EXHIBIT 4(a)
DELTA CLEARING CORP.
Participation Agreement
The undersigned hereby makes application to become a Participant with respect
to the clearance of instruments effected through Delta Clearing Corp. ("the
Issuer") as follows:
1. The undersigned agrees to the terms and conditions of and will abide
by the Procedures as now in force and as amended from time to time in
accordance with the provisions of the Procedures, and all other
provisions adopted by the Issuer pursuant thereto (the "Procedures");
2. The applicable provisions of the Procedures shall be a part of the
terms and conditions of every transaction in respect of (i) options on
U.S. Treasury Securities, (ii) repurchase agreements and reverse
repurchase agreements and/or (iii) other such instruments for which the
Issuer may, from time to time, provide clearing services, which the
undersigned as a Participant may enter into with another Participant and
which is submitted for clearance pursuant to the Procedures;
3. The undersigned represents and warrants to the Issuer that the
execution and delivery of this agreement by or on behalf of the
undersigned does not violate the certificate of incorporation, the
charter, by-laws, partnership agreement or other governing instruments,
as the case may be, of the undersigned, any other agreement which is
binding upon the undersigned or any provision of law applicable.
4. The undersigned acknowledges receipt of the Prospectus of the Issuer,
as amended and supplemented to date, relating to the put and call options
on U.S. Treasury Securities, repurchase and reverse repurchase
agreements, and other instruments as may be described therein.
5. The undersigned agrees to pay Capital Markets Assurance Corporation
("CapMAC"), at its office in lawful U.S. funds, on the date of each
demand for payment under or purporting to be under Surety Bond No. SB-82
of CapMAC dated January 12, 1989, as amended and restated on June 1, 1992
and as further amended and restated on October 25, 1995, October 14, 1996
and October 14, 1997 (the "Surety Bond"), the amount of each demand for
payment with respect to either the failure of the undersigned to pay the
amount of net daily premium due pursuant to the terms and conditions of
the Procedures or the amount due in connection with the liquidating of
the position of the undersigned as a Participant in the System. The
undersigned agrees to pay interest on any amounts not paid when due under
this paragraph at the rate of 5 percent in excess of the Base Rate, as
the Base Rate may change from time to time. The "Base Rate" shall mean
the rate of interest, announced publicly by Citibank, N.A. from time to
time as its "base rate". Interest shall be calculated on a basis of 360
days and actual days elapsed. The undersigned agrees to pay to the Issuer
and CapMAC all expenses of any nature (including reasonable attorney's
fees) incurred by the issuer of CapMAC in enforcing its rights under this
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Agreement. Any amounts paid by the undersigned under this paragraph shall
be applied, first, to the payment of interest, second, to the payment of
reasonable expenses incurred by CapMAC in enforcing its rights under this
paragraph and, third to the amount of the demands for payment under the
Surety Bond. The undersigned agrees that, in the event of any amendments
or modifications of the terms of the Surety Bond, this Agreement shall be
binding upon the undersigned with regard to the Surety Bond as so amended
without any requirement that the undersigned approve or receive notice of
such amendment. The Issuer shall be deemed the agent of the undersigned
and the undersigned assumes all risks of the Issuer's acts and omission.
The undersigned agrees that any act or omission by CapMAC in connection
with the Surety Bond or related demands for payment, it taken in good
faith, shall be binding on the undersigned and shall not put CapMAC under
any resulting liability to the undersigned. The undersigned waives all
defenses that the undersigned might have against the Issuer with respect
to the obligations of the undersigned to make payments to CapMAC pursuant
to this paragraph, unless CapMAC shall not be deemed to have waived any
rights under this paragraph, unless CapMAC itself shall have signed such
waiver in writing. No such waiver, unless expressly stated therein, shall
be effective as to any transaction which occurs subsequent to the date of
such waiver, nor as to the continuance of a breach after such waiver. The
undersigned acknowledges and agrees that CapMAC shall be suborgated to
the rights of the Issuer against the undersigned to the extent any
payments are made under the Surety Bond with respect to the undersigned.
CapMAC shall be named third party beneficiary of this Agreement and shall
have the right to enforce the terms of this paragraph directly against
the undersigned. This paragraph may not be amended without the written
consent of CapMAC. CapMAC shall not have any duty, responsibility,
obligation or liability under this Agreement or the Procedures by reason
of or arising out of this Agreement, the Surety Bond or any payment
hereunder nor shall CapMAC be required or obligated to perform or fulfill
any obligations of the Issuer of any nature pursuant hereto or thereto.
6. This agreement shall be governed by and construes and interpreted in
accordance with the laws of the State of New York without regard to the
principle of conflicts of laws thereof.
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Form for Execution by Bank Corporation
Name of Bank or Corporation: __________________________________________________
By:____________________________________________________________________________
Title:_________________________________________________________(Corporate Seal)
Attest:______________________________________________ Dated:________ , 19
Secretary
Bank or Corporate Acknowledgment
State of ______________________________________
ss.
County of ______________________________________
On the _____ day of ____________________________, 19 , before me came
___________________________________________________________ , to me known and
known to me to be the ________________________________________________ of
______________________________________ , acknowledged that as such (1) signed
the foregoing agreement in the name and on behalf of said [bank] [corporation]
and cause the seal of said [bank] [corporation] to be affixed thereto,
pursuant to authority given by the board of directors of said [bank]
[corporation].
Notary Public _________________________________________________________________
Accepted by Delta Clearing Corp. as of the date set forth below:
By:____________________________________________________________________________
Title:_________________________________________ Dated:_________________________
The rights of Capital Markets Assurance Corporation, under paragraph 5 of this
Participation Agreement, are hereby acknowledged:
By:____________________________________________________________________________
Title:_________________________________________ Dated:_________________________
___________
Insert title of signing officer, i.e., President or Vice President
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Form for Execution by Partnership
Name of Partnership:
___________________
By:
___________________ A General Partner
Dated:_____________________________________, 00
Xxxxxxxxxxx Xxxxxxxxxxxxxx
Xxxxx of__________________________
ss.
County of_________________________
On the _____ day of ___________________________ , 19 , before me came
_______________________________________________, to me known and known to me to
be the individual who executed the foregoing agreement, and acknowledged that
he executed said agreement in the name and on behalf of said firm, pursuant to
authority duly vested in him by said firm.
Notary Public
_____________
Accepted by Delta Clearing Corp. as of the date set forth below:
By:
___
Title: ______________________________ Dated:
_____
The rights of Capital Markets Assurance Corporation, under paragraph 5 of this
Participation Agreement, are hereby acknowledged:
By:
___
Title:_______________________________ Dated:
_____
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Officers Certificate for Bank or Corporate Participants
I, _____________________________________, the duly elected, qualified and
acting Secretary of _________________________________, a [bank] [corporation]
organized and existing under the laws of the [United States] [state of
__________________________________]
HEREBY CERTIFY that:
1. The following is a correct copy of a resolution duly adopted by the Board
of Directors of the [bank] [corporation] at a meeting thereof duly called
and held on the ________ day of _____________________________, 19 ___,
at which meeting a quorum was present and acting:
RESOLVED, that the President or any Vice President of the [bank]
[corporation] is authorized to execute and deliver, in the name and
behalf of the [bank] [corporation], under its seal attested by its
Secretary or Assistant Secretary, a Participant Agreement between the
[bank] [corporation] and Delta Clearing Corp. in the form presented to
this meeting and hereby approved.
2. The executed Participant Agreement to which this certificate is attached
is in the form presented to and approved by the Board of Directors of the
[bank] [corporation] at the above described meeting.
IN WITNESS WHEREOF, I hereby subscribe my name and affix the seal of the
[bank] [corporation] this _______day of _______, 19___
Secretary________________________________
(Seal)
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