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Prime Brokerage Clearance Services Agreement (Form 151)

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Prime Brokerage Clearance Services Agreement (Form 151) AGREEMENT FOR PRIME 3. Applicable Law and Regulations BROKERAGE CLEARANCE All Prime Brokerage Transactions shall be subject to SERVICES all applicable laws and the rules and regulations of all federal, state and self-regulatory agencies including, This Agreement sets forth the terms and conditions but not limited to, the Securities and Exchange under which the Clearing Broker, Commission, all relevant securities and commodity ________________, its successors and assigns (the exchanges, the Municipal Securities Rulemaking “Clearing Broker”) will clear securities transactions Board, the Financial Industry Regulatory Authority for you (hereinafter, “Customer”) with such broker- (“FINRA”), the Board of Governors of the Federal dealer as Customer may designate, from time to time, Reserve System, and the constitution, rules and as Customer’s prime broker (“Prime Broker”), customs of the exchange or market (and its clearing provided that the Clearing Broker has entered into a house, if any) where executed. In addition, all Prime Prime Brokerage Agreement with Customer’s Prime Brokerage Transactions shall be performed in a Broker with respect to Customer’s prime brokerage manner not inconsistent with the SEC No-Action transactions (hereinafter referred to as “Prime Letter dated January 25, 1994 relating to prime Brokerage Transaction(s)”). brokerage services, which was issued by the Division of Market Regulation and all amendments, For the avoidance of doubt, the Clearing Broker is modifications and supplements thereto (the “SEC either (i) an executing self-clearing firm or (ii) the Letter”) as the same may be amended, modified or clearing firm of an introducing broker acting as an supplemented from time to time. executing broker. 4. Short, Short Exempt and Long Sales 1. Establishment of Account The Clearing Broker will clear Customer’s Prime When placing any order to sell securities short, Brokerage Transactions in a broker-dealer credit Customer is responsible for designating the order as account established in the name of Prime Broker and such, and Customer hereby authorizes the Clearing designated for Customer’s benefit. On the settlement Broker to mark the order as being "short" or "short date for each Prime Brokerage Transaction, the exempt." In placing any long sell order, Customer Clearing Broker will deliver or receive Customer’s will designate the order as such and hereby securities to or from Prime Broker against payment in authorizes the Clearing Broker to mark the order as full by or to Prime Broker on Customer’s behalf. being "long." The designation of a sell order as being "long" shall constitute a representation by Customer 2. Customer Trades that (i) Customer owns the security with respect to which the sale order has been placed and (ii) if Prime Customer hereby authorizes the Clearing Broker to Broker does not have the security in its possession at inform Prime Broker on the OMGEO/DTC ID the time Customer places the sell order, Customer System, or any successor system, of all the details of shall deliver the security to Prime Broker by each Prime Brokerage Transaction Customer settlement date in good deliverable form and if instructs to be cleared by the Clearing Broker for Customer fails to deliver as such, pay to the Clearing Customer’s account, including, but not limited to, the Broker any losses and expenses it may incur or contract amount, the security involved, the number of sustain as a result of Prime Broker's failure to settle shares or number of units, and whether the any such Prime Brokerage Transaction on Customer's transaction was a long, short or short exempt sale or a behalf. Customer further agrees to provide the purchase (collectively, the “Trade Data”), and Clearing Broker with information concerning any Customer hereby agrees to inform Prime Broker of securities borrowing arrangements made by the Trade Data on trade date by the time designated Customer and/or Prime Broker in connection with to Customer by Prime Broker. In the event of any any short sales. discrepancy in the Trade Data reported to Prime Broker by Customer and the Trade Data reported to 5. Customer Qualification Prime Broker by the Clearing Broker, Customer shall be responsible for resolving such discrepancy (a) Customer shall be required to maintain in promptly, and Customer shall be liable to the Customer’s account with Prime Broker such Clearing Broker for any loss, cost or expense minimum net equity in cash or securities as may sustained by the Clearing Broker arising out of such be required, from time to time, by Prime Broker Prime Brokerage Transaction. (the “Minimum Net Equity”), which shall in no 1 event be less than the minimum net equity 6. Confirmations required by the SEC Letter, as such requirement may be amended from time to time (initially: (i) The Clearing Broker shall confirm the Trade Data to $100,000 in cash or securities with a ready Prime Broker and shall issue a confirmation for each market, for trades executed on behalf of a Prime Brokerage Transaction by the morning of the customer account managed by an investment next business day after trade date. As used in this adviser registered under Section 203 of the Agreement, the term “Business Day” means any day Investment Advisers Act of 1940 (a “Registered which is not a Saturday or Sunday on which the New Investment Adviser”) or (ii) $500,000 in cash or York Stock Exchange is open for business. Customer securities with a ready market for trades may direct the Clearing Broker to send confirmations executed on behalf of an account not managed to Customer in care of Prime Broker; the form of by a Registered Investment Adviser). Customer such directive may be obtained from the Clearing further understands that, in the event Customer’s Broker and appended to this Agreement. account falls below such Minimum Net Equity, Customer shall bring Customer’s account into 7. Customer’s Settlement Obligation compliance in a timely fashion. Each time Customer enters an order with the Clearing In the event Prime Broker indicates its intention not Broker, Customer hereby represents that to settle, or fails to settle, any of Prime Brokerage Customer shall be in compliance with such Transactions, Customer shall be responsible and Minimum Net Equity or will notify the Clearing liable to the Clearing Broker for settling such Prime Broker otherwise. Brokerage Transaction directly with the Clearing Broker in a margin account that the Clearing Broker (b) In the event that Prime Broker indicates its will open or has opened in Customer’s name on its intention to disaffirm any trade, Customer books in accordance with Regulation T of the Board hereby authorizes and instructs Prime Broker to of Governors of the Federal Reserve System. The provide to the Clearing Broker, upon the request Clearing Broker shall send Customer a new of the Clearing Broker, the following confirmation of the replacement transaction. information: (i) the account or accounts to which any of Customer’s orders or trades relate; (ii) the 8. Discretionary Account instructions, if any, provided to Prime Broker regarding the allocation of any orders or trades to If Customer’s account is managed on a discretionary any sub-accounts; and (iii) information available basis by an investment advisor, money manager or to Prime Broker with respect to any net equity in other person (“Advisor”), Customer hereby ac- the account. In addition, this Agreement will knowledges that Prime Brokerage Transactions may serve as further authorization and instruction to be commingled with those of other accounts of Prime Broker to furnish to the Clearing Broker in Customer’s Advisor (“Sub-accounts”), according to the event of a disaffirmance all such further and Customer’s Advisor’s instructions, for clearance by additional information concerning an account as the Clearing Broker in a single bulk trade and for the Clearing Broker shall request, provided that settlement in bulk with Prime Broker. Customer such authorization shall have been confirmed by further acknowledges that in the event the Prime Customer in a separate letter addressed and Broker indicates its intention not to settle or does not delivered to Prime Broker and the Clearing settle such bulk trade because of one or more Broker. This paragraph shall remain in effect so Sub-accounts receiving an allocation, the Clearing long as this Agreement is in effect, shall survive Broker will either cancel and re-bill the bulk trade to the termination of this Agreement and shall reflect the reduction of the securities which were apply to all orders and trades given by Customer originally allocated to the objectionable Sub-accounts to the Clearing Broker for clearance and or, if permissible, execute a corrected allocation of settlement through Prime Broker. Customer the Prime Brokerage Transaction to Sub-accounts in hereby agrees to release and discharge Prime accordance with Customer’s Advisor’s instructions. Broker from all responsibility and liability To facilitate such allocation, the Clearing Broker may arising out of or incurred in connection with open and carry an account in Customer’s name on its Prime Broker furnishing any information to the books and Customer shall be solely responsible and Clearing Broker pursuant to this paragraph. liable to the Clearing Broker for settling such transaction directly with the Clearing Broker. Customer acknowledges that Customer’s Advisor 2 may resubmit the bulk trade and execute a corrected Default at the prime rate, until payment in full is allocation of the Prime Brokerage Transaction. received by the Clearing Broker. 9. Fees and Charges 12. Legally Binding Customer understands that the Clearing Broker may Customer hereby agrees that this Agreement and all charge commissions and other fees for clearance or the terms hereof shall be binding upon the Customer any other service furnished to Customer and and, if Customer is a natural person, upon Customer agrees to pay such commissions and fees at Customer’s estate, heirs, executors, administrators, the Clearing Broker’s then prevailing rates.
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