These FX Terms and Conditions shall form the contract to which any foreign exchange trades including, without limitation, any standing instruction for a foreign exchange trade (each a “Transaction”) entered into between Brown Brothers Harriman & Co. (“BBH”) and a counterparty (“you,” “your”) apply, except to the extent (if any) that BBH shall have agreed in writing or notified you in writing otherwise that other or additional terms apply.
1. Settlement Netting. Unless agreed otherwise in writing by BBH, any amounts payable by a party to a Transaction to the other party to such Transaction in respect of sales or purchases of the same currency for the same value date will settle for the net amount of the currency bought and sold, and each party’s obligation to make payment of the gross amount will be automatically satisfied and discharged and replaced by an obligation on the relevant party to make payment of the net amount
2. Events of Default. (i) Each of the following shall be deemed an event of default (each, an “Event of Default”): (a) Failure by you to make (or your available funds are insufficient to make), when due, any payment required under a Transaction, if such failure is not remedied on or before the first business day after notice of such failure from BBH; (b) You, your parent, affiliate or investment manager/advisor (where applicable), are subject to an event involving the bankruptcy, insolvency, receivership, liquidation, dissolution, or winding-up, enforcement of a lien or security interest, foreclosure or other legal process involving the loss of beneficial ownership of the whole of or a substantial part of its assets (an “Insolvency Event”); or (c) You are subject to an event or series of events whether or not within your control (including without limitation, any material adverse change in your business, assets or financial condition/position or credit rating) which BBH determines in its sole discretion may adversely affect your ability to perform your obligations under any Transaction.
3. Consequences of Termination. (i) Following termination under Clauses 2 above and 5 below, BBH shall have the right to close out all outstanding Transactions between you and BBH. BBH will use the methodology set out in Section 6(e)(i) of the 2002 ISDA Master Agreement, as published by the International Swaps and Derivatives Association, Inc. (“ISDA Agreement”) to calculate the payment due on termination (the “Early Termination Amount”). In applying Section 6(e)(i) of the ISDA Master Agreement, references to “Terminated Transaction” mean each Transaction subject to close out under this clause, the “Termination Currency” is US Dollars, the “Determining Party” in the definition of “Close-out Amount” is BBH, and the “Early Termination Date” is the effective date of termination under Clauses 2 above and 5 below, as the case may be. (ii) BBH will notify you (or your investment manager/advisor, as the case may be) of the Early Termination Amount in writing as soon as reasonably practicable following termination. If an Early Termination Amount is owed to BBH, you will pay to BBH to an account specified by BBH. If the amount is owed to you by BBH, BBH will pay the absolute value of the Early Termination Amount to your account. Such payments will be payable on the date on which BBH provides the notification under this clause.
4. Set-Off. (i) BBH shall have a general right of set-off with respect to all amounts owed by you pursuant to a Transaction or otherwise, whether due and payable or not, and regardless of whether an Event of Default has occurred and/or whether a Transaction has been terminated. (ii) BBH’s rights hereunder shall be in addition to, and not in limitation or exclusion of, any rights which BBH may have (by agreement, operation of law or otherwise).
5. Force Majeure. No liability will attach to any party for any losses or damages as a result of a Force Majeure event. A Force Majeure event shall mean any circumstance or event which is beyond the reasonable control of the affected party (the “Affected Party”) (other than as a result of its own misconduct), and which materially and adversely affects the performance by such Affected Party of its obligations (whether absolute or contingent) hereunder, including any event caused by, arising out of or involving (a) an act of God, (b) accident, fire, water or wind damage or explosion, (c) any computer, system or other equipment failure or malfunction caused by any computer virus or the malfunction or failure of any communications medium, (d) any interruption of the power supply or other utility service, (e) any strike or other work stoppage, whether partial or total, (f) any act of war, terrorism, riot, insurrection or civil commotion or other act caused by economic or political factors, (g) the imposition of any taxes, levies or other charges affecting currencies or Transactions, (h) any change in the applicable laws such that settlement is prohibited or legally impossible or impracticable, (i) any disruption of, or suspension of trading in, the securities, commodities or foreign exchange markets or delay or disruption in the execution or settlement of Transactions, (j) any encumbrance or adverse effect on the transferability, convertibility, or ability to hold a currency or a currency position on the actual settlement date of a Transaction, or (k) any other cause similarly beyond the reasonable control of the Affected Party. In the event of a Force Majeure event, the non-Affected Party may terminate the affected Transactions upon written notice to the Affected Party with immediate effect, and the provisions of Clause 3 shall apply to such outstanding affected Transactions.
6. Transaction Instructions, Confirmations and Settlement Instructions. (i) Transaction instructions may be given by you to BBH in such manner and subject to such terms as agreed between the parties from time to time. BBH may, without further enquiry, act on, and you shall be bound by, any instruction actually received by BBH, which it reasonably believes, in good faith, to have been given by you, or on your behalf. (ii) BBH will endeavor to dispatch a confirmation within 24 hours of execution of a Transaction, in such manner as agreed between the parties from time to time. Unless you notify BBH prior to settlement with reasonable time for BBH to unwind the trade that a confirmation is incorrect or that the Transaction described therein was not properly authorized, such Transaction shall be deemed valid and binding on you. BBH’s failure for any reason to provide a confirmation shall not invalidate any Transaction executed by BBH. (iii) You will provide to BBH a list of the persons designated to receive confirmations from BBH, along with their contact information (e.g., mailing addresses, email addresses, facsimile and/or telephone numbers, and SWIFT addresses, as applicable) in a format agreed by the parties. Unless and until notified otherwise by you in writing, BBH shall be entitled to conclusively rely on any such list of designated persons (and the information set out therein) provided by you from time to time. You acknowledge that electronic mail (“e-mail”) transmissions through the Internet and/or facsimile transmissions are not a guaranteed method of delivery and may be susceptible to loss of information, errors, mis-delivery, mis-transmission, delivery delays, deletions in error, and unwanted access and use by third parties. You further acknowledge that the receipt of legible instructions via facsimile cannot be assured, that BBH cannot verify that authorized signatures on a facsimile instruction are original or properly affixed. Accordingly, you agree not to hold BBH liable for any losses incurred as a consequence of effecting any e-mail or facsimile instructions.
7. Electronic Communications. You consent to the monitoring and recording of all electronic communications (including e-mail, voicemail, telephone calls and website usage) between you and BBH and agree (i) to notify (and where applicable, obtain consent from) their employees and officers of such recording and monitoring if legally required; and (ii) that any such recordings may be submitted in evidence to any court or in any legal proceeding related to a Transaction.
8. Assignment, Integration, Qualifying Financial Contract. No assignment of this contract or any of your rights or obligations hereunder shall be made without BBH’s express prior written consent, and any such purported assignment or transfer without BBH’s prior written consent shall be of no effect. This contract shall be binding upon you and/or your estate, executors, administrators, successors and assigns. Time is of the essence with respect to all of your performance. This contract, together with all Transactions and options between you and BBH constitute one integrated contract (notwithstanding BBH’s right to consider each Transaction a separate contract for purposes of the fifth paragraph above). This contract shall constitute a “qualifying financial contract” as that term is defined in the New York General Obligations Law and Uniform Commercial Code and is a final expression of the agreement of BBH and you with respect to the Transactions listed on the reverse side hereof.
9. Jurisdiction and Governing Law. This contract and the Transactions between you and BBH shall be governed by, and construed in accordance with, the laws of the State of New York without reference to any choice of law rules. BBH and you irrevocably (a) submit to the non-exclusive jurisdiction of the court of the State of New York and the United States District Court located in the Borough of Manhattan in New York City, (b) waive any objection to the laying of venue in such courts, (c) waive any claim that any suit, action or proceeding in any such court has been brought in an inconvenient forum, (d) waive the right to object that any such court does not have jurisdiction over BBH or you, as the case may be, (e) waive the right to trial by jury in any suit, action or proceeding, and (f) designate the Secretary of State of the State of New York as its agent for the service of process (provided that BBH and you may by written notice to the other change its/your designation of agent to a specified person located in the Borough of Manhattan).
This information is not intended as financial advice or as an offer or recommendation of any financial products and is subject to change without notice. Neither Brown Brothers Harriman & Co. nor its affiliates accept any responsibility for the results or liabilities arising out of the use of this information. All information supplied by BBH & Co. is from sources deemed reliable and is furnished subject to errors, omissions, modifications. and is not guaranteed. The recipient of this report acknowledges and agrees that is solely responsible for any trading or investment decisions that the recipient makes after reviewing this report, and also agrees that BBH and its affiliates bear no responsibility or liability for such decisions.