1. The Business Day of the Proposed Loan is ___________, 20__ (the “Issuance Date”).
2. The principal amount of the Proposed Loan is $______________, which is not greater than the Revolving Credit Exposure as of the Issuance Date set forth in 1 above.
After giving effect to the Proposed Loan, the aggregate principal amount of all Loans and LC Exposure outstanding under the Agreement will not exceed the Revolving Credit Exposure as of the Issuance Date.
3. The Type of Borrowing is: [SPECIFY] [a Base Ratean ABR Borrowing] [a EurodollarSOFR Borrowing][.][;[IN THE CASE OF A EURODOLLARSOFR BORROWING] and the initial Interest Period shall be for [one month][three months].] Agenda Page 247
Exhibit C Page 2
4. The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the Issuance Date, before and after giving effect to the Proposed Loan:
(a) The representations and warranties of the Borrower set forth in the Agreement (i) that are not qualified by concepts of materiality are true and correct in all material respects on and as of the Issuance Date, with the same force and effect as if made on and as of such date, and (ii) that are qualified by concepts of materiality are true and correct in all respects on and as of the Issuance Date, with the same force and effect as if made on and as of such date; [and] (b) No Default or Event of Default has occurred and is continuing [.] [; and]
[(c) The Borrower has filed the necessary notices and filings with, and provided for payment of any fee related thereto to, the California Debt Issuance Advisory Commission.] [INCLUDE THIS CERTIFICATION IF THIS IS THE INITIAL
BORROWING REQUEST AND NO LETTER OF CREDIT REQUEST HAS PREVIOUSLY BEEN MADE.]
5. [The Proposed Loan shall be made by the Lender by wire transfer of immediately available funds in accordance with the instructions set forth below and the Borrower hereby confirms that the Lender is authorized to make said disbursements:
[Insert wire instructions and amounts]]
[OR]
5. [The Proposed Loan shall be deposited into Borrower’s account at the Lender and the Borrower hereby confirms that the Lender is authorized to make said disbursements.]
CLEAN POWER ALLIANCE OF SOUTHERN
CALIFORNIA
By: ____________________________________
Name: ______________________________
Title: _______________________________
Agenda Page 248
Exhibit D-1 Page 1
EXHIBIT D-1
FORM OF LETTER OF CREDIT REQUEST
_____________, 20__
JPMorgan Chase Bank, National Association
JPM-Delaware Loan Operations
500 Stanton Christiana Road, NCC5, Floor 01
Newark, DE 19713-2107
Attention: PFG Servicing
Telephone: (302) 634-9627
Email/Fax: [email protected]
JPMorgan Chase Bank, National Association
383 Madison Avenue, 3rd Floor
New York, New York 10179
Mail Code: NY1-M076
Attention: Allyson Goetschius or Janice Fong
Telephone: (212) 270-0335 or (212) 270-3762
Facsimile: (917) 849-0272
Email: [email protected] or [email protected] Ladies and Gentlemen:
The undersigned refers to the Revolving Credit Agreement, dated as of September 22, 2021 (together with any amendments or supplements thereto, the “Agreement”), by and between Clean Power Alliance of Southern California (with its successors and assigns, the “Borrower”) and JPMorgan Chase Bank, National Association (with its successors and assigns, the “Lender”) (the terms defined therein being used herein as therein defined) and hereby requests, pursuant to Section 2.4 of the Agreement, that the Lender issue a Letter of Credit under the Agreement, and in that connection sets forth below the following information relating to such Letter of Credit (the “Proposed Letter of Credit”):
1. The Business Day of the Proposed Letter of Credit is ___________, 20__ (the “Issuance Date”).
2. The principal amount of the Proposed Letter of Credit is $______________.
After giving effect to the issuance of the Proposed Letter of Credit, the aggregate principal amount of all Loans and Letters of Credit outstanding under the Agreement will not exceed the Revolving Credit Exposure as of the Issuance Date set forth in 1 above.
3. The tenor of the Proposed Letter of Credit shall be [____________].
Agenda Page 249
Exhibit D-1 Page 2
4. The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the Issuance Date, before and after giving effect thereto:
(a) The representations and warranties of the Borrower set forth in the Agreement (i) that are not qualified by concepts of materiality are true and correct in all material respects on and as of the Issuance Date, with the same force and effect as if made on and as of such date, and (ii) that are qualified by concepts of materiality are true and correct in all respects on and as of the Issuance Date, with the same force and effect as if made on and as of such date; [and] (b) No Default or Event of Default has occurred and is continuing [.] [; and]
[(c) The Borrower has filed the necessary notices and filings with, and provided for payment of any fee related thereto to, the California Debt Issuance Advisory Commission.] [INCLUDE THIS CERTIFICATION IF THIS IS THE INITIAL
LETTER OF CREDIT REQUEST AND NO BORROWING REQUEST HAS PREVIOUSLY BEEN MADE.]
5. The undersigned hereby confirms that the Borrower has submitted a Standby Letter of Credit Application in the form attached as Annex I (or any successor form provided by the Lender to the Borrower and the Lender).
CLEAN POWER ALLIANCE OF SOUTHERN
CALIFORNIA
By: ____________________________________
Name: ______________________________
Title: _______________________________
Agenda Page 250
Exhibit D-1 Page 3
ANNEX I
FORM OF STANDBY LETTER OF CREDIT APPLICATION
Application and Agreement for Irrevocable
Standby Letter of Credit
This application and the Letter of Credit issued hereunder are subject to and governed by the CONTINUING AGREEMENT FOR COMMERCIAL & STANDBY LETTERS OF CREDIT executed by the undersigned in favor of JPMorgan Chase Bank, N.A., as may be amended or restated from time to time (the “Agreement”).
When Transmitting this application by facsimile all pages must be transmitted.
Questions regarding completion of this form should be directed to [email protected] OR 800-634-1969
For assistance in filling out this application, please place your cursor over the underlined, blue text for specific instructions/hints.
To: JPMorgan Chase Bank, N.A. and/or its subsidiaries and/or affiliates (“Issuer”). Date:
I. Pursuant to the Terms and Conditions contained herein, please issue an IRREVOCABLE STANDBY Letter of Credit (together with any replacements, extensions or modifications, the “Credit”) and transmit it by:
S.W.I.F.T. (to Advising Bank) Courier (directly to the Beneficiary) If completing in Microsoft Word, please enter data by ‘clicking’ on the gray boxes.
Applicant/Obligor (Full name and address, jointly and severally if more than one, individually and collectively, “Applicant/Obligor”):
[Signature lines are on last page].
Beneficiary (Full name and address):
Account Party (Full name and address of entity to be named in Letter of Credit if different than the above Applicant/Obligor):
Advising Bank Specify name, S.W.I.F.T./address through whom the Credit is to be transmitted to the Beneficiary. (If left blank, Issuer may, at its own discretion, transmit through one of its branches, affiliates or correspondents.):
Agenda Page 251
Exhibit D-1 Page 2
Amount:
Up to an aggregate amount of
If not USD, indicate currency
Expiry Date: Demands/claims must be presented to
the counters of the nominated bank not later than
.
II. REQUIRED FOR SANCTION SCREENING PURPOSES. A brief description of the purpose of the Credit including, where applicable, a description of the merchandise, the country of origin of the merchandise, and the name of the countries where merchandise is being shipped from and to must be entered:
III. Complete only if automatic extension of the expiry date is required.
Credit to contain automatic extension clause with extension period of one year/ other (please specify).
No less than calendar days non-extension notice to the beneficiary.
Automatic extension final expiration date: (the date after which the Credit will no longer be subject to automatic extension).
IV. AVAILABLE BY (indicate A, B, C or D)
A. Beneficiary’s dated statement referencing JPMorgan Chase Bank, N.A. Letter of Credit Number indicating amount of demand/claim and purportedly signed by an authorized person reading as follows (Please state within the quotation marks the wording to appear on the statement to be presented):
“ (insert appropriate reason for drawing) ”
See attached sheet(s) for additional documents and/or special instructions, which form(s) an integral part of this Application. Such attachments/special instructions must be approved and signed by Applicant/Obligor.
B. Issue substantially as per the attached sheet(s) and/or special instructions, which form(s) an integral part of this Application. Such attachments/special instructions must be approved and signed by Applicant/Obligor.
C. Issue Credit in your standard format in favor of another bank (See Section VI. below).
D. Other:
DELIVERY INSTRUCTIONS/SPECIAL HANDLING (IF ANY)
Agenda Page 252
Exhibit D-1 Page 3
MULTIPLE DRAWINGS PROHIBITED (IF BLANK, MULTIPLE DRAWINGS WILL BE PERMITTED).
PARTIAL DRAWINGS PROHIBITED (IF BLANK, PARTIAL DRAWINGS WILL BE PERMITTED).
CREDIT IS TRANSFERABLE ONLY IN ITS ENTIRETY (ISSUER IS AUTHORIZED TO INCLUDE ITS STANDARD
TRANSFER CONDITIONS AND IS AUTHORIZED TO NOMINATE A TRANSFERRING BANK, IF APPLICABLE). TRANSFER FEES/CHARGES ARE FOR THE ACCOUNT OF BENEFICIARY OR IF BOX IS CHECKED, FOR THE ACCOUNT OF THE APPLICANT/OBLIGOR.
V. The Credit, or any Credit issued by you shall be subject to the International Standby Practices 1998, International Chamber of Commerce Publication 590 (“ISP”) or, if box is checked, it shall be subject to the Uniform Customs and Practice for Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600 (“UCP”).
VI. Complete only when another bank is to issue its guarantee or undertaking based on the issued Credit.
We understand and agree that by making this request, we shall remain liable under this Credit until Issuer is fully released in writing by such entity.
(i) Please issue a Credit in your customary format (as a counter guarantee) in favor of another bank (or Issuer’s affiliated office, branch or other correspondent bank) and we request that such bank issue a local guarantee, bond, standby letter of credit or other undertaking (collectively referred to as “Undertaking”) substantially as set forth below. The term “Credit” as used in this Agreement shall also include any such Undertaking.
Details provided below:
Type of Undertaking: Bid; Performance; Advance Payment; Specify Other:
Expiry Date (at least 30 days prior to the Expiry Date on page 1):
Beneficiary (Full name and full street address):
Bid/contract ref no.:
Bid/contract purpose/description/name:
Conditions for Drawing:
(ii) Please request/authorize another bank to issue their Undertaking substantially in the attached format See attached sheet(s) for additional documents and/or special instructions, which form(s) an integral part of this Application. Such attachments/special instructions must be approved and signed by Applicant/Obligor.
Unless otherwise stated herein, the nominated bank (if any) is authorized to send all documents to you in one airmail or courier service, if available.
Agenda Page 253
Exhibit D-1 Page 4
THE UNDERSIGNED HEREBY AGREES TO ALL THE TERMS AND CONDITIONS SET
FORTH HEREIN INCLUDING, ALL OF WHICH HAVE BEEN READ AND UNDERSTOOD BY THE UNDERSIGNED.
(Applicant/Obligor)
(Authorized “Signature”)
(Print Authorized Signor’s Name)
(Title)
(Phone)
(Date)
THE FOLLOWING IS TO BE EXECUTED IF THE CREDIT IS TO BE ISSUED FOR THE ACCOUNT OF A PERSON OTHER THAN THE PERSON SIGNING ABOVE:
AUTHORIZATION AND AGREEMENT OF ADDITIONAL PARTY NAMED AS ACCOUNT PARTY
To: THE ISSUER OF THE CREDIT
We join in the above Agreement, naming us as Account Party, for the issuance of the Credit and, in consideration thereof, we irrevocably agree (i) that the above Applicant has sole right to give instructions and make agreements with respect to this Application, the Agreement, the Credit and the disposition of documents, and we have no right or claim against you, any of your affiliates or subsidiaries, or any correspondent in respect of any matter arising in connection with any of the foregoing and (ii) to be bound by the Agreement and all obligations of Applicant thereunder as if we were a party thereto. Applicant is authorized to assign or transfer to you all or any part of any security held by Applicant for our obligations arising in connection with this transaction and, upon any such assignment or transfer, you shall be vested with all powers and rights in respect of the security transferred or assigned to you and you may enforce your rights under this Agreement against us or our Property in accordance with the terms hereof. (Account Party)
Agenda Page 254
Exhibit D-1 Page 5
(Authorized “Signature”)
(Print Authorized Signor’s Name)
(Title)
(Phone)
(Date)
Agenda Page 255
Exhibit D-2 Page 1
EXHIBIT D-2
FORM OF CONTINUING AGREEMENT FOR COMMERCIAL & STANDBY LETTERS OF CREDIT To induce JPMorgan Chase Bank, N.A. and/or any of its subsidiaries or affiliates (individually and collectively, the “Bank”), in its sole discretion, to issue from time to time at the request of the undersigned (individually and, if more than one, collectively, the “Applicant”), one or more standby or commercial letters of credit or other independent undertakings (together with any replacement, extension or modification thereof, each a “Credit”, and collectively, “Credits”), the Applicant agrees as follows:
ARTICLE I – DEFINED TERMS; APPLICATION PROCESS
Section 1.01. Defined Terms. Unless otherwise defined herein, capitalized terms used herein have the meaning set forth in Annex A.
Section 1.02. Applications. Each request to issue a Credit hereunder (each such request, an “Application”) shall be irrevocable and in a form acceptable to the Bank. The Applicant shall be responsible for the final text of a Credit requested hereunder notwithstanding the Bank’s recommendation, assistance or drafting or the Bank’s use, non-use or refusal to use text submitted by the Applicant.
Section 1.03. Letters of Credit Issued for Affiliates. Notwithstanding that a Credit issued or outstanding hereunder supports any obligations of, or is for the account of, an Affiliate of the Applicant, or states that an Affiliate of the Applicant is the “account party,” “applicant,” “customer,” “instructing party,” or the like of or for such Credit, and without derogating from any of the Bank’s rights (whether arising by contract, at law, in equity or otherwise) against such Affiliate in respect of such Credit, the Applicant (a) shall reimburse, indemnify and compensate the Bank for such Credit (including to reimburse any and all drawings thereunder) as if such Credit had been issued solely for the account of the Applicant and (b) irrevocably waives any and all defenses that might otherwise be available to it as a guarantor or surety of any or all of the obligations of such Affiliate in respect of such Credit. The Applicant hereby acknowledges that the issuance of such Credits for an Affiliate inures to the benefit of the Applicant, and that the Applicant’s business derives substantial benefits from the businesses of such Affiliate.
Section 1.04. Joint and Several Liability. If more than one Person signs this Agreement or an Application hereunder, each of them shall be jointly and severally liable hereunder and thereunder and all the terms and provisions regarding liabilities, obligations and property of such Persons shall apply to any liabilities, obligations and property of any and all of them.
ARTICLE II – PAYMENT TERMS
Section 2.01. Draw Reimbursement; Fees. For each Credit, the Applicant shall pay the Bank (a) the amount of each drawing (i) on demand, when payment is made at sight, and (ii) at least one Business Day prior thereto, when payment is to be made under a time draft (or acceptance Agenda Page 256
Exhibit D-2 Page 2
relating thereto) or deferred payment obligation, and (b) related commissions, fees and charges (including any third party fees incurred by the Bank), at such rates, amounts and times as the Bank and the Applicant shall mutually agree (or in the absence of such an agreement, as reasonably determined by the Bank).
Section 2.02. Interest. If any amount payable by the Applicant to the Bank hereunder is not paid when due, such overdue amount shall bear interest at a rate per annum equal to the Default Rate, calculated on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable on demand for the actual number of days elapsed (including the first day but excluding the last day).
Section 2.03. Non-USD Draw. Unless otherwise previously agreed by the Bank, if an amount drawn under any Credit is in a currency other than United States dollars, the Applicant shall reimburse the Bank, on demand, the United States dollar equivalent of such drawn amount based on the Bank’s actual cost of settlement of its obligation.
Section 2.04. Debit Authorization; Payments Generally. The Applicant hereby authorizes the Bank to debit from any of Applicant’s accounts maintained with the Bank any amount payable by the Applicant hereunder, including the amount of any drawing under a Credit payable pursuant to Section 2.01(a). All payments required to be made by the Applicant hereunder shall be made in immediately available funds, without setoff, recoupment or counterclaim.
Section 2.05. Increased Costs. If, as a result of any Regulatory Change, the Bank determines that the cost (including but not limited to, any reserve, special deposit, insurance charge, capital charge, liquidity requirement, Tax (imposed on letters of credit or other obligations, or its deposits, reserves, other liabilities, or capital attributable thereto but excluding Excluded Taxes) or other assessment) to the Bank of issuing or maintaining any Credit is increased, or any amount received or receivable by the Bank hereunder is reduced, or the Bank is required to make any payment in connection with any transaction contemplated hereby, then the Applicant shall pay to the Bank on demand such additional amount or amounts as the Bank determines will compensate the Bank for such increased cost, reduction or payment.
Section 2.06. Taxes.
(a) All payments to be made hereunder shall be made without setoff or counterclaim and free and clear of, and without any deduction for any Taxes, except as required by applicable law. If any Indemnified Taxes are required by applicable law to be withheld from any amounts payable to the Bank hereunder, the amounts so payable to the Bank shall be increased to the extent necessary to yield to the Bank (after payment of all Indemnified Taxes) the amounts payable hereunder and in the full amounts to be paid. If any applicable law requires the deduction or withholding of any Tax from any amounts payable to the Bank hereunder, whenever any such Tax is paid by the Applicant, as promptly as possible thereafter, the Applicant shall send to the Bank an official receipt showing payment thereof, together with such additional documentary evidence as may be reasonably required from time to time by the Bank. The Applicant shall indemnify the Bank, within ten (10) days after demand therefor, for Indemnified Taxes imposed with respect to Agenda Page 257
Exhibit D-2 Page 3
payments made hereunder and paid or otherwise borne by the Bank whether or not such Indemnified Taxes were correctly or legally imposed.
(b) The Applicant shall indemnify the Bank against any stamp Taxes, transfer Taxes, documentary Taxes, assessments or charges made by any governmental authority by reason of the execution and delivery of this Agreement or any other Facility Document.
ARTICLE III – OBLIGATIONS ABSOLUTE
Section 3.01. Obligations Absolute. The Applicant’s obligation to reimburse any drawing under a Credit as provided in Section 2.01(a) shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever, including, without limitation: (a) any lack of validity, enforceability or legal effect of any Credit or this Agreement, or any term or provision therein or herein; (b) payment against presentation of any Drawing Document that does not comply in whole or in part with the terms of the applicable Credit or which proves to be fraudulent, forged or invalid in any respect or any statement therein being untrue or inaccurate in any respect, or which is signed, issued or presented by a Person (or a transferee of such Person) purporting to be a successor or transferee of the beneficiary of such Credit; (c) the Bank being the beneficiary of any Credit; (d) the Bank or any correspondent honoring a drawing against a Drawing Document up to the amount available under any Credit even if such Drawing Document claims an amount in excess of the amount available under the Credit; (e) the existence of any claim, set-off, defense or other right that the Applicant or any other Person may have at any time against any beneficiary, any assignee of proceeds, the Bank or any other Person; (f) the Bank or any correspondent having previously paid against fraudulently signed or presented Drawing Documents (whether or not the Applicant reimbursed the Bank for such drawing); and (g) any other event, circumstance or conduct whatsoever, whether or not similar to any of the foregoing, that might, but for this Section, constitute a legal or equitable defense to or discharge of, or provide a right of set-off against, the Applicant’s obligations hereunder (whether against the Bank, the beneficiary or any other Person).
Section 3.02. Limitation of Liability. Subject to Section 3.03 below, neither the Bank nor any of its Related Parties shall have any liability or responsibility, and the Bank’s rights and remedies against the Applicant shall not be impaired, by reason of or in connection with: (a) honor of a presentation under any Credit which on its face substantially complies with the terms of such Credit; (b) honor of a presentation of any Drawing Documents which appear on their face to have been signed, presented or issued (i) by any purported successor or transferee of any beneficiary or other party required to sign, present or issue the Drawing Documents or (ii) under a new name of the beneficiary; (c) acceptance as a draft of any written or electronic demand or request for payment under a Credit, even if nonnegotiable or not in the form of a draft, and may disregard any requirement that such draft, demand or request bear any or adequate reference to the Credit; (d) the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness, or legal effect of any presentation under any Credit or of any Drawing Documents; (e) disregard of any non-documentary conditions stated in any Credit; (f) acting upon any Instruction which it, in Good Faith, believes to have been given by a Person or entity authorized to give such Instruction; (g) any errors, omissions, interruptions or delays in transmission or delivery of any message, advice or document (regardless of how sent or transmitted) or for errors Agenda Page 258
Exhibit D-2 Page 4
in interpretation of technical terms or in translation; (h) any delay in giving or failing to give any notice; (i) any acts, omissions or fraud by, or the solvency of, any beneficiary, any nominated Person or any other Person; (j) any breach of contract between the beneficiary and the Applicant or any of the parties to the underlying transaction; (k) assertion or waiver of any provision of the UCP or ISP which primarily benefits an issuer of a letter of credit, including, any requirement that any Drawing Document be presented to it at a particular hour or place; (l) payment to any paying or negotiating bank (designated or permitted by the terms of the applicable Credit) claiming that it rightfully honored or is entitled to reimbursement or indemnity under the Standard Letter of Credit Practice applicable to it; or (m) acting or failing to act as required or permitted under Standard Letter of Credit Practice (or in the case of other independent undertakings or guarantees, the UN Convention).
Section 3.03. Standard of Care. Nothing in Section 3.02 shall be construed to excuse the Bank from liability to the Applicant to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Applicant to the extent permitted by applicable law) suffered by the Applicant that are caused by the Bank’s failure to exercise care when determining whether Drawing Documents presented under a Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Bank (as finally determined by a court of competent jurisdiction) in (a) honoring a presentation that does not at least substantially comply with a Credit, (b) failing to honor a presentation that strictly complies with a Credit, or (c) retaining Drawing Documents presented under a Credit, the Bank shall be deemed to have exercised care in each such determination or action. In no event shall the Bank be deemed to have failed to act with due diligence or reasonable care if the Bank’s conduct is in accordance with Standard Letter of Credit Practice or in accordance with this Agreement. The Applicant’s aggregate remedies against the Bank and any Related Party for wrongfully honoring a presentation under any Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by the Applicant to the Bank in respect of the honored presentation in respect of such Credit under Section 2.01 above, plus interest. The Applicant shall take action to avoid and mitigate the amount of any damages claimed against the Bank or any Related Party, including by enforcing its rights in the underlying transaction. Any claim by the Applicant for damages under or in connection with this Agreement or any Credit shall be reduced by an amount equal to the sum of (i) the amount saved by the Applicant as a result of the breach or alleged wrongful conduct and (ii) the amount of the loss that would have been avoided had the Applicant mitigated damages.
Section 3.04. Non-New York Law Governed Credit. If a Credit is to be governed by a law other than that of the State of New York, the Bank shall not be liable for any Costs resulting from any act or omission by the Bank in accord with the UCP or the ISP, as applicable, and the Applicant shall indemnify the Bank for all such Costs.
Section 3.05 Notice of Objection, Etc. The Applicant shall notify the Bank of (a) any noncompliance with any Instruction, any other irregularity with respect to the text of any Credit or any amendment thereto or any claim of an unauthorized, fraudulent or otherwise improper Instruction, within one (1) Business Day of the Applicant’s receipt of a copy of such Credit or amendment and (b) any objection the Applicant may have to the Bank’s honor or dishonor of any Agenda Page 259
Exhibit D-2 Page 5
presentation under any Credit or any other action or inaction taken or proposed to be taken by the Bank under or in connection with this Agreement or any Credit, within three (3) Business Days after the Applicant receives notice of the objectionable action or inaction. The failure to so notify the Bank within said times shall discharge the Bank from any loss or liability that the Bank could have avoided or mitigated had it received such notice, to the extent that the Bank could be held liable for damages hereunder; provided, that, if the Applicant shall not provide such notice to the Bank within three (3) Business Days of the date of receipt in the case of clause (a) or within ten (10) Business Days of the date of receipt in the case of clause (b), the Bank shall have no liability whatsoever for such noncompliance, irregularity, action or inaction and the Applicant shall be precluded from raising such noncompliance, irregularity or objection as a defense or claim against the Bank. The Applicant’s acceptance or retention of a Drawing Document presented under or in connection with any Credit (whether or not the document is genuine) or of any Released Merchandise shall ratify the Bank’s honor of the presentation and preclude the Applicant from raising a defense, set-off or claim with respect to the Bank’s honor of such Credit. The Bank shall not be required to seek any waiver of discrepancies from the Applicant or to grant any waiver of discrepancies which the Applicant approves or requests.
ARTICLE IV – REPRESENTATIONS AND WARRANTIES
The Applicant hereby represents and warrants on and as of the date hereof, and the date of each issuance, amendment, and extension of a Credit, as applicable, that:
Section 4.01. Organization; Powers. It is duly organized or formed, validly existing and in good standing under the laws of the jurisdiction of its organization and has all necessary power and authority to enter into and perform this Agreement and the other Facility Documents.
Section 4.02. Authorization; Enforceability. It has obtained all authorizations, consents and approvals required for it to enter into and perform this Agreement and the other Facility Documents in accordance with its terms. This Agreement and each other Facility Document has been duly executed and delivered by the Applicant and constitutes the legal, valid and binding obligation of the Applicant, enforceable against it in accordance with its terms.
Section 4.03. Governmental Approvals; No Conflicts. The execution, delivery and performance of this Agreement and the other Facility Documents by the Applicant (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Applicant or any order of any Governmental Authority, and (c) will not violate or result in a default under any material agreement or arrangement to which the Applicant is a party or by which it or its properties may otherwise be bound.
Section 4.04. Financial Condition. The financial statements most recently furnished to the Bank by the Applicant fairly present the financial condition of the Applicant in accordance with generally accepted accounting principles, and there has been no material adverse change in the Applicant’s business, condition (financial or otherwise) or results of operation since the date of the Applicant’s most recent annual financial statements.
Agenda Page 260
Exhibit D-2 Page 6
Section 4.05. Disclosure. No information now or hereafter furnished by the Applicant to the Bank in connection with this Agreement, any other Facility Document or any Credit is or shall be materially false or misleading when furnished.
Section 4.06. Litigation. There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Applicant, threatened against or affecting the Applicant which, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a material adverse effect on its financial condition or business or which purports to affect the validity or enforceability of this Agreement, any other Facility Document, any Credit or any transaction related to any Credit.
Section 4.07. Anti-Corruption Laws and Sanctions. The Applicant has implemented and maintains in effect policies and procedures designed to ensure compliance by the Applicant, its subsidiaries, Affiliates and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Applicant, its subsidiaries, Affiliates and their respective officers and directors and to the knowledge of the Applicant, its employees and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and if the Applicant is organized outside of the United States of America, the Applicant further represents that it is not knowingly engaged in any activity that would reasonably be expected to result in the Applicant being designated as a Sanctioned Person. None of (a) the Applicant, any subsidiary, Affiliate, any of their respective directors, officers or employees, or (b) to the knowledge of the Applicant, any agent of the Applicant or any subsidiary or Affiliate that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Credit, use of proceeds or other transaction contemplated by this Agreement or any other Facility Documents will violate any Anti-Corruption Law or applicable Sanctions.
ARTICLE V - COVENANTS
The Applicant covenants and agrees with the Bank that:
Section 5.01. Financial Statements and Other Information. To the extent not otherwise provided to the Bank under other agreements, upon request, the Applicant will furnish to the Bank its most recent year-end, quarterly and monthly (if any), financial statements (as audited) and such other information regarding the financial condition, business affairs or operations of the Applicant as the Bank may reasonably request. Further, the Applicant acknowledges and agrees to provide the Bank additional information, records, and documentation as requested by the Bank, pursuant to the Bank’s programs enacted to comply with Section 326 of the USA Patriot Act, the applicable regulations promulgated thereunder, and the Bank’s Customer Identification Program and authorizes the Bank to verify information as per the USA Patriot Act Regulation.
Section 5.02. Existence; Conduct of Business. The Applicant will do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business.
Agenda Page 261
Exhibit D-2 Page 7
Section 5.03. Compliance with Laws. The Applicant will comply with all laws, rules, regulations and orders of any Governmental Authority (including the USA Patriot Act, foreign exchange control regulations, foreign asset control regulations and other trade-related regulations) now or hereafter applicable to each Credit, the transactions underlying such Credit or Applicant’s execution, delivery and performance of this Agreement and each other Facility Document.
Section 5.04. Inspection Rights. The Applicant will permit the Bank (or its representatives), upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested.
Section 5.05. Payment of Taxes. The Applicant will pay all Taxes required to have been paid by it when due, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, and (b) the Applicant has set aside on its books and records adequate reserves with respect thereto in accordance with generally accepted accounting principles.
Section 5.06. Insurance. The Applicant will cause all Released Merchandise to be insured against theft, fire and such other risks usually insured against in connection with the underlying transaction.
Section 5.07. Anti-Corruption and Sanctions. The Applicant will maintain in effect and enforce policies and procedures designed to ensure compliance by the Applicant, its subsidiaries, Affiliates and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions. The Applicant agrees that no goods or vessels used to transport goods will be the subject of any Sanctions. The Applicant will not request any Credit, and shall not use, and shall procure that its subsidiaries, Affiliates and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Credit (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, except to the extent permitted for a Person required to comply with Sanctions, or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
ARTICLE VI – EVENTS OF DEFAULT
Section 6.01. Events of Default. If any of the following events (“Events of Default”) shall occur and be continuing:
(a) the Applicant shall fail to pay any Obligations when and as the same shall become due and payable;
(b) any representation or warranty made or deemed made by or on behalf of the Applicant or any Guarantor in or in connection with this Agreement or any other Facility Document, or in any Instruction, report, certificate, financial statement or other document Agenda Page 262
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furnished pursuant to or in connection with this Agreement or any other Facility Document, shall prove to have been incorrect in any material respect when made or deemed made; (c) the Applicant or any Guarantor shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Facility Document; (d) the Applicant or any Guarantor shall fail to pay when due any indebtedness (including but not limited to indebtedness for borrowed money) or any event or condition shall occur that shall result in any such indebtedness becoming due prior to its scheduled maturity or that permits (with or without the giving of notice, the lapse of time or both) the holder of such indebtedness or obligee to cause such indebtedness to become due, by acceleration or otherwise, prior to its scheduled maturity;
(e) the Applicant or any Guarantor: (i) shall generally not, or be unable to, or shall admit in writing its inability to, pay its debts as its debts become due; (ii) shall make an assignment for the benefit of creditors; (iii) shall file a petition in bankruptcy or for any relief under any law of any jurisdiction relating to reorganization, arrangement, readjustment of debt, dissolution or liquidation; (iv) shall have any such petition filed against it in which an adjudication is made or order for relief is entered or which shall remain undismissed for a period of thirty (30) days or shall consent or acquiesce thereto; or (v) shall have had a receiver, custodian or trustee appointed for all or a substantial part of its property;
(f) any Facility Document shall at any time cease to be in full force and effect or its validity or enforceability shall be disputed or contested or any lien or security interest securing the Obligations shall cease to create a valid and perfected first priority lien or security interest in the property purported to be subject thereto;
(g) there shall be commenced against the Applicant or any Guarantor any proceeding for enforcement of a money judgment, which proceeding shall not have been stayed within thirty (30) days;
(h) a Change of Control shall have occurred or, if an individual, the death of the Applicant or any Guarantor; or
(i) the Applicant or any Guarantor shall (i) merge into or consolidate with any other Person, (ii) dispose of all or substantially all of its assets (whether now owned or hereafter acquired), or (iii) liquidate or dissolve;
THEN, and in every such event (other than an event with respect to the Applicant described in clause (e) above), and at any time thereafter during the continuance of such event, the Bank may, by notice to the Applicant, take any and all of the following actions, at the same or different times: (i) declare the Obligations then outstanding to be due and payable (in whole or in part), and thereupon such Obligations shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Applicant; (ii) require that the Applicant provide cash collateral as required in Section 7.03; and (iii) exercise all other rights and remedies available to it under the Facility Documents and applicable law; and in Agenda Page 263
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case of any event with respect to the Applicant described in clause (e) above, the Obligations then outstanding shall automatically become due and payable and the obligation of the Applicant to cash collateralize the aggregate undrawn amount of all outstanding Credits at such time as provided in clause (ii) above shall automatically become effective, in each case, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Applicant.
Section 6.02. Code and Other Remedies. In addition to any other rights and remedies granted to the Bank in the Facility Documents, the Bank may exercise all rights and remedies of a secured party under the New York UCC or any other applicable law. Upon and during the continuance of an Event of Default, the Applicant agrees, at the Bank’s request, to assemble all Collateral and make it available to the Bank at places which the Bank shall reasonably select, whether at the premises of the Applicant or elsewhere, and the Bank shall be authorized to liquidate or sell immediately, without demand for payment, advertisement or notice to the Applicant, all of which are hereby expressly waived (except such notice as is required by applicable law and that cannot be waived, in which event such notice shall be deemed proper if mailed at least five (5) Business Days before disposition or other action) any and all Collateral (whether received pursuant to Section 7.03 hereof or otherwise) at private sale or at public auction or at brokers' board or upon any exchange or otherwise, at Bank's option, in such parcels and at such time and at such place and at such price and upon such terms and conditions as the Bank may deem proper, and to apply the net proceeds of such sale or sales, together with any balance of deposits and any sums credited by or due from the Bank to the Applicant in general account or otherwise, to the payment of any and all of the Obligations, all without prejudice to the rights of the Bank against the Applicant with respect to any and all amounts which may be or remain unpaid and if any such sale be at broker's board or public auction or upon any exchange the Bank may itself be a purchaser at such sale, free from any right of redemption, which the Applicant hereby expressly waives and releases.
Section 6.03. Bank’s Appointment as Attorney-in-Fact, Etc. The Applicant hereby gives the Bank the power and right to amend or terminate, or transfer drawing rights or cure one or more discrepancies under, any Credit on behalf of the Applicant, without notice to or assent by the Applicant. The Applicant further irrevocably constitutes and appoints the Bank and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Applicant and in the name of the Applicant or in its own name, for the purpose of carrying out the terms of this Agreement and the other Facility Documents, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement and the other Facility Documents and to protect, preserve or realize upon the Collateral and the Bank’s security interest therein. All powers, authorizations and agencies contained in this Section 6.03 are coupled with an interest and are irrevocable until this Agreement is terminated; provided that Bank agrees that it will not exercise any rights under this Section 6.03 including under the power of attorney provided for herein unless an Event of Default shall have occurred and be continuing.
Agenda Page 264
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ARTICLE VII – PLEDGE AND ASSIGNMENT OF SECURITY
Section 7.01. Grant of Security. As security for the payment and performance of all Obligations, the Applicant hereby assigns and transfers to the Bank, and hereby grants to the Bank, a security interest in, all of the following property now owned or at any time hereafter acquired by the Applicant or in which the Applicant now has or at any time in the future may acquire any right, title or interest (collectively, the “Collateral”):
(a) all Deposit Accounts and Securities Accounts with any office of the Bank wherever located;
(b) all Underlying Property which has been or at any time shall be (i) received or receivable by the Applicant, the Bank or any correspondent under or in connection with each Credit, or (ii) delivered to or otherwise come into the possession, custody or control of any office of the Bank or any correspondent (which shall be deemed a collateral agent or a bailee of the Bank for the purpose of perfecting a security interest in the Underlying Property) for any purpose, whether or not for the express purpose of being used by any such entity as collateral security or for safekeeping, custody, pledge, transmission or otherwise; (c) all present and future claims and rights of the Applicant against any beneficiary of any Credit arising in connection with such Credit or the transaction underlying such Credit; and (d) all products and proceeds of the foregoing.
Section 7.02. Holder in Trust, Etc. To the extent the Applicant shall hold any Collateral or any proceeds of Collateral, it shall hold such Collateral in trust for the Bank. The Bank shall be deemed to have possession, custody or control of all Collateral actually in transit to or set apart for it (or any of its agents, correspondents or others acting on its behalf), it being understood that the receipt at any time by the Applicant (or any of its agents, correspondents, or others acting on its behalf), of Collateral shall not be deemed a waiver of any of the Bank's rights or powers.
Section 7.03. Cash Collateral. If at any time there shall occur and be continuing (a) any Event of Default, (b) any material adverse change in the condition (financial or otherwise), business, operations or prospects of the Applicant or any Guarantor, (c) any action for a temporary restraining order, preliminary or permanent injunction, beneficiary wrongful dishonor action or the issuance or commencement of any similar order, action or event in connection with any Credit or any Drawing Document or this Agreement, which order, action or event may apply, directly or indirectly, to the Bank or which otherwise threatens to extend or increase the Bank’s contingent liability beyond the time, amount or other limit provided in such Credit or this Agreement; or (d) any other event or condition which provides a basis for the Bank in good faith to deem itself insecure, then, the Applicant shall, upon Bank’s demand, deliver to the Bank, as additional security for the Obligations, cash in an amount required by the Bank.
Section 7.04. Filing of Financing Statements, Etc. The Applicant hereby authorizes the Bank to file UCC financing statements, naming the Applicant as debtor and the Bank as secured party, with respect to any or all of the Collateral hereunder. The Bank is authorized to take any Agenda Page 265
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action necessary to protect its rights in the Collateral, including but not limited to issuing an LOI for the Applicant’s account to induce delivery of goods underlying any commercial Credit. The Applicant will, at its own expense upon request by the Bank from time to time, sign any other instrument or document (including any security agreement, or control agreement) and take any other action the Bank may reasonably deem necessary or desirable to preserve, perfect, protect or maintain the Collateral and the priority of the Bank’s security interest therein and to realize upon the Bank’s rights and remedies as a secured party. For the avoidance of doubt and not in limitation of the rights of the Bank under Sections 9-104(a)(1), 9-106(a) and 8-106(e) of the New York UCC, the Applicant and the Bank (acting as a bank with respect to all Deposit Accounts and as a securities intermediary with respect to all Securities Accounts) agree that the Bank may direct disposition of the funds in any Deposit Account and may issue and follow its own entitlement orders with respect to any Securities Account, in either case, without the consent of the Applicant.
Section 7.05. Assertion of Applicant’s Rights. To the extent the Bank honors a presentation for which the Bank remains unpaid, the Bank may assert rights of the Applicant and the Applicant shall cooperate with the Bank in its assertion of the Applicant’s rights against the beneficiary, the beneficiary’s rights against the Applicant and any other rights that the Bank may have by subordination, subrogation, reimbursement, indemnity or assignment.
Section 7.06. Certain Matters Relating to Commercial Letters of Credit. (a) If the Bank shall agree to honor or accept Drawing Documents under a Credit on a time draft or deferred payment basis, the Applicant shall not take possession of the Drawing Documents or the Underlying Property except for the purpose of loading, unloading, storing, shipping, transshipping, manufacturing, processing or otherwise dealing with such Underlying Property in a manner preliminary to its sale or exchange. An Instruction to release any such Drawing Document or Underlying Property shall be deemed a representation by the Applicant to the Bank that the Applicant seeks such release for one of said purposes. In each such case, the Applicant shall apply the proceeds of Underlying Property to the Obligations relating to the applicable Credit.
(b) The Bank's rights and liens hereunder shall continue unimpaired, and the Applicant shall be and remain obligated in accordance with the terms and provisions hereof, notwithstanding the release and/or substitution of any Underlying Property which may be held as security hereunder at any time, or of any rights or interest therein.
ARTICLE VIII - OPERATIONAL PROVISIONS RELATED TO COMMERCIAL
LETTERS OF CREDIT
In the event that any commercial letter of credit is issued hereunder, the following terms shall apply:
Section 8.01. Absence of Written Instructions. In the absence of written instructions to the contrary, the Applicant agrees that (a) if the Credit authorizes drawings and/or shipments in installments and any installment is not drawn and/or shipped within the period allowed for that installment but the Applicant waives such discrepancy, the Bank is authorized to honor any Agenda Page 266
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subsequent installments so long as documents for such installments are presented within the period allowed for such installments; and (b) each negotiated Credit shall expire at the counters of the nominated person even if notice of the presentation or any documents contained in the presentation is not received by the Bank until after the expiry date of the Credit or any installment thereof.
Section 8.02. Release of Documents or Claiming of Goods from the Carrier. In the event the Bank, upon the Applicant’s request, agrees to deliver to the Applicant, a customs broker or any other person designated by the Applicant, any of the documents of title relating to the Credit, prior to having received payment in full of all the Obligations, the Applicant agrees to obtain possession of any goods represented by such documents within twenty-one (21) days after the date of delivery of such documents, and if the Applicant fails to do so, the Applicant agrees to return such documents or to have them returned to the Bank prior to the expiration of the twenty-one (21) day period. The Applicant further agrees to execute and deliver to the Bank receipts for such documents and the goods represented thereby identifying and describing such documents and goods. If the Applicant claims from the carrier any goods identified in the shipping documents required under the Credit, (by virtue of a steamship release, air release, letter of indemnity or any other means), with or without the assistance of the Bank, and such goods have been released to the Applicant or a customs broker or agent acting on the Applicant's behalf, the Applicant hereby authorizes the Bank to immediately, and without further inquiry and consideration, debit any account of the Applicant in an amount equal to the fair market value of such goods, that have been released, together with any out-of-pocket charges or expenses owing to the Bank.
Section 8.03.LOIs. Terms regarding steamship guarantees, releases or letters of indemnity in favor of a carrier issued by the Bank upon Instruction of the Applicant (“LOIs”) are set forth in Annex B.
ARTICLE IX - OPERATIONAL PROVISIONS RELATED TO STANDBY LETTERS
OF CREDIT
In the event that any standby letter of credit is issued hereunder, the following terms shall apply:
Section 9.01. Installments. If the Credit is issued subject to UCP 600, unless otherwise agreed, in the event that any installment of the Credit is not drawn within the period allowed for that installment, the Credit may continue to be available for any subsequent installments in the sole discretion of the Bank, notwithstanding Article 32 of UCP.
Section 9.02. Auto Extend Notice. If the Credit provides for automatic extension without amendment, the Applicant agrees that it will notify the Bank in writing at least thirty (30) days prior to the last day specified in the Credit by which the Bank must give notice of non-extension if the Applicant wishes the Credit not to be extended. Any decision to extend or not extend the Credit shall be in the Bank’s sole discretion and judgment. The Applicant hereby acknowledges that in the event the Bank notifies the beneficiary of the Credit that it has elected not to extend the Credit and the beneficiary draws on the Credit after receiving the notice of non-extension, the Applicant acknowledges and agrees that the Applicant shall have no claim or cause of action Agenda Page 267
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against the Bank or defense against payment under the Agreement for the Bank’s discretionary decision to extend or not extend the Credit.
Section 9.03. Pending Expiry Notice. If a Credit’s terms and conditions provide that the Bank give the beneficiary a notice of pending expiration, Applicant agrees that it will notify the Bank in writing at least thirty (30) days prior to the last day specified in the Credit by which the Bank must give such notice of the pending expiration date. In the event the Applicant fails to so notify the Bank and the Credit is extended, the Applicant's Obligations under this Agreement shall continue in effect and be binding on the Applicant with regard to the Credit as so extended.
ARTICLE X – MISCELLANEOUS
Section 10.01. Notices.
(a) Notices to the Bank provided for herein shall be sent to the address of the Bank as set forth in the applicable Credit and shall be delivered by hand, overnight courier or certified mail, return receipt requested. Notices to the Applicant provided for herein shall be sent to the address set forth in the Application unless advised otherwise in writing. (b) The Bank may transmit a Credit and any amendment thereto by S.W.I.F.T. message and thereby bind the Applicant directly and as indemnitor to the S.W.I.F.T. rules. (c) The Bank is authorized to accept and process any Application and any amendments, transfers, assignments of proceeds, Instructions, consents, waivers and all documents relating to a Credit or an Application which are sent by Electronic Transmission and such Electronic Transmission shall have the same legal effect as an original and shall be binding upon and enforceable against the Applicant. The Bank may, but shall not be obligated to, require authentication of such Electronic Transmission or receipt of original documents prior to acting on such Electronic Transmission. If it is a condition of a Credit that payment may be made upon receipt by the Bank of an Electronic Transmission advising negotiation, the Applicant hereby agrees to reimburse the Bank on demand for the amount indicated in such Electronic Transmission advice, and further agrees to hold the Bank harmless if the documents fail to arrive, or if, upon the arrival of the documents, the Bank should determine that the documents do not comply with the terms and conditions of such Credit.
(d) The Bank’s records of the content of any Instruction shall be conclusive absent manifest error.
Section 10.02. Amendment; Waiver. Neither the Bank nor the Applicant shall be deemed to have amended or modified any term hereof, or waived any of their rights unless the Bank and the Applicant consent in writing to such amendment, modification or waiver. No such waiver, unless expressly stated therein, shall be effective as to any transaction which occurs subsequent to such waiver, nor as to any continuance of a breach after such waiver. The Bank’s or the Applicant’s consent to any amendment, waiver, or modification does not mean that the Bank or the Applicant shall consent or has consented to any other or subsequent Instruction to amend, modify, or waive a term of this Agreement, any other Facility Document or any Credit.
Agenda Page 268
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Section 10.03. Indemnification. The Applicant shall indemnify and hold harmless the Bank, and its correspondents and each of its Related Parties (each, including the Bank, an “Indemnified Person”) from and against any and all Costs, arising out of, in connection with, or as a result of: (a) any Credit or any pre-advice of its issuance; (b) any transfer, sale, delivery, surrender, or endorsement of any Drawing Document at any time(s) held by any Indemnified Person in connection with any Credit; (c) any action or proceeding arising out of or in connection with any Credit or this Agreement or any other Facility Document (whether administrative, judicial or in connection with arbitration), including any action or proceeding to compel or restrain any presentation or payment under any Credit, or for the wrongful dishonor of or honoring a presentation under any Credit; (d) any independent undertakings issued by the beneficiary of any Credit (in connection with such Credit); (e) any unauthorized Instruction or error in any Electronic Transmission; (f) an adviser, confirmer or other nominated person seeking to be reimbursed, indemnified or compensated; (g) any third party seeking to enforce the rights of an applicant, beneficiary, nominated person, transferee, assignee of letter of credit proceeds or holder of an instrument or document; (h) the fraud, forgery or illegal action of parties other than the Indemnified Person; (i) the enforcement of this Agreement or any other Facility Document or any rights or remedies under or in connection with this Agreement, any other Facility Document or any Credit; (j) the Bank’s performance of the obligations of a confirming institution or entity that wrongfully dishonors a confirmation; (k) Bank dishonoring any presentation upon or during the continuance of any Event of Default or for which the Applicant is unable or unwilling to make any payment to the Bank required under Section 2.01; and (l) the acts or omissions, whether rightful or wrongful, of any present or future de jure or de facto governmental or regulatory authority or cause or event beyond the control of such Indemnified Person; provided, however, that such indemnity shall not be available to any Person claiming indemnification under this Agreement or any other Facility Document to the extent that such Costs are found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted directly from the gross negligence or willful misconduct of such Indemnified Person. If and to the extent that the obligations of the Applicant under this Section are unenforceable for any reason, the Applicant shall make the maximum contribution to the Costs permissible under applicable law.
Section 10.04. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the Bank and the Applicant and their respective successors and assigns permitted hereby, except that the Applicant may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Bank. Nothing in this Agreement, expressed or implied, shall be construed to confer any right or benefit upon any Person (other than the parties hereto, the Indemnified Persons and their respective successors and permitted assigns). The Bank may assign or sell participations in all or a portion of its rights and obligations under this Agreement (including all or a portion of its rights and obligations under any Credit) to another entity without the prior written consent of the Applicant.
Section 10.05. Termination; Survival.
(a) This Agreement is a continuing agreement and may not be terminated by the Applicant except upon (i) thirty (30) days’ prior written notice of such termination by the Applicant to the Bank at the address of the Bank set forth on the most recent Credit issued hereunder, (ii) payment of all Obligations and (iii) the expiration or cancellation of all Credits and LOIs (if any) Agenda Page 269
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issued hereunder. Notwithstanding the foregoing sentence, if a Credit is issued in favor of another entity, which entity is to issue a guarantee or undertaking on Applicant’s behalf in connection therewith, or is issued as support for such a guarantee, the Applicant shall remain liable with respect to such Credit until the Bank is fully released in writing by such entity. (b) The provisions of Articles II, III, VII and Sections 10.03, 10.05, 10.10 and 10.11 shall survive and remain in full force and effect regardless of the consummation of any transactions contemplated hereby, the reimbursement or repayment of any drawings or Obligations, the expiration or termination of the Credits or LOIs or the termination of this Agreement or any provision hereof.
Section 10.06. Counterparts; Integration; Electronic Execution. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the Facility Documents constitute the entire contract and final agreement among the parties relating to the subject matter and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. Delivery of an executed counterpart of a signature page of this Agreement or any other Facility Document that is an Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement or such other Facility Document, as applicable.
The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement and/or any other Facility Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require the Bank to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent the Bank has agreed to accept any Electronic Signature, the Bank shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of the Applicant (or any Guarantor) without further verification thereof and without any obligation to review the appearance or form of any such Electronic signature and (b) upon the request of the Bank, any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, the Applicant hereby (i) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement or any other Facility Document shall have the same legal effect, validity and enforceability as any paper original, (ii) agrees that the Bank may, at its option, create one or more copies of this Agreement or any other Facility Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of the Bank’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), and (iii) waives any argument, defense or right to contest the legal effect, validity or Agenda Page 270
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enforceability of this Agreement or any other Facility Document based solely on the lack of paper original copies of this Agreement or such other Facility Document, respectively, including with respect to any signature pages thereto.
Section 10.07. Severability. Any provisions of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof, and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 10.08. Right of Setoff. The Applicant agrees that, if an Event of Default shall have occurred and be continuing, the Bank shall be entitled, at any time and from time to time, (a) to setoff and apply any and all deposits (general or special, time or demand, provisional or final, matured or unmatured) at any time held, and other obligations at any time owing, by the Bank to or for the credit or the account of the Applicant, against any and all of the Obligations, and (b) to advance funds to the Applicant under any line of credit (committed or uncommitted) made available to the Applicant by the Bank and to apply such funds against any and all of the Obligations, irrespective of, in the case of both (a) and (b), whether or not the Bank shall have made any demand under this Agreement or any other Facility Document and although such Obligations may be contingent or unmatured or are owed to a branch or office of the Bank different from the branch or office that is holding such deposit, obligated on such indebtedness or extending such credit line, as applicable. The rights of the Bank under this Section are in addition to other rights and remedies (including other rights of setoff) that the Bank may have. The Bank agrees to notify the Applicant promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
Section 10.09. Foreign Currency Indemnity. The Applicant's obligation to make payments in any currency (the “Contract Currency”) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment or otherwise, that is expressed in or converted into any currency other than the Contract Currency, except to the extent that such tender or recovery results in the actual receipt by the Bank at its designated office of the full amount of the Contract Currency specified to be payable hereunder. The Applicant's obligation to make payments in the Contract Currency shall be enforceable as an alternative or additional cause of action to the extent that such actual receipt is less than the full amount of the Contract Currency specified to be payable hereunder, and shall not be affected by judgment being obtained for other sums due hereunder.
The Applicant shall indemnify the Bank for any shortfall in such actual receipt.
Section 10.10. Governing Law; Jurisdiction; Consent to Service of Process; Etc. (a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to principles of conflict of laws. The UCP and the ISP are incorporated by reference into this Agreement provided, however, that to the extent permitted by applicable law, this Agreement shall prevail in case of a conflict between this Agreement, the New York UCC, the UCP, ISP and/or Standard Letter of Credit Practice and the UCP shall prevail in case of conflict between the UCP and the New York UCC or other Standard Letter of Credit Practice, if the Credit is governed by the UCP and the ISP shall prevail in case of a conflict between Agenda Page 271
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the ISP and the New York UCC and other Standard Letter of Credit Practice if the Credit is a standby Credit governed by the ISP.
(b) The Applicant consents to the nonexclusive jurisdiction and venue of the federal courts located in the Borough of Manhattan, City of New York (or New York state courts sitting in the Borough of Manhattan in the event that the federal court lacks subject matter jurisdiction) and any appellate court from any thereof in any action or proceeding arising out of or relating to this Agreement, any other Facility Document, any Instruction or any Credit; provided that, a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. (c) Service of process in any legal action or proceeding arising out of or in connection with this Agreement, any other Facility Document, any Instruction or any Credit may be made upon the Applicant by mailing a copy of the summons to the Applicant either at the address set forth in the applicable Application or at the Applicant’s last address appearing in the Bank’s records. In addition, if the Applicant is organized in a jurisdiction outside the United States of America, service of process by the Bank in connection with any dispute shall be binding on the Applicant if sent to the Process Agent (as defined below) by registered mail at the address specified below. The Applicant hereby irrevocably appoints CT Corporation (the “Process Agent”), presently located at 28 Liberty Street, New York, New York 10005 as its agent to receive on its behalf and behalf of its property service of copies of the summons and complaint and any other process which may be served in any such action or proceeding. Such service may be made by mailing or delivering a copy of such process to the Applicant in care of the Process Agent at its address and the Applicant hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. Nothing herein shall affect the right of the Bank to serve legal process in any other manner permitted by law or affect the right of the Bank to bring any action or proceeding against the Applicant or its property in the courts of any other jurisdiction. (d) No legal action or proceeding arising out of or in connection with this Agreement, any Facility Document, any Instruction or any Credit may be brought by the Applicant against the Bank (i) except in a state or federal court located in the Borough of Manhattan, City of New York, State of New York and (ii) unless commenced within one (1) year after (x) the expiration date of the applicable Credit or (y) the alleged breach shall have purportedly occurred, whichever is earlier.
Section 10.11. WAIVER OF JURY TRIAL. THE APPLICANT HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO JURY
TRIAL IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER FACILITY DOCUMENT, ANY
INSTRUCTION, ANY CREDIT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
Section 10.12. Disclosure. The Bank may disseminate information relating to the Applicant, this Agreement and any Credit (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors, and third parties (including any correspondent bank) selected by any of the foregoing, wherever situated, for confidential use Agenda Page 272
Exhibit D-2 Page 18
in connection with Bank’s performance, administration or enforcement of this Agreement or any other Facility Document (including in connection with the provision of any service and for data processing, statistical and risk analysis purposes); (b) to the extent requested by any Governmental Authority; (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) in connection with the exercise of any remedies hereunder or under any other Facility Document or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder or under any other Facility Document, (e) subject to an agreement containing customary confidentiality provisions, to any assignee of or participant in, or any prospective assignee of or participant in, any of its rights or obligations under this Agreement or any Credit; (f) with the consent of the Applicant or (g) to the extent such information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Bank on a non-confidential basis from a source other than the Applicant.
Section 10.13. Waiver of Immunity. The Applicant acknowledges that this Agreement and each Credit is entered into (or will be entered into) for commercial purposes. To the extent that the Applicant may now or hereafter be entitled, in any jurisdiction in which judicial proceedings may at any time be commenced with respect to this Agreement, any other Facility Document or any Credit, to claim for itself or its revenues or properties any immunity from the jurisdiction of any court or from legal process (whether from service or notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and to the extent that in any such jurisdiction there may be attributed to the Applicant any such immunity (whether or not claimed), the Applicant hereby irrevocably agrees not to claim, and hereby waives, such immunity in respect of its obligations under this Agreement, any other Facility Document or any Credit.
Section 10.14. Interest Rate Limitation. In no case shall the interest which may be charged by the Bank hereunder exceed the maximum amount which the Bank may charge or collect under the law applicable to it.
Section 10.15. Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
IN WITNESS WHEREOF, the Applicant has caused this Agreement to be duly executed and delivered by its authorized officer as of the day and year written below.
APPLICANT
By: ________________________________
Name:
Title:
Agenda Page 273
Exhibit D-2 Page 19
Date:
Without limiting the terms above, the Applicant hereby authorizes the Bank to debit Applicant’s account no. unless the Applicant shall have agreed in writing to other payment arrangements with the Bank for the amount of each drawing and/or the Bank’s commissions and charges.
Agenda Page 274
Exhibit D-2 Page 20
ANNEX A - DEFINITIONS
The following terms shall have the following meanings:
“Affiliate” means, with respect to a specific Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under the common Control with the Person specified.
“Agreement” means this Continuing Agreement for Commercial and Standby Letters of Credit, including the Annexes hereto, as it may be amended, supplemented, or otherwise modified from time to time.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Applicant or any of its subsidiaries or Affiliates from time to time concerning or relating to bribery or corruption.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City, New York are authorized or required by law to remain closed.
“Change of Control” means the acquisition of direct or indirect Control of the Applicant or any Guarantor by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof). “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the arrangement or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Costs” means any and all claims, suits, judgments, costs, losses, fines, penalties, damages, liabilities, and expenses, including expert witness fees and legal fees, charges and disbursements of any counsel for any Indemnified Person.
“Default Rate” means a rate per annum equal to 2% above the Prime Rate. “Deposit Account” has the meaning set forth in the New York UCC. “Drawing Document” means any draft, demand or claim for payment under any Credit or other document presented for purposes of drawing under a Credit. “Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
Agenda Page 275
Exhibit D-2 Page 21
“Electronic Transmission” means any electronic transmission using SWIFT, electronic mail, facsimile, any other computer generated telecommunications, or any electronic platform as agreed by the Bank from time to time.
“Excluded Taxes” means any (i) Taxes imposed on or measured by net income (however denominated), franchise taxes or branch profit taxes, in each case imposed by the jurisdiction in which the Bank is organized or in which its applicable office issuing any Credit hereunder is located, and (ii) U.S. Federal withholding taxes imposed under Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended, (the “Code”) as of the date hereof (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code. “Facility Document” means this Agreement and any other agreement entered into in connection herewith by the Applicant or any Guarantor with or in favor of the Bank, including any Application but excluding any Credit.
“Good Faith” means honesty in fact in the conduct or transaction concerned. “Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantor” means any Person that has guaranteed or provided credit support for all or part of the Obligations.
“Indemnified Taxes” means Taxes other than Excluded Taxes. “Instruction” means each Application, any inquiries, communications and instructions (in any form, whether oral, telephonic, written, electronic mail or transmission or facsimile) regarding a Credit.
“ISP” means, with respect to any Credit, International Standby Practices 1998 (International Chamber of Commerce Publication No. 590) and any subsequent revision thereof adhered to by the Bank on the date such Credit is issued. “New York UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York.
“Obligations” means all obligations and liabilities of the Applicant to the Bank under any Facility Document or otherwise with respect to any and all Credits and LOIs issued hereunder (if any), whether matured or unmatured, absolute or contingent, now existing or hereafter incurred.
Without limiting the foregoing, the Obligations include (a) the obligation to pay interest, commissions, charges, expenses, fees, indemnities and other amounts payable by the Applicant Agenda Page 276
Exhibit D-2 Page 22
under any Facility Document and (b) the obligation of the Applicant to reimburse any amount in respect of any of the foregoing that the Bank may elect to pay or advance on behalf of the Applicant.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, governmental authority or other entity. “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Bank) or any similar release by the Federal Reserve Board (as determined by the Bank). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Regulatory Change” means any change after the date hereof in United States federal, state or foreign laws or regulations (including Regulation D of the Board of Governors of the Federal Reserve System) or the adoption or making after such date of any interpretations, directives or requests applying to a class of banks including the Bank of or under any United States federal or state, or any foreign, laws or regulations (whether or not having the force of law) by any court or governmental or monetary authority charged with the interpretation or administration thereof; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives promulgated by Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall, in each case, be deemed to be a “Regulatory Change”, regardless of the date enacted, adopted, issued, or implemented. “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates. “Released Merchandise” means, with respect to a Credit or LOI, all Underlying Property released (including pursuant to a forwarders cargo receipt or by any other means whatsoever) or consigned to the Applicant or any Person designated by the Applicant in connection with such Credit or LOI.
“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea and Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, by the United Nations Security Council, the Agenda Page 277
Exhibit D-2 Page 23
European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b), or (d) any Person otherwise the subject of any Sanctions. “Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) if the Applicant is organized outside of the United States of America the United Nations Security Council, the European Union, any European Union member state, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority. “Securities Account” has the meaning set forth in the New York UCC. “Standard Letter of Credit Practice” means, for the Bank, any domestic or foreign law or letter of credit practices applicable in the city in which the Bank issued the applicable Credit or for its branch or correspondent, such laws and practices applicable in the city in which it has advised, confirmed or negotiated such Credit, as the case may be. Such practices shall be (i) of banks that regularly issue Credits in the particular city and (ii) required or permitted under the UCP or the ISP, as chosen in the applicable Credit.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees, value added tax or any other goods and services, use or sales tax or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “UCP” means, with respect to any Credit, Uniform Customs and Practice for Documentary Credits 2007 Revision, International Chamber of Commerce Publication No. 600 and any subsequent revision thereof adhered to by the Bank on the date such Credit is issued. “UN Convention” means the United Nations Convention on Independent Guarantees and Standby Letters of Credit.
“Underlying Property” means all property of any kind whatsoever (now existing or hereafter acquired) referred to, or relating to, an applicable Credit including, without limitation, any and all right, title and interest of the Applicant in any goods, equipment, inventory, money, documents, letters of credit, warehouse receipts, instruments, securities, security entitlements, financial assets, investment property, precious and base metals, chattel paper, electronic chattel paper, accounts, commercial tort claims, deposit accounts, general intangibles (including any claims for breach of contract, breach of warranty claims and any insurance policies and proceeds), letter of credit rights, choses in action and the proceeds of any and all thereof (including any and all of the aforesaid referred to in any Credit or the Drawing Documents relating thereto).
Agenda Page 278
Exhibit D-2 Page 24
ANNEX B – TERMS APPLICABLE TO THE ISSUANCE OF LOIs
If the Bank issues an LOI or endorses a bill of lading at the instruction of the Applicant or otherwise pursuant hereto, the Applicant agrees as follows:
(a) Except as otherwise set forth in this Annex B or expressly set forth elsewhere in this Agreement, an LOI shall be deemed issued by the Bank subject to the same terms and conditions set forth herein for Credits, including, without limitation, payment obligations, indemnification provisions and limitations of liability benefiting the Bank and other Indemnified Persons.
(b) The Applicant shall be liable for payments made under any LOI on demand and otherwise subject to Article 2 of the Agreement. The Bank shall have the right in its sole discretion and without notice to or approval of the Applicant, to pay, settle or adjust any claim or demand made against or upon the Bank in connection therewith without inquiry or determination, on the Bank’s part, of the circumstances, merits or validity of any claim or demand. (c) The Applicant shall take whatever steps are necessary to obtain the shipping documents concerning the Released Merchandise. Upon Applicant’s receipt of such shipping documents, the Applicant shall deliver them to the carrier, duly endorsed by all parties whose endorsement is required by the carrier, and obtain from the carrier and deliver to the Bank, the LOI and a release of the Bank’s liability to the carrier.
(d) The Bank may make payments against any drawing under the Credit related to an LOI, whether or not the drawing shall comply with the terms and conditions of such Credit, without any liability whatsoever to the Bank. The Applicant expressly acknowledges that the Applicant may be required to reimburse the Bank for payments made by the Bank under both the LOI and such Credit with respect to the same Released Merchandise. (e) The Applicant shall account by delivering to the Bank, immediately upon the receipt thereof by the Applicant, the proceeds of the sale of the Released Merchandise or the documents related thereto in whatever form received (with Applicant’s endorsement where necessary) to be applied by the Bank to the payment of any drawing under the Credit. If any proceeds shall be notes, accounts, acceptances, or in any form other than cash, they shall not be applied by the Bank until paid in cash. The Bank shall have the option at any time to sell or discount these items and so apply the net proceeds, conditionally upon final payment of these items. (f) The Applicant shall pay all charges in connection with the Released Merchandise and shall at all times hold it separate and apart from the property of the Applicant and shall definitively show such separation in all its records and entries. (g) The Applicant shall at all times keep the Released Merchandise fully insured at Applicant’s expense in favor of, and to the satisfaction of, the Bank against loss by fire, theft, and any other risk to which it may be subject. The Applicant shall deposit the insurance policies with the Bank upon its demand. If for any reason any of such policies fail to provide for payment of the loss thereunder to the Bank as its interest may appear, the Applicant hereby (i) assigns and Agenda Page 279
Exhibit D-2 Page 25
makes the loss payable under any of such policies payable to the Bank as its interest may appear, (ii) assigns to the Bank all of the avails and proceeds of any and all of such policies, and (iii) agrees to accept such avails and proceeds in trust for the Bank and to forthwith deliver the same to the Bank in the exact form received (with the endorsement of the Applicant where necessary). (h) The Bank shall have no responsibility for the existence, quantity, quality, condition, value or delivery of any Released Merchandise or the correctness, validity or genuineness of the documents purporting to represent Released Merchandise. .
Agenda Page 280
Exhibit E Page 1
EXHIBIT E
ACCOUNT CONTROL AGREEMENT
Agenda Page 281
Exhibit F Page 1
EXHIBIT F
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
Agenda Page 282
Exhibit G Page 1
EXHIBIT G
SECURITY AGREEMENT
Agenda Page 283
Item 9 – Proposed Amendment to
Credit Agreement with JP Morgan
June 1, 2023
Agenda Page 284
Recommendation:
2 Adopt Resolution No. 052 authorizing and approving entry into an Amendment to the revolving credit agreement (“Credit Agreement”) with JPMorgan Chase Bank (“JPM”), and delegating authority to CPA authorized representatives to execute and deliver such amendment and other documents related thereto.
Agenda Page 285
Summary
3 CPA’s current $80 million Credit Agreement with JPMorgan Chase (JPM) expires on October 31, 2023
The proposed amended and restated credit agreement ("Amendment") with JPM would increase the size of the facility to $160 million, extend the Maturity Date of the facility to March 31, 2024, improve certain credit terms, replace the London Interbank Offered Rate (LIBOR) with Secured Overnight Financing Rate (SOFR) as the benchmark borrowing rate, and effect certain other changes of an administrative nature.
The Amendment would provide CPA with greater liquidity at a time that energy market risks are rising, increase CPA's days liquidity on hand by approximately 27 days and provide greater assurance that the credit facility will be available when CPA needs it
At its May 24, 2023 meeting the Finance Committee expressed consensus support that CPA move forward with the Amendment
Agenda Page 286
Background
4 CPA uses its Credit Agreement with JPM to provide letters of credit and to borrow funds to provide working capital
Maintenance of a credit facility is important to:
Provide additional liquidity and support the days liquidity on hand target described in CPA’s Reserve Policy
Demonstrate financial strength to market participants
Agenda Page 287
Proposed Terms
5 Estimated legal fees: $26,500
Projected costs associated with the Amendment are included in the FY 2022/23 and proposed 2023/24 budgets
Current
JP Morgan Agreement
Amended
JP Morgan Agreement
Amount $80 million $160 million
Expiry 10/31/2023 03/31/2024
Borrowing Rate (1) 1.90% 1.90%
Letter of Credit Fee 1.65% per annum 1.65% per annum
Loan Fee None None
Non utilization fee 0.45% of unused Amount 0.45% of unused Amount Monthly cost before
borrowing and LC Fees $30,000 $60,000
(1) Borrowing Rate represents a spread over the SOFR. CPA would owe interest on borrowings at the rate equal to SOFR + 1.90% Agenda Page 288
Proposed Agreement
6 Staff recommends the proposed Amendment for the following reasons:
$80 million increase in the size of the facility will add 27 days to the Days Liquidity on Hand ratio as described in CPA’s Reserve Policy. CPA had 60 Days Liquidity on Hand as of March 31, 2023
The increased credit facility will improve market perception of CPA’s financial strength
The Amendment modifies the “Material Adverse Change” and "Material Adverse Effect" provisions of the agreement to CPA's benefit, providing greater assurance that the facility will be available when CPA needs it
Five-month extension will allow CPA to consider of a future renewal / replacement of the Credit Agreement early next spring
Agenda Page 289
Recommendation:
7 Adopt Resolution No. 23-06-052 authorizing and approving entry into an Amendment to the revolving credit agreement (“Credit Agreement”) with JPMorgan Chase Bank (“JPM”), and delegating authority to CPA authorized representatives to execute and deliver such amendment and other documents related thereto.
Agenda Page 290
Questions?
Agenda Page 291
Staff Report – Agenda Item 10
To: Board of Directors
From: Karen Schmidt, Director, Rates & Strategy
Approved by: Ted Bardacke, Chief Executive Officer
Subject: Net Energy Metering 3.0
Date: June 1, 2023
RECOMMENDATION
Staff will provide a presentation on the item and request feedback from the Board of Directors.
ATTACHMENT
1. Presentation on Net Energy Metering 3.0
Agenda Page 292
Item 10 – Net Energy Metering
3.0 Policy Options
June 1, 2023
Agenda Page 293
Summary
The CPUC Net Energy Metering (NEM) 3.0 decision reduced overall compensation for roof- top solar for new solar customers. The reduced compensation primarily occurs on the delivery side of the bill and at a level that CPA cannot make up for with enhanced customer generation compensation
The CPUC NEM 3.0 decision increased the economic payback for battery storage and provided added compensation for low-income customers
This approach partially aligns with CPA policy goals but may be insufficient to overcome barriers to storage adoption in general nor increased solar access for low-income customers Following several meetings with the CAC NEM working group, the CAC as a whole, the Executive Committee, and the Energy Committee, staff is recommending that:
1) CPA follow the new NEM 3.0 approach to export compensation 2) Complement the NEM 3.0 approach with a broad-based storage rebate program that contains additional low-income incentives
3) Work with member agencies, the CAC and industry to develop and issue RFP(s) in FY 23/24 targeted at increasing solar + storage adoption particularly among hard-to-reach customers, such as renters Staff is requesting feedback from the Board on this recommendation prior to developing a new solar tariff to present to the Board for approval in July Agenda Page 294
Presentation Overview
How Net Energy Metering Works
Review CPA goals for implementing Net Energy Metering
Overview of CPUC’s final decision and impact to CPA customers CPA policy options
Next steps
Agenda Page 295
How Net Energy Metering Works
4 Household Energy
Consumption (kW)
Behind-the-meter
Rooftop PV
Production (kW)
5 2 kW
3 kW
3 Stored on site
Consumed on site
Exported to grid from
battery discharge
2 kW
Behind-the-meter
Battery Storage (kW)
2 NEM 2.0: Exports compensated at
retail rate for each time-of-use (TOU)
period
NEM 3.0: Exports compensated at
Avoided Cost Calculator (ACC) rate
for each hour
Customers with batteries can
store solar generation when it’s
abundant and cheap and export
it to the grid when clean energy
is less available and more
valuable
Solar generation
consumed on site is
valued at retail rate
Exported directly to grid (no storage)
Agenda Page 296
CPA NEM goals
5 Support grid reliability
Incentivize energy storage adoption
Expand access for low-income customers
Agenda Page 297
Existing customers already on NEM 1.0 and 2.0 tariffs
o CPA’s ~66,000 existing NEM customers will remain on their current NEM 1.0 or 2.0 tariff for the duration of their 20-year legacy period – no change o CPA will place new NEM customers on its existing NEM 2.0 tariff until the CPA Board adopts a new NEM policy
o Current NEM customers cost CPA $28 - $36 million per year*; that amount will slowly decline over time as 20-year legacy periods expire – see slide 17 for details Export compensation (payments for energy generated in excess of consumption) are now based on hourly Avoided Cost Calculator (ACC) values rather than retail rates o Incentivizes storage adoption through export values that reflect value of relieving grid stress o Reduced payback versus NEM 2.0 occurs primarily on the delivery side of customer bills o Adders (“ACC plus”) on the delivery side of residential bills for systems installed in years 1-5 Low-income customers receive a 2x incentive adder for systems installed in years 1-5 CPUC’s NEM 3.0 decision and CPA impacts
*Net financial costs to CPA, including payments to NEM customers for energy exported to the grid, avoided CPA market energy purchases and Resource Adequacy requirements, and avoided customer retail energy purchases. Does not include indirect environmental, grid, or customer benefits.
Agenda Page 298
CPA Policy Options
Agenda Page 299
CPA NEM Policy Options
Continue NEM 2.0 tariff –
compensate new customers at
retail rates
Follow CPUC NEM 3.0 –
compensate new customers at
ACC
Provide additional incentives for
storage and low-income
customers through rate design
and/or through customer
programs
Options
8 Impact on customer behavior
Impact on CPA policy goals
Financial impact to CPA
Considerations
Agenda Page 300
NEM 2.0 vs. 3.0: Value to Customers
9 Continuing to place new CPA solar customers on NEM 2.0 would not offset the reduction in system payback which is concentrated on the delivery side of customer bills *Non-CARE customer with average CPA NEM residential load (8,497 kWh/year), 6.2 kW PV,10 kWh/5 kW battery system, no adders.
$0
$500
$1,000
$1,500
$2,000
$2,500
$3,000
$3,500
$4,000
$4,500
NEM 2.0 (current) CPA @ NEM 2.0 CPA @ NEM 3.0
Annual Net Value
NEM Options – Impact to New Customers (example)*
Agenda Page 301
NEM 2.0 vs. 3.0: CPA Policy Goals
10 NEM 3.0 increases the incentive for storage compared to NEM 2.0 CPA remaining at NEM 2.0 would reduce incentive to adopt storage compared to NEM
3.0 because NEM 3.0 generation compensation is significantly higher for peak-demand hours
Low-income customer impact
o Generally NEM 3.0 pays customers less than NEM 2.0, even with low-income adders o NEM 3.0 reduces the disparity in NEM value to CARE versus non-CARE customers, but the adders are unlikely to be sufficient in overcoming economic and other barriers for low-income customers
NEM 3.0 Scenarios – Storage Premium (example)*
Scenario Added Value to
Customer ($/year) Storage Premium
NEM 2.0 (current) $596 17%
CPA @ NEM 2.0 $697 34%
CPA @ NEM 3.0 $906 60%
*Non-CARE customer with average CPA NEM residential load (8,497 kWh/year), 6.2 kW PV,10 kWh/5 kW battery system, no adders.
Agenda Page 302
NEM 2.0 vs. 3.0: Projected CPA annual cost - New Customers 11 Scenario
Program Cost in 2030 ($M) % of Revenue
Low Growth
(5%)
Mid Growth
(10%)
High Growth
(15%)
Low Growth
(5%)
Mid Growth
(10%)
High Growth
(15%)
CPA @ NEM 2.0 $14.9 $29.8 $44.6 0.9% 1.9% 2.8%
CPA @ NEM 3.0 $5.7 $11.3 $17.0 0.4% 0.7% 1.1%
Total new NEM customers in 2030 22,627 45,254 67,880
NEM 3.0 – Estimated CPA Annual Cost in 2030
While the benefit to new solar customers of CPA staying on NEM 2.0 would be modest, the added cost to CPA would be significant
Actual costs will depend on multiple factors including customer adoption rates over time, battery sizing, and optimization of battery dispatch
Agenda Page 303
12 Rate adders
Scenario Estimated Incremental Cost to
CPA in 2030*
10% Adder $0.5M-$1.0M
10% Adder on-peak only $0.1M-$0.4M
CPA could adopt a rate adder – either a percentage increase or a flat cents per kilowatt-hour (c/kWh) adder to the ACC value – to increase the incentive for storage adoption and/or to increase compensation for low-income customers
A CPA rate adder could have marketing benefits. Industry partners believe that upfront incentives or rebates will have a much higher impact on customer decisions compared to rate adders
The cost to CPA of a rate adder over time is hard to predict. Costs could be contained by limiting the number of years the adder is offered, capping the adder value, and/or only applying the adder to certain hours (e.g., on peak)
*Assuming mid growth (10%) scenario, approximately 45,000 customers in 2030.
Agenda Page 304
13 Incentives and Programs for Storage Adoption
Incentives and other customer programs may provide a bigger boost to adoption of storage resources than rate adders
Via Power Response, CPA currently offers existing customers with storage a one-time $300-$400 enrollment payment and a $100-$300 annual participation incentive The Draft FY 2023/24 Budget includes $812,500 for a rebate program to spur new battery installations, with details still being developed o Battery rebates for residential customers between $750 and $1000 are being considered with set-asides for low-income customers
o Incentives could be layered on top of federal tax credits and state incentives Other battery incentives or programs CPA is exploring include:
o Discounted direct installation of storage for low-income customers o Partnering with storage providers to provide discounts to CPA customers o On-bill financing re-payment for storage
Agenda Page 305
14 Recommendation
Set CPA’s export compensation rate consistent with Avoided Cost Calculator values adopted by CPUC’s NEM 3.0 decision
o Keeping new solar customers on NEM 2.0 will not offset NEM 3.0’s reduced compensation which occurs primarily on the delivery side of the bill and would come with significant costs to CPA
o Adopting ACC-based export compensation is consistent with CPA’s policy goals of supporting grid reliability and encouraging storage adoption o Consistency with new solar customer offerings across the state and SCE territory which will simplify CPA and installer communications and minimize customer confusion Adopt a broad-based storage incentive program, consistent with the Draft FY2023/24 Budget, in conjunction with implementation of the new NEM 3.0 tariff, likely towards the end of the 2023
Work with member agencies, the CAC and industry to develop and issue RFP(s) in FY 2023/24 targeted at increasing solar + storage adoption particularly among hard-to-reach customers, such as renters Agenda Page 306
15 Next Steps
Draft detailed NEM tariff reflecting Board and CAC feedback Present proposed NEM tariff to Board in July for approval in order to provide advance notice to customers and minimize confusion in advance of likely implementation in late 2023
Present battery incentive program details to Board prior to implementation of new NEM tariff implementation
Develop and issue RFP(s) in FY 2023/24 targeted at increasing solar + storage adoption particularly among hard-to-reach customers, such as renters Agenda Page 307
Questions and Feedback
Agenda Page 308
Appendix
Agenda Page 309
How much does NEM 2.0 cost CPA?
CPA has about 63,000 residential and 1,600 commercial existing NEM customers Annual costs will continue until existing customers’ 20-year legacy period expires 18 Category Estimated Annual CPA Cost
(excl. retail rev)
Estimated Annual CPA Cost
(incl. retail rev)
Retail energy sales avoided through customer
on-site generation* $3.7M $14.4M
CPA payments to customers for energy
exported to grid $27.8M $27.8M
CPA avoided market energy purchases ($3.3M) ($5.5M)
Reduction in CPA Resource Adequacy
requirement ($0.6M) ($0.6M)
Total $27.6M $36.1M
Total as % of Projected FY22-23 Revenue ~2.3% ~3.0%
*Includes allocation of CPA fixed costs.
Agenda Page 310
How much would NEM 3.0 cost CPA?
19 Assuming CPA mirrors CPUC/SCE approach and CPA NEM load grows 10% per year from 2023 to 2030 (about 7,900 customers per year or 59,000 customers in total) Actual costs will depend on multiple factors including customer adoption rates over time and optimization of battery storage and dispatch
Category Estimated Annual CPA Cost in
2030 (excl. retail rev)
Estimated Annual CPA Cost in
2030 (incl. retail rev)
Retail energy sales avoided through
customer on-site generation $3.1M $11.8M
CPA payments to customers for energy
exported to grid $4.4M $4.4M
CPA avoided market energy purchases ($2.7M) ($4.5M)
Reduction in CPA Resource Adequacy
requirement ($0.4M) ($0.4M)
Total $4.3M $11.3M
Total as % of Projected FY23-24 Revenue ~0.4% ~0.9%
Agenda Page 311
NEM 2.0 vs. 3.0: Customer Value
20 NEM 3.0 Scenarios – Storage Premium (examples)*
Scenario
Low Scenario Mid Scenario Mid Scenario (2X storage)
Added Value to
Customer ($/year) Storage Premium Added Value to Customer ($/year) Storage Premium Added Value to Customer ($/year) Storage Premium NEM 2.0 (current) $542 23% $596 17% $1,118 31%
CPA @ NEM 2.0 $632 46% $697 34% $1,297 64%
CPA @ NEM 3.0 $822 78% $906 60% $1,728 114%
*Low Scenario: average CPA non-NEM residential customer load (6,152 kWh/year), 4.1 kW PV, 9.3 kWh/5 kW battery. Mid Scenario: average CPA NEM residential customer load (8,497 kWh/year), 6.2 kW PV, 10 kWh/5 kW battery. Mid Scenario (2X storage): same as Mid Scenario with 20 kWh/10 kW battery system.
Agenda Page 312
Management Report
To: Board of Directors
From: Ted Bardacke, Chief Executive Officer
Subject: Management Report
Date: June 1, 2023
Legislative Advocacy
CPA’s sponsored bill, AB 1538 (Muratsuchi), was held in suspense in the Assembly Appropriations Committee as were many other energy-related spending bills due to the tight fiscal outlook in the state budget. The concept behind the bill – incentives for Load Serving Entities to go above compliance mandates in adding additional clean capacity to the California electricity grid – remains embedded in already budgeted funds administered by the California Energy Commission. Staff thank all CPA members who supported the bill and are working on alternative pathways to advance the concept in this legislative year or next.
Advocacy by CPA and CalCCA has been effective in getting many suggested amendments to AB 1373 (Garcia) into print, largely resolving most issues that had CPA taking an oppose unless amended position on the bill. AB 1373 would have made three significant policy changes: 1) establish a central procurement entity in the Department of Water Resources (DWR) and authorize the CPUC order the IOUs or the new DWR entity to procure energy resources on behalf of all Load Serving Entities – this has been amended to only include strategic long-lead time resources such as off-shore wind and geothermal and has limited this function to DWR; 2) it would give the CPUC expanded and undefined authority over CCA’s procurement autonomy by way of their Integrated Resource Plans – this has been amended to clarify existing CPUC authority and not a broad expansion; and, 3) it would add a new penalty that LSEs must pay if they do not meet their Resource Adequacy requirements, on top of existing penalties – this has been amended by requiring LSEs to pay the higher of the penalties, rather than both. Some Agenda Page 313
Board of Directors Management Report
clean up amendments are still being worked on but both CPA and CalCCA have removed their oppose unless amended positions on the bill.
While this progress on AB 1373 clearly demonstrates the Assembly has rejected the Administration’s original proposal, other legislative vehicles for the Newsom Administration’s budget change proposal continue to exist in both the Senate and within the state budget. It is therefore still possible that the administration could seek to implement its desired changes through a Budget Trailer Bill, which receives less legislative scrutiny and may not be bound by different policy legislation. Vigilance and close contact with our legislators will be important should the original bill language appear to be moving forward through other means.
Summer Reliability Preparations
Following up on the May Board presentation regarding summer electricity reliability, CPA has provided PIOs at all member agencies with a communications toolkit that can be used should grid stress occur and communications regarding reduction in electricity use be necessary. With additional hydro resources available this year and thousands of megawatts of new battery energy storage coming on-line, the state’s overall resource picture is improved from last year but reliability can still be tested by climate events and extreme weather.
Monthly Financial Performance
In March 2023 CPA recorded an operating gain of $1.9 million, showing continued improvement from the prior month though less than the budgeted operating gain of $4.7 million due to slightly higher than expected customer usage and wholesale market electricity prices. The monthly financial dashboard is included with the full FYQ3 results presented in Item 4 of the Board packet. CPA remains on track to contribute over $80 million to the net position consistent with the FY 2022/23 Amended Budget.
Customer Participation Rate and Opt Actions
As of May 22, 2023, CPA’s overall participation rate was 93%, unchanged from the previous month. CPA had 1,006,147 active customers, up 712 customers since April.
Opt-out levels for the month – 309 accounts through the fourth week of May – are slightly Agenda Page 314
Board of Directors Management Report
higher than March but in line with historical norms during the second quarter of the year.
New accounts (“move-ins”) were higher than closed accounts (“move-outs”) by 142 customers in May, slightly above historical norms for the second quarter of the year.
Participation rates and active accounts by jurisdiction are attached to this report.
Customer Service Center Performance
Incoming calls to CPA’s Customer Service Center during May were steady compared to the previous month and slightly lower than typical months in the second quarter of the year. Through May 23, CPA received 1,197 calls compared to 1,222 calls in April and an average of 1,795 calls per month in the second quarter of previous years. 99% of calls were answered within 45 seconds, unchanged from the previous month, and the average wait time was 6 seconds, up one second from the previous month.
Contracts Executed Under the Chief Executive Officer’s Authority A list of non-energy contracts executed under the CEO’s signing authority is provided in Attachment 2. The list includes all open contracts as well as all contracts, open or completed, executed in the past 12 months.
ATTACHMENTS
1. Participation Rates by Jurisdiction
2. Non-Energy Contracts Executed under CEO’s Authority
Agenda Page 315
Preferred Energy Option Participation %
100% Green 93.1%
Clean 94.3%
Lean 92.7%
Total 93.2%
OVERALL CUSTOMER STATUS REPORT
May 22, 2023
PARTICIPATION BY CITY AND COUNTY
Preferred Energy Option Active Accounts Participation % Lean % Clean % 100% Green % Agoura Hills 100% Green 8,088 88.4% 2.3% 0.4% 97.4%
Alhambra Clean 33,968 95.4% 1.5% 98.3% 0.2%
Arcadia Lean 22,553 95.3% 99.8% 0.1% 0.1%
Beverly Hills 100% Green 18,601 97.4% 1.8% 0.1% 98.1%
Calabasas 100% Green 9,727 93.8% 2.0% 0.3% 97.7%
Camarillo 100% Green 28,291 89.8% 1.2% 0.1% 98.7%
Carson Clean 29,358 95.7% 1.3% 98.5% 0.2%
Claremont 100% Green 12,652 91.5% 2.7% 0.3% 97.0%
Culver City 100% Green 19,135 94.8% 4.0% 1.2% 94.9%
Downey Clean 36,730 95.1% 1.6% 98.3% 0.1%
Hawaiian Gardens Clean 3,628 95.5% 1.1% 98.6% 0.3%
Hawthorne 100% Green 28,411 97.1% 0.4% 1.4% 98.2%
Los Angeles County 100% Green 300,159 94.9% 1.9% 37.2% 60.9% Malibu 100% Green 6,973 95.0% 3.0% 0.4% 96.6%
Manhattan Beach 100% Green 15,448 95.8% 2.8% 0.2% 97.0% Moorpark Clean 11,396 85.7% 3.1% 96.4% 0.6%
Ojai 100% Green 3,509 88.7% 6.1% 1.2% 92.7%
Oxnard 100% Green 55,329 92.5% 4.0% 0.9% 95.1%
Paramount Lean 15,797 97.7% 96.5% 2.6% 0.9%
Redondo Beach 100% Green 33,195 96.2% 1.9% 0.1% 98.0%
Rolling Hills Estates 100% Green 3,506 92.1% 7.2% 1.6% 91.2% Santa Monica 100% Green 54,414 94.4% 3.4% 0.8% 95.8%
Sierra Madre 100% Green 4,953 92.2% 5.6% 1.6% 92.9%
Simi Valley Lean 43,255 89.5% 99.7% 0.1% 0.2%
South Pasadena 100% Green 11,627 95.0% 3.8% 0.7% 95.5%
Temple City Lean 12,564 95.7% 99.8% 0.1% 0.2%
Thousand Oaks 100% Green 44,345 83.2% 8.0% 1.6% 90.5%
Ventura 100% Green 43,808 88.9% 4.8% 1.5% 93.6%
Ventura County 100% Green 33,339 87.0% 6.4% 1.4% 92.2%
West Hollywood 100% Green 26,454 97.1% 2.4% 0.4% 97.2%
Westlake Village Lean 3,737 88.2% 99.5% 0.1% 0.5%
Whittier Clean 31,197 94.1% 1.9% 98.0% 0.2%
Total 1,006,147 93.2%
Energy Option Active Accounts Participation %
100% Green 624,143 62.0%
Clean 259,485 25.8%
Lean 122,519 12.2%
Total 1,006,147 100.0%
OVERALL PARTICIPATION BY ENERGY OPTION
Agenda Page 316
Vendor Purpose Month NTE Amount Status Notes
Swanson Martin Bell Legal Services Agreement (general liability) May 2023 $75,000 Active LinkedIn Subscription for recruiting platform April 2023 $20,250 Active Lattice
Renewal for Performance management
software April 2023 $9,000 Active
AN Catering Fifth anniversary lunch venue April 2023 $17,444 Active Polsinelli, LLP
Legal Service Agreement (Employment,
Compliance, General Legal Support related
to Commercial Liability, Risk, and
Mitigation issues)
April 2023 $75,000 Active Renewal
Chapman & Cutler, LLP Legal Services (CPA's Credit Agreement) April 2023 $55,000 Active Renewal Salesforce
Additional licesnses for Stakeholder
Relationship Management application
subscription
April 2023 $723 Active
Accuweather Weather forecasting March 2023 $10,176 Active goodpr. Event planning services March 2023 $16,000 Active Shute, Mihaly & Weinberger, LLP
Legal Service Agreement (Regulatory,
Administrative, Environmental, Energy
Procurement, Public Contracting, Public
Entity Governance Laws, Issues and/or
Proceedings)
March 2023 $65,000 Active Renewal
Davis Wright Tremaine Legal services (regulatory) March 2023 $125,000 Active Renewal Ntooitive Website development March 2023 $20,000 Active Municipal Capital Markets GIC brokerage services February 2023 $38,900 Active Amendment for GIC brokerage services - paid out of Energy Prepay Bond proceeds
Clear Language Company Minute transciption for board meetings January 2023 $20,000 Active Renewal Mercer Retention incentive program development January 2023 $50,000 Active SBCCOG Satellite Board meeting venue January 2023 $50/hr Active Wrike Project management software January 2023 $5,814 Active Ironclad Contract lifecycle management platform January 2023 $16,000 Active PrimeGov Board and committee meeting agenda
management software December 2022 $16,000 Active Renewal DERNetSoft, Inc. Business customer engagement reporting tool December 2022 $53,000 Active
Ion Objects, Inc. IT consulting December 2022 $4,000 Completed Amendment for updated project scope AiQueous, LLC Salesforce implementation December 2022 $7,395 Active Amendment to update scope for project completion
ZGlobal Engineering services December 2022 $50,000 Active Pinnacle Advocacy Lobbying services December 2022 $66,652 Active Omni Government Relations Lobbying services December 2022 $82,492 Active Langan Software development and IT consulting December 2022 $35,000 Active Clean Power Alliance
Non-energy contracts executed under Chief Executive Officer authority Rolling 12 months -- Open contracts shown in Bold
Agenda Page 317
Vendor Purpose Month NTE Amount Status Notes
Clean Power Alliance
Non-energy contracts executed under Chief Executive Officer authority Rolling 12 months -- Open contracts shown in Bold
Museum of Ventura County Event space rental for City Manager Lunch December 2022 $825 Completed S&P Credit assessment December 2022 $37,500 Active
Meltwater Media analytics and monitoring services November 2022 $13,750 Active Cision Media/PR wire distribution services November 2022 $2,240 Active NewGen ERRA forecast support November 2022 $11,000 Active Amendment to update scope
of PSA for SCE Green Tariff Shared
Renewable Rate Review
Sigma Data analytics tool October 2022 $13,000 Active
Language Line Translation services October 2022 $50,000 Active Langan GIS services October 2022 $78,500 Active Second renewal term Mercer Compensation and benefits study refresh September 2022 $75,000 Completed Pickit Digital asset library September 2022 $2,900 Active Salesforce Stakeholder Relationship Management
application subscription August 2022 $15,300 Active
Elite Edge Consulting Accounting services August 2022 $90,000 Active Original Contract Date: September 2020
NTE $112,000
Amendment #1 - NTE for renewals
increased to $120,000 in September 2020
Amendment #2 - First renewal authorized
July 2021 - Extends through 6/30/2022
Amendment #3 - Second (final) renewal
authorized; extends through 6/30/2022
Oscar Associates Recruiting Services August 2022 N/A Active Amendment to reduce placement fees to
25% of starting salary of exclusively
referred candidate
Burke, Williams, Sorenson, LLP
Legal Services Agreement (Brown Act,
public entity governance issues and other
legal services)
July 2022 $100,000 Active Renewal
Hall Energy Law PC Energy Procurement Counsel July 2022 $125,000 Active Renewal Helpmates Temporary staffing services July 2022 N/A Active Baker Tilly Financial audit services June 2022 $50,000 Active IHS Market Subscription for CAISO forecasts June 2022 $15,000 Active MBI Marketing contract renewal June 2022 $7,687 Active 3% increase to Board approved NTE upon renewal
Adobe Inc. AdobeSign Secure Electronic Signature
Service June 2022 $3,200 Active Renewal
Snowflake Inc. Cloud-Native Elastic Data Warehouse
Service June 2022 $25,000 Active Renewal
Fraser Marketing contract renewal June 2022 $55,647 Active 9% increase to Board approved NTE upon renewal
Place and Page Graphic design and branding June 2022 $50,000 Active Agenda Page 318
Vendor Purpose Month NTE Amount Status Notes
Clean Power Alliance
Non-energy contracts executed under Chief Executive Officer authority Rolling 12 months -- Open contracts shown in Bold
OpenPath New Office Keycard Access Control
System January 2021 $1,500 Active
Crown Castle Fiber LLC New Office Dedicated Internet Access Service September 2020 $ 18,600 Active
NextLevel Internet, Inc. New Office High Speed Internet Service September 2020 $ 6,936 Active Windstream Services, LLC New Office Telephone Service September 2020 $ 14,095 Active Zero Outages New Office Security, Firewall, & Wi-Fi
Service September 2020 $ 7,608 Active
Agenda Page 319