Investment Contract

Investment Contract

 

THIS CONTRACT made and entered into the (   )th day of March, 2001, by and between Maya Petroleos I.N.F. De Guatemala S.A., a corporation duly organized and existing under the laws of the Republic of Guatemala with its principal office at 10 calle 1-51 zona 9, Guatemala City, Guatemala (hereinafter denoted as “Maya”) and Bi-net Co., Ltd., a corporation duly organized and existing under the laws of Japan with its principal office at 2-12 Koujimachi, Chiyoda-Ku, Tokyo 102-0083 Japan (hereinafter denoted as “Bi-net”).

 

 

WITHNESSETH

 

WHEREAS, Maya has long been engaged in the activities including but not limited to purchase, sales and development of agricultural products and natural resources (hereinafter denoted as “business activities”); and

WHEREAS, Maya is willing to accept investment from Bi-net which has been engaged in the activities including but not limited to investment intermediary services.

NOW, THEREFORE, in consideration of the covenants and promises considered hereinafter, the parties hereto agree as follows;

 

Article 1

 

The term of this Contract shall commence as of the date hereof and shall continue in full force and effect for the period of investment as defined in Article 2 except where a different term is specified.

 

Article 2

 

1.         Bi-net agrees to transmit ( ) U.S. dollars (hereinafter denoted as “Fund”) to a bank account designated by Maya within fourteen days from receiving the necessary advice from Maya as provided in Article 6. Bi-net has right to refuse transmission of Fund if Bi-net receives no prior confirmation that Pay Order as provided in Article 2 shall be issued simultaneously with the transmission of Fund.  Such confirmation shall be made by the bank that actually issues such Pay Order.

 

2.         Maya shall guarantee if it does not elect to secure Fund on behalf of Bi-net by means of a bank safekeeping receipt or its equivalent below that Bi-net shall receive a bank issued pay order (hereinafter denoted as “Pay Order”) in its favor for the amount of (  ) U.S. dollars.  Maya further guarantees that Pay Order shall be issued at the same time as Fund is transmitted to Maya’s bank account and that under the terms of the Pay Order, Bi-net shall receive within three hundred sixty plus ten days from the transmission of Fund to Maya’s bank account the full payment of ( ) U.S. dollars in a bank account designated by Bi-net. Maya shall provide at the time of its advice under Article 6 Bi-net with a sample copy of Pay Order with the identical terms to those of the actual Pay Order for its inspection of the terms and conditions therein.  Bi-net has right to refuse the said terms and conditions and rescind this Contract should there be no resolution of the said terms and conditions satisfactory to Bi-net by the time that it is obliged to transmit Fund under the terms of this Contract.

 

3.         Alternatively, Maya shall guarantee that Fund is secured in Maya’s bank account by a bank safekeeping receipt or its equivalent. Maya shall provide at the time of its advice under Article 6 Bi-net with a sample copy of the bank safekeeping receipt or its equivalent with the identical terms and conditions to those of the actual bank safekeeping receipt or its equivalent for its inspection of the terms and conditions therein.  Bi-net has right to refuse the said terms and conditions and rescind this Contract without incurring any liability should there be no resolution of the said terms and conditions satisfactory to Bi-net by the time that it is obliged to transmit Fund under the terms of this Contract.

 

4.         The investment period is defined as ten days plus the period between the date of the transmission of the Fund and the date of the payment that shall be guaranteed by Pay Order.

 

Article 3

 

Maya guarantees the payment of  ( ) U.S. dollars to Bi-net during the investment period in consideration of Bi-net’s undertakings as provided in Article 2.  Maya further guarantees that the bank issued pay order(s) for the amount of ( ) U.S. dollars shall be issued at the same time that Fund is transmitted to Maya’s bank account and that under the terms of the bank issued pay order(s), the payment of ( ) U.S dollars shall be made every three months to a bank account designated by Bi-net. Maya shall provide at the time of advice under Article 6 Bi-net with a sample copy of the bank issued pay order(s) with the identical terms and conditions to those of the actual bank issued pay order(s) for its inspection of the terms and conditions therein.  Bi-net has right to refuse the said terms and conditions and rescind this Contract without incurring any liability should there be no resolution of the said terms and conditions satisfactory to Bi-net by the time that it is obliged to transmit under the terms of this Contract.

 

Article 4

 

Both parties agrees to use the services of only those banks rated “AA” or “AAA” by Moody’s Investors Service for the purpose of transmitting Fund and of issuing bank issued pay orders under the terms of this Contract.

 

Article 5

 

Each party shall be responsible for the costs including but not limited to any fees incurred in carrying out its undertakings and obligations under the terms of this Contract.  Each party shall pay the costs in time to prevent any delay of its undertaking, which may result in a breach of this Contract. Maya is responsible for the costs incurred in the issuance of the bank issued pay orders provided in Article 2 and 3.

 

Article 6

 

Bi-net shall within fourteen days from the signing of this Contract send Maya proof of fund for the amount of  ( ) U.S. dollars in an account of the bank where it shall transmit Fund.  Maya shall within fourteen days from receiving such proof of fund advise Bi-net to transmit Fund and provide all the necessary information including the sample copies of the bank issued pay order(s), the bank safekeeping receipt and/or its equivalent.

 

Article 7

 

Each party agrees to observe in good faith all the terms and conditions contained in this Contract and shall reimburse without delay the other party for any costs incurred by its breach.

 

Article 8

 

Each party has right to rescind the Contract immediately without incurring any liability to the other party in an event of a breach of this Contract by the other party. The rescinding party shall send without delay a notice to the other party specifying grounds for its recession.

 

Article 9

 

Each party shall indemnify and hold the other party harmless from any liability and/or claim arising from its own conduct and/or commitment to a third party.

 

Article 10

 

The formation, validity, construction and the performance of this Agreement are governed by the laws of the State of New York, United States of America.

 

Article 11

 

All disputes, controversies or differences which may arise between the parties out of or in relation to or in connection with this Contract or for the breach thereof, shall be finally settled by arbitration in Seoul, Korea in accordance with the Commercial Arbitration Rules of the Korean Commercial Arbitration Board.  The award rendered by the arbitrators shall be final and binding upon the parties concerned. Both parties further agree that they would raise no complaint based on the terms and conditions of this Contract after six months from which time the cause of an action occurred or from which time the complaining party should have reasonably known the occurrence of the cause of an action.

 

 

 

 

Article 12

 

Neither party shall be entitled to assign any of its rights and obligations under this Contract without the other party’s written consent.

 

Article 13

 

Any communication including notice required or permitted to be given hereunder shall be in writing and may be given by personal service, registered airmail, electronic mail or by fax.  Each party may authorize an agent to forward notice on its behalf, and the other party shall accept communication and notice from such agent upon receiving the other party’s notice to that effect.  Each party shall send the other party an acknowledgment of its receipt of notice from the other party within twenty-four hours from receiving such notice. 

 

To Maya at                                                                           To Bi-net at

 

Fax No.:                                                                               Fax No.

Email Address;                                                           Email Address:                     

Postal Address:                                                     Postal Address:

 

Article 14

 

If any one or more of the provisions contained in this Contract shall be declared invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired and, in such case, the parties hereto oblige themselves to reach the purpose of the invalid provision by a new, valid and legal stipulation.

 

Article 15

 

Each party may waive at any time the other party from any part of its obligations. All waivers hereunder shall be in writing, and the failure of any party at any time to require the other party’s performance of any obligations under this Contract shall not affect the right subsequently to require performance of the obligation.  Any waiver of any breach of any provision of this Contract shall not be construed as a waiver of any continuing or succeeding breach of such provision or a waiver of modification of the provision.

 

Article 16

 

This Contract sets forth the entire agreement and understanding between the parties as to the subject matter of this Contract and merges and supersedes all prior discussions, agreements and understanding of any and every nature between them, and neither party shall be bound by any condition, definition or representation other than as expressly provided for in this Contract or as may be on a subsequent date duly set forth in writing and signed by a duly authorized officer of the party to be bound.

Article 17

 

This Contract is not changed, modified or amended by the parties of this Contract except as such change, modification or amendment is in writing and signed by both parties.

 

Article 18

 

All communications and notices under this Contract, in all respects, shall be given in English.  This Contract shall be prepared in English.  Even though a foreign language version of this Contract may be prepared for convenience to the parties, the English text shall control.

 

Article 19

 

1.         Each party agrees not to use or disclose in any way for any purpose other than fulfilling its obligations under this Contract any confidential information obtained from the other party or its agent in the duration of this Contract both directly or indirectly relating to the other party’s business activities.  Any information is deemed confidential for the purpose of this Contract unless it is readily available to general public.

 

2.                  Each party agrees not to contact for the purpose of soliciting business any individual and/or legal person including but not limited to financial institution, business or any other entity whose knowledge is obtained from the other party or its agent in the duration of this Contract unless such contact is authorized in writing by the other party prior to such contact.

 

3.                  Both parties shall be bound by the terms of this Article for the period of five years after the expiration of the investment period.

 

IN WITNESS WHEREOF, the parties hereto have caused this Contract in duplicate to be executed by their duly authorized representatives as of the date and year first above written. The said representatives also duly sign the initials of their names on the lower left corner of each of the other pages of the Contract to attest its authenticity.

 

Maya Petroleos I.N.F. De Guatemala S.A.                      Bi Co., Ltd.

By ____________________                                                     By ________________________

Name:                                                                               Name:

Title:                                                                                 Title: