Lichoulas, Trustee of Appleton Trust (“Owner”), and Mark Equipment Corp., a Massachusetts corporation (the “Contractor”), as the same has been amended, if at all, pursuant to the written agreement by and between all parties thereto, because (a) the Owner is entitled to terminate the Demolition Contract pursuant to the terms contained in Section 11.2 of the General Conditions of the Demolition Contract after any applicable notice and cure period (regardless of whether Owner elects to terminate the Demolition Contract), and (b) the Owner remains entitled to terminate the Demolition Contract pursuant to the said Section 11.2 after the Municipality has given Owner and Contractor five (5) additional business days’ prior written notice of its intent to draw upon the Letters of Credit (as defined in the Agreement). 101, that the Municipality is authorized to draw upon said Letter of Credit pursuant to the terms of that certain Tri-Party Agreement (the “Agreement”) dated Decemby and among the Municipality, James T. The undersigned, being an authorized officer and/or representative of the City of Lowell (the “Municipality”), hereby certifies with regard to Middlesex Bank & Trust Company Standby Letter of Credit No. The Certification was required to state the following: The First Letter of Credit further required the City to present the following documents with the draft: an original copy of the First Letter of Credit and a statement/certificate (the “Certification”) on City letterhead signed by an authorized officer/representative of the City. To obtain payment under the letter of credit, the City was required to present a draft, indicating the name of the issuing bank and the letter of credit number, at the Bank’s Newton office.
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590, and shall, as to matters not governed by ISP98, be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. The First Letter of Credit contained the following provision:Įxcept as otherwise expressly stated herein, this letter of credit is subject to the International Standby Practices (“ISP98″), the International Chamber of Commerce, Publication No. The expiration date of the First Letter of Credit was July 15, 2001. On December 6, 2000, pursuant to the terms of the Tri-Party Agreement, the Bank issued an Irrevocable Standby Letter of Credit, No.101 (“First Letter of Credit”), naming the City as beneficiary, for the account of Mark, in an aggregate amount not to exceed $200,000. To satisfy this condition, Mark, the Trust, and the City entered into a “Tri-Party Agreement”, pursuant to which Mark and the Trust promised to obtain letters of credit naming the City as beneficiary for the amount of $200,000. As a condition to the issuance of the permit, Mark was required to provide a bond or other means of securing performance of the contract. In order to proceed with the demolition, the City of Lowell (“City”) required Mark and Lichoulas to obtain a permit. On October 25, 2000, Mark and the defendant James Lichoulas (“Lichoulas”), a trustee of the Appleton Trust (“Trust”), entered into a contract pursuant to which Mark was to demolish certain buildings and structures owned by the Trust and located at 217 Jackson Street in Lowell, Massachusetts.
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The undisputed facts as revealed by the summary judgment record are as follows. After hearing, and upon review and consideration, Mark’s motion is DENIED for the following reasons. This matter is before this Court on Mark’s Motion for Partial Summary Judgment on Count I of its counterclaim which alleges breach of contract by the Bank. The plaintiff, Middlesex Bank & Trust Company (“Bank”), brings this action to obtain an injunction prohibiting it from honoring a demand for payment made pursuant to a standby letter of credit that it issued on behalf of the defendant Mark Equipment Corporation (“Mark”). MEMORANDUM OF DECISION AND ORDER ON DEFENDANT MARK EQUIPMENT CORPORATION’S MOTION FOR PARTIAL SUMMARY JUDGMENT