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Climatec Memorandum of Understanding (San Leandro) <br />2288561 <br />MEMORANDUM OF UNDERSTANDING <br />Climatec LLC (“Climatec”), the City of San Leandro, California (the “City”) and Banc <br />of America Public Capital Corp desire to enter into this Memorandum of Understanding (this <br />“Memorandum”) entered into as of January 22, 2021, relating to that certain Installation <br />Agreement dated as of September 21, 2020 (the “Vendor Agreement”) by and between Climatec <br />and the City. Pursuant to the Vendor Agreement, Climatec has agreed to (i) install certain <br />materials and equipment financed or to be financed with the proceeds of the hereinafter defined <br />Financing Agreement (the “Equipment”), (ii) provide other services related to the installation of <br />the Equipment and (iii) reduce energy-related operating costs for the City through the project <br />development and implementation, including, engineering, system design, fabrication and <br />installation of energy efficiency measures that will result in energy savings to the City and which <br />shall be a supply of energy to the City. Banc of America Public Capital Corp (with its <br />successors and assigns, “BAPCC”) and the City will be entering into an Equipment <br />Lease/Purchase Agreement (Escrow Account), dated January 22, 2021 (the “Financing <br />Agreement”) to finance the cost of the Equipment under the Vendor Agreement. BAPCC, <br />Climatec, and the City are collectively referred to in this memorandum as the “Parties.” Unless <br />specifically defined in this Memorandum, defined terms have the meanings set forth in the <br />Vendor Agreement. <br />The purpose of this Memorandum is to set forth the understanding of the Parties with <br />respect to the rights of the Parties relating to the Equipment and certain other matters herein. <br />Under Section 6.02 of the Financing Agreement, the City grants to BAPCC a first priority <br />security interest constituting a first lien on (a) the Equipment, together with all replacements, <br />repairs and restorations thereof or thereto, and all substitutions and renewals to any and all of <br />such Equipment, (b) moneys and investments held from time to time in the Escrow Account (as <br />defined in the Financing Agreement), (c) all accounts, chattel paper, deposit accounts, <br />documents, instruments, general intangibles and investment property (including any securities <br />accounts and security entitlements relating thereto) evidenced by or arising out of or otherwise <br />relating to the Equipment or the Escrow Account, as such terms are defined in Article 9 of the <br />California Commercial Code, and (d) any and all proceeds of any and all of the foregoing, <br />including, without limitation, insurance proceeds. For purposes of the Vendor Agreement, <br />Climatec hereby consents to the City’s grant of a security interest to BAPCC in and to the <br />Equipment to be installed or furnished under the Vendor Agreement and consents to the lien and <br />security interest in favor of BAPCC described in the preceding sentence. <br />The Parties hereto acknowledge and agree that, notwithstanding any provision in the <br />Vendor Agreement to the contrary: <br />1.Notwithstanding the provisions of the Vendor Agreement, title to the <br />Equipment (or portion thereof) shall pass free and clear to the City from Climatec upon <br />payment by the City for the Equipment, Work or services corresponding to such <br />Equipment (or portion thereof); <br />342