Application And Agreement For Commercial Letter Of Credit Page 3
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3decree, regulation, ruling, or interpretation of any governmental agency (domestic or
13. Miscellaneous.
foreign), or (g) the identity of any transferee of the Letter of Credit or the sufficiency of the
(a) No delay, extension of time, renewal, compromise or other indulgence which
transfer if the Letter of Credit is transferable.
may occur or be granted by Bank of America shall impair the rights and powers of Bank of
9. Indemnities.
America hereunder. Bank of America shall not be deemed to have waived any of its rights
(a) Applicant will indemnify and hold Bank of America (such term to include for
hereunder, unless Bank of America shall have signed such waiver in writing.
purposes of this Section 9 affiliates of Bank of America and its affiliates’ officers, directors,
(b) Any notice from Bank of America to Applicant shall be sent to the address of
employees and agents) harmless from and against (i) all loss, claim, expense or damage
Applicant set forth on the Application and shall be effective upon receipt by Applicant.
arising out of the issuance by Bank of America, or any other action taken by any such
Any notice from Applicant to Bank of America shall be sent to the address of Bank of
indemnified party in connection with the Letter of Credit including any loss or damage
America specified by Bank of America to Applicant and shall be effective upon receipt by
arising in whole or in part from the negligence of the party seeking indemnification, but
Bank of America.
excluding any loss or damage resulting from the gross negligence or willful misconduct of
(c) Each provision of this Application and Agreement shall be interpreted in such
the party seeking indemnification, and (ii) all costs and expenses (including reasonable
manner as to be effective and valid under applicable law, but if any provision of this
attorneys’ fees and allocated costs of in-house counsel and legal expenses) of all claims or
Application and Agreement shall be prohibited by or invalid under applicable law, such
legal proceedings arising out of the issuance by Bank of America of the Letter of Credit or
provision shall be ineffective only to the extent of such prohibition or invalidity, without
incident to the collection of amounts owed by Applicant hereunder or the enforcement of
invalidating the remainder of such provision or the remaining provisions of this Application
the rights of Bank of America hereunder, including, without limitation, legal proceedings
and Agreement.
related to any court order, injunction, or other process or decree restraining or seeking to
(d) Any and all payments made to Bank of America hereunder shall be made free
restrain Bank of America from paying any amount under the Letter of Credit. Additionally,
and clear of and without deduction for any present or future taxes, levies, imposts,
Applicant will indemnify and hold Bank of America harmless from and against all claims,
deductions, charges or withholdings, and all liabilities with respect thereto, excluding
losses, damages, suits, costs or expenses (including reasonable attorneys’ fees and allocated
income or franchise taxes imposed by the United States and any political subdivisions
costs of in-house counsel, and legal expenses) arising out of (i) Bank of America’s
thereof (such nonexcluded taxes being herein called “Taxes”).
If Applicant shall be
acceptance of telecommunication instructions in connection with the Letter of Credit,
required by law to deduct any Taxes from or in respect of any sum payable hereunder, (i)
including but not limited to, telephonic instructions in connection with any waiver of
the sum payable shall be increased as may be necessary so that after making all required
discrepancies, or (ii) Applicant’s failure to timely procure licenses or comply with
deductions (including deductions applicable to additional sums payable under this Section
applicable laws, regulations or rules, or any other conduct or failure of Applicant relating to
13(d)), Bank of America shall receive an amount equal to the sum Bank of America would
or affecting the Letter of Credit.
have received had no such deductions been made, (ii) Applicant shall make such
(b) If any award, judgment or order is given or made for the payment of any amount
deductions, and (iii) Applicant shall pay the full amount deducted to the relevant authority
due under this Application and Agreement and such award, judgment or order is expressed
in accordance with applicable law. Applicant will indemnify Bank of America for the full
in a currency other than the currency required under this Application and Agreement,
amount of Taxes (including, without limitation, any Taxes imposed by any jurisdiction on
Applicant shall indemnify Bank of America against and hold Bank of America harmless
amounts payable under this Section 13(d)) paid by Bank of America and any liability
from all loss and damage incurred by Bank of America as a result of any variation in rates
(including penalties, interest and expenses) arising therefrom or with respect thereto,
of exchange between the date of such award, judgment or order and the date of payment (or,
whether or not such Taxes were correctly or legally asserted. This indemnification shall be
in the case of partial payments, the date of each partial payment thereof) in the required
made within 30 days from the date Bank of America makes written demand therefor.
currency
Within 30 days after the date of any payment of Taxes, Applicant will furnish to Bank of
(c) Each of these indemnities shall constitute an obligation separate and
America the original or a certified copy of a receipt evidencing payment thereof.
independent from the other obligations contained in this Application and Agreement, shall
(e) This Application and Agreement shall be binding upon Applicant, its successors
give rise to a separate and independent cause of action, shall apply irrespective of any
and assigns, and shall insure to the benefit of Bank of America, its successors, transferees
indulgence granted by Bank of America from time to time, and shall continue in full force
and assigns; provided that any assignment by Applicant of any of its rights or obligations
and effect notwithstanding any award, judgment or order for a liquidated sum in respect of
under this Application and Agreement without the prior written consent of Bank of America
an amount due under this Application and Agreement.
shall be void.
10. Governing Law and Rules.
The Letter of Credit will be subject to, and
(f) If the Applicant requests Bank of America to increase the amount of the Letter
performance under the Letter of Credit by Bank of America, its correspondents, and the
of Credit, extend or renew the Letter of Credit, otherwise modify the terms of the Letter of
beneficiary will be governed by, the terms of the Uniform Customs and Practice for
Credit, or finance or refinance any transaction effected under the Letter of Credit, Applicant
Documentary Credits (1993 Revision), International Chamber of Commerce Publication
agrees that this Agreement shall continue to bind it with respect to any action taken by Bank
No. 500, or such later revision as may be adopted by the International Chamber of
of America or any of Bank of America’s correspondents in accordance with such increase,
Commerce and be in effect on the date the Letter of Credit is issued (“UCP”). The Letter of
extension, renewal or other modification and as to any transaction so financed or refinanced.
Credit and this Application and Agreement shall be governed by and construed under the
(g) Applicant understands that the final form of the Letter of Credit may vary from
laws of the state in the United States where Bank of America issues the Letter of Credit,
the wording specified in the Application, and Applicant authorizes Bank of America to
without reference to that state’s provisions regarding conflicts of laws, to the jurisdiction of
make such changes, not materially inconsistent with the Application, which Bank of
which the parties hereto submit. If the Letter of Credit is not issued in any state, the law of
America deems necessary or appropriate. Applicant agrees that Bank may in its sole
the State of California will govern.
discretion request any entity, including any banking center or office of Bank of America
11. Applicant Status. The word “Applicant” in this Application and Agreement refers
located in a country different than the location where the Letter of Credit was issued, to act
to each signer (other than Bank of America) of this Application and Agreement. If this
as advising bank with regard to the Letter of Credit and any Items.
Application and Agreement is signed by more than one Applicant, their obligations under
(h) Applicant shall pay Bank of America for reasonable attorneys’ fees and
this Application and Agreement shall be joint and several. If there is more than one
allocated costs of in-house counsel, and legal costs paid or incurred by Bank of America in
Applicant, the Letter of Credit will be issued in the name of the Account party listed on the
connection with this Agreement or the Letter of Credit (including, without limitation, the
Application, or if no such party is listed, the first Applicant named on the Application (the
defense by Bank of America of any proceeding initiated by the Applicant to enjoin or
“Designated Party”). Applicant further agrees that the Designated Party shall have the
restrain any drawing, payment or negotiation of the Letter of Credit by Bank of America,
exclusive right to issue all instructions relating to the Letter of Credit including (without
even if the Applicant is awarded such relief, provided only that Bank of America has acted
limitation) instructions as to the disposition of documents and any unutilized funds, waiver
in good faith in defending such action).
of discrepancies, and to agree with the Bank upon any amendments, modifications,
(i) In the event of any change or modification, with the consent of Applicant, which
extensions, renewals, or increases in the Letter of Credit or the further financing or
consent may be given by any means of submission acceptable to Bank of America,
refinancing of any transaction effected thereunder, irrespective of whether the same may
including, without limitation, computer, facsimile, telephone or telex, relative to the Letter
now or hereafter affect its rights or those of its legal representatives, heirs, successors or
of Credit or any instrument called for hereunder, including any waiver made or in good faith
assigns. The Designated Party shall have specimen signatures on file with the Bank and the
believed by Bank of America to have been made by Applicant of any term hereof or the
Bank may give any notices to the Designated Party without notice to any other person listed
noncompliance of any such instruments with the terms of the Letter of Credit, this
as an Applicant on the Application.
Application and Agreement shall be binding upon Applicant with regard to the Letter of
12. Representations and Warranties.
Credit as so changed or modified, and to any action taken by Bank of America or any of its
(a)Applicant represents and warrants to Bank of America that it has the authority to
correspondents relative thereto. No term or provision of this Application and Agreement
enter into this Application and Agreement and that such agreement will not violate or
can be changed orally, but only in a writing and signed by Applicant and Bank of America.
conflict with any of the provisions of its constituent documents or any other agreement or
(j) Bank of America assumes no liability or responsibility for the consequences
undertaking to which it is a party or to which it is bound.
arising out of delay and/or loss in transit of any message, letter or documentation, or for
(b) Applicant represents and warrants to Bank of America that Applicant has
delay, mutilation or other error arising in the transmission of any teletransmission.
obtained all licenses and other governmental approvals required for the import, export,
(k) If Applicant includes in the Application any language describing events or
shipping, storage of, financing of or payment for goods and the documents described in the
conditions that would not be possible for Bank of America to verify solely from the
Letter of Credit. Applicant also represents and warrants to Bank of America that it has paid
documents required to be presented under the Letter of Credit, Applicant acknowledges and
all applicable levies, duties or other taxes imposed in connection with the Letter of Credit
agrees that Bank of America has no obligation to verify compliance with such requirements.
(other than net income taxes payable by the Bank). Without limiting the generality of the
NOTICE
OF
FINAL
AGREEMENT.
THIS
WRITTEN
AGREEMENT
foregoing, Applicant further expressly represents and warrants to Bank of America that the
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
transactions underlying the Letter
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS
of Credit are not prohibited under the Foreign Assets Control Regulations of the United
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
States Treasury Department and any importation covered by the Letter of Credit conforms
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES
.
in every respect with all existing applicable U.S. and state laws.
APPLICANT
Name of Company or Individual
By, Authorized by (signature)
Title
Telephone (
)
Fax (
)
FOR OFFICE USE ONLY
Trade Operations
Mail Code#
COMMISSION
Per Standard Fee Schedule
Other
Charge Banking Center
Charge Directly
Commissions and Charges only
Drawings, Commissions and Charges
APPLICANT’S DDA ACCOUNT NUMBER:
T/R #
REFERRING OFFICER (PRINTED NAME)
PHONE NUMBER
REFERRING OFFICER NUMBER
REFERRING OFFICER BANK NUMBER
REFERRING OFFICER COST CENTER NUMBER
REFERRING OFFICER SOCIAL SECURITY NUMBER
APPROVING OFFICER (PRINTED NAME)
PHONE NUMBER
APPROVING OFFICER NUMBER
APPROVING OFFICER BANK NUMBER
APPROVING OFFICER COST CENTER NUMBER
APPROVING OFFICER SOCIAL SECURITY NUMBER
APPROVING OFFICER SIGNATURE
APPROVING OFFICER INTEROFFICE ADDRESS
00-35-0523NSBW 02-2001
BKBOAxLAPL0523
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