Common use of By the Issuer Clause in Contracts

By the Issuer. The ISSUER may terminate this Agreement: (i) If the ESCO fails to complete the Energy Audit and deliver the Report to the ISSUER by the date established in Article 1 J. above; and fails to request a written extension of that date from the ISSUER. Termination under this subsection shall be effective upon the ESCO’s receipt of written notification from the ISSUER that the deadline for submission of the Energy Audit and Report has passed. In this event, the ISSUER shall not be obligated to pay any amount to the ESCO for services performed or expenses incurred by the ESCO in performing the Energy Audit and preparing the Report required under this Agreement. The ESCO will return any documents or information provided by the ISSUER. (ii) If, prior or subsequent to the completion of the Energy Audit or Report, the ESCO notifies the ISSUER in writing that it is unable to guarantee a sufficient level of savings pursuant to Article 4 above, termination under this subsection shall be effective upon XXXX'x receipt of written notification of termination from the ISSUER. In this event, the ISSUER shall not be obligated to pay any amount to the ESCO for services performed or expenses incurred by the ESCO in performing the Energy Audit and preparation of the Report required under this Agreement. The ESCO will return any documents or information provided by the ISSUER. (iii) If the ESCO fails to complete the Energy Audit and deliver the Report to the ISSUER by the date established in Article 1 J. above; and the ISSUER has withheld a written extension of that date, this agreement may be terminated. Termination under this subsection shall be effective upon the ESCO’s receipt of written notification from the ISSUER that the deadline for submission of the Energy Audit and Report has past. The ISSUER shall reimburse the ESCO for either the actual expenses incurred or the percent of the Audit and Report completed whichever is greater but shall not exceed the amount stated in Section J. The ESCO shall provide the ISSUER with any Audit documents (preliminary notes, reports or analysis) which have been produced or prepared prior to the effective date of the termination. The ESCO will return any documents or information provided by the ISSUER. Termination under this subsection shall be effective upon the ESCO receipt of written notification from the ISSUER. (iv) If, prior or subsequent to the completion of the Energy Audit or Report, the ISSUER notifies the ESCO in writing that it has elected to terminate this Agreement and not enter into an ESA, the ISSUER shall reimburse the ESCO for either the actual expenses incurred or the percent of the Audit and Report completed whichever is greater but shall not exceed the amount stated in Section J, as of the effective date of the termination, the amount being determined as fair and equitable by the ISSUER. The ESCO shall provide the ISSUER with any Audit documents (preliminary notes, reports or analysis) which have been produced or prepared prior to the effective date of the termination. The ESCO will return any documents or information provided by the ISSUER. Termination under this subsection shall be effective upon the ESCO receipt of written notification from the ISSUER. The ESCO agrees to provide the ISSUER with any records of expenses incurred prior to the effective date of the termination. Such documentation shall be used by the ISSUER to determine the extent of work completed by the ESCO prior to termination and shall become the property of the ISSUER.

By the Issuer. The ISSUER may terminate this Agreement: (i) : If the ESCO fails to complete the Energy Audit and deliver the Report to the ISSUER by the date established in Article 1 J. above; and fails to request a written extension of that date from the ISSUER. Termination under this subsection shall be effective upon the ESCO’s receipt of written notification from the ISSUER that the deadline for submission of the Energy Audit and Report has passed. In this event, the ISSUER shall not be obligated to pay any amount to the ESCO for services performed or expenses incurred by the ESCO in performing the Energy Audit and preparing the Report required under this Agreement. The ESCO will return any documents or information provided by the ISSUER. (ii) . If, prior or subsequent to the completion of the Energy Audit or Report, the ESCO notifies the ISSUER in writing that it is unable to guarantee a sufficient level of savings pursuant to Article 4 above, termination under this subsection shall be effective upon XXXX'x ESCO's receipt of written notification of termination from the ISSUER. In this event, the ISSUER shall not be obligated to pay any amount to the ESCO for services performed or expenses incurred by the ESCO in performing the Energy Audit and preparation of the Report required under this Agreement. The ESCO will return any documents or information provided by the ISSUER. (iii) . If the ESCO fails to complete the Energy Audit and deliver the Report to the ISSUER by the date established in Article 1 J. above; and the ISSUER has withheld a written extension of that date, this agreement may be terminated. Termination under this subsection shall be effective upon the ESCO’s receipt of written notification from the ISSUER that the deadline for submission of the Energy Audit and Report has past. The ISSUER shall reimburse the ESCO for either the actual expenses incurred or the percent of the Audit and Report completed whichever is greater but shall not exceed the amount stated in Section J. The ESCO shall provide the ISSUER with any Audit documents (preliminary notes, reports or analysis) which have been produced or prepared prior to the effective date of the termination. The ESCO will return any documents or information provided by the ISSUER. Termination under this subsection shall be effective upon the ESCO receipt of written notification from the ISSUER. (iv) . If, prior or subsequent to the completion of the Energy Audit or Report, the ISSUER notifies the ESCO in writing that it has elected to terminate this Agreement and not enter into an ESA, the ISSUER shall reimburse the ESCO for either the actual expenses incurred or the percent of the Audit and Report completed whichever is greater but shall not exceed the amount stated in Section J, as of the effective date of the termination, the amount being determined as fair and equitable by the ISSUER. The ESCO shall provide the ISSUER with any Audit documents (preliminary notes, reports or analysis) which have been produced or prepared prior to the effective date of the termination. The ESCO will return any documents or information provided by the ISSUER. Termination under this subsection shall be effective upon the ESCO receipt of written notification from the ISSUER. The ESCO agrees to provide the ISSUER with any records of expenses incurred prior to the effective date of the termination. Such documentation shall be used by the ISSUER to determine the extent of work completed by the ESCO prior to termination and shall become the property of the ISSUER.

By the Issuer. The ISSUER may terminate this Agreement: (i) If the ESCO fails to complete the Energy Audit and deliver the Report to the ISSUER by the date established in Article 1 J. above; and fails to request a written extension of that date from the ISSUER. Termination under this subsection shall be effective upon the ESCO’s receipt of written notification from the ISSUER that the deadline for submission of the Energy Audit and Report has passed. In this event, the ISSUER shall not be obligated to pay any amount to the ESCO for services performed or expenses incurred by the ESCO in performing the Energy Audit and preparing the Report required under this Agreement. The ESCO will return any documents or information that was provided by the ISSUER. (ii) If, prior or subsequent to the completion of the Energy Audit or Report, the ESCO notifies the ISSUER in writing that it is unable to guarantee a sufficient level of savings pursuant to Article 4 above, termination under this subsection shall be effective upon XXXX'x ESCO's receipt of written notification of termination from the ISSUER. In this event, the ISSUER shall not be obligated to pay any amount to the ESCO for services performed or expenses incurred by the ESCO in performing the Energy Audit and preparation of the Report required under this Agreement. The ESCO will return any documents or information that was provided by the ISSUER. (iii) If the ESCO fails to complete the Energy Audit and deliver the Report to the ISSUER by the date established in Article 1 J. above; and the ISSUER has withheld a written extension of that date, this agreement may be terminated. Termination under this subsection shall be effective upon the ESCO’s receipt of written notification from the ISSUER that the deadline for submission of the Energy Audit and Report has past. The ISSUER shall reimburse the ESCO for either the actual expenses incurred or the percent of the Audit and Report completed whichever is greater but shall not exceed the amount stated in Section J. The ESCO shall provide the ISSUER with any Audit documents (preliminary notes, reports or analysis) which have been produced or prepared prior to the effective date of the termination. The ESCO will return any documents or information that was provided by the ISSUER. Termination under this subsection shall be effective upon the ESCO receipt of written notification from the ISSUER. (iv) If, prior or subsequent to the completion of the Energy Audit or Report, the ISSUER notifies the ESCO in writing that it has elected to terminate this Agreement and not enter into an ESA, the ISSUER shall reimburse the ESCO for either the actual expenses incurred or the percent of the Audit and Report completed whichever is greater but shall not exceed the amount stated in Section J, as of the effective date of the termination, the amount being determined as fair and equitable by the ISSUER. The ESCO shall provide the ISSUER with any Audit documents (preliminary notes, reports or analysis) which have been produced or prepared prior to the effective date of the termination. The ESCO will return any documents or information that was provided by the ISSUER. Termination under this subsection shall be effective upon the ESCO receipt of written notification from the ISSUER. The ESCO agrees to provide the ISSUER with any records of expenses incurred prior to the effective date of the termination. Such documentation shall be used by the ISSUER to determine the extent of work completed by the ESCO prior to termination and shall become the property of the ISSUER.

By the Issuer. The ISSUER Issuer will indemnify and hold the Lender and its directors, officers, shareholders, employees and agents, and any other persons with a functionally equivalent role of a person holding such titles notwithstanding a lack of such title or any other title (each, a “Lender Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees, costs of investigation and costs of enforcing this indemnity, that any the Lender Party may terminate suffer or incur as a result of the Lender subscribing for the Convertible Notes or any breach of any of the representations, warranties, covenants or agreements made by the Issuer in this Agreement: . If any action shall be brought against any Lender Party in respect of which indemnity may be sought pursuant to this Agreement, the Lender Party shall promptly notify the Issuer in writing, and the Issuer shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Lender Party. Any Lender Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Lender Party except to the extent that (i) If the ESCO fails to complete the Energy Audit and deliver the Report to the ISSUER employment thereof has been specifically authorized by the date established Issuer in Article 1 J. above; and fails to request a written extension of that date from the ISSUER. Termination under this subsection shall be effective upon the ESCO’s receipt of written notification from the ISSUER that the deadline for submission of the Energy Audit and Report has passed. In this eventwriting, the ISSUER shall not be obligated to pay any amount to the ESCO for services performed or expenses incurred by the ESCO in performing the Energy Audit and preparing the Report required under this Agreement. The ESCO will return any documents or information provided by the ISSUER. (ii) If, prior the Issuer has failed after a reasonable period of time to assume such defense and to employ counsel or subsequent to the completion of the Energy Audit or Report, the ESCO notifies the ISSUER in writing that it is unable to guarantee a sufficient level of savings pursuant to Article 4 above, termination under this subsection shall be effective upon XXXX'x receipt of written notification of termination from the ISSUER. In this event, the ISSUER shall not be obligated to pay any amount to the ESCO for services performed or expenses incurred by the ESCO in performing the Energy Audit and preparation of the Report required under this Agreement. The ESCO will return any documents or information provided by the ISSUER. (iii) If in such action there is, in the ESCO fails to complete reasonable opinion of counsel, a material conflict on any material issue between the Energy Audit and deliver position of the Report to the ISSUER by the date established in Article 1 J. above; Issuer and the ISSUER has withheld a written extension position of that datethe Lender Party, this agreement may be terminated. Termination under this subsection in which case the Issuer shall be effective upon responsible for the ESCO’s receipt reasonable fees and expenses of no more than one such separate counsel. The Issuer shall not settle or compromise any claim for which a Lender Party seeks indemnification hereunder without the prior written notification from consent of the ISSUER Lender Party and such consent not to be unreasonably withheld, conditioned or delayed, unless such settlement involves a full and complete release of the applicable Lender Party. The indemnification required by this Section 8.3(a) shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred, provided, however, that the deadline for submission of recipient thereof shall execute a customary undertaking to repay any such amounts in the Energy Audit and Report has past. The ISSUER shall reimburse the ESCO for either the actual expenses incurred or the percent of the Audit and Report completed whichever event that such recipient is greater but shall ultimately determined not exceed the amount stated in Section J. The ESCO shall provide the ISSUER with any Audit documents (preliminary notes, reports or analysis) which have been produced or prepared prior to the effective date of the termination. The ESCO will return any documents or information provided by the ISSUER. Termination under this subsection shall be effective upon the ESCO receipt of written notification from the ISSUERentitled to indemnification hereunder. (iv) If, prior or subsequent to the completion of the Energy Audit or Report, the ISSUER notifies the ESCO in writing that it has elected to terminate this Agreement and not enter into an ESA, the ISSUER shall reimburse the ESCO for either the actual expenses incurred or the percent of the Audit and Report completed whichever is greater but shall not exceed the amount stated in Section J, as of the effective date of the termination, the amount being determined as fair and equitable by the ISSUER. The ESCO shall provide the ISSUER with any Audit documents (preliminary notes, reports or analysis) which have been produced or prepared prior to the effective date of the termination. The ESCO will return any documents or information provided by the ISSUER. Termination under this subsection shall be effective upon the ESCO receipt of written notification from the ISSUER. The ESCO agrees to provide the ISSUER with any records of expenses incurred prior to the effective date of the termination. Such documentation shall be used by the ISSUER to determine the extent of work completed by the ESCO prior to termination and shall become the property of the ISSUER.

By the Issuer. The ISSUER Issuer may terminate this Agreement: (i) If the ESCO fails to complete the Energy Audit and deliver the Report to the ISSUER Issuer by the date established in Article 1 J. I. above; and or fails to request obtain a written extension of that date from the ISSUERIssuer. Termination under this subsection B (i) shall be effective upon the ESCO’s receipt of written notification from the ISSUER Issuer that the deadline for submission of the Energy Audit and Report has passedpast. In this event, the ISSUER Issuer shall not be obligated to pay any amount to the ESCO for services performed or expenses incurred by the ESCO in performing the Energy Audit and preparing the Report required under this Agreement. The ESCO shall provide the Issuer with any Audit documents (preliminary notes, reports or analysis) which have been produced or prepared prior to the effective date of the termination. The ESCO will return any documents or information that was provided by the ISSUERIssuer. (ii) If, prior or subsequent to the completion of the Energy Audit or Report, the ESCO notifies the ISSUER Issuer in writing that it is unable to guarantee a sufficient level of savings pursuant to Article 4 A (i) or (ii) above, termination under this subsection B (ii) shall be effective upon XXXX'x Company's receipt of written notification of termination from the ISSUERIssuer. In this event, the ISSUER Issuer shall not be obligated to pay any amount to the ESCO for services performed or expenses incurred by the ESCO in performing the Energy Audit and preparation of the Report required under this Agreement. The ESCO will return any documents or information provided by the ISSUER. (iii) If the ESCO fails to complete the Energy Audit and deliver the Report to the ISSUER by the date established in Article 1 J. above; and the ISSUER has withheld a written extension of that date, this agreement may be terminated. Termination under this subsection shall be effective upon the ESCO’s receipt of written notification from the ISSUER that the deadline for submission of the Energy Audit and Report has past. The ISSUER shall reimburse the ESCO for either the actual expenses incurred or the percent of the Audit and Report completed whichever is greater but shall not exceed the amount stated in Section J. The ESCO shall provide the ISSUER Issuer with any Audit documents (preliminary notes, reports or analysis) which have been produced or prepared prior to the effective date of the termination. The ESCO will return any documents or information that was provided by the ISSUER. Termination under this subsection shall be effective upon the ESCO receipt of written notification from the ISSUERIssuer. (iviii) If, prior or subsequent to the completion of the Energy Audit or Report, the ISSUER Issuer notifies the ESCO Company in writing that it has elected to terminate this Agreement and not enter into an ESA, the ISSUER Issuer shall reimburse the ESCO for either the actual expenses incurred or the percent of the Audit and Report completed whichever is greater but shall not exceed the amount stated in Section J, as of the effective date of the termination, the amount being determined as fair and equitable by the ISSUER. The ESCO shall provide the ISSUER with any Audit documents (preliminary notes, reports or analysis) which have been produced or prepared prior to the effective date of the termination. The ESCO will return any documents or information provided by the ISSUERIssuer. Termination under this subsection B (iii) shall be effective upon the ESCO receipt of written notification from the ISSUERIssuer. The ESCO agrees to provide the ISSUER Issuer with any records of expenses incurred and any preliminary notes, reports or analyses which have been produced or prepared prior to the effective date of the termination. Such documentation shall be used by the ISSUER Issuer to determine the extent of work completed by the ESCO prior to termination and shall become the property of the ISSUERIssuer. If after completion and acceptance of the Energy Audit, the Issuer does not enter into an ESA with the ESCO within 60 (sixty) days after written acceptance of the Energy Audit, the Issuer agrees to reimburse the ESCO for the cost of the Energy Audit as detailed herein. Termination under this subsection B (iii) shall be effective upon the ESCO receipt of written notification from the Issuer. The Energy Audit and Report will become the property of the Issuer. It is clearly understood by both parties hereto that, if the Parties successfully negotiate and execute an Energy Services Agreement, no payment shall be due for the Energy Audit or Report under the terms of this Agreement. This Agreement shall automatically terminate upon the execution of an ESA by the ESCO and the Issuer for a guaranteed energy performance contracting project at the Building and or Facilities. It is further understood that provisions for payment for the Energy Audit shall be incorporated into the ESA.