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Bybit加密资产借贷条款和条件
2023-12-04 12:18:51
1 Applicability
From time to time the parties hereto may enter into transactions in which Lender will lend to Borrower certain Digital Assets (as defined herein) in an aggregate amount equivalent to up to the Maximum Loan Amount set forth in the Confirmation (as defined below) against a transfer of Collateral (as defined herein). Each such transaction shall be referred to herein as a “Loan” and, unless otherwise agreed in writing, shall be governed by this Agreement, including any supplemental terms or conditions contained in an email, or notification to Borrower. Capitalized terms not otherwise defined herein shall have the meanings provided in Section 25.
2 Loans of Digital Assets; Applicable Market
2.1 Subject to the terms and conditions of this Agreement, Borrower may, from time to time, seek to initiate a transaction in which Lender will lend Digital Assets to Borrower by delivery to Lender of a duly completed loan request via electronic communication.
2.2 A loan request is irrevocable and will not be regarded as having been duly completed unless Borrower specifies:
(a) the type and amount of Acceptable Digital Assets to be lent;
(b) the term of the Loan; and/or
(c) account number of the Account for the deposit of the Loaned Digital Assets.
2.3 Lender shall review each loan request and, acting in its sole and absolute discretion, notify Borrower whether or not it approves such loan request. Lender may reject a loan request for any reasonable reason, including by reason of any errors or omissions in the loan request relating to details of previous Loans. The approval of a loan request is not an indication of Lender’s approval of any subsequent loan requests.
2.4 If a loan request is approved, Lender will notify Borrower, via email or other notifications on the Platform, the terms of the Loan, including the type and amount of Digital Assets to be lent, the amount of Loan Fee, the amount of Collateral to be transferred by Borrower, the term and repayment date and any additional terms (“Confirmation”). Such Confirmation, the Loan Receipt Confirmation together with the Agreement and the loan request, shall constitute conclusive evidence of the terms agreed between Borrower and Lender with respect to the Loan to which that Confirmation and that loan request relate. In the event of any inconsistency between the terms of such Confirmation or loan request and this Agreement, the terms of such Confirmation or loan request shall prevail.
2.5 Notwithstanding any other provision in this Agreement regarding when a Loan commences, unless otherwise agreed, a Loan hereunder shall not be deemed to have been advanced until the Loaned Digital Assets and the Collateral therefor have been transferred in accordance with Section 15.
2.6 Each Loan shall have a term ranging from seven (7) days to one (1) year. Unless otherwise agreed, Borrower may prepay the whole or any part of a Loan provided that Borrower pays Lender no less than seven (7) days of the Loan Fee applicable to that Loan.
2.7 Borrower shall have the right to request an extension of a Loan repayment date by delivering an extension request to Lender no later than the date falling one (1) Business Day and no earlier than the date falling seven (7) Business Days prior to the applicable repayment date of such Loan. Lender shall, acting in its sole and absolute discretion, notify Borrower whether or not it agrees to the requested extension of the Loan repayment date. If Lender rejects the extension request, no extension of the Loan repayment date shall occur. Any extension is subject to no Default having occurred and being continuing on the original Loan repayment date.
2.8 Borrower shall apply all Loaned Digital Assets towards Digital Asset trading through the Account on the Platform (including but not limited to cryptocurrency arbitrage, market marker and CTA strategic trading) for the sole purpose of providing liquidity in the Applicable Market as set forth in the loan request or confirmation.
3 Transfer of Loaned Digital Assets
3.1 Unless otherwise agreed, Lender shall transfer Loaned Digital Assets to Borrower hereunder on or before the Cutoff Time within three (3) business days of the conditions set out below having been met:
(a) all information provided by Borrower in connection with this Agreement are complete and true in all material respects;
(b) Lender is satisfied that the Borrower has or will comply with the provisions of this Agreement (including, without limitation, Section 4.1 below), the Confirmation and any other conditions as agreed to by the parties; and
(c) no Default is continuing or would result from the proposed Loan.
3.2 Unless otherwise agreed, Borrower shall provide Lender with a Loan Receipt Confirmation when the Loaned Digital Assets are received by Borrower.
4 Collateral
4.1 Unless otherwise agreed, Borrower shall, prior to or concurrently with the transfer of the Loaned Digital Assets to Borrower, but in any case no later than the Close of Business on the day of such transfer, transfer to Lender an amount of Collateral such that the Leverage Ratio after such transfer is completed shall be no less than the Acceptable Leverage Ratio set forth by Lender set forth in the Confirmation.
“Leverage Ratio” means the ratio set out at https://www.bybit.com/en-US/help-center/bybitHC_Article?id=000001365&language=en as in effect at the time of the applicable Loan.
4.2 The Collateral transferred by Borrower to Lender or held by Borrower at Lender, as adjusted pursuant to Section 9, shall be security for Borrower’s obligations in respect of such Loan and for any other obligations of Borrower to Lender hereunder. Borrower hereby pledges with, assigns to, and grants Lender a continuing first priority security interest in, and a lien upon, the Collateral, which shall attach upon the transfer of the Loaned Digital Assets by Lender to Borrower and which shall be released only in accordance with Section 4.4 below.
4.3 Lender may Retransfer Collateral only after a Default by Borrower has occurred.
4.4 Except as otherwise provided herein, upon transfer to Lender of the full amount of the Loaned Digital Assets by Borrower on the day a Loan is terminated pursuant to Section 6, Lender shall be obligated to transfer the applicable Collateral transferred to Lender for that Loan (subject to and as adjusted for compliance with the LTV ratio set out in Section 9) to Borrower no later than the Cutoff Time on such day or, if such day is not a day on which a transfer of such Collateral may be effected under Section 15, the next day on which such a transfer may be effected.
4.5 If Borrower transfers Collateral to Lender, as provided in Section 4.1, and Lender does not transfer the Loaned Digital Assets to Borrower, Borrower shall have the absolute right to the return of the Collateral; and if Lender transfers Loaned Digital Assets to Borrower and Borrower does not transfer Collateral to Lender as provided in Section 4.1, Lender shall have the absolute right to the return of the Loaned Digital Assets.
4.6 If the Applicable Market includes both spot and future contracts, Borrower agrees that (i) it shall not transfer any Digital Assets in its spot account to future account on the Platform in excessive of a certain percentage of the total Loan, such percentage shall be designated in the Confirmation; and (ii) Lender may adjust the applicable leverage multiples for USDT Perpetual contracts that Borrower can trade on the Platform.
5 Fees for Loan
5.1 Unless otherwise agreed, Borrower agrees to pay Lender a loan fee (a “Loan Fee”) (or, in the event the Loan Fee is less than zero, Lender agrees to pay Borrower the Loan Fee), as set forth in the Confirmation.
5.2 Except as Borrower and Lender may otherwise agree, Loan Fees shall accrue from and including the date on which the Loaned Digital Assets are transferred to Borrower to, but excluding, the date on which such Loaned Digital Assets are returned to Lender.
5.3 Unless otherwise agreed, any Loan Fee payable hereunder shall be payable upon the earlier of (i) the fifteenth day of the month following the calendar month in which such fee was incurred and (ii) the termination of all Loans hereunder. Notwithstanding the foregoing, all Loan Fees shall be payable by Borrower immediately in the event of a Default hereunder by Borrower.
6 Termination of the Loan
6.1 Unless otherwise agreed, either party may terminate a Loan on a termination date established by notice given to the other party prior to the Close of Business on a Business Day (“Early Termination”). Unless Borrower and Lender agree to the contrary, the termination date established by a termination notice shall be a date no earlier than 10 (ten) Business Days following the date of the termination notice. In the event of Early Termination, the Borrower shall be liable to pay the Lender the penalty sum or early termination fee stated in the the Confirmation, if applicable.
(a) Notwithstanding paragraph (a) and unless otherwise agreed, Borrower may terminate a Loan on any Business Day by giving notice to Lender and transferring the Loaned Digital Assets to Lender before the Cutoff Time on such Business Day if Lender is not permitted, pursuant to Section 4.2, to Retransfer Collateral.
(b) Unless otherwise agreed, all Loans hereunder shall terminate on the date this Agreement is terminated pursuant to Section 24.2.
6.2 Unless otherwise agreed, Borrower shall, on or before the Cutoff Time on the termination date of a Loan, transfer the Loaned Digital Assets to Lender; provided, however, that upon such transfer by Borrower, Lender shall transfer the Collateral (subject to and as adjusted for compliance with the LTV ratio set out in Section 9) to Borrower in accordance with Section 4.4.
7 Rights in Respect of Loaned Digital Assets
Except as set forth in Sections 8.1 and 8.2 and as otherwise agreed by Borrower and Lender, until Loaned Digital Assets are required to be redelivered to Lender upon the termination of a Loan hereunder, Borrower shall have all of the incidents of ownership (but not including the equitable title) of the Loaned Digital Assets, including the right to transfer the Loaned Digital Assets to others.
8 Distributions
8.1 Lender shall be entitled to receive all Distributions made on or in respect of the Loaned Digital Assets which are not otherwise received by Lender, to the full extent it would be so entitled if the Loaned Digital Assets had not been lent to Borrower.
8.2 Distributions that Lender is entitled to receive pursuant to Section 8.1 shall be added to the Loaned Digital Assets on the date of distribution and shall be considered as forming part of the Loaned Digital Assets for all purposes, except that if the Loan has terminated, Borrower shall forthwith transfer the same to Lender.
8.3 Borrower shall be entitled to receive all Distributions made on or in respect of Collateral which are not otherwise received by Borrower, to the full extent it would be so entitled if the Collateral had not been transferred to Lender.
8.4 Distributions that Borrower is entitled to receive pursuant to Section 8.3 shall be added to the Collateral on the date of distribution and shall be considered as forming part of the Collateral for all purposes, except that if each Loan secured by such Collateral has terminated, Lender shall forthwith transfer the same to Borrower.
8.5 Unless otherwise agreed by the parties:
(a) If (i) Borrower is required to make a payment (a “Borrower Payment”) with respect to Distributions on Loaned Digital Assets under Sections 8.1 and 8.2 (“Digital Assets Distributions”), or (ii) Lender is required to make a payment (a “Lender Payment”) with respect to Distributions on Collateral under Sections 8.3 and 8.4 (“Collateral Distributions”), and (iii) Borrower or Lender, as the case may be (“Payor”), shall be required by law to collect any withholding or other tax, duty, fee, levy or charge required to be deducted or withheld from such Borrower Payment or Lender Payment (“Tax”), then Payor shall (subject to subsections (b) and (c) below), pay such additional amounts as may be necessary in order that the net amount of the Borrower Payment or Lender Payment received by the Lender or Borrower, as the case may be (“Payee”), after payment of such Tax equals the net amount of the Digital Assets Distribution or Collateral Distribution that would have been received if such Digital Assets Distribution or Collateral Distribution had been paid directly to the Payee.
(b) No additional amounts shall be payable to a Payee under subsection (a) above to the extent that Tax would have been imposed on a Digital Assets Distribution or Collateral Distribution paid directly to the Payee.
(c) No additional amounts shall be payable to a Payee under subsection (a) above to the extent that such Payee is entitled to an exemption from, or reduction in the rate of, Tax on a Borrower Payment or Lender Payment subject to the provision of a certificate or other documentation, but has failed timely to provide such certificate or other documentation.
(d) Each party hereto shall be deemed to represent that, as of the commencement of any Loan hereunder, no Tax would be imposed on any cash Distribution paid to it with respect to (i) Loaned Digital Assets subject to a Loan in which it is acting as Lender or (ii) Collateral for any Loan in which it is acting as Borrower, unless such party has given notice to the contrary to the other party hereto (which notice shall specify the rate at which such Tax would be imposed). Each party agrees to notify the other of any change that occurs during the term of a Loan in the rate of any Tax that would be imposed on any such cash Distributions payable to it.
8.6 To the extent that, under the provisions of Sections 8.1 through 8.5, a transfer of Digital Asset by Borrower would cause the LTV Ratio to fall below the First Benchmark Ratio, Borrower shall not be obligated to make such transfer of Digital Asset in accordance with such Sections, but shall in lieu of such transfer immediately credit the amounts that would have been transferable under such Sections to the account of Lender as shall be notified to Borrower in writing.
9 LTV Ratio
LTV Ratio” means the ratio (expressed as a percentage) as set out in https://www.bybit.com/en-US/help-center/bybitHC_Article?id=000001365&language=en_US for the respective lending product as in effect at the time of the applicable Loan.
9.1 Lender shall have the right to require Borrower to adjust the type and amount of the Acceptable Digital Assets in the Account. If at any time the amount of Acceptable Digital Assets (excluding unstable Digital Assets) in the Account exceeds the Acceptable Leverage Ratio, the Digital Assets in excess shall not be included in the calculation of the LTV Ratio.
9.2 Lender agrees that it will provide notice to Borrower if any Section 9.1 becomes applicable to Borrower.
9.3 The Parties acknowledge and agree that User shall bring its margin deposit(s) up to the level required by Lender for futures trading activities to maintain the existing position(s).
9.4 In the event that Borrower fails to bring its margin deposit(s) up to the level required by Lender for futures trading activities to maintain the existing position(s) User acknowledges and agrees that Lender may, at its option, (1) implement restrictions on general and trading functions of User’s account to reducing and closing existing positions; (2) pool in, on User’s behalf, funds from User’s other Lender wallets for the purpose to allow User to continue holding the position(s); and/or (3) liquidate, on User’s behalf, any and all remaining open positions.
10 Representations
The parties to this Agreement hereby make the following representations and warranties, which shall continue during the term of any Loan hereunder:
10.1 Each party hereto represents and warrants that (a) it has the power to execute and deliver this Agreement, to enter into the Loans contemplated hereby and to perform its obligations hereunder, (b) each person who represents and binds the other party to this Agreement an authorized representative of that party, (c) it has taken all necessary action to authorize such execution, delivery and performance, and (d) this Agreement constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms.
10.2 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 Loan and any dividends, remuneration or other funds received hereunder.
10.3 Each party hereto represents and warrants that it is acting for its own account unless it expressly specifies otherwise in writing.
10.4 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.
10.5 Borrower represents and warrants that the person who represents and binds the Borrower to this Agreement an authorized representative of the Borrower,
10.6 Lender represents and warrants that it has, or will have at the time of transfer of any Loaned Digital Assets, the right to transfer the Loaned Digital Assets subject to the terms and conditions hereof.
11 Covenants
11.1 Each party agrees to be liable as principal with respect to its obligations hereunder.
11.2 Borrower acknowledges and agrees that Lender may access and monitor the Account, and shall have the right to deduct, withdraw, liquidate and apply other measures or restrictions, for the purpose of this Agreement.
11.3 For the purpose of receipt of Loaned Digital Assets in accordance with this Agreement, 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 Account and the credentials for access such Account.
11.4 Borrower represents and warrants that it shall not, without the prior written consent of Borrower, apply the Loaned Digital Assets save as contemplated in Section 2.8, in a manner otherwise prohibited in any way under any applicable law or regulation, or in a manner that would be damaging to Lender’s interests.
12 Events of Default
All Loans hereunder may, at the option of the non-defaulting party (which option shall be deemed to have been exercised immediately upon the occurrence of an Act of Insolvency), be terminated immediately upon the occurrence of any one or more of the following events (individually, a “Default”):
12.1 if any Loaned Digital Assets shall not be applied in a manner contemplated in Section 2.8;
12.2 if any Loaned Digital Assets shall not be transferred or held at the Account with Lender upon the termination of the Loan as required by Section 6;
12.3 if any Collateral shall not be transferred to Borrower upon the termination of the Loan as required by Sections 4.4 and 6;
12.4 if Borrower shall fail to transfer Collateral as required by Section 9;
12.5 if either party (a) shall fail to transfer to the other party amounts in respect of Distributions required to be transferred by Section 8, (b) shall have been notified of such failure by the other party, and (c) shall not have cured such failure within twenty-four (24) hours of receipt of such notice;
12.6 if an Act of Insolvency occurs with respect to either party;
12.7 if Lender believes the Account has been or is used for transactions associated with money laundering and/or funds have been made, received, or retained in the Account in violation of any applicable law, rule, or regulation;
12.8 if any representation made by either party in respect of this Agreement or any Loan or Loans hereunder shall be incorrect or untrue in any material respect during the term of any Loan hereunder;
12.9 if either party notifies the other of its inability to or its intention not to perform its obligations hereunder or otherwise disaffirms, rejects or repudiates any of its obligations hereunder; or
12.10 if either party (a) shall fail to perform any material obligation under this Agreement not specifically set forth in Section 12.1 through 12.9, above, including but not limited to the payment of fees as required by Section 5, and the payment of transfer taxes as required by Section 14, (b) shall have been notified of such failure by the other party, and (c) shall not have cured such failure within twenty-four (24) hours of receipt of such notification.
The non-defaulting party shall (except upon the occurrence of an Act of Insolvency) give notice as promptly as practicable to the defaulting party of the exercise of its option to terminate all Loans hereunder pursuant to this Section 12.
13 Indemnities and Remedies
13.1 If Borrower (a) shall fail repay any Loaned Digital Assets on the relevant Loan repayment date, pay Lender Loan Fees and/or transfer amounts in respect of Distributions required to be transferred by Section 8, (b) shall have been notified of such failure by Lender, and (c) shall not have cured such failure within seventy-two (72) hours upon issuance of such notification by Lender, Lender shall have the right to withdraw an amount equal to such Loaned Digital Assets, Loan Fees and/or Distributions (“outstanding amounts”), together with liquidated damages at a rate equal to 0.05% per day on such outstanding amounts, from the Account.
13.2 If Borrower (a) fails to pay Lender Loan Fee in accordance with the terms of this Agreement, (b) shall have been notified of such failure by Lender, and (c) fails to cure such failure within seventy-two (72) hours upon issuance of such notification by Lender, Lender shall have the right to withdraw an amount equal to the outstanding Loan Fees from the Account.
13.3 If Borrower fails to comply with its obligations under Section 11.2, Lender shall have the right to apply such restrictions and measures to the Account as Lender deems necessary and shall not be liable for any losses to Borrower.
13.4 Upon the occurrence of a Default under Section 12 entitling Lender to terminate all Loans hereunder, Lender 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 Loaned Digital Assets (“Replacement Digital Assets”) in the principal market for such Loaned Digital Assets 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 Digital Assets and any amounts due to Lender under Sections 5, 8, 14 and 16. In the event that Lender shall exercise such rights, Borrower’s obligation to return a like amount of the Loaned Digital Assets shall terminate. Lender may similarly apply the Collateral and any proceeds thereof to any other obligation of Borrower under this Agreement, including Borrower’s obligations with respect to Distributions paid to Borrower (and not forwarded to Lender) in respect of Loaned Digital Assets. In the event that (i) the purchase price of Replacement Digital Assets (plus all other amounts, if any, due to Lender hereunder) exceeds (ii) the amount of the Collateral, Borrower shall be liable to Lender for the amount of such excess together with interest thereon at the rate set out in the Confirmation, from the date of such purchase until the date of payment of such excess. As security for Borrower’s obligation to pay such excess, Lender shall have, and Borrower hereby grants, a security interest in any property of Borrower then held by or for Lender and a right of setoff with respect to such property and any other amount payable by Lender to Borrower. The purchase price of Replacement Digital Assets purchased under this Section 13.4 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 Lender exercises its rights under this Section 13.4, Lender may elect in its sole discretion, in lieu of purchasing all or a portion of the Replacement Digital Assets or selling all or a portion of the Collateral, to be deemed to have made, respectively, such purchase of Replacement Digital Assets or sale of Collateral for an amount equal to the Platform’s index price therefor on the date of such exercise. Subject to Section 18, upon the satisfaction of all obligations hereunder, any remaining Collateral shall be returned to Borrower.
13.5 Upon the occurrence of a Default under Section 12 entitling Borrower to terminate all Loans hereunder, 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 Loaned Digital Assets in the principal market for such Loaned Digital Assets in a commercially reasonable manner and (c) to apply and set off the Loaned Digital Assets and any proceeds thereof against (i) the payment of the purchase price for such Replacement Collateral, (ii) Lender’s obligation to return any Collateral, and (iii) any amounts due to Borrower under Sections 5, 8 and 16. In such event, Borrower may treat the Loaned Digital Assets as its own and Lender’s obligation to return a like amount of the Collateral shall terminate. Borrower may similarly apply the Loaned Digital Assets and any proceeds thereof to any other obligation of Lender under this Agreement, including Lender’s obligations with respect to Distributions paid to Lender (and not forwarded to Borrower) in respect of Collateral. In the event that (i) the sales price received from such Loaned Digital Assets is less than (ii) the purchase price of Replacement Collateral (plus the amount of any Collateral not replaced by Borrower and all other amounts, if any, due to Borrower hereunder), Lender shall be liable to Borrower for the amount of any such deficiency, together with interest on such amounts at a rate equal to 12% from the date of such sale until the date of payment of such deficiency. As security for Lender’s obligation to pay such deficiency, Borrower shall have, and Lender hereby grants, a security interest in any property of Lender then held by or for Borrower and a right of setoff with respect to such property and any other amount payable by Borrower to Lender. The purchase price of any Replacement Collateral purchased under this Section 13.5 shall include, and the proceeds of any sale of Loaned Digital Assets 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 Borrower exercises its rights under this Section 13.5, 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 Loaned Digital Assets, to be deemed to have made, respectively, such purchase of Replacement Collateral or sale of Loaned Digital Assets for an amount equal to the Platform’s index price therefor on the date of such exercise. Subject to Section 18, upon the satisfaction of all Lender’s obligations hereunder, any remaining Loaned Digital Assets shall be returned to Lender.
13.6 Unless otherwise agreed, the parties acknowledge and agree that (a) the Loaned Digital Assets and any Collateral consisting of Digital 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 Lender, to include accrued interest to the extent not already included therein (except to the extent contrary to market practice with respect to the relevant Digital Assets).
13.7 Borrower shall promptly indemnify Lender against any cost and expenses (including legal fees), loss or liability incurred by Lender as a result of the exercise of any of the rights, powers, discretions and remedies vested in Lender by this Agreement or by law.
13.8 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.
14 Transfer Taxes
All transfer taxes with respect to the transfer of the Loaned Digital Assets by Lender to Borrower and by Borrower to Lender upon termination of the Loan and with respect to the transfer of Collateral by Borrower to Lender and by Lender to Borrower upon termination of the Loan or pursuant to Section 9 shall be paid by Borrower.
15 Transfers
All transfers by either Borrower or Lender of Loaned Digital Assets or Collateral shall be deposited into the Account and withdrawn directly by Lender in accordance with the terms of this Agreement.
16 Contractual Currency
16.1 Borrower and Lender agree that (a) any payment in respect of a Distribution under Section 8 shall be made in the type of Digital Assets in which the underlying Distribution of Digital Asset was made, (b) any return of Digital Asset shall be made in the type of Digital Assets in which the underlying transfer of Digital Asset was made, and (c) any other payment of Digital Asset in connection with a Loan under this Agreement shall be in the type of Digital Assets agreed upon by Borrower and Lender in connection with such Loan (the type of Digital Assets established under clause (a), (b) or (c) 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 Digital 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 policy and procedures of the Platform, purchase with such other type of Digital Assets (after deduction of any premium and costs of exchange) on the day next succeeding its receipt of such type of Digital Assets.
16.2 If for any reason the amount in the Contractual Currency received under Section 16.1, including amounts received after conversion of any recovery under any judgment or order expressed in a type of Digital 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.
16.3 If for any reason the amount in the Contractual Currency received under Section 16.1 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.
17 Confidentiality
17.1 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.
17.2 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, copy rights or other rights of a third-party.
17.3 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 have been so returned or destroyed.
17.4 All confidentiality obligations hereunder shall survive the termination of any Loan, return of Loaned Digital Assets or Collateral and termination of this Agreement.
18 Single Agreement
Borrower and Lender acknowledge that, and have entered into this Agreement in reliance on the fact that, all Loans hereunder constitute a single business and contractual relationship and have been entered into in consideration of each other. Accordingly, Borrower and Lender hereby agree that payments, deliveries and other transfers made by either of them in respect of any Loan shall be deemed to have been made in consideration of payments, deliveries and other transfers in respect of any other Loan hereunder, and the obligations to make any such payments, deliveries and other transfers may be applied against each other and netted. In addition, Borrower and Lender acknowledge that, and have entered into this Agreement in reliance on the fact that, all Loans hereunder have been entered into in consideration of each other. Accordingly, Borrower and Lender hereby agree that (a) each shall perform all of its obligations in respect of each Loan hereunder, and that a default in the performance of any such obligation by Borrower or by Lender (the “Defaulting Party”) in any Loan hereunder shall constitute a default by the Defaulting Party under all such Loans hereunder, and (b) the non-defaulting party shall be entitled to set off claims and apply property held by it in respect of any Loan hereunder against obligations owing to it in respect of any other Loan with the Defaulting Party.
19 Applicable Law and Dispute Resolution
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SINGAPORE WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
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 arbitrators. The language of the arbitration shall be English.
20 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.
21 Survival of Indemnities and Remedies
All indemnities and remedies hereunder and all obligations with respect to any Loan shall survive the termination of the relevant Loan, return of Loaned Digital Assets or Collateral and termination of this Agreement.
22 Notices and Other Communications
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 with respect to it in Schedule A hereto, 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 Business Days prior to such change in the manner aforesaid.
23 SUBMISSION TO JURISDICTION
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 LOAN 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.
24 Miscellaneous
24.1 In the event of any loss, hack or theft of cryptocurrencies from the Account, Borrower acknowledges and confirms that Borrower has no right(s), claim(s) or cause(s) of action in any way whatsoever against Lender, and to the maximum extent permitted by applicable laws, Lender expressly disclaims its liability and shall in no case be liable to Borrower for the loss of possession of the credentials for accessing, or loss or destruction of the private keys, of the Account, in any manner and to any extent.
24.2 Unless otherwise agreed in writing by the parties hereto, this Agreement shall terminate on the date falling twelve (12) months after the date of this Agreement.
24.3 A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act (Chapter 53B of Singapore) to enforce any term of this Agreement.
24.4 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 loans of Digital Assets between Borrower and Lender. Assignment by Lender of its rights and/or obligations under this Agreement shall be allowed and effective upon receipt by Borrower of assignment notice from Lender. This Agreement shall not be assigned by Borrower without the prior written consent of Lender and any attempted assignment by 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 Borrower and Lender 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 Loan 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 enforceability of any such other provision or agreement.
2023-12-04 12:18:51BYBIT DIGITAL ASSETS LOAN
TERMS AND CONDITIONS
These Terms and Conditions and the Confirmation as defined in Clause 2.4 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 “Lender”, “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 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 Applicability
From time to time the parties hereto may enter into transactions in which Lender will lend to Borrower certain Digital Assets (as defined herein) in an aggregate amount equivalent to up to the Maximum Loan Amount set forth in the Confirmation (as defined below) against a transfer of Collateral (as defined herein). Each such transaction shall be referred to herein as a “Loan” and, unless otherwise agreed in writing, shall be governed by this Agreement, including any supplemental terms or conditions contained in an email, or notification to Borrower. Capitalized terms not otherwise defined herein shall have the meanings provided in Section 25.
2 Loans of Digital Assets; Applicable Market
2.1 Subject to the terms and conditions of this Agreement, Borrower may, from time to time, seek to initiate a transaction in which Lender will lend Digital Assets to Borrower by delivery to Lender of a duly completed loan request via electronic communication.
2.2 A loan request is irrevocable and will not be regarded as having been duly completed unless Borrower specifies:
(a) the type and amount of Acceptable Digital Assets to be lent;
(b) the term of the Loan; and/or
(c) account number of the Account for the deposit of the Loaned Digital Assets.
2.3 Lender shall review each loan request and, acting in its sole and absolute discretion, notify Borrower whether or not it approves such loan request. Lender may reject a loan request for any reasonable reason, including by reason of any errors or omissions in the loan request relating to details of previous Loans. The approval of a loan request is not an indication of Lender’s approval of any subsequent loan requests.
2.4 If a loan request is approved, Lender will notify Borrower, via email or other notifications on the Platform, the terms of the Loan, including the type and amount of Digital Assets to be lent, the amount of Loan Fee, the amount of Collateral to be transferred by Borrower, the term and repayment date and any additional terms (“Confirmation”). Such Confirmation, the Loan Receipt Confirmation together with the Agreement and the loan request, shall constitute conclusive evidence of the terms agreed between Borrower and Lender with respect to the Loan to which that Confirmation and that loan request relate. In the event of any inconsistency between the terms of such Confirmation or loan request and this Agreement, the terms of such Confirmation or loan request shall prevail.
2.5 Notwithstanding any other provision in this Agreement regarding when a Loan commences, unless otherwise agreed, a Loan hereunder shall not be deemed to have been advanced until the Loaned Digital Assets and the Collateral therefor have been transferred in accordance with Section 15.
2.6 Each Loan shall have a term ranging from seven (7) days to one (1) year. Unless otherwise agreed, Borrower may prepay the whole or any part of a Loan provided that Borrower pays Lender no less than seven (7) days of the Loan Fee applicable to that Loan.
2.7 Borrower shall have the right to request an extension of a Loan repayment date by delivering an extension request to Lender no later than the date falling one (1) Business Day and no earlier than the date falling seven (7) Business Days prior to the applicable repayment date of such Loan. Lender shall, acting in its sole and absolute discretion, notify Borrower whether or not it agrees to the requested extension of the Loan repayment date. If Lender rejects the extension request, no extension of the Loan repayment date shall occur. Any extension is subject to no Default having occurred and being continuing on the original Loan repayment date.
2.8 Borrower shall apply all Loaned Digital Assets towards Digital Asset trading through the Account on the Platform (including but not limited to cryptocurrency arbitrage, market marker and CTA strategic trading) for the sole purpose of providing liquidity in the Applicable Market as set forth in the loan request or confirmation.
3 Transfer of Loaned Digital Assets
3.1 Unless otherwise agreed, Lender shall transfer Loaned Digital Assets to Borrower hereunder on or before the Cutoff Time within three (3) business days of the conditions set out below having been met:
(a) all information provided by Borrower in connection with this Agreement are complete and true in all material respects;
(b) Lender is satisfied that the Borrower has or will comply with the provisions of this Agreement (including, without limitation, Section 4.1 below), the Confirmation and any other conditions as agreed to by the parties; and
(c) no Default is continuing or would result from the proposed Loan.
3.2 Unless otherwise agreed, Borrower shall provide Lender with a Loan Receipt Confirmation when the Loaned Digital Assets are received by Borrower.
4 Collateral
4.1 Unless otherwise agreed, Borrower shall, prior to or concurrently with the transfer of the Loaned Digital Assets to Borrower, but in any case no later than the Close of Business on the day of such transfer, transfer to Lender an amount of Collateral such that the Leverage Ratio after such transfer is completed shall be no less than the Acceptable Leverage Ratio set forth by Lender set forth in the Confirmation.
“Leverage Ratio” means the ratio set out at https://www.bybit.com/en-US/help-center/bybitHC_Article?id=000001365&language=en as in effect at the time of the applicable Loan.
4.2 The Collateral transferred by Borrower to Lender or held by Borrower at Lender, as adjusted pursuant to Section 9, shall be security for Borrower’s obligations in respect of such Loan and for any other obligations of Borrower to Lender hereunder. Borrower hereby pledges with, assigns to, and grants Lender a continuing first priority security interest in, and a lien upon, the Collateral, which shall attach upon the transfer of the Loaned Digital Assets by Lender to Borrower and which shall be released only in accordance with Section 4.4 below.
4.3 Lender may Retransfer Collateral only after a Default by Borrower has occurred.
4.4 Except as otherwise provided herein, upon transfer to Lender of the full amount of the Loaned Digital Assets by Borrower on the day a Loan is terminated pursuant to Section 6, Lender shall be obligated to transfer the applicable Collateral transferred to Lender for that Loan (subject to and as adjusted for compliance with the LTV ratio set out in Section 9) to Borrower no later than the Cutoff Time on such day or, if such day is not a day on which a transfer of such Collateral may be effected under Section 15, the next day on which such a transfer may be effected.
4.5 If Borrower transfers Collateral to Lender, as provided in Section 4.1, and Lender does not transfer the Loaned Digital Assets to Borrower, Borrower shall have the absolute right to the return of the Collateral; and if Lender transfers Loaned Digital Assets to Borrower and Borrower does not transfer Collateral to Lender as provided in Section 4.1, Lender shall have the absolute right to the return of the Loaned Digital Assets.
4.6 If the Applicable Market includes both spot and future contracts, Borrower agrees that (i) it shall not transfer any Digital Assets in its spot account to future account on the Platform in excessive of a certain percentage of the total Loan, such percentage shall be designated in the Confirmation; and (ii) Lender may adjust the applicable leverage multiples for USDT Perpetual contracts that Borrower can trade on the Platform.
5 Fees for Loan
5.1 Unless otherwise agreed, Borrower agrees to pay Lender a loan fee (a “Loan Fee”) (or, in the event the Loan Fee is less than zero, Lender agrees to pay Borrower the Loan Fee), as set forth in the Confirmation.
5.2 Except as Borrower and Lender may otherwise agree, Loan Fees shall accrue from and including the date on which the Loaned Digital Assets are transferred to Borrower to, but excluding, the date on which such Loaned Digital Assets are returned to Lender.
5.3 Unless otherwise agreed, any Loan Fee payable hereunder shall be payable upon the earlier of (i) the fifteenth day of the month following the calendar month in which such fee was incurred and (ii) the termination of all Loans hereunder. Notwithstanding the foregoing, all Loan Fees shall be payable by Borrower immediately in the event of a Default hereunder by Borrower.
6 Termination of the Loan
6.1 Unless otherwise agreed, either party may terminate a Loan on a termination date established by notice given to the other party prior to the Close of Business on a Business Day (“Early Termination”). Unless Borrower and Lender agree to the contrary, the termination date established by a termination notice shall be a date no earlier than 10 (ten) Business Days following the date of the termination notice. In the event of Early Termination, the Borrower shall be liable to pay the Lender the penalty sum or early termination fee stated in the the Confirmation, if applicable.
(a) Notwithstanding paragraph (a) and unless otherwise agreed, Borrower may terminate a Loan on any Business Day by giving notice to Lender and transferring the Loaned Digital Assets to Lender before the Cutoff Time on such Business Day if Lender is not permitted, pursuant to Section 4.2, to Retransfer Collateral.
(b) Unless otherwise agreed, all Loans hereunder shall terminate on the date this Agreement is terminated pursuant to Section 24.2.
6.2 Unless otherwise agreed, Borrower shall, on or before the Cutoff Time on the termination date of a Loan, transfer the Loaned Digital Assets to Lender; provided, however, that upon such transfer by Borrower, Lender shall transfer the Collateral (subject to and as adjusted for compliance with the LTV ratio set out in Section 9) to Borrower in accordance with Section 4.4.
7 Rights in Respect of Loaned Digital Assets
Except as set forth in Sections 8.1 and 8.2 and as otherwise agreed by Borrower and Lender, until Loaned Digital Assets are required to be redelivered to Lender upon the termination of a Loan hereunder, Borrower shall have all of the incidents of ownership (but not including the equitable title) of the Loaned Digital Assets, including the right to transfer the Loaned Digital Assets to others.
8 Distributions
8.1 Lender shall be entitled to receive all Distributions made on or in respect of the Loaned Digital Assets which are not otherwise received by Lender, to the full extent it would be so entitled if the Loaned Digital Assets had not been lent to Borrower.
8.2 Distributions that Lender is entitled to receive pursuant to Section 8.1 shall be added to the Loaned Digital Assets on the date of distribution and shall be considered as forming part of the Loaned Digital Assets for all purposes, except that if the Loan has terminated, Borrower shall forthwith transfer the same to Lender.
8.3 Borrower shall be entitled to receive all Distributions made on or in respect of Collateral which are not otherwise received by Borrower, to the full extent it would be so entitled if the Collateral had not been transferred to Lender.
8.4 Distributions that Borrower is entitled to receive pursuant to Section 8.3 shall be added to the Collateral on the date of distribution and shall be considered as forming part of the Collateral for all purposes, except that if each Loan secured by such Collateral has terminated, Lender shall forthwith transfer the same to Borrower.
8.5 Unless otherwise agreed by the parties:
(a) If (i) Borrower is required to make a payment (a “Borrower Payment”) with respect to Distributions on Loaned Digital Assets under Sections 8.1 and 8.2 (“Digital Assets Distributions”), or (ii) Lender is required to make a payment (a “Lender Payment”) with respect to Distributions on Collateral under Sections 8.3 and 8.4 (“Collateral Distributions”), and (iii) Borrower or Lender, as the case may be (“Payor”), shall be required by law to collect any withholding or other tax, duty, fee, levy or charge required to be deducted or withheld from such Borrower Payment or Lender Payment (“Tax”), then Payor shall (subject to subsections (b) and (c) below), pay such additional amounts as may be necessary in order that the net amount of the Borrower Payment or Lender Payment received by the Lender or Borrower, as the case may be (“Payee”), after payment of such Tax equals the net amount of the Digital Assets Distribution or Collateral Distribution that would have been received if such Digital Assets Distribution or Collateral Distribution had been paid directly to the Payee.
(b) No additional amounts shall be payable to a Payee under subsection (a) above to the extent that Tax would have been imposed on a Digital Assets Distribution or Collateral Distribution paid directly to the Payee.
(c) No additional amounts shall be payable to a Payee under subsection (a) above to the extent that such Payee is entitled to an exemption from, or reduction in the rate of, Tax on a Borrower Payment or Lender Payment subject to the provision of a certificate or other documentation, but has failed timely to provide such certificate or other documentation.
(d) Each party hereto shall be deemed to represent that, as of the commencement of any Loan hereunder, no Tax would be imposed on any cash Distribution paid to it with respect to (i) Loaned Digital Assets subject to a Loan in which it is acting as Lender or (ii) Collateral for any Loan in which it is acting as Borrower, unless such party has given notice to the contrary to the other party hereto (which notice shall specify the rate at which such Tax would be imposed). Each party agrees to notify the other of any change that occurs during the term of a Loan in the rate of any Tax that would be imposed on any such cash Distributions payable to it.
8.6 To the extent that, under the provisions of Sections 8.1 through 8.5, a transfer of Digital Asset by Borrower would cause the LTV Ratio to fall below the First Benchmark Ratio, Borrower shall not be obligated to make such transfer of Digital Asset in accordance with such Sections, but shall in lieu of such transfer immediately credit the amounts that would have been transferable under such Sections to the account of Lender as shall be notified to Borrower in writing.
9 LTV Ratio
LTV Ratio” means the ratio (expressed as a percentage) as set out in https://www.bybit.com/en-US/help-center/bybitHC_Article?id=000001365&language=en_US for the respective lending product as in effect at the time of the applicable Loan.
9.1 Lender shall have the right to require Borrower to adjust the type and amount of the Acceptable Digital Assets in the Account. If at any time the amount of Acceptable Digital Assets (excluding unstable Digital Assets) in the Account exceeds the Acceptable Leverage Ratio, the Digital Assets in excess shall not be included in the calculation of the LTV Ratio.
9.2 Lender agrees that it will provide notice to Borrower if any Section 9.1 becomes applicable to Borrower.
9.3 The Parties acknowledge and agree that User shall bring its margin deposit(s) up to the level required by Lender for futures trading activities to maintain the existing position(s).
9.4 In the event that Borrower fails to bring its margin deposit(s) up to the level required by Lender for futures trading activities to maintain the existing position(s) User acknowledges and agrees that Lender may, at its option, (1) implement restrictions on general and trading functions of User’s account to reducing and closing existing positions; (2) pool in, on User’s behalf, funds from User’s other Lender wallets for the purpose to allow User to continue holding the position(s); and/or (3) liquidate, on User’s behalf, any and all remaining open positions.
10 Representations
The parties to this Agreement hereby make the following representations and warranties, which shall continue during the term of any Loan hereunder:
10.1 Each party hereto represents and warrants that (a) it has the power to execute and deliver this Agreement, to enter into the Loans contemplated hereby and to perform its obligations hereunder, (b) each person who represents and binds the other party to this Agreement an authorized representative of that party, (c) it has taken all necessary action to authorize such execution, delivery and performance, and (d) this Agreement constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms.
10.2 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 Loan and any dividends, remuneration or other funds received hereunder.
10.3 Each party hereto represents and warrants that it is acting for its own account unless it expressly specifies otherwise in writing.
10.4 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.
10.5 Borrower represents and warrants that the person who represents and binds the Borrower to this Agreement an authorized representative of the Borrower,
10.6 Lender represents and warrants that it has, or will have at the time of transfer of any Loaned Digital Assets, the right to transfer the Loaned Digital Assets subject to the terms and conditions hereof.
11 Covenants
11.1 Each party agrees to be liable as principal with respect to its obligations hereunder.
11.2 Borrower acknowledges and agrees that Lender may access and monitor the Account, and shall have the right to deduct, withdraw, liquidate and apply other measures or restrictions, for the purpose of this Agreement.
11.3 For the purpose of receipt of Loaned Digital Assets in accordance with this Agreement, 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 Account and the credentials for access such Account.
11.4 Borrower represents and warrants that it shall not, without the prior written consent of Borrower, apply the Loaned Digital Assets save as contemplated in Section 2.8, in a manner otherwise prohibited in any way under any applicable law or regulation, or in a manner that would be damaging to Lender’s interests.
12 Events of Default
All Loans hereunder may, at the option of the non-defaulting party (which option shall be deemed to have been exercised immediately upon the occurrence of an Act of Insolvency), be terminated immediately upon the occurrence of any one or more of the following events (individually, a “Default”):
12.1 if any Loaned Digital Assets shall not be applied in a manner contemplated in Section 2.8;
12.2 if any Loaned Digital Assets shall not be transferred or held at the Account with Lender upon the termination of the Loan as required by Section 6;
12.3 if any Collateral shall not be transferred to Borrower upon the termination of the Loan as required by Sections 4.4 and 6;
12.4 if Borrower shall fail to transfer Collateral as required by Section 9;
12.5 if either party (a) shall fail to transfer to the other party amounts in respect of Distributions required to be transferred by Section 8, (b) shall have been notified of such failure by the other party, and (c) shall not have cured such failure within twenty-four (24) hours of receipt of such notice;
12.6 if an Act of Insolvency occurs with respect to either party;
12.7 if Lender believes the Account has been or is used for transactions associated with money laundering and/or funds have been made, received, or retained in the Account in violation of any applicable law, rule, or regulation;
12.8 if any representation made by either party in respect of this Agreement or any Loan or Loans hereunder shall be incorrect or untrue in any material respect during the term of any Loan hereunder;
12.9 if either party notifies the other of its inability to or its intention not to perform its obligations hereunder or otherwise disaffirms, rejects or repudiates any of its obligations hereunder; or
12.10 if either party (a) shall fail to perform any material obligation under this Agreement not specifically set forth in Section 12.1 through 12.9, above, including but not limited to the payment of fees as required by Section 5, and the payment of transfer taxes as required by Section 14, (b) shall have been notified of such failure by the other party, and (c) shall not have cured such failure within twenty-four (24) hours of receipt of such notification.
The non-defaulting party shall (except upon the occurrence of an Act of Insolvency) give notice as promptly as practicable to the defaulting party of the exercise of its option to terminate all Loans hereunder pursuant to this Section 12.
13 Indemnities and Remedies
13.1 If Borrower (a) shall fail repay any Loaned Digital Assets on the relevant Loan repayment date, pay Lender Loan Fees and/or transfer amounts in respect of Distributions required to be transferred by Section 8, (b) shall have been notified of such failure by Lender, and (c) shall not have cured such failure within seventy-two (72) hours upon issuance of such notification by Lender, Lender shall have the right to withdraw an amount equal to such Loaned Digital Assets, Loan Fees and/or Distributions (“outstanding amounts”), together with liquidated damages at a rate equal to 0.05% per day on such outstanding amounts, from the Account.
13.2 If Borrower (a) fails to pay Lender Loan Fee in accordance with the terms of this Agreement, (b) shall have been notified of such failure by Lender, and (c) fails to cure such failure within seventy-two (72) hours upon issuance of such notification by Lender, Lender shall have the right to withdraw an amount equal to the outstanding Loan Fees from the Account.
13.3 If Borrower fails to comply with its obligations under Section 11.2, Lender shall have the right to apply such restrictions and measures to the Account as Lender deems necessary and shall not be liable for any losses to Borrower.
13.4 Upon the occurrence of a Default under Section 12 entitling Lender to terminate all Loans hereunder, Lender 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 Loaned Digital Assets (“Replacement Digital Assets”) in the principal market for such Loaned Digital Assets 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 Digital Assets and any amounts due to Lender under Sections 5, 8, 14 and 16. In the event that Lender shall exercise such rights, Borrower’s obligation to return a like amount of the Loaned Digital Assets shall terminate. Lender may similarly apply the Collateral and any proceeds thereof to any other obligation of Borrower under this Agreement, including Borrower’s obligations with respect to Distributions paid to Borrower (and not forwarded to Lender) in respect of Loaned Digital Assets. In the event that (i) the purchase price of Replacement Digital Assets (plus all other amounts, if any, due to Lender hereunder) exceeds (ii) the amount of the Collateral, Borrower shall be liable to Lender for the amount of such excess together with interest thereon at the rate set out in the Confirmation, from the date of such purchase until the date of payment of such excess. As security for Borrower’s obligation to pay such excess, Lender shall have, and Borrower hereby grants, a security interest in any property of Borrower then held by or for Lender and a right of setoff with respect to such property and any other amount payable by Lender to Borrower. The purchase price of Replacement Digital Assets purchased under this Section 13.4 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 Lender exercises its rights under this Section 13.4, Lender may elect in its sole discretion, in lieu of purchasing all or a portion of the Replacement Digital Assets or selling all or a portion of the Collateral, to be deemed to have made, respectively, such purchase of Replacement Digital Assets or sale of Collateral for an amount equal to the Platform’s index price therefor on the date of such exercise. Subject to Section 18, upon the satisfaction of all obligations hereunder, any remaining Collateral shall be returned to Borrower.
13.5 Upon the occurrence of a Default under Section 12 entitling Borrower to terminate all Loans hereunder, 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 Loaned Digital Assets in the principal market for such Loaned Digital Assets in a commercially reasonable manner and (c) to apply and set off the Loaned Digital Assets and any proceeds thereof against (i) the payment of the purchase price for such Replacement Collateral, (ii) Lender’s obligation to return any Collateral, and (iii) any amounts due to Borrower under Sections 5, 8 and 16. In such event, Borrower may treat the Loaned Digital Assets as its own and Lender’s obligation to return a like amount of the Collateral shall terminate. Borrower may similarly apply the Loaned Digital Assets and any proceeds thereof to any other obligation of Lender under this Agreement, including Lender’s obligations with respect to Distributions paid to Lender (and not forwarded to Borrower) in respect of Collateral. In the event that (i) the sales price received from such Loaned Digital Assets is less than (ii) the purchase price of Replacement Collateral (plus the amount of any Collateral not replaced by Borrower and all other amounts, if any, due to Borrower hereunder), Lender shall be liable to Borrower for the amount of any such deficiency, together with interest on such amounts at a rate equal to 12% from the date of such sale until the date of payment of such deficiency. As security for Lender’s obligation to pay such deficiency, Borrower shall have, and Lender hereby grants, a security interest in any property of Lender then held by or for Borrower and a right of setoff with respect to such property and any other amount payable by Borrower to Lender. The purchase price of any Replacement Collateral purchased under this Section 13.5 shall include, and the proceeds of any sale of Loaned Digital Assets 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 Borrower exercises its rights under this Section 13.5, 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 Loaned Digital Assets, to be deemed to have made, respectively, such purchase of Replacement Collateral or sale of Loaned Digital Assets for an amount equal to the Platform’s index price therefor on the date of such exercise. Subject to Section 18, upon the satisfaction of all Lender’s obligations hereunder, any remaining Loaned Digital Assets shall be returned to Lender.
13.6 Unless otherwise agreed, the parties acknowledge and agree that (a) the Loaned Digital Assets and any Collateral consisting of Digital 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 Lender, to include accrued interest to the extent not already included therein (except to the extent contrary to market practice with respect to the relevant Digital Assets).
13.7 Borrower shall promptly indemnify Lender against any cost and expenses (including legal fees), loss or liability incurred by Lender as a result of the exercise of any of the rights, powers, discretions and remedies vested in Lender by this Agreement or by law.
13.8 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.
14 Transfer Taxes
All transfer taxes with respect to the transfer of the Loaned Digital Assets by Lender to Borrower and by Borrower to Lender upon termination of the Loan and with respect to the transfer of Collateral by Borrower to Lender and by Lender to Borrower upon termination of the Loan or pursuant to Section 9 shall be paid by Borrower.
15 Transfers
All transfers by either Borrower or Lender of Loaned Digital Assets or Collateral shall be deposited into the Account and withdrawn directly by Lender in accordance with the terms of this Agreement.
16 Contractual Currency
16.1 Borrower and Lender agree that (a) any payment in respect of a Distribution under Section 8 shall be made in the type of Digital Assets in which the underlying Distribution of Digital Asset was made, (b) any return of Digital Asset shall be made in the type of Digital Assets in which the underlying transfer of Digital Asset was made, and (c) any other payment of Digital Asset in connection with a Loan under this Agreement shall be in the type of Digital Assets agreed upon by Borrower and Lender in connection with such Loan (the type of Digital Assets established under clause (a), (b) or (c) 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 Digital 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 policy and procedures of the Platform, purchase with such other type of Digital Assets (after deduction of any premium and costs of exchange) on the day next succeeding its receipt of such type of Digital Assets.
16.2 If for any reason the amount in the Contractual Currency received under Section 16.1, including amounts received after conversion of any recovery under any judgment or order expressed in a type of Digital 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.
16.3 If for any reason the amount in the Contractual Currency received under Section 16.1 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.
17 Confidentiality
17.1 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.
17.2 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, copy rights or other rights of a third-party.
17.3 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 have been so returned or destroyed.
17.4 All confidentiality obligations hereunder shall survive the termination of any Loan, return of Loaned Digital Assets or Collateral and termination of this Agreement.
18 Single Agreement
Borrower and Lender acknowledge that, and have entered into this Agreement in reliance on the fact that, all Loans hereunder constitute a single business and contractual relationship and have been entered into in consideration of each other. Accordingly, Borrower and Lender hereby agree that payments, deliveries and other transfers made by either of them in respect of any Loan shall be deemed to have been made in consideration of payments, deliveries and other transfers in respect of any other Loan hereunder, and the obligations to make any such payments, deliveries and other transfers may be applied against each other and netted. In addition, Borrower and Lender acknowledge that, and have entered into this Agreement in reliance on the fact that, all Loans hereunder have been entered into in consideration of each other. Accordingly, Borrower and Lender hereby agree that (a) each shall perform all of its obligations in respect of each Loan hereunder, and that a default in the performance of any such obligation by Borrower or by Lender (the “Defaulting Party”) in any Loan hereunder shall constitute a default by the Defaulting Party under all such Loans hereunder, and (b) the non-defaulting party shall be entitled to set off claims and apply property held by it in respect of any Loan hereunder against obligations owing to it in respect of any other Loan with the Defaulting Party.
19 Applicable Law and Dispute Resolution
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SINGAPORE WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
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 arbitrators. The language of the arbitration shall be English.
20 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.
21 Survival of Indemnities and Remedies
All indemnities and remedies hereunder and all obligations with respect to any Loan shall survive the termination of the relevant Loan, return of Loaned Digital Assets or Collateral and termination of this Agreement.
22 Notices and Other Communications
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 with respect to it in Schedule A hereto, 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 Business Days prior to such change in the manner aforesaid.
23 SUBMISSION TO JURISDICTION
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 LOAN 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.
24 Miscellaneous
24.1 In the event of any loss, hack or theft of cryptocurrencies from the Account, Borrower acknowledges and confirms that Borrower has no right(s), claim(s) or cause(s) of action in any way whatsoever against Lender, and to the maximum extent permitted by applicable laws, Lender expressly disclaims its liability and shall in no case be liable to Borrower for the loss of possession of the credentials for accessing, or loss or destruction of the private keys, of the Account, in any manner and to any extent.
24.2 Unless otherwise agreed in writing by the parties hereto, this Agreement shall terminate on the date falling twelve (12) months after the date of this Agreement.
24.3 A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act (Chapter 53B of Singapore) to enforce any term of this Agreement.
24.4 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 loans of Digital Assets between Borrower and Lender. Assignment by Lender of its rights and/or obligations under this Agreement shall be allowed and effective upon receipt by Borrower of assignment notice from Lender. This Agreement shall not be assigned by Borrower without the prior written consent of Lender and any attempted assignment by 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 Borrower and Lender 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 Loan 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 enforceability of any such other provision or agreement.
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