AGREEMENT FOR MASTER DIGITAL ASSETS CREDIT FACILITY

 

These Terms and Conditions as defined herein (collectively this “Agreement”) govern the borrowing and lending of cryptographic assets and/or if agreed by the parties in writing, other assets (the “Digital Assets”) on the electronic platform of Bybit Fintech Limited (the “Exchange”, “Company”, “we”, “us” or “our”) and certain customers who desire to borrow Digital Assets from us (the “Borrower”, “you”, “your”). This Agreement forms a binding agreement between the Company and you (each a “party” and collectively the “parties”) and serves to supplement the terms of our Service Agreement (the “Service Agreement”) between you and the Company when you register for the electronic trading platform of the Company. If you do not agree to any terms of this Agreement, you must immediately cease using the Platform (as defined in the Service Agreement) and not borrow any Digital Assets under this Agreement.

 

1       Background.

1.1       The Borrower may, from time to time, initiate a Credit Request to the Exchange or enter into transactions on the Platform in which the Exchange will extend a line of credit to the Borrower secured against a transfer of Collateral. Each such transaction shall be referred to as a grant of Credit (“Grant”) and, unless otherwise agreed in writing, shall be governed by this Agreement (as may be amended from time to time), including any supplemental terms or conditions contained in an email, or notification to the Borrower. The Exchange shall have the sole and absolute discretion to amend and/or replace any terms of this Agreement from time to time.

 

 

2       Definitions.

For the purposes hereof:

2.1       “Acceptable LTV Ratio” shall have the meaning set forth in Section 6.

2.2       “Act of Insolvency” shall mean, with respect to any party, (a) the commencement by such party as debtor of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, judicial management, moratorium, dissolution, delinquency or similar law, or such party’s seeking the appointment or election of a receiver, conservator, trustee, judicial manager, custodian or similar official for such party or any substantial part of its property, or the convening of any meeting of creditors for purposes of commencing any such case or proceeding or seeking such an appointment or election, (b) the commencement of any such case or proceeding against such party, or another seeking such an appointment or election, or the filing against a party of an application for a protective decree under the provisions of the Securities Investor Protection Act of 1970, which (i) is consented to or not timely contested by such party, (ii) results in the entry of an order for relief, such an appointment or election, the issuance of such a protective decree or the entry of an order having a similar effect, or (iii) is not dismissed within fifteen (15) days, (c) the making by such party of a general assignment for the benefit of creditors, or (d) the admission in writing by such party of such party’s inability to pay such party’s debts as they become due.

2.3       “Assets” shall mean cryptographic assets and/or, if agreed by the parties in writing, other assets.

2.4       “Borrower” shall have the meaning set forth in the preamble.

2.5       “BTC” shall mean bitcoin, the cryptographic token associated with the Bitcoin blockchain.

2.6       “Business Day” shall mean a day (other than a Saturday or Sunday) on which banks are open for general business in Singapore and Seychelles.

2.7       “Close of Business” shall mean the time established by the parties in writing or, in the absence of any such agreement, as shall be determined in accordance with market practice.

2.8       “Collateral” shall mean, whether now owned or hereafter acquired and to the extent permitted by applicable law, (a) Supported Assets (transferred to or held at the Exchange Account and/or Collateral Account pursuant to Sections 4 or 6, (b) all accounts in which such Supported Assets is deposited, and (c) any proceeds of any of the foregoing. If any new or different Asset shall be exchanged for any Collateral by recapitalization, merger, consolidation, or other corporate action, such new or different Asset shall, effective upon such exchange, be deemed to become Collateral in substitution for the former Collateral for which such exchange is made. For purposes of return of Collateral by the Exchange or purchase or sale of Assets pursuant to Section 10, such term shall include Assets of the same type and quantity as the Collateral initially transferred by the Borrower to or held with the Exchange, as adjusted pursuant to the preceding sentence.

2.9       “Collateral Account” shall mean an(y) integrated custody account belonging to the Borrower with an External Custodian.

2.10     “Confidential Information” shall mean:

(a)     this Agreement (including the existence and provisions of this Agreement), the business relationship between the parties, and any oral or written communication between the parties relating to the purpose of this Agreement;

(b)     any technical, operational, business, or other information, materials, or data relating to any party provided by such party or which the other party becomes aware of or which is received or held by the other party before or after the signing of this Agreement as a result of the negotiations or cooperation relating to this Agreement; and

(c)     information including but not limited to trade secrets, commercial secrets, knowledge and information relating to technology, inventions, ideas, plans, provided items or vendor information, customer information, personnel information, business plans, promotional and marketing activities, financial information, and other business activities of any party,

in whatever form, and includes information given orally and any document, disk, diskette, CD-ROM, email, electromagnetic record, report, text communication, audiotape, videotape, note, drawing, model, specification, assembly file, or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

(a)     information that: 

(i)     is public information and is lawfully obtained or known to the receiving party before the date the information is disclosed to it;

(ii)    is known to the receiving party before the date the information is disclosed to it or is obtained by the receiving party from a third-party source which, in either case, as far as the receiving party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality;

(iii)  is independently obtained by the receiving party; or

(iv)  is identified in writing as non-confidential by the disclosing party.

2.11      “Contractual Currency” shall have the meaning assigned in Section 13.1.

2.12     “Credit” means the applicable digital representation of Assets issued by the Exchange to the Borrower on the Exchange Platform secured by the Collateral deposited into the Borrower’s Exchange Account and/or Collateral Account for use to purchase products and services on the Exchange Platform.

2.13      “Credit Request” shall mean a request for a grant of Credit from the Exchange to the Borrower pursuant to a deposit of Assets into the Collateral Account or Exchange Account.

2.14      “Cutoff Time” shall mean a time on a Business Day by which a transfer of Assets must be made by the Borrower or the Exchange to the other, as shall be agreed by the Borrower and the Exchange in writing or, in the absence of any such agreement, as shall be determined in accordance with market practice.

2.15      “Default” or “Event of Default” shall have the meaning assigned in Section 9.

2.16      “Defaulting Party” shall have the meaning assigned in Section 15.

2.17      “Distribution” shall mean, with respect to any Assets at any time, any distribution made on or in respect of such Asset that was not a result of any action of the holder, including, but not limited to: (a) Assets received as a result of airdrops or bonuses, and (b) all rights to purchase additional Assets. In the event that the holder of an Asset is entitled to elect the type of distribution to be received from two (2) or more alternatives, such election shall be made by the Exchange, in the case of a Distribution in respect of the Credits, and by the Borrower, in the case of a Distribution in respect of Collateral.

2.18      “Exchange” shall have the meaning set forth in the preamble.

2.19      “Exchange Account” shall mean the Borrower’s account(s) on the Exchange Platform.

2.20     “Exchange Platform” shall mean the trading Exchange Platform owned and operated by the Exchange under which the Borrower is enabled through this Agreement to trade on the platform being www.bybit.com and its accompanying web and app applications.

2.21.    “External Custodian” shall mean the service provider of a custodial solution that is operated external to the Exchange, and will be utilized by the Borrower to hold Collateral used for trading and the settlement of liabilities and obligations with the Exchange.

2.22     “First Benchmark Ratio” shall be the ratio set forth in Section 6.

2.23     “Grant” shall have the meaning set forth in Section 1.

2.24    “Reduce Only Function” shall mean the status of the Exchange Account whereby (i) the Borrower is restricted from opening new positions, (ii) all of the Borrower’s open orders shall be automatically canceled, and (iii) the Borrower is only permitted to close any of its open positions.

2.25     “Replacement Assets” shall have the meaning assigned in Section 10.2.

2.26     “Replacement Collateral” shall have the meaning assigned in Section 10.3.

2.27     “Encumber” shall mean, with respect to any Collateral, to charge, to lien, to encumber, to pledge, repledge, hypothecate, rehypothecate, lend, re-lend, sell, or otherwise transfer legal or beneficial interests or parts thereof in such Collateral.

2.28     “LTV Ratio” shall have the meaning assigned in Section 6.

2.29     “Second Benchmark Ratio” shall be the ratio set forth in Section 6.

2.30     “Supported Assets” shall mean the Assets set forth in this link.

2.31     “Takeover Line” shall be the ratio set forth in Section 6 hereto.

2.32     “Trading Obligations” shall mean the trading obligations set forth in this link.

 

 

3       Conditions for Grant of Credit

3.1       Subject to the terms and conditions of this Agreement, the Borrower may, from time to time, seek to initiate a Credit Request to the Exchange.

3.2       A Credit Request is irrevocable and will not be regarded as having been duly completed unless:

(a)     the Exchange is satisfied (in its sole and absolute discretion) that the Borrower has complied or will comply with the provisions of this Agreement (including, without limitation, Section 3.8 below) and any other conditions as agreed to by the parties;

(b)     the applicable Trading Obligations are met;

(c)      no Default is continuing or would result from the proposed Credit; and

(d)     the LTV Ratio meets the Acceptable LTV Ratio set forth in Section 6.

3.3       The Borrower may withdraw Collateral at any time prior to a Credit Request.

3.4       The Exchange shall review each Credit Request and, acting in its sole and absolute discretion, approve such Credit Request (each a “Grant” collectively the “Grants”) within three (3) Business Days. Each approval of a Credit Request shall not be deemed as an approval of any subsequent Credit Requests.

3.5       Each Grant is denominated in the applicable Supported Asset.

3.6       Limited Use.

(a)     The Borrower shall only be able to apply all Credits towards any product(s) and/or services provided by the Exchange through the Exchange Account on the Exchange Platform and not in a manner otherwise prohibited in any way under any applicable law or regulation, or in a manner that would be damaging to the Exchange’s interests.

(b)     The Borrower shall only be able to apply the Credits for the Borrower’s proprietary trading purposes, and shall not apply the Credits for the benefit of any other party, whether under a prime brokerage model or otherwise.

(c)     Additional restrictions on the use of Credits may apply as communicated from time to time by the Exchange.

3.7       Upon a Grant, the Exchange shall disburse the Credits (a “Disbursement”) to the Borrower’s Exchange Account within three (3) Business Days (the “Disbursement Deadline”) from the Grant(s), provided the conditions set out below having been met:

(a)     The applicable Collateral, as agreed between the parties from time to time in writing, has been successfully received or is available in the Collateral Account and/or Exchange Account at the time of the Disbursement;

(b)     The appliable Trading Obligations have been met;

(c)     The Borrower shall, prior to the transfer of the Credits to the Borrower, transfer to the Collateral Account and/or Exchange Account an amount of Assets such that the LTV Ratio after such transfer is completed shall meet the Acceptable LTV Ratio set forth in Section 6; and

(d)     The details of the Grant have been set out and communicated to the Borrower in writing or through the Exchange Platform setting out:

(i)     the sum of the Grant;

(ii)    the interest rates (if any);

(iii)  the Asset class of the Credit; and

(iv)  the denomination value of the Credit in the applicable Supported Asset.

3.8       If for any reason, the Exchange disburses Credits to the Borrower and the Borrower does not transfer the required Collateral or meet the conditions set out in the paragraph above, the Exchange shall have the right to credit the Credits from the Borrower’s Exchange Account and/or Collateral as adjusted following Section 6 without prior notice or approval, free from all claims, losses, and damages suffered by the Borrower.

3.9       If for any reason, the Exchanges does not disburse the Credits by the Disbursement Deadline, the Borrower shall be at liberty to withdraw the Collateral and deem the respective Credit Request as void.

3.10     The parties agree that Credits shall only be applied toward any product or service on the Exchange Platform.

 

 

4       Collateral.

4.1      Creditor of First Priority. The Collateral as adjusted pursuant to Section 6, shall be security for the Borrower’s obligations in respect of such Credit and for any other obligations of the Borrower to the Exchange hereunder. The Borrower hereby pledges with, assigns to, and grants the Exchange a continuing first priority security interest in, and a lien upon, the Collateral, which shall attach upon the transfer of the Credits by the Exchange to the Exchange Account and which shall be released only in accordance with Section 4.2 below.

4.2      Except as otherwise provided herein, upon transfer to the Exchange of the full amount of the Credits by the Borrower on the day a Credit is settled pursuant to Section 5, the Exchange shall release its interest (the right to claim against and any withdrawal restrictions) in the applicable Collateral transferred to Collateral Account or Exchange Account for respective Credit (and/or Grant) (subject to and as adjusted for compliance with the LTV Ratio set out in Section 6) no later than three (3) Business Days.

 

 

5       Term and Termination of a Grant.

5.1      Grants are perpetual until such time terminated by either the Borrower or the Exchange.

5.2      The Borrower may terminate applicable Grant(s) by providing full repayment to the Exchange.

5.3      The Exchange may terminate one or more or all Grant(s) of Credit where the Borrower does not meet the applicable Trading Obligations set out in this link.

5.4      The Borrower shall repay the applicable Credits to the Exchange on termination of a Grant. Upon full repayment by the Borrower, the Exchange shall release its interest in the Collateral (subject to and as adjusted for compliance with the LTV Ratio set out in Section 6) to the Borrower in accordance with Section 4.2.

5.5      All repayments of Grants shall be in the Asset class that they were issued in.

 

 

6       LTV Ratio

 

 

6.1       LTV Ratio Requirements.

(a)     Withdrawal Restrictions. If at any time the real-time LTV Ratio is equal to or above the First Benchmark Ratio, the Exchange will have the right, but not the obligation, to restrict the Borrower’s withdrawal rights of the Exchange Account.

(b)     Margin Calls. If at any time the real-time LTV Ratio is equal to or above the Second Benchmark Ratio, in addition to the rights of the Exchange set forth in paragraph (a) above, the Exchange shall have the sole right and discretion but not the obligation:

(i)     to demand that the Borrower transfers additional Collateral to the Collateral Account and/or Exchange Account so that the real-time LTV Ratio shall be less than the Second Benchmark Ratio; and

(ii)    enable the Reduce Only Function on the Borrower’s Exchange Account.

(c)     Liquidation and Set-Off. If at any time the real-time LTV Ratio is equal to or above the Takeover Line, in addition to the rights of the Exchange set forth in the paragraphs (a) and (b) above, the Exchange shall have the sole right and discretion but not the obligation to:

(i)     carry out Liquidation of all or some of the open positions of the Borrower on its Exchange Account;

(ii)    withdraw any such Assets from the Collateral Account and/or Exchange Account up to an amount equal to the unpaid Credits and outstanding fee applicable to the Credits;

(iii)   suspend and/or cancel all orders placed or purported to be placed by the Borrower on its Exchange Account; and/or

(iv)   terminate one or more or all Grant(s) of Credit.

6.2       The Exchange shall have the sole right and discretion to adjust the type and amount of the Supported Assets and Haircuts from time to time without further notice to the Borrower. For the avoidance of doubt, the Borrower shall have the obligation to keep itself updated on the Exchange’s list of Supported Assets and Haircuts.

6.3       The Parties acknowledge and agree that the Borrower shall deposit Assets to the Collateral Account and/or Exchange Account to attain the LTV Ratio level required by the Exchange and maintain that level to reduce the applicable restrictions placed on the Exchange Account to the LTV Ratio level it has maintained at in accordance with the LTV Ratio requirements under Section 6.1.

6.4       In the event that the Borrower fails to bring its LTV Ratio up to the level required by the Exchange and maintain that level, the Borrower acknowledges and agrees that the Exchange may, at its option:

(a)     restrict withdrawals on the Borrower’s Exchange Account;

(b)     implement the Reduce Only Function on the Borrower’s Exchange Account;

(c)     pool in, on the Borrower’s behalf, funds from the Borrower’s other Exchange wallets for the purpose to allow the Borrower to continue holding the position(s);

(d)     liquidate, on the Borrower’s behalf, any and all remaining open positions;

(e)     withdraw Collateral from the Collateral Account and/or Exchange Account; and/or

(f)      suspend and/or cancel all orders placed or purported to be placed by the Borrower on its Exchange Account.

6.5       Notwithstanding the provisions herein, if at any time the real-time LTV Ratio is equal to or above the Takeover Line, the Exchange shall have all the available remedies set forth in Sections 6.1(a) to 6.1(c).

6.6       The Borrower acknowledges and agrees that any notifications, notices, and/or demand(s) given by the Exchange in relation to the LTV Ratios are provided out of goodwill and not any form of representation to be relied upon by the Borrower. The Borrower shall exercise its own caution in risk management and further acknowledges and agrees that such notifications shall not form conditions precedent for the Exchange’s exercise of its rights in the event of Default, in which the Exchange has the sole right and discretion to exercise its rights automatically and without any consent from the Borrower.

 

 

7       Representations and Warranties

7.1       The parties to this Agreement hereby make the following representations and warranties, which shall continue during the term of any Credit hereunder:

(a)     Each party hereto represents and warrants that:

(i)     it has the power to execute and deliver this Agreement, to enter into the Credit contemplated hereby, and to perform its obligations hereunder;

(ii)    it has taken all necessary action to authorize such execution, delivery, and performance; and

(iii)  this Agreement constitutes a legal, valid, and binding obligation enforceable against it in accordance with its terms.

(b)     Each party hereto represents and warrants that it has not relied on the other for any tax or accounting advice concerning this Agreement and that it has made its own determination as to the tax and accounting treatment of any Credit and any dividends, remuneration or other funds received hereunder.

(c)     Each party hereto represents and warrants that it is acting for its own account unless it expressly specifies otherwise in writing.

(d)     The Borrower represents and warrants that it has, or will have at the time of transfer of any Collateral, the right to grant a first priority security interest therein subject to the terms and conditions hereof.

(e)     The Exchange represents and warrants that it has, or will have at the time of transfer of any Credits, the right to transfer the Credits subject to the terms and conditions hereof.

7.2       The Borrower represents, warrants and undertakes that the Collateral shall not be Encumbered.

 

 

8       Covenants

8.1       Each party agrees to be liable as principal with respect to its obligations hereunder.

8.2      The Borrower acknowledges and agrees that the Exchange may access and monitor the Collateral Account and Exchange Account, and shall have the right to deduct, withdraw, liquidate, and apply other measures or restrictions, for the purpose of this Agreement.

8.3       The Borrower acknowledges and accepts that it has the sole responsibility to establish and/or maintain in fully operational, secure, and valid status, access to its Exchange Account, the credentials for access to such Exchange Account, and the private keys of such Exchange Account.

 

 

9       Events of Default

9.1       The following events are “Events of Default” (individually, a “Default”) in relation to the Borrower:

(a)     if any representation made by the Borrower in respect of this Agreement or any Credit hereunder shall be incorrect or untrue in any material respect during the term of any Credit hereunder;

(b)     if the Borrower notifies the Exchange of the Borrower’s inability to or its intention not to perform the Borrower’s obligations hereunder or otherwise disaffirms, rejects, or repudiates any of the Borrower’s obligations hereunder;

(c)     if the Borrower fails to transfer Collateral as required by Section 6;

(d)     if any Credit are not applied in a manner contemplated in Section 3.6;

(e)     if any Credit shall not be transferred or held at the Exchange Account with the Exchange upon termination of the Credit as required by Section 5;

(f)      if an Act of Insolvency occurs with respect to the Borrower;

(g)    if the Exchange believes the Collateral Account and/or the Exchange Account has been or is used for transactions associated with money laundering and/or funds have been made, received or retained in the Collateral Account and/or the Exchange Account in violation of any applicable law, rule or regulation;

(h)     if the Borrower (a) shall fail to perform any material obligation under this Agreement not specifically set forth in Sections 9.1(a) through 9.1(g) above, and the payment of transfer taxes as required by Section 11, (b) shall have been notified of such failure by the Exchange, and (c) shall not have cured such failure within twenty-four (24) hours of receipt of such notification.

9.2       In the Event of Default in relation to the Borrower, the Exchange may, without further notice or demand to the Borrower, declare the entire sum of Credits unpaid and immediately due and payable. Further, the Exchange shall have the right to set off against any and all obligations owed by the Exchange to the Borrower in a priority determined at the discretion of the Exchange.

9.3       The following event is an Event of Default in relation to the Exchange:

(a)     if any Collateral is not transferred to the Borrower from the Exchange upon termination of the Credit as required by Sections 4.2 and 5.

9.4       In the Event of Default in relation to the Exchange, the Borrower shall give notice as promptly as practicable to the Exchange of the exercise of the Borrower’s option to terminate all Credits hereunder pursuant to this Section 9.

 

 

10       Indemnities and Remedies

10.1       If the Borrower (a) fails to repay any Credits owing and due, (b) is notified of such failure by the Exchange, and (c) does not cure such failure within seventy-two (72) hours upon issuance of such notification by the Exchange, the Exchange shall have the right to withdraw an amount equal to such unpaid Credits (“outstanding amounts”), together with liquidated damages at a rate equal to 0.05% per day on such outstanding amounts, from the Collateral Account and/or the Exchange Account.

10.2       Upon the occurrence of a Default under Section 9 entitling the Exchange to terminate all Credits hereunder, the Exchange shall have the right, in addition to any other remedies provided herein, (which, upon the occurrence of an Act of Insolvency, may be exercised following the termination of any applicable stay) (a) to purchase a like amount of Credits (“Replacement Assets”) in the principal market for such Credits in a commercially reasonable manner, (b) to sell any Collateral in the principal market for such Collateral in a commercially reasonable manner and (c) to apply and set off the Collateral and any proceeds thereof against the payment of the purchase price for such Replacement Assets and any amounts due to the Exchange under Sections 11 and 13. In the event that the Exchange shall exercise such rights, the Borrower’s obligation to return a like amount of the Credits shall terminate. The Exchange may similarly apply the Collateral and any proceeds thereof to any other obligation of the Borrower under this Agreement, including the Borrower’s obligations with respect to Distributions paid to the Borrower (and not forwarded to the Exchange) in respect of Credits. In the event that (i) the purchase price of Replacement Assets (plus all other amounts, if any, due to the Exchange hereunder) exceeds (ii) the amount of the Collateral, the Borrower shall be liable to the Exchange for the amount of such excess together with interest thereon at a rate equal to twelve percent (12%), from the date of such purchase until the date of payment of such excess. As security for the Borrower’s obligation to pay such excess, the Exchange shall have, and the Borrower hereby grants, a security interest in any property of the Borrower then held by or for the Exchange and a right of set-off with respect to such property and any other amount payable by the Exchange to the Borrower. The purchase price of Replacement Assets purchased under this Section 10.2 shall include, and the proceeds of any sale of Collateral shall be determined after deduction of, broker’s fees and commissions and all other reasonable costs, fees and expenses related to such purchase or sale (as the case may be). In the event the Exchange exercises its rights under this Section 10.2, the Exchange may elect in its sole discretion, in lieu of purchasing all or a portion of the Replacement Assets or selling all or a portion of the Collateral, to be deemed to have made, respectively, such purchase of Replacement Assets or sale of Collateral for an amount equal to the Exchange Platform’s index price therefor on the date of such exercise. Subject to Section 15, upon the satisfaction of all obligations hereunder, any remaining Collateral shall be returned to the Borrower.

10.3       Upon the occurrence of a Default under Section 9 entitling the Borrower to terminate all Credits hereunder, the Borrower shall have the right, in addition to any other remedies provided herein, (which, upon the occurrence of an Act of Insolvency, may be exercised following the termination of any applicable stay), (a) to purchase a like amount of Collateral (“Replacement Collateral”) in the principal market for such Collateral in a commercially reasonable manner, (b) to sell a like amount of the Credits in the principal market for such Credits in a commercially reasonable manner and (c) to apply and set off the Credits and any proceeds thereof against (i) the payment of the purchase price for such Replacement Collateral, (ii) the Exchange’s obligation to return any Collateral, and (iii) any amounts due to the Borrower under Section 13. In such event, the Borrower may treat the Credits as its own and the Exchange’s obligation to return a like amount of the Collateral shall terminate. The Borrower may similarly apply the Credits and any proceeds thereof to any other obligation of the Exchange under this Agreement, including the Exchange’s obligations with respect to Distributions paid to the Exchange (and not forwarded to the Borrower) in respect of Collateral. In the event that (i) the sales price received from such Credits is less than (ii) the purchase price of Replacement Collateral (plus the amount of any Collateral not replaced by the Borrower and all other amounts, if any, due to the Borrower hereunder), the Exchange shall be liable to the Borrower for the amount of any such deficiency, together with interest on such amounts at a rate equal to twelve percent (12%) from the date of such sale until the date of payment of such deficiency. As security for the Exchange’s obligation to pay such deficiency, the Borrower shall have, and the Exchange hereby grants, a security interest in any property of the Exchange then held by or for the Borrower and a right of set-off with respect to such property and any other amount payable by the Borrower to the Exchange. The purchase price of any Replacement Collateral purchased under this Section 10.3 shall include, and the proceeds of any sale of Credits shall be determined after the deduction of, broker’s fees and commissions and all other reasonable costs, fees and expenses related to such purchase or sale (as the case may be). In the event the Borrower exercises its rights under this Section 10.3, the Borrower may elect in its sole discretion, in lieu of purchasing all or a portion of the Replacement Collateral or selling all or a portion of the Credits, to be deemed to have made, respectively, such purchase of Replacement Collateral or sale of Credits for an amount equal to the Exchange Platform’s index price therefor on the date of such exercise. Subject to Section 15, upon the satisfaction of all the Exchange’s obligations hereunder, any remaining Credits shall be returned to the Exchange.

10.4       Unless otherwise agreed, the parties acknowledge and agree that (a) the Credits and any Collateral consisting of Assets are of a type traded in a recognized market, (b) in the absence of a generally recognized source for prices or bid or offer quotations for any security, the non-defaulting party may establish the source therefor in its sole discretion, and (c) all prices and bid and offer quotations shall be increased, in the sole and absolute discretion of the Exchange, to include accrued interest to the extent not already included therein (except to the extent contrary to market practice with respect to the relevant Assets).

10.5       The Borrower shall promptly indemnify the Exchange against any cost and expenses (including legal fees), loss, or liability incurred by the Exchange as a result of the exercise of any of the rights, powers, discretions and remedies vested in the Exchange by this Agreement or by law.

10.6       In addition to its rights hereunder, the non-defaulting party shall have any rights otherwise available to it under any other agreement or applicable law.

 

 

11       Transfer Taxes.

11.1      All transfer taxes with respect to the transfer of the Credits by the Exchange to the Borrower and by the Borrower to the Exchange upon termination of the Credit and with respect to the transfer of Collateral by the Borrower to the Exchange and by the Exchange to the Borrower upon termination of the Credit or pursuant to Section 6 shall be paid by the Borrower.

 

 

12       Transfers.

12.1       All deposits by the Borrower of Collateral shall be deposited into the Collateral Account and/or Exchange Account and all deposits by the Exchange of Credits shall be deposited into the Exchange Account in accordance with the terms of this Agreement.

 

 

13       Contractual Currency.

13.1       The Borrower and the Exchange agree that (a) any return of Credits shall be made in the type of Assets in which the underlying transfer of Credit was made, and (b) any other payment of Asset in connection with a Credit under this Agreement shall be in the type of Assets agreed upon by the Borrower and the Exchange in connection with such Credit (the type of Assets established under clause (a) or (b) hereinafter referred to as the “Contractual Currency”). Notwithstanding the foregoing, the payee of any such payment may, at its option, accept tender thereof in any other type of Assets; provided, however, that, to the extent permitted by applicable law, the obligation of the payor to make such payment will be discharged only to the extent of the amount of Contractual Currency that such payee may, consistent with normal Exchange’s procedures, purchase with such other type of Assets (after deduction of any premium and costs of exchange) on the day next succeeding its receipt of such type of Assets.

13.2       If for any reason the amount in the Contractual Currency received under Section 13.1, including amounts received after conversion of any recovery under any judgment or order expressed in a type of Assets other than the Contractual Currency, falls short of the amount in the Contractual Currency due in respect of this Agreement, the party required to make the payment will (unless a Default has occurred and such party is the non-defaulting party) as a separate and independent obligation and to the extent permitted by applicable law, immediately pay such additional amount in the Contractual Currency as may be necessary to compensate for the shortfall.

13.3      If for any reason the amount in the Contractual Currency received under Section 13.1 exceeds the amount in the Contractual Currency due in respect of this Agreement, then the party receiving the payment will (unless a Default has occurred and such party is the non-defaulting party) refund promptly the amount of such excess.

 

 

14       Confidentiality.

14.1      Each party agrees to keep all Confidential Information confidential and not to disclose it to anyone, except to the extent required in the performance of the party’s rights and obligations under this Agreement, and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own Confidential Information.

14.2      Each party acknowledges and agrees that all Confidential Information is and shall remain the exclusive property of the disclosing party. Nothing contained herein shall be construed as granting or implying any transfer of rights to the receiving party in the Confidential Information, or any patents or other intellectual property protecting or relating to the Confidential Information, or guaranteeing that the Confidential Information disclosed do not or will not infringe the patent rights, trademark rights, copyrights or other rights of a third party.

14.3      Upon termination of this Agreement or as requested by the disclosing party, each party shall (a) return to the other party or destroy all Confidential Information (including but not limited to the original, copies, duplicates, and summary of the Confidential Information) received from such other party hereunder; and (b) confirm in writing to the other party that the Confidential Information has been so returned or destroyed.

14.4       All confidentiality obligations hereunder shall survive the termination of any Credit, return of Credits or Collateral, and termination of this Agreement.

 

 

15       Single Agreement.

15.1       The Borrower and the Exchange acknowledge that the parties have entered into this Agreement in reliance on the fact that, all Credits hereunder constitute a single business and contractual relationship and have been entered into in consideration of each other. Accordingly, Borrower and Exchange hereby agree that payments, deliveries, and other transfers made by either of them in respect of any Credit shall be deemed to have been made in consideration of payments, deliveries, and other transfers in respect of any other Credit hereunder, and the obligations to make any such payments, deliveries and other transfers may be applied against each other and netted.

15.2     In addition, the Borrower and the Exchange acknowledge that the parties have entered into this Agreement in reliance on the fact that, all Credits hereunder have been entered into in consideration of each other. Accordingly, the Borrower and the Exchange hereby agree that (a) each shall perform all of its obligations in respect of each Credit hereunder and that a default in the performance of any such obligation by the Borrower or by the Exchange (the “Defaulting Party”) in any Credit hereunder shall constitute a default by the Defaulting Party under all such Credits hereunder, and (b) the non-defaulting party shall be entitled to set off claims and apply property held by it in respect of any Credit hereunder against obligations owing to it in respect of any other Credit with the Defaulting Party.

 

 

16       Applicable Law and Dispute Resolution.

16.1       THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SINGAPORE WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.

16.2       The parties shall attempt to resolve any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, through negotiations between the parties. If the matter is not resolved by negotiation within thirty (30) days of receipt of a written invitation to negotiate from either party, the matter shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this section. The tribunal shall consist of three (3) arbitrators. The language of the arbitration shall be English.

 

 

17       Notices and Other Communications.

17.1       Any and all notices, statements, demands or other communications hereunder may be given by a party to the other by e-mail and at the addresses specified in writing and communicated to the other party, or sent to such party at any other place specified in a notice of change of address hereafter received by the other party. Any notice, statement, demand, or other communication hereunder will be deemed effective on the day and at the time on which it is sent. Any party may at any time and from time to time change its address for service by notice given to the other party at least two (2) Business Days prior to such change in the manner aforesaid.

 

 

18       Submission to Jurisdiction.

18.1      EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF SINGAPORE, SOLELY FOR THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT TO ENFORCE ITS OBLIGATIONS HEREUNDER OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY CREDIT HEREUNDER AND (B) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT AND ANY RIGHT OF JURISDICTION ON ACCOUNT OF ITS PLACE OF RESIDENCE OR DOMICILE.

 

 

19       Miscellaneous.

19.1       In the event of any loss, hack or theft of cryptocurrencies from the Collateral Account and/or the Exchange Account, the Borrower acknowledges and confirms that the Borrower has no right(s), claim(s) or cause(s) of action in any way whatsoever against the Exchange, and to the maximum extent permitted by applicable laws, the Exchange expressly disclaims its liability and shall in no case be liable to the Borrower for the loss of possession of the credentials for accessing, or loss or destruction of the private keys, of the Exchange Account, in any manner and to any extent.

19.2        A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 2001 to enforce any term of this Agreement.

19.3      This Agreement constitutes the entire agreement between the parties. Except as otherwise agreed by the parties, this Agreement supersedes any other agreement, discussion, negotiation, verbal agreement, or arrangement between the parties hereto concerning Credits of Assets between the Borrower and the Exchange. Assignment by the Exchange of its rights and/or obligations under this Agreement shall be allowed and effective upon receipt by the Borrower of assignment notice from the Exchange. This Agreement shall not be assigned by the Borrower without the prior written consent of the Exchange and any attempted assignment by the Borrower without such consent shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Borrower and the Exchange and their respective heirs, representatives, successors, and assigns. This Agreement may be terminated by either party upon notice to the other, subject only to fulfillment of any obligations then outstanding. This Agreement shall not be modified, except by an instrument in writing signed by the party against whom enforcement is sought. The parties hereto acknowledge and agree that, in connection with this Agreement and each Credit hereunder, time is of the essence. Each provision and agreement herein shall be treated as separate and independent from any other provision herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement.

19.4      Waiver. The failure of a party to this Agreement to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. All waivers in respect of a Default must be in writing.

19.5       Survival. All indemnities and remedies hereunder and all obligations with respect to any Credit shall survive the termination of the relevant Credit, return of Credits or Collateral, and termination of this Agreement.