IRREVOCABLE STANDBY LETTER OF CREDIT
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LETTER OF CREDIT NUMBER:
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DATE:
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BENEFICIARY: Borough of Belmar, N.J. (from now on referred to
as "Borough")
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AMOUNT: $
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INITIAL EXPIRATION DATE:
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DEVELOPER:
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(From now on referred as "Developer")
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ISSUING FINANCIAL INSTITUTION AND ADDRESS:
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(From now on referred as "Bank")
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The Bank submits to the Borough this Irrevocable Standby Letter
of Credit (from now on referred to as "Letter of Credit") in the amount
of $__________, representing the performance guarantee required under
the provisions of the Land Use Ordinances of the Borough of __________,
to guarantee installation and completion of the improvements required
by the Borough Planning Board or Zoning Board of Adjustment (from
now on referred to in either case as the "Board") in connection with
the following development:
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The improvements required to be completed are set forth in the
Borough Engineer's estimates dated ______________, 20___ attached
to this Letter of Credit and incorporated herein.
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The Bank hereby agrees with respect to this Letter of Credit
as follows:
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1.
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If:
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a)
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The improvements required by the Board have not been installed
in accordance with the development approval and the attached Engineer's
estimates, and
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b)
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The improvements have not been accepted by the Borough by a
duly adopted Resolution releasing this Letter of Credit, or
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c)
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The Developer has failed to perform as required by the Developer's
Agreement entered into between the Developer and the Borough, which
Agreement shall be deemed incorporated herein and a part of this Letter
of Credit;
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Then, the Bank shall release funds under this Letter of Credit
to the Borough, pursuant to Paragraph 3 hereafter, for:
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a)
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All costs of having the improvements installed, and upon receipt
of the proceeds under this Letter of Credit, the Borough shall install
or have such improvements installed as may be required, and/or
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b)
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All costs and/or damages resulting from the Developer not having
complied with the Developer's Agreement, and/or
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c)
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All Borough costs (including reasonable attorney's fees and
expert witness' fees) of any litigation brought as a result of the
Developer's failure to have the improvements installed and approved
or as a result of Developer having failed to perform pursuant to the
Developer's Agreement.
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It is expressly understood that the liability of the Bank is
limited to the draw down requirements as explained in this Letter
of Credit hereafter.
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2.
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This Letter of Credit shall be valid for a period commencing
on the date set forth above and expiring on the initial expiration
date set forth above, except as that initial expiration date may be
extended as explained hereafter. If the required improvements have
not been completed, approved and accepted at least 60 days before
the initial expiration date set forth above, then the Borough shall
have the right to draw any amount which is then due up to the full
amount of this Letter of Credit. This Letter of Credit shall be automatically
extended, without amendment, for periods of one year each from the
initial, or any future expiration date, unless 60 days prior to the
expiration date, the Bank notifies the Borough Clerk and the Borough
Attorney by certified mail, return receipt requested, that the Bank
elects not to extend. Upon receipt of such notice, the Borough may
draw under this Letter of Credit by stating in writing that the Letter
has not been renewed or extended and by the Borough complying with
the provisions of Paragraph 3 hereafter.
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The Developer, until a replacement Irrevocable Standby Letter
of Credit in this form has been deposited with the Borough, will cease
and desist any and all work on the development, unless the required
improvements under the approval, this Letter of Credit and the Developer's
Agreement have been completed and approved by the Borough Engineer
and Borough Council. In the event any occupancy is taking place in
any improvements in the development, such occupancy shall then be
deemed illegal, shall cease and desist. The provisions of this subsection
apply only to the Developer.
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3.
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In all circumstances, the release of money to the Borough under
this Letter of Credit (sometimes referred to as a "draw" or "draw
down") shall be accomplished by a written demand setting forth the
Developer's failure to perform and signed by one of the following:
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a)
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Borough Engineer
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b)
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Borough Clerk
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c)
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Mayor
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d)
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Official authorized by written Resolution, duly adopted by the
Borough Council, to act in the place of the Borough Engineer, Borough
Clerk or Mayor
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In addition to the written demand, the Borough shall present:
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a)
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This original Letter of Credit if demand is made for the full
amount, or a copy of this Letter of Credit if the demand is for less
than the full amount, and
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b)
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A certified true copy of the appointing Resolution if the demand
is executed by a Borough official other than the Borough Engineer,
Borough Clerk or Borough Administrator.
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The written demand and any required accompanying documents shall
be served on the Bank by either of the following two methods:
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a)
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Certified Mail, Return Receipt Requested, to the Bank at the
address indicated on this Letter of Credit by depositing the documents
in the United States mails, postage prepaid, no later than three days
before the expiration date, either initial or as extended, of this
Letter of Credit; or
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b)
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Personal presentation of the documents by any Borough representative
at the Bank at the address indicated on this Letter of Credit on or
before the expiration date, either initial or as extended.
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4.
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The Bank and Developer hereby irrevocably bind themselves, their
heirs, successors, assigns and representatives to the full and faithful
performance of the obligations contained in this Letter of Credit
until all conditions for release as provided in this Letter of Credit
are complied with. It is expressly understood that the obligation
of the Bank shall terminate upon full release of this Letter of Credit
by the Borough.
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5.
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The use, i.e. draw down, of all or part of this Letter of Credit
shall in no way be deemed to constitute a waiver of any other right
the Borough may have under law or other documents delivered to the
Borough by the undersigned Developer. It is expressly understood that
the provisions of this subsection shall not apply to the Bank.
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DEVELOPER:
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ATTEST: (Affix Seal)
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____________________________ BY:
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Secretary President
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DATED DATED:
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FINANCIAL INSTITUTION:
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ATTEST: (Affix Seal)
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__________ BY:
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Secretary President
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DATED: DATED:
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STATE OF NEW JERSEY:
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ss
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COUNTY OF
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I certify that on __________, 20_____, personally came before
me and this person acknowledged under oath, to my satisfaction, that:
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(a) This person is the secretary of the financial institution
in the attached documents;
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(b) This person is the attesting witness to the signing of this
document by the proper corporate officer who is __________, the President
of the financial institutions;
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(c) This document was signed and delivered by the corporation
as its voluntary act duly authorized by a proper Resolution of its
Board of Directors;
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(d) This person knows the proper seal of the corporation which
was affixed to this document; and
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(e) This person signed this proof to attest to the truth of
these facts.
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Secretary
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Sworn and Subscribed to before me this day of, 20___.
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NOTARY PUBLIC OF NEW JERSEY
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My Commission Expires
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(Impress Seal)
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IF CORPORATE DEVELOPER
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STATE OF NEW JERSEY:
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ss
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COUNTY OF:
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I certify that on __________, 20_____, personally came before
me and this person acknowledged under oath, to my satisfaction, that:
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(a) This person is the secretary of the Developer named in the
attached document;
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(b) This person is the attesting witness to the signing of this
document by the proper corporate officer who is _____ the President
of the Developer;
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(c) This document was signed and delivered by the corporation
as its voluntary act duly authorized by a proper resolution of its
Board of Directors;
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(d) This person knows the proper seal of the corporation which
was affixed to this document; and
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(e) This person signed this proof to attest to the truth of
these facts.
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Secretary
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Sworn and Subscribed to before me this _____ day of _____, 20___.
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NOTARY PUBLIC OF NEW JERSEY
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My Commission Expires
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(Impress Seal)
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IF INDIVIDUAL DEVELOPER
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STATE OF NEW JERSEY:
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ss
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COUNTY OF:
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I certify that on _______________________, 20_____, personally
came before me and this person acknowledged under oath, to my satisfaction,
that:
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(a) This person is named in and personally signed
this document; and
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(b) This person signed, sealed and delivered this
document as his act and deed.
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Sworn and Subscribed to before me this _____ day of ___________,
20___.
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NOTARY PUBLIC OF NEW JERSEY
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My Commission Expires
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(Impress Seal)
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