Common use of Common Facilities Clause in Contracts

Common Facilities. The Owner Participant acknowledges that, during the term of the Facility Lease, EME may, so long as no Material Lease Default or Lease Event of Default has occurred and is then continuing, seek to develop, either directly or indirectly through a subsidiary (other than ▇▇▇▇▇ City; EME or such subsidiary is hereinafter referred to as the "ADDITIONAL PLANTS OPERATOR"), additional electric generation units on the Facility Site ("ADDITIONAL PLANTS"), including but not limited to the development of both an approximately 730 MW gas-fired plant and an approximately 600 MW coal-fired plant to be located at the Facility Site. At such time as EME determines the specifications for the Additional Plants, ▇▇▇▇▇ City will prepare a written presentation, including site maps, to be made to the Owner Participant, setting forth the terms and conditions on which it plans to develop the Additional Plants and the physical specifications for operation of the Additional Plants (the "DEVELOPMENT PRESENTATION"). The Owner Participant shall be entitled to receive any additional information it reasonably requests to determine that neither the construction and operation of, and activities related to, the Additional Plants, constructed and operated in accordance with the Development Presentation, nor the Additional Plants Operator are likely to (w) interfere in any material way with the capacity, availability, reliability, performance or operation of the Facility, (x) materially increase O&M Costs for the Facility, (y) diminish the current value, residual value, utility or remaining economic useful life of the Facility by more than a DE MINIMIS amount (as measured immediately prior to such construction, assuming the Facility is, at such time, in the condition required by the terms of the Facility Lease) or cause the Facility to become "limited-use" property within the meaning of Rev. Proc. 2001-28, 2001-19 IRB 1156 or Rev. Proc. 2001-29, 2001-19 IRB 1160, or (z) otherwise cause ▇▇▇▇▇ City to incur any material cost, expense, claim or liability (collectively, "MATERIAL IMPAIRMENT"). The Owner Participant may engage such engineering, environmental or other consultants as are reasonably necessary to assist it in making such determination. In the event the Owner Participant reasonably concludes that there is a reasonable likelihood of a Material Impairment, the Owner Participant shall promptly give ▇▇▇▇▇ City notice of such conclusion in reasonable detail. If such notice is given, the Owner Participant shall cooperate with ▇▇▇▇▇ City in developing modifications, if any, to the Development Presentation which avoid the reasonable likelihood of any Material Impairment (including, if appropriate, (i) modifying shared facilities at ▇▇▇▇▇ City's cost (not payable out of Revenues) for increasing capacity to avoid any Material Impairment or (ii) imposing charges to be paid out of Additional Plant revenues to the Owner Lessor to pay for increased Facility operating costs or to compensate for any Material Impairment). ▇▇▇▇▇ City may revise the Development Presentation to incorporate the Owner Participant's modifications (the "REVISED DEVELOPMENT PRESENTATION"; the Development Presentation, if not objected to by the Owner Participant and the Revised Development Presentation, if applicable, are hereinafter referred to as the "ACTUAL DEVELOPMENT PLAN") and thereafter EME may develop the Additional Plants in accordance with the Revised Development Presentation and in a manner which avoids Material Impairment. To the extent that the development of the Additional Plants begins prior to the completion of any required subdivision of the Facility Site, Owner Participant agrees that it will direct the Owner Lessor to enter into an agreement with ▇▇▇▇▇ City amending the Ground Lease to permit the Additional Plant Operator to use such portion of the Facility Site for the Additional Plants as is provided in the Actual Development Plan. The Owner Participant further agrees that, on the terms and conditions set forth in the Actual Development Plan, it will direct the Owner Lessor to grant to the Additional Plants Operator, easements across the Facility Site which are reasonably required for access to the Additional Plants, fuel supply (including gas pipelines) for the Additional Plants, and electric transmission lines to and from the Additional Plants as set forth in the Actual Development Plan. The Owner Participant further agrees that, on the terms and conditions set forth in the Actual Development Plan, the Additional Plants may share use of: control room facilities; switchyards; fuel handling and processing facilities; all water systems including intake, storage, conditioning and discharge facilities; air systems; auxiliary steam systems; ash handling and disposal systems; bulk chemical and gas storage systems; and other equipment or systems which may support both the Facility and the Additional Plants (to the extent shared, the "COMMON FACILITIES") and shall enter into such agreements as are necessary to evidence such shared use; PROVIDED that any arrangement for sharing the Common Facilities shall provide that in all events in which, in the reasonable discretion of the Owner Participant, the Common Facilities have insufficient capacity to service the operations of both the Facility (to the extent necessary to maximize its Revenues) and the Additional Plants, the Facility shall have first call and right to use the Common Facilities to the exclusion of Additional Plants Operator and the Additional Plants, until such time as its requirements are met. Notwithstanding the proviso to the preceding sentence, to the extent that the Common Facilities have been improved as contemplated by the Actual Development Plan to increase capacity of such Common Facilities, the Facility's first call and right to use the Common Facilities will be limited to the pre-improvement capacity of such Common Facilities. The Owner Participant acknowledges that EME may seek to obtain financing of the Additional Plants and agrees to direct the Owner Lessor to issue consents and other documents reasonably required for such financing, including, but not limited to, releases of any security interests in separate turbines, generators and other equipment which are solely part of the Additional Plants and consents permitting the Additional Plants to grant security interests in the Additional Plants' interest in Common Facilities used by the Additional Plants, to the extent contemplated by the Actual Development Plan. Whether or not the transactions contemplated by a Development Presentation or Revised Development Presentation are consummated, ▇▇▇▇▇ City agrees to pay or reimburse, on an After-Tax Basis (from equity capital contributions only), any costs or expenses (including reasonable legal fees and expenses) incurred by the Owner Lessor or the Owner Participant in connection with the transactions contemplated by this ARTICLE XVI, including, without limitation, the reasonable fees and expenses of counsel and any consultant engaged by Owner Participant. The cost and expense of planning, developing, financing, constructing and operating the Additional Plants (and all claims and liabilities related thereto) shall be borne by EME or the Additional Plants Operator. In no event shall any such material cost, expense, claim or liability be incurred by ▇▇▇▇▇ City, except as set forth in the preceding paragraph.

Common Facilities. The Owner Participant acknowledges that, during the term Subject to Landlord’s right to change or alter any of the Facility Leasefollowing in Landlord’s discretion as herein provided, EME mayTenant shall have, so long as no Material Lease Default or Lease Event appurtenant to the Premises, the non-exclusive right to use in common with others, subject to commercially reasonable rules from time to time made by Landlord of Default has occurred which Tenant is given notice (the “Rules and is then continuing, seek to develop, either directly or indirectly through a subsidiary (other than ▇▇▇▇▇ City; EME or such subsidiary is hereinafter referred to as the "ADDITIONAL PLANTS OPERATOR"Regulations”), additional electric generation units the walkways and driveways necessary for access to the Building, and the surface of the roof and ground areas on the Facility Site ("ADDITIONAL PLANTS"), including but not limited for purposes accessory to the development of both an approximately 730 MW gasPermitted Use such as telecommunications and back-fired plant up power and an approximately 600 MW coal-fired plant to be located at area immediately outside the Facility Site. At such time as EME determines the specifications Building for the Additional Plantsinstallation and maintenance of a microbulk gas supply system; provided, ▇▇▇▇▇ City will prepare a written presentationhowever, including site mapsthat the location of any such telecommunications equipment, back-up power equipment and/or microbulk gas supply system shall be subject to Landlord’s prior approval (which shall not be made unreasonably withheld, conditioned or delayed) and any and all installations, alterations, and improvements in connection with the foregoing shall be subject to the Owner Participant, setting forth all of the terms and conditions on which it plans of Section 5.12(A). Tenant’s selected telecommunication service provider shall have access to develop the Additional Plants Building and the physical specifications for operation of Premises to provide Tenant’s telecommunication services, at Tenant’s sole cost and expense, provided that if Tenant’s selected telecommunications service provider is not already providing service to the Additional Plants Building, such provider shall be subject to Landlord’s prior approval (the "DEVELOPMENT PRESENTATION"which shall not be unreasonably withheld, conditioned, or delayed). The Owner Participant shall be entitled Landlord may modify, amend, supplement or change the Rules and Regulations from time to receive any additional information it reasonably requests time upon reasonable prior notice (except in the event of an emergency) to determine that neither the construction Tenant and operation ofprovided that, and activities related to, the Additional Plants, constructed and operated except if required in accordance connection with the Development Presentation, nor the Additional Plants Operator are likely to (w) interfere in any material way with the capacity, availability, reliability, performance or operation of the Facility, (x) materially increase O&M Costs for the Facility, (y) diminish the current value, residual value, utility or remaining economic useful life of the Facility by more than a DE MINIMIS amount (as measured immediately prior to such construction, assuming the Facility is, at such timeapplicable Legal Requirements, in the condition required by the terms of the Facility Lease) no event shall any new or cause the Facility to become "limited-use" property within the meaning of Rev. Proc. 2001-28, 2001-19 IRB 1156 or Rev. Proc. 2001-29, 2001-19 IRB 1160, or (z) otherwise cause ▇▇▇▇▇ City to incur any material cost, expense, claim or liability (collectively, "MATERIAL IMPAIRMENT"). The Owner Participant may engage such engineering, environmental or other consultants as are reasonably necessary to assist it amended Rules and Regulations be inconsistent with Tenant’s rights under this Lease and in making such determination. In the event the Owner Participant reasonably concludes that there is a reasonable likelihood of a Material Impairment, the Owner Participant shall promptly give ▇▇▇▇▇ City notice of such conclusion in reasonable detail. If such notice is given, the Owner Participant shall cooperate with ▇▇▇▇▇ City in developing modifications, if any, to the Development Presentation which avoid the reasonable likelihood of any Material Impairment (including, if appropriate, (i) modifying shared facilities at ▇▇▇▇▇ City's cost (not payable out of Revenues) for increasing capacity to avoid any Material Impairment or (ii) imposing charges to be paid out of Additional Plant revenues to the Owner Lessor to pay for increased Facility operating costs or to compensate for any Material Impairment). ▇▇▇▇▇ City may revise the Development Presentation to incorporate the Owner Participant's modifications (the "REVISED DEVELOPMENT PRESENTATION"; the Development Presentation, if not objected to by the Owner Participant and the Revised Development Presentation, if applicable, are hereinafter referred to as the "ACTUAL DEVELOPMENT PLAN") and thereafter EME may develop the Additional Plants in accordance with the Revised Development Presentation and in a manner which avoids Material Impairment. To the extent that the development of the Additional Plants begins prior to the completion of any required subdivision of the Facility Site, Owner Participant agrees that it will direct the Owner Lessor to enter into an agreement with ▇▇▇▇▇ City amending the Ground Lease to permit the Additional Plant Operator to use such portion of the Facility Site for the Additional Plants as is provided in the Actual Development Plan. The Owner Participant further agrees that, on conflict between the terms and conditions set forth in of this Lease and the Actual Development Plan, it will direct the Owner Lessor to grant to the Additional Plants Operator, easements across the Facility Site which are reasonably required for access to the Additional Plants, fuel supply (including gas pipelines) for the Additional Plants, Rules and electric transmission lines to and from the Additional Plants as set forth in the Actual Development Plan. The Owner Participant further agrees that, on the terms and conditions set forth in the Actual Development PlanRegulations, the Additional Plants may share use of: control room facilities; switchyards; fuel handling and processing facilities; all water systems including intake, storage, conditioning and discharge facilities; air systems; auxiliary steam systems; ash handling and disposal systems; bulk chemical and gas storage systems; and other equipment or systems which may support both the Facility and the Additional Plants (to the extent shared, the "COMMON FACILITIES") and provisions of this Lease shall enter into such agreements as are necessary to evidence such shared use; PROVIDED that any arrangement for sharing the Common Facilities shall provide that in all events in which, in the reasonable discretion of the Owner Participant, the Common Facilities have insufficient capacity to service the operations of both the Facility (to the extent necessary to maximize its Revenues) and the Additional Plants, the Facility shall have first call and right to use the Common Facilities to the exclusion of Additional Plants Operator and the Additional Plants, until such time as its requirements are met. Notwithstanding the proviso to the preceding sentence, to the extent that the Common Facilities have been improved as contemplated by the Actual Development Plan to increase capacity of such Common Facilities, the Facility's first call and right to use the Common Facilities will be limited to the pre-improvement capacity of such Common Facilities. The Owner Participant acknowledges that EME may seek to obtain financing of the Additional Plants and agrees to direct the Owner Lessor to issue consents and other documents reasonably required for such financing, including, but not limited to, releases of any security interests in separate turbines, generators and other equipment which are solely part of the Additional Plants and consents permitting the Additional Plants to grant security interests in the Additional Plants' interest in Common Facilities used by the Additional Plants, to the extent contemplated by the Actual Development Plan. Whether or not the transactions contemplated by a Development Presentation or Revised Development Presentation are consummated, ▇▇▇▇▇ City agrees to pay or reimburse, on an After-Tax Basis (from equity capital contributions only), any costs or expenses (including reasonable legal fees and expenses) incurred by the Owner Lessor or the Owner Participant in connection with the transactions contemplated by this ARTICLE XVI, including, without limitation, the reasonable fees and expenses of counsel and any consultant engaged by Owner Participant. The cost and expense of planning, developing, financing, constructing and operating the Additional Plants (and all claims and liabilities related thereto) shall be borne by EME or the Additional Plants Operator. In no event shall any such material cost, expense, claim or liability be incurred by ▇▇▇▇▇ City, except as set forth in the preceding paragraphcontrol.

Common Facilities. The Owner Participant acknowledges that, during the term of the Facility Lease, EME may, so long as no Material Lease Default or Lease Event of Default has occurred and is then continuing, seek to develop, either directly or indirectly through a subsidiary (other than ▇▇▇▇▇ City; EME or such subsidiary is hereinafter referred to as the "ADDITIONAL PLANTS OPERATORAdditional Plants Operator"), additional electric generation units using solely fossil fuel on the Facility Site ("ADDITIONAL PLANTSAdditional Plants"), including but not limited to the development of both an approximately 730 MW gas-fired plant and an approximately 600 MW coal-fired plant to be located at the Facility Site. At such time as EME determines the specifications for the Additional Plants, ▇▇▇▇▇ City will prepare a written presentation, including site maps, to be made to the Owner Participant, setting forth the terms and conditions on which it plans to develop the Additional Plants and the physical specifications for operation of the Additional Plants (the "DEVELOPMENT PRESENTATIONDevelopment Presentation"). Neither the Additional Plants, constructed and operated in accordance with the Development Presentation, nor the Additional Plants Operator shall violate any Requirement of Law, including but not limited to, any environmental law. The Owner Participant shall be entitled to receive any additional information it reasonably requests to determine that neither the construction and operation of, and activities related to, the Additional Plants, constructed and operated in accordance with the Development Presentation, nor the Additional Plants Operator are likely to (w) interfere in any material way with the capacity, availability, reliability, performance or operation of the Facility, (x) materially increase O&M Costs for the Facility, (y) diminish the current value, residual value, utility or remaining economic useful life of the Facility by more than a DE MINIMIS de minimis amount (as measured immediately prior to such construction, assuming the Facility is, at such time, in the condition required by the terms of the Facility Lease) or cause the Facility to become "limited-use" property within the meaning of Rev. Proc. 2001-28, 2001-19 IRB 1156 or Rev. Proc. 2001-29, 2001-19 IRB 1160, or (z) otherwise cause ▇▇▇▇▇ City to incur any material cost, expense, claim or liability (collectively, "MATERIAL IMPAIRMENTMaterial Impairment"). The Owner Participant may engage such engineering, environmental or other consultants as are reasonably necessary to assist it in making such determination. In the event the Owner Participant reasonably concludes that there is a reasonable likelihood of a Material Impairment, the Owner Participant shall promptly give ▇▇▇▇▇ City notice of such conclusion in reasonable detail. If such notice is given, the Owner Participant shall cooperate with ▇▇▇▇▇ City in developing modifications, if any, to the Development Presentation which avoid the reasonable likelihood of any Material Impairment (including, if appropriate, (i) modifying shared facilities at ▇▇▇▇▇ City's cost (not payable out of Revenues) for increasing capacity to avoid any Material Impairment or (ii) imposing charges to be paid out of Additional Plant revenues to the Owner Lessor to pay for increased Facility operating costs or to compensate for any Material Impairment). ▇▇▇▇▇ City may revise the Development Presentation to incorporate the Owner Participant's modifications (the "REVISED DEVELOPMENT PRESENTATIONRevised Development Presentation"; the Development Presentation, if not objected to by the Owner Participant and the Revised Development Presentation, if applicable, are hereinafter referred to as the "ACTUAL DEVELOPMENT PLANActual Development Plan") and thereafter EME may develop the Additional Plants in accordance with the Revised Development Presentation and in a manner which avoids Material Impairment. To the extent that the development of the Additional Plants begins prior to the completion of any required subdivision of the Facility Site, Owner Participant agrees that it will direct the Owner Lessor to enter into an agreement with ▇▇▇▇▇ City amending the Ground Lease to that will permit the Additional Plant Operator to use such portion of the Facility Site for the Additional Plants as is provided in the Actual Development Plan, until such time as such subdivision is accomplished, to the extent such use is otherwise permitted by Requirements of Law. The Owner Participant further agrees that, on the terms and conditions set forth in the Actual Development Plan, it will direct the Owner Lessor to grant to the Additional Plants Operator, easements across the Facility Site which are reasonably required for access to the Additional Plants, fuel supply (including gas pipelines) for the Additional Plants, and electric transmission lines to and from the Additional Plants as set forth in the Actual Development Plan. The Owner Participant further agrees that, on the terms and conditions set forth in the Actual Development Plan, the Additional Plants may share use of: control room facilities; switchyards; fuel handling and processing facilities; all water systems including intake, storage, conditioning and discharge facilities; air systems; auxiliary steam systems; ash handling and disposal systems; bulk chemical and gas storage systems; and other equipment or systems which may support both the Facility and the Additional Plants (to the extent shared, the "COMMON FACILITIESCommon Facilities") and shall enter into such agreements as are necessary to evidence such shared use; PROVIDED provided that any arrangement for sharing the Common Facilities shall provide that in all events in which, in the reasonable discretion of the Owner Participant, the Common Facilities have insufficient capacity to service the operations of both the Facility (to the extent necessary to maximize its Revenues) and the Additional Plants, the Facility shall have first call and right to use the Common Facilities to the exclusion of Additional Plants Operator and the Additional Plants, until such time as its requirements are met. Notwithstanding the proviso to the preceding sentence, to the extent that the Common Facilities have been improved as contemplated by the Actual Development Plan to increase capacity of such Common Facilities, the Facility's first call and right to use the Common Facilities will be limited to the pre-improvement capacity of such Common Facilities. The Owner Participant acknowledges that EME may seek to obtain financing of the Additional Plants and agrees to direct the Owner Lessor to issue consents and other documents reasonably required for such financing, including, but not limited to, releases of any security interests in separate turbines, generators and other equipment which are solely part of the Additional Plants and consents permitting the Additional Plants to grant security interests in the Additional Plants' interest in Common Facilities used by the Additional Plants, to the extent contemplated by the Actual Development Plan. Whether or not the transactions contemplated by a Development Presentation or Revised Development Presentation are consummated, ▇▇▇▇▇ City agrees to pay or reimburse, on an After-Tax Basis (from equity capital contributions only), any costs or expenses (including reasonable legal fees and expenses) incurred by the Owner Lessor or the Owner Participant in connection with the transactions contemplated by this ARTICLE Article XVI, including, without limitation, the reasonable fees and expenses of counsel and any consultant engaged by Owner Participant. The cost and expense of planning, developing, financing, constructing and operating the Additional Plants (and all claims and liabilities related thereto) shall be borne by EME or the Additional Plants Operator. In no event shall any such material cost, expense, claim or liability be incurred by ▇▇▇▇▇ City, except as set forth in the preceding paragraph.

Common Facilities. The Owner Participant acknowledges that, during the term of the Facility Lease, EME may, so long as no Material Lease Default or Lease Event of Default has occurred and is then continuing, seek to develop, either directly or indirectly through a subsidiary (other than ▇▇▇▇▇ City; EME or such subsidiary is hereinafter referred to as the "ADDITIONAL PLANTS OPERATOR"), additional electric generation units on the Facility Site ("ADDITIONAL PLANTS"), including but not limited to the development of both an approximately 730 MW gas-fired plant and an approximately 600 MW coal-fired plant to be located at the Facility Site. At such time as EME determines the specifications for the Additional Plants, ▇▇▇▇▇ City will prepare a written presentation, including site maps, to be made to the Owner Participant, setting forth the terms and conditions on which it plans to develop the Additional Plants and the physical specifications for operation of the Additional Plants (the "DEVELOPMENT PRESENTATION"). The Owner Participant shall be entitled to receive any additional information it reasonably requests to determine that neither the construction and operation of, and activities related to, the Additional Plants, constructed and operated in accordance with the Development Presentation, nor the Additional Plants Operator are likely to (w) interfere in any material way with the capacity, availability, reliability, performance or operation of the Facility, (x) materially increase O&M Costs for the Facility, (y) diminish the current value, residual value, utility or remaining economic useful life of the Facility by more than a DE MINIMIS amount (as measured immediately prior to such construction, assuming the Facility is, at such time, in the condition required by the terms of the Facility Lease) or cause the Facility to become "limited-use" property within the meaning of Rev. Proc. 2001-28, 2001-19 IRB 1156 or Rev. Proc. 2001-29, 2001-19 IRB 1160, or (z) otherwise cause ▇▇▇▇▇ City to incur any material cost, expense, claim or liability (collectively, "MATERIAL IMPAIRMENT"). The Owner Participant may engage such engineering, environmental or other consultants as are reasonably necessary to assist it in making such determination. In the event the Owner Participant reasonably concludes that there is a reasonable likelihood of a Material Impairment, the Owner Participant shall promptly give ▇▇▇▇▇ City notice of such conclusion in reasonable detail. If such notice is given, the Owner Participant shall cooperate with ▇▇▇▇▇ City in developing modifications, if any, to the Development Presentation which avoid the reasonable likelihood of any Material Impairment (including, if appropriate, (i) modifying shared facilities at ▇▇▇▇▇ City's cost (not payable out of Revenues) for increasing capacity to avoid any Material Impairment or (ii) imposing charges to be paid out of Additional Plant revenues to the Owner Lessor to pay for increased Facility operating costs or to compensate for any Material Impairment). ▇▇▇▇▇ City may revise the Development Presentation to incorporate the Owner Participant's modifications (the "REVISED DEVELOPMENT PRESENTATION"; the Development Presentation, if not objected to by the Owner Participant and the Revised Development Presentation, if applicable, are hereinafter referred to as the "ACTUAL DEVELOPMENT PLAN") and thereafter EME may develop the Additional Plants in accordance with the Revised Development Presentation and in a manner which avoids Material Impairment. To the extent that the development of the Additional Plants begins prior to the completion of any required subdivision of the Facility Site, Owner Participant agrees that it will direct the Owner Lessor to enter into an agreement with ▇▇▇▇▇ City amending the Ground Lease to that will permit the Additional Plant Operator to use such portion of the Facility Site for the Additional Plants as is provided in the Actual Development PlanPlan until such time as such subdivision is accomplished. The Owner Participant further agrees that, on the terms and conditions set forth in the Actual Development Plan, it will direct the Owner Lessor to grant to the Additional Plants Operator, easements across the Facility Site which are reasonably required for access to the Additional Plants, fuel supply (including gas pipelines) for the Additional Plants, and electric transmission lines to and from the Additional Plants as set forth in the Actual Development Plan. The Owner Participant further agrees that, on the terms and conditions set forth in the Actual Development Plan, the Additional Plants may share use of: control room facilities; switchyards; fuel handling and processing facilities; all water systems including intake, storage, conditioning and discharge facilities; air systems; auxiliary steam systems; ash handling and disposal systems; bulk chemical and gas storage systems; and other equipment or systems which may support both the Facility and the Additional Plants (to the extent shared, the "COMMON FACILITIES") and shall enter into such agreements as are necessary to evidence such shared use; PROVIDED that any arrangement for sharing the Common Facilities shall provide that in all events in which, in the reasonable discretion of the Owner Participant, the Common Facilities have insufficient capacity to service the operations of both the Facility (to the extent necessary to maximize its Revenues) and the Additional Plants, the Facility shall have first call and right to use the Common Facilities to the exclusion of Additional Plants Operator and the Additional Plants, until such time as its requirements are met. Notwithstanding the proviso to the preceding sentence, to the extent that the Common Facilities have been improved as contemplated by the Actual Development Plan to increase capacity of such Common Facilities, the Facility's first call and right to use the Common Facilities will be limited to the pre-improvement capacity of such Common Facilities. The Owner Participant acknowledges that EME may seek to obtain financing of the Additional Plants and agrees to direct the Owner Lessor to issue consents and other documents reasonably required for such financing, including, but not limited to, releases of any security interests in separate turbines, generators and other equipment which are solely part of the Additional Plants and consents permitting the Additional Plants to grant security interests in the Additional Plants' interest in Common Facilities used by the Additional Plants, to the extent contemplated by the Actual Development Plan. Whether or not the transactions contemplated by a Development Presentation or Revised Development Presentation are consummated, ▇▇▇▇▇ City agrees to pay or reimburse, on an After-Tax Basis (from equity capital contributions only), any costs or expenses (including reasonable legal fees and expenses) incurred by the Owner Lessor or the Owner Participant in connection with the transactions contemplated by this ARTICLE XVI, including, without limitation, the reasonable fees and expenses of counsel and any consultant engaged by Owner Participant. The cost and expense of planning, developing, financing, constructing and operating the Additional Plants (and all claims and liabilities related thereto) shall be borne by EME or the Additional Plants Operator. In no event shall any such material cost, expense, claim or liability be incurred by ▇▇▇▇▇ City, except as set forth in the preceding paragraph.

Common Facilities. The Owner Participant acknowledges that, during the term of the Facility Lease, EME may, so long as no Material Lease Default or Lease Event of Default has occurred and is then continuing, seek to develop, either directly or indirectly through a subsidiary (other than ▇▇▇▇▇ City; EME or such subsidiary is hereinafter referred to as the "ADDITIONAL PLANTS OPERATOR"), additional electric generation units on the Facility Site ("ADDITIONAL PLANTS"), including but not limited to the development of both an approximately 730 MW gas-fired plant and an approximately 600 MW coal-fired plant to be located at the Facility Site. At such time as EME determines the specifications for the Additional Plants, ▇▇▇▇▇ City will prepare a written presentation, including site maps, to be made to the Owner Participant, setting forth the terms and conditions on which it plans to develop the Additional Plants and the physical specifications for operation of the Additional Plants (the "DEVELOPMENT PRESENTATION"). The Owner Participant shall be entitled to receive any additional information it reasonably requests to determine that neither the construction and operation of, and activities related to, the Additional Plants, constructed 79 and operated in accordance with the Development Presentation, nor the Additional Plants Operator are likely to (w) interfere in any material way with the capacity, availability, reliability, performance or operation of the Facility, (x) materially increase O&M Costs for the Facility, (y) diminish the current value, residual value, utility or remaining economic useful life of the Facility by more than a DE MINIMIS amount (as measured immediately prior to such construction, assuming the Facility is, at such time, in the condition required by the terms of the Facility Lease) or cause the Facility to become "limited-use" property within the meaning of Rev. Proc. 2001-28, 2001-19 IRB 1156 or Rev. Proc. 2001-29, 2001-19 IRB 1160, or (z) otherwise cause ▇▇▇▇▇ City to incur any material cost, expense, claim or liability (collectively, "MATERIAL IMPAIRMENT"). The Owner Participant may engage such engineering, environmental or other consultants as are reasonably necessary to assist it in making such determination. In the event the Owner Participant reasonably concludes that there is a reasonable likelihood of a Material Impairment, the Owner Participant shall promptly give ▇▇▇▇▇ City notice of such conclusion in reasonable detail. If such notice is given, the Owner Participant shall cooperate with ▇▇▇▇▇ City in developing modifications, if any, to the Development Presentation which avoid the reasonable likelihood of any Material Impairment (including, if appropriate, (i) modifying shared facilities at ▇▇▇▇▇ City's cost (not payable out of Revenues) for increasing capacity to avoid any Material Impairment or (ii) imposing charges to be paid out of Additional Plant revenues to the Owner Lessor to pay for increased Facility operating costs or to compensate for any Material Impairment). ▇▇▇▇▇ City may revise the Development Presentation to incorporate the Owner Participant's modifications (the "REVISED DEVELOPMENT PRESENTATION"; the Development Presentation, if not objected to by the Owner Participant and the Revised Development Presentation, if applicable, are hereinafter referred to as the "ACTUAL DEVELOPMENT PLAN") and thereafter EME may develop the Additional Plants in accordance with the Revised Development Presentation and in a manner which avoids Material Impairment. To the extent that the development of the Additional Plants begins prior to the completion of any required the contemplated subdivision of the Facility Site, Owner Participant agrees that it will direct the Owner Lessor to enter into an agreement with ▇▇▇▇▇ City amending the Ground Lease to permit the Additional Plant Operator to use such portion of the Facility Site for the Additional Plants as is provided in the Actual Development Plan. The Owner Participant further agrees that, on the terms and conditions set forth in the Actual Development Plan, it will direct the Owner Lessor to grant to the Additional Plants Operator, easements across the Facility Site which are reasonably required for access to the Additional Plants, fuel supply (including gas pipelines) for the Additional Plants, and electric transmission lines to and from the Additional Plants as set forth in the Actual Development Plan. The Owner Participant further agrees that, on the terms and conditions set forth in the Actual Development Plan, the Additional Plants may share use of: control room facilities; switchyards; fuel handling and processing facilities; all water systems including intake, storage, conditioning and discharge facilities; air systems; auxiliary steam systems; ash handling and disposal systems; bulk chemical and gas storage systems; and other equipment or systems which may support both the Facility and the Additional Plants (to the extent shared, the "COMMON FACILITIES") and shall enter 80 into such agreements as are necessary to evidence such shared use; PROVIDED that any arrangement for sharing the Common Facilities shall provide that in all events in which, in the reasonable discretion of the Owner Participant, the Common Facilities have insufficient capacity to service the operations of both the Facility (to the extent necessary to maximize its Revenues) and the Additional Plants, the Facility shall have first call and right to use the Common Facilities to the exclusion of Additional Plants Operator and the Additional Plants, until such time as its requirements are met. Notwithstanding the proviso to the preceding sentence, to the extent that the Common Facilities have been improved as contemplated by the Actual Development Plan to increase capacity of such Common Facilities, the Facility's first call and right to use the Common Facilities will be limited to the pre-improvement capacity of such Common Facilities. The Owner Participant acknowledges that EME may seek to obtain financing of the Additional Plants and agrees to direct the Owner Lessor to issue consents and other documents reasonably required for such financing, including, but not limited to, releases of any security interests in separate turbines, generators and other equipment which are solely part of the Additional Plants and consents permitting the Additional Plants to grant security interests in the Additional Plants' interest in Common Facilities used by the Additional Plants, to the extent contemplated by the Actual Development Plan. Whether or not the transactions contemplated by a Development Presentation or Revised Development Presentation are consummated, ▇▇▇▇▇ City agrees to pay or reimburse, on an After-Tax Basis (from equity capital contributions only), any costs or expenses (including reasonable legal fees and expenses) incurred by the Owner Lessor or the Owner Participant in connection with the transactions contemplated by this ARTICLE XVI, including, without limitation, the reasonable fees and expenses of counsel and any consultant engaged by Owner Participant. The cost and expense of planning, developing, financing, constructing and operating the Additional Plants (and all claims and liabilities related thereto) shall be borne by EME or the Additional Plants Operator. In no event shall any such material cost, expense, claim or liability be incurred by ▇▇▇▇▇ City, except as set forth in the preceding paragraph.

Common Facilities. The Owner Participant acknowledges that, during the term of the Facility Lease, EME may, so long as no Material Lease Default or Lease Event of Default has occurred and is then continuing, seek to develop, either directly or indirectly through a subsidiary (other than ▇▇▇▇▇ City; EME or such subsidiary is hereinafter referred to as the "ADDITIONAL PLANTS OPERATOR"), additional electric generation units using solely fossil fuel on the Facility Site ("ADDITIONAL PLANTS"), including but not limited to the development of both an approximately 730 MW gas-fired plant and an approximately 600 MW coal-fired plant to be located at the Facility Site. At such time as EME determines the specifications for the Additional Plants, ▇▇▇▇▇ City will prepare a written presentation, including site maps, to be made to the Owner Participant, setting forth the terms and conditions on which it plans to develop the Additional Plants and the physical specifications for operation of the Additional Plants (the "DEVELOPMENT PRESENTATION"). Neither the Additional Plants, constructed and operated in accordance with the Development Presentation, nor the Additional Plants Operator shall violate any Requirement of Law, including but not limited to, any environmental law. The Owner Participant shall be entitled to receive any additional information it reasonably requests to determine that neither the construction and operation of, and activities related to, the Additional Plants, constructed and operated in accordance with the Development Presentation, nor the Additional Plants Operator are likely to (w) interfere in any material way with the capacity, availability, reliability, performance or operation of the Facility, (x) materially increase O&M Costs for the Facility, (y) diminish the current value, residual value, utility or remaining economic useful life of the Facility by more than a DE MINIMIS amount (as measured immediately prior to such construction, assuming the Facility is, at such time, in the condition required by the terms of the Facility Lease) or cause the Facility to become "limited-use" property within the meaning of Rev. Proc. 2001-28, 2001-19 IRB 1156 or Rev. Proc. 2001-29, 2001-19 IRB 1160, or (z) otherwise cause ▇▇▇▇▇ City to incur any material cost, expense, claim or liability (collectively, "MATERIAL IMPAIRMENT"). The Owner Participant may engage such engineering, environmental or other consultants as are reasonably necessary to assist it in making such determination. In the event the Owner Participant reasonably concludes that there is a reasonable likelihood of a Material Impairment, the Owner Participant shall promptly give ▇▇▇▇▇ City notice of such conclusion in reasonable detail. If such notice is given, the Owner Participant shall cooperate with ▇▇▇▇▇ City in developing modifications, if any, to the Development Presentation which avoid the reasonable likelihood of any Material Impairment (including, if appropriate, (i) modifying shared facilities at ▇▇▇▇▇ City's cost (not payable out of Revenues) for increasing capacity to avoid any Material Impairment or (ii) imposing charges to be paid out of Additional Plant revenues to the Owner Lessor to pay for increased Facility operating costs or to compensate for any Material Impairment). ▇▇▇▇▇ City may revise the Development Presentation to incorporate the Owner Participant's modifications (the "REVISED DEVELOPMENT PRESENTATION"; the Development Presentation, if not objected to by the Owner Participant and the Revised Development Presentation, if applicable, are hereinafter referred to as the "ACTUAL DEVELOPMENT PLAN") and thereafter EME may develop the Additional Plants in accordance with the Revised Development Presentation and in a manner which avoids Material Impairment. To the extent that the development of the Additional Plants begins prior to the completion of any required subdivision of the Facility Site, Owner Participant agrees that it will direct the Owner Lessor to enter into an agreement with ▇▇▇▇▇ City amending the Ground Lease to that will permit the Additional Plant Operator to use such portion of the Facility Site for the Additional Plants as is provided in the Actual Development Plan, until such time as such subdivision is accomplished, to the extent such use is otherwise permitted by Requirements of Law. The Owner Participant further agrees that, on the terms and conditions set forth in the Actual Development Plan, it will direct the Owner Lessor to grant to the Additional Plants Operator, easements across the Facility Site which are reasonably required for access to the Additional Plants, fuel supply (including gas pipelines) for the Additional Plants, and electric transmission lines to and from the Additional Plants as set forth in the Actual Development Plan. The Owner Participant further agrees that, on the terms and conditions set forth in the Actual Development Plan, the Additional Plants may share use of: control room facilities; switchyards; fuel handling and processing facilities; all water systems including intake, storage, conditioning and discharge facilities; air systems; auxiliary steam systems; ash handling and disposal systems; bulk chemical and gas storage systems; and other equipment or systems which may support both the Facility and the Additional Plants (to the extent shared, the "COMMON FACILITIES") and shall enter into such agreements as are necessary to evidence such shared use; PROVIDED that any arrangement for sharing the Common Facilities shall provide that in all events in which, in the reasonable discretion of the Owner Participant, the Common Facilities have insufficient capacity to service the operations of both the Facility (to the extent necessary to maximize its Revenues) and the Additional Plants, the Facility shall have first call and right to use the Common Facilities to the exclusion of Additional Plants Operator and the Additional Plants, until such time as its requirements are met. Notwithstanding the proviso to the preceding sentence, to the extent that the Common Facilities have been improved as contemplated by the Actual Development Plan to increase capacity of such Common Facilities, the Facility's first call and right to use the Common Facilities will be limited to the pre-improvement capacity of such Common Facilities. The Owner Participant acknowledges that EME may seek to obtain financing of the Additional Plants and agrees to direct the Owner Lessor to issue consents and other documents reasonably required for such financing, including, but not limited to, releases of any security interests in separate turbines, generators and other equipment which are solely part of the Additional Plants and consents permitting the Additional Plants to grant security interests in the Additional Plants' interest in Common Facilities used by the Additional Plants, to the extent contemplated by the Actual Development Plan. Whether or not the transactions contemplated by a Development Presentation or Revised Development Presentation are consummated, ▇▇▇▇▇ City agrees to pay or reimburse, on an After-Tax Basis (from equity capital contributions only), any costs or expenses (including reasonable legal fees and expenses) incurred by the Owner Lessor or the Owner Participant in connection with the transactions contemplated by this ARTICLE XVI, including, without limitation, the reasonable fees and expenses of counsel and any consultant engaged by Owner Participant. The cost and expense of planning, developing, financing, constructing and operating the Additional Plants (and all claims and liabilities related thereto) shall be borne by EME or the Additional Plants Operator. In no event shall any such material cost, expense, claim or liability be incurred by ▇▇▇▇▇ City, except as set forth in the preceding paragraph.