Exhibit 10.1
DATE: October 3, 2005
INTRODUCTION
The transaction described in this Exempt Structured Private Placement Agreement
provides for the purchase of a Bank Guarantee (and hereinafter called the
"Transaction"). HQ Sustainable Maritime Industries Inc. (hereinafter referred to
as "Principal") has negotiated its agreement with its Receiving Bank and/or
Lender for receiving and facilitating the use of a Bank Guarantee in the form as
attached and this negotiation has been solely negotiated between Principal and
certain third parties unknown by and not associated with Amalgamated Resources
Holdings Inc. or its Agents. Principal has represented to Amalgamated Resources
Holdings Inc. that Principal has completed its necessary negotiations for
issuance with certain third parties and for the certain third parties use of the
Bank Guarantee and is now prepared for Amalgamated Resources Holdings Inc. to
proceed and cause the issuing process of a Bank Guarantee in substantial form
(as described and hereinafter referred to as Exhibit "A").
Amalgamated Resources Holdings, Inc. has represented to Principal that
Amalgamated Resources Holdings Inc. has completed its negotiations with its
contacts and is prepared to cause the issuance of Exhibit "A". Principal is
contemplating a transaction with certain third parties such as the Receiving
Bank and/or Lender (hereinafter referred to as the "LENDER" and listed as per
Exhibit B) whereby a facilitation of use of the Bank Guarantee may or may not be
available to Principal prior to the issuing of the Bank Guarantee. Principal
will hereby guarantee, as necessary, the safety and surety of the Bank Guarantee
provided by a Standard & Poor's A+ rated bank such as Deutsche Bank AG
(hereinafter referred to as "Issuing Bank"). Principal further represents and
warrants that it has a pre-existing business relationship with the Receiving
Bank and/or Lender and that pre-existing business relationship will satisfy all
the requirements needed for the use of the Bank Guarantee. Therefore, Principal
further represents, warrants and confirms that Principal is a sophisticated
investor and is aware of the risks associated with such a Transaction and that
Amalgamated Resources Holdings, Inc. or its Agents have made no representations
or warranties, implied or explicit, as to the financial soundness of the
Transaction and that Principal is independently pursuing outside the scope of
this Agreement and the representations and warranties embodied herein. Moreover,
Principal further represents and warrants that the relationship between
Principal and Principal's Receiving Bank and/or Lender is not dependent,
directly or indirectly, upon Amalgamated Resources Holdings, Inc. or its Agents
except as is specifically delineated herein. Amalgamated Resources Holdings,
Inc. does not have any knowledge of Principal's use or intended use of the Bank
Guarantee and Principal hereby agrees to indemnify and holds harmless
Amalgamated Resources Holdings, Inc. in any event, whether Principal's Receiving
Bank and/or Lender accepts, rejects, or withdraws from Principal's intended use
of the Bank Guarantee. Amalgamated Resources Holdings, Inc. only responsibility
in this agreement is to cause the issuance of the Bank Guarantee and Principal
is pursuing the use and funding of the Bank Guarantee solely outside the scope
of this agreement and therefore Amalgamated Resources Holdings, Inc. can not and
will not accept any responsibility for any part of the success or failure of
Principal's Receiving Bank's and/or Lender's relationship with Principal. The
following exhibits detailed hereinafter are an integral part of this agreement,
which include the attached following letters: Bank Guarantee (Exhibit "A"),
Principal's Receiving and/or Lender Bank (Exhibit "B"), Text of Irrevocable Bank
Pay Order and Bank Coordinates of the Bank, receiving the Pay Order (Exhibit C)
and the Bank Guarantee Security Agreement/Assets and Stock Assignment Letter
(Exhibit "D").
HQ Sustainable Maritime Industries Inc.
/s/ Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Signed By: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President/CEO
Date: October 17, 2005
Witness
THIS IS A DISCREET STRUCTURED EXEMPT REVERSE INQUIRY PRIVATE PLACEMENT AGREEMENT
REFERENCE NUMBER:
BETWEEN
AMALGAMATED RESOURCES HOLDINGS INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., #▇▇▇
▇▇▇▇▇▇▇ - ▇▇▇▇▇
Represented by its President/ CEO, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
HEREINAFTER KNOWN AS "AR"
AND
HQ Sustainable Maritime Industries, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Represented by its President/ CEO, Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
HEREINAFTER KNOWN AS "PRINCIPAL"
1.
AR agrees to act as Agent for Principal.
2.
As agent, AR agrees to cause to be issued, a Bank Guarantee in a total amount of
USD70,000,000.00 (Seventy Million United States Dollars) to be issued by
S.W.I.F.T. as per Exhibit "A" from a Standard & Poor's A+ rated bank such as
Deutsche Bank AG (hereinafter referred to as the "Issuing Bank"), to Principal's
Receiving Bank described hereinafter in Exhibit "B".
3.
Principal has had ample time and has consulted with Principal's Advisors and
competent Legal Counsel as needed by Principal and Principal ▇▇▇▇▇▇ agrees and
acknowledges that Principal is an INFORMED ACCREDITED INVESTOR and has retained
AR with respect to this Exempt Reverse Inquiry Structured Private Placement
Agreement for issuance of Exhibit "A". The sole responsibility of AR is to cause
Exhibit "A" to be issued by the Issuing Bank, Exhibit A contained herein forms
an integral part of this agreement. Principal agrees and acknowledges that AR
has not solicited its money or business and that Principal is prepared and ready
for the risk involved in this Transaction.
4.
Principal warrants and represents that the funds that are to be paid to AR
belong to Principal and were under Principal's direct and exclusive control. AR
hereby acknowledges that the amount due to be paid to AR or its designated agent
in the total amount of USD 7,000,000.00 (Seven Million United States Dollars),
guarantees Principal necessary performance involving and concerning the fee due
to AR.
Principal agrees that Receiving and/or Lending Bank will issue the attached
Irrevocable Pay Order and the Receiving and/or Lending Bank will automatically
without deductions, protest, delays or other reasons, pay the fee due and earned
to AR. This is a payment without recourses of any nature - once paid, the Bank
Guarantee will be deemed received and authenticated and the fee irrevocably
earned.
5. AUTHENTICATION AND VERIFICATION RESTRICTIONS AND PENALTIES
Conditions of release:
1) Issuing bank issues the Bank Guarantee by authenticated SWIFT to the
Receiving and/or Lending Bank addressed to a specific bank officer.
2) Said Receiving and/or Lending Bank {can solely be the bank that issues
the Irrevocable Bank Pay Order} will immediately after receipt of an
authenticated SWIFT of the Bank Guarantee release the funds stated in
the Pay Order to the bank to which the Irrevocable Bank Pay Order was
issued (Exhibit C).
Other than the Principal's Receiving Bank who will be authenticating the Bank
Guarantee, there will be no contact between any party's bank except on a
Bank-to-Bank basis only. The Receiving Bank's bank officer listed on the Bank
Guarantee is authorized to authenticate and validate the Bank Guarantee by
telephone, fax or SWIFT with the signing officer(s) at the issuing Bank. Any and
all necessary authorized verification and authentication of the Bank Guarantee
to be provided herein is stipulated within this legal binding agreement,
typically facilitated in the form of a bank officer-to-bank officer on a
bank-to-bank basis. There shall be no need for any unauthorized contact(s) in
any form or by unauthorized parties in any form.
To ensure that there will be no unauthorized contact in any form or manner, it
is hereby understood and agreed to, that upon any unauthorized parties
requesting authentication, verification, and/or inquiry that any attempt might
be made by any unauthorized parties to circumvent, gain or convey any
information to or from authorized parties letter, receiving parties will be
given a written notice that there has been unauthorized contact and a final
revocation of the Bank Guarantee provided via a permanent cancellation notice to
be generated and sent via the same bank as the original were sent. Any such
letter cancellation and/or revocation actions will not effect the release of any
earned funds paid from Principal's Receiving and/or Lending Bank and/or released
by Principal to AR and will further not be the cause of refund or partial
refunds paid by Principal.
Should any party or any third party make any unauthorized communication as
described above, then the defaulting party will automatically without
protest, delay, or deduction pay the amount of USD500,000.00 (Five Hundred
Thousand United States Dollars) to the NON-DEFAULTING party as damages.
AR has informed Principal and Principal realizes that there are certain risks
with regard to Principal's funds in these types of Transactions and AR has not
guaranteed the successful use of Exhibit "A". Principal agrees to accept all
risks and liabilities that may result from the use of the banking in the event
that the Principal's Receiving Bank fails to accept and or use Exhibit "A" and
if Said Exhibit A is not accepted or is rejected by the Principal's Receiving
Bank, or are not answered as described herein, by the receiving bank of the
Principal for any reason, and the funds paid to AR in the amount of
USD7,000,000.00 (Seven Million United States Dollars) will be deemed earned and
the Principal waives all claims and rights to said funds. Principal agrees to
provide to AR immediately, a copy of any bank communication that Principal's
Receiving Bank receives and/or issues to Issuing Bank within the validity time
period of Exhibit "A".
6.
This agreement supersedes all prior written and oral communications and this
agreement provides the complete understanding between the Parties. Any addition
to this agreement must be made in writing by original hard copy and must be
agreed to by all Parties.
7.
Should any part or clause of this agreement be or become invalid or unlawful,
the remaining parts or clauses of this agreement shall remain in effect.
8.
The English Language shall be used for all correspondence pertaining to this and
the services provided by AR to the "PRINCIPAL."
9.
AR assumes no liability or responsibility for the success of Principal's Project
and upon receipt of Exhibits "A" and the total obligation of AR to the Principal
will have been fulfilled. AR assumes no liability or responsibility for the
consequences arising out of the interruption of business due to and by acts of
God, riots, civil insurrections, wars, conflicts, strikes, lockout, stock market
instability, bank collapse, acts of State or any other cause beyond its control,
which might have impact on the ability of AR to fulfill its obligations under
this agreement. However, AR shall not be entitled to earn the fee if any of
these acts prevents it from fulfilling its obligation to Principal.
10.
The parties further agree that the sole and exclusive remedy for resolving any
controversy, claim, or cause of action arising out of, or relating to this
agreement, or the breach thereof, shall be in the Supreme Courts of Nassau,
Bahamas or the District Courts of Florida. The parties further agree that each
will bear his own legal costs and expenses, including attorney's fees. Judgment
upon any award of the arbitrator(s) will be final, binding, and conclusive, and
that judgment may be entered upon such awards in any court having jurisdiction
thereof.
11.
The signing or signatories confirm that by signing this agreement, they are the
authorized signatories for the respective companies, that this agreement is
balanced, fair and an equitable agreement, that the parties have an equal
knowledge of the contemplated business and that they agree to abide by the terms
and conditions detailed herein.
The agreements, understanding, banking, commitments concerning or related to the
success of Principal's Project is the sole responsibility of Principal and have
solely been negotiated between Principal and Principal's Receiving Bank and
Principal' Lender. Principal holds AR completely harmless and without any
responsibility or liability for anything relating to agreements, understandings,
commitments between Principal and its Principal's Receiving Bank and/or Lender.
Principal agrees and accepts that, once AR provides proof of the issuance from
its contacts of the required Exhibit A then AR will have completed entirely its
responsibility of performance and AR will have earned the fee of USD
7,000,000.00 (Seven Million United States Dollars) without protest. Principal
also agrees and accepts that the pecuniary liability to AR is limited to the
amount of the fee paid by the Principal to AR.
12.
This Agreement and any related instrument shall not be construed more strictly
against one party than against the other by virtue of the facts that initial
drafts may have been prepared by counsel and/or associates for one of the
parties, it being recognized and agreed that this agreement and any related
instruments are the product of extensive negotiations between the parties hereto
and that all parties hereto have contributed substantially and materially to the
final preparation of this Agreement and all related instruments.
13.
The parties hereby agree and acknowledge that the introductory pages and the
initial recital provisions of this Agreement and Exhibits affixed hereto form an
integral part of the intentions and understandings of the parties as to the
Transaction contemplated herein and are hereby incorporated herein and shall be
considered for all purposes in construing and interpreting this Agreement.
14.
THIS PRIVATE PLACEMENT AGREEMENT IS FOR EXEMPT BANK BANK GUARANTEE WHICH IS
EXEMPT FROM SEC REGISTRATION AND DOES NOT CALL FOR, OR REQUEST DELIVERY OR ANY
ACTION INVOLVING ANY TYPES OF SECURITIES THAT ARE REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION.
15.
In signing this present Agreement, Principal hereby warrants and represents that
the obligations of AR and or its assignees will start at the receipt,
verification and validation of the Irrevocable Bank Pay Order. If within five
international banking days from date of signature of this present Agreement, the
Irrevocable Bank Pay Order has not been sent to the bank coordinates contained
in Exhibit C1 herein, the legal validity and effects of this present Agreement
will be terminated. At such time, this present Agreement will be considered as
null and void.
16.
Exhibits "A", "B," "C" and "D" which are detailed hereinafter, form an integral
part of this agreement.
Amalgamated Resources Holdings Inc. HQ Sustainable Maritime Industries Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., #▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇-▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
/s/ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ /s/ Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ By: Mr. Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President/CEO President/CEO
Date: October 3, 2005 Date: October 17, 2005
Witness
/s/ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President/CEO
Alps Bankers Canada
Date: October 17, 2005
Exhibit A
RECEIVING BANK NAME
SWIFT ADDRESS
(▇▇▇▇▇▇▇▇▇▇▇'S NAME): HSBS Bank Canada
(ADDRESS) (CITY, PROVINCE, POSTAL CODE)
ISSUE DATE
EXPIRATION DATE (FIVE YEARS FROM DATE OF ISSUE)
EXHIBIT "B"
PRINCIPAL'S RECEIVING AND/OR LENDING BANK COORDINATES:
BANK'S NAME :
BANK'S ADDRESS:
ACCOUNT NAME:
ACCOUNT NUMBER:
BENEFICIARY:
TELEPHONE NUMBER:
FACSIMILE NUMBER:
BANK OFFICER NAME:
REFERENCE NUMBER: ___PO____
EXHIBIT "C"
IRREVOCABLE BANK PAY ORDER TO BE SENT BY SWIFT FROM
RECEIVING AND/OR LENDING BANK TO BANK
RECEIVING THE PAY ORDER
Sent directly bank to bank with a faxed copy to us at:▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
To: Bank Name
Bank Address
Swift Address
Attention: Bank Officer
Phone Number:
Account Name:
Account Number:
Dear ▇▇▇,
Please accept this letter as our affirmation, that our client,
___________________ has established a dedicated cash account at our facility,
under Account number ___________. This account has been established to reserve
payment for this Pay Order.
The Payment Obligation is to be delivered substantially as per the attached
draft Payment Obligation attached hereto as Exhibit "A". The Payment Obligation
will be issued and sent by SWIFT to ourselves at the following address SWIFT
Number: _____________, attention bank officer_________________, (bank phone
number and fax number.)
We, ___________ Bank located at __________, __________ hereby irrevocably and
with full bank responsibility confirm that we will pay the amount of USD
$00,000.00 ( United States Dollars) under the following condition as per as per
your instructions, immediately upon receipt of an authenticated SWIFT by A A
Standard & Poor's A+ rated bank such as Deutsche Bank AG such as Deutsche Bank
AG.
This present irrevocable Payment Order will automatically expire in fifteen (15)
international banking days from the date of its issue. Any extension thereof
will be made in writing and confirmed by this office.
Our payment will be effected immediately to you at your direction upon
completion of the above listed condition and we will pay you without protest,
delay and any deduction. You may contact me at my direct line ____________.
Respectfully,
Unquote
EXHIBIT "C1"
BANK RECEIVING IRREVOCABLE BANK PAY ORDER COORDINATES
BANK'S NAME :
BANK'S ADDRESS:
ACCOUNT NAME:
ACCOUNT NUMBER:
BENEFICIARY:
TELEPHONE NUMBER:
FACSIMILE NUMBER:
REFERENCE NUMBER: ___PO____
EXHIBIT "D"
BANK GUARANTEE SECURITY AGREEMENT/ ASSETS AND STOCK ASSIGNMENT LETTER
UNDERTAKING ONE
We, HQ Sustainable Maritime Industries Inc., represented by our CEO, Mr. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, hereby irrevocably confirm that at maturity date we will surrender the
Bank Guarantee free and clear of any liens and encumbrances to
_______________(Issuing Bank).
In exchange of the free and clear Bank Guarantee, the Custodian , ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, Notary, or _______________(Issuing Bank), will give us back our assets
in the form of shares free and clear.
HQ Sustainable Maritime Industries Inc.
/s/ Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Signed By: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President/CEO
Date: September __2005
Witness
ADDENDUM ONE
In signing this present Addendum Two to Agreement numbered __PO_____BL, AR and
Principal hereby irrevocably and unconditionally confirm that:
1) The price of the Bank Guarantee as detailed hereinabove is modified from 10
to 15 percent.
2) A second Bank Confirmation of Availability of Funds will be simultaneously
issued as per instructions contained in Exhibit C1 and C1-A for the Five percent
(5%) additional fee. It is understood that if said Bank Confirmation of
Availability of Funds is not issued, the deal will be cancelled and liquidated
damages due by Principal to AR.
Under no circumstances whatsoever can this present Addendum One be dissociated
by Principal from Agreement numbered __PO___________BL.
All terms and conditions contained in agreement numbered __PO________BL are
under no circumstances cancelled by terms and conditions of this present
Addendum Two.
Amalgamated Resources Holdings Inc. HQ Sustainable Maritime Industries Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., #▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇-▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
/s/ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ /s/ Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ By: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President/CEO President/CEO
Date: October 3, 2005 Date: October 17, 2005
Witness
/s/ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President/CEO
Alps Bankers Canada
Date: Octoebr 17, 2005
UNDERTAKING TWO
We, HQ Sustainable Maritime Industries Inc., represented by our CEO, Mr. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, hereby irrevocably engage to pay to AR at the end of the twelfth month
from the date of issue of the bank instrument the amount of USD2,100,000.00 (Two
Million One Hundred Thousand United States Dollars) representing 3% of
USD70,000,000.00 (Seventy Million United States Dollars). Every year thereafter,
we engage to pay every quarter the net amount of USD525,000.00 (Five Hundred
Twenty Five Thousand United States Dollars) until the date of surrender of the
free and clear instrument. (These amounts will be adjusted and calculated in
proportion with the disbursement of the guarantee)
HQ Sustainable Maritime Industries Inc.
/s/ Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Signed By: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President/CEO
Date: October 17,2005
Witness
