Section 10093.3 - Additional Requirements for Entities that Are Not Financial InstitutionsIn addition to the requirements set forth in Section 10093.2(c), to be approved as a Finance or Service Entity, Finance or Service Entity Applicants who are not Financial Institutions as defined in the regulations in this Article must meet the requirements described in this Section in a format to be specified by the Authority. All representations, warranties, and covenants in this Section must be signed by a person authorized to legally bind the Finance or Service Entity Applicant and must be true and correct to the best of the signatory's knowledge.
(a) Net Worth: The Finance or Service Entity Applicant must demonstrate to the Authority that it has a net worth of no less than $1 million.(b) Quality Control: The Finance or Service Entity Applicant must demonstrate to the Authority that it maintains quality control and management systems to evaluate and monitor the overall quality of its financing-related activities, including, where applicable, underwriting reviews, and consumer complaint resolution processes.(c) Underwriting Qualifications: If the Finance or Service Entity Applicant will perform the Underwriting role for the Program, it must provide the following to the Authority: (1) Demonstrated experience, in writing, with underwriting commercial financing;(2) Demonstrated experience, in writing, with equipment financing and the coordination of such financing with contractors and customers;(3) Written description of its underwriting process; and(4) Demonstrated qualifications, in writing, of the Finance or Service Entity Applicant and key positions and associated job duties with regard to underwriting.(d) Origination Qualifications: If the Finance or Service Entity Applicant will perform the Origination role for the Program, it must provide the following to the Authority: (1) Proof of at least $20 million in committed capital for general financing activities or demonstrate in writing that it has originated at least $20 million in financing or service agreements similar to Eligible Efficiency Agreements or 20 transactions in financing or service agreements similar to Eligible Efficiency Agreement(2) Demonstrated ability, in writing, to originate commercial financing in accordance with all applicable finance laws, including related expertise and experience, trained and qualified personnel, and suitable systems, processes, and facilities to support the business;(3) Demonstrated experience, in writing, with equipment financing and the coordination of such financing with contractors and customers; and(4) Sample transaction documentation.(e) Servicing Qualifications: If the Finance or Service Entity Applicant will perform the Servicer role under the Program, it must provide the following to the Authority: (1) Demonstrated capacity, in writing, for, and experience with, servicing the type of product(s) the Finance or Service Entity Applicant will be providing and general customer service; and(2) A description of key positions and associated job duties, software, and systems used by the Finance or Service Entity Applicant in performing servicing of Enrolled Efficiency Agreements.(f) Insurance: The Finance or Service Entity Applicant must maintain and provide evidence of the following insurance coverage: (1) General liability with limits of not less than $1 million per occurrence for bodily injury and property damage liability combined. The policy must include coverage for liabilities arising out of premises, operations, independent contractors, products, completed operations, personal and advertising injury, and liability assumed under an insured contract. This insurance must apply separately to each insured against whom a claim is made or suit is brought subject to the Finance or Service Entity Applicant's limit of liability. The policy must include the State of California, its officers, agents, employees, and servants as additional insureds, but only insofar as the operations under the regulations within this Article are concerned.(2) Companies that utilize vehicles for business purposes shall maintain motor vehicle liability with limits of not less than $1 million per accident. Such insurance must cover liability arising out of owned, hired, and non-owned motor vehicles.(3) Statutory workers' compensation and employer's liability coverage for all its employees who will be engaged in the Program, including special coverage extensions where applicable. Employer's liability limits of $1 million are required.(4) All insurance coverage must be in effect for the complete term during which the Finance or Service Entity Applicant is enrolled as a Finance or Service Entity. If insurance expires during this term, a new certificate must be received by the Authority at least ten business days prior to the expiration of the insurance. The new insurance must meet the terms required in this Subsection.(5) The Finance or Service Entity is responsible for ensuring that coverage will not be cancelled without thirty days' prior written notice to the Authority.(6) The Finance or Service Entity is responsible for any deductible or self-insured retention contained within the insurance policy.(7) Once enrolled, the Finance or Service Entity has the obligation to keep in effect at all times the insurance coverage specified in the regulations within this Article. If this obligation is not met, the Authority may, in addition to any other remedies it may have, terminate the Finance or Service Entity's participation in the Program, subject to the provisions set forth in the regulations in this Article.(8) Any insurance meeting the requirements of the regulations within this Article must be primary, and not excess, to any other insurance carried by the Authority.(g) Representations of Finance or Service Entity Applicants and Marketing Representatives. The application must include the Finance or Service Entity Applicant's representation, warranty, and covenant contained in this Subsection, signed by a person authorized to legally bind the Finance or Service Entity Applicant. If the Finance or Service Entity Applicant will not be filling the Marketing Representative role, the application must additionally include the Marketing Representative's representation, warranty, and covenant below. These representations, warranties, and covenants are not limited to matters of which the Finance or Service Entity Applicant and/or Marketing Representative had knowledge. Matters that are of public record will be deemed to be known by the Finance or Service Entity Applicant and/or Marketing Representative. (1) The Finance or Service Entity Applicant is duly organized and validly existing under the laws of the state of its organization and California with due power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and has had at all relevant times and continues to have the power, authority, and legal right to participate in this Program.(2) The Finance or Service Entity Applicant is duly qualified to do business and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business will require such qualifications.(3) The Finance or Service Entity Applicant has the power and authority to execute and to carry out the terms of the Program.(4) There are no proceedings or investigations pending or threatened, before any court, regulatory body, administrative agency nor other governmental instrumentality having jurisdiction over the Finance or Service Entity Applicant or its properties: (A) Asserting the invalidity of the regulations within this Article;(B) Seeking to prevent the consummation of any of the transactions contemplated by the regulations within this Article; or(C) Seeking any determination or ruling that might materially and/or adversely affect the performance by the Finance or Service Entity Applicant of its obligations under the regulations within this Article.(h) The Finance or Service Entity Applicant must make the following representations, warranties, and covenants to the Authority, signed by a person authorized to legally bind the Finance or Service Entity Applicant. These representations, warranties, and covenants are not limited to matters of which the Finance or Service Entity Applicant had knowledge. Matters that are of public record will be deemed to be known by the Finance or Service Entity Applicant.(1) The Finance or Service Entity Applicant has, and must maintain throughout its enrollment in the Program as a Finance or Service Entity, trained and qualified employees and suitable facilities and operating systems for the performance of the Underwriting, Origination, and Servicing functions, as applicable, required to administer the Program.(2) For a Finance or Service Entity Applicant planning to fill the Servicing role, the Finance or Service Entity Applicant has established, and must maintain throughout its enrollment in the Program as a Finance or Service Entity, a written disaster recovery plan that covers the restoration of the facilities, backup, and recovery of information in electronic data processing systems. Alternate processing facilities and systems are required to ensure continuous operations. The Finance or Service Entity must allow the Authority, at no additional cost to the Authority, to inspect its disaster recovery plan and facilities.(3) For a Finance or Service Entity Applicant planning to fill the Origination role, the Finance or Service Entity Applicant has established, and must maintain throughout its enrollment in the Program as a Finance or Service Entity, adequate internal audit and management control systems to guard against dishonest, fraudulent, or negligent acts by employees and contractors involved in the origination process.Cal. Code Regs. Tit. 4, § 10093.3
1. New section filed 5-9-2019 as a deemed emergency pursuant to Public Resources Code section 26009; operative 5-9-2019 (Register 2019, No. 19). A Certificate of Compliance must be transmitted to OAL by 11-5-2019 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 10-31-2019 as a deemed emergency pursuant to Public Resources Code section 26009; operative 11-6-2019 pursuant to Government Code section 11346.1(d) (Register 2019, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-4-2020 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 1-30-2020 as a deemed emergency pursuant to Public Resources Code section 26009; operative 2-5-2020 pursuant to Government Code section 11346.1(d) (Register 2020, No. 5). A Certificate of Compliance must be transmitted to OAL by 5-5-2020 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 1-30-2020 order, including amendment of section, transmitted to OAL 5-5-2020 and filed 6-17-2020; amendments operative 6-17-2020 pursuant to Government Code section 11343.4(b)(3) (Register 2020, No. 25). Note: Authority cited: Sections 26006 and 26009, Public Resources Code. Reference: Sections 26002, 26002.5, 26003, 26006, 26011 and 26040, Public Resources Code.
1. New section filed 5-9-2019 as a deemed emergency pursuant to Public Resources Code section 26009; operative 5/9/2019 (Register 2019, No. 19). A Certificate of Compliance must be transmitted to OAL by 11-5-2019 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 10-31-2019 as a deemed emergency pursuant to Public Resources Code section 26009; operative 11/6/2019 pursuant to Government Code section 11346.1(d) (Register 2019, No. 44). A Certificate of Compliance must be transmitted to OAL by 2-4-2020 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 1-30-2020 as a deemed emergency pursuant to Public Resources Code section 26009; operative 2/5/2020 pursuant to Government Code section 11346.1(d) (Register 2020, No. 5). A Certificate of Compliance must be transmitted to OAL by 5-5-2020 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 1-30-2020 order, including amendment of section, transmitted to OAL 5-5-2020 and filed 6-17-2020; amendments operative 6/17/2020 pursuant to Government Code section 11343.4(b)(3) (Register 2020, No. 25).