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HomeMy WebLinkAboutLetter of Credit Irrevocable Standby Letter of Credit Beneficiary: CITY OF BOZEMAN May 25,2022 121 N. ROUSE AVE. BOZEMAN,MT 59715 Issuance. At the request and for the account of Eastlake Professional Center, LLC ("Applicant"), First Security Bank, Division of Glacier Bank("Issuer") issue this irrevocable independent standby letter of credit number 3601220013494 ("Standby") in favor of the City of Bozeman, 121 North Rouse Avenue,Bozeman,MT 59715 (`Beneficiary") in the maximum aggregate amount of USD$1,324,006.00. Undertaking. Issuer undertakes to Beneficiary to pay Beneficiary's demand for payment for an amount available under this Standby and in the form of Attachment A (Payment Demand)or Attachment B (Payment Demand after Notice of Non-extension), completed as indicated and presented to Issuer at the following place for presentation: 208 E Main St Bozeman,MT 59715, at or before the close of business on the expiration date. Overdrawing. If a demand exceeds the amount available, but the presentation otherwise complies, Issuer undertakes to pay the amount available. Expiration. The expiration date of this Standby is May 25,2023. Automatic Extension. The expiration date of this Standby shall be automatically extended for successive one-year periods, unless 90 or more calendar days before the then current expiration date Issuer gives written notice to Beneficiary that Issuer elects not to extend the expiration date. Issuer's written notice must be sent by certified mail to Beneficiary's above-stated address and to the attention of the City Clerk 90 or more calendar days before the then current expiration date. The expiration date is not subject to automatic extension beyond May 25,2027,and any pending automatic one-year extension shall be ineffective beyond that date. Payment. Payment against a complying presentation shall be made within three business days after presentation at the place for presentation or by wire transfer to a duly requested account of Beneficiary. Choice of Law. This Standby shall be governed and construed in accordance with the laws of the State of Montana without regard to conflict of law provisions. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located within Gallatin County, Montana. Issuer's Charges and Fees. Issuer's charges and fees for issuing, amending, or honoring this Standby are for Applicant's account and shall not be deducted from any payment Issuer makes under this Standby. Communications. Communications, other than payment demands and notices of non- extension, may be made between Issuer and Beneficiary by first class mail,telephone,telefax, or electronic communications. First Security Ba ,Div of Glaci ank Ka i Ryti, cutive ice President 1111111111111111111111111111111111111111111111111111111111111111111111111111 *003601220013494%1470%05252022%#######ECB4841%06* IRREVOCABLE LETTER OF CREDIT Borrower: EASTLAKE PROFESSIONAL CENTER, LLC Lender: First Security Bank, Division of Glacier Bank 5073 PATTERSON ROAD Bozeman Downtown FSB Branch BOZEMAN, MT 59718 208 E.Main St PO BOX 910 Bozeman, MT 59715 Beneficiary: CITY OF BOZEMAN 121 N ROUSE AVE BOZEMAN, MT 59715 NO.: 3601220013494 EXPIRATION DATE. This letter of credit shall expire upon the earlier of the close of business on 05-25-2023 and all drafts and accompanying statements or documents must be presented to Lender on or before that time, or the day that Lender honors a draw under which the full amount of this Letter of Credit has been drawn (the "Expiration Date"). AMOUNT OF CREDIT. Lender hereby establishes at the request and for the account of Borrower, an Irrevocable Letter of Credit in favor of Beneficiary for a sum of One Million Three Hundred Twenty-four Thousand Six & 00/100 Dollars ($1,324,006.00) (the "Letter of Credit"). These funds shall be made available to Beneficiary upon Lender's receipt from Beneficiary of sight drafts drawn on Lender at Lender's address indicated above (or other such address that Lender may provide Beneficiary in writing) during regular business hours and accompanied by the signed written statements or documents indicated below. WARNING TO BENEFICIARY: PLEASE EXAMINE THIS LETTER OF CREDIT AT ONCE. IF YOU FEEL UNABLE TO MEET ANY OF ITS REQUIREMENTS, EITHER SINGLY OR TOGETHER, YOU SHOULD CONTACT BORROWER IMMEDIATELY TO SEE IF THE LETTER OF CREDIT CAN BE AMENDED. OTHERWISE, YOU WILL RISK LOSING PAYMENT UNDER THIS LETTER OF CREDIT FOR FAILURE TO COMPLY STRICTLY WITH ITS TERMS AS WRITTEN. DRAFT TERMS AND CONDITIONS. Lender shall honor drafts submitted by Beneficiary under the following terms and conditions: Upon Lender's honor of such drafts, Lender shall be fully discharged of Lender's obligations under this Letter of Credit and shall not be obligated to make any further payments under this Letter of Credit once the full amount of credit available under this Letter of Credit has been drawn. Beneficiary shall have no recourse against Lender for any amount paid under this Letter of Credit once Lender has honored any draft or other document which complies strictly with this Letter of Credit, and which on its face appears otherwise in order but which is signed, issued, or presented by a party or under the name of a party purporting to act for Beneficiary, purporting to claim through Beneficiary, or posing as Beneficiary without Beneficiary's authorization. By paying an amount demanded in accordance with this Letter of Credit, Lender makes no representation as to the correctness of the amount demanded and Lender shall not be liable to Beneficiary, or any other person, for any amount paid or disbursed for any reason whatsoever, including, without limitation, any nonapplication or misapplication by Beneficiary of the proceeds of such payment. By presenting upon Lender or a confirming bank, Beneficiary certifies that Beneficiary has not and will not present upon the other, unless and until Beneficiary meets with dishonor. Beneficiary promises to return to Lender any funds received by Beneficiary in excess of the Letter of Credit's maximum drawing amount. USE RESTRICTIONS. All drafts must be marked "DRAWN UNDER First Security Bank, Division of Glacier Bank IRREVOCABLE LETTER OF CREDIT NO. 3601220013494 DATED 05-25-2022," and the amount of each draft shall be marked on the draft. Only Beneficiary may complete a draft and accompanying statements or documents required by this Letter of Credit and make a draw under this Letter of Credit. This original Letter of Credit must accompany any draft drawn hereunder. Partial draws are not permitted under this Letter of Credit. PERMITTED TRANSFEREES. The right to draw under this Letter of Credit shall be nontransferable, except for: A. A transfer (in its entirety, but not in part) by direct operation of law to the administrator, executor, bankruptcy trustee, receiver, liquidator, successor, or other representative at law of the original Beneficiary; and B. The first immediate transfer (in its entirety, but not in part) by such legal representative to a third party after express approval of a governmental body (judicial, administrative, or executive). TRANSFEREES REQUIRED DOCUMENTS. When the presenter is a permitted transferee (i) by operation of law or (ii) a third party receiving transfer from a legal representative, as described above, the documents required for a draw shall include a certified copy of the one or more documents which show the presenter's authority to claim through or to act with authority for the original Beneficiary. COMPLIANCE BURDEN. Lender is not responsible for any impossibility or other difficulty in achieving strict compliance with the requirements of this Letter of Credit precisely as written. Beneficiary understands and acknowledges: (i) that unless and until the present wording of this Letter of Credit is amended with Lender's prior written consent, the burden of complying strictly with such wording remains solely upon Beneficiary, and (ii) that Lender is relying upon the lack of such amendment as constituting Beneficiary's initial and continued approval of such wording. NON-SEVERABILITY. If any aspect of this Letter of Credit is ever declared unenforceable for any reason by any court or governmental body having jurisdiction, Lender's entire engagement under this Letter of Credit shall be deemed null and void ab initio, and both Lender and Beneficiary shall be restored to the position each would have occupied with all rights available as though this Letter of Credit had never occurred. This non-severability provision shall override all other provisions in this Letter of Credit, no matter where such provision appears within this Letter of Credit. GOVERNING LAW. This Agreement will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the State of Montana without regard to its conflicts of law provisions, and except to the extent such laws are inconsistent with the 2007 Revision of the Uniform Customs and Practice for Documentary Credits of the International Chamber of Commerce, ICC Publication No. 600. This Agreement has been accepted by Lender in the State of Montana. EXPIRATION. Lender hereby agrees with Beneficiary that drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored if presented to Lender on or before the Expiration Date unless otherwise provided for above.