Court Action or Other Legal Processes. (a) Notwithstanding any other law to the contrary, the liability of NYSERDA to make an interest payment to a Contractor pursuant to this Exhibit shall not extend beyond the date of a notice of intention to file a claim, the date of a notice of a claim, or the date commencing a legal action for the payment of such interest, whichever occurs first. (b) With respect to the court action or other legal processes referred to in subdivision (a) of this section, any interest obligation incurred by NYSERDA after the date specified therein pursuant to any provision of law other than Public Authorities Law Section 2880 shall be determined as prescribed by such separate provision of law, shall be paid as directed by the court, and shall be paid from any source of funds available for that purpose. EXHIBIT D LETTER OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. DATE: , 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [CONTRACTOR] [CONTRACTOR’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: IN YOUR FAVOR FOR THE ACCOUNT OF 1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND 2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 2:00 P.M., NEW YORK TIME, ON THE NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER DATE .” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. [NAME AND ADDRESS OF ISSUING BANK] AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit D - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. Date of Letter of Credit: Date of Draft: FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. Dollars (U.S. $ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Contractor]. Drawn under [Name of Bank] Letter of Credit No. . Payment by the bank pursuant to this drawing shall be made to , ABA Number , Account Number , Attention: , Re: . To: [Issuing Bank] [Address] Attention: As Beneficiary By: [Name and Title] Annex B to Exhibit D - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Contractor, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. (“Agreement) in the aggregate amount of $ , (“Letter of Credit Amount”) either [check the appropriate space]: The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.
Appears in 3 contracts
Samples: Bulk Storage Incentive Standard Agreement, Bulk Storage Incentive Standard Agreement, Bulk Storage Incentive Standard Agreement
Court Action or Other Legal Processes. (a) Notwithstanding any other law to the contrary, the liability of NYSERDA to make an interest payment to a Contractor pursuant to this Exhibit shall not extend beyond the date of a notice of intention to file a claim, the date of a notice of a claim, or the date commencing a legal action for the payment of such interest, whichever occurs first.
(b) With respect to the court action or other legal processes referred to in subdivision (a) of this section, any interest obligation incurred by NYSERDA after the date specified therein pursuant to any provision of law other than Public Authorities Law Section 2880 shall be determined as prescribed by such separate provision of law, shall be paid as directed by the court, and shall be paid from any source of funds available for that purpose. [Published on the RESRFP22-1 Solicitations webpage and available here for download.] [Published on the RESRFP22-1 Solicitations webpage and available here for download.] EXHIBIT D LETTER G ASSIGNMENT OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT AGREEMENT NO. DATE: , 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [CONTRACTOR#] [CONTRACTOR’S ADDRESSASSIGNOR] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: IN YOUR FAVOR FOR THE ACCOUNT OF
1herewith sells, assigns, transfers and conveys all of its rights, title, obligations and interest in Agreement No. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND
2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 2:00 P.M., NEW YORK TIME, ON THE NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK###], STANDBY LETTER OF CREDIT NUMBER DATE .” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY executed [DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. [NAME AND ADDRESS OF ISSUING BANK] AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit D - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. Date of Letter of Credit: Date of Draft: FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. Dollars (U.S. $ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Contractor]. Drawn under [Name of Bank] Letter of Credit No. . Payment by the bank pursuant to this drawing shall be made to , ABA Number , Account Number , Attention: , Re: . To: [Issuing Bank] [Address] Attention: As Beneficiary By: [Name and Title] Annex B to Exhibit D - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Contractor, having provided the Letter of Credit to between the New York State Energy Research and Development Authority (“NYSERDANYSDERDA”) as Security for performance under NYSERDA and [ASSIGNOR], unto [ASSIGNEE], and [ASSIGNEE], hereby accepts and assumes all ASSIGNOR’S rights, title, obligations and interest in Agreement No. [###]. The parties hereto acknowledge and agree that (“Agreementa) in the aggregate amount of $ [ASSIGNEE] and NYSERDA are entering into Agreement No. [###A] to replace Agreement No. [###], (b) the “Letter Effective Date” of Credit Amount”Agreement No. [###A] is the Effective Date as set forth in Agreement No. [###], (c) either as between ASSIGNEE and NYSERDA, notwithstanding that ASSIGNEE is entering into a new Agreement with NYSERDA, ASSIGNEE shall assume all obligations, and shall have all liabilities, of ASSIGNOR under Agreement No. [check ###] from and including the appropriate spaceEffective Date as set forth in Agreement No. [###]: The terms used herein which are not specifically defined herein are defined , and (d), subject to the conditions set forth in the Letter clauses (a), (b) and (c), above, upon execution and delivery of Credit Agreement No. [###], [ASSIGNOR] will have no obligations or the Agreement, referenced aboveliabilities under or with respect to Agreement No. [###] or Agreement No. [###A].
Appears in 3 contracts
Samples: Renewable Energy Standard Agreement, Renewable Energy Standard Agreement, Renewable Energy Standard Agreement
Court Action or Other Legal Processes. (a) Notwithstanding any other law to the contrary, the liability of NYSERDA to make an interest payment to a Contractor Grant Recipient pursuant to this Exhibit shall not extend beyond the date of a notice of intention to file a claim, the date of a notice of a claim, or the date commencing a legal action for the payment of such interest, whichever occurs first.
(b) With respect to the court action or other legal processes referred to in subdivision (a) of this sectionSection, any interest obligation incurred by NYSERDA after the date specified therein pursuant to any provision of law other than Public Authorities Law Section 2880 shall be determined as prescribed by such separate provision of law, shall be paid as directed by the court, and shall be paid from any source of funds available for that purpose. EXHIBIT D LETTER OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. DATE: , 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OFProgress Report [GRANT RECIPIENT] Date: [CONTRACTORMarch/June/September/December] 1, 20[XX] Dear NYSERDA Offshore Wind Team, [CONTRACTOR’S ADDRESSGRANT RECIPIENT] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: IN YOUR FAVOR FOR THE ACCOUNT OF
1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND
2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 2:00 P.M., NEW YORK TIME, ON THE NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER DATE .” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. [NAME AND ADDRESS OF ISSUING BANK] AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit D - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. Date of Letter of Credit: Date of Draft: FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. Dollars (U.S. $ ). The amount of submits this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Contractor]. Drawn under [Name of Bank] Letter of Credit No. . Payment by the bank Progress Report pursuant to this drawing shall be made to , ABA Number , Account Number , Attention: , Re: . To: [Issuing Bank] [Address] Attention: As Beneficiary By: [Name and Title] Annex B to Exhibit D - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: [Insert] The undersigned, a duly authorized officer Article V of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] Grant Form Agreement (“Letter of Creditthe Agreement”), that Contractor, having provided the Letter of Credit to ) between the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement Noand Grant Recipient. (“Agreement) in the aggregate amount Pursuant to Article VIII of $ , (“Letter of Credit Amount”) either [check the appropriate space]: The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced aboveall information enclosed herein that Grant Recipient wishes to protect from disclosure to third parties has been marked “confidential” or “proprietary.” Grant Recipient acknowledges that NYSERDA is subject to and must comply with the requirements of New York’s Freedom of Information Law (“FOIL”). See Public Officers’ Law Article 6. I, the undersigned certify that I am an Officer or otherwise authorized representative of Grant Recipient, that I am authorized to provide this Progress Report on behalf of Grant Recipient and that all statements herein are true and accurate. Grant Recipient’s Authorized Representative: _____________________________________________________ Representative Title: _____________________________________________________ Representative Signature: _____________________________________________________ Date of Signature: _____________________________________________________ Status of Development and/or Construction Planning or Activities [Insert Update]
Appears in 2 contracts
Samples: Grant Disbursement Agreement, Grant Disbursement Agreement
Court Action or Other Legal Processes. (a) Notwithstanding any other law to the contrary, the liability of NYSERDA to make an interest payment to a Contractor pursuant to this Exhibit shall not extend beyond the date of a notice of intention to file a claim, the date of a notice of a claim, or the date commencing a legal action for the payment of such interest, whichever occurs first.
(b) With respect to the court action or other legal processes referred to in subdivision (a) of this section, any interest obligation incurred by NYSERDA after the date specified therein pursuant to any provision of law other than Public Authorities Law Section 2880 shall be determined as prescribed by such separate provision of law, shall be paid as directed by the court, and shall be paid from any source of funds available for that purpose. [Published on the RESRFP20-1 Solicitations webpage and available here for download.] [Published on the RESRFP20-1 Solicitations webpage and available here for download.] [Published on the RESRFP20-1 Solicitations webpage and available here for download.] EXHIBIT D LETTER G ASSIGNMENT OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT AGREEMENT NO. DATE: , 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [CONTRACTOR#] [CONTRACTOR’S ADDRESSASSIGNOR] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: IN YOUR FAVOR FOR THE ACCOUNT OF
1herewith assigns and transfers all rights, title, obligations and interest in Agreement No. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND
2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 2:00 P.M., NEW YORK TIME, ON THE NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK###], STANDBY LETTER OF CREDIT NUMBER DATE .” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY executed [DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. [NAME AND ADDRESS OF ISSUING BANK] AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit D - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. Date of Letter of Credit: Date of Draft: FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. Dollars (U.S. $ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Contractor]. Drawn under [Name of Bank] Letter of Credit No. . Payment by the bank pursuant to this drawing shall be made to , ABA Number , Account Number , Attention: , Re: . To: [Issuing Bank] [Address] Attention: As Beneficiary By: [Name and Title] Annex B to Exhibit D - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Contractor, having provided the Letter of Credit to between the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA and [ASSIGNOR], unto [ASSIGNEE], and [ASSIGNEE], hereby accepts all rights, title, obligations and interest in Agreement No. (“Agreement) in the aggregate amount [###]. The parties hereto acknowledge and agree that [ASSIGNEE] and New York State Energy Research and Development Authority are entering into Agreement No. [###A] to replace Agreement No. [###] and, upon execution and delivery of $ Agreement No. [###], (“Letter of Credit Amount”) either [check the appropriate spaceASSIGNOR] will have no obligations or liabilities under or with respect to Agreement No. [###] or Agreement No. [###A]: The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.
Appears in 2 contracts
Samples: Renewable Energy Standard Agreement, Renewable Energy Standard Agreement
Court Action or Other Legal Processes. (a) Notwithstanding any other law to the contrary, the liability of NYSERDA to make an interest payment to a Contractor pursuant to this Exhibit shall not extend beyond the date of a notice of intention to file a claim, the date of a notice of a claim, or the date commencing a legal action for the payment of such interest, whichever occurs first.
(b) With respect to the court action or other legal processes referred to in subdivision (a) of this section, any interest obligation incurred by NYSERDA after the date specified therein pursuant to any provision of law other than Public Authorities Law Section 2880 shall be determined as prescribed by such separate provision of law, shall be paid as directed by the court, and shall be paid from any source of funds available for that purpose. EXHIBIT D LETTER G ASSIGNMENT OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT AGREEMENT NO. DATE: , 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [CONTRACTOR#] [CONTRACTOR’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: IN YOUR FAVOR FOR THE ACCOUNT OF
1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND
2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 2:00 P.M., NEW YORK TIME, ON THE NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER DATE .” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. [NAME AND ADDRESS OF ISSUING BANK] AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit D - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. Date of Letter of Credit: Date of Draft: FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. Dollars (U.S. $ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Contractor]. Drawn under [Name of Bank] Letter of Credit No. . Payment by the bank pursuant to this drawing shall be made to , ABA Number , Account Number , Attention: , Re: . To: [Issuing Bank] [Address] Attention: As Beneficiary By: [Name and Title] Annex B to Exhibit D - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [InsertASSIGNOR] (“Letter ASSIGNOR”) herewith sells, assigns, transfers and conveys all of Credit”)its rights, that Contractortitle, having provided the Letter of Credit to obligations and interest in Agreement No. [###], executed [DATE] by and between the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA and ASSIGNOR, unto [ASSIGNEE] (“ASSIGNEE”), and ASSIGNEE, hereby accepts and assumes all ASSIGNOR’S rights, title, obligations and interest in Agreement No. [###]. The parties hereto acknowledge and agree that (“Agreementa) in the aggregate amount of $ ASSIGNEE and NYSERDA are entering into Agreement No. [###A] to replace Agreement No. [###], (b) the “Letter Effective Date” of Credit Amount”Agreement No. [###A] is the Effective Date as set forth in Agreement No. [###], (c) either as between ASSIGNEE and NYSERDA, ASSIGNEE shall assume all obligations, and shall have all liabilities, of ASSIGNOR under Agreement No. [check ###] from and including the appropriate spaceEffective Date as set forth in Agreement No. [###]: The terms used herein which are not specifically defined herein are defined , and (d), subject to the conditions set forth in the Letter clauses (a), (b) and (c), above, upon execution and delivery of Credit Agreement No. [###A] between ASSIGNEE and NYSERDA, ASSIGNOR will have no obligations or the Agreement, referenced aboveliabilities under or with respect to Agreement No. [###] or Agreement No. [###A].
Appears in 2 contracts
Samples: Standard Form Agreement, Res Standard Form Agreement
Court Action or Other Legal Processes. (a) Notwithstanding any other law to the contrary, the liability of NYSERDA to make an interest payment to a Contractor pursuant to this Exhibit shall not extend beyond the date of a notice of intention to file a claim, the date of a notice of a claim, or the date commencing a legal action for the payment of such interest, whichever occurs first.
(b) With respect to the court action or other legal processes referred to in subdivision (a) of this section, any interest obligation incurred by NYSERDA after the date specified therein pursuant to any provision of law other than Public Authorities Law Section 2880 shall be determined as prescribed by such separate provision of law, shall be paid as directed by the court, and shall be paid from any source of funds available for that purpose. EXHIBIT D LETTER G ASSIGNMENT OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT AGREEMENT NO. DATE: , 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [CONTRACTOR#] [CONTRACTOR’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: IN YOUR FAVOR FOR THE ACCOUNT OF
1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND
2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 2:00 P.M., NEW YORK TIME, ON THE NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER DATE .” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. [NAME AND ADDRESS OF ISSUING BANK] AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit D - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. Date of Letter of Credit: Date of Draft: FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. Dollars (U.S. $ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Contractor]. Drawn under [Name of Bank] Letter of Credit No. . Payment by the bank pursuant to this drawing shall be made to , ABA Number , Account Number , Attention: , Re: . To: [Issuing Bank] [Address] Attention: As Beneficiary By: [Name and Title] Annex B to Exhibit D - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [InsertASSIGNOR] (“Letter ASSIGNOR”) herewith sells, assigns, transfers and conveys all of Credit”)its rights, that Contractortitle, having provided the Letter of Credit to obligations and interest in Agreement No. [###], executed [DATE] by and between the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA and ASSIGNOR, unto [ASSIGNEE] (“ASSIGNEE”), and ASSIGNEE, hereby accepts and assumes all ASSIGNOR’S rights, title, obligations and interest in Agreement No. [###]. The parties hereto acknowledge and agree that (“Agreementa) in the aggregate amount of $ ASSIGNEE and NYSERDA are entering into Agreement No. [###A] to replace Agreement No. [###], (b) the “Letter Effective Date” of Credit Amount”Agreement No. [###A] is the Effective Date as set forth in Agreement No. [###], (c) either as between ASSIGNEE and NYSERDA, ASSIGNEE shall assume all obligations, and shall have all liabilities, of ASSIGNOR under Agreement No. [check ###] from and including the appropriate spaceEffective Date as set forth in Agreement No. [###]: The terms used herein which are not specifically defined herein are defined , and (d), subject to the conditions set forth in the Letter clauses (a), (b) and (c), above, upon execution and delivery of Credit Agreement No. [###], ASSIGNOR will have no obligations or the Agreement, referenced aboveliabilities under or with respect to Agreement No. [###] or Agreement No. [###A].
Appears in 1 contract
Samples: Res Standard Form Agreement
Court Action or Other Legal Processes. (a) Notwithstanding any other law to the contrary, the liability of NYSERDA to make an interest payment to a Contractor pursuant to this Exhibit shall not extend beyond the date of a notice of intention to file a claim, the date of a notice of a claim, or the date commencing a legal action for the payment of such interest, whichever occurs first.
(b) With respect to the court action or other legal processes referred to in subdivision (a) of this section, any interest obligation incurred by NYSERDA after the date specified therein pursuant to any provision of law other than Public Authorities Law Section 2880 shall be determined as prescribed by such separate provision of law, shall be paid as directed by the court, and shall be paid from any source of funds available for that purpose. EXHIBIT D LETTER OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NOIntentionally deleted. DATE: , 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000[Published on the RESRFP22-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [CONTRACTOR1 Solicitations webpage and available here for download.] [CONTRACTOR’S ADDRESSPublished on the RESRFP22-1 Solicitations webpage and available here for download.] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: IN YOUR FAVOR FOR THE ACCOUNT OF
1[ASSIGNOR] herewith sells, assigns, transfers and conveys all of its rights, title, obligations and interest in Agreement No. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND
2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 2:00 P.M., NEW YORK TIME, ON THE NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK###], STANDBY LETTER OF CREDIT NUMBER DATE .” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY executed [DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. [NAME AND ADDRESS OF ISSUING BANK] AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit D - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. Date of Letter of Credit: Date of Draft: FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. Dollars (U.S. $ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Contractor]. Drawn under [Name of Bank] Letter of Credit No. . Payment by the bank pursuant to this drawing shall be made to , ABA Number , Account Number , Attention: , Re: . To: [Issuing Bank] [Address] Attention: As Beneficiary By: [Name and Title] Annex B to Exhibit D - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Contractor, having provided the Letter of Credit to between the New York State Energy Research and Development Authority (“NYSERDANYSDERDA”) as Security for performance under NYSERDA and [ASSIGNOR], unto [ASSIGNEE], and [ASSIGNEE], hereby accepts and assumes all ASSIGNOR’S rights, title, obligations and interest in Agreement No. [###]. The parties hereto acknowledge and agree that (“Agreementa) in the aggregate amount of $ [ASSIGNEE] and NYSERDA are entering into Agreement No. [###A] to replace Agreement No. [###], (b) the “Letter Effective Date” of Credit Amount”Agreement No. [###A] is the Effective Date as set forth in Agreement No. [###], (c) either as between ASSIGNEE and NYSERDA, notwithstanding that ASSIGNEE is entering into a new Agreement with NYSERDA, ASSIGNEE shall assume all obligations, and shall have all liabilities, of ASSIGNOR under Agreement No. [check ###] from and including the appropriate spaceEffective Date as set forth in Agreement No. [###]: The terms used herein which are not specifically defined herein are defined , and (d), subject to the conditions set forth in the Letter clauses (a), (b) and (c), above, upon execution and delivery of Credit Agreement No. [###], [ASSIGNOR] will have no obligations or the Agreement, referenced aboveliabilities under or with respect to Agreement No. [###] or Agreement No. [###A].
Appears in 1 contract
Samples: Renewable Energy Standard Agreement
Court Action or Other Legal Processes. (a) Notwithstanding any other law to the contrary, the liability of NYSERDA to make an interest payment to a Contractor pursuant to this Exhibit shall not extend beyond the date of a notice of intention to file a claim, the date of a notice of a claim, or the date commencing a legal action for the payment of such interest, whichever occurs first.
(b) With respect to the court action or other legal processes referred to in subdivision (a) of this section, any interest obligation incurred by NYSERDA after the date specified therein pursuant to any provision of law other than Public Authorities Law Section 2880 shall be determined as prescribed by such separate provision of law, shall be paid as directed by the court, and shall be paid from any source of funds available for that purpose. EXHIBIT D LETTER OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. DATE: , 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [CONTRACTOR] [CONTRACTOR’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: IN YOUR FAVOR FOR THE ACCOUNT OF
1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND
2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 2:00 P.M., NEW YORK TIME, ON THE NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER DATE .” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. [NAME AND ADDRESS OF ISSUING BANK] AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit D - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. Date of Letter of Credit: Date of Draft: FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. Dollars (U.S. $ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Contractor]. Drawn under [Name of Bank] Letter of Credit No. . Payment by the bank pursuant to this drawing shall be made to , ABA Number , Account Number , Attention: , Re: . To: [Issuing Bank] [Address] Attention: As Beneficiary By: [Name and Title] Annex B to Exhibit D - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Contractor, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. Name of Seller: Name of Facility: Invoice Number: Serial Number(s): Total Number of ZECs: Terms used in this Certificate are used with the meanings given to such terms in the referenced NYSERDA Agreement. Seller certifies that, to Seller’s knowledge, all of the information provided on the attached invoice requesting payment from NYSERDA is true and accurate; that the ZECs delivered by Seller (identified by the serial number(s) above) by designation for transfer to NYSERDA in accordance with the NYGATS Operating Rules are free and clear of all liens, judgments, encumbrances and similar restrictions created by or on behalf of Seller or any party claiming through Seller, and have not otherwise been, nor will be, sold, retired, claimed or represented by or on behalf of Seller or any party claiming through Seller, as part of electricity output or sales, or used by or on behalf of Seller or any party claiming through Seller, to satisfy obligations in any other jurisdiction. Seller further certifies that all representations and warranties of the Seller set forth in Section 15.1 of the NYSERDA Agreement are true and correct on the date hereof as though made on the date hereof, other than such representations and warranties that are expressly effective as of an earlier date, in which case, such representations and warranties continue to be true and correct as of such date. Quarterly Invoice Date: By: The ZEC Price will be determined in six, 2-year Tranches, as follows: For Tranche 1, the ZEC Price shall be $17.48. For Tranches 2 through 6, the ZEC Price shall be as calculated by NYSERDA in consultation with DPS staff, calculated for the relevant Tranche t using the following formula: ZEC Pricet = Max(0, Base ZEC Pricet – Max(0, (Energy Forward Indext + Capacity Forward Indext – Zone A Reference Pricet))); where • Base ZEC Pricet shall be determined as follows for each Tranche: • For Tranche 2, the Base ZEC Price shall be $19.59 • For Tranche 3, the Base ZEC Price shall be $21.38 • For Tranches 4 through 6, the Base ZEC Price shall be determined using the following formula: Base ZEC Pricet = Net CO2 Externalityt x (0.53846—(0.00491 x Max(0, Min(26.704, (Incremental Renewable Generationt / 1,000,000)) – 8.704))); where Net CO2 Externality shall be equal to 44.26 for Tranche 4, 49.13 for Tranche 5, and 54.13 for Tranche 6 Incremental Renewable Generation shall be the total amount, denominated in megawatt-hours, of Renewable Energy Credits (“AgreementRECs”) qualified to serve Tier 1 of the New York Renewable Energy Standard (i.e. new renewable resources of all types beginning commercial operation on or after January 1st, 2015 that are eligible to satisfy the Renewable Energy Standard) generated in calendar years 2022, 2024, and 2026 as reported by the New York Generation Attribute Tracking System. The Incremental Renewable Generation for calendar year 2022 will be utilized in determining the Base ZEC Price for Tranche 4, the Incremental Renewable Generation for calendar year 2024 will be utilized in determining the Base ZEC Price for Tranche 5, and the Incremental Renewable Generation for calendar year 2026 will be utilized in determining the Base ZEC Price for Tranche 6. • Energy Forward Indext shall be the average NYISO Zone A energy price forecast for the period covered by the Tranche, developed using futures prices reported on the Intercontinental Exchange (“ICE”) as follows:
1) for each trading day during the calendar year preceding each Tranche, On-Peak Monthly Forward Energy Prices and Off-Peak Monthly Forward Energy Prices for the 24 months of the Tranche will be separately averaged, yielding separate average on-peak and off-peak Tranche energy prices for each trading day;
2) each trading day’s average Tranche on-peak and off-peak energy prices (developed in step 1) will be time-weight averaged based on the number of on-peak and off peak hours in the aggregate amount Tranche, yielding a single average all-hours energy price for the Tranche for each trading day;
3) the average Tranche all-hours energy prices for each of $ the trading days during the calendar year preceding each Tranche (developed in step 2) will be averaged, yielding the NYISO Zone A energy price forecast for the Tranche expressed in dollars per MWh. • Capacity Forward Indext shall be the average NYISO Rest of the State capacity price forecast for the period covered by the Tranche, developed using futures prices reported on the New York Mercantile Exchange (“Letter of Credit AmountNYMEX”) either [check as follows:
1) for each trading day during the appropriate space]final 6 months of the calendar year preceding each Tranche, NYMEX Rest of the State Capacity Calendar-Month settled futures prices for the first 12 months of the Tranche will be averaged, yielding a separate average annualized capacity price for each trading day
2) the average annualized capacity prices for each of the trading days during the final six months of the calendar year preceding each Tranche (developed in step 1) will be averaged, yielding a single average annualized capacity price for the Tranche, expressed in dollars per kilowatt-month
3) the average annualized capacity price developed in step 2 will be multiplied by 1.3699 to yield an average annualized capacity price for the Tranche expressed in dollars per MWh. • Zone A Reference Pricet shall be determined as follows for each Tranche: The terms used herein which are not specifically defined herein are defined • For Tranche 2, the Zone A Reference Price shall be $39 • For Tranche 3, the Zone A Reference Price shall be $39 • For Tranches 4 through 6, the Zone A Reference Price shall be determined using the following formula: Zone A Reference Pricet = $39 + Energy Basis Adjustment; where Energy basis adjustment is determined as follows:
1) the simple average hourly day-ahead energy price over the six-year period covering calendar years 2017 through 2022 will be calculated using historic price data reported by the New York ISO for New York Zone A (“WEST (ZONE A)”), the R.E. Xxxxx nuclear unit generation bus (“GINNA ”), the X.X. XxxxXxxxxxx nuclear unit generation bus (“XXXXXXXXXXX ”), the Nine Mile Point 1 nuclear unit generation bus (“NINE_MILE_1”), and the Nine Mile Point 2 nuclear unit generation bus (“NINE_MILE_2”)
2) each of the five six-year historical average nuclear unit generation bus energy prices will be subtracted from the six-year historical average Zone A energy price to calculate five unit-specific historic energy price basis differentials with Zone A
3) the five unit-specific historic energy price basis differentials calculated in step 2 will be weighted by their actual six-year cumulative energy output over the Letter of Credit or 2017 through 2022 period to determine a single weighted-average historic energy basis differential, denominated in dollars per MWh.
4) if the Agreementweighted-average historic energy basis differential calculated in step 3 is between $5 per MWh and $7 per MWh, referenced abovethe Energy Basis Adjustment shall be $0 per MWh
5) If the weighted-average historic energy basis differential calculated in step 3 is less than $5 per MWh, the Energy Basis Adjustment shall be equal to the weighted-average historic energy basis differential minus $5 per MWh
6) If the weighted-average historic energy basis differential calculated in step 3 is greater than $7 per MWh, the Energy Basis Adjustment shall be equal to the weighted-average historic energy basis differential minus $7 per MWh.
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Court Action or Other Legal Processes. (a) Notwithstanding any other law to the contrary, the liability of NYSERDA to make an interest payment to a Contractor Grant Recipient pursuant to this Exhibit shall not extend beyond the date of a notice of intention to file a claim, the date of a notice of a claim, or the date commencing a legal action for the payment of such interest, whichever occurs first.
(b) With respect to the court action or other legal processes referred to in subdivision (a) of this sectionSection, any interest obligation incurred by NYSERDA after the date specified therein pursuant to any provision of law other than Public Authorities Law Section 2880 shall be determined as prescribed by such separate provision of law, shall be paid as directed by the court, and shall be paid from any source of funds available for that purpose. EXHIBIT D LETTER OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO[This exhibit is being finalized to incorporate stakeholder feedback. DATE: This document will be updated on NYSERDA’s 2022 Offshore Wind Solicitation page, 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: and stakeholders will be notified by email.]Progress Report [CONTRACTORGRANT RECIPIENT] [CONTRACTOR’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: IN YOUR FAVOR FOR THE ACCOUNT OF
1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND
2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 2:00 P.M., NEW YORK TIME, ON THE NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER DATE .” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. [NAME AND ADDRESS OF ISSUING BANK] AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit D - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. Date of Letter of Credit: Date of Draft: FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. Dollars (U.S. $ ). The amount of submits this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Contractor]. Drawn under [Name of Bank] Letter of Credit No. . Payment by the bank Progress Report pursuant to this drawing shall be made to , ABA Number , Account Number , Attention: , Re: . To: [Issuing Bank] [Address] Attention: As Beneficiary By: [Name and Title] Annex B to Exhibit D - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: [Insert] The undersigned, a duly authorized officer Article V of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] Grant Form Agreement (“Letter of Creditthe Agreement”), that Contractor, having provided the Letter of Credit to ) between the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement Noand Grant Recipient. (“Agreement) in the aggregate amount Pursuant to Article VIII of $ , (“Letter of Credit Amount”) either [check the appropriate space]: The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced aboveall information enclosed herein that Grant Recipient wishes to protect from disclosure to third parties has been marked “confidential” or “proprietary.” Grant Recipient acknowledges that NYSERDA is subject to and must comply with the requirements of New York’s Freedom of Information Law (“FOIL”). See Public Officers’ Law Article 6. I, the undersigned certify that I am an Officer or otherwise authorized representative of Grant Recipient, that I am authorized to provide this Progress Report on behalf of Grant Recipient and that all statements herein are true and accurate.
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Samples: Grant Disbursement Agreement
Court Action or Other Legal Processes. (a) Notwithstanding any other law to the contrary, the liability of NYSERDA to make an interest payment to a Contractor pursuant to this Exhibit shall not extend beyond the date of a notice of intention to file a claim, the date of a notice of a claim, or the date commencing a legal action for the payment of such interest, whichever occurs first.
(b) With respect to the court action or other legal processes referred to in subdivision (a) of this section, any interest obligation incurred by NYSERDA after the date specified therein pursuant to any provision of law other than Public Authorities Law Section 2880 shall be determined as prescribed by such separate provision of law, shall be paid as directed by the court, and shall be paid from any source of funds available for that purpose. EXHIBIT D LETTER OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT NO. DATE: , 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [CONTRACTOR] [CONTRACTOR’S ADDRESS] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: IN YOUR FAVOR FOR THE ACCOUNT OF
1. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND
2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 2:00 P.M., NEW YORK TIME, ON THE NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK], STANDBY LETTER OF CREDIT NUMBER DATE .” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. [NAME AND ADDRESS OF ISSUING BANK] AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit D - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. Date of Letter of Credit: Date of Draft: FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. Dollars (U.S. $ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Contractor]. Drawn under [Name of Bank] Letter of Credit No. . Payment by the bank pursuant to this drawing shall be made to , ABA Number , Account Number , Attention: , Re: . To: [Issuing Bank] [Address] Attention: As Beneficiary By: [Name and Title] Annex B to Exhibit D - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Contractor, having provided the Letter of Credit to the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA Agreement No. Name of Seller: Name of Facility: Invoice Number: Serial Number(s): Total Number of ZECs: Terms used in this Certificate are used with the meanings given to such terms in the referenced NYSERDA Agreement. Seller certifies that, to Seller’s knowledge, all of the information provided on the attached invoice requesting payment from NYSERDA is true and accurate; that the ZECs delivered by Seller (identified by the serial number(s) above) by designation for transfer to NYSERDA in accordance with the NYGATS Operating Rules are free and clear of all liens, judgments, encumbrances and similar restrictions created by or on behalf of Seller or any party claiming through Seller, and have not otherwise been, nor will be, sold, retired, claimed or represented by or on behalf of Seller or any party claiming through Seller, as part of electricity output or sales, or used by or on behalf of Seller or any party claiming through Seller, to satisfy obligations in any other jurisdiction. Seller further certifies that all representations and warranties of the Seller set forth in Section 15.1 of the NYSERDA Agreement are true and correct on the date hereof as though made on the date hereof, other than such representations and warranties that are expressly effective as of an earlier date, in which case, such representations and warranties continue to be true and correct as of such date. Quarterly Invoice Date: By: The ZEC Price will be determined in six, 2-year Tranches, as follows: For Tranche 1, the ZEC Price shall be $17.48. For Tranches 2 through 6, the ZEC Price shall be as calculated by NYSERDA in consultation with DPS staff, calculated for the relevant Tranche t using the following formula: ZEC Pricet = Max(0, Base ZEC Pricet – Max(0, (Energy Forward Indext + Capacity Forward Indext – Zone A Reference Pricet))); where • Base ZEC Pricet shall be determined as follows for each Tranche: • For Tranche 2, the Base ZEC Price shall be $19.59 • For Tranche 3, the Base ZEC Price shall be $21.38 • For Tranches 4 through 6, the Base ZEC Price shall be determined using the following formula: Base ZEC Pricet = Net CO2 Externalityt x (0.53846 - (0.00491 x Max(0, Min(26.704, (Incremental Renewable Generationt /1,000,000)) – 8.704))); where Net CO2 Externality shall be equal to 44.26 for Tranche 4, 49.13 for Tranche 5, and 54.13 for Tranche 6 Incremental Renewable Generation shall be the total amount, denominated in megawatt-hours, of Renewable Energy Credits (“AgreementRECs”) qualified to serve Tier 1 of the New York Renewable Energy Standard (i.e. new renewable resources of all types beginning commercial operation on or after January 1st, 2015 that are eligible to satisfy the Renewable Energy Standard) generated in calendar years 2022, 2024, and 2026 as reported by the New York Generation Attribute Tracking System. The Incremental Renewable Generation for calendar year 2022 will be utilized in determining the Base ZEC Price for Tranche 4, the Incremental Renewable Generation for calendar year 2024 will be utilized in determining the Base ZEC Price for Tranche 5, and the Incremental Renewable Generation for calendar year 2026 will be utilized in determining the Base ZEC Price for Tranche 6. • Energy Forward Indext shall be the average NYISO Zone A energy price forecast for the period covered by the Tranche, developed using futures prices reported on the Intercontinental Exchange (“ICE”) as follows:
1) for each trading day during the calendar year preceding each Tranche, On-Peak Monthly Forward Energy Prices and Off-Peak Monthly Forward Energy Prices for the 24 months of the Tranche will be separately averaged, yielding separate average on-peak and off-peak Tranche energy prices for each trading day;
2) each trading day’s average Tranche on-peak and off-peak energy prices (developed in step 1) will be time-weight averaged based on the number of on-peak and off peak hours in the aggregate amount of $ Tranche, (“Letter of Credit Amount”) either [check yielding a single average all-hours energy price for the appropriate space]: The terms used herein which are not specifically defined herein are defined in the Letter of Credit or the Agreement, referenced above.Tranche for each trading day;
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Court Action or Other Legal Processes. (a) Notwithstanding any other law to the contrary, the liability of NYSERDA to make an interest payment to a Contractor pursuant to this Exhibit shall not extend beyond the date of a notice of intention to file a claim, the date of a notice of a claim, or the date commencing a legal action for the payment of such interest, whichever occurs first.
(b) With respect to the court action or other legal processes referred to in subdivision (a) of this section, any interest obligation incurred by NYSERDA after the date specified therein pursuant to any provision of law other than Public Authorities Law Section 2880 shall be determined as prescribed by such separate provision of law, shall be paid as directed by the court, and shall be paid from any source of funds available for that purpose. EXHIBIT D LETTER G ASSIGNMENT OF CREDIT FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT IRREVOCABLE STANDBY LETTER OF CREDIT AGREEMENT NO. DATE: , 20 BENEFICIARY: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY 00 XXXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 LADIES AND GENTLEMEN: BY THE ORDER OF: [CONTRACTOR#] [CONTRACTOR’S ADDRESSASSIGNOR] WE HEREBY ISSUE OUR IRREVOCABLE CREDIT NO: IN YOUR FAVOR FOR THE ACCOUNT OF
1herewith sells, assigns, transfers and conveys all of its rights, title, obligations and interest in Agreement No. YOUR SIGHT DRAFT DRAWN ON US IN THE FORM OF ANNEX A HERETO (THE "SIGHT DRAFT"); AND
2. A DATED PAYMENT CERTIFICATE PURPORTEDLY SIGNED BY A DULY AUTHORIZED OFFICER OF NYSERDA IN THE FORM OF ANNEX B HERETO (THE "PAYMENT CERTIFICATE"). MULTIPLE DRAWINGS ARE PERMITTED IN AMOUNTS NOT TO EXCEED, IN COMBINATION, THE AGGREGATE AMOUNT. DRAWINGS PRESENTED BY FACSIMILE TO FACSIMILE NUMBER ARE ACCEPTABLE; PROVIDED THAT SUCH FAX PRESENTATION IS RECEIVED ON OR BEFORE THE EXPIRY DATE ON THIS INSTRUMENT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, IT BEING UNDERSTOOD THAT ANY SUCH FAX PRESENTATION SHALL BE CONSIDERED THE SOLE OPERATIVE INSTRUMENT OF DRAWING. IN THE EVENT OF PRESENTATION BY FAX, THE ORIGINAL DOCUMENTS SHOULD NOT BE PRESENTED. FUNDS UNDER THIS LETTER OF CREDIT ARE AVAILABLE TO YOU AGAINST YOUR PAYMENT CERTIFICATE AND SIGHT DRAFT PRESENTED IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT ON OR BEFORE 5:00 P.M., NEW YORK TIME, ON THE EXPIRATION DATE HEREOF. THIS LETTER OF CREDIT WILL EXPIRE ON [INSERT DATE]. PAYMENT AGAINST CONFORMING DOCUMENTS PRESENTED UNDER THIS LETTER OF CREDIT SHALL BE MADE BY US AT OR BEFORE 2:00 P.M., NEW YORK TIME, ON THE NEXT (OR, IN THE CASE OF A PRESENTATION AFTER 10:30 A.M., NEW YORK TIME, THE SECOND NEXT) BANKING DAY AFTER PRESENTATION. ALL PAYMENTS MADE BY US UNDER THIS LETTER OF CREDIT WILL BE MADE IN IMMEDIATELY AVAILABLE FUNDS AND WILL BE DISBURSED FROM OUR OWN FUNDS. IF REQUESTED BY YOU, PAYMENT UNDER THIS LETTER OF CREDIT MAY BE MADE BY WIRE TRANSFER OF FEDERAL RESERVE BANK OF NEW YORK FUNDS TO YOUR ACCOUNT IN A BANK ON THE FEDERAL RESERVE WIRE SYSTEM. BENEFICIARY’S BANK [INSERT NAME AND ACCOUNT NUMBER]. THIS LETTER OF CREDIT IS NOT TRANSFERABLE. ONLY YOU MAY MAKE ANY PAYMENT CERTIFICATE AND SIGHT DRAFT UNDER THIS LETTER OF CREDIT. ANY SIGHT DRAFT DRAWN HEREUNDER MUST BE MARKED “DRAWN UNDER [INSERT NAME AND ADDRESS OF ISSUING BANK###], STANDBY LETTER OF CREDIT NUMBER DATE .” ALL BANK CHARGES INCLUDING BUT NOT LIMITED TO, FEES OR COMMISSIONS, SHALL BE FOR APPLICANT’S ACCOUNT. THIS LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING. SUCH UNDERTAKING SHALL NOT IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR IN WHICH THIS LETTER OF CREDIT IS REFERRED OR TO WHICH IT RELATES (INCLUDING, WITHOUT LIMITATION, THE AGREEMENT) AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO INCORPORATE HEREIN BY REFERENCE ANY DOCUMENT OR INSTRUMENT. WE HEREBY AGREE WITH YOU THAT EACH DULY COMPLETED PAYMENT CERTIFICATE AND SIGHT DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO US ON OR BEFORE THE EXPIRY executed [DATE. THE OBLIGATION OF [ISSUING BANK] UNDER THIS LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF [ISSUING BANK] AND IS IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO. EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (2007 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION 600 (PROVIDED, HOWEVER, THAT DRAWINGS PERMITTED HEREUNDER SHALL NOT BE DEEMED TO BE DRAWINGS BY INSTALLMENTS WITHIN ARTICLE 32 OF THE UCP) AND AS TO MATTERS NOT GOVERNED BY THE UCP, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND APPLICABLE U.S. FEDERAL LAW. PLEASE ADDRESS ALL CORRESPONDENCE REGARDING THIS LETTER OF CREDIT TO THE ATTENTION OF OUR STANDBY LETTER OF CREDIT UNIT, INCLUDING THE LETTER OF CREDIT REFERENCE NUMBER AS IT APPEARS ABOVE. [NAME AND ADDRESS OF ISSUING BANK] AUTHORIZED SIGNATURE OF OFFICER OF ISSUING BANK Annex A to Exhibit D - Irrevocable Standby Letter of Credit SIGHT DRAFT Letter of Credit No. Date of Letter of Credit: Date of Draft: FOR VALUE RECEIVED Pay on Demand to: THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, U.S. Dollars (U.S. $ ). The amount of this draft does not exceed the amount available to be drawn by the Beneficiary under the Letter of Credit. Charge to account of [Name of Contractor]. Drawn under [Name of Bank] Letter of Credit No. . Payment by the bank pursuant to this drawing shall be made to , ABA Number , Account Number , Attention: , Re: . To: [Issuing Bank] [Address] Attention: As Beneficiary By: [Name and Title] Annex B to Exhibit D - Irrevocable Standby Letter of Credit PAYMENT CERTIFICATE To: [Issuing Bank] [Address] Re: Irrevocable Standby Letter of Credit No: [Insert] The undersigned, a duly authorized officer of the undersigned Beneficiary, hereby certifies to [Issuing Bank], with reference to the Irrevocable Standby Letter of Credit No: [Insert] (“Letter of Credit”), that Contractor, having provided the Letter of Credit to between the New York State Energy Research and Development Authority (“NYSERDA”) as Security for performance under NYSERDA and [ASSIGNOR], unto [ASSIGNEE], and [ASSIGNEE], hereby accepts and assumes all ASSIGNOR’S rights, title, obligations and interest in Agreement No. [###]. The parties hereto acknowledge and agree that (“Agreementa) in the aggregate amount of $ [ASSIGNEE] and NYSERDA are entering into Agreement No. [###A] to replace Agreement No. [###], (b) the “Letter Effective Date” of Credit Amount”Agreement No. [###A] is the Effective Date as set forth in Agreement No. [###], (c) either as between ASSIGNEE and NYSERDA, notwithstanding that ASSIGNEE is entering into a new Agreement with NYSERDA, ASSIGNEE shall assume all obligations, and shall have all liabilities, of ASSIGNOR under Agreement No. [check ###] from and including the appropriate spaceEffective Date as set forth in Agreement No. [###]: The terms used herein which are not specifically defined herein are defined , and (d), subject to the conditions set forth in the Letter clauses (a), (b) and (c), above, upon execution and delivery of Credit Agreement No. [###], between ASSIGNEE and NYSERDA, [ASSIGNOR] will have no obligations or the Agreement, referenced aboveliabilities under or with respect to Agreement No. [###] or Agreement No. [###A].
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Samples: Build Ready Standard Form Agreement
