INVESTMENT
AND FUND MANAGEMENT AGREEMENT
This Investment And Fund Management Agreement
(the Operating Agreement) is made and entered into effective as of the 18th Day of September, 2014 by
and between MOMKA SAMURA , ordinarily resident in 22 RUE STREET ABIDJAN COTE
‘IVOIRE WEST AFRICA, citizen of the Republic of Seirra Leone (holder of
Ordinary holder
of Passport Number: '0032642' (Hereinafter
referred to as: "THE INVESTOR")
AND
CV.LILY AMELIA PUTRI
a citizen of Indonesia (currently holder of
official Service Passport Number:
Residence:
(JL.GUNUNG TALANG VI C PERUM
MALBORA ,INDAH RESIDENCE No A,DENPASAR,BALI INDONESIA 801 17.)
(Hereinafter
referred to as: "THE INVESTMENT MANAGER")
INTRODUCTION:
WHEREAS:- "The Investor" and "The
Investment Manager", each acting with full legal authority and
responsibility, hereby certifies, represents and warrants that each is capable
to fulfill the requirements of this Operating Agreement and respectively
provide the funds and defined services referred to herein, in time and under
the terms agreed to hereinafter; and
WHEREAS:-"The Investor" hereby agrees and makes an irrevocable firm contract to
transfer his ownership to "The Investment Manager"; and
WHEREAS:- "The Investment
Manager" builds synergies with associate physical and moral persons at
various levels of collaborative programmes and projects, requiring the
provision of strategic management and advisory services, deemed to facilitate
enhanced investment profitability and hereby
agrees and makes an irrevocable firm contract to accept the ownership (fund)
from "The Investor"; and
WHEREAS:- "The Investor" has adequate funds
which he desires to invest in financially viable and profitable ventures and has voluntarily and
without any solicitation from "The Investment Manager", having the necessary
expertise in this domain of corporate activity in addition to the required related
strategic networking relations to place the funds in private investment
ventures, has agreed to accept the funds from "The Investor" and invest
the said funds under the control of “The Investment Manager“ in a secure and
profitable manner; and
WHEREAS:- "The
Investor" wishes to obtain from the "The Investment Manager",
and the "The Investment Manager" wishes to provide to the "The
Investor" the required services contemplated by this Agreement in
accordance with the terms, and subject to the conditions, set forth herein; and
WHEREAS:- "The
Investor" and "The Investment
Manager", both agree to finalize this contract under the terms and
conditions, it is therefore agreed as follows :-
NOW THEREFORE, in consideration of the foregoing, and the
mutual covenants and accruable benefits herein contained, and for good and
valuable consideration, the sufficiency and receipt of which is hereby
acknowledged, the "The Investor" and
"The Investment Manager", intending
to be legally bound hereby, agree as follows:
ARTICLE 1: THE INVESTMENT FUND
In consideration of the mutual
covenants and accruable benefits herein, the parties have agreed as follows: Investment Funds-:
The "Investment Fund" shall be equal to the aggregate total amount of
US$6,300,000.00 (Six Million Three Hundred
Thousand Dollars Only).
ARTICLE 2: ENGAGEMENT OF INVESTMENT MANAGER
A.
"The Investor"
engages the "The Investment Manager" as an independent
contractor to provide the services set forth in this Operating Agreement
relating to the administration, management, supervision and disposition of the "Investment
Fund" described in Article 1 (Hereinafter: "Investment
Funds"). It is understood by
the parties hereto that additional Investment Funds may be brought within the
scope of this Operating Agreement, subject to the signature by the Parties
hereto of a supplement to Article 1 herein-above.
B.
"The
Investment Manager" shall in good faith provide
the services set forth in this Operating Agreement in accordance with normal
and prudent practices in the financial services industry and shall have the full
authority to receive from the "The Investor"
and execute all such relevant actions deemed necessary or appropriate to
fulfill its obligations.
ARTICLE 3: COMPENSATION
A.
"The Investment
Manager" will be eligible to receive and will be paid investment funds
management fee and his compensation for accepting the funds into his account a
total sum of 15%
(Fifteen Per Centum Only) of the US$6,300,000.00 (Six Million Three Hundred
Thousand Dollars Only), constituting US$ 945,000.00 (Nine Hundred and Forty Five
Thousand Dollars Only) at the time the funds are effectively transferred to his
designated bank account from the financial institution in Abidjan, Cote D’ivoire where the
funds are held by "The Investor".
B.
"In addition to the above
"The Investment Manager" will be reimbursed for legitimate cost and expenses
that arise from the execution of this transaction including but not limited in time.
C.
"The Investor"
hereby declares that the funds were generated from or normal commercial/trading
activities and that they are of non- criminal origin.
D.
It shall be the duty and
responsibility of the "The Investor" to
procure all appropriate legal documentation required for a hitch free transfer
from Bank Of Africa- CI (Plateau Branch) to the duly designated overseas bank account
of "The Investment Manager".
ARTICLE 4: THE INVESTMENT MANAGER
A.
”The Investment Manager"
shall manage the funds in his personal own name or in the name of a corporate
body of which he will have absolute and full control and signatory powers over
the funds under management. It is clearly understood by the parties that the
action of "The Investment Manager" shall not be deemed to be
regulated by Securities Exchange Commission or authorities in any jurisdiction.
B.
”The Investment Manager" has
identified a strategically profitable investment venture and has committed
funds for a corresponding investment and for which the designated contracting parties,
being fully qualified and licensed for the purpose under the applicable laws
and regulations, will always conduct the actual transaction.
C.
In order to enable "The
Investment Manager" to select the most suitable investment ventures and to
commit funds to facilitate profitable investment transactions, "The Investment
Manager" shall have unrestricted control over the funds to different Bank accounts
at his discretion, provided however that the signatory control always remains
with "The Investment Manager" and the funds are not put at undue risk
at any time.
D.
"The Investment Manager"
shall perform the Services to the best of its ability and in a competent and
professional manner, in accordance with the investment objectives, policies and
restrictions as may be deemed relevant, conducive and appropriate under
compliance with international standards.
ARTICLE 5: CONTROL
AND SECURITY OF FUNDS UNDER MANAGEMENT
A.
A.” The Investment
Manager" shall always maintain 15% (Ten Per Centum) of the funds in a
nominated Bank Account with a major International Bank Account within the first
50 in World ranking. The funds earmarked for
investment transactions shall always remain fully secure and without any undue risk
of speculation and under signatory control of "The Investment Manager".
B.
Bank confirmation by any top 50 World Bank showing that “The
Investment Manager” is holding 10%
of the funds in the form of Certificate of Deposit or in a Reserve or Blocked
or Non-Depletion Account shall constitute proof that the funds are fully
secured and without any risk of undue speculation.
ARTICLE 6: INVESTMENT
VENTURES
E.
"The Investment
Manager" is fully empowered to identify investment ventures from time to
time and commit funds for investment transaction, wherein the funds under
management shall be fully secured and which will return commercially acceptable
rates of profits under compliance with international standards.
A.
The proposed investment
ventures are of a private and confidential nature and therefore the parties
actually conducting the transaction should endeavour to keep it confidential. The
investment transactions, the Bank(s), which will be holding funds for such investment
purposes and all other details of the investment transaction, shall remain confidential
and proprietary to "The Investment Manager"; such confidential
information shall be divulged only to "The Investor".
B.
The proposed investment
ventures are subject to conditions prevailing in the world financial markets
and are subject to control by various regulatory authorities. If for any reason
beyond the control of "The Investment Manager", the funds are not
accepted for a particular investment venture, then "The Investment Manager"
shall endeavor to arrange participation in alternative ventures. If such
situation arises, they will be brought to the attention of "The
Investor" at the appropriate time and place, and alternative methods of investment
will be mutually agreed upon.
C.
It is understood by the
parties that from the time the funds are received in the Bank Account
designated herein by "The Investment Manager". It may take
approximately 30 to 60 business days for the invested funds to participate in
the proposed investment venture profits from investment and disbursements.
D.
"The Investment
Manager" shall endeavor to secure 'On a best efforts basis' a gross profit
of five percent 5% (Five Per Centum) of the funds invested per annum. It is possible that funds
covered by the underlying Operating may participate in the investment venture
either in full or in part. Consequently only the amount that actually
participated in the investment ventures will qualify for the profit at the rate
motioned herein, profit shall accrue from the date of such participation. From
the profits earned above, "The Investment Manager" shall remit fifty
percent (50%) of the stipulated net annual
profit to "The Investor" and the remaining (30%) of the annual profit are payable to "The Investment
Manager" as his share of remuneration or the share of his nominee (s).
then 15%
would take care of all the expenses that he might incur during the transfer of
the funds abroad. The profit amount due to "The Investor" shall be
remitted to any of his nominated Bank Account on monthly basis in arrears.
ARTICLE 7: REPRESENTATIONS,
WARRANTIES AND COVENANTS OF
"THE
INVESTMENT MANAGER"
For the specific purposes of
this Operating Agreement, "The Investment Manager" represents, warrants to, and covenants
with, "The Investor" as follows:
A.
"The Investment Manager"
is a duly formed and validly existing limited liability company in good
standing under the laws of the State of …………………… with full power and authority
to conduct its business as contemplated in this Operating Agreement.
B.
This Agreement has been duly
authorized, executed and delivered by the "The Investment Manager"
and constitutes the valid and legally binding agreement of "The Investment
Manager" enforceable in accordance with its terms.
C.
The "The Investment Manager"
will conduct himself and its activities with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent manager would
use in the conduct of an enterprise of like character and with like aims.
D.
The Investment Manager"
is not in default (nor has any event occurred which with notice, lapse of time,
or both, would constitute a default) in the performance of any obligation,
indenture, mortgage, deed of trust, credit agreement, note or other evidence of
indebtedness or any lease or other agreement or understanding, or any license,
permit, franchise or certificate, to which it is a party or by which it is
bound or to which its properties are subject, nor is it in violation of any
statute, regulation, law, order, writ, injunction, judgment or decree to which
it is subject, which default or violation would materially adversely impair the
ability of "The Investment Manager" to carry out and execute its
obligations under this Agreement.
E.
There is no litigation,
investigation or other proceeding pending or, to the knowledge of "The Investment
Manager", threatened against "The Investment Manager" or its affiliates
or employees, which, if adversely determined, would materially impair the ability
of "The Investment Manager" to carry out its obligations under this
Agreement.
F. No consent, approval or authorization of, or
filing, registration or qualification with, any court or governmental authority
on the part of "The Investment Manager" is required for the execution
and delivery of this Agreement by "The Investment Manager".
ARTICLE 8: CONFIDENTIALITY
A.
"The Investor" and "The
Investment Manager" shall treat information provided by either party on a
strictly private and confidential basis. "The Investor" and "The
Investment Manager" shall take all necessary steps to prevent the confidential
information from the other from being misused or disclosed or made public to
any third party except as needed to successfully complete the contract or to
avoid conflicting claims (and except as may be required in accordance with the
applicable law).
B.
"The Investment Manager"
shall not use the confidential information provided by "The Investor"
in such a way as to Circumvent "The Investor" in the commercial
dealings with any and all transactions under contract or do anything to
circumvent "The Investor" in such a way as to put "The
Investment Manager" at a commercial disadvantage with the suppliers or
countries under this contract.
C. "The Investor" shall not use the
confidential information provided by "The Investment Manager" in such
way as to circumvent "The Investment Manager" in the commercial dealings
with the consignee if introduced by "The Investment Manager", or do
anything to circumvent "The Investment Manager" in such a way as to
put "The Investment Manager" at a commercial disadvantage with a
consignee if existing.
ARTICLE 9: NON
CIRCUMVENTION AGREEMENT
A.
The parties shall not in any
manner whatsoever solicit nor accept business from sources or their affiliates
that are made available by the other party to this agreement, at any time, without
the prior written permission of the party which made the source available. The parties
shall maintain complete confidentiality regarding each other’s business sources
or their identities and shall disclose such only to named parties pursuant to
express written permissions of the party that made the source available. The
parties shall not in any way whatsoever circumvent or attempt to circumvent
each other or any party involved in any of the transactions the parties are
desiring or entering into and to the best of their ability and assure each
other that the original transaction codes established will not be altered or changed.
B.
The parties recognize the
underlying Operating Agreement to be an exclusive and valuable contract of the
respective party and they shall not enter into direct negotiations with such
contracts revealed by the other party. Neither party shall avoid payment of due
fees, commissions and other remuneration in any way whatsoever. In the event of
circumvention by any party whether directly or indirectly, the circumvented
party shall be entitled to legal monetary penalty as damages, equal to the
maximum amount it should make from such transaction and any and all expenses
including but not limited to legal fees that would be involved in the recovery
of said damages.
C.
The circumventing party
renounces to any right that he may have to claim a reduction of this amount.
All considerations, benefits and commissions received as a result of the
contract of the parties relating to any of the transaction will be allocated as
mutually agreed to.
ARTICLE 10: THE AGREEMENT
This Agreement contains the entire agreement between
the parties and there are not any other promises or conditions in any other
agreement whether oral or written. This Agreement supersedes any prior written
or oral agreement between the parties.
ARTICLE 11: EXPENSES
All expenses, including but not limited to legal fees,
bank fees, swift transfer fees, government Taxes, government levies, and
statutory obligations including expenses incurred in this transaction shall be taken
care of and underwritten by both parties.
ARTICLE 12: DURATION OF AGREEMENT
This agreement shall remain valid for a period of Five
Years (5) from the date of its execution,
and can be subsequently renewed by mutual consent for another Five Years (5). This Operating Agreement shall
terminate on the date of its expiry or on the date when "The Investment Manager"
has returned the fund under the Management to "The Investor", except
however that the Agreement is renewed as specified herein-above.
ARTICLE I3: EXECUTION OF AGREEMENT
Each of the parties to this agreement represents that
it has full legal authority to execute this agreement and that each is to be bound
by the terms and conditions as set forth herein. Any modifications or changes
to this agreement shall be made only by mutual trust and consent and it has to
be in writing and duly executed by both parties, which documents shall be attached
to the original agreement as an addendum. This agreement shall be binding on both
parties and shall be for the benefit of the parties hereto, their heirs,
successors, administrators, companies, executors and assignees etc.
ARTICLE 14: CONTRACT TERMINATION
A.
Either party may terminate the
contract should the other side refuse performance of a substantive contractual
obligation, but excluding refusal caused by a Force Majeure event. Notification
of termination is to occur within 30 (thirty) calendar days following nonperformance
of contractual obligations. No termination is permitted should any of the sides
excuse their obligations within the stated 30 (thirty) days from the
notification date.
B.
Following any termination of
this Agreement, "The Investment Manager" shall cooperate reasonably
and in good faith with "The Investor” in transferring responsibility for
the affairs of "The Investor" to a replacement "Investment
Manager" and shall promptly deliver all assets of "The Investor",
including all books, records, copies of contracts, and other documents to such
replacement "Investment Manager" or as otherwise directed by the "The
Investor".
C.
Any payment obligations
arising but not satisfied prior to the termination of this Agreement, shall,
except as otherwise provided in this Agreement, survive the termination of the
Agreement.
ARTICLE 15: MISCELLANEOUS
15.1 Titles and Headings. The division of this Agreement into Articles
and the insertion of headings are for the convenience of reference only and
shall not affect the construction or interpretation of this Agreement.
15.2 Entire Agreement. This Operating Agreement, including other
documents referenced herein, constitute the entire agreement between the
parties with respect to the subject matter hereof and supersede any prior
understandings and agreements between the parties hereto with respect thereto.
There are no representations, warranties, forms, conditions, undertakings or
collateral agreements, express, implied or statutory between the parties other
than as expressly set forth in this Agreement or the other documents referenced
herein. "The Investment Manager" hereby waives any right to assert a
claim based on any pre-contractual representations, negligent or otherwise.
15.3 Amendment. The Parties shall, upon reasonable notice of
any such proposed modification by the Party desiring the change, confer in good
faith to determine the desirability of such modification. Such amendment or
modification shall be effective upon the date of the last signature of the
authorized representatives of each of the Parties hereto.
15.4 Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors. Except as may be expressly
provided in this Agreement, neither party hereto may assign its rights or
delegate its obligations under this Agreement without the prior written consent
of the other party hereto. This Agreement and the rights and obligations
hereunder shall not be assignable or delegable and any attempted assignment or
delegation thereof shall be void and made of no effect.
15.5 Savings
Provision.
The illegality or invalidity of any provisions of this Agreement shall not impair,
affect or invalidate the other provisions of this Agreement.
15.6 Severability. Should any part of this Agreement be deemed void,
voidable or unenforceable for any reason, such part shall be severed from this
Agreement and the remaining portion of this Agreement shall remain valid
according to the declared intent of the Partners hereto.
15.7 Enforceability. The
invalidity or unenforceability of any provision hereof, or of the application
of any provision hereof to any circumstances, shall in no way affect the
validity or enforceability of any other provision, or the application of such
provision to any other circumstances.
15.8 Counterparts and Language. This
Agreement is written and executed in two (2) identical original copies in the English language, of which each contracting Party shall
retain one (1) copy and both counterparts so executed constitute one agreement that is binding
on both of the Parties hereto.
15.9 Indemnification. "The Investor", to the fullest
extent permitted by law, shall indemnify and hold harmless each person indemnified
by "The Investment Manager" from and against any loss, liability,
expense, judgment, settlement cost, fees and related expenses (including
reasonable attorneys’ fees and expenses), costs or damages arising out of or in
connection with any act taken or omitted to be taken in respect of the affairs
of the Funds or any Investee, unless such act or omission constitutes fraud,
gross negligence, willful misconduct or breach of fiduciary duty on the part of
"The Investment Manager", indemnified person, or a material breach by
a Fund Manager Indemnified Person of its obligations under this Agreement.
15.10 Notices. Any demand, notice or other communication
(hereinafter referred to as a “Communication”) relating
to or arising out of this agreement and to be made or given in
connection with this Agreement shall be made or given in writing in English and
may be made or given by personal delivery, by fax or by internationally
recognized overnight delivery or Express courier service. A facsimile communication (Faxed documents) shall be
considered original and binding.
ARTICLE 16: LAW AND ARBITRATION
This Operating Agreement is subject to
International Law, ICC rules are to be observed. "The Investor" and "The
Investment Manager" will endeavour to settle all ensuing disputes
amicably. Either party may serve notice on the other requiring any dispute to
be settled within 30 (thirty) days after such notice and, if not settled to
refer it to arbitration in accordance with this contract .The arbitration will
be heard by one or more arbitrators appointed by mutual agreement of the
parties and in accordance with the Rules and the Arbitration Act 1996.
IN WITNESS WHEREOF, The parties have caused this Agreement to be executed
by their representatives thereunto duly authorized, as of the effective date of the month of
September………. In the Year 2014.
Transaction Code : LGRCI/SMCDE/SIFMA/---0311A:
In the presence of (-Name
& Address of Attorney-at-Law/Notary Public -)
with Law Chambers located at
……………………………..
Republic of ……………………………
SIGNATURES AND SEALS
ACCEPTED AND AGREED WITHOUT CHANGE
----------------------------------- -----------------------------------
MOMKA SAMURA CV.LILY AMELIA PUTRI
"THE
INVESTOR" "THE INVESTMENT MANAGER"