2015-66 ii
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_mummen Customer Information
...............4M-4\
Customer agrees to provide any information that
FIFTH THIRD BANK- we reasonably require to enable us to provide the
requested Services to Customer.For some of our
MASTER TREASURY Services,Customer may be required to complete
MANAGEMENT AGREEMENT a set up and implementation process and
complete related information forms. We will
This Master Treasury Management Agreement rely on the infomnation provided to us by
("Agreement')governs the provision of Treasury Customer in this process and the Service Request
Management Services ("Services") to the m providing the Services to Customer. Any
undersigned "Customer" by Fifth Third Bank changes by Customer to the information
("we" or"al and is effective when and as of provided to us must made in writing and will
the date executed by us. be effective after wea have had a reasonable
oppornmity to act on the changed information.
Services We are entitled to rely upon the accuracy of all
Uig. Customer desires to obtain, and we agree information and authorizations received from an
officer or authorized employee or representative
to provide the Services as provided in this "
of Customer(an Authorized AgerrP'),and on the
Agreement and the applicable Terms and
Conditions for the Services ("Terms and authenticity of any signatures purporting to be of
Conditions"or"Service Terms").Customer may an Authorized Agent. Customer agrees to notify
request a Service by any means we approve us
tmmedrately of any change in the status of an
("Service Request"). If we accept and approve a Authorized Agent. Customer acknowledges that
we may require a reasonable time period before
Service Request,we and Customer are subject to
the Terms and Conditions for that Service. If we act upon any such change. Customer agrees
Customer uses a Service before the Service that
we may refuse to comply with requests from
Request is approved by us, Customer's first use any individual until we receive documentation
of the Service shall be deemed to be Customer's reasonably satisfactory to us confirming the
agreement to the Terms and Conditions for that individual s authority.
Service.
Fees and Taxes
Service Terms. Customer acknowledges Except as expressly provided in a separately
receiving a copy of the Terms and Conditions for
the Services it desires. Once a Service Request agreed and executed pricing agreement or
is approved by us or Customer is deemed to have amendment referring to this Agreement
accepted the Terms and Conditions for a our starng andAmacceunt),CustomerService agrees fees to and
particular Service, the applicable Terms and our standard account and and
charges In effect
Conditions are incorporated into, and made a flrom time to time as billed by
part of, this Agreement.Neither party is bound us
' Ir addition, Customer agrees to pay our
by or subject to the Terms and Conditions for ° fees and charges for any requested or
any Service Customer does not use. requiredspecial service or handling. Customer
is responsible for all taxes attributable to its use
Customer se. We provide the Services for the of the Services or this Agreement (excluding
sole and exclusive benefit of Customer,and if we
based on our employees, property or net
approve in writing, Customer's Subsidiaries (as income).
defined below). The Services may only be used Instructions
for business purposes and not for personal,
household or consumer purposes. Each payment order, wire transfer instruction,
User Guide. For some of our Services,we may ACH entry,file,batch release and other message
provide in hard copy or make available online an or instruction to us(an"Instruction")that is sent
operating manual or user guide ("User Guide") to e electronically in accordance with this
to assist Customer in using the Service. Agreement or the applicable Terms and
Conditions shall be considered to be an original
September 2014
s
writing and to have been signed by an effect on Customer, (b) the execution, delivery
Authorized Agent. Neither party will contest the and performance by Customer of this Agreement
validity or enforceability of an Instruction on the and the Related Agreements (as defined below)
ground that it was not in writing,not signed by have been authorized by all necessary entity and
an Authorized Agent or not an original. A valid governmental action;(c)the persons signing this
digital signature shall,at all times,be deemed to Agreement and the Related Agreements on
be conclusive proof of due authorization by Customer's behalf are duly authorized to do so;
Customer of the communication, Instruction or (d)this Agreement represents Customer's legal,
document to which it relates. Customer is solely valid and binding obligation; (e) the execution
responsible for the accuracy and completeness of and performance of this Agreement and the use
each Instruction or communication sent to us. of the Services do not and will not violate in any
material respect any Applicable Law,
Our Representations and Warranties Customer's entity governing documents, or any
material agreement by which Customer is bound;
General. We represent and warrant to Customer and (f)each transaction Customer conducts,and
that: (a)we are duly organized,validly existing, each account Customer has with us is conducted
and in good standing in the jurisdiction in which or maintained for a business or commercial
we are organized;(b)the execution,delivery and purpose and not a personal,family or household
performance by us of this Agreement has been purpose. Customer reaffirms these
authorized by all necessary corporate and representations and warranties each time it uses a
governmental action;(c)the persons signing this Service and agrees to promptly notify us if any
Agreement on our behalf are duly authorized to representation or warranty made by Customer is
do so; (d)this Agreement represents our legal, no longer true.
valid and binding obligation; and (e) our
execution and performance of this Agreement Security Procedures;Operating Procedures
and our provision of the Services do not and will
not violate any Applicable Law (as defined Establishment Access to our Access Channels
below), our articles of association or bylaws or (described below)and to some of our Services is
any material agreement by which we are bound. subject to Security Procedures ("Security
Procedures"). Our Security Procedures include
Service We agree to provide the Services in the use of identification codes, personal
accordance with reasonable commercial banking identification numbers and passwords
standards prevailing for the applicable Service ("Identification Codes"), call back protocols,
for similarly situated financial institutions. tokens and other systems or procedures. The
Security Procedures enable the use of the Access
Limitations. Except as expressed elsewhere in Channels and verify the origin of Instructions
this Agreement or in the applicable Terms and and communications sent to us. We and
Conditions, we make no other representations or Customer will agree on the Security Procedures
warranties,either express or implied,of any kind for a particular Service in the set up process for
with respect to any Service or our performance that Service and to changes as needed.Customer
of the Services, including, without limitation, agrees to select the Security Procedure that is
those of merchantability and fitness for a suitable for Customer in light of its intended use
particular purpose No descriptions or of the applicable Service or Services. The
specifications constitute representations or Security Procedures are not designed to detect
warranties of any kind. errors in any Instruction to us.
Customer Representations and Warranties Verification. If we accept and act in good faith
on a payment order issued to us in Customer's
General. Customer represents and warrants to us name and in accordance with the Security
that. (a) Customer is duly organized, validly Procedures and any written agreement between
existing,and in good standing in the jurisdiction Customer and us,the payment order is effective
in which Customer is organized, and is validly as Customer's payment order whether or not it is
qualified in any other jurisdiction where authorized, and Customer is bound by it. Any
Customer does business and is required to be other Instruction communicated to us in
qualified except where the failure to be so Customer's name in compliance with the
qualified would not have a material adverse Security Procedures and all access to and use of
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Services and Access Channels using the Security platform for all of Customer's Accounts.
Procedures are considered authorized by Information Reporting features include prior day
Customer. and intra-day reporting, account management
capabilities and reporting,ledger,and search and
Authority. The Security Procedures are in monitoring tools. The features and options
addition to and do not limit,revoke or affect the available through Fifth Third Direct (together
authority of any person (whether by course of with any other means to access our Services
dealing or otherwise)to transmit Instructions in electronically,"Access Channels")are described
Customer's name. We may continue to rely in greater detail below and in the User Guide for
upon such authority and we are authorized to act these Services.
upon Instructions received from persons acting
pursuant to such authority.Customer is bound by Administration.As part of the set up process for
any authorized payment order or other Fifth Third Direct,Customer will appoint one or
Instruction, and by use of the Access Channels more individuals(each,an"Administrator")with
by authorized personnel. authority to manage one or more aspects of
Customer's use of Fifth Third Direct including
Other Procedures. In addition to the Security the authority to:
Procedures, we may, in our discretion, use
additional procedures to verify the authenticity • set up and configure Fifth Third Direct
of Instructions communicated to us. We will not for Customer's specific requirements;
be responsible for our refusal to act upon any • designate personnel or sets or types of
Instruction received that does not comply with personnel including the Administrator
this Agreement or the applicable Terms and ("Users"), with entitlements (inchtding
Conditions, including where our reasonable Identification Codes, dollar amount and
efforts to verify Instructions in accordance with transaction type limitations and
the Security Procedures have failed or where approval processes) to access to some
such action is delayed until verification can be or all or a defined set of the Services or
obtained. Service features through Filth Third
Direct;
Safeguarding the Security Procedures. Customer • add and delete accounts and users;
agrees to(a)maintain the complete security and • accept and act on all communications
confidentiality of the Security Procedures, and from us regarding Fifth Third Direct;
(b) institute and use prudent procedures and and,
practices to control access to the Services and • elect to enable access to our ACH
use of the Security Procedures Customer's Service, Wire Transfer Service and
failure to protect the confidentiality of the account transfers between deposit
Security Procedures may enable an unauthorized accounts and commercial loan accounts
person to use the Services and access Customer's ("Funds Transfers") and designate
accounts and data. Customer must notify us Users (including the Administrator)
immediately if there has been a breach of its with authority to execute Funds
security,or any Security Procedure has been lost, Transfers and establish form templates
stolen,misused or compromised. and security levels for each User
Breach Incidents.We notify customers(and will
notify Customer) of security breach incidents Customer, at its option, may authorize the
involving their information in accordance with Administrator to have non-functional authority
the "Federal Banking Interagency Guidance on (i.e., authorized only to add and administer
Response Programs for Security Breaches dated Users) or functional authority (i.e., authority to
March 23, 2005," as amended, and applicable use other Services including Funds Transfers).
state laws. The Administrator will have the option to require
"Dual Control Administration,"meaning that the
Access Channels approval of a second Administrator is required to
verify the designation and authorization of a
Fifth Third Direct is our Internet access portal designated User. We recommend that Customer
providing entre to a variety of Services including elect to require Dual Control Administration
a robust Information Reporting Services We will rely on the authority of the
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Administrator and Users designated by the of the Access Device is subject to any terms of
Administrator until we receive written notice of a use accompanying the Access Device or any
change and we have a reasonable opportunity to required license, and may only be used as and
act on the notice. Customer is solely responsible where delivered to Customer and only for the
for the actions,instructions and decisions of the purpose of accessing our Services. Each Access
Administrator and the designated Users. Device and the related technology,
documentation and materials at all times remain
Security Procedures. Customer's use of the our or our vendor's properly.
Access Channels and the accessed Services are
subject to Security Procedures. The Fifth Third Customer Responsibilities. In addition to using
Direct Service generates unique Identification the Security Procedures,Customer agrees to:(a)
Codes for each User. The use of Identification institute and use reasonable measures to mitigate
Codes and,where applicable,Access Devices(as the risks of conducting banking transactions
described below) together with any additional through the Internet; (b) institute and enforce
measures agreed to by the parties constitute the effective policies and procedures to ensure that
Security Procedure for the Access Channel end its personnel use the Services only as authorized
the Service accessed through that Access and within the limits of their permission or
Channel. authority; (c) incorporate and use reasonable
security features and technology in its computer
Funds Transfers. The use of our Funds Transfer software,hardware and systems,and(d)educate
Services is subject to the Security Procedures for and update itself and its employees on the proper
those Services, including the use of an Access and secure use of the Internet, and the existing
Device as described below. The Security and emerging threats from computer viruses and
Procedures include a variety of approval options, attacks, email scams, cybercrimes and other
User limitations and controls which are attempts to gain Customer's banking
described in greater detail in the User Guide. information, and use reasonable efforts to
We recommend that Customer establish an address these threats.
approval protocol appropriate for Customer's
particular circumstances. If Customer does not Equipment and Software. Customer is solely
establish and require adherence to an approval responsible for having and maintaining at its
protocol for Funds Transfers or if Customer expense proper functioning hardware, software,
selects a "no approval" option, Customer communication devices and Internet access and
assumes the risks of all transactions that could service necessary for use with the Access
have been prevented by requiring approval. Channels.
Funds Transfers involving only internal account
transfers may not be subject to all of the Security Other Bank Products. At your option,you may
Procedures for other Funds Transfers. enable access to banking and other products we
provide to you that are not Services covered by
Account Information. Depending upon the this Agreement. Those products are subject to
service features Customer selects,Customer will the terms of the separate agreements for those
have access to account and transaction products.
information on a prior day or intraday basis, or
both. Account information changes frequently Intellectual Property. All software related to the
and is subject to updating, verification and provision of the Access Channels, the content,
correction. We assume no responsibility for pages, and other materials, and other works of
Customer's reliance on any account or Service authorship and material displayed or utilized in
information subsequently updated, verified or connection with the Access Channels,the names,
corrected. trademarks, logos, slogans and service marks
used, displayed and found on our websites, and
Access Devices. Access to some Services may all other intellectual property relating to the
require the use of a security token in physical, Access Channels (collectively, "Intellectual
software or virtual form or other authentication Property")are owned by and proprietary to us or
device or proccss and related software (an our vendors or licensors, except as otherwise
"Access Device"). Proper, controlled and specified. No Intellectual Property may be
authorized use of the Access Device is part of the copied, modified, disassembled, reproduced,
Security Procedure for these Services The use used in any way (other than as authorized in
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connection with the Services) or publicly Replies. Customer is not permitted to reply to
displayed, or distributed in any medium of email Alerts. Any reply Customer sends will not
expression without our prior written permission. be read or acted upon. Customer should never
respond to any request purportedly from us
Smce the Internet is inherently insecure and to provide Customer's account numbers or
since there is a risk that data communications information, or security details such as
and transfers may be subject to interruption, passwords. Customer agrees to report to us
interception, failure, unavailability, delay or promptly any such purported request or other
unauthorized access or dissemination unusual mails.
("Failure Events"), we agree to take
commercially reasonable steps to maintain the Compliance
security of such data communications and
transfers, including using encryption and This Agreement,the Terms and Conditions and
other industry standard security features. the use and provision of our Services are subject
Except where we fail to take commercially to all applicable state,federal, local and foreign
reasonable steps,we shall not be liable for any laws,rules,regulations and other laws,including
Failure Events that occur, including any loss without limitation, the Uniform Commercial
of privacy or data, or use by others of such Code in effect in the State of Ohio,the NACHA
data communications or transfers. Under no Operating Rules & Guidelines ("Operating
circumstances, shall we be liable for any Rule?), rules and regulations of any money
Failure Events that occur prior to Customer transfer system, check clearing or payment
establishing a secure connection to our clearing house, association or network used by
authorized portal or after properly us in providing the Services to Customer and the
terminating that connection. regulations and operating circulars of the Federal
Reserve Board (collectively,"Applicable Law").
Email Alerts Both parties agree to be bound by the Operating
Rules where applicable and to comply with
Establishment Some of our Services include an Applicable Law in using or providing the
email alerts feature. If Customer elects to use Services, as the case may be, including any
this feature,our system will send an email alert control or sanction administered by the Office of
(an "Alert') to Users designated by the Foreign Asset Control. Customer will not make
Administrator that an activity, status or action or accept any payments through or in any
selected by the Administrator regarding a accounts with us in connection with unlawful
selected account has occurred The Alerts internet gambling.
feature is set up by the Administrator.
Business Continuity
Informational Use. Alerts are provided for
Customer's information and convenience only. We maintain off-site business continuity
An Alert does not constitute a bank record for capabilities designed to permit us to recover
the account to which it pertains. The Alerts from a disaster and continue providing Services
feature is meant to assist Customer in managing in accordance with our business continuity plan
Customer's accounts, but is not intended as a and capabilities. Our business continuity
substitute for proper account management or capabilities will permit the recovery from a
regular use of our account management or other disaster and resumption of the provision of the
information Services. Service to Customer within a commercially
reasonable period as dictated by the particular
Delivery Risks. Alerts may be delayed or recovery rating of the system or application in
prevented by a variety of circumstances beyond question. A copy of a summary of the Fifth
our control. We do not guarantee the delivery of Third Bank Business Continuity Plan as in effect
any Alert.Alerts are sent via the Internet without from time to time will be provided to Customer
being encrypted or otherwise coded in any way. upon written request.
We will not be liable in any way for non-
delivery,delayed or wrong delivery of an Alert, Limitation of Liability
the content in an Alert,or Customer's use of,or
reliance on, the absence of any Alert for any CUSTOMER AGREES TO THE MAXIMUM
purpose. EXTENT PERMITTED BY LAW THAT IN
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) _.I
)
NO EVENT WILL WE BE LIABLE OR agreed to any settlement or other material issue
RESPONSIBLE FOR ANY CONSEQUEN- relating to such claim;(c)reasonably cooperates
TIAL, INCIDENTAL, INDIRECT, PUNITIVE, with us at our expense in the defense or
SPECIAL OR SPECULATIVE LOSSES OR settlement; and (d) gives us sole control and
DAMAGES (INCLUDING LOST PROFITS, authority over all aspects of the defense or
GOODWILL AND OPPORTUNITIES) THAT settlement of such claim.
CUSTOMER OR ANY OTHER PERSON MAY
INCUR OR SUFFER IN CONNECTION WITH Recordings;Imaging Records
THIS AGREEMENT OR ANY SERVICE
PROVIDED BY US, EVEN IF WE HAVE Customer authorizes us (but we are not
BEEN ADVISED OF THE POSSIBILITY OF obligated) to record electronically and retain
SUCH LOSS OR DAMAGES AND telephone conversations between Customer and
REGARDLESS OF THE TYPE OF CLAIM. us. Imaging and electronic records will be
retained by us in accordance with our policies
Customer further agrees,to the maximum extent and procedures and copies of such records will
permitted by law,that our liability to Customer be available at Customer's request and expense
arising from any Service will be limited to actual
monetary damages that are the direct result of Confidentiality
our failure to exercise reasonable care in
providing the Service. Notwithstanding the Subject to Customer's duties under Applicable
foregoing, for Instructions which are subject to Law, Customer agrees to keep confidential and
UCC Article 4A,we are liable only for damages not disclose to any third party (other than its
required to be paid under UCC Article 4A. agents) our fees and charges, terms of Service.
User Guides, software, non-public Service
Indemnification Obligations features and other proprietary information and
systems we or our Processors provide and
Customer agrees to indemnify and hold us and disclose in connection with the Services.
our officers, directors, employees, affiliates, Customer acknowledges the exclusive ownership
shareholders and agents harmless from and by us or our Processors of such information,and
against any and all losses, liabilities, damages, agrees to use such information solely for
actions, claims and expenses including court purposes of using the Services.
costs and reasonable attorneys' fees and
expenses ("Losses") resulting directly or We acknowledge that non-public information we
indirectly from,or arising in connection with:(a) obtain from Customer in connection with
Customer's breach of any of Customer's providing a Service to Customer may be
agreements, representations, warranties or confidential. We will maintain the
covenants in this Agreement, the Terms and confidentiality of such information in accordance
Conditions or any other agreement with us with our normal procedures for safeguarding
relating to the Services;(b)Customer's violation customer information. Notwithstanding the
of Applicable Law;or,(c)Customer's use of the foregoing, we may disclose Customer's
Services and our complying with or carrying out information as provided in our Fifth Third
any Instruction or other direction given to us in Privacy Notice for Commercial Customers.
accordance with this Agreement. Customer is
not,however,obligated to indemnify us for any Duty to Inspect
Loss directly resulting from our gross negligence
or bad faith. Information Review. Information regarding
transactions with the Services is reported on
We agree to indemnify and defend at our own Customer's periodic account statement and is
expense or settle any action brought against also available with one or more of our reporting
Customer to the extent that it is based on a claim Services.Customer is responsible for monitoring
that Customer's use of a Service directly its use of our Services and all activity in its
infringes a copyright, trademark or patent or accounts with us including individual
constitutes misappropriation of a third-party transactions. Customer agrees to: (a) regularly
trade secret, provided, however, that Customer. review the account information we make
(a)promptly notifies us in writing of such claim; available to Customer; (b) promptly review the
(b) has not made any admission of liability or account statements we send to Customer,and(c)
6
notify us as soon as reasonably possible of any Customer the Overdraft,or any fees, charges or
error, unauthorized transaction or other similar interest relating to it
matter but,in any case,not more than thirty(30)
calendar days after the information is so made Transaction Limits
available or sent to Customer.
if we in good faith determine that:(a) providing
Prevention. Customer agrees to institute, any Service to Customer could reasonably be
maintain and enforce commercially reasonable expected to result in a violation of any
procedures to prevent fraud, and misuse and Applicable Law or a material loss to us; (b) we
unauthorized use of the Services ("Customer would be entitled to terminate the applicable
Measures"). In addition to the Customer Service under the second paragraph of the
Measures, we offer a variety of Services and "Termination" section of this Agreement(with
other tools designed to assist Customer in or without the lapse of time or notice); or (c)
reducing or stopping the incidence of fraud and Customer is in default under this Agreement or
unauthorized activity in Customer's accounts any Related Agreement, we may limit
including positive pay,ACH transaction control, Customer's transaction volume or dollar
disbursement control, information reporting and amounts, refuse to execute transactions, or
account management Services. To the extent terminate that Service to Customer. In addition,
Customer chooses not to use one of these we may restrict or limit the types of Instructions
Services or features or implement Customer Customer may send to us for processing or
Measures,and the proper use of that Service or execution. We will,to the extent not restricted
Customer Measure could reasonably have by law, promptly communicate our decisions
prevented the incidence of fraud, unauthorized regarding such restrictions to Customer. We
activity or loss suffered by Customer, Customer reserve the right to limit transaction volume or
will be deemed to have assumed the risk of such dollar amounts in circumstances not described in
fraud, unauthorized activity or loss so suffered the first sentence of this section, provided we
and will be precluded from asserting that we are give you prior notice of any material limitation
responsible for such fraud,unauthonzed activity or decrease in previously communicated
or loss. limitations. Customer agrees to provide us,upon
our request from time to time, with such
Overdrafts financial information and statements and other
documentation as we reasonably determine to be
We may delay or refuse to process any item, necessary or appropriate to enable us to evaluate
transaction or Instruction that exceeds the our exposure or risk.
amount of available funds in the account on
which it is drawn or presented or would reduce Processors
the balance in such account below any required
minimum balance (i.e., the item, transaction or Customer acknowledges and agrees that we may
Instruction would create an "Overdraft"). We arrange for certain or all of the aspects of the
process Items and other debits to Customer's Services including software and processing to be
account in the order described in the Commercial performed or provided by third-party processors
Account Rules or similarly named agreement expressly engaged by us("Processors"). To the
provided to Customer governing Customer's extent we have engaged a Processor, we are
accounts with us ("Account Rules"). If we responsible for the aspects of the Service
decide in our discretion to process an item, provided by them.
transaction or Instruction despite the Overdraft,
Customer agrees to reimburse us upon demand Vantiv
for: (a) the full amount of any Overdraft or
shortfall created by that item, transaction or If Customer is using the services of Vantiv,LLC
Instruction, (b) all Overdraft fees and charges; (including its successors, "Vantiv"), Customer
(c) interest on the amount of the Overdraft or understands that Vantiv is a separate,
shortfall for the day the Overdraft or shortfall independent legal entity. Customer
was created and for each following day until the acknowledges and agrees that Vantiv is not our
Overdraft or shortfall has been paid or restored; Processor and that we are not responsible for
and (d) all Losses we incur in collecting from Customer's selection of, any agreement
Customer has with, or the actions or obligations
7
of, Vantiv or any agent or vendor engaged or carrying out any of its obligations under this
used by Vantiv. Agreement directly resulting from causes beyond
such party's reasonable control, including
Vendors without limitation,fire,casualty, lockout,strike,
unavoidable accident, act of God, act of
Any third party servicer or vendor used by terrorism,riot,war or the enactment,issuance or
Customer in connection with the Services operation of any adverse governmental law,
("Vendor") is Customer's agent and not ours, ruling, regulation, order or decree, or an
and Customer will be liable and solely emergency that prevents such party from
responsible for: (a) any Vendor's failure to operating normally; provided, however, that
comply with this Agreement, the Terms and Customer shall not be relieved of its
Conditions or any Security Procedures or responsibility for timely performance of any of
operating requirements relating to the Services; its payment obligations to us.
and(b)all fees,costs and expenses owed to each
Vendor for its services. Termination
Use of System Mutual. Either party may terminate this
Agreement or any Service at any time by giving
If a Service involves the use of software, 30 days' prior written notice of termination to
hardware, processing, or databases provided by the other party.
or through us or a Processor to Customer (a
"System"),we or the System vendor may require Bank. We may terminate or suspend
Customer to execute a license or other agreement immediately any Service without notice to
to use or acquire the System. Customer agrees to Customer if Customer fails to maintain sufficient
treat the System as strictly confidential at all available funds in any account maintained for
times. Customer is solely responsible for the use such Service. In addition,we may terminate this
or misuse of the System and assumes the risk of Agreement or terminate or suspend any Service
all consequences of the use or misuse of the immediately upon notice to Customer if: (a)
System by Customer, its personnel or third Customer closes any account established in
parties(other than us and our personnel). connection with the Services without
establishing a replacement account;(b)Customer
Setoff breaches a material obligation under this
Agreement, any Applicable Law in connection
Customer grants us a contractual right of setoff with the Services or any other material
against Customer's deposits and funds in agreement with us; (c) Customer becomes
Customer's accounts with us or any of our insolvent, is placed in receivership or is
affiliates at any time (excluding any account adjudicated bankrupt or Customer becomes
expressly titled to clearly demonstrate that the subject to any voluntary or involuntary
account is held by Customer in a fiduciary or bankruptcy proceeding or any assignment for the
representative capacity for a third party)in order benefit of its creditors; (d)Customer's financial
to satisfy any unpaid or unperformed obligation condition has become impaired in our good faith
to us under this Agreement,now or at any time opinion; (e) any person or group acting in
in the future. We may exercise our right of concert that is not a controlling stockholder of
setoff without demand or notice, and without Customer on the date of this Agreement
recourse to any other collateral but we will use acquires, directly or indirectly (whether by
reasonable efforts to provide notice to Customer merger, stock purchase or issuance,
following the exercise of our rights. Our rights recapitalization, reorganization or otherwise), a
as described above are limited to the extent of majority of Customer's outstanding stock;or(f)
limitations and restrictions imposed by the continued provision of Services in
Applicable Law. accordance with the terms of this Agreement
would, in our good faith opinion, violate
Force Majeure Applicable Law or any requirement of any
regulatory authority or subject us to an
Neither party shall be responsible, and neither unacceptable risk of loss
shall incur any liability to the other, for any
failure, error, malfunction or any delay in
8
J )
Effect. Upon any termination of this Agreement, executed and signed by the parties We may,
Customer shall: (a)promptly pay to us all sums however, modify this Agreement or the Terms
due or to become due under this Agreement; (b) and Conditions by giving Customer thirty (30)
return immediately to us at Customer's expense, calendar days' prior written notice. If Customer
the System (if applicable), and all related continues to use any Service or the affected
materials, and all copies and reproductions Service,as the case may be,after the expiration
thereof, whether written or in magnetic media of the thirty-day period or a later effective date
and whether received from us or otherwise and specified in such notice, Customer is bound by
shall pay us for any damages to any such the Agreement or Terris and Conditions, as the
materials(ordinary wear and tear excepted), and case may be,as so modified.
(c) have no further right to make use of the
System or the Services. Notwithstanding the foregoing,if a modification
to this Agreement or the Terms and Conditions is
Survival Termination of a Service or this required by or under Applicable Law or by a
Agreement does not relieve or excuse regulatory authority with jurisdiction over us or
Customer's payment obligations for any Services is, in our good faith opinion, necessary to
that we provide to Customer before or after the preserve or enhance the security of a Service,we
Service or this Agreement is terminated, nor may modify this Agreement or the Terms and
does it release Customer or us from any of our Conditions by giving Customer notice of the
respective obligations that arose or became modification by any means permitted by
effective prior to such tennination. In addition, Applicable Law, and the modification will be
all provisions of this Agreement relating to the effective immediately upon us giving such
parties' warranties, representations, notice.
confidentiality or non-disclosure obligations,
proprietary rights, limitation of liability and Assignment
indemnification shall survive the termination of a
Service or this Agreement. Customer may not sell, assign or transfer, or
grant a security interest in any of its rights or
Entire Agreement obligations under this Agreement without our
prior written consent. We may assign our rights
This Agreement, together with the Terms and and obligations under this Agreement in whole
Conditions, any applicable User Guide, the or in part without Customer's consent (a)
Service Requests, Account Rules, the signature pursuant to, or in connection with any merger,
card,Pricing Amendment,account fees,terms of consolidation or amalgamation involving us or
use and any resolution or other document our parent company,or the sale or transfer of all
establishing Customer's authority to engage in or substantially all of our assets or stock,or(b)
the Services and open accounts with us in connection with the sale or other disposition
(collectively, the "Related Agreements") involving a line of our business to which this
constitutes the complete and exclusive statement Agreement relates. We will use reasonable
of the agreement between the parties with respect efforts to notify Customer of any such
to the Services and supersedes any prior or assignment. Customer expressly reserves its
contemporaneous agreements between the right to terminate any or all Services in the event
parties with respect to such Services. If there is a of any such transaction.
conflict between this Agreement and the Terms
and Conditions or the Account Rules,the Terms Governing Law;Venue
and Conditions or the Account Rules, as This Agreement and any claims or disputes
applicable, shall prevail to the extent necessary relating to or arising out of this Agreement or the
to resolve the conflict. Nothing in this Service shall exclusively be governed by, and
Agreement confers a right or benefit on any construed in accordance with, the laws of the
person or entity other than us and Customer, State of Ohio,without regard to Ohio's conflict
except for our Processors. of law principles, and with applicable federal
Amendment laws and regulations. Customer irrevocably
submits to the nonexclusive jurisdiction of the
This Agreement and the Terms and Conditions courts of the state and federal courts in Ohio and
may be modified by a written agreement agrees that any legal action or proceeding with
9
respect to this Agreement may be commenced in to Customer as a result of such violation or
such courts. amendment. If any provision of this Agreement
is held to be invalid, illegal or unenforceable,
Waiver of Jury Trial such provision shall be valid, legal and
enforceable to the maximum extent permitted by
Customer agrees that any suit, action or such holding and the validity, legality, or
proceeding, whether as part of a claim or enforceability of the other provisions of this
counterclaim, brought or instituted by Customer Agreement will not be affected or impaired by
on or with respect to this Agreement or any such holding.
event,transaction or occurrence arising out of or
in any way connected with this Agreement shall Headings. Headings are for reference purposes
be tried only by a court and not by a jury. only and are not part of this Agreement
CUSTOMER EXPRESSLY, KNOWINGLY
AND VOLUNTARILY WAIVES ANY RIGHT Waiver. No party's failure or delay in exercising
TO A TRIAL BY JURY IN ANY SUCH SUIT, any right or remedy under this Agreement will
ACTION OR PROCEEDING. operate as a waiver of such right or remedy, nor
shall any waiver by either party of any breach of
Miscellaneous the other party's obligations under this
Agreement operate as a waiver of any prior,
No Extension of Credit Except as expressly current or subsequent breach. No waiver will be
provided in the applicable Terms and effective unless made in writing.
Conditions, nothing in this Agreement requires
us to extend any credit of any type, even if we Subsidiaries
have done so in the past.
Joinder. By executing this Agreement,
Notices. Except as otherwise specifically Customer, each"Subsidiary"of Customer listed
provided in the Terms and Conditions or User below (if any), and we agree that each such
Guide with respect to a particular Service, all Subsidiary shall have all of the rights and
notices and other communications by either party obligations of, and shall for all purposes be a
relating to this Agreement or the Services shall ply under this Agreement as "Customer."
be given promptly in writing or electronic Each Subsidiary will be deemed to make to us all
medium and shall be effective either on the date representations and warranties of, and will be
it is actually received or five(5)days after it is subject to and undertake all obligations as
mailed, sent by courier, transmitted or posted, "Customer" under this Agreement and the
whichever is earlier. The address to which all Related Agreements. Additional Subsidiaries
notices(other than notices given electronically as can be added through an addendum to this
permitted in this Agreement) concerning this Agreement in the form required by us and
Agreement or a Service shall be sent to executed by Customer and us.
Customer is that address we have in our records
with respect to this Agreement or that Service, Representation. Customer represents and
respectively. The address for notice to us will be warrants to us that Customer (or another
as we specify to Customer in writing. Subsidiary) owns a majority of the outstanding
shares or equity interests of each such
Counterparts. The Agreement may be executed Subsidiary.
in counterparts, each of which shall be deemed
an original and all of which shall constitute a Responsibility. Each Subsidiary acknowledges
single instrument and agrees that it is responsible for the payment
of fees or maintenance of required balances for
Severability. If performance of Services in the Services that it receives from us,and for all
accordance with the terms of this Agreement obligations and liabilities it incurs.
would result in a violation of any Applicable
Law or governmental policy to which we are Guarantee. Customer unconditionally guarantees
subject, then this Agreement and any Related to us the full and prompt payment and
Agreement shall be deemed amended to the performance by the Subsidiaries of all
degree necessary to comply with such obligations they or any of them may incur under
Applicable Law, and we shall incur no liability this Agreement or the Related Agreements,
10
H)
including in any case that any payment to us by a adequate consideration between and among the
Subsidiary is set aside, rescinded or otherwise members of the Group and have been duly
required to be returned in any bankruptcy or authorized by all necessary entity and governing
similar proceeding. body action on the part of each member of the
Group. These representations and warranties
Group. Customer represents and warrants to us shall be continuing while we are providing the
that all transfers and commingling of funds, if Service. Customer agrees to provide to us upon
any, between or among Customer and any our reasonable request adequate documentary
Subsidiary whether or not listed(the"Group")in evidence of such authorization from each
connection with any Service are supported by member of the Group.
****SIGNATURE PAGE FOLLOWS****
II
) )
SIGNATURE PAGE TO MASTER TREASURY MANAGEMENT AGREEMENT
WITNESS,the parties have caused this Agreement to be executed by their respective duly authorized
representatives.
CUSTOMER NAME: FIFTH THIRD BANK
0_,4y or CI e,rr..o By:áL4 ),c. ' A-
Tax ID:
5C1'44000 9O y
4 / Print name: Zar-c-4-4-, C -is 04.
/ J / Print title:
Print name: / �'`'� �' DATE: �� -3//
Print title: tz r" t CI.rmo y
y
NOTE: if required by resolution,second officer of
Customer must sign below
By
Print name:
Print title:
Signing as a duly authorized officer or agent of each
of the Subsidiaries listed below:
By:
Print name:
Print title:
This Agreement includes the following Subsidiaries:
Subsidiary Name: Tax ID No.:
7M Legit 09 2014
7809625
12
L) 0
FIFTH THIRD BANK
Pricing Amendment
This Pricing Amendment("Amendment') is an amendment to the Master Treasury Management
Agreement (the "Master Agreement") currently in effect between the "Customer" identified on
the Signature Page below("you") and Fifth Third Bank ("we" or "us). All capitalized terms not
otherwise defined in this Pricing Amendment have the meaning provided in the Master
Agreement.
1. Account Fees. This Pricing Amendment establishes the Account Fees for the Services
we provide you pursuant to the Master Agreement or otherwise. The Fee Schedule attached to
this Amendment shall govern for the term commencing on the "Effective Date"specified below
and ending on the "Expiration Date"specified below. This Amendment is not valid unless the
Fee Schedule is attached at the time of signing this Amendment On the day following the
Expiration Date, the Account Fees shall adjust to the then rates offered by us to customers with
similar credit and relationship characteristics unless you and we have otherwise expressly agreed
in writing.
2. )Effect. This Amendment amends the Master Agreement solely for purposes of
establishing the Account Fees for you during the Term. All provisions of the Master Agreement
not inconsistent with this Amendment remain unchanged and in full force and effect, and are
ratified and confirmed In the case of any conflict between the provisions in the Master
Agreement and this Amendment,the provisions of this Amendment shall prevail.
3. Miscellaneous. We represent and warrant to each other that this Amendment has been
authorized by all necessary corporate or other entity action, and that the person signing this
Amendment on our behalf is duly authorized to do so. This Amendment evidences the entire
agreement and understanding between us with respect to the subject matter of this Amendment
and supersedes all prior agreements and discussions between us with respect to that subject
matter.
EXECUTED THIS // 3 - // .
Term of this Amendment: From /1- 3-/s/ ("Effective Date")to
// - 3 -/7 ("Expiration Date")
FIFTH THIRD BANK CUSTOMER Co '4-y01 Gt n.0.,t
ad,.
By: By: i
Print name: •7'41:f ix /
"'i. //.4QPrint name: ( 71/) 4 , 46h
Print title: V P Print title: Mayor PT VI e cvio df FL
190315.1
Fah Third and Fifth h Third Bank are registered service marks of Fifth Third Bancorp. Member FDIC
,-)
FEE SCHEDULE
(Attached)
This Amendment is NOT valid unless the Account Fee information is attached
TM Legal 11 2014
7519282
1903151
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