Address: 80 Raffles Place
#33-00 UOB Plaza 1
Attn: Mr. Low Chai Chong / Mr. Alvin Liong
Telephone: +65 6885 7951
Facsimile: +65 6557 2522
Address: Units 901-905, 9/F
China Insurance Group Building
141 Des Voeux Road
Central Hong Kong
Address: P.O. Box 957
Offshore Incorporations Centre,
Road Town, Tortola,
British Virgin Islands
Address: 65 Chulia Street
Attn: Mr. Ang Wee Tiong / Ms. Katie Lee
Telephone: +65 6220 6880
Facsimile: +65 6220 7880
k atielee@legallex. com
24. GOVERNING LAW
24.1 This Agreement shall be governed by, and construed in accordance with, the laws of Singapore
24.2 Resolution of any controversy, dispute or claim between the Parties regarding or in connection with the interpretation, performance, breach, termination or validity of this Agreement (hereinafter referred to as the "Dispute") shall initially be resolved through friendly consultation in good faith with a view to achieving a resolution between the Parties. If such friendly consultation fails to resolve the Dispute within thirty (30) days from the commencement of such consultation, any Party may submit the Dispute for arbitration in accordance with Clause 24.3 below.
24.3 Subject to Clause 24.2, any Dispute arising out of or connected with this Agreement, including a Dispute as to the validity or existence of this Agreement and/or this Clause 24.3, shall be resolved by arbitration in accordance with the UNICTRAL Arbitration Rules then in force. The arbitration shall be conducted in Singapore under the auspices of the Singapore International Arbitration Centre ("SIAC") by a single arbitrator agreed by the Parties or failing agreement, appointed by the SIAC, and the proceedings shall be conducted in English.
24.4 The decision of such arbitrator shall be final and binding upon the Parties and judgment thereon may be entered in any court having jurisdiction thereon or application may be made to such court for judicial acceptance of the award and/or order of enforcement, as the case may be.
Name: Dr. Dang Xuan Hop
Address: c/o Allens
Suite 401, Hanoi Towers
49 Hai Ba Trung Street
a. On 17 April 2014, the Claimant filed her Statement of Case;
b. On 16 February 2015, the Respondents filed their Statement of Defence; and
c. On 15 September 2015, the Claimant submitted her Statement of Reply.
Mining Concession is located at District Bongo, Sarmi and Jayapura Regency, Papua, a special autonomous region within Indonesia...
Concession area is about 50,000 Ha (20km x, 25km)...
The Concession is under IUP Exploration status, and it will take approximately six months to convert it into IUP Operation Production...
Forestry is currently under HPK (Hutan Produksi Konversi) which has no restriction to produce. It is known that the area is located on Conversion Forest area, which allows us to do not only mining but also generating wood, by obtaining special licence to produce and make utilize of existing trees.
The Concession has been verified by the Central Minister of Energy and Mineral Resources and it is confirmed that the mining concession is under clean and clear status.
CAPEX of US$ 7S millions is required for 1) refurbish the existing hauling road and open a new unconnected road to the state road, 2) for production infrastructure, develop a mining camp, 3) equipment for 150,000MT/month production capacity and 4) refurbish the existing unused jetty for loading.
Estimated value of the mining concession should be at least US$ 700M.
8.1 The payment of the Remainder Sum after Completion shall be subject to each of the following conditions being satisfied:
(a) [Ms. Franslay] (acting reasonably) being satisfied within the Due Diligence Period, [i.e. 45 days from 12 October 2012] of the results of the due-diligence to be conducted by [Ms. Franslay]. Unless written notice is provided by [Ms. Franslay] stating otherwise, this condition will be deemed as automatically satisfied at the end of the Due Diligence Period. [Ms. Franslay shall comply with the terms of Clause 10.1 of this Agreement during the Due Diligence Period; and
(b) there being no breach of any representation, warranty, undertaking or guarantee in this Agreement.
(collectively, the "Conditions").
8.2 In the event that any of the Conditions is not fulfilled within the Due Diligence Period;
(a) [Ms. Anita Hung] shall repay [Ms. Franslay] the Advance, together with interest on the Advance at the rate of 6% per cent. [sic] per annum (calculated on the basis of a year of 365 days and actual number of days lapsed) from the date of disbursement; and
(b) the obligation of [Ms. Franslay] to pay the Remainder Sum shall ipso facto cease and determine and [sic] the Parties shall not have any claims against [Ms. Franslay] for costs, damages, compensation or otherwise save for any liability arising from an antecedent breach of the terms hereof.
8.3 In the event that there is, at any time, a breach of the conditions of Completion, Undertaking, the Guarantee or any representation, warranty or undertaking in this Agreement, notwithstanding Completion, [Ms. Franslay] shall be entitled to demand, and [Ms. Anita Hung] shall repay [Ms. Franslay] upon such demand, the Advance, together with interest on the Advance at the rate of 6% per cent. [sic] per annum (calculated on the basis of a year of 365 days and actual number of days lapsed) from the date of disbursement.
8.4 [Ms. Anita Hung] shall repay any amounts owing under this Agreement to [Ms. Franslay] within thirty (30) days of [Ms. Franslay]’s written demand, to such bank account as [Ms. Franslay] may designate to [Ms. Anita Hung]. If [Ms. Anita Hung] fails to pay any amount on its due date, the default interest shall accrue on the unpaid sum from due date up to the date of actual payment at a rate which is the sum of one (1) per cent above the applicable interest rate set out at Clause 8.2(a) and Clause 8.3.
(a) PT Arton holds the sole legal, valid and proper title to the IUP Exploration Licence at District Bongo, Regency Sarmi and Jayapura in the province of Papua, Indonesia;
(c) PT Arton shall be legally, validly and properly converted into a PMA (the "PMA Conversion"), within 120 days from the date of this Agreement,
In consideration of the Advance from [Ms. Franslay] to [Ms. Anita Hung] on the terms and conditions of this Agreement, and in consideration of the payment by [Ms. Franslay] to [Ms. Anita Hung] of the Remainder Sum on the terms and conditions of this Agreement, the Guarantors hereby irrevocably and unconditionally:
(a) guarantees to [Ms. Franslay] the repayment by [Ms. Anita Hung] to [Ms. Franslay] of the Advance, on the terms and conditions set out in this Agreement;
(b) guarantees to [Ms. Franslay] the repayment by [Ms. Anita Hung] to [Ms. Franslay] of the Remainder Sum, on the terms and conditions set out in this Agreement;
(c) guarantees the due compliance and performance by [Mr. Stephen Sy] and [Ms. Anita Hung] of the Undertaking, on the terms and conditions set out in this Agreement;
(d) guarantees the due compliance and performance by the relevant Parties in respect of Completion, on the terms and conditions set out in this Agreement;
(e) undertakes to indemnify [Ms. Franslay] immediately on demand against any cost (including legal costs on a full indemnity basis), loss or liability suffered or incurred by [Ms. Franslay] arising from or in connection with a breach by any Party (other than [Ms. Franslay]) of any terms and conditions of this Agreement, including any cost [Ms. Franslay] may incur in enforcing, or attempting to enforce, her rights under the Guarantee; and
(f) undertakes to indemnify [Ms. Franslay] immediately on demand against any cost (including legal costs and other expenses on a full indemnity basis), loss or liability suffered or incurred by [Ms. Franslay] (save where such loss or liability suffered or incurred by [Ms. Franslay] shall be caused by [Ms. Franslay]'s own fraud or willful misconduct) if any obligation guaranteed by the Guarantors is or becomes unenforceable, invalid or illegal. The amount of the cost (including legal costs and other expenses on a full indemnity basis), loss or liability to be indemnified by the Guarantors to [Ms. Franslay] hereunder shall be equal to the amount which [Ms. Franslay] would otherwise have been entitled to recover.
Our client has not been able to reasonably satisfy herself as to the results of her due diligence conducted thus far.
(a) the sum of US$4,000,000 to be paid by Mr. Stephen Sy, Ms. Anita Hung, Ms. Sandy Sy and Bel Trade;
(b) Interest on the sum of US$4,000,000 to be paid by Mr. Stephen Sy, Ms. Anita Hung, Ms. Sandy Sy and Bel Trade to the Claimant, broken down as follows:
(i) 6% per annum on the sum of US$4,000,000 from 12 October 2012 to 15 June 2013; and
(ii) 7% per annum on the sum of US$4,000,000 from 15 June 2013 up to the date of payment;
(c) Alternatively, damages to be assessed to be paid by Mr. Stephen Sy, Ms. Anita Hung, Ms. Sandy Sy and Bel Trade to the Claimant; and
(d) Costs on a full indemnity basis to be paid by Mr. Stephen Sy, Ms. Anita Hung, Ms. Sandy Sy and Bel Trade to the Claimant.
This Agreement, and the documents referred to in it, constitutes the entire agreement and understanding between the Parties relating to the subject matter of this Agreement and no Party has entered into this Agreement in reliance upon any representation, warranty or undertaking of the other Parties which is not set out or referred to in this Agreement. Nothing in this Clause shall however operate to limit or exclude liability for fraud.
6.4. Waiver of defences
The obligations of the Guarantors under the Guarantee will not be affected by an act, omission, matter or thing which, but for the Guarantee, would reduce, release or prejudice any of the Guarantors' obligations under the Guarantee (without limitation and whether or not known to any Guarantor or [Ms Franslay]) including:
(a) any time, waiver or consent granted to, or composition with, [Ms. Anita Hung];
(b) any bankruptcy or similar proceedings;
(c) [Ms Franslay] agreeing to [Ms. Anita Hung] making an assignment for the benefit of her creditors or any arrangement with creditors under the bankruptcy laws; or
(d) any arrangement made between [Ms Franslay] and [Ms. Anita Hung] with or without the consent of the Guarantors.
13.1 The provisions of this Agreement including the representations, warranties, covenants and undertakings herein contained (insofar as the same shall not have been fully performed at Completion) shall remain in full force and effect notwithstanding Completion and shall not in any respect be extinguished or affected by Completion, or by any other event or matter whatsoever, except by a specific and duly authorized written waiver or release by the Parties. Completion shall not prejudice any rights of any Party which may have accrued hereunder prior to Completion.
13.2 Save as expressly provided herein, any right of termination conferred upon the Parties shall be in addition to and without prejudice to all other rights and remedies available to it/him and no exercise or failure or exercise such a right of termination shall constitute a waiver of any such other right or remedy.
13.3 Each Party confirms it/he has received independent legal advice relating to all matters provided for in this Agreement and agrees that the provisions of this Agreement (including all documents entered into pursuant to this Agreement) are fair and reasonable.
20. REMEDIES AND WAIVERS
No failure on the part of any Party to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof, and any single or partial exercise of any right or remedy shall not preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by la w.
In view of these reasons set out above, our client has not been able to reasonably satisfy herself as to the results of her due diligence conducted thus far.
We have taken our client’s instructions on this and would like to state that in order for us to satisfy ourselves in the course of our due diligence process, we would still require the clean and clear status of the IUP, regardless of whether MEMR requires the C&C status.
We understand that the BKPM approval is expected sometime in February 2013. In view thereof, we would like to request for an extension of the Due Diligence Period up to the end of February 2013.
Please revert to confirm as soon as possible. Thank you.
In lieu of Articles 41 and 43 of the UNCITRAL Rules, the financial management of the arbitration administered by the SIAC includes'-
a. fixing of Tribunal’s fees and other terms of appointment;
b. regular rendering of accounts;
c. collecting deposits towards the costs of the arbitration; and
d. processing the Tribunal’s fees and expenses.
|Tribunal's Fees & Expenses||SGD|
|Dr Dang Xuan Hop|
|Dr Dang's Arbitrator's Fees||107,230.54|
|Dr Dang's Expenses||8,318.55|
|TOTAL ARBITRATORS' FEES & EXPENSES||127,104.00|
|SIAC Administration Fees & Expenses|
|GST on Administration Fee (7%) - Claimant's share only||868.46|
|SIAC Expenses + GST 7%||663.40|
|TOTAL SIAC ADMINISTRATION FEES & EXPENSES||26,345.26|
|TOTAL COSTS OF ARBITRATION||153,449.26|
(i) US$ 4,000,000.00 (four million United States Dollars);
(ii) Interest on the sum of US$ 4,000,000.00 at 6% per annum from 12 October 2012 to 15 June 2013;
(iii) Interest on the sum of US$ 4,000,000.00 at 7% per annum from 15 June 2013 to the date of payment;
(iv) Mr. Sy Chin Mong Stephen, Ms. Hung May Yee Anita, Ms. Sy Wai Shan Sandy and Bel Trade shall bear the full amount of the Tribunal’s fees and expenses and the SIAC’s administrative fees and expenses in the amount of S$ 153,449.26. The Claimant shall be entitled to be reimbursed by Mr. Sy Chin Mong Stephen, Ms. Hung May Yee Anita, Ms. Sy Wai Shan Sandy and Bel Trade such amount that the Claimant has paid (from deposits held by SIAC) as the Tribunal’s fees and expenses and the SIAC’s administrative fees and expenses, less any amount that the Claimant may receive by way of refund from SIAC; and
(v) The Claimant’s legal costs on a full indemnity basis, except for in connection with the Challenge, with quantum to be taxed pursuant to Section 21 of the Singapore International Arbitration Act (Cap. 143A);
(vi) S$ 20,000.00 in costs in connection with the Challenge.