Application for Banker's Guarantee - Terms and Conditions

1.    IN CONSIDERATION of your agreeing at our request to issue / renew or to request your correspondent bank or your overseas branch to issue / renew a Letter of Guarantee / Indemnity (which expression shall include any fresh / renewed / certified true copies of the Letters of Guarantee given by you in replacement thereof to the beneficiary and/or any amendments and supplements thereto), as applied for overleaf, we, the applicant, inclusive of our successors in title and assigns HEREBY AGREE AND UNDERTAKE to indemnify you, your successors and assigns and at all times to keep you fully and completely indemnified from and against all liabilities, claims and demands, actions and proceedings, losses and expenses including legal costs on a solicitor and client basis and all other liabilities of whatsoever nature, amount or description which may be made or taken or suffered by you in relation to or arising out of the Letter of Guarantee / Indemnity and any amendments thereto, any renewals or modifications thereof and any letter or documents made supplemental thereto, and to pay you interest at such rate(s) and for such period(s) which you shall in your sole discretion determine on such sum(s) due from or to be paid by us to you in connection with the aforesaid Letter of Guarantee / Indemnity. Where there is more than 1 applicant, the liability of all co-applicants in this Application shall be joint and several. A party utilizing the credit facility of another party for issuance / renewal of a Letter of Guarantee / Indemnity is deemed a co-applicant.
2.    In the event that you are required to issue / renew in favour of your correspondent bank or your overseas branch a counter guarantee / Indemnity in consideration of their issuance / renewal of a Letter of Guarantee / Indemnity in favour of the beneficiary, the obligation to indemnify you as set out herein shall also extend to all liabilities, claims and demands, action and proceedings, losses and expenses including legal costs on a solicitor and client basis and any other liabilities of whatsoever nature, amount or description which may be made, taken or suffered by you in relation to or arising out of such counter guarantee / indemnity as you may have issued or any renewal of such counter guarantee / Indemnity.
3.    WE AGREE that where the Letter of Guarantee / Indemnity is issued / renewed by you, your correspondent bank or your overseas branch may (depending on each case) be required to either issue / renew its own guarantee / Indemnity in favour of the beneficiary or add a confirmation to the Letter of Guarantee / Indemnity issued /renewed by you on such terms and conditions as you and/or your correspondent bank or your overseas branch may deem fit and WE AGREE AND CONFIRM that our liability to indemnify you as provided herein shall in all respects extend to the issuance / renewal of such a guarantee / Indemnity or the addition of such confirmation by your correspondent bank or your overseas branch.
4.    WE AGREE that you or your correspondent bank or your overseas branch may make payment under the Letter of Guarantee / Indemnity of any sum or sums of money, plus any withholding taxes, imposts or levies, without requiring or obtaining any evidence or proof that the amount claimed or requested by the beneficiary (which expression shall include his successors and assigns) or the amount paid by you, your correspondent bank or your overseas branch is due and payable to the beneficiary and without any notice or reference to or further authority from us and that we would not dispute the validity of any such claim, request or payment. We acknowledge you, your correspondent bank or your overseas branch may at your or their discretion or you, your correspondent bank or your overseas branch may be required to pay the guaranteed or indemnity amount to the beneficiary notwithstanding that the beneficiary has not demanded payment thereunder and in such an eventuality, we are still obliged to indemnify you in accordance with the terms and conditions herein.
5.    In the event that the Letter of Guarantee / Indemnity to be issued / renewed by you, your correspondent bank or your overseas branch is subject to and is to be governed by the laws of a jurisdiction other than the Republic of Singapore and should a demand be subsequently made by the Beneficiary under the Letter of Guarantee / Indemnity, we agree and authorise you, your correspondent bank or your overseas branch to then, and at your own discretion or discretion of your correspondent bank/or your overseas branch, obtain an opinion from a legal counsel on the validity and enforceability of the Letter of Guarantee / Indemnity, prior to your, your correspondent bank/or your overseas branch making payment in accordance with the Beneficiary's demand. We further agree that we shall bear the entire cost of obtaining such an opinion and that we shall indemnify you, your correspondent bank and/or your overseas branch for any loss or expense whatsoever suffered by you, your correspondent bank and/or your overseas branch due to any delay in the payment of the guaranteed or indemnity sum to the Beneficiary caused by you, your correspondent bank and/or your overseas branch having to obtain such an opinion. For the avoidance of doubt, neither you nor your correspondent bank / your overseas branch shall be obliged to obtain such an opinion and in the event of payment under the Letter of Guarantee / Indemnity without such an opinion having been obtained, our agreement to indemnify you, in accordance with terms herein shall nevertheless apply with full force and effect.
6.    We agree that any request or demand made on you, your correspondent bank or your overseas branch by the beneficiary of the Letter of Guarantee / Indemnity or on you by your correspondent bank or your overseas branch under the counter guarantee / Indemnity referred to in Clause 2 above for payment of any sum of money due thereunder shall be conclusive evidence or proof of the sum due and payable and shall be sufficient authority to you, your correspondent bank or your overseas branch to make any such payment without any obligation on you, your correspondent bank or your overseas branch to require or obtain any further evidence or proof that the sum so requested or demanded is due and payable and without any notice or reference to or further authority from us and we agree not to dispute the validity of any such request or demand.
7.    WE ALSO AGREE that we shall not at any time question or challenge the validity, legality or otherwise of any such payment by you, your correspondent bank or your overseas branch or deny any liability hereunder on the ground that such payment or any part thereof made by you, your correspondent bank or your overseas branch was not due or payable by you, your correspondent bank or your overseas branch or that there is a legitimate defence or ground for refusing payment available to you, your correspondent bank or your overseas branch under the Letter of Guarantee / Indemnity or on any ground whatsoever.
8.    Any demand, notification or certificate given by you specifying the moneys due and payable under or in connection with any of the provisions of this Agreement shall, in the absence of manifest error, be conclusive and binding on us. Without prejudice to the foregoing, we shall pay on demand to you such sums of moneys as you have specified to be due and payable notwithstanding that such sums may not have been properly due under the Letter of Guarantee / Indemnity for any reason or that the Letter of Guarantee / Indemnity is void, invalid, illegal or otherwise not enforceable against you, your correspondent bank or your overseas branch.
9.    WE FURTHER AGREE that our liability aforesaid is irrevocable and shall remain in full force and effect until the Letter of Guarantee / Indemnity issued / renewed by you, your correspondent bank and/or your overseas branch and/or any Counter-Guarantee / Indemnity issued / renewed by you pursuant to Clause 2 herein is released or expired or returned to you, your correspondent bank and/or overseas branch for cancellation and all liability on your part and the part of your correspondent bank or overseas branch thereunder is fully discharged to your satisfaction and satisfaction of your correspondent bank/overseas branch.
10.    WITHOUT PREJUDICE to the generality of our aforesaid indemnity, WE HEREBY AUTHORISE you (1) to charge us your commission for the Letter of Guarantee / Indemnity (which shall be paid in one lump sum in advance and which is non-refundable in any circumstances including any discharge or cancellation of the Letter of Guarantee / Indemnity before its expiry date) on the guaranteed or indemnified sum and further (2) at your discretion and without reference to us to set off any money in your hands belonging to us or to debit against any account which we now or may hereafter have with you whether in Singapore or abroad and whether in Singapore Dollars or a foreign currency any sum or sums of money which you, your correspondent bank or your overseas branch may pay in respect of the Letter of Guarantee / Indemnity and/or any Counter-Guarantee / Indemnity issued or renewed by you pursuant to Clause 2 herein and we authorise you to effect any exchange of currency in connection therewith AND WE AGREE to pay interest on any money so paid by you, your correspondent bank or your overseas branch at your usual overdraft rates from the date when payment is due until repayment thereof is received by you from us. We undertake, at your request, to effect in your favour such security as you may require and to execute, complete and deliver to you such documentation as you may require. A certificate by one of your officers setting forth the relevant amount(s) of fees and commission due and payable in respect of the Letter of Guarantee / Indemnity shall in the absence of any manifest error be binding and conclusive on us.
11.    All moneys payable hereunder by us to you shall be paid to you in full and free of any present or future taxes, levies, duties, charges, fees or withholdings and without set-off or counter-claim or any restriction, condition or deduction whatsoever but shall include any interest payable to you at your prevailing lending rate from the date such payments are due to the date of actual repayment.
12.    Unless otherwise agreed in writing, we undertake to deposit with or pay to you on demand, either before or after the issuance / renewal of the Letter of Guarantee / Indemnity and/or counter guarantee or indemnity referred to in Clause 2 above, such sums or sums of money as you may from time to time require in your sole discretion for the purpose of security, additional security (where security has already been given) or for any other reason for which you may think it advisable or necessary.
13.    If any demand is made for payment of any sums of moneys whatsoever due and owing to you by us, we shall without demand immediately procure your complete and unconditional release from all your liabilities and obligations under all the Letters of Guarantee / Indemnity failing which we shall without demand immediately pay to you such sums as may be necessary to be paid to the Beneficiaries or any other persons whatsoever under or in relation to the Letters of Guarantee / Indemnity in order for you to obtain a complete and unconditional release from your liabilities and obligations under all the Letters of Guarantee / Indemnity together with all costs and expenses incurred or which may be incurred by you in respect thereof.
14.    If under any applicable law or regulation, or pursuant to a judgement or order being made or registered against us or our bankruptcy or liquidation, or, without limitation, for any other reason, any payment under or in connection with this Agreement is made or fails to be satisfied in a currency (the "currency of payment") other than the currency in which such payment is expressed to be due under or in connection with such Letter of Guarantee / Indemnity (the "currency of obligation") then, to the extent that the amount of such payment actually received by you, when converted into the currency of obligation, at the rate of exchange, falls short of the amount due under or in connection with this Agreement, we, as a separate and independent obligation, shall indemnify you and hold you harmless against the amount of such shortfall. For the purposes of this Clause, "rate of exchange" means the rate at which you are able on or about the date of such payment to purchase, in accordance with your normal practice, the currency of obligation with the currency of payment.
15.    The terms and conditions herein shall be in addition to and not be in derogation of any rights implied in law in your favour and shall not in any way prejudice or affect and shall not be in any way prejudiced or affected by any other security or collateral now or hereafter held by you whether or not in connection with our obligation to indemnify you as mentioned above.
16.    Where the text/format of the Letter of Guarantee / Indemnity is supplied or given by us to you, you are under no responsibility or liability to us to ensure the accuracy, legality or completeness of the format/text and any translation thereof. Where the aforesaid translation is supplied or given by us to you (whether translated by us or otherwise), we confirm that we shall bear the risk of such translation and shall at all times keep you, your correspondent bank or your overseas branch fully and completely indemnified from and against all liability, claims and demands, actions and proceeds, losses and expenses including but not limited to all legal costs on solicitor and client basis which may be incurred by you, your correspondent bank or your overseas branch and all bank charges, costs disbursements, expenses and other liabilities of whatsoever nature or description which may be made or taken or suffered by you, your correspondent bank or your overseas branch in relation to or arising out of such translations.
17.    Save for any member of the DBS Group, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 2001 of Singapore to enforce or to enjoy the benefit of any term and conditions of this Agreement. Notwithstanding any term of this Agreement, the consent of any third party is not required for any variation or amendment of this Agreement. In this Clause, “DBS Group” means DBS Bank Ltd (including any of its branches or offices) and any of its holding companies, subsidiaries or affiliates (including any branches or offices of such subsidiary or affiliate).
18.    You may at any time without our consent and without notice to us or any other person assign or transfer all or any part of your rights and/or obligations under this Agreement to any person you deem fit. We may not assign or transfer any or all of our rights and/or obligations under this Agreement without your prior written consent
19.    In the event that a Letter of Guarantee / Indemnity is issued / renewed by your correspondent bank or your overseas branch against or with a counter-guarantee / Indemnity which you issue / renew in favour of your correspondent bank or your overseas branch, we agree that such a Letter of Guarantee / Indemnity shall for the purposes of this Agreement be deemed to be issued / renewed by you on our application and we remain liable to indemnify you in full and in accordance with the terms herein in respect of such Letter of Guarantee / Indemnity, in the event of any judgment, finding or determination that the counter-guarantee / Indemnity issued / renewed by you pursuant to Clause 2 in favour of your correspondent bank/your overseas branch is void or otherwise invalid.
20.    For avoidance of doubt, we agree that any counter-guarantee / Indemnity given by you to your correspondent bank/your overseas branch shall in all respects be considered valid and enforceable. We confirm that we shall not challenge any payment made by you under or in connection with the Counter-Guarantee/ Indemnity given by you pursuant to Clause 2 above.
21.    We further agree and confirm that you shall, in your absolute discretion as and when you deem fit be entitled to demand payment from us of the sums or monies that you are liable for under the Letter of Guarantee / Indemnity notwithstanding that the beneficiary of the abovementioned Letter of Guarantee / Indemnity has not made a claim on you for payment. In the event such demand is made by you the sums or monies demanded shall become a debt due and payable by us forthwith.
22.    If there occurs in relation to the Letter of Guarantee / Indemnity an Extraordinary Event (as defined below), you, your correspondent bank or your overseas branch shall have the sole discretion to effect payment under the Letter of Guarantee / Indemnity in any alternative currency at such exchange rate as you, your correspondent bank or your overseas branch may determine in your discretion or the discretion of your correspondent bank or your overseas branch. Any such action shall be binding on us and we shall be liable for any additional loss damages costs charges and/or expenses incurred by you, your correspondent bank or your overseas branch. An "Extraordinary Event" shall mean any event which you, your correspondent bank or your overseas branch believe to have a material adverse effect, including any form of exchange control restriction or requirement of whatsoever nature affecting the availability, convertibility, transfer of currencies or funds, any form of debt or other moratorium on jurisdictions, individuals or entities, any devaluation, re-denomination or de-monetisation and/or any form of restriction or requirement which in your opinion adversely alters or changes the rights or obligations which you, your correspondent bank or your overseas branch undertake upon the issuance / renewal of the Letter of Guarantee / Indemnity.
23.    (i) For the avoidance of doubt, we confirm that if you agree to accede to our request to renew the Letter of Guarantee / Indemnity and/or to amend / supplement the Letter of Guarantee / Indemnity, all the terms and conditions which govern the initial application for issuance of the Letter of Guarantee / Indemnity shall continue to apply in respect of the renewed / amended / supplemented Letter of Guarantee / Indemnity. (ii) We acknowledge that you have sole discretion whether or not to renew, amend or supplement the Letter of Guarantee / Indemnity and that if you do renew, amend or supplement the Letter of Guarantee / Indemnity, you may impose any additional terms and charges you deem fit and we agree to abide by such additional terms and to pay for such additional charges that you may impose. (iii) We agree that in the event that we request for amendments or modifications to the terms of the renewed Letter of Guarantee / Indemnity, it is our duty to procure the written consent of the beneficiary to such amendments, modifications or supplements and to furnish you with satisfactory proof of the same.
24.    The expression "we" or "our" includes any company or association or individual person or body of persons, corporate or unincorporated. All references to "we", "our" and "us" shall be deemed to include "I", "my" and "me". All references to Letter of Guarantee / Indemnity shall include renewed Letter of Guarantee / Indemnity and all amendments and supplements thereto.
25.    We authorise you to debit or earmark at any time and without reference to us any or all of our accounts with you by way of payment in advance of all costs, expenses and liabilities which you, your correspondent bank or your overseas branch may incur in relation to or in respect of the Letter of Guarantee / Indemnity/Counter Guarantee / Indemnity given pursuant to Clause 2 above including but not limited to the amount of any and all sums which you, your correspondent bank or your overseas branch may make to the beneficiary of the Letter of Guarantee / Indemnity as well as the amount of all charges, commission and interest accrued in relation to or in respect of the issuance / renewal of the Letter of Guarantee / Indemnity. The aforesaid advance payment is an absolute and unconditional payment and you shall not be obliged, under any circumstances whatsoever, to refund the same to us. You shall be at liberty to utilize or otherwise deal with the advance payment in any manner as you deem fit and we confirm that we have no further title, interests, rights or benefits to the moneys comprising the advance payment. If the Letter of Guarantee / Indemnity / Counter Guarantee / Indemnity expires in accordance with the terms therein without you having made any payment thereunder to the beneficiary of the Letter of Guarantee / Indemnity or to your correspondent bank or your overseas branch (in the case of Counter Guarantee / Indemnity), you will pay to us a sum equivalent to such proportion of the advance payment relating to such part of the amount of the Letter of Guarantee / Indemnity / Counter Guarantee / Indemnity which is unpaid, less all your applicable charges, commission and fees. The abovementioned advance payment shall not discharge or otherwise affect any other claims for reimbursement, repayment, interest, expenses and/or costs that you have or will have against us in respect of any instrument which you have issued or will issue at our request, or in respect of any credit or banking facilities or other accommodation which you have granted or will grant to us.
26.    A. In the event the Letter of Guarantee / Indemnity is issued in favour of The Government of the Republic of Singapore, any of its ministries, government departments, organs of state or statutory boards (collectively the “Singapore Government”), we hereby consent to the following: 
(a)   your issuance of the Letter of Guarantee/Indemnity in favour of the Singapore Government in paper form or in electronic form through the Networked Trade Platform or any other platform or mode required by the Singapore Government (the “Electronic Service”);
(b)   your disclosure to the Singapore Government, through any mode or channel determined by you or required by the Singapore Government, of all such information relating to us, the Letter of Guarantee/Indemnity, our transactions and all other information reflected in or pertaining to the Letter of Guarantee/Indemnity as may be requested by the Singapore Government (including its employees, contractors and agents) (collectively, the “BG Data”) from time to time;
(c)   the Singapore Government (including its employees, contractors and agents) collecting, using, disclosing, processing and transferring the BG Data for the purpose for which the Letter of Guarantee/Indemnity is required;
(d)   where the Letter of Guarantee/Indemnity in favour of the Singapore Government is issued in electronic form:
       (1)  unless required by the Singapore Government, such Letter of Guarantee/Indemnity will no longer be issued in paper form to the Singapore Government; and
       (2)  we agree that you may reissue such Letter of Guarantee/Indemnity in paper form if so requested by the Singapore Government, without our further concurrence, and such reissued Letter of Guarantee/Indemnity shall be valid and effectual;
       (3) where the Letter of Guarantee/Indemnity in favour of the Singapore Government is issued in paper form, you may receive claims, reject claims, discharge, extend,  amend, give notice of non-extension and take such other actions as you deem necessary with respect to the Letter of Guarantee/Indemnity through the Electronic Service; we acknowledge that we shall be bound by any changes to the terms of any Letter of Guarantee/Indemnity arising from any such actions, including any amendments.  
We agree to indemnify you against any claim, demand, action or proceeding which may be made against you and any loss, damage, cost or expense (including legal fees) which you may incur or suffer because of:
(i)  your acting or relying on our authorisation above;  and/or
(ii) any unauthorised use by any party of the Electronic Service or any failure or malfunction of the Electronic Service.
27.    This Agreement shall be governed by and construed in accordance with the laws of Singapore. In the event of any proceedings or suits commenced against us arising out of or in connection with this Agreement, we agree to submit to the non-exclusive jurisdiction of the Courts of Singapore. Without prejudice to the foregoing, we undertake not to commence proceedings or suits against you in the courts of any other jurisdiction. In the event of any proceedings or suits commenced by us against you, we agree that Singapore Courts shall have exclusive jurisdiction in respect of any disputes arising out of or in connection with the Letter of Guarantee / Indemnity. We agree to waive and do so waive any right vested on us by the laws of the jurisdiction in which we carry on business to challenge the validity or legality of any part of this provision.
28.    In the event that the original Letter of Guarantee / Indemnity which you have issued is returned without any accompanying letter or instructions, you will determine in your sole discretion whether to treat the returned Letter of Guarantee / Indemnity as indicating that it is no longer required by the beneficiary. We will treat your liabilities thereunder as conditionally discharged, subject to you not receiving any further demands from the beneficiary under the Letter of Guarantee / Indemnity by the latest date by which all demands in writing must be received by you, or upon your receipt of a letter purporting to be from the beneficiary or his bank, advising of release from your guaranteed obligations, at which time our liabilities hereunder will be fully discharged. Should such demands be received by you before full discharge of your liabilities under the Letter of Guarantee / Indemnity, our obligations and liabilities to you under this application form and Agreement shall continue in full force and effect and you reserve the right to exercise all your rights hereunder including your right of set-off as provided for in this application form and Agreement, against any accounts we maintain with you, your branches and subsidiaries domestically or overseas.