IN WRITING FROM THE OTHER PARTY, WHICH
REQUEST SHALL BE ACCOMPANIED BY WRITTEN REPORTS PREPARED BY TWO (2) INDEPENDENT
ADVISERS, INCLUDING INSURANCE BROKERS, OF RECOGNIZED INTERNATIONAL STANDING
CERTIFYING THAT SUCH INSURANCE IS NOT REASONABLY AVAILABLE IN THE COMMERCIAL
INSURANCE MARKET (AND, IN ANY CASE WHERE THE REQUIRED AMOUNT IS NOT SO
AVAILABLE, EXPLAINING IN DETAIL THE BASIS FOR SUCH CONCLUSIONS), SUCH INSURANCE
ADVISERS AND THE FORM AND SUBSTANCE OF SUCH REPORTS TO BE REASONABLY ACCEPTABLE
TO THE OTHER PARTY.
ANY SUCH WAIVER SHALL BE EFFECTIVE ONLY SO LONG AS SUCH
INSURANCE SHALL NOT BE AVAILABLE AND COMMERCIALLY FEASIBLE IN THE COMMERCIAL
INSURANCE MARKET.
9.2
IRREVOCABLE STANDBY LETTER OF CREDIT.
ON OR
BEFORE THE ISSUANCE OF THE NOTICE TO PROCEED IN ACCORDANCE WITH SECTION 5.2B,
CONTRACTOR SHALL DELIVER TO OWNER THE FOLLOWING: (I) AN IRREVOCABLE STANDBY
LETTER OF CREDIT IN THE AMOUNT OF TEN PERCENT (10%) OF THE CONTRACT PRICE
("PERFORMANCE LETTER OF CREDIT") AND (II) AN IRREVOCABLE STANDBY LETTER OF
CREDIT IN THE AMOUNT OF FIVE PERCENT (5%) OF THE CONTRACT PRICE ("PAYMENT LETTER
OF CREDIT").
AS USED HEREIN, "LETTER OF CREDIT" SHALL MEAN, AS APPLICABLE,
EITHER THE PERFORMANCE LETTER OF CREDIT OR THE PAYMENT LETTER OF CREDIT.
EACH
LETTER OF CREDIT SHALL NAME OWNER AS BENEFICIARY, SHALL BE IN THE RELEVANT FORM
SET FORTH IN ATTACHMENT R, AND SHALL BE ISSUED AND CONFIRMED BY A COMMERCIAL
BANK IN THE UNITED STATES OF AMERICA WITH A LONG-TERM RATING OF AT LEAST A- BY
STANDARD & POOR'S AND AT LEAST A3 BY MOODY'S INVESTORS SERVICE.
IF AT ANY TIME
THE RATING OF THE COMMERCIAL BANK THAT ISSUED THE APPLICABLE LETTER OF CREDIT
FALLS BELOW EITHER OF SUCH RATINGS, CONTRACTOR SHALL REPLACE SUCH LETTER OF
CREDIT WITHIN TEN (10) DAYS WITH AN EQUIVALENT INSTRUMENT ISSUED BY A COMMERCIAL
BANK IN THE UNITED STATES OF AMERICA MEETING SUCH RATING REQUIREMENTS.
OWNER
SHALL HAVE THE RIGHT TO DRAW DOWN ON OR COLLECT AGAINST EITHER LETTER OF CREDIT
UPON OWNER'S DEMAND IN THE EVENT OF THE FOLLOWING: (I) THE OWING BY CONTRACTOR
TO OWNER UNDER THIS AGREEMENT FOR LIQUIDATED DAMAGES OR ANY OTHER LIABILITIES,
DAMAGES, LOSSES, COSTS OR EXPENSES FOR WHICH CONTRACTOR IS LIABLE UNDER THIS
AGREEMENT; AND (II) OWNER HAS PROVIDED NOTICE TO CONTRACTOR IN ACCORDANCE WITH
SECTION 7.8C, EXCEPT SUCH NOTICE IS NOT REQUIRED WHERE CONTRACTOR DOES NOT PAY
LIQUIDATED DAMAGES AS SET FORTH IN SECTION 20.3C.
THE AMOUNT DRAWN ON A LETTER
OF CREDIT SHALL NOT BE GREATER THAN THE AMOUNT THAT OWNER, AT THE TIME OF THE
DRAWING, REASONABLY ESTIMATES IS OWED IT UNDER THIS AGREEMENT FOR LIQUIDATED
DAMAGES, LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES OR IS NECESSARY TO
REMEDY THE BREACH OF THIS AGREEMENT.
IN ADDITION, SHOULD THE ISSUING COMMERCIAL
BANK NOTIFY OWNER AND CONTRACTOR PURSUANT TO THE TERMS OF EITHER LETTER OF
CREDIT THAT IT HAS DECIDED NOT TO EXTEND THE APPLICABLE LETTER OF CREDIT BEYOND
THE THEN CURRENT EXPIRATION DATE, OWNER SHALL ALSO HAVE THE RIGHT TO DRAW DOWN
ON OR COLLECT AGAINST THE APPLICABLE LETTER OF CREDIT