Form K-1 - Proposal Letter Of Credit/form K-2 - Financial Close Letter Of Credit (Page 5 of 6) in pdf

Credit is presented at or prior to [•], Eastern time, on any Banking Day, Issuer will honor the

drawing on the same day. If such drawing is presented after [•], Eastern time, on such day,

Issuer will honor the drawing before [•], Eastern time, on the following Banking Day. Drawings

under this Letter of Credit may be made between 9:00 AM and 5:00 PM, Eastern time, on any

Banking Day. As used herein “Banking Day” means any day that is not a Saturday or Sunday or

any other day on which commercial banks in [•] are authorized by law or executive order to

close.

The obligations of Issuer hereunder are primary obligations to Beneficiary and will not be

affected by the performance or non-performance by [Name of Applicant] under any agreement

with Beneficiary or by any bankruptcy, insolvency or other similar proceeding initiated by or

against [Name of Applicant]. [Name of Applicant] is not the beneficiary under this Letter of

Credit and possesses no interest whatsoever in proceeds of any draw hereon. Issuer will pay to

Beneficiary any amount drawn hereunder within three Business Days of receipt of a draw in

immediately available funds free and clear of and without deduction for any taxes, duties, fees,

liens, set-offs or other deductions of any kind and regardless of any objection by any third party.

This Letter of Credit will terminate on the earlier of (i) the close of business on the Expiration

Date and (ii) the date on which Issuer has honored one or more draws in the full amount of the

Stated Amount. This Letter of Credit may not be transferred by Beneficiary to any other person.

Drawings by facsimile to facsimile number [•] are acceptable and will be honored by the Issuer

(each such drawing, a “Fax Drawing”), provided, however, that a Fax Drawing will not be

effectively presented until Beneficiary confirms, by telephone, Issuer’s receipt of such Fax

Drawing by calling Issuer at telephone number [•]. Within the same Banking Day of Issuer’s

receipt of a Fax Drawing, Issuer will acknowledge Beneficiary’s presentment by sending a

confirmation electronic mail to the electronic mail address provided by Beneficiary to Issuer

within the Fax Drawing itself.

To the extent not inconsistent with the express provisions hereof, this Letter of Credit is subject

to the rules of the International Standby Practices ISP98 (“ISP98”), as interpreted under the

laws of the Commonwealth of Virginia, and will, as to matters not governed by ISP98, be

governed and construed in accordance with the laws of the Commonwealth of Virginia, without

regard to conflict of laws principles.

With respect to any suit, action or proceedings relating to this Letter of Credit (“Proceedings”),

Issuer irrevocably: (i) submits to the exclusive jurisdiction of the United States District Court for

the Eastern District of Virginia and (ii) waives any objection which it may have at any time to

the laying of venue of any Proceedings brought in such court, waives any claim that such

Proceedings have been brought in an inconvenient forum and further waives the right to object,

with respect to such Proceedings, that such court does not have any jurisdiction over Issuer.

Any failure by Beneficiary to draw upon this Letter of Credit as permitted hereunder will not

cause this Letter of Credit to be unavailable for any future drawing, provided that this Letter of

Credit has not expired prior to such future drawing and that all requirements of this Letter of

Credit are independently satisfied with respect to any such future drawing.

Virginia Department of Transportation

- 2 -

Volume 1 to Request for Proposals

Transform 66 P3 Project

Instructions to Proposers

[•], 2016

Form K-1 - Proposal Letter Of Credit/form K-2 - Financial Close Letter Of Credit Page 5

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