Orrick Draft 1 November 2025
CONSOLIDATED, AMENDED & RESTATED CUSTODIAL AGREEMENT
This Consolidated, Amended & Restated Custodial Agreement (this “Agreement”) is made and entered into as of [____], 20[_], by and among California Community Choice Financing Authority, a joint powers authority and a public entity of the State of California established pursuant to the provisions of the Joint Exercise of Powers Act (Article 1, Chapter 5, Division 7, Title 1, Section 6500 et seq. of the California Government Code, as amended) (defined below) (the “Issuer”), City of San José, a California municipal corporation (“Participant”), Morgan Stanley Capital Group Inc., a Delaware corporation (“MSCG”), Morgan Stanley Energy Structuring, L.L.C., a Delaware limited liability company (“MSES”), and U.S. Bank Trust Company, National Association, (the “Custodian” and together with the Issuer, Participant, MSES and MSCG, the “Parties”, and each individually, a “Party”).
RECITALS:
WHEREAS, in connection with the issuance of one or more series of bonds by Issuer, MSCG (or MSES with respect to power purchase agreements with MSCG as seller), Issuer and Participant will enter into a series of Assignment Agreements (the “Assignment Agreements”, which definition shall include any new Assignment Agreement identified by MSCG’s delivery of an updated Exhibit A consistent with Section 3(c)) with the sellers under certain power purchase agreements (each, individually, a “PPA Seller” and collectively the “PPA Sellers”, which definitions shall include any new PPA Seller identified by MSCG’s delivery of an updated Exhibit A consistent with Section 3(c)), pursuant to which Participant will partially assign its rights and obligations under its Power Supply Contracts (“Assigned PPAs”) to MSCG or MSES, as applicable, for redelivery under the Prepay Contract Chains; WHEREAS, the Parties previously entered into that certain Custodial Agreement, dated as of November 4, 2024 (the “Existing Custodial Agreement”) for the administration of payments to be received by the sellers under the Assigned PPAs (each, individually, a “PPA Seller” and collectively the “PPA Sellers”, and which definitions shall include any new PPA Seller identified by MSCG’s delivery of an updated Exhibit A consistent with Section 3(c) of this Agreement) for each of the Prepay Contract Chains identified in Exhibit B as updated from time to time in accordance with Section 3(c) of this Agreement; and
WHEREAS, the Parties propose to consolidate, amend and restate the Existing Custodial Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
Section 1. Defined Terms¶.
(a) Any capitalized term used herein and not otherwise defined herein (including in the recitals) shall have the meaning assigned to such term in the Power Supply Contracts. The following additional terms, when used in this Agreement (including the preamble or recitals to this Agreement) and identified by the capitalization of the first letter thereof, have the respective meanings set forth below, unless the context otherwise requires:
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
2 “Annual Quantity” has, with respect to any Prepay Contract Chain, the meaning specified in the relevant Prepay Contract Chain.
“Assigned Product Price” has, with respect to any Assigned PPA, the meaning specified in Exhibit A, as may be updated from time to time consistent with the terms hereof. “Assignment Period” has, with respect to any Assigned PPA, the meaning specified in Exhibit A, as may be updated from time to time consistent with the terms hereof. “Custodial Agreement Payment Date” means the last Business Day preceding a PPA Monthly Statement Payment Date.
“Delivered Product Payment Amount” means, in respect of each PPA Monthly Statement, an amount equal to the lesser of (a) the Monthly Projected Quantity under the relevant Assigned PPA for such Month multiplied by the Assigned Product Price for such Assigned PPA, and (b) the actual quantity of Assigned Product reflected in such PPA Monthly Statement multiplied by the Assigned Product Price then in effect under the relevant Assigned PPA, minus the face amount of any Receivables (as defined in the relevant Prepaid Agreement(s)) that is delivered by PPA Assignee to the Custodian in respect of such Assigned PPA pursuant to Section 4(e); provided that, notwithstanding the foregoing or anything to the contrary herein, there shall be no Delivered Product Payment Amount or any other obligations of PPA Assignee with respect to Monthly Excess Quantities or Assigned Paygo Quantities. “Divided Assigned PPA” means an Assigned PPA that has been allocated to more than one Prepay Contract Chain pursuant to Section 3(d). “Energy Management Agreements” mean each of the Energy Management Agreements by and between MSES and MSCG as set forth in Exhibit B to this Agreement, which Exhibit B may be updated from time to time in accordance with Section 3(c). “Issuer Negative Pricing Payment Amount” means, with respect to any Power Supply Contract, the positive difference, if any, for any Month of an Assignment Period between (a) amounts due from Issuer to Participant under [Section 3.2(a)] of such Power Supply Contract with respect to negatively priced Energy and (b) amounts due from Participant to Issuer under [Section 3.2(a)] of such Power Supply Contract with respect to positively priced Energy. “Monthly Gross Amount” means, in respect of each PPA Monthly Statement, an amount equal to the total net amount due to the applicable PPA Seller in respect of such PPA Monthly Statement and shall consist of the following components: (a) the Delivered Product Payment Amount and (b) the Retained Payment Amount (if such amount is a positive number for such Month).
“MSES Prepay Payment Date” means the payment due date for amounts due from MSES to Issuer under the applicable Prepaid Agreement as set forth in [Section 14.2(a)] thereof. “Monthly Projected Quantity” has, with respect to each Assigned PPA and each Prepay Contract Chain, the meaning specified in the relevant Power Supply Contract for such Prepay Contract Chain.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
3 “Power Supply Contracts” means each of the Power Supply Contracts by and between Participant and Issuer as set forth in Exhibit B to this Agreement, which Exhibit B may be updated from time to time in accordance with Section 3(c). “PPA Assignee” means MSCG or, to the extent that MSCG is a PPA Seller under the applicable Assigned PPA, MSES, in each case, in its capacity as the limited assignee under the applicable Assignment Agreement.
“PPA Assignee Resettlement Amount” means, in respect of any PPA Monthly Statement that (a) is delivered after the delivery of the Billing Statement under the relevant Power Supply Contract(s) for such Month and (b) reflects that a quantity of Assigned Product less than the total Monthly Projected Quantity was delivered in such Month under the relevant Assigned PPA, an amount equal to the product of (x) the total Monthly Projected Quantity for such Month minus the quantity of Assigned Products actually delivered under the Assigned PPA in such Month, [multiplied by (y) the Day-Ahead Average Price during any EPS Energy Period] 1; provided that, notwithstanding the foregoing or anything to the contrary herein, there shall be no PPA Assignee Resettlement Amount or any other obligations of PPA Assignee with respect to Monthly Excess Quantities or Assigned Paygo Quantities. “PPA Monthly Statement” means, for each Assigned PPA, the monthly consolidated invoice delivered to PPA Assignee and Participant consistent with the terms of the applicable Assignment Agreement.
“PPA Monthly Statement Payment Date” means the last Business Day on which payment with respect to a PPA Monthly Statement may be made before any incremental interest arises thereon or any default or breach arises under the Assigned PPA. “Prepaid Agreements” mean each of the Prepaid Energy Sales Agreements by and between MSES and Issuer as set forth in Exhibit B to this Agreement, which Exhibit B may be updated from time to time in accordance with Section 3(c). “Prepay Contract Chain” means, with respect to each bond issuance by Issuer detailed in Exhibit B, the Energy Management Agreement, Prepaid Agreement and Power Supply Contract relating thereto.
“Provisional Payment” has the meaning specified in the relevant Prepaid Agreement.
“Retained Payment Amount” means, in respect of each PPA Monthly Statement, an amount equal to (a) all amounts owed to the applicable PPA Seller for such Month, less (b) the sum of the Delivered Product Payment Amount and the PPA Assignee Resettlement Amount, if any; provided that, to the extent the Retained Payment Amount is negative in any Month, then the absolute value of such amount shall represent an amount to be paid by the Custodian to Participant pursuant to Section 4(c)(ii) hereof; provided furthermore that all amounts due with respect to any
1 NTD: Subject to review of the underlying PPA.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
4 Monthly Excess Quantities and any Assigned Paygo Quantities for the relevant Prepay Contract Chain(s) shall be Participant’s sole responsibility as a portion of the Retained Payment Amount. (b) Except where expressly provided otherwise, any reference herein to any agreement or document includes all amendments, supplements or restatements to and of such agreement or document as may occur from time to time in accordance with its terms and the terms hereof, and any reference to a party to any such agreement includes all successors and assigns of such party thereunder permitted by the terms hereof and thereof.
Section 2. Appointment of Custodian¶. Participant, MSES and MSCG hereby appoint U.S. Bank Trust Company, National Association as Custodian under this Agreement, with such rights and obligations as are specifically set forth herein. The Custodian hereby accepts such appointment under the terms and conditions set forth herein.
Section 3. Payment Instructions to Custodian; Assigned PPA Exhibits. (a) Participant Monthly Statements. No later than (1) seven (7) days following Participant’s receipt of a PPA Monthly Statement from a PPA Seller if payment of such invoice is due by less than 30 days after Participant’s receipt thereof or (2) ten (10) days following Participant’s receipt of a PPA Monthly Statement from a PPA Seller if payment of such invoice is due by 30 days or more after Participant’s receipt of such invoice, Participant shall deliver a statement to the other Parties hereto listing the following: the Delivered Product Payment Amount, the Retained Payment Amount, the Monthly Gross Amount, the PPA Monthly Statement Payment Date, the Custodial Agreement Payment Date, the PPA Assignee Resettlement Amount, if any, the Monthly Excess Quantities, if any (including the allocation of Monthly Excess Quantities for a Divided Assigned PPA), the Assigned Paygo Quantities, if any (including the allocation of Assigned Paygo Quantities for any Divided Assigned PPA), reflected in such PPA Monthly Statement and any Issuer Negative Pricing Payment Amount for such Month under the relevant Power Supply Contract(s) (such notice from the Participant, the “Participant Monthly Statement”), as determined, in each case, based on the relevant PPA Monthly Statement for such Month. The Parties agree to exercise commercially reasonable efforts to implement a test billing period for a period of at least two (2) Months prior to the effectiveness of any Assignment Agreement after the Initial Assignment Agreement.
(b) Verification. PPA Assignee shall notify Participant and each other Party promptly following Participant’s delivery of a Participant Monthly Statement if PPA Assignee believes any information included on such PPA Monthly Statement is incorrect. Following receipt and verification of the information included in any such notice from PPA Assignee, Participant shall, to the extent appropriate and in consultation with PPA Assignee, issue a corrected PPA Monthly Statement to all Parties.
(c) Assigned PPA and Prepay Contract Chain Details.
(i) Exhibit A to this Agreement sets forth certain information regarding the Assigned PPAs as of the date hereof, including the Assignment Periods, Assigned Product Prices, the relevant Prepay Contract Chain for each Assigned PPA (including any percentage allocation of any such Assigned PPA to more than one Prepay Contract Chain), DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
5 the PPA Sellers thereunder and the payment instructions for payments to the PPA Sellers.
MSCG shall deliver an updated Exhibit A to each of the other Parties hereto to reflect any changes to the information set forth therein, including due to the expiration, extension or termination of an Assignment Period, the commencement of a new Assignment Period or a reallocation of Assigned Products under an Assigned PPA pursuant to Section 3(d). (ii) Exhibit B to this Agreement sets forth certain information regarding the Prepay Contract Chains in effect as of the date hereof. MSCG shall deliver an updated Exhibit B to each of the other Parties hereto to reflect any changes to the information set forth therein, including due to the execution of a new Prepay Contract Chain in connection with a bond issuance by Issuer.
(d) Assigned PPA Allocations. MSCG and Participant may mutually agree in writing to establish multiple Monthly Projected Quantities for a single Assigned PPA with the effect that the Assigned Products delivered thereunder during the Assignment Period are allocated on a percentage basis (as specified in the written agreement of MSCG and Participant) to more than one Prepay Contract Chain, which percentage allocations (x) shall be subject to the requirements of tax counsel, howsoever defined in the relevant Bond Indenture for the relevant Prepay Contract Chain, and (y) shall not in any case provide for an aggregate percentage allocation that exceeds 100% of the maximum Monthly Projected Quantities permitted by tax counsel for such Assigned PPA for an assignment to a single Prepay Contract Chain. In such case, the quantity of Assigned Products actually delivered under any such Assigned PPA shall be allocated to the applicable Prepay Contract Chain consistent with the percentage allocation specified in MSCG and Participant’s written agreement regarding the allocation of the Assigned Product under such Assigned PPA. Furthermore, MSCG and Participant may modify the allocation of the Assigned Products for an Assigned PPA by written agreement from time to time but not more than twice per calendar year, which modifications (i) must take effect on the first day of a Month specified in such written agreement of MSCG and Participant and may not in case have retroactive effect and (ii) may include without limitation (A) an allocation of an Assigned PPA to multiple Prepay Contract Chains for an Assigned PPA previously allocated to one Prepay Contract Chain and (B) an allocation of an Assigned PPA to a single Prepay Contract Chain for an Assigned PPA previously allocated to one Prepay Contract Chain. The Parties acknowledge and agree that, notwithstanding anything to the contrary in the Prepay Contract Chains, the terms thereof relating to the Monthly Projected Quantities, Monthly Excess Quantities and Assigned Paygo Quantities shall be construed in accordance with this Section 3(d) to the extent that an Assigned PPA is allocated to more than one Prepay Contract Chain.
(e) Execution of New Prepay Contract Chains. MSCG and Participant shall promptly notify the Custodian in writing upon the subsequent execution of new Prepay Contract Chains for which Assigned PPA payments will be administered under this Agreement.
Section 4. Assigned PPA Payments Account.
(a) Custodial Account. With respect to payments required to be made by PPA Assignee and Participant to the PPA Sellers under the Assigned PPAs, there is hereby established with the Custodian at its office located at 777 E. Wisconsin Ave. Milwaukee, WI 53202-5300, the custodial account listed below (the “Assigned PPA Payments Account”) and all payments made DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
6 by PPA Assignee and Participant hereunder shall be wired to such Assigned PPA Payments Account:
U.S. Bank Trust Company, National Association2
ABA: 091000022
FBO: U.S. Bank Trust Company, National Association
Acct: [180121167365]
FFC: [274254013] – [CCCFA (SJCE Proj) PPA Cust]
Address: 777 E. Wisconsin Av.
Milwaukee, WI 53202-5300
(b) PPA Assignee and Participant Monthly Payments.
(i) PPA Assignee shall make payment of the Delivered Product Payment Amount and any PPA Assignee Resettlement Amount into the Assigned PPA Payments Account on the Custodial Agreement Payment Date for each Month of any Assignment Period; provided that, to the extent that (i) the Delivered Product Payment Amount and any PPA Assignee Resettlement Amount are due and (ii) PPA Assignee pays some portion of such amounts but less than the total amount due, PPA Assignee’s partial payment shall be applied first to the Delivered Product Payment Amount.
(ii) For each Month of any Assignment Period for which the Retained Payment Amount is a positive number, Participant shall make payment of such amount into the Assigned PPA Payments Account on the Custodial Agreement Payment Date. For each Month of any Assignment Period for which the Retained Payment Amount is a negative number, Participant shall have no payment obligation for such Month with respect to the Retained Payment Amount and the Custodian will pay the absolute value of such amount to Participant consistent with Section 4(c)(ii).
(iii) For each Month, if any, of an Assignment Period for which there is an Issuer Negative Pricing Payment Amount, Participant shall make payment of such amount into the Assigned PPA Payments Account on the Custodial Agreement Payment Date; provided that, notwithstanding the foregoing, Participant shall have no payment obligation hereunder with respect to an Issuer Negative Pricing Payment Amount to the extent that PPA Assignee receives such amount from the PPA Seller pursuant to the terms of the applicable Assignment Agreement.
(c) Transfers by Custodian.
(i) For any Month in an Assignment Period for which the Retained Payment Amount is a positive number, the Custodian shall withdraw the amounts on deposit in the Assigned PPA Payments Account to make payment of the Monthly Gross Amount on the PPA Monthly Statement Payment Date by a single wire transfer to the applicable PPA Seller of the amounts received from each of PPA Assignee and Participant.
2 Note to US Bank: Should the 2024E PPA Custodial Account be used again, but with an updated non-deal specific description?
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
7 (ii) For any Month in an Assignment Period for which the Retained Payment Amount is a negative number, the Custodian shall withdraw amounts on deposit in the Assigned PPA Payments Account (A) first to make payment of the Monthly Gross Amount to the applicable PPA Seller in respect of each PPA Monthly Statement on the relevant PPA Monthly Statement Payment Date pursuant to the payment instructions set forth on Exhibit A; and (B) immediately thereafter to make payment of the absolute value of such Retained Payment Amount to Participant pursuant to the payment instructions set forth on Exhibit B. If the amounts on deposit in the Assigned PPA Payments Account are insufficient to pay the entirety of either such amounts, the Custodian shall apply the amounts available in the order specified in the preceding sentence. (iii) For any Month in an Assignment Period for which an Issuer Negative Pricing Payment Amount is due from Participant, the Custodian shall, after application of amounts on deposit in the Assigned PPA Payments Account pursuant to clause (i) or (ii) above, as applicable, withdraw amounts on deposit in the Assigned PPA Payments Account to make payment of the Issuer Negative Pricing Payment Amount to PPA Assignee. (d) Amounts deposited in the Assigned PPA Payments Account shall be held in trust for the benefit of Participant until applied as set forth in Section 4(c) and Section 14, as applicable, and there is hereby granted to Participant a lien on and security interest in the Assigned PPA Payments Account pending such application. Except for any amounts due and payable to Participant pursuant to Section 4(c)(ii), the Custodian shall not be required to comply with any orders, demands, or other instructions from Participant with respect to the Assigned PPA Payments Account, including, without limitation, items presented for payment, or any order or instruction directing the disposition of funds or other assets held in or credited to the Assigned PPA Payments Account, and Participant agrees that, except as set forth in Section 4(c)(ii), prior to the termination of this Agreement in accordance with the terms hereof, it shall have no right to direct the disposition of funds or other assets held in or credited to the Assigned PPA Payments Account, or to withdraw or otherwise obtain funds or other assets held in or credited to the Assigned PPA Payments Account, whether by order or instruction to the Custodian or otherwise. (e) With respect to each PPA Monthly Statement, to the extent PPA Assignee has purchased Receivables (as defined in the relevant Prepaid Agreement(s)) for amounts owed by Participant for the Month to which such PPA Monthly Statement relates, PPA Assignee may, at its option, (i) notify the Custodian that it intends to transfer all or any portion of such Receivables to the PPA Seller, and (ii) reduce the Delivered Product Payment Amount by the face amount of such Receivables to be transferred. To the extent PPA Assignee has notified the Custodian of its intent to transfer any such Receivables, PPA Assignee shall cause such Receivables to be transferred to the PPA Seller not later than the relevant PPA Monthly Statement Payment Date.
Section 5. Provisional Payments Account.
(a) Custodial Account. With respect to Provisional Payments required to be made by MSES to Issuer under the Prepaid Agreements, as reflected in the Billing Statements (as defined in the Prepaid Agreements) which shall be delivered by MSES to each of the parties hereto consistent with [Section 14.1(b)] of the Prepaid Agreements, there is hereby established with the Custodian at its office located at 777 E. Wisconsin Ave. Milwaukee, WI 53202-5300, the DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
8 following custodial account listed below (the “Provisional Payments Account”) and all Provisional Payments made by MSES under the Prepaid Agreements shall be wired to such Provisional Payments Account:
U.S. Bank Trust Company, National Association3
ABA: 091000022
FBO: U.S. Bank Trust Company, National Association
Acct: [180121167365]
FFC: [274254013] – [CCCFA (SJCE Proj) Provisional Pmts] Address: 777 E. Wisconsin Av.
Milwaukee, WI 53202-5300
(b) MSES Monthly Payments. For each Month of the Delivery Period under a Prepaid Agreement, MSES shall make payment of the Provisional Payment, if any, due under such Prepaid Agreement for such Month into the Provisional Payments Account on or before the MSES Prepay Payment Date for each Month of the Delivery Period for such Prepaid Agreement. The Parties acknowledge and agree that any Provisional Payment due shall be reflected in the Billing Statement (as defined in the relevant Prepaid Agreement) delivered by MSES under [Section
14.1(b)] of the relevant Prepaid Agreement, which MSES has agreed to deliver to each of the Parties hereunder.
(c) Transfers by Custodian; Segregation and Application of Discount Dollars. (i) Upon receipt of any Provisional Payment under Section 5(b), the Custodian shall promptly (x) withdraw the portion of such Provisional Payment that represents the Net Participant Price (as defined in the relevant Prepaid Agreement) that would otherwise be payable by Participant to Issuer with respect thereto under the relevant Power Supply Contract, as reflected in the Billing Statement delivered by MSES pursuant to [Section 14(b)] of the relevant Prepaid Agreement and (y) transfer such amount to the Issuer’s Revenue Fund under and as defined in the relevant Bond Indenture. (ii) The portion of any Provisional Payment in excess of the Net Participant Price (such portion, the “Discount Dollars”) shall be segregated by the Custodian and applied as set forth below:
(A) the Custodian shall create separate subaccounts for each Prepay Contract Chain and deposit the Discount Dollars associated with a particular Prepay Contract Chain in the relevant subaccount;4
(B) to the extent that (i) there is a positive balance of Discount Dollars being held by the Custodian in the subaccount relating to a Prepay Contract Chain and (ii) any Participant Monthly Statement reflects that Monthly Excess Quantities were delivered under an Assigned PPA relating to such Prepay Contract Chain for any given Month, the Custodian shall withdraw an amount equal to the Monthly Discount under the relevant Power Supply Contract(s) per MWh of Monthly Excess
3 Note to US Bank: Same comment as above, but w/r/t to the Provisional Payments Acct. 4 Note to US Bank: Please confirm USB is able to segregate Discount Dollars without the need to open a new account.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
9 Quantities on the relevant PPA Monthly Statement Payment Date and transfer such amount(s) to Participant pursuant to the payment instructions set forth for payments to Participant on Exhibit A; and
(C) MSES shall notify the Custodian and each of the other Parties hereto if less than the Annual Quantity under a Prepay Contract Chain is delivered for any Contract Year, and, promptly following receipt of any such notice, the Custodian shall transfer any related Discount Dollars to the Trustee for deposit in the Energy Remarketing Reserve Fund under and as defined in the relevant Bond Indenture(s).
Section 6. Custodian¶. The Custodian shall have (a) no liability under any agreement other than this Agreement and (b) no duty to inquire as to the provisions of any agreement other than this Agreement and the Assigned PPAs. The Custodian may rely upon and shall not be liable for acting or refraining from acting upon any written notice, document, instruction or request furnished to it hereunder in accordance with the terms hereof and believed by it to be genuine and to have been signed or presented by the proper Party or Parties. The Custodian shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document, notice, instruction or request. The Custodian shall have no duty to solicit or compel any payments which may be due to it, or to take any action to compel PPA Assignee or Participant to make the deposits required under Section 4. The Custodian shall not be liable for any action taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines that the Custodian’s gross negligence or willful misconduct was the primary cause of any loss to any other Party hereto. In connection with the execution of any of its powers or the performance of any of its duties hereunder, the Custodian may consult with counsel, accountants and other skilled persons selected and retained by it. The Custodian shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons, provided the Custodian exercised due care and good faith in the selection of such person. The permissive rights and powers of the Custodian to take actions enumerated under this Agreement shall not be construed as duties. In the event that the Custodian shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any Party hereto which, in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise in writing by all of the other Parties hereto or by a final order or judgment of a court of competent jurisdiction. The Custodian may interplead all of the assets held hereunder into a court of competent jurisdiction or may seek a declaratory judgment with respect to certain circumstances, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets or any action or non-action based on such declaratory judgment. Anything in this Agreement to the contrary notwithstanding, in no event shall the Custodian be liable for special, indirect, incidental, consequential, or punitive damages, losses or penalties of any kind whatsoever (including but not limited to lost profits), regardless of the form of action. The Custodian may engage and act through agents and attorneys and shall not be liable for the misconduct or negligence of any such agent or attorney appointed with due care. The Custodian shall not be liable for any action taken by it in good faith in accordance with instruction received in accordance with this Agreement, or for the application of funds by or other actions or omissions of other persons. The Custodian shall be responsible only for funds actually received by it for deposit into the Assigned PPA Payments Account, and the Custodian shall not be obliged to advance or risk its own funds to make any payments required DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
10 hereunder. The Custodian shall have only those duties expressly set forth in this Agreement and no implied duties shall be read into this Agreement against the Custodian. The Parties hereto acknowledge and agree that the Custodian is not a fiduciary by virtue of accepting and carrying out its obligations under this Agreement and has not accepted any fiduciary duties, responsibilities or liabilities with respect to its services hereunder. The Custodian shall not be responsible for the perfection of any security interest granted hereunder.
Section 7. Succession¶. The Custodian may resign and be discharged from its duties or obligations hereunder by giving not less than 45 days’ advance notice in writing of such resignation to the other Parties hereto specifying a date when such resignation shall take effect; and such resignation shall take effect upon the day specified in such notice unless a successor shall not have been appointed by the other Parties hereto on such date, in which event such resignation shall not take effect until a successor is appointed. The other Parties hereto shall use their commercially reasonable efforts to make such appointment in a timely fashion, provided that any custodian appointed in succession to the Custodian shall be a bank or trust company organized under the laws of any state or a national banking association and shall have capital stock, surplus and undivided earnings aggregating at least $50,000,000 and shall be a bank with trust powers or trust company willing and able to accept the office on reasonable and customary terms and authorized by law to perform all the duties imposed upon it by this Agreement. Any corporation or association into which the Custodian may be merged or converted or with which it may be consolidated, or any corporation or association to which all or substantially all of the Custodian’s corporate trust line of business may be transferred, shall be the Custodian under this Agreement without further act. Notwithstanding the foregoing, if no appointment of a successor Custodian shall be made pursuant to the foregoing provisions of this Section 7 within 45 days after the Custodian has given written notice to the other Parties of its resignation as provided in this Section 7, the Custodian may, in its sole discretion, apply to any court of competent jurisdiction to appoint a successor Custodian. Said court may thereupon, after such notice, if any, as such court may deem proper, appoint a successor Custodian.
Section 8. Fees¶. MSES agrees to pay the Custodian reasonable compensation for the services to be rendered hereunder, which compensation shall be $1,250 for each year that this Agreement is in effect. The parties hereto acknowledge that this provision shall survive the resignation or removal of the Custodian or the termination of this Agreement.
Section 9. Reimbursement¶. The Issuer, MSCG, MSES and Participant agree, jointly and severally (subject to the second proviso of this Section 9), to reimburse the Custodian and its directors, officers, agents and employees for any and all loss, liability or expense (including the fees and expenses of in-house or outside counsel and experts and their staffs and all expense of document location, duplication and shipment) arising out of or in connection with (a) its acting as the Custodian under this Agreement, except to the extent that such loss, liability or expense is finally adjudicated to have been caused primarily by the gross negligence or willful misconduct of the Custodian or such director, officer, agent or employee seeking reimbursement, or (b) its following any instructions or other directions from MSCG, MSES or Participant, except to the extent that its following any such instruction or direction is expressly forbidden by the terms hereof; provided, however, that any amounts due under this Section 9 shall not duplicate any other amounts due under this Agreement, including without limitation amounts due under Section 15 hereof; provided further, however, that, notwithstanding the joint and several nature of the DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
11 obligations under this Section 9, any amounts due under clause (b) of this sentence resulting from instructions or directions that are not expressly provided for in this Agreement and are given to the Custodian by only one Party shall be the sole obligation of such Party. The Parties hereto acknowledge that this provision shall survive the resignation or removal of the Custodian or the termination of this Agreement.
Section 10. Taxpayer Identification Numbers; Tax Matters¶ . MSCG, MSES and Participant represent that their correct taxpayer identification numbers assigned by the Internal Revenue Service or any other taxing authority is set forth on the signature page hereof. Any tax returns or reports required to be prepared and filed in connection with the Assigned PPA Payments Account will be prepared and filed by Participant, and the Custodian shall have no responsibility for the preparation and/or filing of any tax return with respect to any income earned on the Assigned PPA Payments Account. In addition, any tax or other payments required to be made pursuant to such tax return or filing shall be paid by Participant. The Custodian shall have no responsibility for making such payment unless directed to do so in writing by the appropriate authorized Party and fully indemnified to the Custodian’s satisfaction.
Section 11. Notices¶.
(a) Any notice, demand, statement or request required or authorized by this Agreement to be given by one Party to another Party shall be in writing and shall either be sent by email transmission or other Electronic Means (defined below), courier, or personal delivery (including overnight delivery service) to each of the notice recipients and addresses specified in Exhibit B for the receiving Party. Any such notice, demand, or request shall be deemed to be given (i) when delivered by email transmission or other Electronic Means (defined below), or (ii) when actually received if delivered by courier or personal delivery (including overnight delivery service); provided that, if a Party delivers a notice, demand or request by any means other than email transmission, such notice shall not be effective unless and until the Party also delivers a copy thereof to the other Parties’ email address specified in Exhibit B. Each Party shall have the right, upon 10 days’ prior written notice to the other Parties, to change its list of notice recipients and addresses in Exhibit B. The Parties may mutually agree in writing at any time to deliver notices, demands or requests through alternate or additional methods, such as electronic mail.
Notwithstanding the foregoing, any Party may at any time notify the others that any notice, demand, statement or request to it must be provided by email transmissions for a specified period of time or until further notice, and any communications delivered by means other than email transmission during the specified period of time shall be ineffective. (b) Exhibit A shall include each PPA Seller’s notice and payment information as set forth in the Assigned PPAs, and MSCG and Participant promptly shall cause such information to be updated to the extent there are any changes to such information under the Assigned PPAs. (c) The Custodian shall have the right to accept and act upon instructions or directions given pursuant to this Agreement, or any other document reasonably relating to the matters described herein, delivered using Electronic Means (defined below); provided, however, that each party giving directions to the Custodian hereunder shall provide to a Responsible Officer (as defined in the relevant Bond Indenture) of the Custodian an incumbency certificate, substantially in the form attached hereto as Exhibit C, listing persons with the authority to provide such DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
12 instructions or directions (each an “Authorized Officer”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended, with written notice to a Responsible Officer (as defined in the relevant Bond Indenture) of the Custodian, whenever a person is to be added or deleted from the listing. If a party elects to give the Custodian directions or instructions using Electronic Means and the Custodian in its discretion elects to act upon such directions, the Custodian’s understanding of such directions shall be deemed controlling. The parties understand and agree that the Custodian cannot determine the identity of the actual sender of such directions and that the Custodian shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided by a party to a Responsible Officer (as defined in the relevant Bond Indenture) of the Custodian have been sent by such Authorized Officer. The party giving such instructions shall be solely responsible for ensuring that only Authorized Officers transmit such directions to the Custodian and that all Authorized Officers treat applicable user and authorization codes, passwords and/or authentication keys issued by the Custodian as confidential and with extreme care. The Custodian shall not be liable for any losses, costs or expenses arising directly or indirectly from the Custodian’s reliance upon and compliance with such directions notwithstanding that such directions conflict or are inconsistent with a subsequent written direction. The party giving such directions agrees: (i) to assume all risks arising out of the use of Electronic Means to submit directions to the Custodian, including without limitation the risk of the Custodian acting on unauthorized directions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting directions to the Custodian and that there may be more secure methods of transmitting directions; (iii) that the security procedures (if any) to be followed in connection with its transmission of directions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Custodian immediately upon learning of any compromise or unauthorized use of the security procedures.
(d) As used herein, “Electronic Means” shall mean the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Custodian, or another method or system specified by the Custodian as available for use in connection with its services hereunder.
Section 12. Miscellaneous¶.
(a) The provisions of this Agreement may be waived, altered, amended or supplemented, in whole or in part, only by a writing signed by all of the Parties hereto. (b) Neither this Agreement nor any right or interest hereunder may be assigned in whole or in part by any Party, except as provided in Section 7, without the prior written consent of the other Parties.
(c) THIS AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, ENFORCED, AND
PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLE THAT WOULD DIRECT THE APPLICATION OF THE LAWS ANOTHER JURISDICTION; PROVIDED, HOWEVER,
THAT THE AUTHORITY OF PARTICIPANT TO ENTER INTO AND PERFORM ITS DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
13 OBLIGATIONS UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
(d) EACH PARTY HERETO IRREVOCABLY WAIVES ANY OBJECTION ON
THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS
AND IRREVOCABLY CONSENTS TO SERVICE OF PROCESS BY MAIL OR IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW AND CONSENTS TO THE
EXCLUSIVE JURISDICTION OF (A) THE COURTS OF THE STATE OF NEW YORK
LOCATED IN THE BOROUGH OF MANHATTAN, (B) THE FEDERAL COURTS OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK OR (C)
THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA IN ANY OTHER STATE WHERE AN OFFICE OF THE CUSTODIAN IS LOCATED. THE PARTIES FURTHER
HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LAWSUIT OR JUDICIAL PROCEEDING ARISING OR RELATING TO THIS AGREEMENT. (e) No Party to this Agreement shall be liable to any other Party hereto for losses due to, or if it is unable to perform its obligations under the terms of this Agreement because of, acts of God, fire, war, terrorism, floods, strikes, electrical outages, equipment or transmission failure, or other causes reasonably beyond its control; provided that a Party affected by any such event shall exercise commercially reasonable efforts to resume performance as quickly as possible. (f) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. All signatures of the Parties to this Agreement may be transmitted by digital pdf transmission, and such pdf will, for all purposes, be deemed to be the original signature of such Party whose signature it reproduces, and will be binding upon such Party. All signatures of the parties to this Agreement may be transmitted by digital pdf transmission under the terms set forth in this Section 12(f). The parties agree that the electronic signature of a party to this Agreement, including all acknowledgements, authorizations, directions, waivers and consents thereto (or any amendment or supplement thereto) shall be as valid as an original signature of such party and shall be effective to bind such party to this Agreement. The parties agree that any electronically signed document (including this Agreement) shall be deemed (i) to be “written” or “in writing,” (ii) to have been signed, and (iii) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. For purposes hereof, “electronic signature” means a manually signed original signature that is then transmitted by electronic means; “transmitted by electronic means” means sent via the Internet as a pdf (portable document format) or other replicating image attached to an e mail message; and, “electronically signed document” means a document transmitted by electronic means and containing, or to which there is affixed, an electronic signature. Paper copies or “printouts”, if introduced as evidence in any judicial, arbitral, mediation or administrative proceeding, will be admissible as between the parties to the same extent and under the same conditions as other original business records created and maintained in documentary form. Neither party shall contest the admissibility of true and accurate copies of electronically signed documents on the basis of the best evidence rule or as not satisfying the business records exception to the hearsay rule.
(g) The Custodian shall not be under any obligation to invest or pay interest on funds held hereunder.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
14 (h) Issuer shall have only such duties under this Agreement as are expressly set forth herein as duties on its part to be performed, and no implied duties shall be read into this Agreement against Issuer.
(i) Nothing in this Agreement is intended to create any liabilities between Issuer, MSES, MSCG and Participant. This Agreement is intended solely to allocate payments that are actually made by MSES, MSCG and Participant in respect of amounts owed for physically settled energy under the Assigned PPAs and the related Prepay Contract Chains.
Section 13. Compliance with Court Orders¶. In the event that any amount held by the Custodian hereunder shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court affecting the property deposited under this Agreement, the Custodian is hereby expressly authorized, in its sole discretion, to obey and comply with all writs, orders or decrees so entered or issued, which it is advised by legal counsel of its own choosing are binding upon it, whether with or without jurisdiction, and in the event that the Custodian obeys or complies with any such writ, order or decree it shall not be liable to any of the Parties hereto or to any other person, firm or corporation, by reason of such compliance notwithstanding that such writ, order or decree may be subsequently reversed, modified, annulled, set aside or vacated.
Section 14. Term; Winding Up¶. This Agreement will expire concurrently with the receipt of written notice from Participant, with a copy to the other Parties, that the Power Supply Contracts have terminated in accordance with their terms. Following the Custodian’s payment of any Monthly Gross Amount due in respect of the final Month of power deliveries prior to such a termination, any remaining balance in the Assigned PPA Payments Account shall be paid to Participant.
Section 15. Indemnification¶. The Issuer, MSCG, MSES and Participant, jointly and severally, agree to protect, indemnify, defend and hold harmless, the Custodian, and its affiliates, and each person who controls the Custodian (and each of their respective directors, officers, agents and employees) from and against all claims, damages, losses, liabilities, actions, suits, costs, judgments and expenses (including, without limitation, court costs and reasonable attorneys’ fees) arising from its acting as Custodian hereunder (including, for the avoidance of doubt, any costs, expenses and reasonable attorneys’ fees incurred in enforcing any payment obligation of an indemnifying Party), except for any claim, damage, loss, liability, action, suit, cost, judgment or expense resulting from the gross negligence or willful misconduct of the Custodian; provided, however, that any amounts due under this Section 15 shall not duplicate any other amounts due under this Agreement, including without limitation amounts due under Section 9 hereof. The obligations of this Section 15 shall survive any resignation or removal of the Custodian and the termination of this Agreement. In addition, notwithstanding anything herein to the contrary, the Custodian shall have all of the rights (including the indemnification rights), benefits, privileges and immunities under this Agreement as are granted to the Trustee under the relevant Bond Indenture, all of which are incorporated, mutatis mutandis, into this Agreement.
Section 16. USA PATRIOT Act¶ . The Issuer, MSCG, MSES and Participant acknowledge that the Custodian is subject to federal laws, including the Customer Identification Program (“CIP”) requirements under the USA PATRIOT Act and its implementing regulations, DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
15 pursuant to which the Custodian must obtain, verify and record information that allows the Custodian to identify MSCG, MSES and Participant. Accordingly, prior to opening the Assigned PPA Payments Account described in Section 4 of this Agreement, the Custodian will ask the Issuer, MSCG, MSES and Participant to provide certain information including but not limited to name, physical address, tax identification number and other information that will help the Custodian identify and verify the Issuer, MSCG, MSES and Participant’s identities, such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information. The Issuer, MSCG, MSES and Participant agree that the Custodian cannot open any account hereunder unless and until the Custodian verifies the Issuer’s MSCG, MSES and Participant’s identities in accordance with its CIP.
Section 17. Limitation of Liability¶.
(a) Notwithstanding anything to the contrary herein, all obligations of the Issuer under this Agreement, including without limitation all obligations to make payments of any kind whatsoever, are special, limited obligations of the Issuer, payable solely from the Trust Estate (as defined in the relevant Bond Indenture) as and to the extent provided in the relevant Bond Indenture, including with respect to Operating Expenses (as defined in the relevant Bond Indenture). The Issuer shall not be required to advance any moneys derived from any source other than the Revenues (as defined in the relevant Bond Indenture) and other assets pledged under the relevant Bond Indenture for any of the purposes in this Agreement mentioned. Neither the faith and credit of the Issuer nor the taxing power of the State of California or any political subdivision thereof is pledged to payments pursuant to this Agreement. The Issuer shall not be directly, indirectly, contingently or otherwise liable for any costs, expenses, losses, damages, claims or actions, of any conceivable kind on any conceivable theory, under or by reasons of or in connection with this Agreement, except solely to the extent Revenues (as such term is defined in the relevant Bond Indenture) are received for the payment thereof and may be applied therefor pursuant to the terms of the relevant Bond Indenture.
(b) Notwithstanding anything to the contrary herein, all obligations of Participant under this Agreement, including without limitation all obligations to make payments of any kind whatsoever, are special, limited obligations of Participant, payable solely from CCA Revenues and do not constitute a debt of Participant or the State of California or of any political subdivision thereof within the meaning of any constitutional or statutory debt limitation or restriction, and do not constitute obligations for which Participant is obligated to levy or pledge any form of taxation or for which Participant has levied or pledged any form of taxation. [Signature Pages Follow]
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Signature Page to Custodial Agreement
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and delivered by their respective duly authorized officers as of the date first written above.
CITY OF SAN JOSE,
a California municipal corporation
By:
Maria Öberg
Director of Finance
APPROVED AS TO FORM:
Susana Alcala Wood, City Attorney
By:
Rosa Tsongtaatarii
Chief Deputy City Attorney
MORGAN STANLEY CAPITAL GROUP INC.
By: _____________________________________
Name: _______________________________
Title: ________________________________
Taxpayer ID Number: ___________________
MORGAN STANLEY ENERGY
STRUCTURING, L.L.C.
By: _____________________________________
Name: ___________________________________
Title: ____________________________________
Taxpayer ID Number: ______________________
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION
By: _____________________________________
Name: _______________________________
Title: ________________________________
CALIFORNIA COMMUNITY CHOICE
FINANCING AUTHORITY
By: _____________________________________
Name: _______________________________
Title: ________________________________
Taxpayer ID Number: ___________________
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit A
EXHIBIT A
ASSIGNED PPAs
1. The WSSP Agreement as supplemented by the three (3) Carbon Free Firm Energy and Import RA Confirmation Letters (SJCE IDs: 24-113-10, 24-113-12 and 24-113-16) and one (1) WSPP Confirmation Carbon Free Firm Energy (SJCE ID: 24-124-03), by and between PPA Buyer and Brookfield Renewable Trading and Marketing, LP , each dated as of October 8, 2024, as from time to time amended, restated, supplemented or otherwise modified. a. Prepay Contract Chain (including the percent of Assigned PPA Volumes allocated):
i. MS-CCCFA 2024E - 100%
b. Assigned Product Price : The “Day-Ahead Average Price” as defined in that certain Limited Assignment Agreement dated November 1, 2024 by and among Brookfield Renewable Trading and Marketing, LP, the City of San José, California, and Morgan Stanley Capital Group Inc, and as reproduced below:
“Day-Ahead Average Price” means (x) the sum of the Day-Ahead Market Prices for each Pricing Interval in a Month divided by (y) the number of Pricing Intervals in such Month.
As used in this definition, “Pricing Interval” means the unit of time for which CAISO establishes a separate price. As used in this definition “Day-Ahead Market Price” means the Day-Ahead Market or Locational Marginal Price for TH_NP15_GEN-APND for each applicable hour as published by CAISO, or as such price may be corrected or revised from time to time by CAISO in accordance with its rules. For the avoidance of doubt, the Day- Ahead Average Price can be a negative number.
c. Assignment Period: January 1, 2025 – December 31, 2025* i. *The parties intend to terminate the Assignment Period on December 31, 2025 pursuant to the terms of that certain Letter Agreement dated October 25, 2024 among City of San Jose, MSES and MSCG.
d. Payment Instructions for Payments to PPA Seller:
HSBC Bank USA, N.A.
452 Fifth Avenue
New York, NY 10018
SWIFT: MRMDUS33
Wire ABA: 021-001-088
ACH ABA: 022-000-020
Account: 000282880
Account Name: Brookfield Renewable Trading and Marketing LP e. PPA Seller Notice Information:
Brookfield Renewable Trading and Marketing, LP
200 Liberty Street
New York, NY 10281
Attn: General Counsel
Phone: 646-992-2363
Email: [email protected]
2. The Renewable Power Purchase and Sale Agreement, dated as of August 31, 2020, by and between City of San José and Clines Corners Wind Farm LLC, as from time to time amended, restated, supplemented or otherwise modified.
a. Prepay Contract Chain (including the percent of Assigned PPA Volumes allocated):
i. MS-CCCFA 2024E - 100%
b. Assigned Product Price : The “Day-Ahead Average Price” as defined in that certain Limited Assignment Agreement dated on or around October 17, 2025 by and among Clines Corners Wind Farm LLC, the City of San José, California, and Morgan Stanley Capital Group Inc, and as reproduced below:
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit A
“Day-Ahead Average Price” means (x) the sum of the Day-Ahead Market Prices for each Pricing Interval in a Month divided by (y) the number of Pricing Intervals in such Month.
As used in this definition, “Pricing Interval” means the unit of time for which CAISO establishes a separate price. As used in this definition “Day-Ahead Market Price” means the Day Ahead Market or Locational Marginal Price for the Assigned Delivery Point for each applicable hour as published by CAISO, or as such price may be corrected or revised from time to time by CAISO in accordance with its rules. For the avoidance of doubt, the Day-Ahead Average Price can be a negative number.
c. Assignment Period: January 1, 2026 – 11:59:59 p.m. Pacific prevailing time on the last day of the Delivery Term (as defined in the PPA).
d. Payment Instructions for Payments to PPA Seller:
For wire transfers:
Beneficiary Account Name: Clines Corners Wind Farm LLC
Beneficiary Account Number: 597793556
Beneficiary Bank Name: JPMORGAN CHASE BANK, N.A. - SOUTHWEST Beneficiary Bank Swift BIC: CHASUS33
Beneficiary Bank Routing Number: 021000021
For ACH Delivery:
Account Name: Clines Corners Wind Farm LLC
Account Number: 597793556
Bank Routing Number: 322271627
e. PPA Seller Notice Information:
Clines Corners Wind Farm LLC
1088 Sansome St.
San Francisco, CA 94111
Attn: General Counsel
3. The WSSP Agreement as supplemented by the two (2) Carbon Free Firm Energy and Import RA Confirmation Letters (SJCE IDs: 24-113-10 and 24-113-11), each dated as of October 8, 2024, and one (1) WSPP Confirmation Carbon Free Energy (SJCE ID: 25-124-01) dated as of July 15, 2025 (each, a “PPA Transaction Confirmation”), by and between PPA Buyer and PPA Seller, as from time to time amended, restated, supplemented or otherwise modified. a. Prepay Contract Chain: [MS-CCCFA 2025[X]] – 100%
b. Assigned Product Price: [The Day-Ahead Average Price (as defined in the Assignment Agreement)]
c. Assignment Period: January 1, 2026 – December 31, 2026 d. Payment Instructions for Payments to PPA Seller:
HSBC Bank USA, N.A.
452 Fifth Avenue
New York, NY 10018
SWIFT: MRMDUS33
Wire ABA: 021-001-088
ACH ABA: 022-000-020
Account: 000282880
Account Name: Brookfield Renewable Trading and Marketing LP e. PPA Seller Notice Information:
Brookfield Renewable Trading and Marketing, LP
200 Liberty Street
New York, NY 10281
Attn: General Counsel
Phone: 646-992-2363
Email: [email protected]
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit B
EXHIBIT B
PREPAY CONTRACT CHAIN AND RELATED NOTICE AND PAYMENT
INFORMATION
1. MS-CCCFA 2024E Prepay Contract Chain consisting of:
a. that certain Prepaid Energy Sales Agreement by and between Morgan Stanley Energy Structuring, L.L.C. and California Community Choice Financing Authority, dated as of October 25, 2024, as amended from time to time.
i. MSES Notice Information
Morgan Stanley Energy Structuring, L.L.C.
1585 Broadway
New York, NY 10036-8293
With a mandatory copy to:
Email: [email protected]
Email: [email protected]
ii. CCCFA Notice Information
California Community Choice Financing Authority
1125 Tamalpais Avenue
San Rafael, CA 94901
[email protected] and [email protected]
b. that certain Energy Management Agreement by and between Morgan Stanley Energy Structuring, L.L.C. and Morgan Stanley Capital Group Inc., dated as of November 4, 2024, as amended from time to time.
i. MSES Notice Information
Morgan Stanley Energy Structuring, L.L.C.
1585 Broadway
New York, NY 10036-8293
With a mandatory copy to:
Email: [email protected]
Email: [email protected]
ii. MSCG Notice Information
Morgan Stanley Capital Group Inc.
1585 Broadway
New York, NY 10036-8293
With a mandatory copy to:
Email: [email protected]
Email: [email protected]
c. that certain Power Supply Contract by and between City of San José and California Community Choice Financing Authority, dated as of October 25, 2024, as amended from time to time.
i. SJ Notice Information
City of San José
Finance Department
200 East Santa Clara Street, 13th Floor
San José, California 95113
Attention: Director of Finance
Telephone: 408 535 7010
Email: [email protected]
With a copy to:
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit B
City of San José
Energy Department
4 N 2nd St, Ste 700
San José, CA 95113
Attention: Director of Energy
Telephone: 408 535 4880
Email: [email protected]
ii. CCCFA Notice Information
California Community Choice Financing Authority
1125 Tamalpais Avenue
San Rafael, CA 94901
[email protected] and [email protected]
d. Bank Account for Payments to Participant pursuant to Section 4(c)(ii):
Participant Payment Information:
Bank Name: Wells Fargo Bank
Bank Routing Number: 121000248
Account Number: 4400-247508
FBO: City of San José
e. Custodian:
U.S. Bank Trust Company, National Association
2 Concourse Parkway, Suite 800
Atlanta, Georgia 30328
Attention: Mark Hallam
Email: [email protected]
2. MS-CCCFA 202[_][X] Prepay Contract Chain consisting of:
a. that certain Prepaid Energy Sales Agreement by and between Morgan Stanley Energy Structuring, L.L.C. and California Community Choice Financing Authority, dated as of [____], 20[_], as amended from time to time.
i. MSES Notice Information
Morgan Stanley Energy Structuring, L.L.C.
1585 Broadway
New York, NY 10036-8293
With a mandatory copy to:
Email: [email protected]
Email: CCCFA_202[_][X][email protected]
ii. CCCFA Notice Information
California Community Choice Financing Authority
1125 Tamalpais Avenue
San Rafael, CA 94901
[email protected] and [email protected]
b. that certain Energy Management Agreement by and between Morgan Stanley Energy Structuring, L.L.C. and Morgan Stanley Capital Group Inc., dated as of [____], 20[_], as amended from time to time.
i. MSES Notice Information
Morgan Stanley Energy Structuring, L.L.C.
1585 Broadway
New York, NY 10036-8293
With a mandatory copy to:
Email: [email protected]
Email: CCCFA_202[_][X][email protected]
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit B
ii. MSCG Notice Information
Morgan Stanley Capital Group Inc.
1585 Broadway
New York, NY 10036-8293
With a mandatory copy to:
Email: [email protected]
Email: CCCFA_202[_][X][email protected]
c. that certain Power Supply Contract by and between City of San José and California Community Choice Financing Authority, dated as of [____], 20[_], as amended from time to time.
i. SJ Notice Information
City of San José
Finance Department
200 East Santa Clara Street, 13th Floor
San José, California 95113
Attention: Director of Finance
Telephone: 408 535 7010
Email: [email protected]
With a copy to:
City of San José
Energy Department
4 N 2nd St, Ste 700
San José, CA 95113
Attention: Director of Energy
Telephone: 408 535 4880
Email: [email protected]
ii. CCCFA Notice Information
California Community Choice Financing Authority
1125 Tamalpais Avenue
San Rafael, CA 94901
[email protected] and [email protected]
d. Bank Account for Payments to Participant pursuant to Section 4(c)(ii):
Participant Payment Information:
Bank Name: Wells Fargo Bank
Bank Routing Number: 121000248
Account Number: 4400-247508
FBO: City of San José
e. Custodian:
U.S. Bank Trust Company, National Association
2 Concourse Parkway, Suite 800
Atlanta, Georgia 30328
Attention: Mark Hallam
Email: [email protected]
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit C
EXHIBIT C
FORM OF CERTIFICATE OF INCUMBENCY
The undersigned, a duly authorized officer of [__________________________], in connection with the Consolidated, Amended & Restated Custodial Agreement by and among California Community Choice Financing Authority (“Issuer”), City of San José, a California municipal corporation organized and existing under and by virtue of its charter and the Constitution of the State of California (“Participant”), Morgan Stanley Capital Group Inc., a Delaware corporation (“MSCG”), Morgan Stanley Energy Structuring, L.L.C., a Delaware limited liability company (“MSES”), and U.S. Bank Trust Company, National Association (the “Custodian”) dated as of [____], 20[_] (the “Custodial Agreement”), HEREBY CERTIFIES that the persons whose names, titles and signatures appear below are duly qualified and acting representatives of [_______] (“Authorized Officers”) on the date hereof. Each holds the office set forth beside his/her name, and the signature appearing opposite his/her name is the genuine signature of such Authorized Officer. Only those individuals, or such additional individuals as the undersigned may designate prior to written notice to the Custodian in the future, shall execute and deliver any written instructions, confirmations or certificates on behalf of [_______] in connection with the Custodial Agreement. Custodian shall not be obligated to accept any written instructions, confirmations or certificates executed by an individual other than those listed below or so designated in the future.
NAME TITLE PHONE NO. SIGNATURE
Capitalized terms used herein and not otherwise defined shall have the meaning assigned in the Custodial Agreement.
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.
Exhibit C
[___________] acknowledges that Custodian will accept notices by Electronic Means only if [_________] acknowledges and assumes all risks relating to the use of such notices. [_______] hereby acknowledges and assumes all risks relating to the sending of notices by Electronic Means.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be executed for and on behalf of [__________] this ___day of __________.
[NAME OF PARTY]
By: _____________________________________
Name:
Title:
DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.