUMBER: __________________________
BANK OFFICER’S DIRECT BANK EMAIL ADDRESS: _______________________
BANK OFFICER’S BANK IDENTIFICATION CODE: _________________________
SINCERELY,
SELLER:
Signature / Date Stamp/Seal
SELLER’S PRIMARY XXXX HK BANKING OFFICER :
CONFORME
Signature / Date
Stamp/Seal
Seller’s Initial
Page 9 of 9
Buyer’s Initial
Bullion Bank in Hong-Kong
· All parties involved sign the NCND Agreement.
· The Seller shall sign the Private Sales and Purchase Agreement for Bullion Metal – AU (SPA) along with IMFPA to confirm the acceptance of transaction terms & conditions. Upon receipt of the SPA signed by the Seller, the Buyer will sign the SPA together with a Ready, Willing and Able letter (RWA) and return them to the Seller. Seller will then make plans to fly to Hong Kong for the TTM. Seller will also send the Buyer an invitation letter for the TTM at XXXX Bank in Hong Kong.
· At the TTM in Hong Kong, both parties shall complete the addendum to the SPA giving their full banking coordinates and fix with their respective bank officers a window period for the simultaneous Bank-to-Bank verification purposes. Seller and Buyer are ready from, MM, DD, 2010.
· At the Table Top Meeting (TTM), at the appointed Window Time, there will be a simultaneous exchange of Proof of Product (the Seller’s bank shall confirm, with full legal responsibility, to Buyer’s bank the Proof of Product (SKR/POP) for the initial lift of XXX Thousand (X,000) Metric Tons, and that payment shall be Bank to Bank) and simultaneously the Buyer’s bank shall confirm, with full legal responsibility, to the Seller’s bank the Proof of Funds (POF), confirming that the funds are available for the Bullion Metal (AU) (Gold Bullion) transaction as agreed. Seller desires to do Transaction Procedures in one day if possible, as early MM, DD, YY or as soon as possible thereafter.
· Within one (1) banking day after positive verification of the POF and POP, both Parties shall meet at the Table Top Meeting at Seller and Buyer’s bank XXXX in HONG KONG HEAD OFFICE and sign and exchange the six (6) sets of Hard copies of the SPA along with the originals of POF and POP. The original documents, including the IMFPA, shall be lodged in both parties’ banks.
· At this Table Top Meeting the Seller shall provide the original of the Safe Keeping Receipt (SKR) in the Seller’s name confirming availability of agreed lift’s quantity, and invite the Buyer to visit the Bonded Warehouse to verify the Safekeeping Receipt, together with all accompanying documents and inspection of the physical bullion
On the same banking day, the Seller and the Buyer shall meet inside the Buyer’s Bank in Hong Kong and conclude the transaction on a LEDGER-TO-LEDGER basis.
· After positive verification of the SKR, the Seller shall deposit the transferred SKR in the Buyer’s name along with all original documents related to agreed transaction of Bullion Metal (AU) (Gold Bullion) into the Buyer’s Bank account in the Buyer’s Bank in HONG KONG.
· The Seller shall pay the Consultants’ Fees simultaneously with payment to the Seller’s Mandate & Buyer’s Mandate for each transaction.
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SPA
==========================================================================================================================
PRIVATE SALE & PURCHASE AGREEMENT
FOR BULLION AU METAL (PHYSICAL GOLD)
(XXXX BULLION BANK FORMAT)
DD, MM, 2010.
Contract Number
Transaction Code
Seller’s Code
Buyer’s Code
This PRIVATE SALE & PURCHASE AGREEMENT FOR BULLION AU METAL (GOLD) (hereinafter also referred to as the “Agreement” or “SPA”) is entered into this date
DD, MM, 2010, between the following Parties; whose detailed particulars have been comprehensively set out thereto herein hereof below:
SELLER’S Full Name
Corporate Reg. No.
Full Corporate Address
Represented by
Corporate Position
Passport Number
Contact Tel. Number
Contact Email Address
Hereinafter referred to as the “SELLER”
BUYER’S Name
Corporate Reg. No.
Full Corporate Address
Represented by
Corporate Position
Passport Number
Contact Tel. Number
Contact Email Address
Hereinafter referred to as the “BUYER”
Seller’s Initial Page 1 of 9 Buyer’s Initial
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WHEREAS, SELLER desires to sell and deliver to BUYER gold bullion (AU) according to the terms herein and enter into this Agreement as a binding agreement with full corporate and personal responsibility; and
WHEREAS, BUYER desires to purchase and take delivery from SELLER gold bullion according to the terms herein and enter into this Agreement as a binding agreement with full corporate and personal responsibility .
NOW, THEREFORE, for valuable consideration, the sufficiency of which the parties hereby acknowledge, the parties agree as follows:
1.0 Sale and Purchase General Terms. SELLER agrees to sell to BUYER, and BUYER agrees to purchase from SELLER, the following hallmarked gold bullion (the “Commodity”), with the specified quantity, price, discount, currency of payment, fees, and documents to be delivered by SELLER to BUYER at Closing, as defined below:
1.1 Commodity: Gold Bullion (AU) in Bar Form of –
a. Weight: 12.5 kg (GLD specification)
b. Purity/Fineness: 999.5/1000 or better
1.2 Quantity: TOTAL X,000 Metric Tonnes with rolls and extensions
1.2a
First Tranche:
X00 Metric Tonnes, or amount as per first ORIGINAL SKR
presented at TTM within XXXx Bank Headquarters in HK
1.2b
Sub. Tranches:
Subsequent tranches as agreed between BUYER and
SELLER
1.3
Price:
Second Fix on the business day prior to Closing for the
price for gold bullion per troy ounce announced by the
London Bullion Market Association (LBMA)
1.4
Payment:
At Closing in EUROs, free and clear and of non-criminal
origin, on a Ledger to Ledger basis within the
transacting bank, HSBC Headquarters in HK
1.5
Hallmark:
Internationally accepted hallmarks and of Good
London Delivery (GLD) specification and standard
1.6
Discount:
XXX Percent (XX%) GROSS
XXX Percent (XX%) NET to BUYER
1.7
Commission:
One point Five Percent (1.5 %) to SELLER’S side
Fees:
One point Five Percent (1.5 %) to BUYER’S side
1.8
Documents:
Documents
evidencing
safe-keeping,
legal
title/ownership, origin, purity/quality, weight, assay,
commercial invoice, insurance, packing, export
permits/licenses, custom duty, deposit, and warehouse
receipt of the Commodity shall be delivered at Closing
by SELLER to BUYER upon SELLER’S full receipt of the
purchase price
1.9
Place of
Free On Board (FOB) at SELLER’S private Security
Delivery:
Warehouse, the location of the sale in Hong Kong
Seller’s Initial
Page 2 of 9
Buyer’s Initial
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2.0 Bank Details: The Parties’ bank details are set forth in APPENDIX B.
3.0 SELLER’S Representations and Warranties: SELLER represents and warrants to BUYER as follows:
3.1 That the Sale and Purchase transaction set forth in this Agreement is strictly a transaction involving the Sale and Purchase of a physical Commodity and is not a transaction involving the Sale and Purchase of securities.
3.2 The Commodity is free and clear of any liens, encumbrances, or mortgages, not subject to any legal action, nor of criminal origin.
3.3 The Commodity is of the size and fineness as specified under Term 1.1 of the Agreement.
3.4 SELLER has FULL LEGAL AUTHORITY to engage IMMEDIATELY in the transaction as per the terms of this Agreement and has the power to deliver the Commodity to BUYER and perform its obligations under this Agreement IMMEDIATELY.
3.5 That the person executing and delivering this Sale and Purchase Agreement on behalf of the true BENEFICIAL OWNER of the Commodity is DULY and FULLY AUTHORISED to bind the true BENEFICIAL OWNER of the Commodity to the terms and conditions of this Sale and Purchase Agreement.
4.0 BUYER’S Representations and Warranties. BUYER represents and warrants to SELLER as follows:
4.1 The BUYER is ready, willing and able to IMMEDIATELY conclude the purchase transaction set forth in this Agreement and warrants that it has the requisite clear funds, freely transferable, and of non-criminal origin to purchase the Commodity as described within this Agreement at Closing.
4.2 That the Sale and Purchase transaction set forth in this Agreement is strictly a transaction involving the Sale and Purchase of a physical Commodity and is not a transaction involving the Sale and Purchase of securities.
4.3 BUYER has FULL LEGAL AUTHORITY to engage in the transaction as set forth in this Agreement and has the power to perform its obligations under this Agreement.
4.4 That the person executing and delivering this Agreement on behalf of the BUYER is duly authorized to bind the BUYER to the terms and conditions of this Agreement.
5.0 Mutual Representation. The Parties mutually represent to the other that the Commodity and purchase funds do not contravene The Patriot Act and other related acts under the Laws of the United States of America and do not contravene other similar National and International Laws regarding terrorism, corruption, and narcotics.
Seller’s Initial Page 3 of 9 Buyer’s Initial
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6.0 Legal Jurisdiction: This Sale and Purchase Agreement is a FULL recourse commercial contract governed by the Laws of Hong Kong.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written .
SELLER: Witnessed By:
By:
_______________________
_________________________
Name:
Name:
Corp. Name:
Corp. Name:
Position:
Position:
Passport No.:
Passport No.:
Place of Issue:
Place of Issue:
Date of Issue:
Date of Issue:
BUYER: Witnessed By:
By:
_______________________
_________________________
Name:
Name:
Corp. Name:
Corp. Name:
Position:
Position:
Passport No.:
Passport No.:
Place of Issue:
Place of Issue:
Date of Issue:
Date of Issue:
Seller’s Initial Page 4 of 9 Buyer’s Initial
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APPENDIX A
PRIVATE SALE & PURCHASE AGREEMENT PROCEDURES AND CONDITIONS
1. Upon meeting, signing and sealing the Sale and Purchase Agreement together in person, the SELLER and BUYER shall immediately lodge the fully executed originally signed Agreement, along with any and all addendums, with their respective bank officers at XXXX Bank Headquarters, 1 Queen’s Road Central, Hong Kong.
2. Within TWO (2) BANKING DAYS from the date the Agreement is signed by both the SELLER and BUYER, the SELLER shall issue to the BUYER a formal LETTER OF INVITATION to a Top Table Meeting (“TTM”) at the SELLER’s transaction bank, being XXXX Bank Headquarters, 1 Queen’s Road Central, Hong Kong.
The LETTER OF INVITATION shall detail the SELLER’S bank officer’s full name, the bank officer’s full title, the bank officer’s bank identification code, the bank officer’s direct bank telephone number and direct bank email address.
(A draft copy of the appropriate Letter of Invitation shall be provided.)
The TTM shall take place NO LATER than TWO (2) BANKING DAYS from the date the Agreement is signed by both SELLER and BUYER, unless otherwise agreed.
2a. Failure to present an official LETTER OF INVITATION by the SELLER to the BUYER within TWO (2) BANKING DAYS of the date of signing the legally binding full recourse Sale and Purchase Agreement shall result in the SELLER paying a penalty fine to the BUYER due to the SELLER’S non-performance.
The penalty fine amount shall be equivalent to US Dollars 30 Million (USD$30,000,000.) or 5% of the TOTAL contract value in EUROS.
3. Upon receipt of the LETTER OF INVITATION by the BUYER and the bank officer to bank officer confirmation of the arranged TTM, the BUYER shall respond within a maximum of ONE (1) BANKING DAY with a LETTER OF ACCEPTANCE to the SELLER.
The LETTER OF ACCEPTANCE shall contain the full BUYER’S bank officer’s details equivalent to those presented in the LETTER OF INVITATION from the SELLER.
3a. Failure to present an official LETTER OF ACCEPTANCE by the BUYER to the SELLER within ONE (1) BANKING DAY from the date the BUYER receives the LETTER OF INVITATION and the bank officer to bank officer confirmation of the TTM has taken place shall result in the BUYER paying a penalty fine to the SELLER due to the BUYER’S non-performance.
The penalty fine amount shall be equivalent to US Dollars 30 Million (USD$30,000,000.) or 5% of the TOTAL contract value in EUROS.
4. At the TTM, when PROOF OF PRODUCT and PROOF OF FUNDS are exchanged within the bank, the SELLER’S bank officer shows the BUYER’S bank officer and the BUYER all official PROOF OF PRODUCT documentation – including the ORIGINAL SKR(s) – which evidences ownership, possession, and ability to transfer free and clear title. In front of the SELLER and SELLER’S banking officer, the BUYER verifies the authenticity of the ORIGINAL SKR(s) with the Secure Warehouse and, upon satisfactory verification, the BUYER shall instruct his bank officer to issue a BANK GUARANTEE for the full value of the agreed FIRST
Seller’s Initial Page 5 of 9 Buyer’s Initial
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TRANCHE/ORIGINAL SKR(s) shown and thence lodge the BANK GUARANTEE directly into the SELLER’S XXXX bank account .
The verbiage of the BANK GUARANTEE shall be determined between the SELLER’S and BUYER’S banking officers at the meeting and shall be specific to the Sale and Purchase Agreement’s contract code, the bank transaction code, and the ORIGINAL SKR numbers shown. The BANK GUARANTEE shall only be able to be used for the sole purpose of the agreed transaction. The same process shall then be carried out per tranche, subject to necessity and agreement between the SELLER and BUYER.
4c. It shall be known by both SELLER and BUYER that it is an extremely serious offence to misrepresent and or non-perform at a bank Table Top Meeting in Hong Kong. Consequently, the severest action shall be taken against the failing party should that occur, thereby the terms of the Agreement not being upheld, including but not limited to the arrest and long term detainment of the failing party, and legal action to recover all damages incurred, as well as compensation from the failing party being awarded to the non-failing party for the amount equivalent to the TOTAL value of the contract.
If such circumstances arise the holding of Diplomatic Immunity shall prove inconsequential.
5. After PROOF OF PRODUCT and PROOF OF FUNDS are exchanged at the bank Top Table Meeting, the SELLER and BUYER immediately arrange to view the PRODUCT at the Secure Warehouse and verify PRODUCT against DOCUMENTATION. The verification process at the Secure Warehouse shall commence no later than WITHIN ONE (1) BANKING DAY of the bank TTM, unless otherwise agreed.
It shall be the SELLER’S full responsibility to ensure the Secure Warehouse is made fully aware that a bank TTM is taking place and that the Secure Warehouse is fully ready for the BUYER’S verification of the SKR(s) presented at the bank TTM and the ensuing inspection of the Commodity at the warehouse shortly thereafter, preferably all taking place the same day.
The SELLER shall issue the BUYER a FORMAL INVITATION to the Secure Warehouse. The invitation shall include the names and passport numbers of the BUYER and his assay and documentation team, all of whom will be present at the Secure Warehouse for the verification process.
5a. It shall be known to both SELLER and BUYER that ONLY the entity on the ORIGINAL SKR(s) is able to transfer clear title to the BUYER and conclude the Agreement and the proposed transaction successfully.
The AUTHORISED SELLER may or may not be that entity. If the SELLER is NOT that entity it must be made known here:
The SELLER is FULLY AUTHORISED to transfer clear title to the BUYER: (Please mark here)
YES [ ] or NO [ ]
If the answer above is [NO] and the entity on the ORIGINAL SKR(s) is NOT the AUTHORISED SELLER signing the Agreement and the SELLER signing the Agreement is NOT FULLY AUTHORISED to transfer clear title to the BUYER; the
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ENTITY ON THE ORIGINAL SKR(s) MUST BE PRESENT IN PERSON AT THE WAREHOUSE for the verification process and issuance of new documentation to the BUYER.
It is a requirement of the Secure Warehouse to officially and unequivocally qualify the entity on the ORIGINAL SKR, via biometric and other forms of data, in order to conclude the transfer of title to the BUYER. It is therefore IMPERATIVE that the entity on the ORIGINAL SKR(s) is PRESENT IN PERSON to finalize matters.
IT IS THE AUTHORISED SELLER’S FULL RESPONSIBILITY TO ENSURE THE REQUIRED ENTITIES ARE PRESENT IN HONG KONG IN ORDER TO CONCLUDE THE AGREEMENT AND TRANSACTION SUCCESSFULLY AND ON A TIMELY BASIS.
6. After the completion of the visual inspection and verification of the Commodity at the Secure Warehouse, the bank officers shall proceed to complete the closing process.
7. At the closing, the SELLER shall arrange and execute all necessary DOCUMENTS transferring title to the BUYER. The BUYER shall verify the DOCUMENTS and, upon acceptance, the BUYER shall release full payment to the SELLER on a Ledger to Ledger basis within XXXX Bank. The BUYER shall then be given the DOCUMENTS and shall have full clear title of the Commodity.
The Secure Warehouse manager shall issue new documents in the name of the BUYER and present one of two sets to the SELLER’S bank officer. The SELLER’S bank officer shall only release these documents to the BUYER after the BUYER has released full payment in clear funds into the SELLER’S account. The second set of documents shall be kept at the warehouse for future purposes on behalf of the BUYER.
The BANK GUARANTEE equivalent in value to the first tranche previously issued and lodged in the SELLER’S account shall then be made null and void, with a new BANK GUARANTEE issued equivalent in value to the second tranche/ORIGINAL SKR(s) shown should there be one and lodged in the SELLER’S XXXX bank account should it be necessary and requested.
8. Simultaneously with TRANSFER OF OWNERSHIP to the BUYER, in conjunction with payment to the SELLER, the BUYER shall instruct the BUYER’s bank officer to immediately transfer the FEES and COMMISSIONS to all consultants and intermediaries pursuant to the IMFPA, if one is required and thereby attached to the Sale and Purchase Agreement, forming an integral part of the contract.
There shall be only ONE paymaster per side on the IMFPA, unless otherwise agreed. The paymaster for the fee recipients MUST HAVE an account WITHIN the transacting bank, XXXX. No other bank is acceptable for the payment of the fees.
9. After the successful PAYMENT to the SELLER and TRANSFER OF OWNERSHIP to the BUYER of the PRODUCT and the payment of the COMMISSIONS to the CONSULTANTS and INTERMEDIARIES, the SELLER may offer to sell to the BUYER additional PRODUCT, in subsequent tranches, under the same terms and conditions or as otherwise agreed between the PRINCIPAL PARTIES.
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APPENDIX B
PRIVATE SALE & PURCHASE AGREEMENT
BANKING DETAILS
SELLER’S Banking Details
Bank Name:
XXXX Banking Corporation Limited (XXXX)
Bank Address:
Account Number:
Account Name:
Swift Code:
Bank Officer’s Name:
Bank Officer’s Bank Tel:
Bank Officer’s Bank Fax:
Bank Officer’s Bank Email:
BUYER’S Banking Details
Bank Name:
Bank Address:
Account Number:
Account Name:
Swift Code:
Bank Officer’s Name:
Bank Officer’s Bank Tel:
Bank Officer’s Bank Fax:
Bank Officer’s Bank Email:
Seller’s Initial Page 8 of 9 Buyer’s Initial
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DRAFT LETTER OF INVITATION
Seller’s Letterhead
AGREEMENT NO:
SELLER’S REFERENCE CODE:
BUYER’S TRANSACTION CODE:
TRANSACTION CODE:
BANK CONTRACT CODE:
FORMAL LETTER OF INVITATION
TO THE BUYER,
I, ________________________, HOLDER OF PASSPORT NUMBER _________________ OF
_________________________, DULY APPOINTED AS SELLER, HEREBY FORMALLY INVITE YOU TO CONTACT MY BANK OFFICER AT HONG KONG XXXX BANK CORPORATION HEADQUARTERS (XXXX), QUEEN’S ROAD, CENTRAL, HONG KONG.
I AUTHORISE YOU TO MAKE CONTACT AND MEET MY BANK OFFICER ON ___th MM 2010, IN ORDER TO CONCLUDE THE TRANSACTION FOR THE FIRST TRANCHE OF ____METRIC TONNES.
THIS LETTER HEREBY AUTHORISES MY BANK OFFICER TO RELEASE FULL DOCUMENTATION AT THE MEETING, THEREBY PROVING THE AUTHENTICITY F THE FREE, CLEAN AND CLEAR AU METAL THAT I HAVE FOR SALE AS PER THE CONTRACT AGREEMENT.
MY BANK OFFICER DETAILS ARE AS FOLLOW:
BANK OFFICER’S FULL NAME: ________________________________________
BANK OFFICER’S FULL TITLE: ________________________________________
BANK OFFICER’S DIRECT CONTACT NUMBER: __________________________
BANK OFFICER’S DIRECT BANK EMAIL ADDRESS: _______________________
BANK OFFICER’S BANK IDENTIFICATION CODE: _________________________
SINCERELY,
SELLER:
Signature / Date Stamp/Seal
SELLER’S PRIMARY XXXX HK BANKING OFFICER :
CONFORME
Signature / Date
Stamp/Seal
Seller’s Initial
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Buyer’s Initial
