Fill - Free fillable Continuing Agreement for Irrevocable Commercial Letters of Credit (Capital One) PDF form

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Continuing Agreement for Irrevocable Commercial Letters of Credit

DEFINED TERMS

The "Applicant" means any party and all parties signing the Application, whether as applicant or

account party.

"Application" means any and all applications submitted to Bank by Applicant for issuance of Credit as

such applications may be amended or modified from time to time with the written or oral consent of

Applicant.

"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.

"Instrument" means any draft, receipt, acceptance, teletransmission (including, but not limited to,

telex) or cable or other written demand for payment.

“Obligations” means all obligations of Applicant to Bank of every kind, present or future, due or to

become due, absolute or contingent, arising hereunder or otherwise.

"Property" means goods and merchandise and any and all documents relative thereto, securities,

other 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 Credit

(2007 Revision), International Chamber of Commerce Publication No. 600, or any subsequent revision

thereof adhered to by Bank on the date the Credit is issued.

AGREEMENT FOR IRREVOCABLE COMMERCIAL LETTERS OF CREDIT

In consideration of the issuance by Bank of the Credit substantially as requested in the Application,

Applicant hereby agrees with Bank as follows with respect to the Credit:

1. Applicant will pay Bank on demand, at such place as is designated by Bank, in immediately

available funds, the amount required to pay each Instrument. If such Instrument is a sight draft,

such demand may be made before or after payment by Bank, and such payment shall be made

with interest from the date of Bank's payment of such Instrument to the date of reimbursement. If

the Instrument is an acceptance, the payment shall be made by Applicant upon demand, but not

later than one business day prior to maturity, or in the event the acceptance is not payable at

Bank, not later than a date such that the place of payment will be reached in the ordinary course

of the mails not later than one business day prior to maturity. If the Instrument is in a foreign

currency, such payment shall be in United States currency at the higher of Bank's or 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 Bank's settlement of its obligation or the date of

demand, as Bank may require. If, for any cause, on the date of payment or settlement of its

obligation or the date of demand, as the case may be, there is no selling rate or other rate of

exchange generally current in New York for effecting such transfers, Applicant will pay Bank on

demand an amount in United States currency equivalent to Bank's actual cost of settlement of its

obligation however or whenever Bank shall make such settlement with interest from the date of

settlement to date of payment. As to documents presented for payment at sight pursuant to the

Credit without drafts, Applicants obligations under those documents shall be the same as though

sight drafts had been presented or had accompanied the documents. Applicant will comply with

all governmental exchange regulations now or hereafter applicable to the Credit or Instrument or

payments related thereto and will pay Bank, on demand, in United States currency, such amount

as the Ban may be or may have been required to expend on account of such regulations. Bank

may debit Applicant's demand deposit account referred to in the Application, and any other

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account or accounts maintained by Applicant with any office of Bank, or any subsidiary or affiliate

thereof (now or in the future) and apply the proceeds to the payment of any and all amounts owed

by Applicant to Bank hereunder. Applicant shall during the life of all Credit maintain the account

referred to in the Application.

a) Applicant will pay Bank, on demand, Bank's commission and all charges, costs and expenses

paid or incurred by Bank and Bank's correspondents in connection with the Credit, and interest

thereon, including, but not limited to, fees and charges of counsel or allocated by 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 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 time published in The Wall Street Journal as the

prime rate, plus 4% per annum.

b) In addition to commissions, fees and amounts otherwise payable with respect to the issuance

of the Credit, Applicant shall pay to Bank on demand such amounts as 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 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 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 by paragraph 5 hereof all amounts payable by Applicant

under paragraph 2 (b) hereof shall be determined as if Bank has not sold such participation.

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 Bank's allocation for purposes of determining the costs referred to

above shall be conclusive and binding upon Applicant provided such allocation is made in

good faith. 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. B

ank 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 Applicant expressly to the contrary, and prior to Bank's issuance of

the Credit:

a) i

n the event the Credit calls for presentation of commercial documents, although shipment(s)

in excess of the quantity called for under the Credit are made, Bank may honor the relative

Instrument(s) in an amount or amounts not exceeding the amount of the Credit; and

b) 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 and administrator, executor, trustee in bankruptcy, debtor in possession, assignee for the

benefit of creditors, 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 Applicant, relative to

the Credit, or any Instrument or documents called for thereunder, including waiver of

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noncompliance of any such Instruments or documents with the terms of the Credit, this Agreement

shall be binding upon Applicant with regard to the Credit as so amended, changed or modified,

and to any action taken by Bank or any of its correspondents relative thereto. No amendment,

change, waiver or modification to which Bank has consented shall be deemed to mean that Bank

will consent or has consented to any other or subsequent request to amend, change, modify or

waive a term of the Credit. Bank shall not be deemed to have waived any of its rights hereunder,

unless 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.

5. T

he Uniform Customs and Practice shall be binding on Applicant and 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 Bank;

b) none of Bank, its affiliated, 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 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 teletransmission or by oral

instructions, whether or not they may be in cipher;

i. any acts or omissions of any beneficiary of the Credit or assignee of the Credit, if

assignable;

. 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 collectibility of any documents

(including insurance), or Instruments, or of any endorsement thereon, or the relationship

of any issuer thereof of the property;

. 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;

i. any act or omission or insolvency or failure in business of any other person;

viii. any act or omission, whether rightful or wrongful, of any present or future dejure or de

facto government or governmental authority, "Governmental Acts";

. failure to pay under Credit as a result of Governmental Acts or any other cause beyond

the control of Bank, its correspondents, and agents.

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x. the existence, character, quality, quantity, condition, packing, value, or delivery of the

Property purported to be represented by the documents;

i. any difference in character, quality, quantity, condition or value of Property from that

expressed in documents;

xii. the character, adequacy, validity, or genuineness of any insurance or the solvency or

responsibility of any insurer;

iii. the solvency, responsibility, or relationship to the Property of any party issuing any

documents in connection with the Property;

c) B

ank 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 Bank's rights or powers hereunder or Applicant's obligation

to make payment;

e) A

pplicant will promptly examine:

i. t

he copy of the Credit (and of any amendments thereof) sent to it by Bank; and

ii. al

l Instruments and documents delivered to it from time to time and, in the event of any

claim of noncompliance with Applicant's instructions or other irregularity, Applicant will

immediately notify Bank thereof in writing, Applicant being conclusively deemed to have

waived any such claim against Bank and its correspondents unless such notice is given

as aforesaid;

f) w

ithout in any way limiting the foregoing, any action, inaction, or omission on the part of 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 Applicant and shall not place Bank

or any of its correspondents under any liability to Applicant and in no event shall Bank or any

correspondent be liable for any special, incidental, consequential, or punitive damages. Applicant

agrees to hold Bank, each affiliate and subsidiary of 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 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, Bank or such affiliate or subsidiary. The occurrence of any event set forth above shall

not affect or impair the rights or powers of Bank or Applicant's obligation to reimburse Bank;

g) notice from Bank's correspondent of payment, acceptance or other action under the Credit shall

be conclusive evidence of Applicant's liability to reimburse Bank as provided herein.

6. a) Applicant shall procure all necessary import, export, shipping, or other licenses for the

Property covered by the Credit, comply with all governmental regulations, foreign or domestic,

including, but not limited to exchange regulations, with regard thereto or the financing thereof,

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and furnish Bank upon request certificates evidencing same, and on demand, pay to Bank any

amount Bank may be required to expend in respect thereto.

b) Applicant will cause the Property covered by the Credit to be adequately insured in amounts

against risks, and by companies satisfactory to Bank, assign the policies or certificates thereof

to Bank or name Bank as additional insured or make loss payable to Bank at Bank's option,

and furnish Bank upon request evidence of compliance with the foregoing. If Bank at any time

deems such insurance inadequate for any reason, Bank may procure such insurance as Bank

deems necessary at Applicant's expense.

c) If Bank delivers to Applicant or upon Applicant's order any of the Property, documents or

Instruments relative to the Credit, or held by Bank as security hereunder, prior to payment in

full of all Applicant's obligations secured thereby, Applicant will deliver to Bank trust receipts

therefore or other security Instruments and statements of trust receipt financing, or other

financing statements, complying with applicable law and in such form as Bank may request,

and pay all necessary filing fees, it being understood that any such delivery is made in reliance

upon this Agreement and that Bank's rights specified herein shall be in addition to Bank's

rights under any such applicable law. Upon any transfer, sale, delivery, surrender or

endorsement of any document or Instrument at any time held by Bank, or for Bank's account

by any of Bank's correspondents, relative to the Credit, on trust receipt or otherwise. Applicant

will indemnify and hold Bank and any such correspondent harmless from and against each

and every claim, demand, action, or suit asserted by reason thereof.

d) Applicant agrees not to initiate or acquiesce in any judicial, administrative, or other proceeding

for any injunctive or declaratory relief to block 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). Applicant acknowledges that remedies for all such fraud related

risk have been adequately considered in the agreements between the beneficiaries of the

Credit and Applicant.

e) Any claim against Bank shall be limited to actual damages with no liability for consequential,

incidental, special or punitive damages. Any action for damages by Applicant against Bank

must be commenced within one year after the claim arises.

f) Applicant requests Bank to accept and act upon instructions, to issue Credit and to amend

existing Credit upon Bank's receipt of written instructions by telex, cable, facsimile, and/or

telecopier transmission. In the event Bank honors such instructions (and Bank need not so

honor) Applicant indemnifies and holds harmless Bank from and against any claims, actions,

suits, liability, costs, expenses, and damages including, but not limited to, attorney fees arising

out of Bank's honoring such request so long as the instructions are given by any person

purporting to be authorized to give such instructions for Applicant. All such instructions must

contain such information as determined by Bank in the sole discretion and shall of this

Agreement, including, but not limited to, Section 9 hereof.

g) Applicant warrants that each beneficiary of a Credit is not a prohibited person, that the

merchandise to be shipped under each Credit is not prohibited under the Foreign Assets

Control Regulations of the United States Treasury Department or any other law or regulation,

and that any importation covered by the Application conforms in every respect with all then

existing laws and regulations.

h) In the event Applicant requests Bank, whether orally or in writing, at any time prior to Bank's

receipt of documents relative to the Credit, to issue a Steamship Guaranty Delivery Order, or

Air Release to the carrier company or its agent to enable Applicant to receive the property

covered by the Credit, Applicant shall indemnify and hold harmless Bank from any and all

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claims, lawsuits, losses, liability or damage (including, but not limited to, attorney fees arising

out of the delivery of the Steamship Guaranty, Delivery Order, or Air Release) and agrees to

pay Bank on demand any and all payments with respect thereto, that so arise under or in

respect of that Steamship Guaranty, Delivery Order of Air Release. In that event, Applicant

requests Bank to honor any drafts drawn or purporting to be drawn under the Credit even

though the accompanying documents do not conform with the requirements of the Credit or

all documents required do not accompany the drafts, and Applicant expressly assumes full

responsibility for any discrepancies or deficiencies in or omissions of those documents, all

without prejudice to Bank's rights. Bank may at any time pay, compromise or adjust any such

claim, and Applicant agrees to pay Bank on demand any amount required or expended by

Bank for that purpose. Applicant will immediately, upon receipt of the original bills of lading,

arrange for the prompt release or return to Bank of the Steamship Guaranty or Air Release

issued by Bank pursuant to this Agreement. If the Steamship Guaranty or Air Release is not

released or returned within a reasonable time from the date of such request, Applicant shall

deliver to the carrier or its agents a bond issued by a surety company satisfactory to the carrier

to replace the Steamship Guaranty or Air Release and request the carrier or its agents to

return the Steamship Guaranty or Air Release to Bank or confirm to Bank that it has been

canceled.

i) Unless written instructions have been specifically given to you to the contrary, a draft for less

than the Credit is drawn against may be honored.

j) If Bank pays an Instrument, Applicant shall reimburse Bank if documents presented with the

draft are in substantial compliance with the Credit. If Bank elects not to pay an Instrument

because of documentary discrepancies, Applicant shall indemnify and hold harmless Bank

from any resulting loss, damage or costs arising therefrom unless the documents presented

with the draft are in strict compliance with Credit. Bank may accept as being in strict

compliance, any document containing stamped, written, or typewritten provisions, whether or

not signed or initialed, and may assume conclusively that they were placed with authority on

the document at the time of its issuance by the carrier or other issuer or any agent.

k) In the event Bank sends Applicant a notice of discrepancies in the documents, that action is

for Applicant's convenience and will not require Bank to send Applicant a notice of

discrepancies in other instances, and Applicant's waiver of discrepancies will not in any

instance bind Bank to waive the discrepancies or pay the Credits.

7. a) Any and all obligations and liabilities of Applicant to 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 Bank shall in good faith deem itself insecure at any time;

ii. upon the death or dissolution of Applicant;

iii. if any obligation and/or liability of Applicant to 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 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

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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. if Applicant fails to comply with any provision of this Agreement; or

vi. if any representation or warranty made to obtain credit or extension thereof is or appears

to Bank to be false.

b) It is further agreed that:

3. in the event of any of the foregoing, Applicant shall, on demand of Bank, immediately

deliver, convey, transfer or assign to Bank collateral of a value and character satisfactory

to Bank, or make such payment as Bank may require, and

4. if 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 Bank, Applicant shall, on

demand of Bank, deliver, convey, transfer or assign to Bank collateral of a value and

character satisfactory to Bank, or make such payment as Bank may require.

c) Upon the occurrence of an Event of Default, in addition to the foregoing, 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. Bank's right hereunder shall continue unimpaired, and Applicant shall be and remain obligated in

accordance with the terms and provisions hereof. No delay, extension of time, renewal,

compromise or other indulgence which may occur or be granted by Bank, shall impair Bank's

rights or powers hereunder. If 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 Applicant is a banking institution, Applicant hereby appoints 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 and all of them.

9. Instructions (whether by oral, telephone, facsimile, teleprocess or other means) may be honored

by Bank when received from anyone purporting to be authorized to give such instructions for

Applicant. Applicant agrees to furnish Bank with written confirmation of each such instruction

signed by the person giving such instruction, or other authorized officer, but 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. Bank

shall have no responsibility to notify Applicant of any discrepancies between Applicant's

instructions and its written confirmation. Bank shall be fully protected in, and shall incur no liability

to Applicant for, acting upon any oral, telephone, teleprocess or other instructions which Bank in

good faith believes to have been given by any authorized person, and in no event shall Bank be

liable for special, consequential or punitive damages. The Bank may, but need not at its option,

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use any means of verifying any instructions received by it. 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 Bank shall amend its standard reimbursement Agreement executed by each

applicant for Credit, Applicant shall execute and deliver to Bank an amendment to this Agreement

incorporating such changes, promptly upon receipt thereof from Bank.

b) Applicant hereby consents to the dissemination to subsidiaries and affiliates of Bank of credit

information relating to Applicant in connection with any proposed participations by Bank of

any rights and obligations hereunder.

11. a) As security for the performance of all Applicant's Obligations, Applicant hereby assigns,

pledges and gives Bank a security interest in and a lien upon, and the right of set-off, possession,

and disposal of:

i. all documents, contracts, shipping documents, warehouse receipts 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 way relating thereto

and all inventory, accounts, chattel paper, or general intangibles arising therefrom and

all proceeds and products (including, but not limited to insurance proceeds) of the

foregoing;

ii. all 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 Applicants and any account party named in the Credit), credits, policies of

insurance or other assurances in connection therewith; and

iii. 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

Applicant and which may now or hereafter be in the possession, custody or control of,

or in transit to or set apart for, Bank, Bank's agents or correspondents for any purpose,

whether or not for the express purpose of being used by 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 Bank with additional security to Bank's satisfaction.

b) Bank may at any time or times transfer into Bank's or Bank's nominee's name all or part of

such security, before or after maturity of any of Applicant's obligations and without any notice

to Applicant or any other person. Whenever Bank deems it necessary for Bank's or Applicant's

protection, or after an Event of Default specified in paragraph 7, or other default, 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 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 Bank deems

appropriate. 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 Applicant's part, which are

hereby specifically waived and released. Bank may discount, settle, compromise or extend

any obligations constituting such security, and sue thereon in Bank's or Applicant's name. Any

demands, tenders, call or notices to Applicant shall be deemed duly made or given as of the

time left at 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

Capital One Confidential Page 9 of 11

shall be a waiver of Bank's right to proceed in the same or other instances without any further

action.

c) Proceeds of any such security shall be applied, without any marshaling of assets, in such

manner or order as Bank may deem proper, to any one or more of Applicant's obligations,

whether or not due, and Bank may retain any amounts necessary, in Bank's sole judgment,

to meet any contingent obligations. Applicant shall remain liable for any deficiency.

d) No receipt, of realization upon, release or substitution, of or other dealing with, any such

security shall affect Bank's rights or liens hereunder, and Bank need not realize upon any

security prior to seeking payment form Applicant.

e) 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. Bank shall not be under any obligation to take any action with respect to the

collateral.

f) In addition to and not in limitation of the foregoing, Bank shall have all the rights and remedies

of a second party under the Uniform Commercial Code.

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) that all balance sheets, profit and loss statements, and other financial statements furnished

to 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. Applicant, if

not a natural person, further represents: (a) that it is duly organized, existing and in good

standing under the laws where it is organized; and (b) that 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 Bank at Bank's discretion, to file one or more financing

statements under the Uniform Commercial Code naming Applicant as debtors and 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 Bank, 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 Bank's prior written consent, 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.

Capital One Confidential Page 10 of 11

14. Applicant hereby consents to the exclusive personal jurisdiction of the courts in the state where

the Credit is issued, and agrees that such courts shall be proper for any action or suit brought

by or against Bank relating in any way to the Credit, the Property or this Agreement. Service of

process in any action or suit arising out of or in connection with this Agreement or the Credit

may be made upon Applicant by mailing a copy of the summons to Applicant either at the

address set forth in the application or at Applicant's last address appearing in Bank's records. In

any such action or any other action between Bank and Applicant or any claim by Bank against

Applicant, Applicant agrees to pay 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 Bank and 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 or in aid of execution), execution or other legal process;

c) any claim against Bank for consequential, incidental, special or punitive damages. Notice of

acceptance of this Agreement by Applicant is waived; and

d) the right to assert that any court in the state where the Credit is issued is an inconvenient

forum.

15. It is expressly recognized and acknowledged by Applicant that notwithstanding anything to the

contrary contained herein, Bank does not waive its common law or statutory rights of set-off or

any other rights generally available to creditors.

16. Notwithstanding Bank’s recommendation or drafting of specific language for the Credit, or its

refusal to use specific language submitted by Applicant for use in the Credit, Applicant affirms

that it is responsible for (a) preparing or approving the terms, conditions and language set forth

in the Credit and for any and all risks attributable thereto, including but not limited to the following:

i) that the wrong person may obtain payment if the Credit incompletely identifies the intended

Beneficiary, identifies more than one beneficiary, permits transfer of or succession to Beneficiary’s

rights, or does not require presentation of the original credit or other unique documents (the Bank

is not responsible for detecting forgery of a beneficiary’s signature, and the Applicant is obligated

to indemnify and reimburse the bank for payments against forged as well as genuine

presentations); iii) that a provision in the credit will be ignored to the extent it requires Bank to

verify facts rather than examine documents or fails to identify the document(s) to which the

provision applies; and (c) including suitable provisions in the Credit that describe the

circumstances under which a drawing under the Credit may be made. The Applicant also agrees

to notify the Bank of any objection the Applicant may have to the Bank’s issuance or amendment

to the Credit, the Bank’s acceptance or rejection of a presentation under the Credit, or any other

action or inaction taken or proposed to be taken by bank under or in connection with this

Agreement or the Credit. Applicant’s notice of objection must be given to the Bank within 3 banking

days after the Applicant receives notice of the action or inaction taken or proposed to be taken by

the Bank. The Applicant’s failure to give timely and specific notice of objections shall automatically

waive the Applicant’s objection, authorize the Bank’s action or inaction, and absolutely preclude

the Applicant from raising the objection as a defense or claim against the Bank. Nothing set forth

in this Agreement shall be construed to require the Bank to notify Applicant of any action or

inaction taken or proposed to be taken by the Bank.

Capital One Confidential Page 11 of 11

17. Notice from Bank to 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 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 Bank shall be deemed delivered upon receipt.

18. 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

Applicant without the prior written consent of Bank. 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 Bank

and 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. Heading are for convenience

only and shall not influence construction or interpretation of this Agreement.

WITNESS

Bank: Capital One, N.A.

___________________________________

[Print Name of Witness]

________

_________________________

nt Title of Witness]

___________________________________

[Si

gnature 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

___________________________________

(Or

ganization’s/Client’s Legal Name)

___________________________________

nt Name of Authorized Representative]

___________________________________

rint Title of Authorized Representative]

___________________________________

nature of Authorized Representative]

___________________________________

[Da

ted]

Address for Customer Notices:

___________________________________

Phone: ( ) _____________________

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Continuing Agreement for Irrevocable Commercial Letters of Credit (Capital One)

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