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subparagraph shall be the lesser of (A) the value attributable to the asset pursuant to the margin rules of the applicable board of trade, or (B) the market value of the asset after application of the percentage deductions specified in this paragraph (c)(5);
(ix) In the case of a futures commission merchant, for undermargined commodity futures and commodity option noncustomer and omnibus accounts the amount of funds required in each such account to meet maintenance margin requirements of the applicable board of trade or if there are no such maintenance margin requirements, clearing organization margin requirements applicable to such positions, after application of calls for margin or other required deposits which are outstanding two business days or less. If there are no such maintenance margin requirements or clearing organization margin requirements, then the amount of funds required to .provide margin equal to the amount necessary after application of calls for margin or other required deposits outstanding two business days or less to restore original margin when the original margin has been depleted by 50 percent or more: Provided to the extent a deficit is excluded from current assets in accordance with paragraph (c)(2)(i) of this section such amount shall not also be deducted under this paragraph (c)(5)(ix). In the event that an owner of a noncustomer or omnibus account has deposited an asset other than cash to margin, guarantee or secure his account the value attributable to such asset for purposes of this subparagraph shall be the lesser of (A) the value attributable to such asset pursuant to the margin rules of the applicable board of trade, or (B) the market value of such asset after application of the percentage deductions specified in this paragraph (c)(5);
(x) In the case of open futures contracts and granted (sold) commodity options held in proprietary accounts carried by the applicant or registrant which are not covered by a position held by the applicant or registrant or which are not the result of a “changer trade" made in accordance with the rules of a contract market:
(A) For an applicant or registrant which is a clearing member of a clearing organization for the positions cleared by such member, the applicable margin requirement of the applicable clearing organization;
(B) For an applicant or registrant which is a member of a self-regulatory organization 150 percent of the applicable maintenance margin requirement of the applicable board of trade, or clearing organization, whichever is greater;
(C) For all other applicants or registrants, 200 percent of the applicable maintenance margin requirements of the applicable board of trade or clearing organization, whichever is greater; or
(D) For open contracts or granted (sold) commodity options for which there are no applicable maintenance margin requirements, 200 percent of the applicable initial margin requirement: Provided, the equity in any such proprietary account shall reduce the deduction required by this paragraph (c)(5)(x) if such equity is not otherwise includable in adjusted net capital;
(xi) In the case of an applicant or registrant which is a purchaser of a commodity option not traded on a contract market which has value and such value is used to increase adjusted net capital, ten percent of the market value of the physical or futures contract which is the subject of such option but in no event more than the value attributed to such option;
(xii) In the case of an applicant or registrant which is a purchaser of a commodity option which is traded on a contract market the same safety factor as if the applicant or registrant were the grantor of such option in accordance with paragraph (c)(5)(x) of this section, but in no event shall the safety factor be greater than the market value attributed to such option;
(xiii) Five percent of all unsecured receivables includable under paragraph (c)(2)(ii)(D) of this section used by the applicant or registrant in computing “net capital" and which are not receivable from (A) a registered futures commission merchant, or (B) a broker or dealer which is registered as such with the Securities and Exchange Commission.
(xiv) For securities brokers and dealers, all other deductions specified in $ 240.1503-1 of this title.
(7) “Liabilities” are “adequately collateralized” when, pursuant to a legally enforceable written instrument, such liabilities are secured by identified assets that are otherwise unencumbered and the market value of which exceeds the amount of such liabilities.
(8) The term “contractual commitments” shall include underwriting, when issued, when distributed, and delayed delivery contracts; and the writing or endorsement of security puts and calls and combinations thereof; but shall not include uncleared regular way purchases and sales of securities. A series of contracts of purchase or sale of the same security, conditioned, if at all, only upon issuance, may be treated as an individual commitment.
(d) Each applicant or registrant shall have equity capital (inclusive of satisfactory subordination agreements which qualify under this paragraph (d) as equity capital) of not less than 30 percent of the required debt-equity total, provided, an applicant or registrant may be exempted from the provisions of this paragraph (d) for a period not to exceed 90 days or for such longer period which the Commission may, upon application of the applicant or registrant, grant in the public interest or for the protection of investors. For the purposes of this paragraph (d):
(1) Equity capital means a satisfactory subordination agreement entered into by a partner or stockholder which has an initial term of at least 3 years and has a remaining term of not less than 12 months if:
(A) It does not have any of the provisions for accelerated maturity provided for by paragraphs (h)(2) (ix)(A), (x)(A), or (x)(B) of this section, or the provisions allowing for special prepayment provided for by paragraph (h)(2)(vii)(B) of this section, and is maintained as capital subject to the provisions restricting the withdrawal thereof required by paragraph (e) of this section; or
(B) The partnership agreement provides that capital contributed pursuant to a satisfactory subordination agreement as defined in paragraph (h) of this section shall in all respects be partnership capital subject to the provisions restricting the withdrawal thereof required by paragraph (e) of this section, and
(i) In the case of a corporation, the sum of its par or stated value of capital stock, paid in capital in excess of par,
retained earnings, unrealized profit and loss, and other capital accounts.
(ii) In the case of a partnership, the sum of its capital accounts of partners (inclusive of such partners' commodities, options and securities accounts subject to the provisions of paragraph (e) of this section), and unrealized profit and loss.
(iii) In the case of a sole proprietorship, the sum of its capital accounts of the sole proprietorship and unrealized profit and loss.
(2) Debt-equity total means equity capital as defined in paragraph (d)(1) of this section plus the outstanding principal amount of satisfactory subordination agreements.
(3) Required debt-equity total means debt-equity total as defined in paragraph (d)(2) of this section, less the excess of the applicant's or registrant's adjusted net capital over the minimum required by this section.
(e) No equity capital of the applicant or registrant or a subsidiary's or affiliate's equity capital consolidated pursuant to paragraph (f) of this section, whether in the form of capital contributions by partners (including amounts in the commodities, options and securities trading accounts of partners which are treated as equity capital but excluding amounts in such trading accounts which are not equity capital and excluding balances in limited partners' capital accounts in excess of their stated capital contributions), par or stated value of capital stock, paid-in capital in excess of par or stated value, retained earnings or other capital accounts, may be withdrawn by action of a stockholder or partner or by redemption or repurchase of shares of stock by any of the consolidated entities or through the
payment of dividends or any similar public interest or for the protection of distribution, nor may any unsecured nonproprietary accounts. advance or loan be made to a stock- (f)(1) Every applicant or registrant, holder, partner, sole proprietor, or em- in computing its net capital pursuant ployee if, after giving effect thereto to this section must, subject to the and to any other such withdrawals, ad- provisions of paragraphs (f)(2) and vances, or loans and any payments of (f)(4) of this section, consolidate in a payment obligations (as defined in single computation, assets and liabilparagraph (h) of this section) under ities of any subsidiary or affiliate for satisfactory subordination agreements which it guarantees, endorses, or asand any payments of liabilities. ex- sumes directly or indirectly the obligacluded pursuant to paragraph tions or liabilities. The assets and li(c)(4)(vi) of this section which are abilities of a subsidiary or affiliate scheduled to occur within six months whose liabilities and obligations have following such withdrawal, advance or not been guaranteed, endorsed, or asloan:
sumed directly or indirectly by the ap(1) Either adjusted net capital of plicant or registrant may also be so any of the consolidated entities would
consolidated if an opinion of counsel is be less than the greatest of: (i) 120 obtained as provided for in paragraph percent of the appropriate minimum
(f)(2) of this section. dollar amount required by paragraphs (2)(i) If the consolidation, provided (a)(1)(i)(A) or (a)(1)(ii)(A) of this sec- for in paragraph (f)(1) of this section, tion; (ii) for a futures commission mer
of any such subsidiary or affiliate rechant or applicant therefor, 7 percent sults in the increase of the applicant's of the following amount: the customer or registrant's adjusted net capital or funds required to be segregated pursu- decreases the minimum adjusted net ant to the Act and these regulations capital requirement, and an opinion of less the market value of commodity
counsel called for paragraph options purchased by option custom- . (f)(2)(ii) of this section has not been ers on or subject to the rules of a con
obtained, such benefits shall not be tract market: Provided, however, The recognized in the applicant's or regisdeduction for each option customer
trant's computation required by this shall be limited to the amount of cus- section. tomer funds in such option customer's
(ii) Except as provided for in paraaccount; or (iii) for an applicant or graph (f)(2)(i) of this section, consoliregistrant which is also a securities
dation shall be permitted with respect broker or dealer, the amount of net to any subsidiaries or affiliates which capital specified in Rule 1503-1(e) of
are majority owned and controlled by the Securities and Exchange Commis
the applicant or registrant, and for sion (17 CFR 240.1503-1(e)); or
which the applicant can demonstrate (2) In the case of any applicant or to the satisfaction of the National Furegistrant included within such con- tures Association, or for which the solidation, if equity capital of the ap- registrant can demonstrate to the satplicant or registrant (inclusive of satis
isfaction of the Commission and the factory subordination agreements designated self-regulatory organizawhich qualify as equity under para- tion, if any, by an opinion of counsel, graph (d) of this section) would be less
that the net asset values or the porthan 30 percent of the required debt- tion thereof related to the parent's equity total as defined in paragraph ownership interest in the subsidiary or (d) of this section.
affiliate, may be caused by the appliProvided, That this paragraph (e) cant or registrant or an appointed shall not preclude an applicant or reg- trustee to be distributed to the appliistrant from making required tax pay- cant or registrant within 30 calendar ments or preclude the payment to days. Such opinion must also set forth partners of reasonable compensation. the actions necessary to cause such a The Commission may, upon applica- distribution to be made, identify the tion of the applicant or registrant, parties having the authority to take grant relief from this paragraph (e) if such actions, identify and describe the the Commission deems it to be in the rights of other parties or classes of
parties, including but not limited to customers, general creditors, subordinated lenders, minority shareholders, employees, litigants, and governmental or regulatory authorities, who may delay or prevent such a distribution and such other assurances as the National Futures Association, the Commission or the designated self-regulatory organization by rule or interpretation may require. Such opinion must be current and periodically renewed in connection with the applicant's or registrant's annual audit pursuant to $ 1.10 or upon any material change in circumstances.
(3) In preparing a consolidated computation of adjusted net capital pursuant to this section, the following minimum and non-exclusive requirements shall be observed;
(i) Consolidated adjusted net capital shall be reduced by the estimated amount of any tax reasonably anticipated to be incurred upon distribution of the assets of the subsidiary or affiliate.
(ii) Liabilities of a consolidated subsidiary or affiliate which are subordinated to the claims of present and future creditors pursuant to a satisfactory subordination agreement shall be deducted from consolidated adjusted net capital unless such subordination extends also to the claims of present or future creditors of the parent applicant or registrant and all consolidated subsidiaries.
(iii) Subordinated liabilities of a consolidated subsidiary or affiliate which are consolidated in accordance with paragraph (f)(3)(ii) of this section may not be prepaid, repaid, or accelerated if any of the entities included in such consolidation would otherwise be unable to comply with the provisions of paragraph (h) of this section.
(iv) Each applicant or registrant included within the consolidation shall at all times be in compliance with the adjusted net capital requirement to which it is subject.
(4) No applicant or registrant shall guarantee, endorse, or assume directly or indirectly any obligation or liability of a subsidiary or affiliate unless the obligation or liability is reflected in the computation of adjusted net capital pursuant to this section except as
provided in paragraph (f)(2)(i) of this section.
(h) The term satisfactory subordination agreement ("subordination agreement") means an agreement which contains the minimum and nonexclusive requirements set forth below.
(1) Certain definitions for purposes of this section:
(i) A subordination agreement may be either a subordinated loan agreement or a secured demand note agreement.
(ii) The term “subordinated loan agreement” means the agreement or agreements evidencing or governing a subordinated borrowing of cash.
(iii) The term “collateral value" of any securities pledged to secure a secured demand note means the market value of such securities after giving effect to the percentage deductions specified in paragraph (c) of this section.
(iv) The term “payment obligation" means the obligation of an applicant or registrant in respect to any subordi. nation agreement: (A) To repay cash loaned to the applicant or registrant pursuant to a subordinated loan agreement; or (B) to return a secured demand note contributed to the applicant or registrant or to reduce the unpaid principal amount thereof and to return cash or securities pledged as collateral to secure the secured demand note; and (C) “payment" shall mean the performance by an applicant or registrant of a payment obligation.
(V)(A) The term "secured demand note agreement” means an agreement (including the related secured demand note) evidencing or governing the contribution of a secured demand note to an applicant or registrant and the pledge of securities and/or cash with the applicant or registrant as collater. al to secure payment of such secured demand note. The secured demand note agreement may provide that nei. ther the lender, his heirs, executors, administrators, or assigns shall be per. sonally liable on such note and that in the event of default the applicant or registrant shall look for payment of such note solely to the collateral then pledged to secure the same.
(B) The secured demand note shall be less than the unpaid principal be a promissory note executed by the amount of the secured demand note. lender and shall be payable on the (E) Upon payment by the lender, as demand of the applicant or registrant distinguished from a reduction by the to which it is contributed: Provided, lender which is provided for in parahowever, That the making of such graph (h)(2)(vi)(C) of this section or demand may be conditioned upon the reduction by the applicant or regisoccurrence of any of certain events trant as provided for in paragraph which are acceptable to the designated (h)(2)(vii) of this section, of all or any self-regultory organization and the part of the unpaid principal amount of Commission.
the secured demand note, the appli(C) If such note is not paid upon cant or registrant shall issue to the presentment and demand as provided lender a subordinated loan agreement for therein, the applicant or registrant in the amout of such payment (or in shall have the right to liquidate all or the case of an pplicant or registrant any part of the securities then pledged that is a partnership, credit a capital as collateral to secure payment of the account of the lender), or issue presame and to apply the net proceeds of ferred or common stock of the applisuch liquidation, together with any cant or registrant in the amount of cash then included in the collateral, in such payment, or any combination of payment of such note. Subject to the the foregoing, as provided for in the prior rights of the applicant or regis- secured demand note agreement. trant as pledgee, the lender, as defined (F) The term “lender" means the in paragraph (h)(i)(v)(F) of this sec- person who lends cash to an applicant tion may retain ownership of the col- or registrant pursuant to a subordinatlateral and have the benefit of any in- ed loan agreement and the person who creases and bear the risks fo any de- contributes a secured demand note to creases in the value of the collateral an applicant or registrant pursuant to and may retain the right to vote secu- a secured demand note agreement. rities contained within the collateral (2) Minimum requirements for suband any right to income therefrom or ordination agreements: distributions thereon, except the ap- (i) Subject to paragraph (h)(1) of plicant or registrant shall have the this section, a subordination agreeright to receive and hold as pledgee all ment shall mean a written agreement dividends payable in securities and all between the applicant or registrant partial and complete liquidating divi- and the lender, which: dends.
(A) Has a minimum term of 1 year, (D) Subject to the prior rights of the except for temporary subordination applicant or registrant as pledgee, the agreements provided for in paragraph lender may have the right to direct (hx3)(v) of this section, and the sale of any securities included in (B) Is a valid and binding obligation the collateral, to direct the purchase enforceable in accordance with its of securities with any cash included terms (subject as to enforcement to therein, to withdraw excess collateral applicable bankruptcy, insolvency, reor to substitute cash or other securi- organization, moratorium, and other ties as collateral: Provided, That the similar laws) against the applicant or net proceeds of any such sale and the registrant and the lender and their recash so substituted and the securities spective heirs, executors, administraso purchased or substituted are held tors, successors, and assigns. by the applicant or registrant as pledg- (ii) Specific amount. All subordinaee, and are included within the collat- tion agreements shall be for a specific eral to secure payment of the secured dollar amount which shall not be redemand note: And prorided further, duced for the duration of the agreeThat no such transaction shall be per- ment except by installments as specifimitted, if, after giring effect therto, cally provided for therein and except the sum of the amount of any cash, as otherwise provided in this paraplus the collateral value of the securi- graph (hX2) of this section ues, then pledged as collateral to (iii) Effective subordination. The secure the secured demand note would subordination agreement shall effec