Lease Agreement
Some words and phrases have special meaning herein as set forth parenthetically.
WHEREAS, North American Monetary Exchange Corporation, dba Alpine Gold Exchange (“Lessee”), a Utah Corporation, desires to lease United Precious Metals Association (UPMA) Supported Currencies from UPMA members in order to furnish them with the opportunity to earn a return on their precious metal holdings; and
WHEREAS, the person (“Lessor”) executing this lease agreement (the “Lease”) has deposited with Legal Tender Services PLLC (“Escrow Agent”) a quantity of one or more Supported Currencies (consisting of gold dollars, silver dollars or Goldbacks®), a portion of which (the “Lease Amount”) the Lessor intends to lease to the Lessee in return for a Lease Fee and return of the Lease Amount at the end of the Lease Term;
NOW, THEREFORE, for good and valuable consideration, Lessor and Lessee (each a “Party” or collectively the “Parties”) hereby agree as follows:
Offer. Lessor hereby offers to lease to Lessee the offered Lease Amount of United States Gold or Silver Dollars or Goldbacks® at the published annual rate, paid monthly, current as of the execution of this Lease. Lessor acknowledges that Lessee may in its sole discretion reject or accept a smaller, but not larger, Lease Amount. Lessor hereby instructs Escrow Agent to transfer to Lessee the accepted Lease Amount.
Term. The term of this Lease shall be one year from the date of its discretionary acceptance by Lessee (the “Lease Term”) and shall automatically renew on the same day of each year thereafter unless and until terminated pursuant to the terms of this Lease.
Payments. In consideration of Lessee’s right to possess and use the Lease Amount during the Lease Term, Lessee will pay a Lease Fee in the leased Supported Currency to Lessor through Escrow Agent each month in an amount equal to one twelfth of the Lease Rate multiplied by the Lease Amount.
Termination. A Gold or Silver coin Lease may be terminated: (1) by Lessee at any time, (2) by Lessor upon request to, and approval by Lessee, during the Lease Term and upon payment by Lessor to Lessee of 2% of the Lease Amount (“Early Termination Fee”), or (3) by Lessor at the renewal date hereof by deactivating the automatic renewal feature located on the lease page of member.upma.org (the “Web Portal”)—there being no Lessor liability for any Early Termination Fee for Lease expiration in the ordinary course of business.
A Goldback® Lease, or any automatic renewal thereof, may be terminated: (1) by Lessee at any time; (2) by Lessor upon two (2) months advanced written notice to Lessee and Escrow Agent with no penalty or (3) by Lessor with less than two (2) months advance, written notice to Lessee and Escrow Agent and payment by Lessor to Lessee of 2% of the Lease Amount (“Early Termination Fee”).
On the effective date of Lease termination or expiration, Escrow Agent shall credit Lessor’s Web Portal account with the Lease Amount and any accrued, but unpaid, Lease Fees.
Permitted Uses. Lessor acknowledges and agrees that Lessee may deploy the Lease Amount so as to generate a stream of payments denominated and payable in the Supported Currency thereof during the Lease Term, and a return of the Lease Amount at the conclusion thereof (“Permitted Uses”). Lessor acknowledges and agrees that Lessee shall quietly use and enjoy the Lease Amount for Permitted Uses during the Lease Term.
No Liens. Lessee agrees that it will at all times, and at Lessee’s expense, keep the Lease Amount free from any lien, foreclosure, levy, execution, attachment or other process of law or equity, and Lessee will provide Lessor immediate written notice if any legal process or lien is asserted or made against the Lease Amount , upon foreclosure, levy, execution, attachment or other process of law or equity enforced against Lessee.
Indemnification. The Parties hereby agree to the following indemnities, which shall continue even after the termination of this Lease.
EXCEPT AS OTHERWISE SET FORTH BELOW, LESSEE AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND LESSOR FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, ATTORNEYS’ FEES, EXPENSES, DAMAGES AND LIABILITIES INCURRED BY LESSOR ARISING FROM OR RELATING TO LESSEE’S POSSESSION, OPERATION, USE, LEASING, OR RETURN OF ANY OF THE LEASE AMOUNT. THESE COSTS AND FEES SHALL INCLUDE ANY COSTS INCURRED BY LESSOR TO REPLACE THE LEASE AMOUNT. NOTWITHSTANDING THE FOREGOING, LESSEE SHALL NOT BE LIABLE FOR, AND SHALL BE UNDER NO OBLIGATION TO INDEMNIFY LESSOR IN RESPECT OF ANY SUCH CLAIMS, COSTS, ATTORNEYS’ FEES, EXPENSES, DAMAGES AND LIABILITIES ARISING FROM OR RELATING TO ANY ACT (OR FAILURE TO ACT) BY LESSOR THAT IS IN VIOLATION OF LESSOR’S OBLIGATIONS UNDER THIS LEASE; THAT IS IN VIOLATION OF APPLICABLE LAW; THAT CONSTITUTES GROSS NEGLIGENCE, WILLFUL DEFAULT OR FRAUD; OR THAT IS IN VIOLATION OF ANY CONTRACTUAL OBLIGATION OR DUTY IMPOSED ON LESSOR IN RESPECT OF OR BY ANY OTHER PERSON.
EXCEPT AS OTHERWISE SET FORTH BELOW, LESSOR AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND LESSEE FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, ATTORNEYS’ FEES, EXPENSES, DAMAGES AND LIABILITIES INCURRED BY LESSEE ARISING FROM OR RELATING TO THE MATTERS CONTEMPLATED UNDER THIS LEASE. NOTWITHSTANDING THE FOREGOING, LESSOR SHALL NOT BE LIABLE FOR, AND SHALL BE UNDER NO OBLIGATION TO INDEMNIFY LESSEE IN RESPECT OF ANY SUCH CLAIMS, COSTS, ATTORNEYS’ FEES, EXPENSES, DAMAGES AND LIABILITIES ARISING FROM OR RELATING TO ANY ACT (OR FAILURE TO ACT) BY LESSEE THAT IS IN VIOLATION OF LESSEE’S OBLIGATIONS UNDER THIS LEASE; THAT IS IN VIOLATION OF APPLICABLE LAW; OR THAT CONSTITUTES GROSS NEGLIGENCE, WILLFUL DEFAULT OR FRAUD.
Assignment. Lessee may not assign this Lease to any other person for any purpose other than the Permitted Use. Lessor may sell, assign or transfer this Lease and ownership of the Lease Amount to a third party (a “Transferee”); provided that (i) Lessor is not in default under this Lease and Lessee has no claims, defenses or setoffs against Lessor; (ii) such third party provides all information required pursuant to Lessee’s Know Your Customer and Anti-Money Laundering policies; and (iii) Lessee approves of such Transferee in Lessee’s sole discretion, such approval not to be unreasonably withheld. Upon Lessee’s approval of such transfer, Lessee agrees that the new lessor will have the same rights and benefits that Lessor has pursuant to this Lease. However, any such assignment, sale or transfer of this Lease shall not relieve Lessor of Lessor’s obligations to Lessee under this Lease. Lessee agrees to pay all Lease Fees and deliver the Lease Amount upon the termination of this Lease directly to Lessor’s assignee, if Lessor notifies Lessee in writing to do so.
Insurance. At all times during the Lease Term, Lessee shall ensure to the extent commercially feasible that insurance against the theft, loss or destruction of the Lease Amount is maintained in full force and effect. In the event of an uninsured loss, Lessor shall bear the loss on a pro-rata basis with all others who have in-force leases with the Lessee denominated in the Supported Currency to which the loss pertains.
Lessee’s Representations and Warranties. Lessee represents and warrants that as of the date of this Lease:
Lessee is in good standing under the laws of the jurisdiction under which Lessee is organized and is fully qualified to do business in each jurisdiction where Lessee’s activities require such qualification;
Lessee has the authority and legal right to enter into and perform Lessee’s obligations under this Lease;
this Lease is Lessee’s valid and binding obligation and is enforceable by Lessor;
Lessee has no right, title or interest in or to the Lease Amount, except that given by this Lease; and
Lessee will not use the Lease Amount other than for Permitted Uses.
Lessor’s Representations and Warranties. Lessor represents and warrants that:
Lessor has title to the Lease Amount, free of all encumbrances;
if applicable, Lessor is in good standing under the laws of the jurisdiction under which Lessor is organized and is fully qualified to do business in each jurisdiction where Lessor’s activities require such qualification;
Lessor has the authority and legal right to enter into and perform Lessor’s obligations under this Lease;
this Lease is Lessor’s valid and binding obligation and is enforceable by Lessee;
Lessor has conducted all investigations of Lessee and has been afforded the opportunity to consult with legal counsel, as well as tax and financial advisors, at the Lessor's own expense, regarding the provisions of this Lease prior to execution of the same;
Lessor understands the various risks of a transaction like that contemplated by this Lease and can afford to bear such risks, including, without limitation, the risk of losing a pro-rata share of the Lease Amount in the event of an uninsured loss, as more specifically provided herein above; and
Lessor is not known to:
be listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Asset Control, U.S. Department of the Treasury ("OFAC") pursuant to Executive Order number 13224, 66 Federal Register 49079 (September 25, 2001) (the "Order");
be listed on any other list of terrorists or terrorist organizations maintained pursuant to the Order, the rules and regulations of OFAC or any other applicable requirement contained in any enabling legislation or other executive orders in respect to the Order (hereinafter collectively the "Orders");
be engaged in activities prohibited in the Orders; or
have been convicted, pleaded nolo contendere, indicted, arraigned or detained on charges involving money laundering or predicate crimes to money laundering.
Notice. If any notices or demands are required under this Lease, they shall be sufficient if given in writing whether personally, electronically or by mail, with tracking, to the addresses below in the signature blocks of this Lease, or to any other address either Party may designate in writing, pursuant to the terms of this section. Such notice shall be effective when personally delivered, when sent electronically or when delivered by a common carrier as evidenced by tracking .
Mediation. The Parties hereby agree to participate in good faith in at least eight (8) hours of non-binding mediation during the early stages of any dispute or controversy arising out of this Agreement, with each Party bearing half the cost of such mediation proceedings.
Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without regard to choice of law principles, and of the United States of America (“U.S.A.”).
Venue. Any action at law or in equity instituted in connection with this Agreement shall be brought in the appropriate court located within Salt Lake County, Utah, U.S.A.
Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to trial by jury in any legal action between Lessor and Lessee arising out of or relating to this Lease.
Nature of Transaction.
It is the express intent of the Parties that this Lease constitute a true lease and not sale of property. Title to the Lease Amount shall at all times remain in Lessor, and Lessee shall acquire no ownership, title, property, right, equity, or interest in the Lease Amount other than its leasehold interest solely as Lessee subject to all the terms and conditions hereof. NOTWITHSTANDING THE FOREGOING, LESSEE HAS NOT MADE, AND HEREBY DISCLAIMS ANY ADVICE, REPRESENTATIONS, WARRANTIES AND COVENANTS, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO ANY LEGAL, ECONOMIC, ACCOUNTING, TAX OR OTHER EFFECTS OF THE LEASE AND THE TRANSACTION(S) CONTEMPLATED HEREBY, AND LESSOR HEREBY DISCLAIMS ANY RELIANCE ON ANY SUCH WARRANTIES, STATEMENTS OR REPRESENTATIONS MADE BY LESSEE WITH RESPECT THERETO.
Notwithstanding the express intent of Lessor and Lessee that this Lease constitute a true lease and not a sale of property, should a court of competent jurisdiction determine that this Lease is not a true lease, but rather one intended as security, then solely in that event and for the expressly limited purposes thereof, Lessee shall be deemed to have hereby granted Lessor a security interest in the Lease Amount and all accessions, substitutions and replacements thereto and therefor, and proceeds (cash and non-cash), including, without limitation, insurance proceeds thereof (but without power of sale), to secure the prompt payment and performance as and when due of all obligations and indebtedness of Lessee, now existing or hereafter created, to Lessor pursuant to this Lease or otherwise.
Remedies. Any remedies and rights contained herein are cumulative, and are not exclusive of other rights, remedies and benefits allowed by law. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their respective heirs, executors, administrators, successors and assigns.
Specific Performance. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Lease were not performed in accordance with its specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Lease and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which they are entitled at law or in equity.
Exclusion of Consequential Damages. In no event shall either Party be liable for indirect, special, punitive, incidental, or consequential damages, including, without limitation, loss of profits or business, of any kind whatsoever.
Taxes. Lessor is responsible for all sales and use taxes, whether local, state, or federal, that may be owing to any governmental authority as a result of the transactions contemplated by this Lease. Neither this Lease, nor any provision contained herein, is intended to be, to operate as, or to be construed in any manner as an "abusive tax shelter" or other unlawful means or device to defeat or evade (in whole or in part) any lawful tax or other public charge, due, debt, reporting requirement, or any other duty or obligation imposed by law or arising out of contract or other underlying transaction to which this Lease pertains.
Miscellaneous.
This Lease contains the entire agreement between Lessee and Lessor and supersedes any prior understanding or agreement between the Parties whether written or oral. This Lease may not be altered, amended, modified, terminated or otherwise changed except in writing and signed by both Parties.
This Lease is solely for the benefit of the Parties and their respective permitted successors and assigns and nothing in this Lease, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Lease.
The captions used in this Lease are for convenience only and shall not define or limit any of the terms of this Lease.
This Lease may be executed in counterparts, each of which is deemed an original, but all of which together is deemed to be one and the same agreement. A signed copy of this Lease delivered by facsimile, e- mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Lease.
Pursuant to the provisions of the Electronic Signatures in Global and National Commerce Act (E-SIGN, 2000) 15 USCA §§ 7001-7031 (Supp. 2001), and Utah's Uniform Electronic Transactions Act, UCA §§ 46 4-101 to -501 (2000), execution of this Agreement by electronic means provided on websites or mobile applications which may from time to time be maintained by the Escrow Agent for that purpose carries the same weight and legal effect as traditional paper documents and handwritten signatures. The Parties further acknowledge and agree that transactions and/or signatures in records may not be denied legal effect solely because they are conducted, executed, or prepared in electronic form, and that if a law requires a record or signature to be in writing, an electronic record or signature satisfies that requirement.
IN WITNESS WHEREOF, the Parties hereto electronically execute this Agreement effective the date of the Lessor’s Lease Amount offer.