VANTU BANK LIMITED. Financial Asset Trade Agreement

Transcription

1 VANTU BANK LIMITED

2 Client Account Number: Asset Number(s): The undersigned, [hereinafter Client ] hereby appoints Vantu Bank Limited [hereinafter Vantu Bank ] to act as custodian for the purpose of wealth management of Client s Asset(s) located in the Trade Bank Account in accordance with the following terms and conditions of this agreement [hereinafter Agreement ]. 1. Definitions: Assets: Buy Ticket Agreement Cash Funds: Clearing Network Client: Collateral Bank Collateral Bank Account Person: Proceeds Sell Ticket Agreement: Includes cash funds, Bank Guarantees (BG), Stand By Letter of Credit (SBLC), cashbacked financial instruments, bonds, Medium Term Notes (MTN s) that are free and clear of any lien or encumbrance and that can be confirmed and/or transferred with full banking responsibility through a Clearing Network; An agreement where the Client provides instructions to Vantu Bank to purchase Asset(s) for deposit to the Trade Bank Account or the Collateral Bank Account; Legally acquired currency that can be immediately used for the exchange of financial assets including precious metals and financial instruments. Euroclear, Clearstream, DTC, bank to bank SWIFT communication or other financial asset clearing network to which Vantu Bank may have access from time to time; An individual, business or institution, including a settlor that can buy, sell, transfer, exchange, execute, send or receive assets, use a credit line with the necessary account to operate day to day transactions as required. a bank at which Vantu Bank maintains a correspondent account and at which the Client maintains a Collateral Bank Account; A bank account maintained by the Client at the Collateral Bank in which Assets belonging to the Client are deposited particulars of which are set out in Schedule B hereto; Includes a natural person, corporation, partnership, business, firm, trust or other legal entity. Includes without limitation, all interest, dividends, cash, instruments, securities, financial Asset(s)s and other property received, receivable or otherwise distributed upon the sale, exchange, collection or disposition of any Financial Assets from time to time. An agreement where the Client provides instructions to Vantu Bank to sell any Asset for credit to the Trade Bank Account. P a g e 1 10

3 Trade Bank Account: Vantu Bank: Vantu Bank Fee: The bank account maintained by the Client at Vantu Bank as provided herein particulars of which are set out in Schedule B hereto. This account can buy/sell asset(s) on Euroclear, SWIFT and other clearing networks approved by the Client. All trades are settled through this account. This account is operated and owned by the Client. Vantu Bank executes orders and clears the trade requests per Client s instructions. A bank incorporated in Vanuatu under company no , the holder of an international banking licence issued by the Reserve Bank of Vanuatu and which operates and carries out the terms of this Agreement and Transaction Agreements as the Custodian Bank for the Client. A charge levied by Vantu Bank for transacting assets. This fee includes interest, bank fees and other fees and necessary expenses required in transacting the asset. 2. Investment Management Overview Vantu Bank shall manage Client s Asset(s) held in the Trade Bank Account to engage in transactions on the Client s behalf. The Client represents and warrants that the Client has sufficient knowledge and experience in investment matters to qualify to engage in such transactions. Client has the Asset or Assets described in Schedule C in the Collateral Bank Account and Client agrees to allow Vantu bank trade that amount as provided in clause 3 hereof subject to the trade requirements described in the Buy Ticket Agreements and Sell Ticket Agreements exchanged between Vantu Bank and the Client. Vantu Bank will manage and execute all trades on behalf of the Client unless the Client elects to direct Vantu Bank to execute trade by trade. Vantu Bank will provide Client with online access to trades or a statement of trades. Vantu Bank charges its normal banking charges for this service. 3. Transactions. (a) Cash Transfer from Collateral Bank Account The Client may instruct the Collateral Bank to transfer Cash Funds from the Collateral Bank Account to the Trade Bank Account for the purpose of trading hereunder. (b) Monetization from Collateral Bank Account (ii) The Client may require the Collateral Bank to create an administrative hold over Assets deposited in the Collateral Bank Account for credit to the Trade Bank Account. The Collateral Bank may require the signature and submission of separate application or other forms for such purpose. The amount so credited shall constitute a floating margin facility ( Margin Facility ) that allows the Client to block the whole or part of the value thereof as Cash Funds for the purpose of buying an Asset from a Clearing Network for deposit to the Trade Bank Account. P a g e 2 10

4 (c) (d) (e) Trading (ii) Proceeds (ii) (iii) (iv) (v) Tax The Client hereby instructs Vantu Bank to execute trades within the value of such Trade Finance Asset by means of buying/selling/dealing/executing and trading with or without margin on behalf of the Client on or through any Clearing Network; If the Client instructs Vantu Bank to execute trade by trade, then Vantu Bank shall not execute any trade except on the express instructions of the client. All Proceeds from trading transactions shall be deposited into the Trade Bank Account. The Client may not withdraw any Trade Finance Asset or any part of the value thereof except to the extent that it comprises unencumbered Cash Funds. The Client may withdraw profits that are not locked-in for a trade and any unencumbered portion of the Margin Facility. Withdrawals of Cash Funds are subject to Vantu Bank s normal terms and conditions of service. The Client authorizes and instructs Vantu Bank to deduct all expenses, bank charges, brokerage fees, profit splits and legal and other necessary and proper fees from the Proceeds. The Client is responsible for payment of all taxes to which the profits attributable to the Client are subject and for all reporting of the same to any revenue authority having jurisdiction over the client or the profits belonging to the Client and shall indemnify Vantu Bank against any failure to make any necessary report or pay any tax due. 4. Fees: For the services performed under this Agreement, the Client shall pay Vantu Bank a fee in the amounts as provided on Schedule A hereto. The Client hereby authorizes Vantu Bank to deduct such fee and expenses from the Trade Bank Account. Any fees and expenses payable in connection with the execution of transactions for the Trade Bank Account and any out-of-pocket expenses incurred by Vantu Bank with respect to the Trade Bank Account, shall be automatically deducted from the Trade Bank Account and, to the extent the Trade Bank Account s funds are inadequate, reimbursed by the Client. 5. Confidentiality (a) Non-Disclosure All information and advice furnished under this Agreement by either party to the other, including respective agents and employees, shall be confidential and shall not be disclosed to third parties, except as may be required by law or as required or necessary to enable Vantu Bank or its agents and employees to perform under this Agreement. P a g e 3 10

5 (b) Exception Client agrees that Vantu Bank can disclose and present financial capacity to purchase an asset with approval from Client at the time of trade to a prospective seller of an Asset by providing a Block Funds Letter or proof of credit line or cash position in the Client s account. 6. Non-Exclusive Management Vantu Bank, its principals, employees, and agents may have or take the same or similar positions in specific investments for their own trade accounts or for the trade accounts of other Clients, as Vantu Bank recommends, for the assets in the Trade Bank Account. The Client expressly acknowledges and understands that Vantu Bank shall be free to provided custodianship services to others and that Vantu Bank does not make its custodianship services available exclusively to the Client. Nothing in this Agreement shall impose upon Vantu Bank any obligation to purchase or sell, or to recommend for purchase or sale, for the Trade Bank Account any security which Vantu Bank, its principals, employees or agents may purchase or sell for their own accounts or for the trade account of another Client. 7. Limit of Liability Except as otherwise provided by securities laws and regulations, Vantu Bank, acting in good faith, shall not be liable for any act, omission, decision, transaction or loss in connection with this Agreement including, but not limited to, the investment of assets in the Trade Bank Account or the acts and/or omissions of other professionals or third party service providers recommended to the Client by Vantu Bank, including a broker-dealer and/or other custodian. If the Trade Bank Account contains only a portion of the Client s total assets, Vantu Bank shall be responsible for those assets deposited in the Trade Bank Account under this Agreement without consideration to those additional assets not so deposited by the Client. 8. Valuation Vantu Bank shall provide the Client a monthly statement of the assets deposited in the Trade Bank Account. No such valuation shall be deemed a guarantee of any kind whatsoever of the value of the assets deposited in the Trade Bank Account. 9. Risk Acknowledgement Vantu Bank does not guarantee the future performance of the Trade Bank Account or any specific level of performance, the success of any investment or strategy that the Vantu Bank may make or adopt for the Trade Bank Account in accordance with the Client s instructions. Client understands that transactions for the Trade Bank Account are subject to various markets, currency, economic, political and business risks, and that transactions will not be always profitable. P a g e 4 10

6 10. Termination This Agreement shall be valid until terminated by Client or Vantu Bank provided that Client does not have any pending trades to complete on any Clearing Network. Termination cannot occur during execution of an active trade. (ii) (iii) (iv) Client terminate the relationship with Vantu Bank by notice in writing at any time with immediate effect provided Client is not engaged in an active trade in which event termination will take effect upon completion of all trades that were opened prior to the notice of termination. Vantu Bank reserves the right to close the Client relationship by notice in writing at any time upon completion of all outstanding trades. Such termination will not affect the liabilities or obligations of the parties under the Agreement arising from transactions initiated prior to such termination, including the provisions regarding arbitration, which shall survive any termination. Upon termination of this Agreement, Vantu Bank shall be under no obligation to recommend any action with regard to, or to liquidate, the securities or other assets in the Trade Bank Account. 11. Death or Disability The death, disability or incapacity of the Client will not terminate or change the terms of the Agreement. However, Client s executor, guardian, attorney-in-fact or other authorized representative may terminate this Agreement by giving written notice to Vantu Bank. In the event of the death, disability or incapacity of the Client the successor to the Client s estate will provide instructions and execution orders for the Trade Bank Account. 12. Arbitration In the event of any dispute or disagreement between the parties arising out of or in relation to the interpretation, application or meaning of this Agreement, or respecting compliance with provisions, the parties will meet to attempt in good faith to resolve such dispute or disagreement. If the parties are unable to resolve such dispute or disagreement through such meetings, within 30 days after receipt of written notice (or within such time as mutually agreed to by the parties) by either party from the other that such dispute or disagreement exists, such dispute or disagreement will be submitted for arbitration in English in Hong Kong pursuant to the Rules under the Arbitration Ordinance (Cap 609). Any dispute or disagreement submitted for arbitration wherein monetary damages are claimed, shall be only for actual damages and the parties expressly agree that no claims for punitive or multiple damages in excess of actual damages shall be made by either party against the other. Any judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. In any such arbitration, each party will bear its own costs and expenses, including attorneys fees and administrative expenses in connection with the arbitration. Unless mutually agreed by the parties in writing, there shall be no obligation to arbitrate changes in or additions to the terms of this Agreement and no arbitrator shall have the power to add to or subtract from the terms of this Agreement. P a g e 5 10

7 13. Indemnity Each party hereto (the Indemnifying Party ) agrees to indemnify and hold harmless each other party (each, an Indemnified Party ) and all employees, representatives, directors, officers, shareholders and persons affiliated with the Indemnified Party against all claims, damages, losses, liabilities, costs and expenses (including, without limitation, settlement costs and any reasonable legal, accounting or other expenses for investigating or defending any actions or threatened actions) (collectively Losses ) incurred by the Indemnified Party arising out of or resulting from (a) the gross negligence, willful misconduct or fraud of the Indemnifying Party or (b) a breach by the Indemnifying Party of its representations and warranties, covenants or other obligations under this Agreement. In addition, except in the case of fraud or willful misconduct, Client agrees to indemnify and hold harmless Vantu Bank and its respective employees, representatives, directors, officers, shareholders and persons affiliated with them against all Losses incurred by them in the performance of their obligations under this Agreement. 14. Client Conflicts If this Agreement is between the Vantu Bank and joint or related Clients (i.e. husband and wife, etc.) Vantu Bank may rely and act upon instructions from either party with respect to the disposition of the assets or the Account, unless and until such reliance is revoked by written notice to Vantu Bank. Vantu Bank shall not be responsible for any claims or damages resulting from such reliance or from any change in the status of the relationship between Clients. 15. Assignment This Agreement may not be assigned by either party without prior consent of the other party. The Client acknowledges and agrees that transactions that do not result in a change of actual control or management of Vantu Bank shall not be considered an assignment. 16. Modification and Intent This Agreement shall not be changed, modified, terminated, or discharged in whole or in part, except by an instrument in writing signed by both parties hereto or their respective successors or assigns. This Agreement constitutes the entire Agreement between the parties with regard to the matters described herein, superseding all prior oral and written communications, proposals, negotiations, representations, understandings, courses of dealings, agreements, contracts and the like between parties. 17. Notices Unless otherwise specified herein, all notices with respect to this Agreement shall be deemed duly given when received in writing by the other party at such address as shall be specified by notice similarly given. Vantu Bank may rely upon any notice, instruction or other communication from any person reasonably believed by Vantu Bank to be genuine and authorized. P a g e 6 10

8 18. Miscellaneous (a) Refusal to Accept or Renew Vantu Bank reserves the right to refuse to accept or renew this Agreement at Vantu Bank s sole discretion and for any reason. (b) Unenforceable Terms Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms or provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. (c) Governing Law This Agreement is made and shall be construed under the laws of the Hong Kong Special Administrative Region of the People s Republic of China. (d) Capacity to Contract The Client represents that: (ii) (iii) (iv) (v) where the Client is not a natural person, it is duly incorporated or registered and in good standing in the place of its incorporation or registration; it has the capacity to enter into this agreement; the execution and performance of this Agreement does not constitute a breach or an event of default under any agreement between the Client and any third party; where the Client is not a natural person, all necessary resolutions and authorities have been passed, given and made to constitute the execution and performance of this Agreement the proper corporate act of the Client and to bind the Client by its terms; that the person signing this Agreement on behalf of the Client is fully authorised to sign it and that such signature commits the Client to the terms hereof. (e) Legally Binding This Agreement shall be legally binding upon the Client and the Client s estate, heirs, executors, Directors, Signatories, Shareholders, Administrators, personal representatives, successors and permitted assigns, and all transactions hereunder shall be at the Client s risk and for the Trade Bank Account. (f) Force Majeure Neither Client nor Vantu Bank shall be responsible to the other for delays or errors in performance or breach under this Agreement occurring solely by reason of circumstances beyond the control of the Client or Vantu Bank, including acts of civil or military authority, national emergencies, fire, major P a g e 7 10

9 mechanical breakdown, labor disputes, computer problems, server outages, flood or catastrophe, acts of God, insurrection, war, riots, delays of suppliers or failure of transportation. (g) Headings The headings are for ease of reference only and shall not affect the interpretation or application of this Agreement or in any way modify or qualify any of the rights. (h) Disclosure Statement Client hereby warrants that Client is a sophisticated and accredited entity, as the term is understood by the investment industry and its regulatory bodies. Client has the ability to determine the risk involved in transactions such as this Agreement and has had sufficient time to seek professional advice concerning the specifics of these transactions. Reporting Where available, Vantu Bank will provide online reporting to the Client. SIGNATORIES The Signatories hereby confirm that this is a legal document and having read and understood the above Agreement, Client and Vantu Bank identified below hereby acknowledge and accept the terms and conditions of this Agreement and affix their signatures hereto. Client Client Name: Address: Phone: Skype: Title: Authorized Person: Passport Country: Passport Number: Passport Expiry: Date: P a g e 8 10

10 Vantu Bank Signature: Title/Position Client Signature: SCHEDULE A Fees: Fees are paid to Vantu Bank when a transaction is complete per the terms and conditions as detailed in each Buy Ticket Agreement and Sell Ticket Agreement. Financial Institution Charges are displayed on the Financial Institution Statements or execution orders. SCHEDULE B The Collateral Bank Account Bank: Branch: SWIFT: Account Name: Account No.: Currency: The Trade Bank Account at Vantu Bank Account Name: Account No.: Currency: P a g e 9 10

11 SCHEDULE C Description of Client s Asset(s). P a g e 10 10