25.1 The Client Agreement and the Facility Documents shall be binding on, and enure to the benefit of, the Bank and the Client and their respective successors and assigns, except that the Client’s rights and obligations under the Client Agreement and the Facility Documents (including the credit balance(s) of the Account(s)) cannot in any way be assigned, transferred or charged to any third party whether by way of security or otherwise howsoever.
25.2 The Bank may, at any time and from time to time, for any reason as it shall in its absolute discretion deem fit, including on any request by a court or authority of any jurisdiction (whether in Singapore or in any other jurisdiction and/or whether received by the Bank or otherwise), assign, transfer or novate to any person(s) (whether in Singapore or in any other jurisdiction, including any Affiliate and head office of the Bank) any or all of the Bank’s rights and obligations pursuant to the Client Agreement, the Facility Documents and any other agreement in respect of any Account(s), Service(s), Facility(ies) or Transaction(s) and in connection therewith, the Bank may make payment or deliver any or all Assets, Collateral or Margin to such person(s), who shall thereupon assume all obligations of the Bank, and become vested with all the powers and rights given to the Bank, in the Client Agreement, the Facility Documents or in the agreement(s) transferred, and the Bank shall be relieved and fully discharged from any liability or responsibility with respect to such rights, obligations, agreement(s), Assets, Collateral or Margin so assigned, transferred or novated.
25.3 The Bank may at any time and from time to time change the office from or through which any Facility is provided or made available or at which any transaction relating to any of the Account(s), Service(s), Facility(ies) or Transaction(s) is provided or made available or at which any of the Account(s), Service(s), Facility(ies) or Transaction(s) is booked, recorded or affected, or through which it makes or receives payments or deliveries for the purpose of any of the Account(s), Service(s), Facility(ies) or Transaction(s).
25.4 The Client undertakes to execute (and shall procure that each other Security Party executes) all such instruments or documents and do all such acts or deeds (at the Client’s own cost) as may be required by the Bank in connection with any such assignment, transfer, novation or change referred to in this Clause 25. Without prejudice to the generality of this clause, any failure by the Client to execute any instrument or document and do all such acts or deeds, if required (at the Client’s own cost) shall not affect the validity of the assignment, transfer, novation or change referred to in this Clause 25.
26 AMENDMENTS
The Bank shall have the right, by notice in writing, to add to, alter, vary, supplement or modify all or any of the terms of the Client Agreement and the Facility Documents at any time in its absolute discretion, and such additions, alterations, variations, supplements or modifications shall be effective on and from the date specified by the Bank in its notice sent to the Client (which shall be binding upon receipt, or deemed receipt, by the Client) in accordance with the Client Agreement and the Facility Documents or, if no such date is specified, on and from the date of such notice.
27 ENTIRE AGREEMENT
The Client Agreement and the Facility Documents constitute the entire agreement and understanding of the Client and the Bank with respect to its subject matter. Each of the Client and the Bank acknowledges that in entering into the Client Agreement and the Facility Documents it has not relied on any oral or written representation, warranty or other assurance (except as provided for or referred to in the Client Agreement or the Facility Documents) and waives all rights and remedies which might otherwise be available to it in respect thereof, except that nothing in the Client Agreement or the Facility Documents will limit or exclude any liability of the Client or the Bank for fraud.
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28 CONFLICTS OF INTEREST
28.1 The Bank may (without prior consent from the Client) effect Transactions for or on behalf of the Client through the agency of and/or with a counterparty which is related to the Bank whether directly or indirectly or through or with another client of the Bank even if a conflict of interest may arise. The Client acknowledges that the Bank may be dealing with Affiliates or be buying, selling or investing in financial products, schemes or instruments that may be issued, operated, underwritten, offered, advised, managed or arranged by Affiliates and as such the Bank may be subject to conflicts of interest. The Bank may also (without prior consent from the Client) effect Transactions for or on behalf of the Client in which the Bank or its Affiliates has a direct or indirect interest (whether material or not). Pursuant to Applicable Laws including regulations issued pursuant to the Securities and Futures Act, the Client hereby consents to the Bank buying from or selling to it any securities and/or futures contract for (a) the Bank’s own account, (b) the account of any person to which the Bank is associated or connected with or which it and/or its directors directly or indirectly control, including its Affiliates, or (c) any account in which the Bank has an interest directly or indirectly.
28.2 Subject to the Bank taking reasonable care to ascertain that the terms are within acceptable market rates at the relevant time, the Bank, any of its Agents and/or any other Affiliate may at any time have an interest in a transaction, including acting as agent for another party, acting as principal in buying or selling its own property, holding significant long or short positions, receiving and retaining commission from other parties to a transaction, executing a transaction with prior knowledge of other related transactions, being a holder, dealer or market maker in Securities or other investments purchased or sold by the Client, taking the opposite positions in Securities or other investments purchased or sold by the Client, be represented on the board of the issuer of any Securities represented in any of the investments that the Client may make or otherwise participating or having an interest in an investment or issue or issuer of Securities.
28.3 The Bank may from time to time, as principal or agent, have positions in, or may buy or sell, or make a market in any Securities, currencies, financial instruments or other assets relating to or underlying an Alternative Investment which the Client has an interest in. Without prejudice to other terms in the Client Agreement, the Bank or its Affiliates may provide other services to and/
or have officers who serve as directors of the corresponding persons and/or entities of the Alternative Investment. The Bank or its Affiliates may engage in hedging activities which include financial instruments related to the Alternative Investments. The Bank or its Affiliates may adjust or liquidate these hedge positions at any time. Such transactions by the Bank or its Affiliates may have significant effects on the relevant markets. The Bank and its Affiliates accept no liability if the Client suffers any Loss as a result thereof.
28.4 The Client acknowledges and agrees that the Bank, its Agents and/or Affiliates may retain for its sole benefit, Remuneration paid or given to the Bank, its Agents and/or Affiliates, by any Agent or third party in connection with the provision of the Services by the Bank and/or in respect of any Transaction whether the Bank is acting as principal or agent. The Bank, its Agents and/or Affiliates shall not be liable to account to the Client for any Remuneration received by the Bank, its Agents and/or its Affiliates from or by reason of such Services and/or Transactions.
28.5 The Client agrees that the Bank is not obliged to notify the Client of the amount of Remuneration received or retained by the Bank, its Agents and/or Affiliates and the Client releases the Bank, its Agents and/or Affiliates from any and all claims it may have against the Bank and/or its Affiliates arising from conflicts of interest and/or the receipt or retention of any Remuneration. The Bank shall not be liable for all and any Loss which may result from any conflict of interest.
28.6 The Client authorises the Bank to pay charges, commissions, rebates, retrocessions and other fees to any third parties at its absolute discretion. In addition, the Client accepts, is aware of and consents to the payment by the Bank of Remuneration, whether financial or otherwise, arising from any introduction or referral services (whether or not the fact of such introduction or referral or the receipt or the amount of such benefit or advantage is or is not disclosed to the Client) or in respect of any Transaction.
28.7 Without prejudice to the generality of this Clause 28, the Client acknowledges and agrees that:
(a) the Bank may undertake investments on behalf of the Client (whether pursuant to a Discretionary Mandate Agreement or otherwise), the issue or offer of sale of which has been issued, operated, underwritten, offered, advised, managed or arranged by the Bank or an Affiliate; and
(b) the Bank may receive Remuneration in respect of any investments and Transactions undertaken by the Bank on behalf of the Client (whether pursuant to a Discretionary Mandate Agreement or otherwise) and shall not be liable to account to the Client for any such Remuneration received from or by reason of such investments and/or Transactions, which
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may be in addition to the fee paid by the Client for the Services provided by the Bank, including Services pursuant to a Discretionary Mandate Agreement or otherwise.
29 WAIVER AND SEVERABILITY
No failure, omission or delay on the Bank’s part in exercising any right, power or remedy under the Client Agreement and the Facility Documents or any instrument in connection therewith (including under any Facility) shall be construed as a waiver thereof or acquiescence therewith or impair such right, power or remedy or operate as a waiver, nor shall any single or partial exercise of the same preclude any further exercise or the exercise of any other right, power or remedy. The rights, powers and remedies provided in the Client Agreement and the Facility Documents are cumulative and do not exclude any other rights, powers and remedies provided by law. If at any time any provision of the Client Agreement and the Facility Document is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, the legality, validity and enforceability of such provision under the law of any other jurisdiction, and of the remaining provisions of the Client Agreement and the Facility Documents shall not be affected or impaired thereby.
30 ILLEGALITY
Notwithstanding any other provision herein, if, by reason of any Applicable Laws or regulatory requirement (whether or not having the force of law) or any change therein or judicial decision relating thereto or the interpretation or administration or application thereof, it shall become (or it shall appear to the Bank that it has or will become) unlawful or otherwise prohibited for the Bank to maintain the Account(s) or continue to provide Services and/or Facilities and/or continue with any Transaction, the Bank shall thereupon notify the Client to that effect (whether in writing or otherwise) and the Bank shall be entitled to carry out all such actions as it deems fit including exercising its rights under Clause 19.2 of this Section.
31 GOVERNING LAW AND JURISDICTION
31.1 The Client Agreement and the Facility Documents and all relations between the Client and the Bank shall be governed by and construed in accordance with the laws of Singapore and the Client hereby irrevocably submits to the non-exclusive jurisdiction of the courts of Singapore. The laws of the Client’s home jurisdiction (other than the laws of Singapore) shall not be applicable.
Nothing in this clause shall limit the right of the Bank to bring any proceedings arising out of or in connection with the Client Agreement and the Facility Documents and the relations between the Client and the Bank in any court elsewhere nor shall the bringing of any proceedings in any jurisdiction preclude the Bank from bringing any such proceedings in any other jurisdiction. To the extent allowed by law, the Bank may take concurrent proceedings in any number of jurisdictions.
31.2 Subject to Clause 25 of this Section, all deposits and their payment are governed by and subject to the laws in effect from time to time in the place in which the Bank is situated, which shall be the sole place of payment. No other Affiliate shall be liable to repay any deposit. Instructions for the remittance or transfer of funds to or through correspondent banks shall not affect or be construed to affect the foregoing.
31.3 Subject as aforesaid, the Client Agreement and the Facility Documents and all the Client’s and the Bank’s rights and obligations hereunder shall also be subject to all Applicable Laws. The Bank shall be entitled to rely on and act in accordance with all Applicable Laws and any other information applicable to it including those published by MAS, and/or the Association of Banks in Singapore, to the extent that they are applicable to the Bank providing the Services under the Client Agreement and the Facility Documents and the Bank shall not incur any liability to the Client as a result of so relying or acting.
31.4 Where the Client does not have an address in Singapore, the Client undertakes to nominate an agent with an address in Singapore to accept service of any legal process in Singapore on its behalf. Such agent shall acknowledge in writing to the Bank its appointment as such agent and service of legal process on such agent shall be deemed to constitute service on the Client.
31.5 The Client further irrevocably consents to the service of process out of the courts of Singapore in any proceedings by the mailing of copies thereof by registered or certified prepaid airmail post to the Client at its last known address in the Bank’s records, such service to become effective the next day after such mailing, notwithstanding that it is not received by the Client or returned undelivered. Nothing herein shall affect the Bank’s right to serve process in any other manner permitted by law.
31.6 The Client hereby acknowledges the competence of the courts of any jurisdiction in which the Bank brings proceedings with respect to the Client Agreement and the Facility Documents and agrees that a final judgment in any such proceedings brought in such courts shall be conclusive and binding on the Client and if proceedings are brought in the courts of Singapore and final judgment is obtained in respect thereof, such final judgment may be enforced in any other courts under which jurisdiction the Client is or may be subject by a suit upon such final judgment. A certified copy of such final judgment shall be conclusive
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evidence of the fact and of the amount of the Client’s indebtedness, as the case may be. The Client hereby irrevocably waives any objection which it may now or hereafter have to the venue of any proceeding selected by the Bank and hereby further irrevocably waives any claim that the venue so selected is not a convenient forum for any such proceeding.
31.7 The Client hereby irrevocably agrees that should the Bank take any proceedings anywhere (whether for an injunction, specific performance, damages or otherwise), no immunity (to the extent that it may at any time exist whether on the grounds of sovereignty or otherwise) from those proceedings or from attachment (whether in aid of execution before judgment or otherwise) of the Client’s assets (including Assets) or from execution of judgment shall be claimed by the Client or on the Client’s behalf or with respect to the Client’s assets (including Assets), any such immunity being irrevocably waived, and irrevocably agrees that the Client and its assets (including Assets) are and shall be subject to such proceedings, attachment or execution in respect of the Client’s obligations under any of the Accounts, Services, Facilities Transactions, the Client Agreement and/or Facility Documents.