This page, Article 10. Amendment: Miscellaneous, is offered by

Article 10. Amendment: Miscellaneous

Article 10 of the Pathways to Economic Success Pay for Success Contract.

Table of Contents

Section 10.01 Limitation of Liability

The Parties acknowledge that the Harvard Kennedy School Social Impact Bond Technical Assistance Lab (the “HKS SIB Lab”) is providing pro bono technical assistance to the Commonwealth in connection with this project and that the services provided by the HKS SIB Lab involve the expression of professional ideas, judgments and opinions by members of the HKS SIB Lab. The Parties further acknowledge that it is in the Parties' interest to have such ideas, judgments and opinions expressed frankly, without concern on the part of the HKS SIB Lab that such ideas, judgments and opinions will be deemed representations, warranties or covenants upon which the Parties may rely. The Parties further acknowledges that the innovation initiatives are relatively new, little-used and little-studied tools. Accordingly, the Parties understand and agree that the HKS SIB Lab does not hereby, and will not hereafter, warrant or make any representations concerning the accuracy of ideas, judgments, opinions, projections, analyses or estimates which any member of the HKS SIB Lab provides to the Parties under this Contract (collectively, “SIB Lab Materials”). The Parties further agree that (i) any decision the Parties may make to rely on any SIB Lab Materials shall be at their own risk; and (ii) no member of the HKS SIB Lab shall be liable to the Parties for, and the Parties shall not make any claim against any member of the HKS SIB Lab relating to, any claims, liabilities, losses, damages, costs or expenses of any kind which the Parties may at any time sustain or incur in connection with or arising out of any SIB Lab Materials or the Parties' reliance thereon or use thereof, other than claims, liabilities, losses, damages, costs and expenses resulting from the gross negligence or intentional misconduct of any member of the HKS SIB Lab. Without limiting the foregoing, in no event shall any member of the HKS SIB Lab be liable for any indirect, ·consequential, exemplary or punitive damages whatsoever in connection with claims arising under or relating to this PFS Contract, whether based upon a claim or action of contract, warranty, negligence, strict liability, or any other legal theory or cause of action, even if advised of the possibility of such damages.

Section 10.02 Amendment

This PFS Contract may be amended by the Parties for any reason in writing or as otherwise provided herein, including, but not limited to, substitution or revision of one or more of the Appendices or Schedules hereto, or to extend the term of this PFS Contract. Except as otherwise provided herein, any amendments that materially affect the amount or timing of the Success Payments shall require the consent of the Funding Partners. Certain changes to the PFS Contract that do not materially affect the rights or obligations of the Parties, including the appendices and schedules, may be approved by the Operating Committee in accordance with the Change Management Procedures specified in Schedule F.

Section 10.03 Successors and Assigns

Other than as set forth in Section 8.02(e) of this PFS Contract, none of JVS, SFI nor SFMA may assign its rights, duties and obligations under this PFS Contract without the written consent of the other Parties and the Funding Partners. Any other purported assignment is void. The rights and obligations of JVS, SFI and SFMA shall inure to and be binding upon their respective successors and assigns.

Section 10.04 Notices

Any request, authorization, direction, notice, consent, waiver or other document provided under this PFS Contract shall be in writing and shall be deemed sufficiently given when mailed by registered or certified mail, postage prepaid, or sent by electronic mail, with receipt acknowledged, or hand-delivered during business hours as follows:

To the Commonwealth at:

Executive Office for Administration and Finance
State House, Room 373
Boston, MA 02133
Attention: Tayo Edun
Email: Tayo.Edun@state.ma.us

Executive Office for Education
One Ashburton Place, Room 1403
Boston, MA 02108
Attention: Ann Reale, Undersecretary
Email: ann.reale@state.ma.us

Executive Office of Labor and Workforce Development
One Ashburton Place, Suite 2112
Boston, MA 02108
Attention: Jennifer James, Undersecretary
Email: Jennifer.James@state.ma.us

To JVS at:

Jewish Vocational Service
75 Federal Street
Boston, MA 02110
Attention: Carol Grady
Email: CGrady@jvs-boston.org

With a copy to:

Morgan, Lewis & Bockius, LLP
One Federal Street
Boston, MA 20110-1726
Attention: Mark Stein
Email: mstein@morganlewis.com

To SFI:

Social Finance, Inc.
10 Milk Street, Suite 1010
Boston, MA 02108
Attention: Caitlin Reimers Brumme
Email: creimers@socialfinance.org

To SFMA:

Social Finance MA LLC
10 Milk Street, Suite 1010
Boston, MA 02108
Attention: Caitlin Reimers Brumme
Email: creimers@socialfinance.org

With a copy to:

Choate Hall & Stewart LLP
2 International Place
Boston, MA 02110
Attention: Brad Bedingfield
Email: bbedingfield@choate.com

Each Party shall promptly notify all other Parties in writing of any changes to the contact information above. A Party entitled to notice hereunder may waive, prospectively or retroactively, the obligation of another Party to give notice, but such waiver shall not affect any notice obligations of other Parties.

Section 10.05 Agreement Not for the Benefit of Other Parties

(a) Except as set forth in clause (b) of this Section 10.05, this PFS Contract is not intended for the benefit of and shall not be construed to create rights in parties other than the Commonwealth, JVS, SFI, SFMA, the Independent Evaluator and JFF.

(b) The Commonwealth acknowledges that SFMA will collaterally assign the right to payment set forth in this PFS Contract to its Funding Partners (together with their successors and assigns, the “Assignees”) as collateral for the obligations of SFMA to the Assignees, and the Commonwealth hereby consents to such collateral assignment. The Commonwealth agrees that no amendment to this PFS Contract that affects the amount or timing of Success Payments hereunder shall be valid without the prior written consent of each Assignee. Each Assignee shall be a third party beneficiary of the Success Payment provisions of this PFS Contract and shall be entitled to enforce the payment provisions hereof.

Section 10.06 Severability

In case any provision of this PFS Contract shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, provided that the allocation of benefits and burdens under this PFS Contract shall not thereby be materially altered.

Section 10.07 Counterparts

This PFS Contract may be executed and delivered in any number of counterparts, each of which shall be deemed to be an original, but such counterparts together shall constitute one and the same instrument.

Section 10.08 Captions

The captions and table of contents of this PFS Contract are for convenience only and shall not affect the construction hereof.

Section 10.09 Governing Law

All issues concerning this Contract shall be governed by and construed in accordance with the laws of the Commonwealth without giving effect to any choice of law or conflict of law provision or rule (whether of the Commonwealth or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the Commonwealth.

Section 10.10 Waiver of Jury Trial

EACH PARTY TO THIS PFS CONTRACT HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (A) ARISING UNDER THIS PFS CONTRACT OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS PFS CONTRACT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. EACH PARTY TO THIS PFS CONTRACT HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS PFS CONTRACT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS PFS CONTRACT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

Section 10.11 Commonwealth Standard Terms and Conditions

The Commonwealth Standard Terms and Conditions, included as Exhibit A to this PFS Contract, are hereby incorporated into this PFS Contract and shall apply to this PFS Contract, provided, however, that to the extent that the provisions of this PFS Contract are construed by any Party or any other person to be inconsistent with Section 2 and Section 4 of the Commonwealth Standard Terms and Conditions, this PFS Contract shall prevail.

Section 10.12 Entire Agreement

This PFS Contract (including the Schedules, Exhibits and Appendices hereto) constitutes the entire agreement between the Parties hereto and no statement, promise, condition, understanding, inducement, or representation, oral or written, expressed or implied, which is not contained herein will be binding or valid, except to the extent this PFS Contract is amended in the manner set forth in Section 10.02.

Section 10.13 Non-Waiver

The failure of any Party to exercise any right or to require strict performance of any provision will not waive or diminish such Party’s right thereafter to exercise such right or to require strict performance of any provision nor will a waiver of any breach or default of this PFS Contract constitute a waiver of any subsequent breach or default or a waiver of the provision itself. No waiver of any of the provisions of this PFS Contract will be binding unless executed in writing by the Party making the waiver

Section 10.14 Survival of Covenants, Representations and Warranties

Except as required to implement the Early Termination Provisions under Article 8, and the provisions of Article 9, (Confidentiality), together with any related Appendices, Schedules or Exhibits (each of which will survive any termination or expiration of this PFS Contract until all obligations and disputes thereunder have been satisfied or resolved in accordance with their terms and the terms of this PFS Contract), no covenants, representations, and warranties of the Parties will survive the termination or expiration of this PFS Contract.

Section 10.15 Force Majeure

Whenever performance is required of a Party hereunder, that Party shall use all due diligence and take all necessary measures in good faith to perform, but if completion of performance is delayed by reasons of floods, earthquakes, or other acts of God, war, terrorism, civil commotion, riots, strikes, picketing, or other labor disputes, damage to work in progress by casualty, material shortages, or by other cause beyond the reasonable control of the Party (financial inability excepted), then the specified time for performance shall be extended by the amount of the delay actually so caused.

Section 10.16 Actions by Commonwealth

Except as otherwise provided herein, whenever any provision of this PFS Contract requires or permits any action to be taken or notice or consent to be given by the Commonwealth, such action, notice or consent shall be deemed sufficiently taken or given if taken or given for the Commonwealth by the Secretary of EOAF or a designee. Notwithstanding the above, both EOE and LWD shall be provided with copies of all reports submitted under Article 5, and shall have representation on the Oversight and Operating Committees as set forth in Schedule F.

Section 10.17 Responsibility of the Commonwealth

In performing its obligations under this PFS Contract, the Commonwealth shall not be liable for any action by it or any of its officers, directors, employees and agents (i) taken in good faith and reasonably believed to be within the discretion or powers conferred upon it, or (ii) in good faith omitted to be taken because reasonably believed to be beyond the discretion or powers conferred upon it, or (iii) taken pursuant to any direction or instruction by which it is governed under this PFS Contract. The Commonwealth shall in no event be liable for the application or misapplication of funds, or for other acts or defaults by any person except its own officers, directors and employees. When any consent or other action by the Commonwealth is called for by this PFS Contract, it may defer such action pending such investigation or inquiry or receipt of such evidence, if any, as it may require in support thereof. No permissive right or power to act shall be construed as a requirement to act; and no delay in the exercise of any such right or power shall affect the subsequent exercise of that right or power.

[Signature Pages to follow]

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