EXHIBIT 10.5
MASTER AGREEMENT
FOR
STANDBY LETTERS OF CREDIT
TERMS AND CONDITIONS
June 30, 2004
GE Canada Finance Holding Company
c/o General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned ("APPLICANT") will require, from time to time, Standby
Letters of Credit. In accordance with the terms of the Credit Agreement, GE
Canada Finance Holding Company ("ISSUER") will, upon Applicant's application
therefor, and to the extent such application is approved by Issuer in its sole
discretion, issue Standby Letters of Credit or arrange for the issuance thereof
through an affiliate of Issuer. Each Credit will be governed by and interpreted
in accordance with the following terms and conditions. Capitalized terms used
herein and not otherwise defined shall have the respective meanings assigned to
them in SECTION 9 below.
1. PAYMENT TERMS.
In addition to all commissions, charges, fees and expenses payable in
connection with Credits pursuant to the Credit Agreement (including the Letter
of Credit Fee), Applicant agrees to pay to Issuer on demand, at Issuer's office
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other
address or account as may be designated in writing by Issuer, in Dollars, in
immediately available funds without duplication: (i) each amount paid by Issuer
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
Equivalent Amount of Dollars of each amount so drawn; (ii) interest on each
amount (or the Equivalent Amount of Dollars 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 Issuer, 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, Issuer 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 Issuer 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 the
Letter of Credit Obligations), Applicant hereby grants to Issuer a security
interest in the unqualified right to the possession and disposal of all property
shipped under or in connection with each Credit, whether released to 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
MASTER AGREEMENT (Standby L/Cs)
owned by Applicant, in or coming into Issuer's possession or custody, and in any
deposit balances now or hereafter held by a bank as custodian for Issuer for
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, demand or
Draft and Applicant fails to reimburse Issuer therefor in accordance with the
terms of the Credit Agreement, Issuer may assert its rights of subrogation under
applicable law, whether Issuer's honor satisfies all or only part of the
underlying obligation. Applicant must, on reasonable notice, cooperate with
Issuer in its assertion of Applicant's rights against the Beneficiary, the
Beneficiary's rights against Applicant, and any other rights that Issuer may
have by subrogation or assignment. Such cooperation shall include the prompt
return of all Drafts, documents, instruments and statements in Applicant's
possession that were presented by or on behalf of 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, Applicant agrees to make upon demand such cash
deposits with Issuer as Issuer 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 Issuer with respect to any Credit,
Applicant will notify Issuer 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 Issuer and its
subcontractors, servicers and agents or any defense to payment of Issuer, 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 5.09b of ISP 98.
(b) Neither Issuer nor any of its agents, subcontractors or servicers
shall be responsible for, and neither Issuer'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 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 Issuer 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
Issuer'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
Issuer required or permitted under any (1) law or practice to which a Credit is
subject (including ISP 98), (2) applicable
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MASTER AGREEMENT (Standby L/Cs)
order, ruling or decree of any court, arbitrator or governmental agency, or (3)
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 Issuer'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, 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 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) Subject to Issuer's obtaining any necessary consent from the
Beneficiary or other third party, Issuer may for Applicant's account at any time
(i) treat a Credit as governed by the law of the place where Issuer 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 Issuer is enjoined by a court of competent jurisdiction,
Issuer may assume that any Beneficiary or other presenter acts in good faith and
that any presentation or other demand is non-fraudulent.
(e) Unless the Credit specifically permits and Issuer specifically
agrees, Issuer 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 Issuer.
(f) Unless specifically committed to do so in a writing signed by
Issuer, Issuer need not consent to any amendment of a Credit. Issuer shall,
without authorization from Applicant, send a notice of non-extension to the
Beneficiary and Applicant under a Credit if it provides for automatic extension;
provided, that Issuer shall not incur any liability for failure to provide such
notice to Applicant. Any notice of dishonor given by Issuer within six Business
Days after presentation of documents to Issuer shall not be deemed to be
unreasonable. This SECTION 3(d) 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, Issuer acting alone has the right in its sole
judgment, to decline to approve any discrepancies and to refuse payment on that
basis under any Credit issued hereunder.
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MASTER AGREEMENT (Standby L/Cs)
(h) Issuer may assign its rights and delegate its duties hereunder to
any affiliate of Issuer, 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, Issuer 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 Issuer and as received by the Beneficiary. Issuer's
recommendation or drafting of text or Issuer'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 other applicable
law, of a provision in any Credit that requires Issuer 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) Applicant agrees that 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): (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 Issuer; or (iv) release any
other 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,
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 Issuer
as due and payable for their maximum face amount.
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MASTER AGREEMENT (Standby L/Cs)
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 reasonable
credit judgment 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 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 determinations based
thereon, shall be presumptive evidence upon Applicant.
6. POSSESSION OF PROPERTY BY APPLICANT.
If Applicant accepts or retains possession of documents, goods or other
property, if any, covered by a Credit, prior to Issuer's review of such
documents, then all discrepancies and other irregularities of said documents
shall be deemed waived by 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 (a) 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 (b) 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 SECTIONS 8.1(h) or 8.1(i) of the Credit
Agreement, Issuer, in its capacity as "Lender" under the Credit Agreement, may
pursue any of the remedies provided for in the Loan Documents, including
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 SECTIONS 8.1(h) or 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) Issuer 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, Issuer determines that such currency is unavailable
or that the transactions contemplated by this Agreement are unlawful or contrary
to any regulations to which Issuer or any agent, servicer or subcontractor of
Issuer may be subject or that due to currency fluctuations the Equivalent Amount
of Dollars 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 Issuer an amount equal to the undisbursed
portion, if any, of
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MASTER AGREEMENT (Standby L/Cs)
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:
"Agreement" means, collectively, this Agreement and each Application for
Standby Letter of Credit entered into between Issuer and Applicant, in each case
as the same may be amended, restated, supplemented or otherwise modified from
time to time.
"Applicant" means 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" means, as to any Credit, the beneficiary of that Credit.
"Business Day" means any day that is not a Saturday, a Sunday or a day on
which banks are required or permitted to be closed in the Province of Ontario or
the States of California or New York.
"Collateral" has the meaning given such term in the Credit Agreement.
"Credit" means a Standby Letter of Credit issued by Issuer upon
Applicant's request of Issuer, 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" means the Credit Agreement dated as of June 30, 2004,
among Applicant, the other credit parties signatory thereto, and Issuer, as the
same may be amended, restated, supplemented or otherwise modified from time to
time.
"Default" has the meaning given such term in the Credit Agreement.
"Dollars" means lawful currency of the United States of America.
"Draft" means any draft (sight or time), receipt, acceptance, cable or
other written demand for payment.
"Equivalent Amount" means, on any date of determination, with respect to
obligations or valuations denominated in one currency (the "first currency"),
the amount of another currency (the "second currency") that would result from
the conversion of the relevant amount of the first currency into the second
currency at the Bank of Canada 12:00 noon rate quoted on the Reuters Monitor
Screen (Page BOFC or such other Page as may replace such Page for the purpose of
displaying such exchange rate) on such date (and available by telephone from the
Bank of Canada at (▇▇▇) ▇▇▇-▇▇▇▇ or, if such date is not a business day, on the
business day immediately preceding such date of determination, or at such other
rate as may have been agreed in writing between Applicant and Issuer.
"Event of Default" has the meaning given such term in the Credit
Agreement.
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MASTER AGREEMENT (Standby L/Cs)
"Guarantor" has the meaning given such term in the Credit Agreement.
"ISP 98" means the International Standby Practices, International Chamber
of Commerce Publication No. 590.
"Lender" has the meaning given such term in the Credit Agreement.
"Letter of Credit Fee" has the meaning given such term in the Credit
Agreement.
"Letter of Credit Obligations" has the meaning given such term in the
Credit Agreement.
"Loan Documents" has the meaning given such term in the Credit Agreement.
"Obligations" has the meaning given such term in the Credit Agreement.
"Termination Date" has the meaning given such term in the Credit
Agreement.
10. EXPENSES; INDEMNIFICATION.
Applicant agrees to reimburse Issuer and its subcontractors, servicers and
agents upon demand for and to indemnify and hold Issuer harmless from and
against all claims, liabilities, losses, costs and expenses ("INDEMNIFIED
LIABILITIES"), including attorneys' fees and disbursements, incurred or suffered
by Issuer and its subcontractors, servicers and agents in connection with this
Agreement or any Credit, to the extent provided in SECTION 1.13 of the Credit
Agreement. Such Indemnified Liabilities shall include all such Indemnified
Liabilities incurred or suffered by Issuer and its subcontractors, servicers and
agents in connection with (a) 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 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
Issuer in an action in which Applicant obtains an injunction against
presentation or honor of any Draft. None of Issuer or any subcontractor,
servicer or agent of Issuer 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 any
subcontractor, servicer or agent arising with respect to any Credit. If Issuer
honors a Draft or presentation under a Credit for which Applicant claims it is
not obligated to reimburse Issuer, Applicant shall nonetheless pay to Issuer the
amount paid by Issuer, without prejudice to Applicant's claims against Issuer 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 Issuer'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, 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
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MASTER AGREEMENT (Standby L/Cs)
respect as Issuer 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 Issuer, and to cause Issuer's interest to be endorsed thereon,
and to furnish Issuer on demand with evidence thereof. Should the insurance upon
said goods for any reason be unsatisfactory to Issuer, Issuer may, at its
expense, obtain insurance satisfactory to it.
12. NO WAIVERS OF RIGHTS HEREUNDER; RIGHTS CUMULATIVE.
No delay by 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
Issuer unless in writing and signed by an officer of Issuer, and unless it
expressly refers to the provision affected, any such waiver shall be limited
solely to the specific event waived. All rights granted Issuer hereunder shall
be cumulative and shall be supplementary of and in addition to those granted or
available to 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, Issuer reserves the
right to decline (a) any request made by Applicant for the issuance of a Credit
or (b) any instruction provided by Applicant if, in its discretion, Issuer
determines that the issuance of such Credit or the carrying out of such
instruction contravenes Issuer's customary procedures or policy, ISP 98 or any
applicable law, rule or regulation.
15. GOVERNING LAW; JURISDICTION; CERTAIN WAIVERS.
(a) This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the Province of Ontario, and with respect to all
security interests granted in connection herewith, Issuer shall have the rights
and remedies of a secured party under applicable law. 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.
(b) APPLICANT AGREES THAT ALL ACTIONS AND PROCEEDINGS RELATING DIRECTLY
OR INDIRECTLY TO THIS AGREEMENT SHALL BE LITIGATED ONLY IN COURTS LOCATED IN THE
PROVINCE OF ONTARIO AND THAT SUCH COURTS ARE CONVENIENT FORUMS THEREFOR, AND
APPLICANT SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS.
(c) Applicant waives personal service of process upon it and consents
that any such service of process may be made by certified or registered mail,
return receipt requested, directed to Applicant at its address last specified
for notices hereunder, and service so made shall be deemed completed three
Business Days after the same shall have been so mailed.
(d) APPLICANT WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BETWEEN IT AND ISSUER WAIVES THE RIGHT TO
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MASTER AGREEMENT (Standby L/Cs)
ASSERT IN ANY ACTION OR PROCEEDING WITH REGARD TO THIS AGREEMENT OR ANY OF THE
OBLIGATIONS ANY OFFSETS OR COUNTERCLAIMS WHICH IT MAY HAVE.
(e) Each Credit and this Agreement shall be subject to ISP 98 and the
same is 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, Issuer 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.
Any notice to Issuer shall be effective only if in writing or by
authenticated teletransmission acceptable to Issuer, as applicable, directed to
the attention of and received by Issuer. 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, by mail, telegraph, facsimile, telephone or otherwise, in the case of
mailed, telegraphed or cabled notices, to the address appearing below such
Applicant's signature or at such other address as may hereafter be specified in
a notice designated as a notice of change of address under this paragraph, and
in the case of telephonic or facsimile notices, to the telephone number of such
Applicant appearing below Applicant's signature. Any requirements under
applicable law of reasonable notice by Issuer 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 at least two days before (a) the date of such event
or (b) the date after which such event will occur.
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 whose
account the Credit is issued;
(c) it alone (acting through its officers) may authorize Issuer 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
▇▇▇ 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.
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MASTER AGREEMENT (Standby L/Cs)
(b) This Agreement shall be binding upon the heirs, executors,
administrators, assigns and successors of each of Applicant and shall inure to
the benefit of and be enforceable by Issuer and its respective successors,
transferees and assigns.
(c) Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
(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.
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MASTER AGREEMENT (Standby L/Cs)
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first written above.
"APPLICANT"
DYNAMIC DETAILS CANADA, CORP DDI CANADA ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President and Secretary Title: Vice President and Secretary
Address of Applicant:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
"ISSUER"
GE CANADA FINANCE HOLDING
COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
Address of Issuer:
c/c General Electric Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Account Manager (DDi)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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MASTER AGREEMENT (Standby L/Cs)
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 6 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 [ ] shall appear in [each] Credit as Account
Party and that [_____________] ("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.
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JOINT APPLICANT JOINT APPLICANT
By: --------------------------------- By: ------------------------------
Authorized Signature Authorized Signature
Address of Joint Applicant Address of Joint Applicant
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12
MASTER AGREEMENT (Standby L/Cs)
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:
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MASTER AGREEMENT (Standby L/Cs)
ANNEX I
(Standby Suggested Minimum Pricing Sample)
Applicant agrees to pay the following fees with respect to the Credits:
I. Issuance:
Upon issuance thereof, 25 basis points per annum of the amount of the
Credit Plus an Issuance Fee of US$150
II. Amendment:
Upon any amendment that increases or extends the amount thereof, the
issuance basis points fee for the amount the original issuance amount plus
US$150 Upon any amendment that changes a condition of the Credit, US$125
III. Evergreen Renewal:
The Issuance basis points fee (referred to in Item I above) plus US$150
IV. Document Examination:
Direct examination fee of US$125
Non-direct examination fee of US$250
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MASTER AGREEMENT (Standby L/Cs)