Exhibit 10.1
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DAIWA [Conformed Copy]
Daiwa Securities America Inc. Financial Square 00 Xxx Xxxx
Xxx Xxxx, XX 00000-0000
Tel: (000) 000-0000 Fax: (000) 000-0000
March 13, 1998
Maxcor Financial Inc.
Xxx Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Re: Agreement for Securities Clearance Services
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Dear Sirs:
This letter sets forth our agreement (the "Agreement") concerning
certain clearing services to be performed by Daiwa Securities America Inc.
("Daiwa") for Maxcor Financial Inc. ("Introducing Firm") with respect to
transactions of Approved Counterparties (as defined below) in the securities
specified in Exhibit A hereto ("Specified Securities"). It is understood and
agreed that this Agreement is contingent upon the approval of the New York
Stock Exchange, Inc. ("NYSE"). When so approved and signed by us, this
Agreement shall replace in its entirety the Agreement for Securities Clearance
Services between Daiwa and Introducing Firm dated June 7, 1993, revised
December 27, 1993.
1. Certain Definitions
A. "Applicable Rules" are, to the extent applicable, the Securities
Act of 1933 and The Exchange Act of 1934, all rules and regulations thereunder
and interpretations by the Securities and Exchange Commission, the rules and
regulations of the National Association of Securities Dealers ("NASD") and the
NYSE, all as in effect from time to time.
Member of all Major Exchanges
B. An "Approved Counterparty" is a dealer trading with Introducing
Firm or a customer of Introducing Firm, which Daiwa as of the date of this
Agreement is accepting as a counterparty for trades brokered by Introducing
Firm or to which Daiwa hereafter sends a letter in the form of Exhibit B and
which, in either case, Daiwa continues to consider acceptable; provided,
however, that (i) Daiwa will make no material changes to the form of Exhibit B
without the prior consent of Introducing Firm and (ii) any decision by Daiwa to
change the status of an Approved Counterparty will be communicated either
orally and followed by fax or in writing to Introducing Firm in advance of its
implementation.
C. A "Back-to-Back Transaction" occurs where Introducing Firm (i) has
executed in a recorded conversation a sale by an Approved Counterparty to be
settled by Daiwa ("Side One") of Specified Securities and a buy to be settled
by Daiwa by another Approved Counterparty of Specified Securities ("Side Two"),
(ii) has confirmed that Side One and Side Two agree on all details of the trade
that must be met in order to settle (i.e. that Side One and Side Two are
Validated Transactions) and (iii) has transmitted Side One and Side Two to
Daiwa on the same day.
D. "Clearing Corporation" means CEDEL/Euroclear or any other clearing
organization that settles Transactions that Daiwa clears for Introducing Firm.
E. A "Matching Back-to-Back Transaction" is a Back-to-Back Transaction
with respect to which the counterparty to Side One and Side Two have both
submitted instructions to the Clearing Corporation in the form required to
settle Side One and Side Two, and a "Matching Transaction" is a Back-to-Back
Transaction with respect to which only one counterparty has submitted
instructions to the Clearing Corporation in the form required to settle the
side to which such counterparty is a party.
F. "Transactions" are any trades transmitted by Introducing Firm
hereunder to Daiwa for clearing and settlement.
G. A "Validated Transaction" is a sale or purchase of Specified
Securities with an Approved Counterparty for which the Introducing Firm has
confirmed all of the trade details necessary for settlement.
2. Responsibilities of Introducing Firm
A. Transmitting Transactions
Introducing Firm shall execute orders for purchases and sales of
Specified Securities by Approved Counterparties and transmit the Transactions
to Daiwa three times a day, at approximately 12:00 p.m. and 3:00 p.m., and by
no later than 6:00 p.m. (the last of which being referred to as the "Cut-Off
Time"). Any Transactions that Daiwa receives after the Cut-Off Time shall be
subject to the additional fees set forth on Schedule A hereto.
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(i) Transmitting Back-to-Back Transactions
Introducing Firm shall not transmit to Daiwa any Transaction that, by
the Cut-Off Time, is not a Back-to-Back Transaction, with the following
exception. Introducing Firm may transmit only Side One or Side Two, if at the
end of the trading day one of the two sides is not a Validated Transaction,
subject to the aggregate amount of such one-sided Transactions not exceeding a
limit established by Daiwa and communicated to Introducing Firm from time to
time. Introducing Firm shall exert reasonable best efforts to transmit a
Validated Side One or Side Two the following business day. If introducing Firm
has not done so by the end of the day after the settlement date, Daiwa may,
upon prior notice to Introducing Firm, on the second day after settlement date
buy in or sell out the securities to settle the other side. Introducing Firm
shall be liable for all loss, costs and expenses relating thereto to the extent
set forth in Sections 2.D. and 5.A.The foregoing right of Introducing Firm to
delay the transmission of one side is subject to (i) termination at any time
that Daiwa deems that it is no longer prudent to accept only one side and (ii)
satisfactory amounts on deposit in the Collateral Account, in Daiwa's sole
discretion. In any event, such one-sided Transactions shall give rise to the
additional fees established in Section 3.A. (iii) and Schedule A, regardless of
when after trade date Introducing Firm transmits to Daiwa the other side of the
Transaction.
B. Responsibility for Accounts
Except as otherwise specified in this Agreement, Introducing Firm
shall be solely responsible for the opening, approving and monitoring of
counterparties (the "Accounts"), and ensuring that Transactions are in
compliance with the Applicable Rules. Such responsibility, where applicable,
includes, but is not limited to:
(i) Using due diligence to learn and on a continuing basis to
know the essential facts of each customer, knowing all
persons holding power of attorney over any Account, being
familiar with each order in any Account and at all times to
comply fully with Rule 405 of the NYSE and the Rules of Fair
Practice of the NASD, and any interpretations thereof, and
all similar Applicable Rules; (ii) selecting, investigating,
training and supervising all personnel who open, approve or
authorize transaction in the Accounts; (iii) establishing
written procedures for the conduct of the Accounts and
ongoing review of all Transactions in Accounts, and
maintaining compliance and supervisory personnel adequate to
implement such procedures; (iv) determining the suitability
of all Transactions; (v) ensuring that there is a reasonable
basis for all recommendations made; (vi) determining the
appropriateness of the frequency of trading in Accounts;
(vii) determining the authorization and legality of each
transaction in the Account; (viii) determining the amount of
any difference between the prices paid or received by an
Account for a Specified Security and the prices paid or
received by Daiwa for said Specified Security; (ix) obtaining
and maintaining all documents necessary for the performance
of Introducing Firm's responsibilities under this Agreement
and retaining such documents in accordance with all the
Applicable Rules; (x) responding to all its customer
inquiries and complaints, and promptly notifying
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Daiwa in writing of complaints concerning Daiwa; (xi)
arranging for completion of all Daiwa forms and providing
any supporting documents required for the opening and
maintenance of the Account and (xii) promptly furnishing
Daiwa with all information concerning its customer and
Introducing Firm's relationship with its customer and any
related documents that Daiwa may reasonably require. Nothing
herein shall restrict Daiwa from making any further inquiry
or investigation as Daiwa deems necessary.
C. Volume Limitations
Introducing Firm shall not transmit to Daiwa more than the number of
Transactions per day that Daiwa informs Introducing Firm from time to time
constitute the Introducing Firm's volume limit, as set by Daiwa in its
reasonable discretion, acting in good faith. Any Transactions in excess of the
volume limitation, as in effect from time to time, may be rejected by Daiwa,
unless Daiwa has earlier indicated orally or in writing in the course of the
applicable day that it will accept such Transactions.
D. Indemnification
Introducing Firm agrees to indemnify and hold harmless Daiwa, its
officers, directors, employees and affiliates, against any and all losses,
costs, claims and expenses (including reasonable attorneys' fees), as incurred,
(a) arising out of (i) Daiwa acting as clearing broker for Introducing Firm
pursuant to this Agreement, (ii) the negligence of Introducing Firm, its
failure to perform its obligations under this Agreement or the willful
misconduct of Introducing Firm, and (b) constituting Introducing Firm Failure
Costs or Counterparty Failure Costs (all referred to as "Indemnified Losses"),
but excluding Credit Failure Costs, as defined in Section 5.B., any indirect or
consequential losses, lost opportunity costs, or any Indemnified Loss caused by
Daiwa's negligence, its failure to perform its obligations under this
Agreement, or its willful misconduct. Daiwa shall give Introducing Firm prompt
written notice of any matter that may constitute an Indemnified Loss hereunder,
and, if the Indemnified Loss involves a third-party claim, the Introducing Firm
may, but shall not be obligated to, assume the defense thereof with counsel of
its own choosing and at its own expense.
E. Recording, Retaining Tapes
Introducing Firm shall record every trading conversation with
counterparties to Transactions and shall retain tapes of all such conversations
for at least thirty business days, and longer with respect to specified days,
Approved Counterparties or Transactions if Daiwa so requests, either orally and
confirmed by fax or in writing.
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3. Responsibilities of Daiwa
A. Clearing
Subject to the exception described in Section 2. A.(i), Daiwa is
obligated to clear only Matching Back-to-Back Transactions and Matching
Transactions with Approved Counterparties in Specified Securities, which
entails Daiwa taking a position as a fully disclosed principal on Side One and
on Side Two of Matching Back-to-Back Transactions (or, in the case of Matching
Transactions on the side that is matched) pursuant to the following procedure.
(i) Upon receipt of a transmission of Back-to-Back Transactions
from Introducing Firm, Daiwa may, but is not obligated to,
check whether all or any number of such Transactions fail to
meet the definition of a Back-to-Back Transaction. Subject to
the exception established in Section 2.A.(i), any Transaction
that does not meet the definition of a Back-to-Back
Transaction may be rejected by Daiwa, and Daiwa shall not,
unless the Transaction is subsequently accepted by Daiwa, be
principal to the counterparty nor carry the position on its
books.
(ii) Daiwa shall download to the Clearing Corporation by either
the end of the day of trade date or, with respect to
Transactions transmitted after the Cut-Off Time, on T +1, the
trade details received from Introducing Broker for each
Transaction that Daiwa has not rejected pursuant to
subsection (i) above.
(iii) On the business day following the download of information
regarding any Transaction to the Clearing Corporation, Daiwa
shall review a report from the Clearing Corporation
indicating whether any Transactions were not Back-to-Back
Transactions or were not Matching Back-to-Back Transactions.
In either case, if Introducing Firm has transmitted any
Transaction to Daiwa other than a Back-to-Back Transaction,
Introducing Firm shall pay to Daiwa the applicable fees set
forth in Schedule A, and, as set forth in Section 5.A.,
Introducing Firm shall reimburse Daiwa for all Introducing
Firm Failure Costs. Daiwa shall settle as fully disclosed
principal any Transactions for which it has sent a
confirmation, pursuant to Section 3.B. The sending of a
confirmation shall mean that Daiwa has taken a position as
principal and is therefore carrying such Transactions on its
books, notwithstanding that Introducing Firm remains
financially responsible to Daiwa hereunder for any
Introducing Firm Failure Costs and Counterparty Failure
Costs. Upon prior notice to Introducing Firm, Daiwa may take
commercially reasonable action to settle or liquidate any
unmatched Back-to-Back Transactions for which it has sent a
confirmation to the counterparty and has submitted settlement
instructions to the Clearing Corporation.
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B. Confirmations
No later than T+ 1 or one day after Daiwa has received a Transaction,
whichever is later, Daiwa shall deliver confirmations to all counterparties on
Transactions that Daiwa has not rejected pursuant to Section 3.A.(i) hereof and
that Daiwa is obligated to transmit to the Clearing Corporation, pursuant to
Section 3.A.(ii). From the time that Daiwa transmits a confirmation with
respect to a Transaction pursuant to this Section 3.B, it shall be acting as
principal for and carrying such Transaction on its books for regulatory capital
purposes.
C. Revenue; Fees
Daiwa shall receive on settled Matching Back-to-Back Transactions and
Matching Transactions revenue in the form of commissions of Introducing Firm or
the spread between Side One and Side Two. Daiwa shall remit to Introducing Firm
within five business days of the end of each calendar month such amounts
remaining after Daiwa deducts (i) its fee, as established in Schedule A,
including any additional fees set forth therein for transmissions after the
Cut-Off Time pursuant to Section 2.A. and for transmissions of non Back-to-Back
Transactions pursuant to Section 3.A (iii) ("Fees"), (ii) Introducing Firm
Failure Costs, (iii) Counterparty Failure Costs and (iv) amounts for any
Indemnified Losses.
Daiwa shall furnish Introducing Firm with a detailed supporting
schedule with each revenue payment. Daiwa's determination of the amount payable
to Introducing Firm with respect to any calendar month shall be conclusive and
binding on the parties hereto if Introducing Firm does not object thereto in
writing, with details of its objections, within thirty (30) days after its
receipt of such supporting schedule and any reasonably requested additional
information with respect thereto, provided such request is made no later than
15 days after initial receipt of the supporting schedule.
D. Safekeeping/Credit
Daiwa shall be responsible for (i) the delivery and receipt of funds
and/or Specified Securities to and from Accounts, as applicable, and for the
transfer of Specified Securities to and from Accounts and (ii) the receipt,
timely delivery and safeguarding of funds and securities and maintenance of
books and records (including preparation and timely transmittal of the trade
confirmations and statements) relating to all Transactions settled by Daiwa
pursuant to Section 3.A.
Although Daiwa in no way undertakes to extend credit to any Approved
Counterparty, if it were to do so, any credit shall be extended in compliance
with Regulation T, Rule 431 of the NYSE Rules and any other applicable margin
regulations.
E. Indemnification
Daiwa agrees to indemnify and hold harmless Introducing Firm, its
officers, directors, employees and affiliates, against any and all losses,
costs, claims and expenses (including
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reasonable attorneys' fees), as incurred, (a) caused by (i) Daiwa's failure to
perform its obligations under this Agreement or (ii) Daiwa's negligence or
willful misconduct or (b) constituting Credit Failure Costs, as defined in
Section 5.B. (all referred to as "IF Indemnified Losses"), but excluding any
indirect or consequential losses, or lost opportunity costs. The Introducing
Firm shall give Daiwa prompt written notice of any matter that may constitute
an IF Indemnified Loss hereunder, and, if the IF Indemnified Loss involves a
third party claim, Daiwa may, but shall not be obligated to, assume the defense
thereof with counsel of its own choosing and at its own expense.
F. Reports
Daiwa will provide Introducing Firm with same-day reports of
Transactions that do not constitute Back-to-Back Transactions and with daily
morning reports, starting with T+l, of Transactions that are not Matching
Transactions.
4. Separate Responsibilities
Pursuant to NYSE Rule 382, the parties have allocated between
themselves in this Agreement responsibility for compliance with all applicable
laws, rules and regulations of the SEC, NYSE and NASD. In addition, for
purposes of the Securities and Exchange Commission's financial responsibility
rules and SIPC, the Introducing Firm's customers will be considered customers
of Daiwa and not customers of the Introducing Firm; provided, however, that
nothing in this Section shall cause the Introducing Firm's customers to be
construed or interpreted as customers of Daiwa for any other purpose or to
negate the intent of any other Section of this Agreement, including, but not
limited to, the delineation of responsibilities as set forth elsewhere in this
Agreement.
Each party shall be solely responsible for (i) adherence to Applicable
Rules and for the supervision of its own operations area and personnel; (ii)
compliance with all restricted/control stock requirements, as applicable to it;
(iii) compiling and filing its respective regulatory reports, as applicable;
and (iv) supplying the other with reasonable access to its relevant records and
supplying any information in its possession reasonably requested by such party
in order for both parties to properly perform their respective functions under
the Agreement. Each party shall be responsible for its own errors with respect
to this Section 4.
5. Failure to Match; Failure to Settle; Responsibilities of the Parties
A. Not Back-to-Back Transactions/Introducing Firm Failure
In the event Daiwa receives a Transaction that does not meet the
definition of a Back-to-Back Transaction for any reason, including without
limitation, (i) the failure of Introducing Firm to transmit to Daiwa Validated
Transactions or (ii) the failure of Introducing Firm to transmit to Daiwa Side
One and Side Two on the same day, Introducing Firm shall have full
responsibility
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for, and shall pay to Daiwa upon demand, all amounts constituting Daiwa's
reasonable out-of-pocket costs (whether or not already paid), losses and
expenses (including reasonable attorneys' fees) arising therefrom including,
without limitation, costs to buy-in, borrow or sell-out the securities, to
compel performance by the counterparty, or to pay additional personnel or
overtime, but only if such additional personnel or overtime costs are beyond
the ordinary course of business. All of the foregoing are referred to as
"Introducing Firm Failure Costs". Also, Introducing Firm shall be obligated to
pay the applicable fees set forth in Schedule A.
B. Settlement Failure/Counterparty Failure
In the event Daiwa has transmitted a Back-to-Back Transaction to the
Clearing Corporation that becomes a Matching Back-to-Back Transaction but that
(i) fails on settlement date due to failure of the counterparty to deliver
securities or cash or (ii) fails to become a Matching Back-to-Back Transaction
because of the failure of the counterparty to either Side One or Side Two to
send to the Clearing Corporation adequate instructions required for settlement,
but excluding in either case counterparty failure due to actual or impending
bankruptcy or similar insolvency proceedings or credit issues ("Credit Failure
Costs"), Introducing Firm shall be responsible for, and shall pay to Daiwa upon
demand, all amounts constituting Daiwa's reasonable out-of-pocket costs
(whether or not already paid), losses and expenses (including reasonable
attorneys' fees) arising from such fail, including, without limitation, costs
to buy-in, borrow or sell-out securities, to compel performance by the
counterparty, to pay additional personnel or to pay overtime, but only if such
personnel or overtime costs are beyond the ordinary course of business. All of
the foregoing costs, losses, and expenses are referred to herein as the
"Counterparty Failure Costs".
C. Suspension of Certain Trading
If at any time the number of Transactions (either Side One or Side
Two), with respect to which the counterparty has not provided Clearing
Corporation with matching instructions, reaches an amount that Daiwa finds
unacceptable Daiwa may, acting in good faith, suspend accepting Transactions
from Introducing Firm, with respect to that counterparty, immediately upon
written or oral notice, until such time that Daiwa decides that it is prudent
to resume accepting such Transactions hereunder.
If at any time the number of Transactions that are not Back-to-Back
Transactions reaches an amount that Daiwa finds unacceptable (subject to
Section 2.A.(i)), Daiwa may, acting in good faith, suspend accepting
Transactions from Introducing Firm immediately upon written or oral notice,
until such time that Daiwa decides that it is prudent to resume accepting
Transactions hereunder.
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D. Regulatory Capital
It is understood that in no event shall Introducing Firm Failure
Costs, Counterparty Failure Costs or Indemnified Losses include any costs or
expenses of Daiwa incurred in connection with capital charges for Transactions,
unless Daiwa is required to obtain capital in addition to the amount it
normally has as excess net capital as a result of the failure of Introducing
Firm to perform its obligations under this Agreement.
6. Introducing Firm Representations and Covenants
Introducing Firm represents, warrants and covenants to Daiwa as
follows:
(i) It is a member in good standing of the NASD.
(ii) It is and during the term of this Agreement will remain duly
registered or licensed and in good standing as a
broker/dealer under the Applicable Rules.
(iii) It has all the requisite authority in conformity with all
Applicable Rules to enter into this Agreement and to retain
the services of Daiwa in accordance with the terms hereof and
has taken all necessary action to authorize the execution of
this Agreement and the performance of the obligations
hereunder.
(iv) It is in compliance, and during the term of this Agreement
will remain in compliance with (a) the capital and financial
reporting requirements of any and all national securities
exchange or other securities exchange and/or securities
association of which it is a member, (b) the capital
requirements of the Securities and Exchange Commission and
(c) the NASD Rules of Fair Practice.
(v) It shall provide representatives of any governmental body
having jurisdiction over the respective businesses of the
parties with reasonable access to the records relating to
Accounts and their owners.
(vi) It shall keep confidential any information it may acquire as
a result of this Agreement regarding the business and affairs
of Daiwa, which requirements shall survive the termination of
this Agreement.
7. Daiwa Representations and Covenants
Daiwa represents, warrants and covenants to Introducing Firm as
follows:
(i) Daiwa is a member in good standing of the NASD and of the
NYSE.
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(ii) Daiwa is and during the term of this Agreement will remain
duly licensed and in good standing as a broker/dealer under
the Applicable Rules.
(iii) Daiwa has all the requisite authority, in conformity with all
Applicable Rules to enter into and perform this Agreement and
has taken all necessary action to authorize the execution of
this Agreement and the performance of the obligations
hereunder.
(iv) Daiwa is in compliance, and during the term of this Agreement
will remain in compliance with (a) the capital and financial
reporting requirements of every national securities exchange
and/or other securities exchange or association of which it
is a member, (b) the capital requirements of the Securities
and Exchange Commission and (c) the NASD Rules of Fair
Practice.
(v) The names and addresses of Introducing Firm's customers which
have or which may come to Daiwa's attention in connection
with the clearing and related functions it has assumed under
this Agreement are confidential and shall not be utilized by
Daiwa except in connection with the functions performed by
Daiwa pursuant to this Agreement. Notwithstanding the
foregoing, should any customer of Introducing Firm request,
on an unsolicited basis that Daiwa become its broker,
acceptance of such Account by Daiwa shall in no way violate
this representation and warranty, nor result in a breach of
this Agreement.
(vi) Daiwa shall keep confidential any information it may acquire
as a result of this Agreement regarding Introducing Firm's
business and affairs, which requirement shall survive the
termination of this Agreement.
8. Nature of Relationship
A. Daiwa shall limit its services pursuant to the terms of this
Agreement to that of the clearing and the specified related functions described
herein, and Introducing Firm shall not hold itself out as an agent of Daiwa or
of any subsidiary or company controlled directly or indirectly by or affiliated
with Daiwa. Neither this Agreement nor any operation hereunder shall create a
general or limited partnership, association or joint venture or agency
relationship between the parties.
B. Introducing Firm shall not, without the prior written approval of
Daiwa, place any advertisement in any newspaper, publication, periodical or any
other media if such advertisement in any manner makes reference to Daiwa or to
the clearing arrangements set forth in this Agreement; provided, however, that
the public parent company of Introducing Firm may name Daiwa and accurately
describe this Agreement in any filing such company makes with the Securities
and Exchange Commission pursuant to either the Securities Act of 1933 or the
Securities Exchange Act of 1934.
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C. Should Introducing Firm in any way hold itself out as, advertise or
represent that it is the agent of Daiwa, Daiwa may, at its option, terminate
this Agreement and Introducing Firm shall be liable for any loss, liability,
damage, claim, cost or expense (including but not limited to reasonable fees
and expenses of legal counsel) sustained or incurred by Daiwa as a result of
such a representation of agency or apparent authority to act as an agent of
Daiwa or agency by estoppel.
9. Deposit of Collateral
A. To ensure Introducing Firm's performance of its obligations under
this Agreement (including, without limitation, the payment of Fees, Introducing
Firm Failure Costs, Counterparty Failure Costs and Indemnified Losses), there
shall be established a securities holding account with Daiwa to be opened in
the name of Introducing Firm and designated as the Introducing Firm Collateral
Account (the "Collateral Account"). The Collateral Account shall at all times
contain cash, securities, or a combination of both, having a market value of
not less than the sum required by Daiwa as of the date of this Agreement;
provided that Daiwa shall have the right, in its reasonable discretion, to
increase upon not less than three business days notice to Introducing Firm, the
Collateral Amount to reflect materially changed conditions relating to the
Introducing Firm or its business or an unusually high number or value of
unresolved errors or fails with respect to Transactions (the "Collateral
Amount"). Said securities shall consist only of direct obligations issued by or
guaranteed as to principal and interest by the United States and such other
securities as Daiwa may in writing consent to, in its sole discretion, from
time to time. As collateral security for all of its obligations to Daiwa under
and with respect to this Agreement, Introducing Firm hereby pledges, assigns
and grants a first priority security interest and lien to Daiwa in and upon all
property from time to time now or hereafter in the Collateral Account, and
Daiwa shall have all rights and remedies with respect thereto of a secured
party under the New York Uniform Commercial Code or other applicable law, as
well as its other rights hereunder. Introducing Firm represents and warrants
that any Collateral shall be free of any lien, pledge or interest other than
that of Daiwa. Introducing Firm shall be entitled to receive all cash
distributions made on or in respect of the securities unless the market value
of the cash and/or securities in the Collateral Account is less than the
Collateral Amount. If the Collateral Account consists of cash, Daiwa shall pay
interest to the Introducing Firm on this cash held from time to time at an
agreed upon rate. If at any time the market value of the cash and/or securities
in the Collateral Account fall below 90% of the Collateral Amount, as
determined by Daiwa, Daiwa may, by notice to Introducing Firm, demand that
Introducing Firm deliver additional collateral to the Collateral Account no
later than the third following business day to increase the market value to the
full Collateral Amount.
B. Except as provided herein, Introducing Firm shall not have access
to, nor have any right to transfer or withdraw any cash or securities from, the
Collateral Account without the prior written consent of Daiwa. The Collateral
Account shall not be deemed to be margin for any Approved Counterparty
accounts.
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C. Daiwa shall have the right to deduct the amount of any and all
amounts owed to Daiwa hereunder, including without limitation, Fees,
Introducing Firm Failure Costs and Counterparty Failure Costs and Indemnified
Losses, from the securities collateral, and, in such event, Daiwa shall have
the right to liquidate the securities in a commercially reasonable manner;
provided, however, Daiwa agrees to deduct the foregoing amounts first from
revenue, pursuant to Section 3.C. and then, to the extent revenue is
insufficient, from the Collateral Account. Any amounts deducted from revenue or
the Collateral Account, which are subsequently determined (by Daiwa, mutual
agreement, arbitration or otherwise) to be incorrect, excessive or otherwise
not the responsibility of Introducing Firm, shall be promptly reimbursed by
Daiwa to Introducing Firm together with interest thereon (from the date of
deduction to the date of reimbursement) calculated at a comparable Treasury
rate.
D. Within thirty (30) days of the termination of this Agreement, Daiwa
will (a) effect the payment and delivery to Introducing Firm of the funds
and/or securities in the Collateral Account, less any amounts Daiwa is entitled
to withdraw under the preceding paragraph; provided, however, that Daiwa may
retain in the Collateral Account such amount as it reasonably deems appropriate
for its protection from any claim or proceeding of any type then threatened or
pending, until the final determination thereof is made, and (b) deliver or
cause to be delivered to Introducing Firm (without the reproduction or other
copying thereof) all documents and other materials, including customer lists,
prepared in connection with this Agreement or the business of Introducing Firm,
except for such documents and other materials as Daiwa may have destroyed in
the normal course of its business or may be required to keep for regulatory
purposes or otherwise as may be required by law. In any event, Daiwa agrees
that no such documents or other materials will be distributed by it to any
person or group in or outside Daiwa that does not have responsibility for the
administration, legal or audit review of this Agreement or transactions
thereunder.
10. Assignment
This Agreement shall be binding upon and inure to the benefit of each
party hereto and its successors and assigns. Introducing Firm may not assign
its rights and/or obligations hereunder without the prior written consent of
Daiwa, except pursuant to a merger or other business combination with another
wholly-owned subsidiary of Maxcor Financial Group Inc. in which the resulting
entity has a net worth at least equal to that of the Introducing Firm as of the
date hereof.
11. Amendments; Waiver; Integration
Any amendment or supplement to this Agreement and any waiver of any
rights hereunder must be in writing signed by the Parties. Further, without
limiting the foregoing, no failure to enforce a right, no act or pattern of
conduct shall constitute an amendment, supplement or waiver. This Agreement
supersedes all other agreements between the parties with respect to the subject
matter hereof.
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12. Governing Law
This agreement shall be construed and interpreted in accordance with
the internal laws of the state of New York without reference to choice of law
principles.
13. Arbitration
Each party agrees that any claim, dispute, grievance or controversy
arising under this Agreement or any Transactions executed or arising therefrom
or thereunder shall be settled by arbitration pursuant to and in accordance
with Article XI of the NYSE Constitution and the NYSE Arbitration Rules. Each
party further agrees to service of process in any arbitration proceeding by
mailing of copies thereof (by registered or certified mail, if practicable)
postage prepaid, or by telex, to it at an address for notices under this
Agreement; and agrees that nothing herein shall affect the other party's right
to effect service of process in any other manner permitted by NYSE Arbitration
Rules, and that each party shall have the right to bring a proceeding for
enforcement of a judgment entered by any arbitration panel against the other
party in any court or jurisdiction in accordance with applicable law.
14. Termination
This Agreement may be terminated by either party upon thirty days'
written notice given to the other party at any time, or immediately upon
written notice following an Event of Default which event shall occur if (i)
either party shall fail to perform or observe any term, covenant or condition
to be performed or observed by it hereunder and such failure shall continue to
be unremedied for a period of five business days after written notice from the
non-defaulting party to the defaulting party specifying the failure and
demanding that the same be remedied; (ii) any representation or warranty made
by either party shall prove to be incorrect at any time in any material
respect; (iii) a receiver, liquidator or trustee of either party, or of any
material property held by either party, is appointed by court order; or either
party is adjudicated bankrupt or insolvent; or any of its material property is
sequestered by court order and such order is not appealed and stayed within
fifteen days of its entrance; or a petition is filed against either party under
the bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now or hereafter in
effect and is not dismissed within fifteen days of such filing, or (iv) either
party makes an assignment for the benefit of its creditors, or admits in
writing its inability to pay its debts generally as they become due, or
consents to the appointment of a receiver, trustee or liquidator of either
party, or of any property held by either party.
13
15. Notices
Written notices shall be properly made if hand delivered, mailed
(registered mail) or telecopied ("faxed") to the party entitled to receive such
notices at the following address or telephone number:
To Introducing Firm:
Maxcor Financial Inc.
0 Xxxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, X.X. 10048-0697
Tel. No: 000-000-0000
Fax No.: 000-000-0000
Attn.: Xxxxx X. Xxxx, Senior Vice President
and Assistant Treasurer
To Daiwa:
Daiwa Securities America Inc.
Financial Square
00 Xxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel. No.: 000 000-0000
Fax No.: 000 000-0000
Attn.: Xxxxxx X. Xxxxxx, Executive Vice President
Correspondent Services
14
16. Miscellaneous
There will be no Account opened on behalf of any employee or officer
of any New York Stock Exchange member organization, self-regulatory
organization or other financial institution without the prior written consent
of Daiwa.
This Agreement and all transactions in the Accounts, will be subject
to the applicable constitution, rules, by-laws, regulations and customs of any
securities market, association, exchange or clearing house where such
transactions are effected, and also to all applicable NYSE and NASD Rules and
to all U.S. federal and state laws and regulations.
All telephone conversations in connection with Transactions under the
Agreement may be electronically recorded and may be used to resolve any
uncertainty or any dispute arising in connection with this Agreement or any
transaction hereunder.
Please indicate your agreement with the foregoing by signing and
returning the enclosed copy of this letter.
Very truly yours,
DAIWA SECURITIES AMERICA INC.
/s/ Daiwa Securities America Inc.
---------------------------------
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST SET FORTH ABOVE:
MAXCOR FINANCIAL INC.
/s/ Maxcor Financial Inc.
--------------------------
15
Exhibit A
---------
Schedule of Specified Securities
--------------------------------
1. Securitized Adjustable Rate Mortgages
2. Asset-backed Securities bearing a credit rating of AA or better
3. Collateralized Mortgage Obligations bearing a credit rating of AA or
better
4. GNMA, FNMA and Xxxxxxx Mac Securities
5. Xxxxx Xxxxx
6. U.S. Government and Agency Securities
7. Sovereign Debt - EuroClear/CEDEL/DTC Eligible
8. Euro Bonds
9. Corporate Securities
10. Convertible Bonds
11. Municipal Securities
16
Exhibit B
---------
[Daiwa Letterhead]
___________, 19____
[Customer Name and Address]
Re [Name of Introducing Firm]:
Allocation of Brokerage Account Responsibilities
------------------------------------------------
Ladies and Gentlemen:
As you know, your account has been introduced to Daiwa Securities
America Inc. ("Daiwa") by your brokerage firm _______ ("XXX"), for the purpose
of Daiwa clearing trades, as fully-disclosed principal, in certain specified
securities pursuant to the clearing service agreement between XXX and Daiwa.
Once Daiwa enters a trade on its books, you will be considered a
customer of Daiwa for purposes of the Securities and Exchange Commission's
financial responsibility rules and the Securities Investor Protection Act.
Nothing herein shall cause customers of XXX to be construed as customers of
Daiwa for any other purpose.
In establishing this relationship, XXX is acting solely on your behalf
and not on behalf of or as the agent of Daiwa. XXX shall remain responsible for
the ongoing relationship with you, and for the following:
- Learning your investment objectives and opening, approving
and monitoring your account, and in all respects complying
with Rule 405 of the New York Stock Exchange.
- Reviewing your account and all orders in it and supervising
all investment advice.
- Accepting or rejecting your orders and correcting errors in
trade details in order to transmit only matching transactions
to Daiwa.
- Ensuring that all the transactions conducted in your account
are in compliance with all applicable law and rules.
- Responding to any inquiries or complaints you may make
concerning your account.
17
Allocation of Brokerage Account Responsibilities
Page 2
- Supervising all functions performed by XXX's employees,
including, investment advisory, sales, trading and account
opening and approving activities.
Additionally, XXX is responsible to Daiwa for supplying all
documentation required by Daiwa, notwithstanding the fact that Daiwa has at all
times the right to contact you directly regarding its information requirements.
Daiwa has at all times the right, exercisable in its sole discretion, to refuse
to accept orders for your account.
Daiwa will be responsible for the following:
Clearing, as principal, transactions in your account pursuant to XXX's
instruction.
- Maintaining books and records and filing regulatory reports.
- Delivering from and receiving funds and securities for your
account, receiving and holding dividends or interest and
handling exchange or tender offers, rights, warrants and
redemptions, all in accordance with the last instructions
received either from you or XXX.
- Safeguarding funds and securities.
- Preparing and transmitting confirmations and statements.
Any questions you may have concerning the conduct of your account
should be addressed directly to XXX.
You agree that any and all telephone conversations between us with
respect to the contemplated transactions may be tape recorded and you hereby
waive further notice of tape recording. In the event of any dispute, tapes can
be used in any forum in which a dispute is sought to be resolved.
Very truly yours,
By:
------------------------------------
DAIWA SECURITIES AMERICA INC.
Xxxxxx X. Xxxxxx
Executive Vice President
Head of Sales & Administrative Services
Correspondent Services Division
18
Schedule A
----------
Schedule A has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of
1934, as amended.
19
