Exhibit 10.14
LETTER OF CREDIT
REIMBURSEMENT
AND SECURITY
AGREEMENT
(Stand-by Letter of
Credit)
In consideration of the issuance, at
the request of the Account Parties of the Credit in accordance with
the terms of any Letter of Credit Application as prepared by the
Account Parties and presented to the Issuer, the Account Parties
hereby represent, warrant and agree as follows:
1. DEFINITIONS
: The following
definitions shall apply herein:
“ACCOUNT
PARTIES” is defined
in Paragraph 13 below.
“BANK
LIABILITIES” is
defined in Paragraph 8 below.
“BLOCKED
ACCOUNT” means that
certain deposit account # 35698800002667 of the Account Parties
held at KeyBank National Association.
“CREDIT”
means the Letter of Credit described
in the Letter of Credit Application issued by the Issuer in
accordance with the instructions received by the Issuer, the terms
of which are made a part hereof and approved by the Account
Parties, as amended from time to time.
“DOCUMENTS” mean any paper, whether negotiable or
non-negotiable, including, but not limited to, all documents and
certificates accompanying or relating to Drafts or demands drawn
under the Credit.
“DRAFTS”
means any documentary draft drawn
under and conditioned upon presentation of documents required by
the Credit, including but not limited to such drafts accepted by
the Issuer.
“ISP”
means the International Standby
Practices adopted by the International Chamber of Commerce in force
at the time of issuance of the Credit, as the same may be
thereafter amended or replaced.
“ISSUER”
means any KeyCorp affiliate as
issuer of the Credit.
“LETTER OF CREDIT
APPLICATION” means
any request submitted by the Account Parties to the Issuer (in
written or electronic form) for the issuance of the Credit on the
account of the Account Parties.
“PLEDGE AND CONTROL
AGREEMENT” means
that certain Blocked Account Pledge and Control Agreement, dated as
of February 23, 2009, by and among the Account Parties,
KeyBank National Association, as secured party, and KeyBank
National Association, as depository bank, as the same may from time
to time be amended, restated or otherwise modified.
“PROPERTY”
includes goods, merchandise,
securities, funds, choses in action and any and all other forms of
property, whether real, personal or mixed, and any right or
interest therein; Property in Issuer’s possession shall
include Property in possession of anyone for Issuer in any manner
whatsoever.
“REIMBURSEMENT
OBLIGATIONS” means
the obligations of the Account Parties to reimburse the Issuer for
all payments with respect to any Draft of the Credit and to pay all
other liabilities arising under this Agreement.
“REQUESTS”
means any written or oral
instruction that the Issuer honors on the Account Parties’
request to issue, amend or pay the Credit for the account and risk
of the Account Parties communicated to the Issuer by telephone,
telegraph, facsimile transmission or other electronic
means.
“UNIFORM
CUSTOMS” means the
Uniform Customs and Practice for Documentary Credits adopted by the
International Chamber of Commerce in force at the time of issuance
of the Credit, as the same may be thereafter amended or
replaced.
2. PAYMENT TERMS
: The Issuer may accept
or pay any Draft presented to Issuer, regardless of when drawn and
whether or not negotiated, if such Draft, the other required
Documents, and any transmittal advice are dated on or before the
expiration date of the Credit, which expiration date shall be
expressly stated in the Credit and not extended in reference to any
action or inaction in any other agreement. Except as instruction
may be given by any of the Account Parties in writing expressly to
the contrary with regard to, and prior to, the issuance of the
Credit, Issuer may honor, as complying with the terms of the
Credit, any instrument or other Documents otherwise in order signed
or issued by an administrator, executor, trustee in bankruptcy,
debtor in possession assignee for the benefit of creditors,
liquidator, receiver, conservator, or other legal representative of
the party authorized under the Credit to draw or issue such
instruments or other Documents. The Account Parties jointly and
severally, agree to reimburse Issuer at its main office on demand
in United States Dollars: (A) as to Drafts payable in United
States Dollars drawn or to be drawn under the Credit, the amount
paid or payable thereon, (B) as to such Drafts payable in
currency other than United States Dollars, the equivalent of the
amount paid in United States Dollars at Issuer’s selling rate
of exchange in the currency in which such Draft is drawn,
(C) any and all other expenses or charges incurred by Issuer
in issuing or effecting payment of the Credits, for perfecting or
maintaining, and insuring the Property, for perfecting or
maintaining the Blocked Account, and for enforcing Issuer’s
rights and remedies under this Agreement, (D) interest from
the date of such payment at a rate per annum equal to the Prime
Rate of KeyBank National Association in effect from time to time,
upon all unpaid Drafts and other obligations hereunder until paid
in full, but in no event higher than the highest lawful rate
permitted by law, and (E) such commission, issuance, letter of
credit commitment fees, draw fees, and negotiation fees at such
rate as Issuer may reasonably determine from time to time in
accordance with its customary practices. Without prior notice or
demand Issuer is authorized to charge the Blocked Account or any
other deposit account maintained by any of the Account Parties with
Issuer or any other KeyCorp affiliate for the amount of any Draft
and all other reimbursement obligations hereunder.
3. INCREASED COSTS
: If any law or
regulation, or change therein, or interpretation, administration or
enforcement thereof, by any person, agency or court shall
(A) impose upon or modify any reserve or special deposit
requirement, insurance assessment or other requirement against or
affecting the Credit, or (B) impose any tax, other than tax
imposed upon the income of Issuer, or withholding of any kind, or
(C) impose or modify any capital requirement, impose any
condition upon, supplement to or increase of any kind to
Issuer’s capital base, and the result of any such event
increases the cost or decreases the benefit to Issuer of issuing or
maintaining the Credit, then the Account Parties shall pay to
Issuer all such additional amounts upon request in an amount
necessary to compensate Issuer for all such increased costs and
decreased benefits. Upon
2
written request, Issuer will certify such
amounts. Issuer’s certification shall be conclusive absent
manifest error.
4 . REQUESTS
: Requests shall be made
by those persons purportedly authorized by any of the Account
Parties. Issuer shall not be obligated to identify or confirm such
persons beyond the use of the authorized name or code
identification if any is established by Issuer or unless the
Account Parties provide Issuer from time to time a written list of
all such authorized representatives. All requests will be confirmed
by Issuer in writing by sending the Account Parties a copy of the
Documents authorized or requested by the Account Parties. The
Account Parties will promptly report all discrepancies in such
Documents upon their receipt of such confirmation. Issuer may, but
shall not be obligated to, assign a unique code number or word and
require such code to be used by the Account Parties, and thereafter
all further requests shall refer to such code. Issuer shall not be
liable for any loss which the Account Parties may incur as a result
of Issuer’s compliance with any request in accordance with
this Agreement even if unauthorized, provided that Issuer acted in
good faith and exercised reasonable care.
5 . MODIFICATION OF THE CREDIT
: Any amendment to the terms of the Credit may be
authorized by those persons purportedly authorized by any one of
the Account Parties without notice to any other of the Account
Parties, but any increase in the amount of the Credit or extension
of the expiration date under the Credit for presentation of Drafts
or Documents shall only be approved by those persons purportedly
authorized by all of the Account Parties. In any such event this
Agreement shall be binding upon all of the Account Parties with
regard to the Credit so increased or otherwise amended, to Drafts,
Documents and Property covered thereby, and to any action taken by
Issuer and any of Issuer’s correspondents in accordance with
such extension, increase or other modification.
6 . LIMITED LIABILITY : Neither Issuer nor Issuer’s correspondent
shall be responsible: (A) for the validity, sufficiency, or
genuineness of
