MASTER AGREEMENT
FOR
STANDBY LETTERS OF CREDIT
TERMS AND CONDITIONS
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
The undersigned ("Applicant") will require, from time to time, Standby
Letters of Credit. General Electric Capital Corporation ("GE Capital") will,
upon Applicant's application therefor, and to the extent such application is
approved by GE Capital in its sole discretion, issue Credits or arrange for the
issuance thereof through an indirect wholly-owned subsidiary of GE Capital. Each
Credit will be governed by and interpreted in accordance with the following
terms and conditions. Capitalized terms used herein shall have the meanings
assigned to them in Section 9 below or elsewhere in this Agreement (including
this Preamble) and shall be equally applicable to both the singular and the
plural forms of the terms used herein.
1. Payment Terms.
In addition to all commissions, charges, fees and expenses payable in
connection with Credits pursuant to the Credit Agreement (including, without
limitation the Letter of Credit Fee, as defined in the Credit Agreement),
Applicant agrees to pay to GE Capital on demand, at GE Capital's office located
at 000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 or at such other address or
account as may be designated in writing by GE Capital, in Dollars, in
immediately available funds: (i) each amount paid by GE Capital under any Credit
(which payment is permitted or required under this Agreement, ISP 98 or
applicable law) in Dollars or in the event that the Credit permits Drafts under
such Credit to be payable in a currency other than Dollars, the Dollar
Equivalent of each amount so drawn; (ii) interest on each amount (or the Dollar
Equivalent thereof) so drawn for each day from the date of payment of the
relevant Draft to and including the date of payment in full of such amount by
Applicant to GE Capital, at the rate specified in the Credit Agreement; and
(iii) any and all commissions and charges of, and any and all costs and expenses
incurred by, GE Capital and its subcontractors or agents in relation to the
Credits and all Drafts thereunder. A schedule of commissions and charges is
attached hereto as Annex I. If a Credit provides for sight payment,
reimbursement by Applicant is due on the day on which GE Capital pays on the
applicable Draft. All payments by Applicant hereunder shall be made without
withholding, deduction or set-off and shall be made free and clear of taxes.
2. Security Interest.
To secure the payment and performance of all Obligations (including,
without limitation, Letter of Credit Obligations), the Applicant hereby grants
to Agent a security interest in the following, including, without limitation,
the unqualified right to the possession and disposal of all property shipped
under or in connection with each Credit, whether released to the Applicant under
security agreements or otherwise, and also in and to all shipping documents,
documents of title, or Drafts drawn under each Credit and in and to all other
property owned by the Applicant, in or coming into GE Capital's possession or
custody, and in any deposit balances now or hereafter held by a bank as
custodian for GE Capital for the Applicant's account, together with the proceeds
of each and all of the foregoing, until the Termination Date (subject to
reinstatement as provided in the Loan Documents). The grant of a security
interest in the preceding sentence supplements, rather than limits or
supersedes, any grant of a security interest by Applicant in the Loan Documents.
If GE Capital honors any presentation, demand or Draft and Applicant fails to
reimburse GE Capital therefor in accordance with the terms of the Credit
Agreement, GE Capital may assert its rights of subrogation under applicable law,
whether GE Capital's honor satisfies all or only part of the underlying
obligation. The Applicant must, on reasonable notice, cooperate with GE Capital
in its assertion of the Applicant's rights against the Beneficiary, the
Beneficiary's rights against the Applicant, and any other rights that GE Capital
may have by subrogation or assignment. Such cooperation shall include without
limitation the prompt return of all Drafts, documents, instruments and
statements in Applicant's possession that were presented by or on behalf of a
Beneficiary in connection with any draw under a Credit. Subject to the terms of
the Credit Agreement and the terms of Section 8(b) below, the Applicant agrees
to make upon demand such cash deposits with GE Capital as GE Capital may require
to further secure Applicant's Letter of Credit Obligations.
3. Administration of Credit.
(a) Applicant will promptly examine a copy of each Credit (and any proposed
amendments thereto) sent to Applicant, as well as all other instruments and
documents delivered to Applicant from time to time in connection with such
Credit, and, in the event Applicant has any claim of non-compliance with the
instructions or of any discrepancy or other irregularity or any objection to any
action taken or proposed to be taken by GE Capital with respect to any Credit,
Applicant will notify GE Capital thereof in writing within three business days
after its receipt of a copy of such Credit, any amendments thereto, or such
instruments or documents or notice of any such proposed action, and Applicant
will conclusively be deemed to have waived any such claim against GE Capital and
its subcontractors, servicers and agents or any defense to payment of GE
Capital, its subcontractors or agents, unless such notice is given as aforesaid.
This Section 3(a) is intended to substitute three business days for the "not
unreasonable time period" set forth in Rule 5.09 of ISP 98.
(b) Neither GE Capital nor any of its agents, subcontractors or servicers
shall be responsible for, and neither GE Capital's powers and rights hereunder
nor Applicant's obligations shall be affected by: (i) any act or omission
pursuant to Applicant's instructions; (ii) any other act or omission of GE
Capital or its subcontractors, servicers, agents or employees other than any
such arising from its or their gross negligence or willful misconduct; (iii) the
validity, accuracy or genuineness of Drafts, documents or required statements,
even if such Drafts, documents or statements should in fact prove to be in any
or all respects invalid, inaccurate, fraudulent or forged (and notwithstanding
that Applicant shall have notified GE Capital thereof); (iv) failure of any
Draft to bear any reference or adequate reference to the applicable Credit; (v)
errors, omissions, interruptions or delays in transmission of delivery of any
messages however sent and whether or not in code or otherwise; (vi) any act,
default, omission, insolvency or failure in business of any other person
(including any agent, subcontractor or employee) or any consequences arising
from causes beyond GE Capital's control; (vii) any acts or omissions of any
Beneficiary of any Credit or transferee of any Credit, if transferable;
(viii) any act or omission of GE Capital required or permitted under any (1) law
or practice to which a Credit is subject (including ISP 98), (2) applicable
order, ruling or decree of any court, arbitrator or governmental agency, (3) a
published statement or interpretation on a matter of law or practice (including
ISP 98); (ix) honor or other recognition of a presentation or demand that
includes forged or fraudulent documents or that is otherwise affected by the
fraudulent, bad faith, or illegal conduct of the Beneficiary or other person
(excluding GE Capital's employees), including payment to a person who forges the
signature of a Beneficiary or the signature of an assignee of a Credit's
proceeds, (x) honor of a presentation without regard to any nondocumentary
condition(s) in the Credit, regardless of whether Rule 4.11 of ISP 98 applies,
or (xi) dishonor of any presentation that does not strictly comply with the
terms of the applicable Credit or that is fraudulent, forged or otherwise not
entitled to be honored. Without limiting the generality of the foregoing, GE
Capital may (1) act in reliance on any oral, telephone, telegraphic, electronic,
facsimile or written request, notice, or instruction believed in good faith to
be from or have been authorized by the Applicant, (2) receive, accept or pay as
complying with the terms of a Credit any Drafts or other documents, otherwise in
order, which are signed by or issued to any person or entity acting as the
representative of, or in the place of, the party in whose name such Credit
provides that any Drafts or other documents should be drawn or issued and (3)
waive its stipulation that the bank nominated in the applicable Credit shall
accept or pay the Drafts, and GE Capital may then accept presentations of Drafts
and documents for payment directly.
(c) Subject to GE Capital's obtaining any necessary consent from the
Beneficiary or other third party, GE Capital may for Applicant's account at any
time (i) treat a Credit as governed by the law of the place where GE Capital or
the Beneficiary is located, notwithstanding a choice of law provision in the
Credit, and, in case of conflict, treat the law as prevailing over practice in
such place or vice versa; (ii) shorten or lengthen the examination period; (iii)
specify or amend a specified place or manner of receiving a presentation,
effecting honor, or giving notice of dishonor; or (iv) discount an accepted
Draft or deferred obligation incurred under the Credit.
(d) Unless GE Capital is enjoined by a court of competent jurisdiction, GE
Capital may assume that any Beneficiary or other presenter acts in good faith
and that any presentation or other demand is nonfraudulent.
(e) Unless the Credit specifically permits and GE Capital specifically
agrees, GE Capital need not check the authenticity or authority of any purported
Beneficiary signature, even if in other transactions the Beneficiary is a
customer or its signature is otherwise known to GE Capital.
(f) Unless specifically committed to do so in a writing signed by GE
Capital, GE Capital need not consent to any amendment of a Credit. GE Capital
may, without authorization from or notice to Applicant, send a notice of
non-extension to the Beneficiary under a Credit if it provides for automatic
extension. Any notice of dishonor given by GE Capital within six business days
after presentation of documents to GE Capital shall not be deemed to be
unreasonable. This Section 3(f) is intended to substitute six business days for
the three business days set forth in Rule 5.01a of ISP 98.
(g) Notwithstanding any waiver by Applicant of discrepancies in Drafts,
documents or required statements, GE Capital acting alone has the right in its
sole judgement, to decline to approve any discrepancies and to refuse payment on
that basis under any Credit issued hereunder.
(h) GE Capital may assign its rights and delegate its duties hereunder to
any subsidiary of GE Capital, in each case without prior notice to Applicant;
provided that such assignment and delegation does not diminish Applicant's
rights or increase Applicant's duties hereunder.
(i) No Credit shall be issued hereunder providing for the acceptance of
time Drafts or the incurrence of deferred payment undertakings.
(j) Notwithstanding any provision herein contained to the contrary, if
Applicant approves the issuance of a Credit requiring payment of a Draft on the
same day on which such Draft is presented, GE Capital shall be entitled to honor
such Draft without review or examination by Applicant and Applicant waives all
defenses to reimbursement thereof based on irregularities that may have been
revealed by Applicant's review or examination.
4. Letter of Credit Text; Extensions, Increases and Modifications of Credit.
(a) Applicant is responsible for preparing or approving the text of each
Credit as issued by GE Capital and as received by the Beneficiary. GE Capital's
recommendation or drafting of text or GE Capital's use or non-use or refusal to
use text submitted by Applicant shall not affect Applicant's ultimate
responsibility for the final text and its receipt by the Beneficiary. Applicant
is responsible for the effect, or lack of effect under Rule 4.11 of ISP 98 or
applicable law, of a provision in any Credit that requires GE Capital to verify
facts rather than examine documents or that fails to identify the documents to
which the provision applies.
(b) Applicant is responsible for including suitable provisions in the
underlying agreement that permit Applicant to review the text of the Credit as
received by the Beneficiary and that describe the circumstances under which: a
drawing under the Credit may be made, Credit proceeds may be applied to the
underlying agreement, and part or all of those proceeds may be returned.
Applicant accepts the risk that the text of the Credit is consistent with the
underlying obligation, suitable for Applicant's purposes, and received by the
Beneficiary in time to permit the Beneficiary and Applicant to review the Credit
and to request any desired amendments.
(c) Each Applicant agrees that GE Capital may at any time and from time to
time, in its discretion, by agreement with one or more other Applicants (whether
or not such Applicant shall have been appointed as the "Agent Applicant" in the
Joint Signature Agreement contained in the Application): (i) further finance or
refinance any transaction under any Credit; (ii) renew, extend or change the
time of payment or the manner, place or terms of payment of any of the
Obligations; (iii) settle or compromise any of the Obligations or subordinate
the payment thereof to the payment of any other debts of or claims against any
Applicant which may at the time be due or owing to GE Capital; or (iv) release
any Applicant or any Guarantor or any Collateral, or modify the terms under
which such Collateral is held, or forego any right of setoff, or modify or amend
in any way this Agreement or any Credit, or give any waiver or consent under
this Agreement; all in such manner and on such terms as GE Capital may deem
proper and without notice or further assent from such Applicant. In any such
event, such Applicant shall remain
bound by such event and this Agreement after giving effect to such event, and
the Obligations under this Agreement shall be continuing obligations in respect
of any transaction so financed or refinanced and, in either case, if the
Obligations are contingent, may be treated by GE Capital as due and payable for
their maximum face amount.
5. Reserve Requirements and Similar Costs.
If GE Capital is now or hereafter becomes subject to any reserve,
special deposit or similar requirement against assets of, deposits with, or for
the account of, or credit extended by, GE Capital, or any other condition is
imposed upon GE Capital which imposes a cost upon GE Capital, and the result, in
the determination of GE Capital is to increase the cost to GE Capital of
maintaining a Credit or paying or funding the payment of any Draft thereunder,
or to reduce the amount of any sum received or receivable, directly or
indirectly, by GE Capital hereunder, Applicant will pay to GE Capital upon
demand such amounts required to compensate GE Capital for such increased cost or
reduction. In making the determinations contemplated hereunder, GE Capital may
make such estimates, assumptions, allocations and the like which GE Capital in
good faith determines to be appropriate, but GE Capital's selection thereof, and
GE Capital determinations based thereon, shall be final and binding and
conclusive upon Applicant.
6. Possession of Property by Applicant.
If the Applicant accepts or retains possession of documents, goods or
other property, if any, covered by a Credit, prior to GE Capital's review of
such documents, then all discrepancies and other irregularities of said
documents shall be deemed waived by the Applicant, and GE Capital is authorized
and directed to pay any Drafts drawn or purporting to be drawn upon such Credit.
7. Partial Shipments.
Except as otherwise expressly stated in any Credit (i) partial
shipments may be made under such Credit, and GE Capital may honor the relative
Drafts without inquiry regardless of any apparent disproportion between the
quantity shipped and the amount of the relative Draft and the total amount of
such Credit and the total quantity to be shipped under such Credit, and (ii) if
such Credit specifies shipments in installments within stated periods and the
shipper fails to ship in any designated period, shipments of subsequent
installments may nevertheless be made in their respective designated periods and
GE Capital may honor the relative Drafts.
8. Events of Default, Remedies; Pre-funding.
(a) If any Event of Default has occurred and is continuing, other than an
Event of Default specified in Section 8.1(h) or Section 8.1(i) of the Credit
Agreement, GE Capital as issuer hereunder and in its capacity as Agent under the
Credit Agreement may pursue any of the remedies provided for in the Loan
Documents, including without limitation declaring that all of the Obligations
(including any such Obligations hereunder that may be contingent and not
matured) are immediately due and payable. If an Event of Default under Section
8.1(h) or Section 8.1(i) of the Credit Agreement has occurred, the Obligations
shall automatically be due and payable.
(b) Without limiting the generality of the foregoing, Applicant agrees
that if: (i) any Default or Event of Default shall have occurred and be
continuing; (ii) GE Capital at any time and for any reason deems itself to be
insecure or the risk of non-payment or non-performance of any of the Obligations
to have increased; or (iii) in the event that a Credit is denominated in a
currency other than Dollars, GE Capital determines that such currency is
unavailable or that the transactions contemplated by this Agreement are unlawful
or contrary to any regulations to which GE Capital or any agent, servicer or
subcontractor of GE Capital may be subject or that due to currency fluctuations
the Dollar Equivalent of the amount of a Credit exceeds the amount of Dollars
that GE Capital in its sole judgment expected to be its maximum exposure under
such Credit, then Applicant will upon demand pay to GE Capital an amount equal
to the undisbursed portion, if any, of such Credit, and such amount shall be
held as additional Collateral for the payment of all Letter of Credit
Obligations, and after the expiration hereof, to the extent not applied to the
Letter of Credit Obligations, shall be returned to Applicant (unless otherwise
provided in the Credit Agreement or any other Loan Document).
9. Definitions.
As used herein, the following terms shall have the following meanings:
"Agent" shall have the meaning given such term in the Credit Agreement.
"Agent Applicant" shall have the meaning given such term in the Joint
Signature Agreement attached hereto.
"Agreement" shall mean, collectively, this Agreement [each Application
for Standby Letter of Credit entered into between GE Capital and Applicant, the
Joint Signature Agreement and the Authorization and Agreement of Account Party
appended hereto], as the same may be amended, modified, supplemented or restated
from time to time.
"Applicant" shall mean the person or entity executing this Agreement as
Applicant; provided that if two or more persons or entities shall have executed
this Agreement as Applicant or as Joint Applicant, the terms "Applicant" and
"Applicants" shall mean each and all of such persons and entities, individually
and collectively, except that, if the term "Applicant" is preceded by the word
"any" or "each" or a word or words of similar import, such terms shall be deemed
to refer to each of such persons or entities, individually.
"Beneficiary" shall mean, as to any Credit, the beneficiary of that
Credit.
"Collateral" shall have the meaning given such term in the Credit
Agreement.
"Credit" shall mean a Standby Letter of Credit issued by GE Capital
upon Applicant's request of GE Capital, as the same may be amended and
supplemented from time to time, and any and all renewals, increases, extensions
and replacements thereof and therefor.
"Credit Agreement" shall mean that certain Credit Agreement dated as of
the date hereof among Xxxxx International Enterprises Corp., a New York
corporation and Blue Ridge Textile Manufacturing Inc., a Georgia corporation;
the other Credit Parties signatory thereto; GE Capital, as Lender, and as Agent
for Lenders, and the other Lenders signatory thereto
from time to time (including all annexes, exhibits and schedules thereto, as
from time to time amended, restated, supplemented or otherwise modified).
"Default" shall have the meaning given such term in the Credit
Agreement.
"Dollar Equivalent" shall mean: (i) the number of Dollars that is
equivalent to an amount of a currency other than Dollars, determined by applying
the selling rate of First Union National Bank, First Union Bank International or
another bank of comparable size selected by GE Capital; or (ii) in the event
that GE Capital shall not at the time be offering such a rate, the amount of
Dollars that GE Capital, in its sole judgment, specifies as sufficient to
reimburse or provide funds to GE Capital in respect of amounts drawn or drawable
under a Credit; in either case as and when determined by GE Capital.
"Dollars" shall mean lawful currency of the United States of America.
"Draft" shall mean any Draft (sight or time), receipt, acceptance,
cable or other written demand for payment.
"Event of Default" shall have the meaning given such term in the
Credit Agreement.
"Guarantor" shall have the meaning given such term in the Credit
Agreement.
"ISP 98" shall have the meaning given such term in Section 15(d).
"Letter of Credit Obligations" shall have the meaning given such term
in the Credit Agreement.
"Loan Documents" shall have the meaning given such term in the Credit
Agreement.
"Obligations" shall have the meaning given such term in the Credit
Agreement.
"Termination Date" shall have the meaning given such term in the
Credit Agreement.
10. Expenses; Indemnification.
Applicant agrees to reimburse GE Capital and its subcontractors,
servicers and agents upon demand for and to indemnify and hold GE Capital
harmless from and against all claims, liabilities, losses, costs and expenses
("Indemnified Liabilities") including attorneys' fees and disbursements,
incurred or suffered by GE Capital and its subcontractors, servicers and agents
in connection with this Agreement or any Credit. Such Indemnified Liabilities
shall include, but not be limited to, all such Indemnified Liabilities incurred
or suffered by GE Capital and its subcontractors, servicers and agents in
connection with (a) GE Capital's exercise of any right or remedy granted to it
hereunder or under the Loan Documents, (b) any claim and the prosecution or
defense thereof arising out of or in any way connected with this Agreement
including, without limitation, as a result of any act or omission by a
Beneficiary, (c) the collection or enforcement of the Obligations, and (d) any
of the events or circumstances referred
to in Section 3(b) hereof, including any defense by GE Capital in an action in
which Applicant obtains an injunction against presentation or honor of any
Draft. None of GE Capital or any subcontractor, servicer or agent of GE Capital
shall be liable to Applicant for any special, indirect, consequential or
punitive damages arising with respect to any Credit. Applicant must in all
instances mitigate damages claimed against GE Capital or any subcontractor,
servicer or agent arising with respect to any Credit. If GE Capital honors a
Draft or presentation under a Credit for which Applicant claims it is not
obligated to reimburse GE Capital, Applicant shall nonetheless pay to GE Capital
the amount paid by GE Capital, without prejudice to Applicant's claims against
GE Capital to recover fees and costs paid by Applicant with respect to the
honored presentation plus any direct damages resulting therefrom which Applicant
is unable to avoid or reduce. Applicant's prevailing in an action based on
forgery or fraud of the Beneficiary or other presenter does not relieve
Applicant from its obligation to pay GE Capital's costs and expenses in
contesting the entry or maintenance of injunctive relief.
11. Licenses; Insurance.
If any Credit assures payment for goods to be imported, the Applicant
shall procure or cause the Beneficiaries of each Credit to procure promptly any
necessary import and export or other licenses for import or export or shipping
of any goods referred to in or pursuant to such Credit and to comply and to
cause the Beneficiaries to comply with all foreign and domestic governmental
regulations in regard to the shipment and warehousing of such goods or otherwise
relating to or affecting such Credit, including governmental regulations
pertaining to transactions involving designated foreign countries or their
nationals, and to furnish such certificates in that respect as GE Capital may at
any time require, and to keep such goods adequately covered by insurance in
amounts, with carriers and for such risks as shall be satisfactory to GE
Capital, and to cause GE Capital's interest to be endorsed thereon, and to
furnish GE Capital on demand with evidence thereof. Should the insurance upon
said goods for any reason be unsatisfactory to GE Capital, GE Capital may, at
its expense, obtain insurance satisfactory to it.
12. No Waivers of Rights Hereunder; Rights Cumulative.
No delay by GE Capital in exercising any right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right preclude other or further exercises thereof or the exercise of any other
right. No waiver or amendment of any provision of this Agreement shall be
enforceable against GE Capital unless in writing and signed by an officer of GE
Capital, and unless it expressly refers to the provision affected, any such
waiver shall be limited solely to the specific event waived. All rights granted
GE Capital hereunder shall be cumulative and shall be supplementary of and in
addition to those granted or available to GE Capital under the Loan Documents or
applicable law and nothing herein shall be construed as limiting any such other
right.
13. Continuing Agreement; Termination.
This Agreement shall continue in full force and effect until the
Termination Date (subject to reinstatement, as provided in the Loan Documents).
14. Performance Standards.
Notwithstanding any provision to the contrary herein, GE Capital
reserves the right to decline (i) any request made by the Applicant for the
issuance of a Credit or (ii) any instruction provided by the Applicant if, in
its discretion, GE Capital determines that the issuance of such Credit or the
carrying out of such instruction contravenes GE Capital's customary procedures
or policy, ISP 98 or any applicable law, rule or regulation.
15. Governing Law; Jurisdiction; Certain Waivers.
(a) THIS AGREEMENT INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE, AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA AND WITH RESPECT TO ALL SECURITY
INTERESTS GRANTED IN CONNECTION HEREWITH, GE CAPITAL SHALL HAVE THE RIGHTS AND
REMEDIES OF A SECURED PARTY UNDER APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO
THE UNIFORM COMMERCIAL CODE OF NEW YORK. EACH APPLICANT HEREBY CONSENTS AND
AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY, CITY OF NEW
YORK, NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY
CLAIMS OR DISPUTES BETWEEN OR AMONG APPLICANT AND GE CAPITAL PERTAINING TO THIS
AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS, PROVIDED, THAT GE CAPITAL AND APPLICANT ACKNOWLEDGE
THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED
OUTSIDE OF NEW YORK COUNTY, AND, PROVIDED, FURTHER, THAT NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE GE CAPITAL FROM BRINGING SUIT
OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT
OR OTHER COURT ORDER IN FAVOR OF GE CAPITAL. EACH APPLICANT EXPRESSLY SUBMITS
AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN
ANY SUCH COURT, AND EACH APPLICANT HEREBY WAIVES ANY OBJECTION THAT SUCH
APPLICANT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR
FORUM NON CONVENIENS AND HEREBY CONSENT TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH APPLICANT HEREBY
WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN
ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND
OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH
APPLICANT AT THE ADDRESSES SET FORTH IN ANNEX I OF THE CREDIT AGREEMENT AND THAT
SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH APPLICANT'S
ACTUAL RECEIPT THEREOF OR 3 DAYS AFTER DEPOSIT IN THE UNITED STATES MAILS,
PROPER POSTAGE PREPAID.
(b) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OR ARBITRATION, EACH
APPLICANT AND GE CAPITAL WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT
OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED THERETO.
(c) This Agreement supplements the Loan Documents, including those
provisions relating to Letter of Credit Obligations and, except as expressly
provided herein to the contrary, this Agreement does not supersede the Loan
Documents.
(d) Each Credit and this Agreement shall be subject to the International
Standby Practices, International Chamber of Commerce Publication No. 590 ("ISP
98") and the same are incorporated herein by reference. Applicant is responsible
for knowing applicable letter of credit law and practice, including ISP 98.
Solely for purposes of interpreting the ISP 98's application to this Agreement
and Credits issued hereunder, GE Capital shall be deemed to be a "bank" as such
term is used in ISP 98. To the extent permitted by applicable law, this
Agreement shall prevail in case of a conflict with applicable law or ISP 98, and
ISP 98 shall prevail in case of a conflict with applicable law.
16. Notices.
Whenever it is provided herein that any notice, demand, request,
consent, approval, declaration or other communication shall or may be given to
or served upon any of the parties by any other party, or whenever any of the
parties desires to give or serve upon another any such communication with
respect to this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be addressed to
the party to be notified at the address set forth in Annex I to the Credit
Agreement (or such other address as may be substituted by notice given in the
manner required by Section 11.10 of the Credit Agreement), and given in the
manner required by Section 11.10 of the Credit Agreement.
Any notice to or demand on Applicant, or, if more than one Applicant
executes this Agreement, the Agent Applicant, shall be binding on all Applicants
and shall be effective when made to Applicant, or if more than one Applicant
executes this Agreement, the Agent Applicant. Any requirements under applicable
law of reasonable notice by GE Capital to Applicant of any event shall be met if
notice is given to Applicant or Agent Applicant, as the case may be, in the
manner prescribed above.
17. Applicant Status.
The person identified in this Agreement as Applicant represents and
warrants, except as otherwise provided in this Agreement, that:
(a) it acts for itself and for no other person in requesting issuance of
each Credit for its account;
(b) it may be identified in each Credit as the "applicant," "account
party" or "customer" at whose request and on whose instruction and for those
account the Credit is issued;
(c) it alone (acting through its officers) may authorize GE Capital to
issue, amend, pay, or otherwise act under any Credit; and
(d) it alone has standing to enforce this Agreement or otherwise to
assert the rights and remedies of an applicant, including without limitation, to
xxx for any injunction against honor of any Credit.
18. General.
(a) If this Agreement is executed by two or more Applicants, they shall
be jointly and severally liable hereunder, and all provisions hereof regarding
the Collateral shall apply to the Obligations and Collateral of any or all of
them.
(b) This Agreement shall be binding upon the heirs, executors,
administrators, assigns and successors of each of the Applicant(s) and shall
inure to the benefit of and be enforceable by GE Capital and its respective
successors, transferees and assigns.
(c) Whenever possible, each provision of this Agreement shall be
interpreted in such a manner to be effective and valid under applicable law, but
if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
(d) This Agreement shall be deemed to be a "Loan Document" for all
purposes under the Credit Agreement.
(e) This Agreement may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute one
agreement.
(f) The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties hereto and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
(g) Each of the parties represents to each other party hereto that it has
discussed this
Agreement and, specifically, the provisions of Section 15(a) and Section 15(b),
with its counsel.
Date:
Name of Applicant:
XXXXX INTERNATIONAL ENTERPRISES GENERAL ELECTRIC CAPITAL
CORP. CORPORATION
By:______________________________ By:_________________________________
Name:_________________________ Name:____________________________
Title:________________________ Title:___________________________
Address of Applicant:
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
BLUE RIDGE TEXTILE MANUFACTURING
INC.
By:______________________________
Name:_________________________
Title:________________________
Address of Applicant:
0000 XXX Xxxxxx
Xxxxxxxxxx Xxxx
Xxxx Xxxxx, XX 00000
Joint Signature Agreement
In consideration of your establishment from time to time of a Credit
substantially as applied for herein, it is further agreed that this Agreement
shall be the joint and several agreement of the undersigned and all property
referred to in this Agreement as belonging to Applicant shall be understood to
refer to the joint property of any or all of the several Applicants as well as
to the individual property of each of them. The happening of any Event of
Default as specified in Section 8 of this Agreement with respect to any
Applicant shall mature the obligations of all Applicants. A demand made on any
Applicant pursuant to Section 1 of this Agreement shall fix the exchange rate as
to all Applicants.
It is agreed that Xxxxx International Enterprises Corp. shall appear in
each Credit as Account Party and that Xxxxx International Enterprises Corp.
("Agent Applicant") has the exclusive right to issue all instructions on any and
all matters relating to such Credit, including, without limitation, instructions
as to disposition of documents and any unutilized funds, and waivers of
discrepancies, and to agree with you upon any amendments, modifications,
extensions, renewals, or increases in such Credit or any other matter.
Joint Applicant
OHIO GARMENT RENTAL, INC.
By:__________________________________
Name: ____________________________
Title:____________________________
Address of Joint Applicant:
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Authorization and Agreement of Account Party
Gentlemen:
We hereby join the request of Applicant to issue from time to time the
Credits, described on page 1 with our name appearing as Account Party.
In consideration of your issuing each Credit in this form it is agreed
that Applicant has the exclusive right to issue all instructions on any and all
matters relating to such Credits including, without limitation, instructions as
to disposition of documents and any unutilized funds, and waivers of
discrepancies, and to agree with you upon any amendments, modifications,
extensions, renewals, or increases in each Credit or any other matters
irrespective of whether the same may now or hereafter affect our rights or those
of our successors or assigns.
______________________________________
Account Party
By: __________________________________
Authorized Signature
Address of Account Party:
______________________________________
______________________________________
ANNEX I
The Applicant agrees to pay the following fees with respect to the
Credits:
I. Issuance:
Upon issuance thereof, the greater of (a).20% per annum of the amount of the
Credit and (b) $150.00
Plus:
(c) Issuance Fee $150.
II Amendment:
Upon any amendment which increases the amount thereof, the greater of (a).20%
of such increased amount and (b) $150.00
Amendments changing a condition of the SBLC (c) $125.00
III. Evergreen Renewal:
Issuance fee (a) plus $150.
IV. Document Examination:
$250
