Capital One Confidential Page 1 of 10
Continuing Agreement for Irrevocable Standby Letters of Credit
DEFINED TERMS
The "Applicant" means any party and all parties signing the Application, whether as applicant or
account party.
The "Application" means any and all applications submitted to the Bank by the Applicant for
issuance of Credit ·as such applications may be amended or modified from time to time with the
written or oral consent of the Applicant.
The "Bank" means Capital One, N.A.
"Credit" means any and all letters of credit issued by Bank by order of Applicant pursuant to the
Application.
An "Instrument" means any draft, receipt, acceptance, tele transmission (including, but not limited
to, telex) or cable or other written demand for payment.
"Property" means goods and merchandise and any and all documents relative thereto, securities,
funds, chooses in action, and any and all other forms of property, whether real, personal, or mixed
and any right or interest therein.
"Uniform Customs and Practice" means the Uniform Customs and Practice for Documentary Credits
(2007 Revision), International Chamber of Commerce Publication No. 600, or the International
Standby Practices (ISP98), as specified in the Credit issued by the Bank for the Applicant, or any
subsequent revision thereof adhered to by the Bank on the date the Credit is issued.
AGREEMENT FOR IRREVOCABLE STANDBY LETTERS OF CREDIT
In consideration of the issuance by the Bank of the Credit substantially as requested in the
Application, the Applicant hereby agrees with the Bank as follows with respect to the Credit:
1. The Applicant will pay the Bank, on demand, at the Bank's principal office, or such other office
as is designated by the Bank, in immediately available funds, the amount required to pay each
Instrument. Such payment shall be made with interest from the date of the Bank's payment of
such Instrument to the date of reimbursement. If the Instrument is in a foreign currency, such
payment shall be in United States currency at the higher of the Bank's or the Bank's
correspondent's selling rate of exchange for cable transfers to the place of payment of the
Instrument current on the date of payment or the Bank's settlement of its obligation or the date
of demand as the Bank may require. If, for any cause, on the date of payment or settlement, as
the case may be, there is no selling rate or other rate of exchange generally current in New York
for effecting such transfers, the Applicant will pay the Bank on demand an amount in United
States currency equivalent to the Bank's actual cost of settlement of its obligation however or
whenever the Bank shall make such settlement, with interest from the date of settlement to the
date of payment. The Applicant will comply with all governmental exchange regulations now or
hereafter applicable to the Credit or Instrument or payments related thereto and will pay the
Bank, on demand, in United States currency, such amount as the Bank may be or may have
been required to expend on account of such regulations. The Bank may debit the Applicant's
demand deposit account referred to in the Application, and any other account or accounts
maintained by the Applicant with any office of the Bank, or any subsidiary or affiliate thereof
(now or in the future), excluding any escrow, trust or other special accounts, and apply the
proceeds to the payment of any and all amounts owed by the Applicant to the Bank hereunder.
The Applicant shall during the life of all Credit maintain the account referred to in the
Application. During the time any Credit issued by Bank on Applicant's behalf remains
outstanding, Applicant shall supply Bank with such financial or other information including, but
not limited to audited annual and/or quarterly financial statements, as requested by Bank in its
reasonable sole discretion.
Capital One Confidential Page 2 of 10
2. a) The Applicant will pay the Bank, on demand, the Bank's commission and all charges, costs
and expenses paid or incurred by the Bank and the Bank's correspondents in connection with
the Credit, and interest where chargeable, including, but not limited to, reasonable fees and
charges of counsel or allocated by the Bank's internal legal department in connection with the
preparation, performance or enforcement of this Agreement or the Credit. Unless otherwise
agreed:
i. c
ommissions payable hereunder on amounts not paid when due shall be at the rate
customarily charged by the Bank at the time in like circumstances; and
ii. I
nterest payable hereunder on amounts not paid when due shall be at the lesser of (i)
the maximum rate permissible under applicable law, or (ii) the Prime Rate, which shall
mean the highest rate of interest from time to trine published in The Wall Street Journal
as the prime rate, plus 4% per annum.
b) I
n addition to commissions, fees and amounts otherwise payable with respect to the
issuance of the Credit, the Applicant shall pay to the Bank on demand such amounts as the
Bank in its sole discretion determines are necessary to compensate it for any costs,
expenses, or loss of income attributable to its issuing or having outstanding such Credit
resulting from the application of any law or regulation applicable to the Bank regarding any
reserve, assessment, capital adequacy or similar requirement relating to letters of credit or
the reimbursement agreement with respect thereto or other similar liabilities or assets of the
Bank whether existing at the time of issuance of the Credit or adopted thereafter, provided,
however, that in the case of a sale of a participation permitted herein all amounts payable by
Applicant under paragraph 2 hereof shall be determined as if the Bank has not sold such
participation. The applicant acknowledges that there may be various methods of allocating
costs (including, but not limited to, the cost of maintaining capital sufficient to permit
issuance of the Credit) to the Credit and agrees that the Bank's allocation for purposes of
determining the costs referred to above shall be conclusive and binding upon the Applicant
provided such allocation is made in good faith. The Bank shall be deemed to be entitled to a
twenty percent per annum rate of return on capital (after federal, state and local taxes) in
calculating any cost, expense, or loss of income pursuant to this paragraph.
3. T
he Bank may accept or pay any Instrument presented on or before the expiration date set forth
in the Application. Except insofar as written instructions may be given by a person purporting to
be an authorized representative of the Applicant expressly to the contrary, and prior to the
Bank's issuance of Credit, the Bank may honor as complying with the terms of the Credit and of
the Application, any Instrument or other document otherwise in order signed or issued by a
person purporting to be an administrator, executor, trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditor, liquidator, receiver or other legal representative of the party
authorized under the Credit to draw or issue such Instrument or other documents.
4. In the event of any amendment, change or modification, with the consent of the Applicant,
relative to the Credit, or any Instrument or documents called for thereunder, including waiver of
noncompliance of any such Instruments or documents with the terms of the Credit, this
Agreement shall be binding upon the Applicant with regard to the Credit as so amended,
changed or modified, and to any action taken by the Bank or any of its correspondents relative
thereto. No amendment, change, waiver or modification to which the Bank has consented shall
be deemed to mean that the Bank will consent or has consented to any other or subsequent
request to amend, change, modify or waive a term of the Credit. The Bank shall not be deemed
to have waived any of its rights hereunder, unless the Bank or its authorized agent shall have
signed such waiver in writing. No such waiver, unless expressly as stated therein, shall be
effective as to any transaction which occurs subsequent to the date of such waiver, nor as to
any continuance of a breach after such waiver. All rights and remedies provided herein shall be
cumulative and not exclusive of any rights or remedies provided by law.
Capital One Confidential Page 3 of 10
5. T
he Uniform Customs and Practice as specified in the Credit shall be binding on the Applicant
and the Bank except to the extent it is otherwise expressly agreed. It is also agreed that:
a) us
er(s) of the Credit shall not be deemed agents of the Bank;
b) none of the Bank, its affiliates, subsidiaries, or its correspondents shall be responsible for:
i. f
ailure of any Instrument to bear any reference to the Credit or inadequate reference in
any Instrument to the Credit, or failure of documents (other than documents expressly
required to be presented under the Credit) to accompany any Instrument at negotiation,
or failure of any person to note the amount of any Instrument on the reverse of the
Credit, or to surrender or take up the Credit or to forward documents apart from
Instruments as required by the terms of the Credit, each of which provisions, if contained
in the Credit itself, it is agreed may be waived by the Bank; or
ii. er
rors, omissions, interruptions or delays in transmission, or delivery of any messages,
by mail, telex, cable, telegraph, facsimile, wireless or other tele transmission or by oral
instructions, whether or not they may be in cipher;
ii
i. any acts or omissions of any beneficiary of the Credit or assignee of the Credit, if
assignable;
iv
. the existence, nature, amount, condition, or delivery of the property purporting to be
represented by documents or any variance from descriptions therein;
v. t
he nature, validity, form, sufficiency, genuineness or collectability of any documents
(including insurance), or Instruments, or of any endorsement thereon, or the relationship
of any issuer thereof of the property;
vi. any irregularity in connection with shipment, including any default, oversight, or fraud by
the shipper and or any other in connection with the property or documents or the
shipment, non-shipment or transmittal thereof, or delay in arrival thereof, failure to
arrive, or failure to give notice of shipment or arrival thereof;
vi
i. any act or omission or insolvency or failure in business of any other person;
v
iii. any act or omission, whether rightful or wrongful, of any present or future de jure or de
facto government or governmental authority, "Governmental Acts";
ix
. Failure to pay under Credit as a result of Governmental Acts or any other cause beyond
the control of the Bank, its correspondents, and agents.
c) t
he Bank shall not be responsible for any act, error, neglect or default, omission, insolvency
or failure in business of any of its correspondents;
d) t
he occurrence of any one or more of the contingencies or events referred to in the Uniform
Customs and Practice or in the preceding clauses of subparagraphs (b) and (c) shall not
affect, impair, or prevent the vesting of any of the Bank's rights or powers hereunder or the
Applicant's obligation to make payment;
e) t
he Applicant will promptly examine:
a) t
he copy of the Credit (and of any amendments thereof) sent to it by the Bank; and
Capital One Confidential Page 4 of 10
b) all Instruments and documents delivered to it from time to time and, in the event of any
claim of noncompliance with the Applicant's instructions or other irregularity, the
Applicant will immediately notify the Bank thereof in writing, the Applicant being
conclusively deemed to have waived any such claim against the Bank and its
correspondents unless such notice is given as aforesaid;
f) without in any way limiting the foregoing, any action, inaction omission on the part of the
Bank or any of its correspondents, under or in connection with the Credit or relative
Instruments, documents or property, if in good faith, shall be binding upon the Applicant and
shall not place the Bank or any of its correspondents under any liability to the Applicant and
in no event shall the Bank or any correspondent be liable for any special, incidental,
consequential, or punitive damages. The Applicant agrees to hold the Bank, each affiliate
and subsidiary of the Bank, and the correspondents of any of them indemnified and
harmless against any and all claims, loss, liability or damage, including, but not limited to,
reasonable counsel fees, howsoever arising from issuance of the Credit or any act or
omission pursuant to instructions or otherwise in connection with the Credit including,
without limitation, any such claim, loss, liability or damage arising out of any transfer, sale,
delivery, surrender or endorsement of any document at any time held by the Bank or any of
its affiliates or subsidiaries, or held for the account of them by any correspondent of any of
them or arising out of any action for injunctive or other judicial or administrative relief and
affecting, directly or indirectly, the Bank or such affiliate or subsidiary.; and any of them. The
occurrence of any event set forth above shall not affect or impair the rights or powers of the
Bank or Applicant's obligation to reimburse the Bank;
g) Notice from the Bank's correspondent of payment, acceptance or other action under the
Credit shall be conclusive evidence of the Applicant's liability to reimburse the Bank as
provided herein;
h) T
he Applicant has not relied on the Bank in any manner in connection with the wording of
the Credit, including, but not limited to the drawing conditions or the structuring of the
underlying transaction, the same being Applicant's responsibility undertaken with
opportunity to consult counsel.
6. a)
The Applicant agrees not to initiate or acquiesce in any judicial, administrative, or other
proceeding for any injunctive or declaratory relief to block the Bank from paying the Credit. This
provision shall apply notwithstanding any fraud covered by Section 5- 114 of the Uniform
Commercial Code (or successor section). The Applicant acknowledges that remedies for all
such fraud related risks have been adequately considered in the agreements between the
beneficiaries of the Credit and the Applicant.
b) Any claim against the Bank shall be limited to actual damages with no liability for
consequential, incidental, special or punitive damages. Any action for damages by the
Applicant against the Bank must be commenced within one year after the claim arises.
c) T
he Applicant requests the Bank to accept and act upon instructions, to issue Credit and to
amend existing Credit upon the Bank's receipt of written instructions by telex, cable,
facsimile, and/or tele copier transmission. In the event the Bank honors such instructions
(and the Bank need not so honor) the Applicant indemnifies and holds harmless the Bank
from and against any claims, actions, suits, liability, costs, expenses, and damages
including, but not limited to, attorney fees, arising out of the Bank's honoring such request,
so long as the instructions are given by anyone purporting to be authorized to give such
instructions for the Applicant.; and any of them. All such instructions must contain such
information as determined by the Bank in its sole discretion and shall be governed by this
Agreement, including, but not limited to, Section 9 hereof.
Capital One Confidential Page 5 of 10
7. a)
Any and all obligations and liabilities of the Applicant to the Bank, whether now existing or
hereafter incurred (including the future obligation to pay hereunder), shall become and be due
and payable forthwith without notice or demand, which Applicant hereby waives, as follows (an
"Event of Default"):
i. if the Bank shall in good faith deem itself insecure at any time;
ii. upo
n the death or dissolution of the Applicant;
ii
i. if any obligation and/or liability of the Applicant to the Bank or any of its affiliates or
subsidiaries shall not be paid or performed when due, or any event of default as such is
defined under any material Agreement to which the Applicant is a party remains uncured
after any appropriate cure period thereunder.
iv
. if Applicant shall become insolvent (however such insolvency may be evidenced or
defined), file or have filed against it any petition in bankruptcy or insolvency, make a
general assignment for the benefit of creditors, suspend the transaction of its usual
business, or be expelled or suspended from any exchange, or if an application is made
by any judgment creditor of Applicant for an order directing Bank to pay over money or
to deliver other property, if a petition is filed by or against Applicant, or any proceeding is
instituted by or against Applicant for any relief under any bankruptcy or insolvency laws
or any law relating to the relief of debtors, readjustment of indebtedness, reorganization,
composition or extensions, or if any governmental authority, or any court at the instance
of any governmental authority, shall take possession of any substantial part of the
property of Applicant or shall assume control over the affairs or operations of Applicant,
or if a receiver or custodian shall be appointed of, or a writ or order of attachment or
garnishment shall be issued or made against any of the property or assets of Applicant;
v. i
f the Applicant fails to comply with any provision of this Agreement;
vi
. or if any representation or warranty made to obtain credit or extension thereof is or
appears to Bank to be false.
b) I
t is further agreed that;
i. in the event of any of the foregoing, the Applicant shall, on demand of the Bank, deliver,
convey, transfer or assign to the Bank collateral of a value and character satisfactory to
the Bank, or make such payment as the Bank may require, and
ii. i
f a temporary order, an injunction (preliminary or permanent) or any similar order is
issued in connection with the Credit or any instrument or documents relating thereto,
which order, injunction or similar order may apply, directly or indirectly, to the Bank, the
Applicant shall, on demand of the Bank, deliver, convey, transfer or assign to the Bank
collateral of a value and character satisfactory to the Bank, or make such payment as
the Bank may require.
c) U
pon the occurrence of an Event of Default, in addition to the foregoing, the Bank shall have
all of the rights and remedies provided for herein and at law and including, but not limited to,
those under the Uniform Commercial Code.
8. The Applicant agrees that all of the Bank's rights and liens hereunder shall continue unimpaired,
and the Applicant shall be and remain obligated in accordance with the terms and provisions
hereof, notwithstanding any release or substitution of any property pledged as security, or any
interest therein, and notwithstanding any delay, extension of time, renewal, compromise, or
Capital One Confidential Page 6 of 10
other indulgence which may occur or be granted by the Bank, including without limitation the
release or modification of the obligations of any person or entity obligated to the Bank
hereunder. No delay, extension of time, renewal, compromise or other indulgence which may
occur or be granted by the Bank, shall impair the Bank's rights or powers hereunder. The
Applicant further agrees that the Bank shall not be deemed to have waived any of its rights
hereunder unless the Bank, by its authorized agent, shall have expressly waived such rights in
writing; and its obligations hereunder shall continue in force and shall be binding upon the
Applicant and the Applicant's heirs, executors, administrators, successors and assigns
notwithstanding any change in the composition of any entities which are parties hereto or users
of the Credit, whether such change occurs by the accession, secession, or death of one or more
partners or otherwise. If the Applicant is a partnership, its obligations hereunder shall continue
in force and apply, notwithstanding any change in the membership of such partnership, whether
arising from the death or retirement of one or more partners or the accession of one or more
new partners. If the Applicant is a banking institution, the Applicant hereby appoints the Bank its
agent to issue the Credit in accordance with, and subject to this Agreement and the Application.
If more than one entity and/or persons sign this Agreement, each of them shall be jointly and
severally liable hereunder and all the terms and provisions regarding liabilities, obligations and
Property of such entities and/or persons shall apply to any liabilities, obligations and Property of
all of them. The rights of the Bank under this Agreement, the Credit, the Application and any
related documents shall be cumulative, and the exercise of partial exercise of any such right or
remedy shall not preclude the exercise of any other right or remedy.
9. I
nstructions hereunder (whether by oral, telephone, facsimile, teleprocess or other means) may
be honored by the Bank when received from anyone purporting to be authorized to give such
instructions for the Applicant. The Applicant agrees to furnish the Bank with written confirmation
of each such instruction signed by the person giving such instruction, or other authorized officer,
but the Bank's responsibility with respect to any instruction shall not be affected by its failure to
receive or the content of such confirmation, and in the event of any such discrepancy the
original instructions shall govern. The Bank shall have no responsibility to notify the Applicant of
any discrepancies between the Applicant's instructions and its written confirmation. The Bank
shall be fully protected in, and shall incur no liability to the Applicant for, acting upon any oral,
telephone, teleprocess or other instructions which the Bank in good faith believes to have been
given by any authorized person, and in no event shall the Bank be liable for special,
consequential or punitive damages. The Bank may, but need not at its option, use any means of
verifying any instructions received by it. The Bank also may, at its option, but need not, refuse to
act on any oral, telephone, teleprocess or other instruction or any part thereof, without incurring
any responsibility for any loss, liability or expense arising out of such refusal.
10. a)
In the event that the Bank shall amend its standard reimbursement Agreement executed by
each applicant for Credit, the Applicant shall execute and deliver to the Bank an amendment to
this Agreement incorporating such changes, promptly upon receipt thereof from the Bank.
b) The Applicant hereby consents to the dissemination to subsidiaries and affiliates of the Bank
of credit information relating to the Applicant in connection with any proposed participations
by the Bank of any rights and obligations hereunder.
11. a) As security for the performance of all Applicant's obligations of every kind to Bank, present or
future, due or to become due, absolute or contingent, arising hereunder or otherwise
(hereinafter called "Applicant's obligations"), the Applicant hereby assigns, pledges and gives
the Bank a security interest in and a lien upon, and the right of set-off, possession, and disposal
of:
i. al
l documents or Instruments accompanying or relative to drafts under the Credit and all
Property shipped, stored or otherwise disposed of in connection with the Credit or in any
Capital One Confidential Page 7 of 10
way relating thereto and all chattel paper, accounts or general intangibles arising
therefrom or relating thereto, and all proceeds of the foregoing;
ii. al
l the Applicant's rights and causes of action against all parties arising from or in
connection with the contract of sale or purchase of the property covered by the Credit, or
any guarantees, agreements or other undertakings (including those in effect between
the Applicant and any account party named in the Credit), credits, policies of insurance
or other assurances in connection therewith; and
ii
i. all property, rights, choses in action, claims and demands of every kind (including, but
not limited to, all deposit balances) now or hereafter existing and belonging to the
Applicant and which may now or hereafter be in the possession, custody or control of, or
in transit to or set apart for, the Bank, the Bank's agents or correspondents for any
purpose, whether or not for the express purpose of being used by the Bank as collateral
security or for any other or different purpose. Applicant agrees at any time or from time
to time, upon Bank's demand, to furnish the Bank with additional security to the Bank's
satisfaction.
b) The Bank may at any time or times transfer into the Bank's or the Bank's nominee's name all
or part of such security, before or after maturity of any of the Applicant's obligations and
without any notice to the Applicant or any other person. Whenever the Bank deems it
necessary for the Bank's or the Applicant's protection, or after the occurrence of an Event of
Default specified in paragraph 7, or other default, the Bank may, without regard to such
maturity, realize upon (by sale, assignment, set-off, application or otherwise) all or any part
of such security in each case without advertisement, notice to, tender, demand or call of any
kind upon the Applicant or any other person. Any such sale or assignment may be public,
private or upon any broker's board or exchange, for cash, on credit or for future delivery,
and at such price and upon such terms and conditions as the Bank deems appropriate. The
Bank may acquire all or any part of such security and any purchaser shall hold same free
from any equity of redemption or other claim or right on the Applicant's part, which are
hereby specifically waived and released. The Bank may discount, settle, compromise or
extend any obligations constituting such security, and sue thereon in the Bank's or the
Applicant 's name. Any demands, tenders, call or notices to the Applicant shall be deemed
duly made or given as of the time left at the Applicant's last known address, or mailed
telegraphed, telephoned, or otherwise sent to such address. No advertising, notice, tender,
demand or call at any time given or made shall be a waiver of the Bank's right to proceed in
the same or other instances without any further action.
c) pr
oceeds of any such security shall be applied, without any marshaling of assets, in such
manner or order as the Bank may deem proper, to any one or more of the Applicant's
obligations, whether or not due, and the Bank may retain any amounts necessary, in the
Bank's sole judgment, to meet any contingent obligations. The Applicant shall remain liable
for any deficiency.
d) no r
eceipt, of realization upon, release or substitution, of or other dealing with, any such
security shall affect the Bank's rights or liens hereunder and the Bank need not realize upon
any security prior to seeking payment from the Applicant.
e) the Bank shall not be liable for failure to collect or demand payment of, or for failure to
protest or give notice of protest or nonpayment of any obligation or relating to any part of the
collateral or for any delay. The Bank shall not be under any obligation to take any action
with respect to the collateral.
f) I
n addition to and not in limitation of the foregoing, the Bank shall have all the rights and
remedies of a secured party under the Uniform Commercial Code.
Capital One Confidential Page 8 of 10
12. The Applicant represents and warrants that: (a) the execution and delivery of this Agreement
and the Application, and the performance of the obligations they impose, do not violate any law,
conflict with any Agreement by which it is bound, or require the consent or approval of any
governmental authority or any third party; (b) this Agreement and the Application are valid,
binding and enforceable according to their terms; and (c) all balance sheets, profit and loss
statements, and other financial statements furnished to the Bank are accurate and fairly reflect
the financial condition of the organizations and persons to which they apply on their effective
dates, including contingent liabilities of every type, which financial condition has not changed
materially and adversely since those dates. The Applicant, if not a natural person, further
represents that: (a) it is duly organized, existing and in good standing under the laws where it is
organized; and (b) the execution and delivery of this Agreement and the Application, and the
performance of the obligations they impose, (i) are within its powers (ii) have been duly
authorized by all necessary action of its governing body; and (iii) do not contravene the terms of
its articles of incorporation or organization, or by-laws, or any agreement governing its affairs.
13. The right is expressly granted to the Bank at the Bank's discretion, to file one or more financing
statements under the Uniform Commercial Code naming the Applicant as debtor and the Bank
as secured party and covering any property to be purchased or shipped under or by virtue of the
Credit, the documents relating thereto and/or any property which is or becomes collateral
security under the terms of this Agreement. Except as disclosed in writing to the Bank, the
Applicant has not signed or filed or authorized or permitted to be filed in any jurisdiction any
financing statement in which Bank is not named as the sole secured party. Without the Bank's
prior written consent, the Applicant will not create, grant or permit to exist any security interest
in any property to be purchased or shipped under or by virtue of the Credit or in the documents
relating thereto or in any other property which is or becomes collateral security under the terms
of this Agreement, and including security interest in the proceeds, products and accessions of
and to any thereof.
14. The Applicant hereby consents to the personal jurisdiction of any court located where the Credit
was issued and agrees that any such court shall be a proper forum for any action or suit brought
by or against the Bank relating to this Agreement or the Credit. Service of process in any action
or suit arising out of or in connection with this Agreement or the Credit may be made upon the
Applicant by mailing a copy of the summons to the Applicant either at the address set forth in
the application or at the Applicant's last address appearing in the Bank's records. In any such
action or any other action between the Bank and the Applicant or any claim by the Bank against
the Applicant, Applicant agrees to pay the Bank's reasonable attorneys' fees whether at the trial
or appellate court or bankruptcy court.
Applicant also waives:
a) the right to trial by jury in the event of any litigation to which the Bank and the Applicant
are parties in respect of any manner arising under the Credit (including, but not limited
to, this Agreement and the Application), whether or not such litigation has been
commenced in respect of the Credit (including, but not limited to, Agreement and the
Application) and whether or not other persons are also parties thereto;
b) any immunity it or its property may now or hereafter have from suit, jurisdiction,
attachment (whether prior to judgment t or in aid of execution), execution or other legal
process;
c) any claim against the Bank for consequential, incidental, special or punitive damages.
Notice of acceptance of this Agreement by the Applicant is waived; and
Capital One Confidential Page 9 of 10
d) the right to assert that any court in the state where the Credit was issued is an
inconvenient forum.
15. It is expressly recognized and acknowledged by the Applicant that notwithstanding anything to
the contrary contained herein, the Bank does not waive its common law or statutory rights of
set-off or any other rights generally available to creditors.
16. Notice from the Bank to the Applicant, or vice-versa, relating to this Agreement shall be deemed
effective if made in writing (including telecommunications) and delivered to the recipient's
address, telex number or facsimile number set forth by the Applicant on the Application or in the
Credit, and for the Bank in the Credit, by any of the following means; (i) hand delivery,(ii)
registered or certified mail, postage prepaid, with return receipt requested, (iii) first class or
express mail, postage prepaid, (iv) Federal Express, Purolator Courier or like overnight courier
service, or (v) facsimile, telex, or other wire transmission with request for assurance or receipt in
a manner typical with respect to communications of that type. Notice to the Bank must be sent
to the Bank's address set forth in the Credit; notice to the Applicant must be sent to the address
set forth in the Credit, the Application, or at any Applicant's last address appearing in the Bank's
records. Notice made in accordance with this section shall be deemed delivered on receipt if
delivered by hand or wire transmission, on the third business day after mailing or deposit with
an overnight courier service if delivered by express mail or overnight courier; provided, however,
that notice to the Bank shall be deemed delivered upon receipt.
17. This Agreement represents the entire understanding of the parties and there are no other
agreements, representations, or understandings.
This Agreement may not be assigned by the Applicant without the prior written consent of the Bank.
The Bank may assign or sell participations in all or any part of the credit or this Agreement to
another entity. This Agreement and all rights, obligations and liabilities arising hereunder shall be
binding upon and inure to the benefit of the Bank and the Applicant and their respective successors
and permitted assigns and shall be governed by and construed in accordance with the internal laws
of the state where the Credit was issued without reference to principles of conflict of laws. Any
provision hereof which may prove unenforceable shall not affect the validity of any other provision.
Headings are for convenience only and shall not influence construction or interpretation of this
Agreement.
Capital One Confidential Page 10 of 10
WITNESS
Bank: Capital One, N.A.
_____________
______________________
[Print Name of W
itness]
___________________________________
[Print Title of Witness]
___________________________________
[Signatur
e of Witness]
___________________________________
[Dated]
Address for Bank Notices:
Treasury Management Services
Capital One, N.A.
301 West 11th Street
Wilmington, DE 19801
Phone: 877-225-7309
Email: trade.services@capitalone.com
APPLICANT
___________________________________
(Organiza
tion’s/Client’s Legal Name)
____________
______________________
_
[Pri
nt Name of Authorized Representative]
___________________________________
[Pri
nt Title of Authorized Representative]
___________________________________
[Si
gnature of Authorized Representative]
___________________________________
[Da
ted]
Address for Customer Notices:
___________________________________
___________________________________
___________________________________
Phone: ( ) _____________________