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Passfolio Financial Master Cryptocurrency Loan Agreement
Last updated: April 21, 2022
This Master Cryptocurrency Loan Agreement ("Agreement" or “MCLA”) is made
between Passfolio Financial, LLC. (“PF” or "Borrower"), a corporation organized and
existing under the laws of the State of Delaware, and you (“Lender) to lend your
Cryptocurrencies to PF.
RECITALS
WHEREAS, subject to the terms and conditions of this Agreement, Borrower may, from time
to time, seek a Cryptocurrency Loan from you and will pay you a Loan Fee and return such
Cryptocurrencies to you upon the termination of the Loan;
Now, therefore, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties
hereby agree as follows:
1. Definitions
As used herein, the following definitions shall apply:
A. "Airdrop" means a distribution of a new token or tokens resulting from the
ownership of a preexisting token. For the purposes of Section 5, an
"Applicable Airdrop" is an Airdrop for which the distribution of new tokens can be
definitively calculated according to its distribution method, such as a pro rata
distribution based on the amount of the relevant Digital Asset held at a specified
time. A "Non-Applicable Airdrop" is an Airdrop for which the distribution of new
tokens cannot be definitively calculated, such as a random distribution, a
distribution to every wallet of the relevant Cryptocurrency, or a distribution that
depends on a wallet of the relevant Cryptocurrency meeting a threshold
requirement.
B. “APY” means the annual percentage yield.
C. “BCB” means Brazilian Central Bank.
D. "Borrower" means PF.
F. "Business Day" means a trading day on the New York Stock Exchange.
G. "Call Option" means Lender has the option to demand immediate payment of a
portion or the entirety of the Loan Balance at any time, subject to this Agreement
and in particular Section 2(c).
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H. “Cryptocurrencies” and “Cryptocurrency” means certain digital assets such as and not
limited to bitcoin and lumens.
I. "Cryptocurrency Address" means an identifier that is a destination for a transfer
of Cryptocurrencies.
J. “CVM” means Brazilian Securities and Exchange Commission .
K. "Fixed Term Loan" means a Loan with a pre-determined Maturity Date.
L. "Hard Fork" means a permanent divergence in the blockchain (e.g., when
non-upgraded nodes cannot validate blocks created by upgraded nodes that follow
newer consensus rules, or an airdrop or any other event which results in the creation
of a new token).
M. “Loan” means a loan of Cryptocurrency made pursuant to and in accordance with
this Agreement.
N. "Loan Balance" means the sum of all outstanding amounts of Loaned Assets, including
New Tokens, Loan Fees and Late Fees, and for a particular Loan, as defined in
Section 3.
O. "Loaned Assets" means any Cryptocurrency amount transferred in a Loan
hereunder until such Cryptocurrency (or identical Cryptocurrency) is transferred
back to Lender hereunder, except that, if any new or different Digital Asset is
created or split by a Hard Fork or other alteration in the underlying blockchain
and meets the requirements set forth in Section 5 of this Agreement, such new or
different Cryptocurrency shall be deemed to become Cryptocurrency in addition
to the former Cryptocurrency for which such exchange is made. For purposes of
return of Loaned Assets by Borrower or purchase or sale of Cryptocurrency
pursuant to Section 9, such term shall include Cryptocurrency of the same quantity
and type as the Cryptocurrency, as adjusted pursuant to the preceding sentence.
P. "Maturity Date" means the pre-determined future date upon which a Loan
becomes due in full, whether by Term or Call Option.
Q. "Open Term Loan" means a Loan without a Maturity Date where Borrower
has a Prepayment Option and Lender has a Call Option.
R. “Parties” means PF and Lender.
S. "Platform" means Services as defined in the Passfolio Financial Terms of
Service.
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T. "Term" means the period from the date Loaned Assets are delivered to
Borrower through the date such Loan's Loaned Assets are repaid in full.
2. General Loan Terms
(a) Offers of Loans to Lender
PF will provide to Lender on the Platform the current terms on which Borrower has
offered to enter into Loans (the "Offered Loan Terms"). Offered Loan Terms may include the
types of Cryptocurrencies which the Borrower will borrow, the rates and Loan types of such
Cryptocurrencies it will borrow, and maximum amounts it will borrow from all lenders on the
Platform.
(b) Loan Procedure
During the Term of this Agreement, on any Business Day Lender may via the Platform
notify Borrower for each Cryptocurrency and Loan type listed in the applicable Offered
Loan Terms whether it will lend additional Cryptocurrencies at the current Loan Fee or
whether it requests a return of Cryptocurrencies (if applicable). For any Cryptocurrencies
Lender will lend, it shall deliver such Cryptocurrencies according to the time and manner
specified. For any Cryptocurrencies Lender requests to be returned, Borrower shall return
such Cryptocurrencies within three Business Days to Lender’s PF Account. Upon receipt
of the Loaned Assets, PF shall include a record of the Loan, including all the terms of the
Loan, in a log of all Lender's Loans accessible to Lender.
(c) Loan Repayment Procedure
Loans will be Open Term Loans unless otherwise specified. For Open Term Loans, the
Loaned Assets shall be repaid to Lender’s PF Account within three Business Days after the
request by Lender pursuant to Section 2(b) above. For Fixed Term Loans, the Loaned Assets
shall be repaid to Lender’s PF Account at the time indicated in the Offered Loan Terms,
unless Borrower and Lender agree to extend the Fixed Term Loan for another Fixed Term
Loan under the then-current Offered Loan Terms, or an Open Term Loan.
(d) Termination of Loan
A Loan will terminate upon the earlier of:
(i) the Maturity Date;
(ii) for an Open Term Loan, the repayment of the Loan Balance by Borrower prior to the
Maturity Date;
(iii) the occurrence of an Event of Default as defined in Section 7; however, Lender shall have
the right in its sole discretion to suspend the termination of a Loan under this subsection (iii)
and reinstitute the Loan. In the event of reinstitution of the Loan pursuant
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to the preceding sentence, Lender does not waive its right to terminate the Loan
hereunder; or
(iv) in the event any or all of the Loaned Assets becomes in Borrower's sole discretion a risk
of being: (1) considered a security, swap, derivative, or other similarly-regulated financial
instrument or asset by any regulatory authority, whether governmental, industrial, or
otherwise, or by any court of law or dispute resolution organization, arbitrator, or mediator;
or (2) subject to future regulation materially impacting this Agreement, the Loan, or Borrower's
business.
Nothing in the forgoing shall cause, limit, or otherwise affect the Term and termination of this
Agreement except as specified in Section 23.
In the event of a termination of a Loan, any Loaned Assets shall be redelivered
immediately to Lender’s PF Account and any fees or owed shall be payable by
Borrower immediately to Lender’s PF Account. In the event of a termination of a Loan
pursuant to Section 2(d)(iv), Borrower shall pay an additional Loan Fee until (i) the end of
the then-current monthly loan period or (ii) the Maturity Date of such Loan (whichever is
shorter) at the then-current interest rate on the amount of the Loan terminated.
(e) Redelivery in an Illiquid Market
If We cease or suspend trading in the Loaned Assets on the Maturity Date or the Recall
Delivery Day, whichever applicable, Borrower and Lender will engage in good faith
negotiations to reach agreement on a substitute form of repayment for the affected loans or
to otherwise temporarily suspend the requirement for Borrower to return the Loaned Assets,
and such negotiation shall be binding on Lender.
3. Loan Fees and Transaction Fees
(a) Loan Fee
Unless otherwise agreed, Borrower agrees to pay Lender a financing fee on each Loan (the
"Loan Fee"). When a Loan is executed, the Borrower will be responsible to pay the Loan
Fee as set forth in the Offered Loan Terms. Except as Borrower and Lender may otherwise
agree, Loan Fees shall accrue from and include the date on which the Loaned Assets are
transferred to Borrower to the date on which such Loaned Assets are repaid in their entirety
to Lender.
Unless otherwise specified in the Offered Loan Terms, (i) Loan Fees shall be based on a
monthly interest rate, which may be updated at anytime but no more than once every thirty
(30) days; (ii) no minimum amount of Loaned Assets shall be required for a Loan to accrue
a Loan Fee; (iii) Loan Fees shall be calculated using the applicable monthly interest rate
applied to the principal that was loaned for the entire day and interest that has accrued on
the Loaned Assets each day; (iv) Loan Fees shall at all times be greater than 0% APY; and
(v) Loan Fees shall be paid monthly by Borrower to Lender.
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Borrower shall calculate any Loan Fees (which may be aggregated across all
outstanding Loans from Lender) owed on a daily basis and provide Lender with the
calculation, and information relied upon to support the calculation, upon request. The
Loan Fee will be calculated off all outstanding portions of the Loaned Assets.
(b) Late Fee
For each Calendar Day in excess of the Maturity Date or the Recall Delivery Day
(whichever is applicable) in which Borrower has not returned the entirety of the Loaned
Assets or failed to timely pay any outstanding Loan Fee in accordance with Section 3(c),
Borrower shall incur an additional fee (the "Late Fee") of a 1% (annualized, calculated daily)
on all outstanding portions of the Loaned Assets.
(c) Payment of Loan Fees and Late Fees
Unless otherwise agreed, any accrued but unpaid Loan Fee or Late Fees payable
hereunder shall be paid by Borrower upon the earlier of (i) promptly following the end of the
calendar month in which the Loan was outstanding, but in any even no later than three (3)
Business Days after the end of such month or (ii) the termination of all Loans hereunder (the
"Payment Due Date"). The Loan Fee and Late Fees shall be payable, unless otherwise
agreed by the Borrower and Lender in writing, in the same Loaned Assets that were
borrowed, on the same blockchain and of the same type that was loaned by the Lender
during the Loan.
4. Hard Fork
(a) No Immediate Termination of Loans Due to Hard Fork
In the event of a Hard Fork in the blockchain for any Loaned Assets or an Airdrop, any
outstanding Loans will not be automatically terminated. Borrower, on behalf of Lender, may
agree, regardless of Loan type, either (i) to terminate a Loan without any penalties on an
agreed upon date or (ii) for Borrower to manage the Hard Fork. Nothing herein shall relieve,
waive, or otherwise satisfy Borrower's obligations hereunder, including without limitation,
the return of the Loaned Assets at the termination of the Loan and payment of accrued Loan
Fees, which includes the per diem amounts for days on which Borrower transfers
Cryptocurrency to Lender and Lender transfers said Cryptocurrency back to Borrower
pursuant to this section.
(b) Lender's Right to New Tokens
Lender will receive the benefit and ownership of any incremental tokens generated as a
result of a Hard Fork in the Cryptocurrency protocol or an Applicable Airdrop (such tokens
that meet the following conditions, the "New Tokens") if the following two conditions are met:
• Market Capitalization: the average market capitalization of the New Token
(defined as the total value of all New Tokens) on the 30th day following the
occurrence the Hard Fork or Applicable Airdrop (calculated as a 30-day average
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on such date) is at least 5% of the average market capitalization of the Loaned
Assets (defined as the total value of the Loaned Assets) (calculated as a 30-day
average on such date).
• 24-Hour Trading Volume: the average 24-hour trading volume of the New Token
on the 30th day following the occurrence the Hard Fork or Applicable Airdrop
(calculated as a 30-day average on such date) is at least 1% of the average 24-
hour trading volume of the Loaned Assets (calculated as a 30-day average on
such date).
For the above calculations, the source for the relevant data on the Cryptocurrency
market capitalization and 24-Hour trading volume will be blockchain.info (or, if
blockchain.info does not provide the required information, bitinfocharts.com, and if
neither provides the required information, the parties shall discuss in good faith to
mutually agree upon another data source).
If the Hard Fork or Applicable Airdrop meets the criteria above, Borrower will have up to
60 days from the Hard Fork or Applicable Airdrop to transfer the New Tokens to Lender.
If sending the New Tokens to Lender is burdensome in Borrower's reasonable
discretion, Borrower can reimburse Lender for the value of the New Tokens by either (i)
a one-time payment in the same Loaned Assets transferred as a part of the Loan
reflecting the amount of the New Tokens owed using the spot rate reasonably selected
by Borrower at the time of repayment, or (ii) returning the borrowed Cryptocurrency so
that Lender can manage the split of the underlying digital tokens as described in Section
4(b) above. Alternatively, subject to Lender's written agreement, the parties may agree to
other methods of making Lender whole for Borrower's failure to transfer New Tokens to
Lender. For the avoidance of doubt, if Borrower returns a Loan to Lender prior to the 30th
day following a Hard Fork, Borrower's obligations under this Section 5 shall continue for
any New Tokens that meet the criteria in this subsection (b) for such Loan on the 30th
day following the Hard Fork. Lender's rights to New Tokens as set forth in this Section
shall survive the termination of the relevant Loan, return of the Loaned Assets, and
termination of this Agreement.
5. Representations and Warranties
The Parties hereby make the following representations and warranties, which shall
continue during the term of this Agreement and any Loan hereunder:
(a) Each Party represents and warrants that (i) it has the power to execute and deliver
this Agreement, to enter into the Loans contemplated hereby and to perform its
obligations hereunder, (ii) it has taken all necessary action to authorize such execution,
delivery and performance, and (iii) this Agreement constitutes a legal, valid, and binding
obligation enforceable against it in accordance with its terms.
(b) Each Party hereto represents and warrants that it has not relied on the other for any
tax or accounting advice concerning this Agreement and that it has made its own
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determination as to the tax and accounting treatment of any Loan, any Cryptocurrencies
or funds received or provided hereunder.
(c) Each Party hereto represents and warrants that it is acting for its own account unless
it expressly specifies otherwise in writing.
(d) Each Party hereto represents and warrants that it is a sophisticated party and fully
familiar with the inherent risks involved in the transaction contemplated in this
Agreement, including, without limitation, risk of new financial regulatory requirements,
potential loss of Loaned Assets and risks due to volatility of the price of the Loaned
Assets, and voluntarily takes full responsibility for any risk to that effect.
(e) Each Party represents and warrants that it is not insolvent and is not subject to any
bankruptcy or insolvency proceedings under any applicable laws.
(f) Each Party represents and warrants there are no proceedings pending or, to its
knowledge, threatened, which could reasonably be anticipated to have any adverse
effect on the transactions contemplated by this Agreement or the accuracy of the
representations and warranties hereunder or thereunder.
(g) Each Party represents and warrants that to its knowledge the transactions
contemplated in this Agreement are not prohibited by law or other authority in the
jurisdiction of its place of incorporation, place of principal office, or residence and that it
has necessary licenses and registrations to operate in the manner contemplated in this
Agreement.
(h) Each Party represents and warrants that it has all necessary governmental and
other consents, approvals and licenses to perform its obligations hereunder.
(i) Each Party represents and warrants that it has made its own independent decisions
to enter into any Loan and as to whether the Loan is appropriate or proper for it based
upon its own judgement and upon advice from such advisers (other than another Party)
as it has deemed necessary. It is not relying on any communication (written or oral) of
the other Parties as investment advice or as a recommendation to enter into any Loan,
it being understood that information and explanations related to the terms and conditions
of a Loan will not be considered investment advice or a recommendation to enter into
that Loan.
(j) Each Party represents and warrants that it is capable of assessing the merits of and
understanding (on its own behalf or through independent professional advice), and
understands and accepts, the terms, conditions and risks of any Loan. It is also capable
of assuming, and assumes, the risks of that Loan. The other Parties are not acting as a
fiduciary for or an adviser to it in respect of any Loan.
(k) Lender represents and warrants that it has, or will have at the time of the transfer of
any Loaned Assets, the right to transfer such Loaned Assets subject to the terms and
conditions hereof, and free and clear of all liens and encumbrances other than those
arising under this Agreement.
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(l) Lender represents and warrants that the Loaned Assets have not been or will not be
obtained, directly or indirectly, from or using the assets of any: (i) "employee benefit plan"
as defined in Section 3(3) of the U.S. Employee Retirement Income Security Act of 1974
which is subject to Part 4 of Subtitle B of Title I of such Act; (ii) any "plan" as defined in
Section 4975(e)(1) of the U.S. Internal Revenue Code of 1986; or (iii) any entity the
assets of which are deemed to be assets of any such "employee benefit plan" or "plan" by
reason of the U.S. Department of Labor's plan asset regulation, Title 29 of the Code of
Federal Regulations, Section 2510.3-101.
(m) Lender represents and warrants that it is in compliance with applicable laws and
regulations, except where Lender's failure to so comply would not have a material effect
on Borrower.
(n) Borrower represents and warrants that it has, or will have at the time of return of any
Loaned Assets, the right to transfer such Loaned Assets subject to the terms and conditions
hereof.
(o) Lender declares and warrants that it is aware that PF is not subject to authorization
of the CVM or the BCB since it is not a financial institution and does not perform any
operations restricted to financial institutions.
(p) Each party represents and warrants that is aware that transactions with
cryptocurrencies that involve international transfers do not remove the requirement to
observe the exchange rules applicable to the country of origin of the currency, especially
in the case of Brazil, which imposes the realization of exchange operations exclusively
through institutions authorized to operate in the exchange market by the BCB.
(q) Each party represents and warrants that it is aware that Cryptocurrency must not be
confused with the electronic currency dealt with in Brazilian Law No. 12,865, dated
October 9, 2013, and its regulation through normative acts issued by the BCB.
6. Default
It is further understood that any of the following events shall constitute an event of
default hereunder against the defaulting Party, and shall be herein referred to as an
"Event of Default" or "Events of Default":
(a) the failure of the Borrower to return any and all Loaned Assets upon termination of
any Loan however, Borrower shall have two Business Days to cure such default;
(b) the failure of Borrower to pay any and all Loan Fees, Late Fees, or to remit any New
Tokens in accordance with Section V, however, Borrower shall have three Business
Days to cure such default;
(c) a material default by either Party in the performance of any of the other agreements,
conditions, covenants, provisions or stipulations contained in this Agreement, including
without limitation a failure by either Party to abide by its obligations in Section 4 or 5 of
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this Agreement and such Party's failure to cure said material default within ten Business
Days;
(d) any bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings
for the relief of debtors or dissolution proceedings that are instituted by or against a Party and are
not be dismissed within thirty (30) days of the initiation of said proceedings; or
(e) any representation or warranty made by either Party in this Agreement that proves to be incorrect
or untrue in any material respect as of the date of making or deemed making thereof however, a
Party shall have ten Business Days to cure such default.
7. Remedies
(a) Upon the occurrence and during the continuation of any Event of Default on a Loan by Lender,
the Borrower may, at its option exercise all other rights and remedies available to the Borrower
hereunder, under applicable law, or in equity. If any Event of Default by Lender under Section 6 (e)
persist for thirty-days or more, or immediately upon an Event of Default by Lender under Sections
6 (c) or (d), the Borrower may, at its option, terminate this Agreement and any Loan hereunder upon
notice to Lender.
(b) 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; however, the non-defaulting Party
shall have an obligation to mitigate its damages in a commercially reasonable manner.
8. Rights and Remedies Cumulative.
No delay or omission by a Party in exercising any right or remedy hereunder shall operate as
a waiver of the future exercise of that right or remedy or of any other rights or remedies hereunder.
All rights of each Party stated herein are cumulative and in addition to all other rights provided by
law, in equity.
9. Survival of Rights and Remedies
All remedies hereunder and all obligations with respect to any Loan shall survive the termination
of the relevant Loan, return of Loaned Assets, and termination of this Agreement.
10.Governing Law; Dispute Resolution
This Agreement is governed by, and shall be construed and enforced under, the laws of Brazil
without regard to any choice or conflict of laws rules. If a dispute arises out of or relates to this
Agreement, or the breach thereof, and if said dispute cannot be settled through negotiation it shall
be finally resolved by arbitration administered in the São Paulo Brazil by the American Arbitration
Association under its Commercial Arbitration Rules, or such other applicable arbitration body as
required by law or regulation, and judgment upon the award rendered by the arbitrators may be
entered in any court
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having jurisdiction. The parties agree to waive their rights to a jury trial. If any
proceeding is brought for the enforcement of this Agreement, then the successful or
prevailing party shall be entitled to recover attorneys' fees and other costs incurred in
such proceeding in addition to any other relief to which it may be entitled.
11. Confidentiality
(a) Each Party to this Agreement shall hold in confidence all information obtained from the
other Party in connection with this Agreement and the transactions contemplated hereby,
including without limitation any discussions preceding the execution of this Agreement
(collectively, "Confidential Information"). Confidential Information shall not include
information that the receiving Party demonstrates with competent evidence was, or becomes,
(i) available to the public through no violation of this Section 11, (ii) in the possession of the
receiving Party on a non-confidential basis prior to disclosure, (iii) available to the receiving
Party on a non-confidential basis from a source other than the other Party or its affiliates,
subsidiaries, officers, directors, employees, contractors, attorneys, accountants, bankers or
consultants (the "Representatives"), or (iv) independently developed by the receiving Party
without reference to or use of such Confidential Information.
(b) Each Party shall (i) keep such Confidential Information confidential and shall not,
without the prior written consent of the other Party, disclose or allow the disclosure of such
Confidential Information to any third party, except as otherwise herein provided, and (ii)
restrict internal access to and reproduction of the Confidential Information to a Party's
Representatives only on a need to know basis; provided, however, that such
Representatives shall be under an obligation of confidentiality at least as strict as set forth
in this Section 11.
(c) Each Party also agrees not to use Confidential Information for any purpose other than
in connection with transactions contemplated by this Agreement.
(d) The provisions of this Section 11 will not restrict a Party from disclosing the other
Party's Confidential Information to the extent required by any law, regulation, or direction by
a court of competent jurisdiction or government agency or regulatory authority with jurisdiction
over said Party; provided that the Party required to make such a disclosure uses reasonable
efforts to give the other Party reasonable advance notice of such required disclosure in order
to enable the other Party to prevent or limit such disclosure.
Notwithstanding the foregoing, Lender may disclose the other Party's Confidential
Information without notice pursuant to a written request by a governmental agency or
regulatory authority.
(e) The obligations with respect to Confidential Information shall survive for a period of
three (3) years from the date of this Agreement. Notwithstanding anything in this agreement
to the contrary, a Party may retain copies of Confidential Information (the "Retained
Confidential Information") to the extent necessary (i) to comply with its recordkeeping
obligations, (ii) in the routine backup of data storage systems, and (iii) in order to determine
the scope of, and compliance with, its obligations under this Section
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11; provided, however, that such Party agrees that any Retained Confidential
Information shall be accessible only by legal or compliance personnel of such Party and the
confidentiality obligations of this Section 11 shall survive with respect to the Retained
Confidential Information for so long as such information is retained.
12.Notices
Unless otherwise provided in this Agreement, all notices or demands relating to this
Agreement shall be in writing and shall be personally delivered or sent by 1) express mail,
certified mail (postage prepaid, return receipt requested), or overnight courier and 2) electronic
mail to the respective address set forth below:
Borrower:
Passfolio Financial, LLC.
FILL IN ADDRESS
Attn: Legal
Email: [email protected]
Either Party may change its address by giving the other Party written notice of its new
address as herein provided.
13.Modifications.
All modifications or amendments to this Agreement shall be effective only when reduced to
writing and signed by both parties hereto.
14.Single Agreement
The Parties 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, the Parties 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, the
Parties 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.
15.Entire Agreement
This Agreement, each exhibit referenced herein, and all applicable Offered Loan Terms
constitute the entire Agreement among the parties with respect to the subject matter
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hereof and supersedes any prior negotiations, understandings and agreements. Nothing
in this Section 16 shall be construed to conflict with or negate Section 14 above.
16.Successors and Assigns
This Agreement shall bind and inure to the benefit of the respective successors and
assigns of each of the parties; provided, that no Party may assign this Agreement or
any rights or duties hereunder without the prior written consent of each of Borrower.
Notwithstanding the foregoing, in the event of a change of control of Borrower, prior
written consent shall not be required so long as such Party provides the other Party with
written notice prior to the consummation of such change of control. For purposes of the
foregoing, a "change of control" shall mean a transaction or series of related transactions
in which a person or entity, or a group of affiliated (or otherwise related) persons or entities
acquires from stockholders of the Party shares representing more than fifty percent (50%)
of the outstanding voting stock of such Party. Neither this Agreement nor any provision
hereof, nor any Exhibit hereto or document executed or delivered herewith, shall create
any rights in favor of or impose any obligation upon any person or entity other than the
parties hereto and their respective successors and permitted assigns. Parties agree that
none of PF parents or affiliates shall have any liability under this Agreement nor do such
related entities guarantee any of PF’s obligations under this Agreement.
17.Severability of Provisions
Each provision of this Agreement shall be severable from every other provision of this
Agreement for the purpose of determining the legal enforceability of any specific
provision.
18.Counterpart Execution
This Agreement may be executed in any number of counterparts and by different parties
on separate counterparts, each of which, when executed and delivered, shall be deemed
to be an original, and all of which, when taken together, shall constitute but one and the
same Agreement. Delivery of an executed counterpart of this Agreement by email or other
electronic method of transmission shall be equally as effective as delivery of an original
executed counterpart of this Agreement. Any Party delivering an executed counterpart of
this Agreement by email or other electronic method of transmission also shall deliver an
original executed counterpart of this Agreement but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability, and binding effect of this
Agreement.
19.Relationship of Parties
Nothing contained in this Agreement shall be deemed or construed by the Parties, or by
any third party, to create the relationship of partnership or joint venture between the
parties hereto, it being understood and agreed that no provision contained herein shall
be deemed to create any relationship between the parties hereto other than the
relationships of Borrower and Lender.
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20.No Waiver
The failure of or delay by either Party to enforce an obligation or exercise a right or
remedy under any provision of this Agreement or to exercise any election in this
Agreement shall not be construed as a waiver of such provision, and the waiver of a
particular obligation in one circumstance will not prevent such Party from subsequently
requiring compliance with the obligation or exercising the right or remedy in the future.
No waiver or modification by either Party of any provision of this Agreement shall be
deemed to have been made unless expressed in writing and signed by both parties.
21.Indemnification
(a) By Borrower. Borrower hereby agrees to indemnify, defend and hold harmless
Lender and their respective affiliates and any of their respective officers, directors,
employees, agents, consultants or other representatives from and against all Liabilities, to
the extent arising out of or relating to any Claim by any third party based on, arising out of
or relating to Borrower's breach of any of its representations, warranties or obligations set
forth in this Agreement; provided, however, Borrower's obligation to provide such indemnity
will not apply to the extent that such Liabilities are incurred as a result of the breach by
Lender in any material respect of their obligations under this Agreement.
(c) By Lender. Lender hereby agrees to indemnify, defend and hold harmless Borrower
and their respective affiliates and any of their respective officers, directors, employees,
agents, consultants or other representatives from and against all Liabilities, to the extent
arising out of or relating to any Claim by any third party based on, arising out of or relating
to Lender's breach of any of its representations, warranties or obligations set forth in this
Agreement; provided, however, Lender's obligation to provide such indemnity will not apply
to the extent that such Liabilities are incurred as a result of the breach by Borrower in any
material respect of their obligations under this Agreement.
22.Term and Termination.
This Agreement may be terminated by any Party by providing thirty days' written notice to
the other Parties.
In the event of a termination of this Agreement, any Loaned Assets shall be redelivered
immediately and any fees owed shall be payable immediately.
23.Miscellaneous.
Whenever used herein, the singular number shall include the plural, the plural the
singular, and the use of the masculine, feminine, or neuter gender shall include all
genders where necessary and appropriate. This Agreement is solely for the benefit of
the parties hereto and their respective successors and assigns, and no other Person
shall have any right, benefit, priority or interest under, or because of the existence of, this
Agreement. The section headings are for convenience only and shall not affect the
interpretation or construction of this Agreement. The Parties acknowledge that the
Machine Translated by Google
Agreement and any Lending Request are the result of negotiation between the Parties
which are represented by sophisticated counsel and therefore none of the Agreement's
provisions will be construed against the drafter.
24.Intent.
Each Party agrees that the Loans are intended to be commercial loans of
Cryptocurrencies and not securities under the U.S. federal or state securities laws.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered as of the date first above written.
