Exhibit 10.1
WEXFORD CLEARING SERVICES CORPORATION
May 19, 1999
Maxcor Financial Inc.
Xxx Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Re: Agreement for Securities Clearance Services
Dear Sirs:
This letter sets forth our agreement (the "Agreement") concerning
certain clearing services to be performed by Wexford Clearing Services Corp.
("Wexford") 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"). Wexford will use its good faith efforts to obtain such
approval and have this Agreement effective on or before June 25, 1999.
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.
B. An "Approved Counterparty" is a dealer trading with Introducing Firm
or a customer of Introducing Firm, which Wexford as of the date of this
Agreement is accepting as a counterparty for trades brokered by Introducing Firm
or to which Wexford hereafter sends a letter in the form of Exhibit B and which,
in either case, Wexford continues to consider acceptable; provided, however,
that (i) Wexford will make no material changes to the form of Exhibit B without
the prior consent of Introducing Firm and (ii) any decision by Wexford 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 Wexford ("Side
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One") of Specified Securities and a buy to be settled by Wexford 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 Wexford on the same day.
D. "Clearing Corporation" means CEDEL/Euroclear or any other clearing
organization that settles Transactions that Wexford 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 Wexford 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
Wexford 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 Wexford receives after the Cut-Off Time shall be
subject to the additional fees set forth on Schedule A hereto.
(i) Transmitting Back-to-Back Transactions
Introducing Firm shall not transmit to Wexford 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 Wexford 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, Wexford 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
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subject to (i) termination at any time that Wexford deems that it is no longer
prudent to accept only one side and (ii) satisfactory amounts on deposit in the
Collateral Account, in Wexford'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 Wexford 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 Conduct Rules 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
Wexford 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 Wexford in writing of
complaints concerning Wexford; (xi) arranging for completion
of all Wexford forms and providing any supporting documents
required for the opening and maintenance of the Account and
(xii) promptly furnishing Wexford with all information
concerning its customer and Introducing Firm's relationship
with its customer and any related documents that Wexford may
reasonably require. Nothing herein shall restrict Wexford from
making any further inquiry or investigation as Wexford deems
necessary.
C. Volume Limitations
Introducing Firm shall not transmit to Wexford more than the number of
Transactions per day that Wexford informs Introducing Firm from time to time
constitute the Introducing Firm's
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volume limit, as set by Wexford 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, Wexford, unless Wexford 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 Wexford, 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) Wexford acting as clearing broker for Introducing Firm
pursuant to this Agreement or (ii) Introducing Firm's 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 Wexford's negligence, its
failure to perform its obligations under this Agreement, or its willful
misconduct. Wexford 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 Wexford so requests, either orally
and confirmed by fax or in writing.
3. Responsibilities of Wexford
A. Clearing
Subject to the exception described in Section 2. A.(i), Wexford is
obligated to clear only Matching Back-to-Back Transactions and Matching
Transactions with Approved Counterparties in Specified Securities, which entails
Wexford 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, Wexford 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, Wexford, and
Wexford shall not, unless the Transaction is subsequently
accepted by Wexford, be principal to the counterparty nor
carry the position on its books.
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(ii) Wexford 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 Wexford 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, Wexford 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 Wexford other than a
Back-to-Back Transaction, Introducing Firm shall pay to
Wexford the applicable fees set forth in Schedule A, and, as
set forth in Section 5.A., Introducing Firm shall reimburse
Wexford for all Introducing Firm Failure Costs. Wexford 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 Wexford has taken a
position as principal and is therefore carrying such
Transactions on its books, notwithstanding that Introducing
Firm remains financially responsible to Wexford hereunder for
any Introducing Firm Failure Costs and Counterparty Failure
Costs. Upon prior notice to Introducing Firm, Wexford 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.
B. Confirmations
No later than T+1 or one day after Wexford has received a Transaction,
whichever is later, Wexford shall deliver confirmations to all counterparties on
Transactions that Wexford has not rejected pursuant to Section 3.A.(i) hereof
and that Wexford is obligated to transmit to the Clearing Corporation, pursuant
to Section 3.A.(ii). From the time that Wexford 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
Wexford 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. Wexford shall remit to Introducing
Firm within five business days of the end of each calendar month such amounts
remaining after Wexford 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.
Wexford shall furnish Introducing Firm with a detailed supporting
schedule with each revenue payment. Wexford'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
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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
Wexford 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 Wexford
pursuant to Section 3.A.
Although Wexford 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
Wexford agrees to indemnify and hold harmless Introducing Firm, its
officers, directors, employees and affiliates, against any and all losses,
costs, claims and expenses, reasonable legal fees (including reasonable) legal
fees incurred in the enforcement of this provision), as incurred, (a) caused by
(i) Wexford's failure to perform its obligations under this Agreement or (ii)
Wexford'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 Wexford 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, Wexford may, but shall not be obligated to, assume
the defense thereof with counsel of its own choosing and at its own expense.
F. Reports
Wexford 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+1, 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 Wexford
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 Wexford for any other purpose or to negate the
intent of any other
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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 Wexford 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 Wexford Validated
Transactions or (ii) the failure of Introducing Firm to transmit to Wexford Side
One and Side Two on the same day, Introducing Firm shall have full
responsibility for, and shall pay to Wexford upon demand, all amounts
constituting Wexford'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".
B. Settlement Failure/Counterparty Failure
In the event Wexford 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 Wexford
upon demand, all amounts constituting Wexford'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".
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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 Wexford finds
unacceptable Wexford 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 Wexford 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 Wexford finds unacceptable (subject to
Section 2.A.(i)), Wexford may, acting in good faith, suspend accepting
Transactions from Introducing Firm immediately upon written or oral notice,
until such time that Wexford decides that it is prudent to resume accepting
Transactions hereunder.
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 Wexford incurred in connection with capital charges for Transactions.
6. Fees and Charges
Introducing Firm agrees to pay Wexford the fees and charges set forth
in Schedule A hereto.
7. Introducing Firm Representations and Covenants
Introducing Firm represents, warrants and covenants to Wexford 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 Wexford 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 Conduct Rules.
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(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 Wexford, which requirements shall survive the
termination of this Agreement.
8. Wexford Representations and Covenants
Wexford represents, warrants and covenants to Introducing Firm as
follows:
(i) Wexford is a member in good standing of the NASD and of
the NYSE.
(ii) Wexford 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) Wexford 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) Wexford 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 Conduct
Rules.
(v) The names and addresses of Introducing Firm's customers
which have or which may come to Wexford's attention in
connection with the clearing and related functions it has
assumed under this Agreement are confidential and shall not be
utilized by Wexford except in connection with the functions
performed by Wexford pursuant to this Agreement.
Notwithstanding the foregoing, should any customer of
Introducing Firm request, on an unsolicited basis that Wexford
become its broker, acceptance of such Account by Wexford shall
in no way violate this representation and warranty, nor result
in a breach of this Agreement.
(vi) Wexford 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.
9. Nature of Relationship
A. Wexford 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 Wexford or
of any subsidiary or company controlled directly or
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indirectly by or affiliated with Wexford. 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
Wexford, place any advertisement in any newspaper, publication, periodical or
any other media if such advertisement in any manner makes reference to Wexford
or to the clearing arrangements set forth in this Agreement; provided, however,
that the public parent company of Introducing Firm may name Wexford 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.
C. Should Introducing Firm in any way hold itself out as, advertise or
represent that it is the agent of Wexford, Wexford 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 Wexford as a result of such
a representation of agency or apparent authority to act as an agent of Wexford
or agency by estoppel.
10. 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 Wexford 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 Wexford as of the date of this Agreement; provided
that Wexford 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 Wexford may in writing consent to, in its sole discretion, from
time to time. As collateral security for all of its obligations to Wexford under
and with respect to this Agreement, Introducing Firm hereby pledges, assigns and
grants a first priority security interest and lien to Wexford in and upon all
property from time to time now or hereafter in the Collateral Account, and
Wexford 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 Wexford. 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, Wexford 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
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market value of the cash and/or securities in the Collateral Account fall below
90% of the Collateral Amount, as determined by Wexford, Wexford 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 Wexford. The Collateral
Account shall not be deemed to be margin for any Approved Counterparty accounts.
C. Wexford shall have the right to deduct the amount of any and all
amounts owed to Wexford hereunder, including without limitation, Fees,
Introducing Firm Failure Costs and Counterparty Failure Costs and Indemnified
Losses, from the securities collateral, and, in such event, Wexford shall have
the right to liquidate the securities in a commercially reasonable manner;
provided, however, Wexford 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 Wexford, mutual
agreement, arbitration or otherwise) to be incorrect, excessive or otherwise not
the responsibility of Introducing Firm, shall be promptly reimbursed by Wexford
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,
Wexford will (a) effect the payment and delivery to Introducing Firm of the
funds and/or securities in the Collateral Account, less any amounts Wexford is
entitled to withdraw under the preceding paragraph; provided, however, that
Wexford 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 Wexford 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,
Wexford agrees that no such documents or other materials will be distributed by
it to any person or group in or outside Wexford that does not have
responsibility for the administration, legal or audit review of this Agreement
or transactions thereunder.
11. 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
Wexford, which consent shall not be unreasonably withheld.
12. Amendments; Waiver; Integration
Any amendment or supplement to this Agreement and any waiver of any
rights hereunder
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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.
13. 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.
14. 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.
15. Termination
This Agreement may be terminated by either party upon ninety 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.
16. Notices
Written notices shall be properly made if hand delivered, mailed
(registered mail) or
Page 40 of 49 Pages
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.: Xxxxxx Xxxxxxxxx
Chief Financial Officer
To Wexford:
Wexford Clearing Services Corp.
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Tel. No.: 000-000-0000
Fax No.: 000-000-0000
Attn.: Xxxxxx Xxxxxxxxx
President/CEO
17. 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 Wexford.
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.
Page 41 of 49 Pages
Very truly yours,
WEXFORD CLEARING SERVICES CORP.
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxx
------------------------------
Title: Executive Vice President/COO
-----------------------------
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST SET FORTH ABOVE:
MAXCOR FINANCIAL INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxx
--------------------------
Title: Chief Financial Officer
-------------------------
Page 42 of 49 Pages
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
Page 43 of 49 Pages
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.
Page 44 of 49 Pages
Exhibit B
[Wexford 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 Wexford Clearing
Services Corporation ("Wexford") by your brokerage firm, Maxcor Financial Inc.
("MFI"), for the purpose of Wexford clearing trades, as fully-disclosed
principal, in certain specified securities pursuant to the clearing service
agreement between MFI and Wexford.
Once Wexford enters a trade on its books, you will be considered a
customer of Wexford for purposes of the Securities and Exchange Commission's
financial responsibility rules and the Securities Investor Protection Act.
Nothing herein shall cause customers of MFI to be construed as customers of
Wexford for any other purpose.
In establishing this relationship, MFI is acting solely on your behalf
and not on behalf of or as the agent of Wexford. MFI 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 on 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 Wexford.
- 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.
Page 45 of 49 Pages
Allocation of Brokerage Account Responsibilities
Page 2
- Supervising all functions performed by MFI's employees, including,
investment advisory, sales, trading and account opening and approving
activities.
Additionally, MFI is responsible to Wexford for supplying all
documentation required by Wexford, notwithstanding the fact that Wexford has at
all times the right to contact you directly regarding its information
requirements. Wexford has at all times the right, exercisable in its sole
discretion, to refuse to accept orders for your account.
Wexford will be responsible for the following:
- Clearing, as principal, transactions in your account pursuant to
MFI'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, warrants and redemptions, all in accordance with the
last instructions received either from you or MFI.
- 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 MFI.
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:
___________________________________
WEXFORD CLEARING SERVICES CORPORATION
Xxxxxx Xxxxxxxxx
President/CEO
Page 46 of 49 Pages
