RFQ Attachment I - PWS.pdf

EXPORT-IMPORT BANK ON BEHALF OF

The Office of Board Authorized Finance (OBAF)

TO PROVIDE RISK MANAGEMENT ANALYTICAL SERVICES

PERFORMANCE WORK STATEMENT (PWS)

Dated 12 March 2020

1.0 INTRODUCTION

The Contractor shall provide all personnel, equipment, supplies, facilities, transportation, tools, materials, data, information, advertising, supervision, and other items and non-personal services necessary to perform Risk Management Analytical Services as defined in this Performance Work Statement, except for those items or services specified as Government furnished property, data, information or services.

2.0 BACKGROUND

The Export-Import Bank of the United States (EXIM), a wholly-owned Government corporation, is an independent executive branch agency. EXIM is the official export credit agency of the United States.

The mission of EXIM is to support U.S. exports by providing export financing through its loan, guarantee, and insurance programs in cases where the private sector is unable or unwilling to provide financing, or where such support is necessary to level the competitive playing field for U.S. exporters due to financing provided by foreign governments to their exporters. In pursuit of its mission of supporting U.S. exports, EXIM offers support for project and structured finance, corporate, sovereign, and asset-backed transactions. All EXIM obligations carry the full faith and credit of the U.S. government. On December 20, 2019, EXIM was reauthorized for an historic seven years.

From July 20, 2015 to May 8, 2019, EXIM lacked the quorum on its Board of Directors required to take board-level actions, including approving transactions in amounts greater than $10 million in value or with an effective period of greater than seven years (with few exceptions). As a result, EXIM only operated its short- and medium-term programs for almost four consecutive years. On May 8, 2019 the U.S. Senate confirmed three board members for the EXIM Board of Directors, restoring the Board quorum and full financing capacity.

As a result of the 2015 Reauthorization, EXIM launched a groundbreaking reinsurance program in 2018 that worked with the private sector to share risk. The reinsurance program provided an additional $1 billion in loss coverage for a significant portion of EXIM’s existing portfolio of large commercial aircraft financing transactions.

EXIM’s innovative reinsurance program is the largest public‐private risk‐sharing arrangement for a U.S.

government credit agency. EXIM’s reinsurance program represents the maximum allowable coverage permitted under EXIM’s charter and fulfills its 2015 congressional reauthorization mandate to engage in risk sharing with the private sector to minimize EXIM’s – and by extension, the U.S. taxpayers’-liability for potential future losses.

EXIM is committed to building off the success of its reinsurance pilot program to further support U.S.

jobs, supplement and encourage private capital investment, and reduce risk in its portfolio. While there is no a statutory obligation to operate any form of a reinsurance program, EXIM has broad authority under Section 2(a)(1) of the Export-Import Bank Act of 1945, as amended, to engage in reinsurance, coinsurance, and other forms of risk-sharing. Such activities are consistent with statutory mandates that

EXIM supplement and encourage private capital investment in its financings, as well as constituting prudent management of EXIM’s portfolio, where EXIM is responsible for underwriting and monitoring of the underlying credits.

3.0 SCOPE

The Contractor shall provide the following but is not limited to subject matter expertise for developing risk sharing structures, the placement of those structures in the applicable commercial reinsurance market, evaluation of offers – pricing and substantive terms - from the applicable market, and administrative support to EXIM during the lifetime of the resulting risk sharing agreement(s).

4.0 OBJECTIVES (NATURE OF WORK)

Desired Outcome: The end objective is to assist EXIM by providing a reinsurance broker and/or bank that work with the reinsurance and capital markets to assist EXIM in its risk sharing program.

The three main goals of the portfolio or individual transaction risk sharing program is:

• the reduction of the probability of exceeding a 2% default rate at various probability levels

• Increase trade finance by “crowding-in” either reinsurance and/or capital markets, where

“crowding-in” is increasing the financing amount available for U.S. exports.

• Identify potential core partners for risk sharing with EXIM.

5.0 APPLICABLE DIRECTIVES

All services performed under this PWS must comply with applicable Bank policies and directives, as well as Federal law and implementing regulations (such as Privacy Act, Procurement Integrity Act, etc.). It is incumbent upon the Contractor to be knowledgeable of all applicable laws and regulations. EXIM policies and directives will be made available to the Contractor upon request. As this is a no-cost contract (i.e. Appropriated funds, including non-administrative funds, are NOT being paid to the Contractor for its efforts under the resulting Contract), the Federal Acquisition Regulation (FAR) does not apply to this Contract, as a matter of law. However, the Contracting Officer has determined that certain FAR clauses should be made a part of the Contract as a matter of contract administration. As such, the FAR clauses indicated by the Contracting Officer as included in the Contract are operative and enforceable as a matter of contract law.

6.0 GOVERNMENT FURNISHED INFORMATION OR PROPERTY

No government furnished property is required. EXIM will provide historical portfolio data as well as background material on policies, procedures and historical narrative, as appropriate. The Contractor shall handle all EXIM provided data/information as confidential business information belonging to EXIM, and shall safeguard same, using it only to the extent necessary to obtain the reinsurance and risk sharing services contemplated by this Contract. The Contractor shall return all such EXIM provided data/information to EXIM upon the expiration of this Contract, or at the direction of EXIM, shall destroy all such data/information and certify same, to the satisfaction of EXIM.

7.0 SPECIFIC REQUIREMENTS/TASKS

The Contractor shall guarantee strict confidentiality of the information/data that it is provided by the Government during the performance of the contract. The Contractor shall ensure that each of its employees/subcontractor employees execute the Non-Disclosure Agreement (see Attachment 1) prior to engaging in any services under the Contract or accessing any Government provided information/data.

Furthermore, the Contractor shall cause to be executed a Non-Disclosure Agreement by an officer with authority to bind the Contractor, in form and substance similar to that set forth in Attachment 2, prior to commencing performance of any services under the Contract. The Government has determined that the information or data that the Contractor will be provided during the performance of the contract is of a sensitive nature. Disclosure of the information/data, in whole or in part, by the Contractor can only be made after the Contractor receives prior written approval from the Contracting Officer.

7.1 Contractor shall provide expertise in terms of developing risk sharing structures, placement of those structures in the applicable commercial reinsurance or risk sharing market, evaluation of pricing and substantive content of proposals received in response to such placement from the applicable market, and administrative support to EXIM during the lifetime of the resulting risk sharing agreement.

7.2 Contractor shall provide services in order to comprehensively assess offers/proposals from the insurance, reinsurance, and capital markets to identify which risks can be effectively transferred from EXIM to a third party, including a review of the proposed terms and conditions of the proposed risk transfer agreement. The Contractor shall provide EXIM with a recommendation regarding the advisability of entering into the proposed risk sharing agreement

7.3 Contractor shall provide the following:

7.3.1 Risk sharing analytics (insurance, reinsurance and/or capital markets)

7.3.2 Creativity

7.3.2.1 Demonstration of creating risk sharing structures while taking into account EXIM’s goals

7.3.2.2 Demonstration of how the reinsurance and capital markets can work in conjunction with each other

7.3.3 Transparency of communication between and among all parties involved

7.3.4 Demonstrated knowledge of EXIM financing, aviation financing, and/or structured financing

7.3.5 Development of risk sharing structures and placement of those structures in the risk sharing/reinsurance commercial industry, as evidenced through past experience or current capabilities

7.3.5.1 Demonstration of experience with delivering risk sharing structures in uncertain and evolving environments.

7.4 The contractor shall provide the following:

7.4.1 Risk Sharing Structure(s) Refinement

7.4.1.1 The Contractor shall conduct a thorough analytical modeling exercise of EXIM’s portfolio to refine the proposed risk sharing structures. The Contractor shall present the structures to EXIM and shall provide a detailed analysis of the structure as well as potential non-binding pricing related to those structures. The presentation of structures will be in both PowerPoint and in Word format.

7.4.1.2 The Contractor shall provide an initial draft presentation of structures and shall accommodate one round of reasonable requests for edits from EXIM before delivering a final draft. The Government will provide edits/comments not later than 7 calendar days after receipt of initial document. The Contractor will provide revised final draft not later than 2 calendar days after receipt of EXIM’s edits/comments. The Contractor understands and accepts that EXIM retains the sole discretion to accept any proposed risk sharing placement.

7.4.2 Risk Sharing Placement

7.4.2.1 For risk sharing structure(s) selected by EXIM, the Contractor shall work with EXIM to package supporting materials necessary to bring the structure to be placed in the risk sharing market.

7.4.2.2 To be considered a complete package, supporting materials must meet the needs of the private sector. Materials should allow the private sector to be able to adequately consider the risk sharing structures.

7.4.2.3 The contractor shall coordinate with EXIM and work with the group of reinsurers or capital markets to have the risk sharing structure placed to the reinsurance, insurance or capital markets, consistent with commercial practices.

7.4.3 Risk Sharing Offer Evaluation and Execution

7.4.3.1 Upon receipt of offers resulting from any particular Risk Sharing Placement, Contractor shall assist EXIM in the evaluation of the offers. The evaluation of offers shall consist of an assessment as to whether the offer represents the best value EXIM can expect for the given structure chosen.

7.4.3.1.1 If an offer is acceptable to EXIM, the Contractor shall assist the Bank in the execution of the reinsurance agreements, consistent with commercial practices.

7.4.3.1.1.1 If upon completion of evaluation, it is determined that the proposed risk sharing materials were not sufficient to meet the goals of EXIM, the Contractor will work with EXIM to develop a new structure

7.5 Compensation

The Contractor understands and accepts that under this no-cost Contract structure, all compensation and or reimbursement of incurred expenses to the Contractor shall be within the provenance of the agreement between the Contractor and the third party risk sharing/reinsurance entity with whom the Contractor has discussed/developed the risk sharing structure proposal; that EXIM has no legal liability to the Contractor for the payment of any fee or compensation as a result of or relating to any professional service performed by the Contractor, whether such service is requested directly by EXIM or is undertaken by the Contractor pursuant to its independent business judgment in furtherance of its efforts under this Contract; that the acceptance, modification, or rejection, in whole or in part, of any or all of the risk sharing/reinsurance placements proposed or otherwise resulting from the Contractor’s efforts, remains wholly within the discretion of EXIM, and may result in the Contractor not receiving the compensation or reimbursement of expenses from the risk sharing/reinsurance third party that it anticipated at the time that it performed the services contemplated by this Contract.

8.0 DELIVERABLES

Item # Deliverable Section Format/ Quantities Due Date 1 Risk Sharing

Structure(s) Refinement

7.4.1 PowerPoint and

Word

90 days after award

2 Risk Sharing Placement

7.4.2 TBD 60 days after

acceptance of the Risk Sharing Structure Refinement

3 Risk Sharing Offer Evaluation and Execution

7.4.3 TBD 60 days after Risk

Sharing Placement

Note that it is the sole discretion of EXIM to execute a risk sharing structure. If a risk sharing structure is accepted, then items 7.4.2 and 7.4.3 are applicable.

9.0 PERFORMANCE REQUIREMENT SUMMARY (PRS)

Task or Deliverable

Performance Standard

Acceptable Quality Level

(AQL)

Surveillance Method

Performance Rating Incentives/ Disincentives

Risk Sharing Structure(s) Refinement

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

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

100% Inspection

Exceptional – structure provided less than 90 days from award

Very Good – structure provided between 90 and 120 days from award

Satisfactory – structure provided more than 120 days after award

Unsatisfactory – no structure provided

Positive or negative CPARS rating

Exercise of option

Risk Sharing Placement

On time All deliverables as described

Exceptional – structure placed less than 60 days

Positive or

CPARS rating in the PWS and specified in the approved Schedule of Deliverables from Risk Sharing Structure Refinement

Very Good – structure placed between 60 days and 90 days from Risk Sharing Structure Refinement

Satisfactory – structure provided more than 90 days from Risk Sharing Structure Refinement

Unsatisfactory – no structure placed to market

Risk Sharing Offer Evaluation and Execution

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

Exceptional – structure placed less than 60 days from Risk Sharing Structure Placement

Very Good – structure placed between 60 days and 90 days from Risk Sharing Structure Placement

Satisfactory – structure provided more than 90 days from Risk Sharing Structure Placement

Unsatisfactory – no structure executed

Positive or

CPARS rating

PWS Attachment 1

Non-Disclosure Agreement and Certification:

CONDITIONAL ACCESS TO SENSITIVE

BUT UNCLASSIFIED INFORMATION and GOVERNMENT

INFORMATION/PROPERTY

Contract Number: .

I, , an employee of/subcontractor employee to (circle the correct descriptor) ______ ( hereinafter, the “Contractor”), hereby agree with and consent to the terms in this Non- Disclosure Agreement (hereinafter, the “NDA” or the “Agreement”) in consideration of my being granted conditional access to certain United States Government documents or material containing sensitive but unclassified information, as well as access to Government facilities, Information Technology (IT) systems, records, information, data and or other property owned or controlled by the Government (all of which is collectively referred to hereinafter as “Government property”), for the sole purpose of performing services for the Contractor under the above-referenced Contract.

I understand, accept and agree to the following terms and conditions:

I. By being granted conditional access to sensitive but unclassified information, and other Government Property, the United States Government, acting through its authorized officials at the EXPORT-IMPORT Bank of the United States (hereinafter, “EXIM Bank”), has accorded to me the opportunity to perform services under the Contract, thereby evincing the trust and confidence that it has placed in me. I am obligated, and will endeavor at all times, to protect all Government Information from unauthorized disclosure, and protect all Government Property from improper use, mishandling, loss or destruction, in accordance with the terms of this Agreement. I understand that the obligations I have assumed under this Agreement are in addition to, and not exclusive of, any obligations created by Federal statute or regulation.

II. As used in this Agreement, sensitive but unclassified information is any information the loss or misuse of which, or the unauthorized access to or modification of, could adversely affect the national interest or the conduct of Federal programs, or to which individuals are entitled to privacy under the Privacy Act, Title 5 U.S.C. section 552a, but which has not been specifically authorized under criteria established by an Executive Order or an Act of Congress to be kept secret in the interest of national defense or foreign policy.

III. I am being granted conditional access contingent upon my execution of this Agreement for the sole purpose of performing the scope of work under contract# .

for (the “Contract”). The opportunity this accorded to me will permit conditional access to certain information, and/or to attend meetings in which such information is discussed or otherwise made available to me. This Agreement will not allow me access to materials which EXIM Bank has predetermined, or may hereafter determine, in its sole discretion, to be inappropriate for disclosure to me. This may include sensitive but unclassified information provided to or obtained by EXIM Bank from other agencies of the United States Government, other contractors or offerors, or individuals or other non-federal entities.

IV. I will never divulge any sensitive but unclassified information which is provided to me pursuant to this Agreement to anyone, unless I have been advised in writing by the EXIM Bank that the individual is authorized to receive it. Should I desire to make use of any sensitive but unclassified information, I will do so in accordance with paragraph VI of this Agreement. I will submit to EXIM Bank for security review, prior to any submission by me or on my behalf for publication of any kind, such as a book, article, column or other written work for general or limited publication that is based upon any knowledge I obtained during the course of my work on the Contract, in order to provide EXIM Bank the opportunity to review same to prevent the disclosure of any sensitive but unclassified information. Furthermore, I will not misuse any Government Property made available to me as a result of my presence within EXIM facilities, access to EXIM Bank IT systems, or my performance of services in support of the Contract, such misuse including, but not limited to, the retention of such Government Property – in any form or format – after the cessation of my performance of services under the Contract.

V. I hereby assign to the United States Government all royalties, remunerations, and emoluments that have resulted, will result or may result from any disclosure, publication, or revelation of sensitive but unclassified information, not consistent with the terms of this Agreement, or resulting from the misuse of any Government Property.

VI. If I am permitted, at the sole discretion of the EXIM Bank, to review any official documents containing sensitive but unclassified information, such review will be conducted at a secure facility or under circumstances which will maintain the secure protection of such material.

Unless work on the Contract is authorized by EXIM Bank to be performed at my company’s site or other off-site location, I will not make any copies of, documents or parts of documents to which conditional access is granted to me, nor carry such documents or parts thereof to any location outside of EXIM Bank facilities. Any notes taken by me or at my direction during the course of my access to such documents or sensitive but unclassified information recorded in electronic or other non-tangible form, will remain at EXIM Bank (or at my company’s site, or other location, if EXIM Bank authorized work to be performed under the Contract at such other location), and placed in secure storage unless it is determined by EXIM Bank officials that the notes contain no sensitive but unclassified information. If I wish to have the notes released to me, EXIM Bank officials will review the notes for the purposes of deleting any sensitive but unclassified information to create a redacted copy of the notes. If I do not wish a review of any notes that I make, those notes will remain in sealed and secure storage at the EXIM Bank. I understand that all such notes or other work product that I create in furtherance of my performance of services under the Contract are, and shall remain, the property of EXIM Bank.

VII. If I violate the terms and conditions of this Agreement, I understand that the unauthorized disclosure of sensitive but unclassified information could compromise the security of the EXIM Bank. I further understand that my misuse of Government Property could constitute a conversion of Government property, in violation of Federal criminal statutes. I am aware that any such unauthorized disclosure or misuse of Government Property, may result in EXIM Bank terminating the Contract, or any portion thereof, claims asserted by EXIM Bank against the Contractor, and negative performance ratings assigned to the Contractor.

VIII. If I violate any of the terms and or conditions of this Agreement, such violation may result in the cancellation of my conditional access to sensitive but unclassified information. This may serve as a basis for denying me conditional access to EXIM Bank information - classified as well as sensitive but unclassified- in the future, which will preclude me from performing services under the Contract. If I violate and of the terms and or conditions of this Agreement, the United States may institute a civil action for damages or other appropriate relief, against me, against the Contractor, or both. The willful disclosure of information that I have agreed herein not to divulge may constitute a criminal offense.

IX. Unless and until I am provided a written release by the EXIM Bank from the obligations I have assumed under this Agreement, or any portions thereof, the terms and conditions herein, and all obligations I have assumed hereunder, shall continue to apply to me, at all times that I am performing services under the Contract. Furthermore, I understand and agree that I shall remain bound by the terms and conditions of this Agreement and the obligations I have assumed hereunder, shall survive the expiration or termination of the Contract, as the case may be, and shall continue to apply to me until such time as EXIM Bank, or such other U.S. Government official vested with authority to do so, should release me therefrom.

X. Each provision of this Agreement is severable from all other provisions. If a court possessing competent jurisdiction over this Agreement and the application of Federal laws pertaining thereto, should find any provision of this Agreement to be unenforceable, all other provisions shall nonetheless remain in full force and effect.

XI. I understand that the United States Government may seek any remedy available to it to enforce this Agreement, including, but not limited to application for a court order prohibiting disclosure by me, or on my behalf, of any sensitive but unclassified information, or misuse of Government Property, in breach of this Agreement.

XII. By granting me conditional access to sensitive but unclassified information, as well as to other Government Property, to enable me to perform services under the Contract, the United States Government does not waive any statutory, regulatory or common law evidentiary privileges or protections (such as, but not limited to, Attorney-Client Privilege, Attorney Work Product, Agency Deliberative Process, or procurement sensitive, privileges or protections, as the case may be) that it may assert in any administrative or court proceeding with respect to any sensitive but unclassified information, or other Government Property, to which I have been given conditional access under the terms of this Agreement.

XIII. My execution of this Agreement shall not nullify or affect, in any manner, any other secrecy or nondisclosure agreement which I have executed or may execute with the United States Government.

XIV. By affixing my signature hereto, I hereby attest that I have read the entire Agreement, that I understand all provisions herein, and enter into this Agreement in good faith, without mental reservation or purpose of evasion.

Signature:

Date:

Name:

Capacity under Contract #

EXIM BANK

This Agreement is accepted by the undersigned on behalf of EXIM Bank. Acceptance of this Agreement constitutes approval by EXIM Bank for the above-named individual to access EXIM’s sensitive but unclassified information, and to use other Government Property as may be identified by EXIM Bank officials, as may be necessary to perform services under the Contract.

Signature:

Date:

Name:

Contracting Officer’s Representative (COR)

Contract #

PWS Attachment 2

MUTUAL CONFIDENTIALITY and NONDISCLOSURE AGREEMENT

This Mutual Confidentiality and NonDisclosure Agreement (hereinafter, the “NDA” or the “Agreement”) is entered into by and between ___________________ (“Company”) and the Export-Import Bank of the United States (“EXIM”), effective as of the date on which both of the parties have executed same, for the purpose of facilitating the performance of contract _______ (hereinafter, the “Contract”).

WHEREAS, Company and EXIM have entered into the Contract pursuant to which Company is to render professional services to the benefit of EXIM for which Company will be compensated by the third party reinsurers or other risk-sharing parties identified by Company; and

WHEREAS as the parties contemplate that during the performance of the Contract, each of the parties may provide to the other financial, accounting, proprietorial or otherwise confidential and or nonpublic information and or data, including information about internal processes used or relied upon by the disclosing party, all of which shall be referred to hereinafter as Confidential Information (see definition, infra); and

WHEREAS, the Company and EXIM mutually desire to set forth the terms and conditions regarding their respective use of, or access to, the Confidential Information of the other party;

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. “Confidential Information” as used in this Agreement shall include all information provided by the Disclosing Party to the Recipient Party, except as noted herein, whether in oral, written, electronic, graphic, or other format, including without limitation: (a) Disclosing Party’s financial and accounting information, or that of a third party made available to Disclosing Party in furtherance of Disclosing Party’s performance of services under the Contract; (b) information regarding Disclosing Party’s, or such third party’s, corporate affiliates, financial condition or performance, business operations, plans, strategies or techniques, know how, products or services, pricing, past or current customer information, systems or system strategies, and marketing and distribution plans, methods or techniques; (c) any other information that is marked by the Disclosing Party or a third party, as the case may be, “confidential,” “proprietary,” or with like words, or that is summarized in writing as being confidential prior to or promptly after disclosure to the other party; (d) any and all related information, research and data, including but not limited to such information, research and data that may pertain to third-party borrowers, buyers, exporters, lenders and other participants in loans made by EXIM or in credit transactions guaranteed or insured by EXIM; (e) any and all designs, ideas, concepts, intelligence, engineering, techniques, processes, methodologies, and technology embodied in any of the foregoing; (f) any rating analysis performed by Company for the benefit of EXIM; (g) any reinsurance structures or risk management solutions created by Company and designed to facilitate or enhance EXIM’s official functions; (h) any underwriting and pricing information, and information relating to loss data, models, modeling results, actuarial analyses and market capacity; and, (i) all designs, ideas, concepts, intelligence engineering, techniques, processes, methodologies, and technology embodied in any of the foregoing.

2. Confidential Information shall not include information which: (a) is or becomes generally available to the public other than as a result of disclosure by Recipient Party in violation of this Agreement; (b) was available to or already known by Recipient Party on a lawful, non-confidential basis prior to its disclosure by Disclosing Party; (c) is developed by Recipient Party independently of any information acquired from Disclosing Party; or (d) becomes available to Recipient Party on a non-confidential basis from a source other than Disclosing Party, provided that Recipient Party has no reason to know that such source is or may be bound by a confidentiality agreement with Disclosing Party. Notwithstanding any other provision of this Agreement, nothing in this Agreement shall prevent disclosures of any Confidential Information pursuant to a court order, subpoena, other requirement of any governmental or regulatory authority, or Congressional Committee request, provided that Recipient Party promptly notifies Disclosing Party of any such order, requirement or request, to the extent permitted by law. Furthermore, the parties agree that as to EXIM, a release of Confidential Information pursuant to a Freedom of Information Act request or order enforcing such request, shall not – in and of itself – convert the Confidential Information into publicly available or non-Confidential Information.

3. Each party agrees to exercise reasonable care to protect and prevent unauthorized disclosure of the other party’s Confidential Information. Recipient of such Confidential Information of the other party will not, and will not permit any of its affiliates, officers, directors, employees, agents or representatives (collectively “Agents”) to, directly or indirectly, (a) report, publish, distribute, disclose, or otherwise disseminate the Confidential Information, or any portion thereof, to any third party (except as necessary for purposes of participating in or supporting each reinsurance or risk sharing transaction undertaken in furtherance of the Contract (hereinafter, the “Transaction”) by the Disclosing Party, provided that the third party is given a copy of this Agreement and agrees in writing to be bound by it), and (b) use the other party’s Confidential Information, or any portion thereof, for its own benefit or for the benefit of any of its Agents or any third party for any purpose (except as necessary for purposes of participating in or supporting a Transaction, or otherwise in furtherance of that party’s performance of the Contract), except as expressly authorized in writing by Disclosing Party. Disclosure of Confidential Information by a Recipient Party may be made to, but shall be limited to, those of its officers, directors, employees or Agents who have a “need to know” the Confidential Information for purposes of Recipient Party’s performance of duties it has assumed under the Contract, including participation in a Transaction. The names and contact information of all third parties to whom Confidential Information is distributed by the Recipient Party pursuant to the parenthetical set forth in sub-section “a” of this paragraph shall be provided to the Disclosing Party along with a copy of this Agreement signed by such third party.

4. The parties agree that impermissible disclosure or use of Confidential Information, or other breach or violation of any of the provisions of this Agreement, may cause irreparable harm to Disclosing Party and that remedies at law may be inadequate to protect against breach of this Agreement. The parties hereby agree in advance that Disclosing Party shall have the right, in addition to all other available remedies, to seek injunctive relief without proof of actual damages in order to prevent such acts, attempts and violations. Nothing herein shall prevent either party from competing in good faith for the business of any customer or customers, provided it does not use for such purpose any Confidential Information of the other party obtained in connection with performance of a Transaction proposed or undertaken in furtherance of the Contract.

5. Each party understands and agrees that its access to and use of Confidential Information of the Disclosing Party is subject to the sole control and discretion of the Disclosing Party and that this Agreement does not establish any rights to continued access to or use of the Confidential Information furnished by the Disclosing Party after the purpose for such disclosure has been fulfilled, expired or been retracted, as the case may be. Upon request of Disclosing Party, Recipient Party shall return or destroy all Confidential Information of Disclosing Party which is in its possession or subject to its control, except for archival and backup copies that are not readily available for use, and business or government records required by law to be retained, which Recipient Party will continue to treat as confidential pursuant to the terms of this Agreement. All such retained Confidential Information shall nonetheless be returned or destroyed, as the case may be, at the date earliest permitted by the Recipient Party’s internal controls, or regulations. Additionally, upon request, such destruction of information shall be certified in writing to the Disclosing Party by an authorized official of the Recipient Party.

6. Nothing in this Agreement shall obligate either party to enter into any contractual or other business relationship (in addition to the Contract) with the other party, or to otherwise participate in any particular Transaction. The parties hereto agree that this Agreement, including all of the covenants and undertakings of EXIM and Company hereunder, shall remain in full force and effect in accordance with its terms, whether or not either party participates in a Transaction. Further, the obligations undertaken by each party shall survive the expiration or termination, as the case may be, of the Contract, and each Transaction undertaken in furtherance of the Contract.

7. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective legal representatives, successors and permitted assigns. This Agreement may not be assigned by either party without the prior written consent of the other. Company understands that EXIM, as a wholly-owned Government Corporation is an Agency of the United States Government, and as such, the transfer or assignment of this Agreement to another entity within the United States Government is not an assignment as that term is used in this section of the Agreement.

8. It is understood and agreed that any failure or delay in exercising any right granted in this Agreement shall not operate as a waiver of the right, nor shall any single or partial exercise of any right preclude any other or further exercise of the right or the exercise of any other right granted in this Agreement.

9. If any provision of this Agreement shall be finally determined to be invalid or unenforceable by any court of competent jurisdiction, such provision shall be deemed to be severed from this Agreement, but every other provision of this Agreement shall remain in full force and effect, to the extent practicable, notwithstanding the severance of the invalid or unenforceable provision. With respect to any such provision so determined to be invalid or unenforceable, any court with competent jurisdiction over the parties and the subject matter hereof shall have all necessary authority to rewrite such provision in order to provide for the enforceability thereof to the maximum extent permissible under law, and the parties hereto agree to abide by such court’s determination.

10. All Confidential Information is provided by Disclosing Party “AS IS” without any warranty, express, implied or otherwise, regarding its accuracy or completeness or its usefulness for any purpose.

11. The validity, construction, performance, enforcement, and remedies of or relating to this Agreement, and the rights and obligations of the parties hereunder, shall be governed by Federal case law applying the laws of the State of New York, without regard to the conflict of laws, rules, or statutes of any jurisdiction. Both parties consent to jurisdiction and venue in the Federal District Courts sitting in the State of New York, and or the Court of Federal Claims sitting in Washington D.C., notwithstanding the foregoing, Company understands that neither party may vest jurisdiction upon any court or administrative tribunal where such jurisdiction does not exist pursuant to Federal statute.

12. This Agreement constitutes the entire agreement between the parties with regard to the sharing or exchange of Confidential Information and supersedes any and all prior or contemporaneous oral or written understandings, agreements, or arrangements between the parties with respect to the subject matter hereof. The parties intend that this Agreement be incorporated into the Contract; and that any provision of the Contract addressing the subject matter of this Agreement shall be considered subordinate to the terms and conditions of this Agreement. Any modification to or waiver of this Agreement, or any of its provisions, shall not be binding upon either party unless made in writing and signed by both parties.

13. The existence of this Agreement, and the content thereof, does not constitute Confidential Information in and of itself, nor shall it be considered a “confidential transaction” within the meaning of United States Department of the Treasury Regulations Section 1.6011-4.

WAIVER OF JURY TRIAL. EXIM (TO THE EXTENT PERMITTED BY THE UNITED

STATES DEPARTMENT OF JUSTICE) AND COMPANY HEREBY KNOWINGLY,

VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN

ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS

UNDER THIS AGREEMENT, ANY RELATED DOCUMENT OR AGREEMENT

DELIVERED OR WHICH MAY BE DELIVERED IN THE FUTURE IN CONNECTION

HEREWITH OR THEREWITH, OR ARISING FROM ANY RELATIONSHIP EXISTING IN

CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY SUCH SUIT,

ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT

AND NOT BEFORE A JURY.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives. The effective date of this Agreement shall be the date on which each of the parties have executed this Agreement, or on the date the second party has done so, as the case may be. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.

_____________ EXPORT-IMPORT BANK OF THE

UNITED STATES

By: By:

Name: Name:

(Please Type or Print) (Please Type or Print)

Title: Title:

Third-party Agreement to abide by this Agreement as a condition to receipt of Confidential Information.

By signing below, the third-party below evidences its agreement to abide by the terms and conditions of the foregoing Agreement as a condition precedent to being provided Confidential Information of either or both of the parties. The individual signing below represents that she or he is fully authorized to execute this Agreement on behalf of the named third-party.

_____________________[Proper legal name of Third-party]

By:_________________________

Print Name: __________________

Title: ________________________

Date:________________________