RFP Attachment II - PWS.pdf

Attachment II

EXPORT-IMPORT BANK (EXIM) ON BEHALF OF

OGC TO PROVIDE Legal Services

PERFORMANCE WORK STATEMENT (PWS)

For Indefinite Delivery, Indefinite Quantity (IDIQ) for Legal Services 15 July 2020

1.0 INTRODUCTION

The relevant contractor(s) to be awarded an IDIQ contract as part of the multiple award shall provide all personnel, equipment, supplies, facilities, transportation, tools, materials, supervision, and other items and non-personal services necessary to perform legal Services as defined in this Performance Work Statement (PWS), except for those items specified as government furnished property and services.

2.0 BACKGROUND

Due to the COVID-19 Coronavirus pandemic (Pandemic), approximately 20 different airlines or other EXIM transportation division or TPMD borrowers/primary sources of repayment have informed EXIM that they face financial difficulties and either have declared, have threatened to declare or will declare bankruptcy or seek some form of restructuring, payment or other financial relief from EXIM. EXIM anticipates that the number of such requests and/or bankruptcies will increase as the Pandemic continues.

The Pandemic has resulted in many foreign governments shutting down entirely, or severely limiting, the ability of airlines to operate flights. Additionally, in those foreign jurisdictions where flights may still be booked and operated, due to a fear of catching the coronavirus on the flight or while located in a crowded public space like an airport, many passengers have not booked any flights, or have rescheduled or cancelled their flights. Some airlines which have had to cancel flights due to their governments’ prohibition of flights may have to refund passengers all or a portion of their fares. Against this backdrop of shrinking revenue, many airlines still have high costs – including personnel and aircraft maintenance fees. Even when aircraft are not being operated, under applicable law and to retain their “airworthy” status, they must be regularly maintained by specialized, costly and licensed mechanics. Even storing inactive aircraft in hangars can be expensive. Further, local law under some jurisdictions may require the airlines -as employers - to offer their employees additional benefits should they fall ill due to the Pandemic, such as extended paid sick leave or extended paid administrative time off, further adding to the airlines’ debt load. Additionally, if an airline furloughs employees, the airline might in certain circumstances be required to offer the furloughed employees expensive additional benefits under applicable law. In some jurisdictions, airlines may be sued, including via costly class actions, for recovery of fees incurred with respect to cancelled flights or on other terms, and have to incur substantial legal fees to defend themselves in such lawsuits. Thus, airlines have maintained a high cost base, coupled with a shrinking revenue base due to the Pandemic and its repercussions, and this situation is made worse with the specter of potential mandated increases in benefits to its employees as a social “safety net”. This has led to their payment difficulties, and caused them to ask EXIM, as well as their other lenders and creditors, for financial relief or to declare bankruptcy, as applicable. This same need for relief could apply to EXIM’s operating lessor customers, as they rely on airlines’ payments made under their operating leases.

3.0 SCOPE

Contractor shall provide commercial legal, aircraft-finance related or other EXIM transportation division transaction-related Services (defined below). Services shall include, but not be limited to, conducting legal due diligence, drafting, revising, advising on or negotiating contracts and ancillary documentation or legal memoranda. Services shall include assisting EXIM in preserving EXIM’s collateral and exercising rights and remedies under EXIM’s transaction documents. Contractor shall provide Services with regard to at-risk non-aircraft transactions, involving rail, rail infrastructure, maintenance, repair and overhaul services transactions, or any other complex, structured financial transaction experiencing financial difficulties due to, impacted by, or made worse following the COVID-19 global pandemic response, including legal support Services for all EXIM TPMD or transportation division transactions, regardless of their nature.

4.0 OBJECTIVES (NATURE OF WORK)

Desired Outcome: The outcome will depend upon the specific fact pattern with the given transaction’s counterparty and may include: successful provision of legal advice which mitigates risk for EXIM in light of the Pandemic; completion of any agreed upon restructuring documentation or similar projects with EXIM’s transportation division customers; effective legal representation of EXIM in connection with any bankruptcy proceeding; EXIM’s successful repossession, deregistration, export and remarketing of an aircraft or a rail asset or other transportation division or structured financial transaction collateral. Throughout this document, the term “transportation division” is used to refer to both EXIM’s transportation division and EXIM’s transportation portfolio management division, and also includes EXIM’s trade, finance and insurance division or structured finance division, but only to the extent such divisions have worked on a transportation-related financing, insurance, guarantee, CGF, or other relevant transaction (including for or in connection with an airline, aircraft manufacturer, rail manufacturer or transportation-related part manufacturer, operating lessor, cargo carrier, aircraft, rail asset, MRO services, or otherwise). Complex structured financial transactions originated/managed by EXIM divisions other than the transportation division may be assigned to the Contractor under the terms of the IDIQ contract and resulting Task Orders.

Contractor must possess resources to assign staff to Task Order work requests without any delay.

The need for Services is likely to arise with little, if any warning. Contractor must have attorneys “on deck”, able to immediately “turn to” the request for legal Services. Counsel must proceed with alacrity without compromising efficacy. The exact date on which a given Transaction could proceed into bankruptcy, receivership or other impaired status is not susceptible to exact prediction. The Contractor must be ready at all times to accept and carry out work assignments from EXIM.

5.0 APPLICABLE DIRECTIVES

Contractor must respect attorney-client privilege and comply with applicable State Bar and American Bar Association Rules of Professional Conduct. Should subcontractors be required to complete work, Contractor shall request consent to subcontract in accordance with FAR 52.444- 2.

Contractor and its attorneys and support staff must handle all material provided to them in accordance with the Privacy Act, 5 USC 522a, and the Procurement Integrity Act, and shall not knowingly or willfully release to any person or entity any portion of documentation provided to them by EXIM, unless acting at EXIM’s request. Contractor and its personnel are expected to have access to sensitive, confidential, business information and or trade secrets of parties to a given transportation division transaction. Contractor and its personnel shall handle all such information in accordance with applicable federal law and regulations.

6.0 GOVERNMENT FURNISHED INFORMATION OR PROPERTY

EXIM shall provide the project files to the Contractor, to the extent the Contractor does not already possess them. EXIM shall provide Contractor with any background information necessary to perform Contractor’s Services for EXIM, to the extent Contractor does not already possess such information. EXIM does not anticipate, based on the information currently available to EXIM, that it will need to provide Contractor with any services. Contractor is bound as a law firm by attorney client privilege and bar association or other applicable rules to keep all information and documentation in connection with the transactions confidential. Relevant directives are described in section 5, supra.

7.0 SPECIFIC REQUIREMENTS/TASKS

Task Introduction:

Multiple bankruptcy actions, restructurings, or other matters contemplated in this PWS (together, Matters) may be assigned to Contractor. A Task Order pertaining to each Matter will be provided to the Contractor prior to the Contractor performing any Services under this IDIQ contract.

Operating lessors and cargo carriers could face many of the same risks as their airline lessee customers, and EXIM’s transportation operating lessor and cargo carrier transactions are also covered by the Services contemplated under this PWS and any IDIQ awarded contracts in connection with this PWS.

[Note: the concerns for airlines, operating lessors or cargo carriers described in this PWS apply equally to other transportation sectors, such as commercial rail or MRO services or service providers. EXIM currently maintains a portfolio of rail and rail infrastructure/support equipment outstanding loans, guarantees, and/or insurance commitments. These EXIM rail industry customers are faced with the same economic pressures as the airlines. This PWS and any IDIQ awarded contracts in connection with this PWS relate to and include legal support Services for all EXIM transportation division transactions, as well as other structured financial transactions, regardless of their nature (including, without limitation, rail, aircraft, engines, maintenance, repair, and overhaul services, or other applicable transportation division transactions) that may be in jeopardy (of performance, payment, or otherwise) due to, or made worse by, the Pandemic-related economic downturn.]

After award of a Task Order, EXIM will notify Contractor by email from the COR of any relevant specifics of each Matter, such email may refer to other emails or information already in the possession of the Contractor law firm. Any such email from EXIM, will include at a minimum the name of the airline, relevant rail or MRO transaction entity, operating lessor, cargo carrier, or other relevant debtor and key parties, and may refer to information in other emails or otherwise already in the Contractor’s possession.

Contractor shall analyze the specifics of each Matter, consider strategies and implement actions based on EXIM’s best interest. Such interest includes protecting EXIM’s security and other interests and rights in the rail asset, aircraft, engine, any relevant records, and under the relevant EXIM transportation division transaction documents. Such actions may include, among others, the potential repossession, deregistration and export or remarketing of the rail asset, aircraft and/or engines, with the aim of maximizing collections on EXIM’s behalf.

EXIM reserves the right to order a cessation of work on any particular Matter if:

1. EXIM determines the Contractor’s work is unsatisfactory (in EXIM’s sole discretion);

2. the Contractor requests release from the Matter; or

3. EXIM deems (in EXIM’s sole discretion) the cessation to be in EXIM’s or the United

States Government’s best interest.

Contractor shall only undertake a Service (defined below) at EXIM’s request. Contractor shall provide professional legal and legal related services (collectively, together with any other services contemplated in this PWS, including any services provided by a subcontractor, the “Services”), including, but not limited to:

1. Prepare for, represent and advocate for EXIM’s interests in, and, where applicable, help EXIM negotiate and document the following:

a. any potential repossession,

b. any export and sale and/or remarketing of the aircraft, engine, locomotive or other relevant EXIM transportation division asset;

c. any aircraft, engine, locomotive or other relevant transportation division asset inspections,

d. any restructuring (including any related or relevant notification or other requirement which may be required under the Rail Sector Understanding or Aircraft Sector Understanding or other relevant OECD arrangement, document or policy), reorganization or work-out, re-capitalization, payment deferral, any insolvency, bankruptcy or similar legal proceeding (whether in the United States or elsewhere),

e. any default or event of default under any EXIM transaction document,

f. any assignment, termination, amendment (including with respect to the replacement of any interest rate), amendment and restatement, novation, term extension, or other restructuring of the currently existing transaction documents,

g. any new security documentation or filings and any changes required to existing security documentation or filings in connection with any of the Services or transactions contemplated in this PWS, or

h. any changes (or contemplated changes or advice on the necessity thereof) to transportation division documentation in response to any bankruptcy moratorium or stay on enforcements laws.

2. Provide assistance to EXIM to interpret, waive, enforce or exercise its rights under, or amend, supplement, assign, novate or terminate, the transaction documents in connection with any of the foregoing scenarios, or any of the Services or transactions contemplated herein, including in the context of any PEFCO transaction or EXIM capital markets transaction.

3. Respond to EXIM’s queries on, and drafting, revising or negotiating any memoranda or other documentation necessary or advisable in connection with, or directly or indirectly relating to or arising out of:

a. the Cape Town Convention;

b. the OECD’s Aircraft Sector Understanding;

c. the replacement of the London Inter-bank Offered Rate (LIBOR), the implementation or interpretation of the secured overnight financing rate (SOFR), and any related guidance issued by the Alternative Reference Rates Committee, ISDA, the LMA, the LSTA, or any other organization or institution;

d. any applicable blocking regulation, sanctions laws, regulations or guidance, or boycott laws (and any related sanctions laws);

e. any applicable administrative, tax, fiscal law, accounting law, regulation or related practice, in each case, whether domestic or international; or

f. any applicable European or UK (to the extent no longer European) or EEA directives, laws or regulations, including those of the individual EU or EEA member states.

4. Advise EXIM on, and draft or review documentation in connection with or arising out of:

a. the payment, waiver or potential or partial payment of claims under the EXIM guarantee (and or any related co-financing agreement or risk-sharing arrangement); or

b. the entry into, waiver, making of any claims, exercise of any rights of remedies, or receipt of any payments under, any sovereign, personal or corporate guarantee;

c. the EXIM bank master guarantee agreement and any related special conditions, Annex B or other related or ancillary documentation;

5. Negotiate and draft or revise transportation division documentation (including, without limitation, any waiver documentation);

6. Liaise with and where applicable, negotiate with all relevant transaction parties, including, without limitation:

a. local legal counsel or legal counsel of other parties involved in the transaction,

b. PEFCO, rail, aircraft or engine manufacturers (and/or their related financing affiliates, vehicles, or entities, such as Boeing Capital Corporation),

c. guaranteed lenders,

d. junior or commercial lenders,

e. facility/loan agents,

f. insurers,

g. re-insurers,

h. insurance brokers,

i. indenture trustees,

k. security trustees,

l. bondholders or their representatives or legal counsel,

m. borrowers,

n. operating lessors,

o. airlines,

p. other export credit agencies, or

q. co-financers or joint risk-sharing entities, in each case, on any of the foregoing or below matters or any matters arising in connection therewith or directly or indirectly related thereto or on the Services.

7. Assist with any of the transactions or Services, including, without limitation, by seeking the advice of or guidance or other applicable services from aircraft or rail technicians, aircraft or rail inspectors, aircraft or rail insurance or reinsurance advisers or brokers, aircraft or rail valuation and repossession firms, other relevant technical experts, legal advisers or local law firms in the relevant jurisdictions involved, which may include the United States.

8. Conduct any legal research or due diligence that EXIM may require and draft any presentations, legal memoranda or other documentation that EXIM may require in connection with any of the Services, transactions, or transaction participants.

9. Assist EXIM with the implementation, interpretation, drafting, revisions, or review of any laws, policies or procedures related to or in connection with the Services, EXIM, the transactions, any transaction participant, or the Pandemic.

10. Contractor shall be required to:

a. meet established filing deadlines or other timelines as may be established by third parties (i.e. courts, administrative bodies), or EXIM;

b. comply with performance schedules established in writing (unless otherwise agreed to by EXIM in its sole discretion) between OGC’s transportation division and Contractor;

c. conduct regularly scheduled conference calls with relevant EXIM staff to provide status updates;

d. provide EXIM with copies of its (or any subcontractor’s) work product, memoranda or other deliverables requested by EXIM; and

e. upon EXIM’s request, assist EXIM in communication with or appearances before any applicable court, tribunal, mediator, arbitrator, or any other relevant authority.

11. Any or all of the Services may be applicable to and requested by EXIM for any EXIM transportation division transaction of any nature, including any transportation division transaction involving parties other than airlines, such as operating lessor transactions, MRO-related transactions, medium-term or small aircraft program transportation division transactions, or commercial rail transactions or rail infrastructure/logistical support transactions, or other structured financial transactions. As such, EXIM may seek Contractor’s expertise to render Services with regard to non-aircraft transactions, involving rail, rail infrastructure or any other MRO-related or other complex, structured financial transaction experiencing financial difficulties due to, made worse by or following the COVID-19 global pandemic response.

12. If EXIM so requests, Contractor shall provide administrative or other record(s) containing the historic legal file, or other business records or relevant documentation or analysis in the possession of Contractor (each, a Record). The Record may contain, among other things, information, analysis or documentation that Contractor:

a. produced,

b. received while serving as a Borrower/Guaranteed Lender’s/PEFCO’s/Insured Party’s

(or any other relevant transaction party’s) paid legal counsel on one or more transaction(s), or

c. produced or received for its own information or use or otherwise, or

d. produced or received while representing EXIM on a transaction but where its legal bills were to be paid by an EXIM borrower or PSOR, and such borrower or PSOR has become insolvent, entered (or threatened to enter) a bankruptcy or other insolvency proceeding, howsoever named, or such insolvency or bankruptcy appears imminent, reasonably likely, or probable, then, subject to any applicable client confidentiality limitations (determined in Contractor’s sole discretion) in connection with Section 12(b), in each case above, EXIM may negotiate a Task Order on a FIRM FIXED PRICE basis to copy (if applicable) and deliver (which delivery may be via email) to EXIM such comprehensive historic legal/business record or other relevant documentation or analysis, as applicable.

Given the rapidly changing economic environment from the Pandemic, the uncertainty of the Pandemic’s duration, the large number of parties (including sovereign entities) involved in the complex transactions at issue, the ever-changing regulatory and legal landscape applicable to airlines, operating lessors, rail operators, and financiers in light of the Pandemic, the individual Services delineated in this PWS are not exhaustive. The Pandemic’s novel, unprecedented and ever-changing nature presents the possibility that additional services or increased effort may be required from Contractor to adequately protect EXIM’s interests.

Further, the novel, ever-changing and unprecedented nature of the Pandemic and its impact on EXIM and its airline, operating lessor and other relevant aviation customers, guaranteed lenders, and co-financiers, makes it likely that EXIM may order from Contractor additional legal services similar in nature to those described in this PWS and related to: (i) any of the relevant transactions or the transaction parties; and/or (ii) any laws (including international treaties),arrangements, or industry-specific understandings applicable to EXIM, a transaction participant or any relevant transaction.

8.0 DELIVERABLES: As and to the extent specified in each Task Order:

Item # Deliverable Section Format/

Quantities Due Date

1 Response to EXIM’s queries

7.0 para 3. Teleconference and/or email

As needed

2 Draft/revision documentation

7.0 para 5. Written report, word document

Within 5 business days of identifying need for draft/revision, unless otherwise agreed to by EXIM in its sole discretion

3 Copies of work product, memoranda or other deliverables requested by

EXIM

7.0 para 8, 9 &

Written report, word document, Within 5 business days of identifying need for draft/revision, unless otherwise agreed to by EXIM in its sole discretion

4 Confirmation filing deadline was met (if applicable)

7.0 para 10 Written report

5 Provide/Accept performance schedule

7.0 para 10 Written report and/or email, (unless otherwise agreed to by EXIM in its sole discretion)

As needed

6 Conduct Conference calls

7.0 para 10 Teleconference As needed

7 Administrative or other record containing historic legal file, other business records,

7.0 para 12 Written report, word document, and/or email or CD or USB stick, as

Item # Deliverable Section Format/ Quantities

Due Date relevant documentation or analysis in the possession of Contractor requested by

EXIM

9.0 PERFORMANCE REQUIREMENT SUMMARY (PRS)

Task or Deliverable

Performance Standard

Acceptable Quality Level (AQL)

Surveillance Method

Performance Rating Incentives/Dis incentives

Response to EXIM’s queries

Performance rating will be based upon the ability of the Contractor to respond to the request and timeliness of the response.

Regular and ad-hoc meetings or calls between contractor and Government

Surveillance by EXIM COR will be performed as the event occurs.

Exceptional Very Good Satisfactory Marginal Unsatisfactory

Exceptional (greater than 99%)

Very Good (between 98% and 96%);

Satisfactory (between 93% and 95%)

Marginal (between 91% and 93%

Unsatisfactory (less than 90%).

Positive or negative CPARS rating

Exercise of option

Draft/revisi on documentati on

On time All deliverables as described in the PWS and specified in the approved Schedule of Deliverables

100% Inspection

Exceptional Very Good Satisfactory Marginal Unsatisfactory

Positive or negative CPARS rating

Copies of work product, On time All deliverables as described

100% Inspection

Exceptional Positive or

CPARS rating

Task or Deliverable

Performance Standard

Acceptable Quality Level (AQL)

Surveillance Method

Performance Rating Incentives/Dis incentives memoranda or other deliverables requested by

EXIM

in the PWS and specified in the approved Schedule of Deliverables

Very Good Satisfactory Marginal Unsatisfactory

Confirmatio n any applicable filing deadline was met

Performance rating will be based upon the ability of the Contractor to respond to the request and meetings between contractor

COR will be performed as the event occurs.

Exceptional Very Good Satisfactory Marginal Unsatisfactory

Exceptional (greater than 99%)

Very Good (between 98% and 96%);

Satisfactory (between 93% and 95%)

Marginal (between 91% and 93%

CPARS rating

Exercise of option

Provide/Acc ept performance schedule

Performance rating will be based upon the ability of the Contractor to respond to the request and meetings or calls between contractor

COR will be performed as the event occurs.

Exceptional Very Good Satisfactory Marginal Unsatisfactory

Exceptional (greater than 99%)

Very Good (between 98% and 96%);

Satisfactory (between 93% and 95%)

Marginal (between 91% and 93%

CPARS rating

Exercise of option

Task or Deliverable

Performance Standard

Acceptable Quality Level (AQL)

Surveillance Method

Performance Rating Incentives/Dis incentives

Conduct Conference calls

Performance rating will be based upon the ability of the Contractor to respond to the request and ad-hoc calls between contractor

COR will be performed as the event occurs.

Exceptional Very Good Satisfactory Marginal Unsatisfactory

Exceptional (greater than 99%)

Very Good (between 98% and 96%);

Satisfactory (between 93% and 95%)

Marginal (between 91% and 93%

CPARS rating

Exercise of option

Administrati ve or other record containing historic legal file, other business records, relevant documentati on or analysis in the possession of Contractor

Complete, accurate and timely

100% accuracy.

All deliverables as described in the PWS and specified in the approved Schedule of Deliverables

Surveillance by EXIM COR will be performed as the event occurs.

Exceptional Very Good Satisfactory Marginal Unsatisfactory

Exceptional (greater than 99%)

Very Good (between 98% and 96%);

Satisfactory (between 93% and 95%)

Marginal (between 91% and 93%

CPARS rating

Exercise of option

Contractor must possess resources to assign staff to Task Order work requests without any delay. The need for Services is likely to arise with little, if any warning. Contractor must have attorneys “on deck”, able to immediately “turn to” the request...