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 Vanward (“Vanward”) and a counterparty (“you,” “your”) apply, except to the extent (if any) that
Vanward 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 Vanward, 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 Vanward; (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 Vanward 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, Vanward shall have
the right to close out all outstanding Transactions between you and Vanward. Vanward 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 Vanward, and the “Early Termination
Date” is the effective date of termination under Clauses 2 above and 5 below, as the case may be. (ii) Vanward
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
Vanward, you will pay to Vanward to an account specified by Vanward. If the amount is owed to you by Vanward, Vanward will
pay the absolute value of the Early Termination Amount to your account. Such payments will be payable on the
date on which Vanward provides the notification under this clause.
4. Set-Off.
(i) Vanward 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) Vanward’s rights hereunder shall be in
addition to, and not in limitation or exclusion of, any rights which Vanward 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 Vanward in such manner and subject to such terms as agreed between the parties from time to
time. Vanward may, without further enquiry, act on, and you shall be bound by, any instruction actually
received by Vanward, which it reasonably believes, in good faith, to have been given by you, or on your behalf.
(ii) Vanward 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 Vanward prior to settlement with
reasonable time for Vanward 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.
Vanward’s failure for any reason to provide a confirmation shall not invalidate any Transaction executed by
Vanward. (iii) You will provide to Vanward a list of the persons designated to receive confirmations from Vanward,
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, Vanward 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 Vanward
cannot verify that authorized signatures on a facsimile instruction are original or properly affixed.
Accordingly, you agree not to hold Vanward 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 Vanward 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 Vanward’s express prior written consent, and any such
purported assignment or transfer without Vanward’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 Vanward constitute one integrated contract (notwithstanding Vanward’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 Vanward 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 Vanward 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. Vanward 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 Vanward 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 Vanward 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 Vanward nor its affiliates accept any
responsibility for the results or liabilities arising out of the use of this information. All information
supplied by Vanward & 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 Vanward and its affiliates bear no responsibility or liability for such decisions.
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