Dated: November 22, 2006
Chief Operating Officer
Dhaka Main Office
1/1-B Sonargaon Road
RE: LEGAL OPINION ON PROPOSED TRIPARTITE AGREEMENT BETWEEN COMPANY 1 AND BANK 1.
We refer to your letter dated 02 November 2006 on the above subject.
We have perused the contents of your letter and the proposed tripartite agreement to be executed between Airway 1 (“EA”), Mr. X and Co (“COMPANY 1”) and Bank 1 (“BANK 1”).
Please note that in our opinion the Agreement is not a standard tripartite agreement. The Agreement does not have any preamble, any clauses relating to undertakings/ covenants/representations/warranties of the respective parties, clauses relating to the termination of the agreement or clauses relating to resolution of disputes.
Our opinion is restricted to the terms and conditions set forth in the draft provided:
|General||Please insert the correct date of the agreement at the beginning of the agreement.|
|Particulars of “the Service Provider”||Please check whether Mr. X & Co is a Company or a Partnership firm. If it is a partnership it could not be stated that it is registered under the Companies Act. If it is a Company then the name of the company should include “Limited” at the end moreover, a company does not have partners so it could not be stated that it is represented by its Partner Mr. ABC (this too does not appear to be his real name). Please check the matter and make corrections accordingly.|
|Particulars of “the Contractor”||Please delete and replace the particulars of “the Contractor” with the following paragraph:
“Bank 1., a banking company incorporated with limited liability in Hong Kong and duly carrying on banking business in Bangladesh under the relevant laws having its Dhaka Main Office at Anchor Tower, 5th floor, 1/1(B) Sonargaon Road, Dhaka-1205, Bangladesh represented by its Chief Executive Officer Mr. Steve Banner, hereinafter referred to as the Contractor (which expression, where the context shall so requires or admits, shall mean and include its successors, executors, administrators, representatives and assigns) of the Second Part.”
|Particulars of “the Client”||Etihad Airway is the national Airlines of United Arab Emirates, as such it is obviously incorporated outside Bangladesh and as a result it cannot be stated that it is incorporated in Bangladesh under the Companies Act. Please find out in which country it is incorporated in and under what authority it is carrying on its business in Bangladesh and make changes in the particulars reflecting the same.|
|Insert Preamble||There is no preamble in the agreement from which the purpose of the agreement could be understood. Please insert a preamble before starting the clauses of the agreement.|
|2nd Paragraph of Clause 2, Page 2||Please delete this paragraph and replace it with the following paragraph:
“Examination will be carried out by the Service Provider in line with the requirements of the Foreign Exchange Regulations of Bangladesh for the time being in force. However, changes or amendments to the relevant laws affecting the remittance will be taken to the Service Providers notice by the Contractor on a timely basis.”
|3rd paragraph of Clause 2, Page 2||The first sentence of 3rd paragraph of Clause 2, Page 2 should be deleted and replaced with the following sentence:
“The applicable information and documents will be furnished to the Service Provider by the Client on a timely basis so as to enable the Service Provider to meet monthly deadlines.”
|Last paragraph of Clause 2, Page 2||Last paragraph of Clause 2, Page 2 should be deleted and replaced with the following sentence:
“Each month, the Service Provider, after preparing and checking the provided documents, will confirm the remittable amount to the Client.”
|Clause 3||This clause only states that the service will be provided for a fee of BDT 20,000 to be paid monthly basis by the Contractor. This clause does not state whether BANK 1 needs any confirmation from the Client that the service has been provided by the Service Provider before paying the fees, on which date of the month this fee will be payable by the BANK 1 or how BANK 1 will be reimbursed by the Client for the amount paid. Please revise this clause clarifying these issues.|
|Clause 4||The designated officer/staff of the Service Provider will be responsible for filing of relevant papers to BANK 1 showing the remittable amount payable by the Client. BANK 1 as the Bank should file the return to Bangladesh Bank based on the information given by the Service Provider. The Client should reimburse BANK 1 for any remittable amount paid by BANK 1 on their behalf to Bangladesh Bank. If the Client fails to pay any amount due from it to BANK 1, then BANK 1 may deduct an amount equal thereto from the Client’s Account. Any queries and enquires of Bangladesh Bank should be answered by the Client or the Service Provider not BANK 1. We suggest that Clause 4 be revised to include these terms.|
If you have any further query, please do not hesitate to contact the undersigned.
The Lawyers & Jurists
M.L.Hotel Tower Ltd, 208, Shahid Syed Nazrul Islam Sarani,
Bijoy Nagar, Dhaka-1000.