docFIRSTMERIT BANK, N.A. CONTINUING REIMBURSEMENT AND SECURITY AGREEMENT
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FIRSTMERIT BANK, N.A. CONTINUING REIMBURSEMENT AND SECURITY AGREEMENT
FIRSTMERIT BANK, N.A. CONTINUING REIMBURSEMENT AND SECURITY AGREEMENT FOR STANDBY LETTERS OF CREDIT The undersigned (“Applicant”) will, from time to time, request that one or more of FIRSTMERIT BANK, N.A. (Main Office Akron) and/or any domestic or foreign FirstMerit Affiliate (as defined in Section 35 below) (each of such entities the “Issuer” with respect to each Credit and all of such entities collectively the “Issuers”) issue for its account, or for the account of the account party named in the Application, standby letters of credit in such form as is deemed acceptable to Issuer in its discretion (each such letter of credit a “Credit”). Such requests will be made by submitting to the Issuer a completed Application (the “Application”) substantially in the form attached to this Continuing Reimbursement and Security Agreement for Standby Letters of Credit (as amended, supplemented or otherwise modified form time to time, including all Addenda hereto (if any) and the Applications, the “Agreement”) or such other form(s) as approved by the Issuer. Applicant agrees with Issuer that each Credit which may be issued by Issuer, in its sole discretion, at the request of Applicant shall be governed by the following terms and conditions, unless they are expressly changed in any Credit or the Application for any Credit, and approved in writing by Issuer, and, with regard to the provisions of Sections 9, 10 and 11 herein, regardless of whether such Credit or the Application provide otherwise: 1. REIMBURSEMENTS. Applicant agrees to reimburse Issuer at Issuer’s main office, or at such place as Issuer may otherwise specify, on demand, on the same day on which demand is made, for the amount paid for each draft drawn under or purporting to be drawn under a Credit. Each reimbursement shall be payable in U.S. dollars, provided that if a Credit provides for presentation of drafts in a currency other than U.S. dollars, Applicant shall, at Issuer’s sole option, make payments to Issuer with respect to such drafts either (a) in such other currency at such place as Issuer may direct, or (b) in U.S. dollars at the rate of exchange determined by the Issuer to be the rate in effect in Akron, Ohio or in such other place where the Issuer is located, at the time of payment of the draft or, if the Issuer determines that there is no such rate of exchange, Applicant shall pay Issuer an amount which in the sole judgment of Issuer shall be sufficient to meet Issuer’s obligations hereunder. Each reimbursement shall bear interest from the date due until payment in full at the rate provided in Section 4 below. 2. FEES AND EXPENSES. Applicant agrees to pay Issuer (a) (i) Issuer’s customary commissions and fees in effect from time to time, including without limitation the fees listed on the Issuer’s letter of credit fee schedule, or (ii) Issuer’s commissions and fees that have been negotiated between Applicant and the Issuer, which may be changed from time to time by the mutual agreement of Applicant and the Issuer; and (b) on demand, all costs and expenses that Issuer incurs in connection with the Credit or this Agreement, including (i) reasonable attorneys’ fees and disbursements and other dispute resolution expenses to protect or enforce Issuer’s rights or remedies under or in connection with the Credit, this Agreement or any separate security agreement, guaranty or other agreement or undertaking supporting this Agreement or to respond to any notice of forgery, fraud, abuse or illegality in connection with this Agreement, the Credit, any presentation under the Credit, or any transaction underlying the Credit (including active defense by Issuer in any action in which an injunction is sought or obtained against presentation or honor), (ii) costs and expenses, reasonable attorneys’ fees and disbursements, in connection with the preparation, execution and delivery of this Agreement, the Credit, any other document or agreement required under this Agreement, and in connection with any requested amendment to or waiver under the Credit, this Agreement, or any other document or agreement required under this Agreement, (iii) costs and expenses in complying with any governmental exchange, currency control or other laws, rules or regulations of any country now or hereafter applicable to the purchase or sale of, or dealings in, foreign currency, (iv) any stamp taxes, recording taxes, or similar taxes or fees payable in connection with the Credit or this Agreement, and (v) any adviser, confirmer, or entity or other nominated person fees and expenses that are chargeable to Applicant or Issuer. References in this Agreement to attorneys’ fees and disbursements shall include any reasonably allocated costs of attorneys who may be Issuer’s employees. Issuer may assess fees and expenses even if incurred after the Credit expires at such rate as may be reasonably determined by Issuer. Unpaid fees, costs and expenses shall bear interest from the date due until payment in full at the rate provided in Section 4 below. 3. CHANGE IN LAWS. If any change in any law, treaty, or any central bank, government or quasi-government rule, regulation, policy, guideline or directive (whether or not having the force of law), or in any interpretation by a court or administrative or governmental authority charged with the administration thereof shall, in Issuer’s sole opinion, effectively increase Issuer’s cost or reduces its return in connection with the issuance or maintenance of the Credit, whether as a result of change in the amount of capital required or expected to be maintained by Issuer or any corporation controlling Issuer, the imposition of any insurance, reserve, special deposit or similar requirements in connection herewith, or any other change whatsoever, then upon demand by Issuer, Applicant shall immediately pay to Issuer, such additional amounts as shall, in the sole judgment of Issuer, be sufficient to compensate Issuer for such increased cost (including any tax or insurance premium), together with interest on each such amount from the date demanded until payment in full at the rate provided in Section 4 below. 4. INTEREST. Without limiting Applicant’s obligation to make all payments hereunder when due, Applicant will pay Issuer, on demand, interest on all unpaid amounts hereunder from the due date through the payment date at the per annum rate equal to the interest rate in effect from time to time for the Applicant’s line of credit facility with Issuer. 5. PAYMENTS. (a) (b) Payments due from Applicant hereunder shall be paid to Issuer before 12:00 Noon (Akron, Ohio, U.S.A. time) on the due date at Issuer’s main office, or at such place as Issuer may otherwise specify, without defense, withholding, deduction, set-off or counterclaim of any kind and shall be made free and clear of any present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding income or franchise taxes imposed directly on the Issuer by the United States and any subdivisions thereof (such non excluded taxes herein called “Taxes”). If any Taxes shall be required to be deducted from any sum payable under this Agreement, then: (i) the sum payable under this Agreement shall be increased so that after making all required deductions Issuer receives an amount equal to the sum Issuer would have received had no such deductions been required; (ii) Applicant shall be responsible for payment of the amount to the relevant taxing authority; (iii) Applicant shall indemnify Issuer on demand for any Taxes paid by Issuer and any liability (including penalties, interest and expenses) arising from its payment or in respect of such Taxes, whether or not such Taxes were correctly or legally asserted; and (iv) Applicant shall provide Issuer upon request with the original or a certified copy of the receipt evidencing each tax payment. Without prior notice or demand to Applicant, Issuer is authorized (but not obligated) to charge any deposits (whether general or special, time or demand, provisional or final) at any time held and any other indebtedness at any time owing by Issuer or the FirstMerit Affiliates to or for the credit or the account of Applicant (collectively, “Deposits”) for the amount of such draft. 6. EXTENSIONS, EXPIRATION, RENEWAL. (a) If the Credit provides for automatic extension without amendment, Applicant agrees that it will notify the Issuer in writing at least sixty (60) days prior to the last day specified in the Credit by which the Issuer must give notice of non-extension as to whether or not it wishes the Credit to be extended. Any decision to extend or not extend the Credit shall be in the Issuer’s sole discretion and judgment. (b) Applicant hereby acknowledges that in the event the Issuer notifies the beneficiary of the Credit (including any second or substitute beneficiary or transferee under a transferable letter of credit and any successor of a beneficiary by operation of law, a “Beneficiary”) that it has elected not to extend the Credit and the Beneficiary draws on the Credit after receiving the notice of non-extension, Applicant acknowledges and agrees that Applicant shall have no claim or cause of action against the Issuer or defense against payment under the Agreement for the Issuer’s discretionary decision to extend or not extend the Credit and to provide notice to the Beneficiary of its decision. (c) If a Credit’s terms and conditions provide that the Issuer give the Beneficiary a notice of pending expiration, Applicant agrees that it will notify the Issuer in writing at least sixty (60) days prior to the last day specified in the Credit by which the Issuer must give such notice of the pending expiration date. In the event Applicant fails to so notify the Issuer and the Credit is extended, Applicant’s Obligations under the Agreement and this Addendum shall continue in effect and be binding upon Applicant with regard to the Credit as so extended. 7. CONTINUING REPRESENTATIONS, WARRANTIES COVENANTS OF APPLICANT. Applicant represents, warrants and covenants on a continuing basis in order to induce Issuer to issue each Credit that: (a) if Applicant is not an individual, it is and will remain duly organized, validly existing and in good standing with the power and authority to carry on its business; (b) its execution, delivery and performance of this Agreement, all Applications and any underlying agreement or transaction, (i) are and will remain within its powers, (ii) have been and will remain duly authorized, (iii) do not and will not contravene any charter provision, by-law, resolution, contract or other undertaking binding on or affecting Applicant or any of its properties, (iv) do not and will not violate any domestic or foreign law, rule or regulation, or any order, writ, judgment, decree, award or permit of any arbitration tribunal, court or other governmental authority applicable to Applicant or any of its properties, and (v) do not and will not require any notice, filing or other action to or by any governmental authority; (c) this Agreement is and will remain the legal, valid and binding obligation of Applicant, enforceable against Applicant in accordance with its terms; (d) the financial statements received by Issuer from Applicant present fairly Applicant’s financial condition as of the dates and for the periods therein indicated, in accordance with generally accepted accounting principles, consistently applied, and there has been no material adverse change in such financial condition or Applicant’s business or prospects; (e) no other information furnished by Applicant to Issuer is or shall be materially false or misleading when furnished; (f) Applicant has no indebtedness for borrowed money, nor any obligation contingent or otherwise, directly or indirectly guaranteeing or in any manner providing for the payment of the indebtedness of another, except those disclosed on the most recent financial statements of Applicant furnished to Issuer and except for endorsements for collection or deposit in the ordinary course of business; (g) there is no pending or threatened action which is reasonably likely to materially adversely affect Applicant’s financial condition, business or prospects or which purports to affect the validity or enforceability of this Agreement, the Credit or any transaction related to the Credit; (h) Applicant has good and marketable title to all of the Collateral (as defined in Section 12 below), subject to no lien, security interest, mortgage, encumbrance or charge of any kind except as provided herein; (i) neither the granting of any collateral security for the Obligations (as defined in Section 12 below), nor the issuance of the Credit, nor the making of any payment thereunder or the use of any proceeds thereof, constitutes or will constitute, or be part of, a preferential or fraudulent transfer or conveyance to anyone (including Issuer and the Beneficiary) under any applicable law, including Sections 544, 547, 548 or 550 of the United States Bankruptcy Code; (j) Applicant’s exact legal name, Social Security number or Federal tax identification number (if applicable), state and type of organization and any organizational number (if Applicant is not an individual), chief executive office, principal place of business, and residence (if Applicant is an individual) are as specified on the signature page(s) of this Agreement, and will remain unchanged until not less than thirty (30) days prior written notice of any change is given to Issuer; (k) Applicant is not an investment company within the meaning of the Investment Company Act of 1940, as amended, or, directly or indirectly, controlled by or acting on behalf of any party which is such an investment company; (l) Beneficiary is not a prohibited person under all applicable United States laws and regulations and that the transactions relating to the Credit are not prohibited under the Foreign Assets Control Regulations of the United States; and (m) after giving effect to the issuance of the Credit, no Event of Default (as defined in Section 13 below) has occurred and is continuing or would exist with the giving of notice or lapse of time or both. 8. ADDITIONAL COVENANTS OF APPLICANT. Applicant agrees that so long as any drawing is available under any Credit, and until Issuer has been reimbursed for all drafts honored by it under any Credit, Applicant will: (a) comply with all foreign and domestic laws, rules and regulations (including, without limitation, any that regulate exports or imports, foreign assets, foreign exchange investments, margin stock, investment companies, securities offering, infringement, boycotts, or money laundering) now or hereafter applicable to the Credit, transactions related to the Credit, or Applicant’s execution, delivery and performance of this Agreement; (b) Applicant will procure promptly any necessary import, export or other licenses for the import, export or shipping of the property, and comply with all United States and foreign governmental regulations in regard to the shipment of the property or the financing thereof, and to furnish such certificates in that respect as the Issuer may at any time require; (c) deliver to Issuer, upon request from time to time, satisfactory evidence of compliance and financial statements and such other information concerning Applicant’s financial condition, results of operations, cash flows, business and prospects as Issuer may reasonably request; (d) permit Issuer to inspect Applicant’s books and records and audit any Collateral on reasonable notice; (e) cause all goods constituting Collateral to be insured against fire, theft and other usual risks and any other risks which Issuer may reasonably request, and cause Issuer to be named as loss payee as its interest may appear and additional insured under such insurance; (f) not sell, lease, transfer or otherwise dispose of all or substantially all of its assets (other than sales made in the ordinary course of business); (g) pay all lawful Taxes, assessments and governmental charges upon Applicant or against its properties prior to the date on which penalties attach, unless and to the extent only that the same shall be contested in good faith and by appropriate proceedings; (h) if Applicant is a corporation, partnership or limited liability company, not merge or consolidate with or into any other entity or liquidate, terminate or dissolve; (i) comply in a timely manner with its Obligations hereunder and under all security agreements, mortgages, deeds of trust or assignments securing the Obligations (as defined in Section 12); and (j) promptly upon obtaining knowledge of the occurrence of (i) any Event of Default, (ii) any event which with notice or lapse of time or both would constitute FIRSTMERIT BANK, N.A. CONTINUING REIMBURSEMENT AND SECURITY AGREEMENT FOR STANDBY LETTERS OF CREDIT an Event of Default or (iii) any other event or condition that would permit Issuer to demand collateral under Section 13 hereof, notify Issuer thereof in writing, specifying the nature of such event, the date on which such event occurred, and the action Applicant proposes to take with respect thereto. 9. RESPONSIBILITY OF ISSUER. (a) Delivery to Issuer or any of its Correspondents (“Correspondent” shall mean a bank or other financial institution or entity with which the Issuer usually maintains an account relationship) of any documents purporting to comply with the requirements of a Credit shall be sufficient evidence of the validity, genuineness and sufficiency thereof and of the good faith and proper performance of drawers and users of a Credit, their agents and assignees, and Issuer and its Correspondents may rely thereon without liability or responsibility with respect thereto, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged. (b) Issuer is expressly authorized and directed to honor any request for payment which is made under and in compliance with the terms and conditions of a Credit without regard to, despite notice from Applicant of, and without any duty on Issuer’s part to inquire into, the existence of any disputes or controversies between Applicant, any Beneficiary of a Credit or any other person, or the rights, duties or liabilities of any of them. (c) Any action taken or omitted by Issuer or its Correspondents or any FirstMerit Affiliate in connection with a Credit, any instructions of Applicant or any drafts, documents or merchandise relative thereto shall, if in good faith, be conclusively deemed authorized by Applicant, whether expressly so or not. (d) If Applicant shall have requested a Credit for the accommodation of a third party, any instruction, consent, approval and other action or inaction of such third party with respect to a Credit or transactions thereunder shall be deemed to be the act or omission of Applicant for all purposes hereof, and Issuer shall be entitled to rely thereon. (e) Issuer is expressly permitted to transmit the Credit (and any amendment thereto) by SWIFT message and thereby bind Applicant directly and as indemnitor to the rules applicable to SWIFT messages, including rules obligating Applicant or Issuer to pay bank charges (SWIFT referring to the cooperative formerly known as the Society For Worldwide Interbank Financial Telecommunications). (f) Issuer is not obligated to accept any Applications for Credits. 10. OBLIGATIONS ABSOLUTE. Neither Issuer nor any FirstMerit Affiliate shall be liable to Applicant or any third party for, and Applicant’s Obligations shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement, irrespective of (and Applicant hereby irrevocably waives any defense relating to or arising out of) any of the following: (i) The use which may be made of any Credit or for any act or omission of any Beneficiary thereof; (ii) Any delay in giving or failing to give any notice; (iii) Any error, neglect or default of any of its Correspondents; (iv) The validity, sufficiency or genuineness of any document assigning or purporting to assign a Credit or any benefits thereunder or any act in reliance thereon; (v) Errors in translation or in the interpretation of any of the terms and conditions of a Credit; (vi) Errors, delays, misdeliveries or losses in the transmission of notices and communications by means of SWIFT, electronic mail, telex, telecopy, telefax, courier, mail or computer generated telecommunications or documents or items forwarded in connection with a Credit or any relevant draft; (vii) If any other person shall at any time have guaranteed any of the Obligations or granted any security therefor, any change in the time, manner or place of payment of or any other term of the obligations of such other person; (viii) Any exchange, change or release of any Collateral or other collateral (including any failure of Issuer to perfect any security interest therein), or any release or waiver of any guarantee, for any of the Obligations; (ix) The existence of any claim, setoff, defense or other right that Applicant or any other person may have at any time against the Beneficiary, any assignee of proceeds of the Credit, Issuer or any other person, whether in connection with any transaction contemplated by this Agreement or the Credit or any unrelated transaction, including any claim by Issuer or Applicant against the Beneficiary for breach of warranty; (x) Any presentation under the Credit being forged, fraudulent, or abusive or any statement therein being untrue or inaccurate; (xi) Any previous Obligation, whether or not paid, arising from Issuer’s payment against any presentation which appeared on its face to be signed or presented by the proper party but was in fact signed or presented by a person posing as the proper party; (xii) Any payment under the Credit against a presentation that does not strictly comply with the terms and conditions of the Credit, provided that such presentation does substantially or reasonably comply with the terms and conditions of the Credit; or (xiii) Any other circumstance, whether or not similar to the foregoing, that might, but for the provisions of this section, constitute a legal or equitable discharge of or defense to any or all of the Obligations. (b) Without limiting the foregoing, it is expressly agreed that the absolute, unconditional and irrevocable obligation of Applicant to reimburse or pay Issuer pursuant to this Agreement will not be excused by ordinary negligence, gross negligence, wrongful conduct or willful misconduct of Issuer. However, the foregoing shall not excuse Issuer from liability to Applicant in any independent action or proceeding brought by Applicant against Issuer following such reimbursement or payment by Applicant to the extent of any unavoidable direct damages suffered by Applicant that are caused directly by Issuer’s gross negligence or willful misconduct; provided that (i) Issuer shall be deemed to have acted with due diligence and reasonable care if it acts in accordance with standard letter of credit practice of commercial banks located in Akron, Ohio; and (ii) Applicant’s aggregate remedies against Issuer for wrongfully honoring a presentation or wrongfully retaining honored documents shall in no event exceed the aggregate amount paid by Applicant to Issuer with respect to the honored presentation, plus interest. (a) 11. LIMITATION ON LIABILITY. (a) Specifically, but without limitation, Issuer shall not be responsible to Applicant for, and Issuer’s rights and remedies against Applicant shall not be impaired by (and Applicant hereby irrevocably waives any defense relating to or arising out of) any of the following: (i) Any action or inaction required or permitted under: (A) the Uniform Commercial Code, the Uniform Customs and Practices for Documentary Credits (2007 revision, Publication No. 600 of the International Chamber of Commerce (the “UCP 600”), the Supplement to the Uniform Customs and Practices for Documentary Credits for Electronic Presentation (Version 1.1) (the “eUCP”), the International Standby Practices 1998 (“ISP98”) or the United Nations Convention on Independent Guarantees and Standby Letters of Credit, as chosen in, as applicable and/or in effect where and when the Credit is issued, from time to time; (B) the law or published practice rules to which the Credit is subject; (C) any applicable standard practice of banks that regularly issue letters of credit; (D) any applicable order, ruling or regulation of any court, arbitrator or government agency; (E) a published statement or interpretation on a matter of applicable standard bank practice; (F) the laws, customs or regulations in effect in countries other than the country of the Issuer; or (G) any opinion received from Issuer’s legal counsel on a matter of law or from an expert engaged by Issuer on a matter of practice; (ii) Honor of any presentation that substantially or reasonably complies with the terms and conditions of the Credit, even if the Credit requires strict or literal compliance by the Beneficiary; (iii) Honor of a non-negotiable or informal or unmarked demand or of a demand by the Beneficiary presented electronically, even if the Credit requires that the Beneficiary’s demand be in the form of a draft and states that it is drawn under the Credit; (iv) Honor of documents signed or presented by or on behalf of, or requesting payment to, the Beneficiary’s purported successor by operation of law or Beneficiary after a change of name of the Beneficiary; (v) Honor of a presentation without regard to any non-documentary condition(s) in the Credit notwithstanding the requirements of UCP 600 Article 14 (Standard for Examination of Documents) or ISP98 Rule 4.11(a) (Non-Documentary Terms and Conditions); (vi) Honor or other recognition of a presentation or other demand that later is determined to have included invalid, forged or fraudulent documents or that was otherwise affected by the fraudulent, bad faith or illegal conduct of the Beneficiary or any other person (excluding Issuer’s employees), including payment to a person who later is determined to have forged the signature of a Beneficiary, Correspondent, nominated bank or assignee of letter of credit proceeds; (vii) Reimbursement of a nominated bank that does not give value or that misrepresents the basis on which it claims reimbursement; (viii) Dishonor of any presentation that does not strictly comply or that is fraudulent, forged or otherwise not entitled to honor; (ix) The use which may be made of the Credit or any acts or omissions of the users of the Credit; (x) Any breach of contract between the Beneficiary and Applicant or any of the parties to any underlying transaction; (xi) The failure of any instrument to bear any reference or adequate reference to the Credit, or the failure of any draft to be endorsed by the payee or accompanied by documents at negotiation, or the failure of any negotiating bank to endorse any draft or other instrument in connection with the Credit or the failure of any person to note the amount of any draft on the reverse of the Credit or to surrender or take up the Credit or to send forward documents apart from drafts as required by the terms and conditions of the Credit (each of which provisions, if contained in the Credit itself, it is agreed may be waived by Issuer); (xii) Any error, omission, interruption or delay in transmission or delivery of any message or advice in connection with the Credit whether transmitted by courier, mail, telex, SWIFT, electronic mail or any other telecommunication or otherwise and despite any cipher or code which may be employed; (xiii) The Issuer’s reliance upon any oral, telephonic, telegraphic, facsimile, electronic, written or other communication believed in good faith (i.e., honesty in fact in the conduct or transaction concerned) to have been authorized by Applicant, whether or not given or signed by an authorized person; (xiv) The Issuer’s disregard of any requirement of the Credit that presentation be made to it at a particular place or by a particular time of day (but not any requirement for presentation by a particular day) or that notice of dishonor be given in a particular manner, and Issuer may amend or specify any such requirement in the Credit; (xv) The Issuer’s assertion or waiver of the application of UCP 600 Article 36 (Force Majeure), UCP Article 33 (Hours of Presentation), ISP98 Rule 3.02 (What Constitutes a Presentation), ISP98 Rule 3.03(a) (Identification of Standby), ISP98 Rule 3.04(b), (c) or (d) (Where and to Whom Complying Presentation Made), ISP98 Rule 3.05(b) (When Timely Presentation Made), ISP98 Rule 3.06(b) (Complying Medium of Presentation) and all other USP 600 Articles, ISP98 rules, customs and practices that are primarily for the Issuer’s benefit and operational convenience; (xvi) Honor of a presentation received after the expiration of the Credit if ISP98 Rule 3.13 (Expiration Date on a Non-Business Day) and Rule 3.14 (Closure on a Business Day and Authorization of Another Reasonable Place for Presentation) are applicable; (xvii) Dishonor of a presentation received after the expiration of the Credit notwithstanding the requirements of ISP98 Rule 3.13 (Expiration Date on a Non-Business Day) and Rule 3.14 (Closure on a Business Day and Authorization of Another Reasonable Place for Presentation); (xviii) Honor of a previously dishonored presentation under the Credit, whether pursuant to court order, to settle or compromise any claim that it was wrongfully dishonored, or otherwise, and Issuer shall be entitled to reimbursement to the same extent (if any) as if it had initially honored such presentation plus reimbursement of any interest paid by it; FIRSTMERIT BANK, N.A. CONTINUING REIMBURSEMENT AND SECURITY AGREEMENT FOR STANDBY LETTERS OF CREDIT (xix) Dishonor of any drawing that is payable upon presentation of a statement advising negotiation or payment even if such statement indicates that a draft or other document is being separately delivered; The payment to any paying or negotiating bank (designated or permitted by the terms of the Credit) claiming that it rightfully honored or is entitled to reimbursement or indemnity under the laws or practice of the place where it is located; (xxi) Dishonor of any presentation (A) with Applicant’s authorization, (B) upon or during the continuance of any Event of Default (as defined below) or (C) for which Applicant is unable or unwilling to reimburse or indemnify Issuer; provided that Applicant recognizes and agrees that the circumstances described in this paragraph may not relieve Issuer or its correspondents from any obligations to Beneficiary, any confirmer or other nominated person, or any other person; (xxii) The Issuer’s assertion or waiver of the application of UCP 600 Article 17 (Original Documents and Copies), ISP98 Rule 4.15 (Original, Copy and Multiple Documents) and all other UCP 600 Articles, ISP98 Rules, customs and practice primarily applicable to Credits requiring presentation of original documents; (xxiii) Honor of any subsequent presentations and installments under any Credit that specifies shipments in installments within stated periods if the prior presentation and installment were not received within the period allowed for such prior presentation and installment, notwithstanding the requirements of UCP 600 Article 32 (Installment Drawings or Shipments); and (xxiv) Dishonor of any electronic presentation if the Issuer cannot examine the electronic presentation or any electronic documents in the format presented to the Issuer, notwithstanding the provisions of eUCP Article e6 (Examination). The happening of any one or more of the contingencies referred to in the preceding paragraph shall not affect, impair or prevent the vesting of any of Issuer’s rights or powers hereunder or Applicant’s obligation to make reimbursement. In furtherance and extension thereof and not in limitation of the specific provisions herein above set forth, Applicant agrees that any action, inaction or omission by Issuer or any of Issuer’s branches, affiliates and/or Correspondents under or in connection with the Credit or the related drafts, documents or property, if taken in good faith, shall be binding on Applicant and shall not put Issuer or any of Issuer’s branches, affiliates or Correspondents under any resulting liability to Applicant. Issuer shall not be responsible for any act, error, neglect, default, omission, insolvency or failure in the business of any of Issuer’s branches, any of the FirstMerit Affiliates or any of the Correspondents or for any refusal by Issuer or any of Issuer’s branches, affiliates or Correspondents to pay or honor drafts drawn under the Credit because of any United States or foreign laws or regulations now or hereafter in force or for any other matter beyond Issuer’s control. Applicant shall indemnify and defend Issuer and hold Issuer harmless from any cost, loss or expense which may be incurred by Issuer if, at Applicant’s request, the law of a foreign country governs the Credit. Applicant will notify Issuer in writing of any objection Applicant may have to Issuer’s issuance or amendment of the Credit, Issuer’s honor or dishonor of any presentation under the Credit, or any other action or inaction taken or proposed to be taken by Issuer under or in connection with this Agreement or the Credit. Applicant’s notice of objection must be delivered to Issuer by expeditious means within three Business Days after Applicant receives notice of the action or inaction it objects to. Applicant’s failure to give timely and specific notice of objection shall automatically waive Applicant’s objection, authorize or ratify Issuer’s action or inaction, and preclude Applicant from raising the objection as a defense or claim against Issuer. For example, Applicant’s failure to object to Issuer’s honor of a presentation within three Business Days after Applicant receives originals or copies of the presented documents shall automatically waive Applicant’s objection, authorize or ratify Issuer’s honor, and preclude Applicant from raising the objection as a defense or claim against Issuer, even if Issuer has indicated its satisfaction with the presentation or its awareness of any discrepancy or other defect. NEITHER ISSUER, ITS FIRSTMERIT AFFILIATES NOR ANY OF ITS CORRESPONDENTS SHALL BE LIABLE IN CONTRACT, TORT, OR OTHERWISE FOR ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES OR FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNT OF THE CREDIT WITH RESPECT TO WHICH A CLAIM IS MADE. (xx) (b) (c) (d) (E) 12. SECURITY INTEREST. (a) As security for the prompt and unconditional payment of all obligations and liabilities of Applicant to Issuer under this Agreement or in respect of any Credit (whether absolute or contingent, present or future, joint, several or independent, collectively, the “Obligations”), Applicant hereby grants to Issuer a first priority lien on and security interest in all of Applicant’s present and future right, title and internet in, to and under all of the following property: (i) all property (including goods, documents of title, instruments, securities and other investment property, accounts, chattel paper, letter-of-credit rights, general intangibles and insurance policies, in each case whether now existing or hereafter arising) received or receivable by Issuer or its Correspondents under or in connection with the Credit; (ii) all other property (including goods, documents of title, instruments, securities and other investment property, accounts, chattel paper, letter-of-credit rights, general intangibles and insurance policies, in each case whether now existing or hereafter arising) now or hereafter in Issuer's actual or constructive possession or control; (iii) all property (including goods, documents of title, instruments, securities and other investment property, accounts, chattel paper, letter-of-credit rights, general intangibles and insurance policies, in each case whether now existing or hereafter arising) received from or receivable by Applicant for which payment is supported by the Credit; (iv) All Deposits and credits of Applicant with Issuer (including, without limitation, any cash deposit made pursuant to Section 13 hereof), including items in safekeeping with Issuer’s agent or bailee, and any claims by Applicant against Issuer at any time existing; (v) All present and future claims of Applicant against the Beneficiary arising under or in connection with the Credit or any underlying transaction (including breach of contract and breach of warranty claims); (vi) Any additional property in which Applicant has conveyed a security interest to Issuer to secure the Obligations, including without limitation the following property: ____________________________________________ ______________________________________________________________________________________________________________________________________________________ __________________; (vii) Any additional property in which Applicant agrees to convey upon demand of Issuer to secure the Obligations; and (viii) all supporting obligations and all proceeds and products of any and all of the foregoing, including accessions thereto, substitutions and replacements thereof and interest, dividends and other distributions with respect thereto (all of the foregoing, collectively, the “Collateral”). (b) Applicant agrees to sign and/or deliver to Issuer, upon Issuer’s request, such security agreements, deposit account control agreements, mortgages, pledges, deeds of trust, assignments, documents, instruments or financing statements as Issuer may require to perfect, register or record a security interest in any item of Collateral, to foreclose upon any such item, or to realized upon Issuer’s rights and remedies as assignee/subrogee of the rights and remedies of Applicant against the Beneficiary and of the Beneficiary against Applicant in both the Credit and the underlying transaction and to reimburse Issuer for all costs relating thereto. (c) Issuer is authorized to file financing statements and continuations thereof, with or without notice to Applicant, to perfect or evidence the security interests granted under this Agreement. (d) Issuer may, at its option, require Applicant to provide additional security for the Obligations, whether caused by a decline in the value of the existing Collateral or any other reason. The Obligations of Applicant are secured by all Collateral provided for under this Agreement as well as any additional security furnished to Issuer now or hereafter pursuant to any and all security agreements, mortgages and assignments executed by Applicant in favor of Issuer. (e) Issuer (i) is authorized, at its option at any time and with or without notice, to transfer to or register in the name of Issuer or any of its nominees all or part of the Collateral, (ii) shall be deemed to have exercised reasonable care with respect to the Collateral if the Collateral is accorded treatment comparable to that which Issuer gives to its own property of a similar type and (iii) shall not be obligated to enforce or preserve its rights or Applicant’s rights against any person or otherwise with respect to any Collateral. (f) This lien on and security interest in the Collateral (including any Collateral requested pursuant to Section 13 hereof) shall remain in effect until Issuer’s liability under the Credit is extinguished, all of Applicant’s Obligations are paid and this Agreement has been terminated by the Issuer. (g) For purposes of this Section 12, the term “Issuer” shall include Issuer and any FirstMerit Affiliate. 13. CASH COLLATERAL OR RELEASE OF LETTER OF CREDIT. Applicant agrees that upon and during the continuance of any (a) Event of Default, (b) material adverse change in the business or financial condition of Applicant, (c) any actual or threatened material change in the direct or indirect ownership or control of Applicant, (d) Applicant injunction action, Beneficiary wrongful dishonor action, or other event that threatens to extend or increase the Issuer’s contingent liability beyond the time, amount, or other limit provided in the Credit or this Agreement, or (e) other event or condition that causes the Issuer in good faith to deem itself insecure, Applicant will, on demand from time to time, (i) assign and deliver to Issuer, as security for the Obligations, additional Collateral of a type and value reasonably satisfactory to Issuer or make such cash deposit with Issuer as Issuer may reasonably require or (ii) procure the Beneficiary’s release of the Credit by procuring another bank’s substitute letter of credit or by other means. 14. POWER OF ATTORNEY. Applicant irrevocably appoints Issuer its attorney in fact to execute, file, register or record in the name of Applicant, any document or instrument of any kind or description including, without limitation thereto, assignments and endorsements which come into the possession of Issuer under a Credit or upon instructions of Applicant, and to perform such acts as Applicant may be required to perform hereunder, upon failure of Applicant to so act. 15. EVENTS OF DEFAULT. Each of the following shall be an “Event of Default” under this Agreement: (a) Applicant’s failure to pay any Obligation when due; (b) Applicant’s failure to perform or observe any term or covenant of this Agreement (not otherwise an Event of Default) for more than twenty (20) days after Issuer notifies Applicant of the failure; (c) Applicant’s breach in any material respect of any representation or warranty made in this Agreement or any document delivered by Applicant under or in connection with this Agreement; (d) Applicant’s failure to pay when due any indebtedness (other than the Obligations) of Applicant to Issuer or to any other party; (e) Applicant’s default under any other agreement or obligation with or in favor of Issuer (after expiration of any applicable notice or cure period); (f) Applicant’s repudiation of this Agreement or any separate security agreement or other agreement or undertaking supporting this Agreement; (g) Applicant’s dissolution or termination; (h) Applicant’s (i) merger or consolidation with any third party unless Applicant is the survivor, (ii) sale of a material part of its assets or business outside the ordinary course of business or (iii) agreement to do any of the foregoing; (i) institution by Applicant of any proceeding under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or seeking the appointment of a custodian, receiver, trustee or other similar official for Applicant or for any substantial part of its property; (j) institution against Applicant of any proceeding under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or seeking the appointment of a custodian, receiver, trustee or other similar official for Applicant or for any substantial part of its property, where any such proceeding or case shall be unstayed and in effect for more than sixty (60) days, or an order for relief shall be entered therein, (k) Applicant’s making an assignment for the benefit of creditors; (l) Applicant’s insolvency or inability to pay its debts as they become due; (m) any actual or threatened seizure, vesting or intervention by or under authority of a government by which Applicant’s management is displaced or its authority or control of its business is curtailed; (n) entry of a final unappealable judgment against Applicant which remains unstayed and unsatisfied for more than thirty (30) days; (o) attachment or restraint of any Collateral or the issuance of any order of any court or other legal process against the same; (p) any material adverse change in Applicant’s financial condition, business or prospects; (q) if Applicant is an individual, Applicant’s death or incompetency; (r) issuance of a temporary restraining order, injunction (preliminary or permanent), or any similar order in connection with the Credit or any presentation (present or future) or payment thereunder which may apply to Issuer; (s) the occurrence of any of the events provided in this Section 15 with respect to any person other than Applicant that has heretofore or hereafter guaranteed or provided any collateral security for any Obligations; or (t) any other event occurs which causes Issuer, in good faith, to deem itself insecure. 16. REMEDIES. If any Event of Default shall have occurred and be continuing, Issuer in its sole discretion may take any one or more of the following actions: (a) make the amount of the Obligations then outstanding or accrued become due and payable immediately, without demand upon or notice to Applicant (provided that if the Event of Default is described in Section 15(i), (j), (k) or (l) hereof, then the amount of the Obligations FIRSTMERIT BANK, N.A. CONTINUING REIMBURSEMENT AND SECURITY AGREEMENT FOR STANDBY LETTERS OF CREDIT then outstanding or accrued shall become due and payable immediately and automatically), with interest at the rate provided in Section 4 above; (b) exercise in respect of the Collateral any and all of the rights and remedies of a secured party on default under the UCC; (c) notify the Beneficiary or any other person that an Event of Default has occurred and is continuing, whether or not such notice might directly or indirectly precipitate or require any drawing or payment under the Credit; and (d) exercise any and all other rights and remedies available at law, in equity, or otherwise to secure, collect, enforce or satisfy the Obligations. At Issuer’s request, Applicant will assemble the Collateral and make it available to Issuer at a place to be designated by Issuer which is reasonably convenient to Issuer and Applicant. In addition, Issuer may, without notice except as specified below, (i) obtain, cancel and adjust and settle losses under any insurance on any Collateral and endorse and negotiate any drafts, documents or instruments constituting Collateral, in each case in its own name or in the name and as agent of and attorney-in-fact for Applicant, or (ii) sell any or all of the Collateral at public or private sale, at any of Issuer’s offices or elsewhere, for cash, on credit or for future delivery (but without credit risk to Issuer), and at a price or prices and upon other terms and conditions as Issuer may deem commercially reasonable. To the extent notice of sale of the Collateral shall be required by law, Applicant agrees that written notice at least five (5) days prior to the date of public or private sale constitutes reasonable notification. In connection with any sale or other disposition of any Collateral, Issuer may disclaim warranties of title, possession, quiet enjoyment or the like without affecting the commercial reasonableness of such sale or other disposition. At any such sale, Issuer may be the purchaser of the property sold. Applicant shall pay to Issuer on demand all costs and expenses (including reasonable attorneys’ fees and disbursements) in connection with the custody, preservation or sale of, or collection from, or other realization upon, the Collateral or the establishment, perfection, preservation or enforcement of Issuer’s rights in the Collateral. Issuer may hold the proceeds of the Collateral as additional collateral under this Agreement or then or at any time thereafter apply the proceeds to the payment of the costs and expenses referred to above and the other Obligations, whether or not then due, at such times and in such order as Issuer may determine. Issuer shall pay any surplus to Applicant or to whomever may be lawfully entitled to receive the surplus, and Applicant shall be liable for any deficiency. 17. SET-OFF. To the fullest extent permitted by law, if any Event of Default shall occur and be continuing, Issuer may set off and apply any and all Deposits against any and all of the Obligations, without notice and irrespective of whether such Deposits or Obligations may be unmatured or contingent or payable at different places or in different currencies. 18. INDEMNIFICATION. Applicant will indemnify and hold harmless Issuer, the FirstMerit Affiliates and their respective officers, directors, affiliates, employees, attorneys and agents (each, an “Indemnified Party”) from and against any and all claims, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees and disbursements and other dispute resolution expenses (including fees and expenses in preparation for a defense of any investigation, litigation or proceeding) and costs of collection) that arise out of or in connection with: (a) the Credit or any pre-advice of its issuance or any transaction(s) underlying the Credit, (b) any payment or action taken or omitted to be taken in connection with the Credit or this Agreement; (c) any action or proceeding to (i) restrain any presentation, (ii) compel or restrain any payment or the taking of any other action under the Credit, (iii) obtain damages for wrongful dishonor or honor of the Credit or for breach of any other duty arising out of or related to the Credit, (iv) compel or restrain the taking of any action under this Agreement or (v) obtain similar relief (including by way of interpleader, declaratory judgment, attachment or otherwise), regardless of who the prevailing party is in any such action or proceeding; (d) (i) an adviser or a confirmer or other nominated person seeking to be reimbursed, indemnified, held harmless or compensated, (ii) any Beneficiary requested to issue its own undertaking seeking to be reimbursed, indemnified, held harmless or compensated or (iii) any third party seeking to enforce the rights of an applicant, Beneficiary, nominated person, transferee, assignee of letter of credit proceeds, or holder of an instrument or document; (e) the enforcement of this Agreement or any rights or remedies under or in connection with this Agreement or the Credit; (f) the imposition of law or practice other than that chosen in the Credit or applicable at the place of issuance; (g) the fraud, forgery or illegal action of others; or (h) any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or governmental authority (including with respect to any document or property received under this Agreement or the Credit) or any other cause beyond Issuer’s control; except to the extent such liability, loss, damage, cost or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted directly from such Indemnified Party’s gross negligence or willful misconduct. Applicant will pay on demand from time to time all amounts owing under this Section 18. If and to the extent that the obligations of Applicant under this Section 18 are unenforceable for any reason, Applicant agrees to make the maximum contribution to the payment of such obligations which is permissible under applicable law. Further, if any award, judgment or order is given or made for the payment of any amount due under this Agreement and such award, judgment or order is expressed in a currency other than the currency required under this Agreement, Applicant shall indemnify Issuer against and hold Issuer harmless from all loss and damage incurred by Issuer as a result of any variation in rates of exchange between the date of such award, judgment or order and the date of payment (or, in the case of partial payments, the date of each partial payment thereof) in the required currency. 19. SURETYSHIP WAIVERS. In the event this Agreement is signed by more than one party, each of the undersigned waives (a) to the extent permitted by law, all rights and benefits under any laws or statutes regarding sureties, as may be amended; (b) any right to receive notice of the following matters before the Issuer enforces any of its rights: (i) the Issuer’s acceptance of this Agreement; (ii) any Credit that the Issuer extends to Applicant; (iii) Applicant’s default; (iv) any demand, diligence, presentment, dishonor and protest; (v) any action that the Issuer takes regarding Applicant, Beneficiary, anyone else, any Collateral, or any of the Obligations, that it might be entitled to by law or under any other agreement; (c) any right to require the Issuer to proceed against Applicant, any other obligor or guarantor of the Obligations, or any Collateral, or pursue any remedy in the Issuer’s power to pursue; (d) any defense based on any claim that any endorser or other parties’ obligations exceed or are more burdensome than those of Applicant; (e) the benefit of any statute of limitations affecting liability of any endorser or other party liable hereunder or the enforcement hereof; (f) any defense arising by reason of any disability or other defense of Applicant or by reason of the cessation from any cause whatsoever (other than payment in full) of the obligation of Applicant for the Obligations; (g) any defense based on or arising out of any defense that Applicant may have to the payment or performance of the Obligations or any portion thereof; (h) all rights, remedies, defenses and claims and/or rights of counterclaim, recoupment, offset or setoff, including, but not limited to, all offsets, setoffs, rights, remedies or defenses that may be afforded the endorser and any other party liable on this Agreement as any of such statutes may be amended from time to time; and (i) any defenses given to such endorser by any failure, neglect or omission by the Issuer to perfect in any manner the collection of the Obligations or the security given therefor, including the failure or omission to seek a deficiency judgment against Applicant. Any party liable under this Agreement consents to any extension or postponement of time of its payment without limit as to the number or period, to any substitution, exchange or release of all or any part of the Collateral, to the addition of any other party, and to the release or discharge of, or suspension of any rights and remedies against, any person who may be liable for the payment of this Agreement. The Issuer may waive or delay enforcing any of its rights without losing them. Any waiver affects only the specific terms and time period stated in the waiver. No modification or waiver of any provision of this Agreement is effective unless it is in writing and signed by the party against whom it is being enforced. 20. CORRESPONDENTS. By signing this Agreement, Correspondent may request that Issuer issue a Credit on its behalf. If Issuer complies with such request by opening a Credit, Correspondent shall be deemed to be a co-Applicant and shall be subject to the terms of this Agreement and Correspondent and Applicant shall be jointly and severally liable to Issuer for all of Applicant’s Obligations hereunder in accordance with the terms and conditions hereof. Without limitation on the foregoing, Correspondent authorizes Issuer to debit any accounts Correspondent may have with Issuer or any FirstMerit Affiliate, for any and all amounts for which Issuer is or may become liable under this Agreement or a Credit, together with Issuer’s commissions, charges and expenses hereunder. Applicant hereby agrees that in the event Correspondent satisfies all obligations to Issuer under this Agreement, Correspondent shall have rights, remedies, security interests and other liens as are provided herein to Issuer to the same effect. 21. NOTICES AND COMMUNICATIONS. Any notice or demand to either party given by the other party shall be deemed to have been delivered when delivered to courier, deposited in the mail or transmitted by a telegraph, telex or facsimile to the last address of such party, which has previously been furnished to such other party. Applicant acknowledges and agrees that, at the discretion of Issuer, Issuer may accept and/or transmit notices and communications under the Application and this Agreement (including issuance of a Credit) by means of SWIFT, electronic mail, telex, telecopy, telefax, courier, mail or computer generated telecommunications. 22. APPLICATIONS. Applicant is authorized to present Applications for individual credits under this Agreement in writing or by means of SWIFT, electronic mail, through Issuer’s web (internet)-based application service (Automated Letter of Credit Issuance and Payment Services), telex, telecopy, telefax, courier, mail or computer generated telecommunications. If the Application is transmitted electronically, the terms and conditions of such Application shall be presented to the Issuer in a format acceptable to the Issuer, and Applicant shall follow such authentication procedures as reasonably established by Issuer, which may include the use of an encoded digital signature to be agreed upon in advance with Issuer. Any Application presented to the Issuer by electronic means (which may or may not include a digital signature) will have the same legal effect as an Application in writing and will be binding upon and enforceable against Applicant. 23. ELECTRONIC TRANSMISSIONS. In the absence of written instructions to the contrary, Issuer is authorized (but shall not be required) to accept and process the Application and any amendments, transfers, assignments of proceeds and all documents relating to the Credit or the Application which are sent to Issuer by electronic transmission in a format acceptable to Issuer (including but not limited to Applications through Issuer’s web (internet)-based application service (Automated Letter of Credit Issuance and Payment Services)). Issuer may, but shall not be obligated to, require authentication of such electronic transmission or that Issuer receives original documents prior to acting on such electronic transmission. 24. TRANSFERS. If, at Applicant’s special request, the Credit is issued in transferable form, it is understood and agreed that Issuer is under no duty to determine the proper identity of anyone appearing in the transfer request or in the draft or documents as transferee, nor shall Issuer be charged with responsibility of any nature or character for the validity or correctness of any transfer or successive transfers; and payment by Issuer to any purported transferee(s) as determined by Issuer is hereby authorized and approved. Applicant further agrees to hold Issuer harmless and indemnified against any liability or claim in connection with or arising out of the foregoing. 25. WAIVER OF DISCREPANCIES AND BINDING TERMS ON ISSUER’S DECISIONS. Applicant agrees that Issuer’s decision, in accordance with standard banking practice, as to whether the documents presented appear on their face to comply with the terms and conditions of the Credit shall be conclusive and binding on Applicant. If Issuer determines that any draft or document does not appear to comply with the terms and conditions of the Credit, Issuer using its sole judgment and discretion may approach Applicant for a waiver of the discrepancy(ies), but shall not be obligated to do so. If Issuer determines that a presentation appears to comply with the terms and conditions of the Credit, Issuer is authorized to pay the amount thereof regardless of receipt of notice from Applicant or another person that any required document is forged or materially fraudulent. 26. MULTIPLE APPLICANTS. If this Agreement is signed by two or more persons, (a) each shall be deemed an “Applicant” hereunder and be jointly and severally liable for all the Obligations, (b) the release, waiver, instruction or consent of any Applicant shall be sufficient to bind each Applicant with respect to this Agreement, the Credit or any claims arising under or in connection with this Agreement or the Credit (including instructions as to the disposition of documents and waivers of any discrepancies), (c) any Event of Default, regardless of fault, shall be deemed an Event of Default as to all Applicants, (d) delivery by Issuer of any document to any Applicant named below shall be deemed delivery to each Applicant and shall satisfy any obligation of Issuer to deliver such document to any other Applicant, and (v) each of them agrees that, without notice to or further consent by the other(s), the liability of any Applicant hereunder may from time to time, in whole or part, be extended, modified, released or reduced by Issuer without affecting or releasing in any FIRSTMERIT BANK, N.A. CONTINUING REIMBURSEMENT AND SECURITY AGREEMENT FOR STANDBY LETTERS OF CREDIT way the liability of any other Applicant. Each Applicant signing this Agreement agrees that its obligations hereunder are primary, waives all discharge defenses available to a secondary obligor, and forgoes negotiation of a separate guaranty and security agreement providing for secondary liability to Issuer. 27. APPLICANT STATUS. Issuer may treat each person that signs this Agreement, each officer of Applicant (if Applicant has officers), each manager of Applicant (if Applicant has managers) and each other person authorized to act generally for Applicant or specifically in the matter as actually authorized to act singly for Applicant in amending this Agreement, in authorizing Issuer to amend the Credit, waive any discrepancy, pay or otherwise act under the Credit, in receiving any notice (including service of process) in connection with this Agreement, and in agreeing to indemnify Issuer for any action or inaction taken or proposed. Any change in the identity of persons authorized to act for Applicant shall be ineffective until notified in writing to Issuer. Issuer is not obligated to recognize the authenticity of any request purportedly made by Applicant to issue, amend, honor or otherwise act on the Credit that is not evidenced to Issuer’s satisfaction by a writing originally signed by Applicant or by a message authenticated to Issuer’s satisfaction. 28. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon Applicant and its successors and permitted assigns once it is signed by Applicant, and shall inure to the benefit of and be enforceable by Issuer and its successors and assigns, whether or not Issuer issues any letter of credit for Applicant. Applicant shall not transfer or otherwise assign any of its rights or obligations under this Agreement without Issuer’s written consent. Issuer may transfer or otherwise assign or grant participations in its rights and obligations under this Agreement or the Credit, in whole or in part. Applicant acknowledges that information pertaining to Applicant as it relates to this Agreement or the Credit may be disclosed to actual or prospective participants, transferees or assignees. This Agreement shall not be construed to confer any right or benefit upon any person other than Issuer, the Indemnified Parties and Applicant and their respective successors and permitted assigns, and no such person shall be deemed a third-party beneficiary hereof, except that Applicant’s obligations under Section 3 hereof may be enforced directly against Applicant by a participant. 29. MODIFICATION; NO WAIVER. None of the terms of this Agreement may be waived, terminated or amended orally, by course of dealing, or otherwise, except in a writing signed by the party against whose interest the term is waived, terminated or amended, except that it may be amended by any Issuer in the event of a change of such Issuer’s name, credit number, place of notice, presentation or drawing or other similar change at such Issuer’s reasonable discretion. Applicant agrees that in the event of any extension of the maturity or time for presentation of drafts, acceptances or documents, or any other modification of the terms of a Credit (including without limitation, by mutual agreement between Applicant and Issuer; or in accordance with the Credit; or in accordance with rules, law, or practice governing the Credit), or in the event of any increase in the amount of a Credit, this Agreement shall be binding upon Applicant with regard to a Credit so increased, extended or otherwise modified, to drafts, documents and property covered thereby, and to any action taken by Issuer or any of its Correspondents in accordance with such extension, increase or other modification. Forbearance, failure or delay by Issuer in the exercise of a right or remedy shall not constitute a waiver, nor shall any exercise or partial exercise of any right or remedy preclude any further exercise of that or any other right or remedy. Any waiver or consent by Issuer shall be effective only in the specific instance and for the specific purpose for which it is given. 30. ENTIRE AGREEMENT; REMEDIES CUMULATIVE. This Agreement, including any and all Appendices and Addenda hereto (if any) and all Applications hereunder, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or simultaneous agreements, written or oral, with respect to the subject matter hereof. All rights and remedies of Issuer and all obligations of Applicant under or connection with this Agreement and any other documents delivered in connection with this Agreement are cumulative and in addition to those provided or available at equity or under any applicable law, including the practices specified in Section 32 hereof and the law relative to estoppel, mistake, unjust enrichment, subrogation, reimbursement, restitution, warranties on presentation, and mitigation of loss or damage. Issuer may pursue its rights and remedies separately, successively in any order, or concurrently. 31. CONTINUING AGREEMENT; TERMINATION. This is a continuing agreement and shall remain in full effect until Issuer’s receipt of written notice of termination from Applicant specifically referring to this Agreement. Termination shall not release Applicant from any liability for Obligations existing on the date on which Issuer receives the notice or resulting from or incidental to a Credit issued on or before such date or issued pursuant to any Issuer commitment existing on such date. Provisions of this Agreement relating to Taxes, indemnities, payment of costs and expenses, jurisdiction, confession of judgment and waiver of trial by jury shall survive any termination of this Agreement, expiration of the Credit, and payment of all the Obligations. 32. GOVERNING LAW; PRACTICE; JURISDICTION (a) This Agreement and the rights and obligations of Applicant and Issuer hereunder shall be governed by and subject to the laws of the State of Ohio and applicable federal laws of the United States of America, without regard to principles of conflict of laws. (b) Unless Applicant specifies otherwise in its Application for the Credit, Applicant agrees that Issuer may issue the Credit subject to either the UCP 600 (including the eUCP) or the ISP98, or at Issuer’s option, such later supplement to or revision to either thereof as is in effect at the time of issuance of the Credit. Issuer’s privileges, rights and remedies under the UCP 600 (including the eUCP) or the ISP98 or such later supplement or revision shall be in addition to, and not in limitation of, its privileges, rights and remedies expressly provided for herein. The UCP 600 (including the eUCP) or the ISP98 or any such later supplement or revision shall serve, in the absence of proof to the contrary, as evidence of standard practice with respect to the subject matter thereof. Applicant acknowledges its responsibility for knowing applicable letter of credit law and practice. (c) To the extent permitted by applicable law, (i) this Agreement shall prevail in case of conflict with the UCP 600 (including the eUCP), the ISP98 or UCC; (ii) the UCP 600 (including the eUCP) shall prevail in case of conflict between the UCP 600 (including the eUCP) and UCC; and (iii) the ISP98 shall prevail in case of conflict between the ISP98 and UCC. (d) Applicant irrevocably consents and submits to the non-exclusive jurisdiction of any state or federal court sitting in Summit County, in the State of Ohio, U.S.A. for itself and in respect of any of its property. Applicant agrees not to bring any action or proceeding against Issuer in any court or other forum not described in the first sentence of this subsection (d). Applicant irrevocably waives any objection to venue or any claim of forum non conveniens with respect to any action or proceeding in any court described in this subsection (d). 33. SEVERABILITY. The invalidity or unenforceability of any provision or portion of this Agreement or any instrument, document or agreement executed or made pursuant to or by virtue of this Agreement, shall not affect the validity or enforceability of any other provision or portion. 34. COUNTERPARTS; DELIVERY. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. The execution of a counterpart of the signature page to this Agreement shall be deemed the execution of a counterpart of this Agreement. The delivery of this Agreement may be made by facsimile or portable document format (pdf), and such signatures shall be treated as original signatures for all applicable purposes. 35. INTERPRETATION. In this Agreement: (a) headings are included only for convenience and are not interpretative; (b) the term “including” means “including without limitation”; (c) the term “person” includes any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, governmental authority or other entity; (d) the term “Credit” includes any amendment or replacement authorized by its terms or by consent of Applicant and, at Issuer’s option, any pre-advice thereof; (e) the term “FirstMerit Affiliate” includes any direct or indirect subsidiary and/or affiliate of FirstMerit Bank, N.A.; (f) any reference in this Agreement to drafts shall also mean and include deferred payment undertakings; (g) references to a specific article or rule of the UCP 600, eUCP or ISP98 include any equivalent article or rule in any successor revision of the UCP 600, eUCP, ISP98 or the equivalent provision in any other practice rules; and (h) references to actions Issuer or its Correspondents “may” take or omit to take mean “may in its sole discretion” (and use of such discretion in any one or more instances shall not establish a course of conduct on which Applicant may rely or impair the ability to exercise such discretion differently in any other similar or dissimilar instances). 36. JURY TRIAL WAIVER. EACH OF APPLICANT AND THE ISSUER (BY ITS ACCEPTANCE OF THIS AGREEMENT OR ISSUANCE OF THE CREDIT) WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM, COUNTERCLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE CREDIT, OR ANY DEALINGS WITH ONE ANOTHER RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. 37. CONFESSION OF JUDGMENT. THE APPLICANT HEREBY AUTHORIZES ANY ATTORNEY-AT-LAW TO APPEAR IN ANY COURT OF RECORD IN ANY COUNTY IN THE STATE OF OHIO OR ELSEWHERE WHERE THE APPLICANT HAS A PLACE OF BUSINESS, SIGNED THIS AGREEMENT OR CAN BE FOUND, AFTER THE ISSUER DECLARES A DEFAULT AND ACCELERATE THE BALANCES DUE UNDER THE AGREEMENT, TO WAIVE THE ISSUANCE OF SERVICE OF PROCESS AND CONFESS JUDGMENT AGAINST THE APPLICANT IN FAVOR OF THE ISSUER FOR THE AMOUNTS THEN APPEARING DUE, TOGETHER WITH THE COSTS OF SUIT, AND THEREUPON TO RELEASE ALL ERRORS AND WAIVES ALL RIGHT OF APPEAL AND STAYS OF EXECUTION. THE APPLICANT AGREES AND CONSENTS THAT THE ATTORNEY CONFESSING JUDGMENT ON BEHALF OF THE APPLICANT HEREUNDER MAY ALSO BE COUNSEL TO THE ISSUER OR ANY OF ITS AFFILIATES, WAIVES ANY CONFLICT OF INTEREST WHICH MIGHT OTHERWISE ARISE, AND CONSENTS TO THE ISSUER PAYING SUCH CONFESSING ATTORNEY A LEGAL FEE OR ALLOWING SUCH ATTORNEY’S FEES TO BE PAID FROM ANY PROCEEDS OF COLLECTION OF AGREEMENT OR COLLATERAL SECURITY THEREFOR. [Signature Page Follows] FIRSTMERIT BANK, N.A. CONTINUING REIMBURSEMENT AND SECURITY AGREEMENT FOR STANDBY LETTERS OF CREDIT WARNING -- BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT OR ANY OTHER CAUSE. IN WITNESS WHEREOF, the parties have executed this Continuing Reimbursement and Security Agreement for Standby Letters of Credit as of _ APPLICANT: CO-APPLICANT/CORRESPONDENT BANK (if any): Name of Applicant Authorized Signature _______________________________________, 20 Name of Co-Applicant/Correspondent Bank Title Authorized Signature Organization Type Organization Type Organizational Number Organizational Number State of Organization State of Organization Social Security Number or Federal Tax ID Social Security Number or Federal Tax ID Address for Notices Address for Notices Attention: Attention: Phone No. Phone No. Fax No. Fax Title o. ACCEPTED AND AGREED TO: FIRSTMERIT BANK, N.A. Authorized Signature Title Printed Name Date Phone No. __ FIRSTMERIT BANK, N.A. CONTINUING REIMBURSEMENT AND SECURITY AGREEMENT FOR STANDBY LETTERS OF CREDIT Appendix A to the Continuing Reimbursement Agreement for Standby Letters of Credit (To be completed by Account Party/Applicant) A) The following individuals are authorized on behalf of Applicant listed below to (i) execute and sign Applications and amendments to the Credits, (ii) to receive communications from the Issuer about matters related to the Applications or the Credits, including discrepancies in the presentations under the Credits, (iii) to waive discrepancies in presentations under the Credits, and (iv) to provide instructions to the Issuer on behalf of Applicant on any matters relating to the Applications or the Credits: Applicant Name Printed Name Title Signature Date Printed Name Title Signature Date Printed Name Title Signature Date Signature Date B) Signature Verification (Banker to complete this portion): The above individual(s) is/are authorized to execute and sign applications, amendments and instructions on behalf of Applicant. Printed Name Title FIRSTMERIT BANK, N.A. CONTINUING REIMBURSEMENT AND SECURITY AGREEMENT FOR STANDBY LETTERS OF CREDIT Appendix B to the Continuing Reimbursement Agreement for Standby Letters of Credit Form of Application for Standby Letters of Credit
