MASTER AGREEMENT
FOR
DOCUMENTARY 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,
Documentary 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, arrange for the
issuance of Credits (as defined herein) through GE Capital Trade Services,
Limited or another subsidiary of GE Capital appointed in accordance with Section
3(d) (the "Issuer"), 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 drawn under any Credit 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, Issuer and each
of their correspondents in relation to the Credits and all Drafts thereunder. A
schedule of commissions and charges is attached hereto as Annex I.
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 Collateral, 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 Issuer honors any presentation or demand
or Draft and Applicant fails to reimburse GE Capital therefor in accordance with
the terms of the Credit Agreement, GE Capital and Issuer may assert their rights
of subrogation under applicable law, whether Issuer's honor satisfies all or
only part of the underlying obligation. The Applicant must, on reasonable
notice, cooperate with Issuer and GE Capital in their assertion of the
Applicant's rights against the Beneficiary, the Beneficiary's rights against the
Applicant, and any other rights that Issuer or GE Capital may have by
subrogation or assignment. Subject to the terms of the Credit Agreement, the
Applicant agrees to make upon demand such cash deposits with GE Capital as GE
Capital may require to further secure the 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, Applicant
will notify GE Capital thereof in writing within two business days after its
receipt of a copy of such Credit (and any amendments thereof), and Applicant
will conclusively be deemed to have waived any such claim against GE Capital,
Issuer and their subcontractors, servicers and agents unless such notice is
given as aforesaid.
(b) Neither Issuer, GE Capital nor any of their correspondents
shall be responsible for, and neither Issuer's and 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 Issuer, GE Capital or their subcontractors, servicers and agents or their
respective 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 Issuer or 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
correspondent) or any consequences arising from causes beyond Issuer's or 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 or Issuer required or permitted under any (1) law or practice to which a
Credit is subject, (2) applicable order, ruling or decree of any court,
arbitrator or governmental agency, or (3) published statement or interpretation
on a matter of law or practice; (ix) honor or other recognition of a
presentation or demand that includes forged or fraudulent documents or that is
otherwise affected by the fraudulent or illegal conduct of the Beneficiary or
other person (excluding GE Capital's and Issuer's employees), or (x) dishonor of
any presentation that does not strictly comply with the
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terms of the applicable Credit or that is fraudulent, forged or otherwise not
entitled to be honored. Without limiting the generality of the foregoing, Issuer
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 Issuer may then accept presentations of Drafts and
documents for payment directly.
(c) Notwithstanding any waiver by Applicant of discrepancies in
Drafts, documents or required statements, GE Capital or Issuer, either one
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. Such right is in addition to and not in limitation of rights of
Issuer under the UCP (as defined in Section 15(c) below).
(d) GE Capital may appoint any of its other subsidiaries as
"Issuer" at any time and any such Issuer may assign all or any portion of its
rights under this Agreement or any Credit, including without limitation any
reimbursement obligation owing to it to any subsidiary of GE Capital, in each
case without prior notice to Applicant.
4. Extensions, Increases and Modifications of Credit.
Each Applicant agrees that GE Capital, acting through Issuer 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): (a) further finance or refinance any transaction under any Credit;
(b) renew, extend or change the time of payment or the manner, place or terms of
payment of any of the Obligations; (c) 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
Issuer; or (d) 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
Issuer 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 Issuer 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, Issuer, or any other condition is imposed
upon Issuer which imposes a cost upon Issuer, and the result, in the
determination of Issuer is to increase the cost to Issuer 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 Issuer
hereunder, Applicant will pay to Issuer
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upon demand such amounts required to compensate Issuer for such increased cost
or reduction. In making the determinations contemplated hereunder, Issuer may
make such estimates, assumptions, allocations and the like which Issuer in good
faith determines to be appropriate, but Issuer's selection thereof, and Issuer's
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 Issuer's review of
documents, then all discrepancies and other irregularities of said documents
shall be deemed waived by the Applicant, and Issuer 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 Issuer 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
Issuer 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, Issuer may direct GE Capital in its capacity as Agent under
the Credit Agreement to pursue any of the remedies provided for in the Loan
Documents, including without limitation declaring that all of the Obligations
(including any such Obligations 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 or
Issuer 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, Issuer or any
agent, servicer or subcontractor of either of them may be subject or that due to
currency fluctuations the Dollar Equivalent of the amount of a Credit exceeds
the amount of Dollars that Issuer 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).
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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, these terms and conditions each
Application for Documentary Letter of Credit entered into between GE Capital
and/or Issuer 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 Documentary Letter of Credit issued by Issuer
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 Issuer; or (ii) in the event that
Issuer shall not at the time be offering such a rate, the amount of Dollars that
Issuer, in its sole judgment, specifies as sufficient to reimburse or provide
funds to Issuer in respect of amounts drawn or drawable under a Credit; in
either case as and when determined by Issuer.
"Dollars" shall mean lawful currency of the United States of America.
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"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.
"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 Issuer upon demand for
and to indemnify and hold GE Capital and Issuer 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/or Issuer in connection with any Credit. Such Indemnified Liabilities shall
include, but not be limited to, all such Indemnified Liabilities incurred or
suffered by GE Capital and/or Issuer in connection with (a) GE Capital and/or
Issuer'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. None of GE Capital, Issuer or any
subcontractor, servicer or agent of either of them 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 Issuer or GE Capital or any subcontractor, servicer or agent of either
of them arising with respect to any Credit.
11. Licenses; Insurance.
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
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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 or Issuer 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 or Issuer 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 or Issuer hereunder shall be cumulative and shall be
supplementary of and in addition to those granted or available to GE Capital or
Issuer 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 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
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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) Each Credit and this Agreement shall be subject to the Uniform
Customs and Practice for Documentary Credits (1993 Revision) International
Chamber of Commerce Publication No. 500, or the most recent revision thereof
(the "UCP"), the terms of which are known to us, and the same shall be
considered as incorporated herein. Solely for purposes of interpreting the UCP's
application to this Agreement and Credits issued hereunder, Issuer shall be
deemed to be a "bank" as such term is used in the UCP.
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
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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. Third Party Beneficiary.
Applicant hereby acknowledges that Issuer is a third party
beneficiary under this Agreement and may enforce its rights under this Agreement
directly against the Applicant as if Issuer were named herein as a party.
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, Issuer and their
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.
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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
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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:
1. upon issuance thereof, the greater of (a) 1/8 of 1% of the
amount of the Credit and (b) $95;
2. upon any amendment which increases the amount thereof, the
greater of (a) 1/8 of 1% of such increased amount and (b) $45;
3. upon any other amendment thereof, $45;
4. upon the negotiation thereof, the greater of (a) 1/8 of 1% of
the amount thereof and (b) $60; and
5. with respect to any other activity related to such Credit, the
standard fees and charges of Issuer for such activity.
