Common use of Rebuild or Replace Clause in Contracts

Rebuild or Replace. (a) The Facility Lessee's right to rebuild or replace any Unit pursuant to Section 10.1(a) shall be subject to the fulfillment, at the Facility Lessee's sole cost and expense, in addition to the conditions contained in said clause (a), of the following conditions: (i) receipt by the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (y) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of: (A) a report of the Engineering Consultant or another independent engineer, such other engineer and such report to be satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilding or replacement of such Unit is technologically feasible and economically viable and that such rebuilding or replacement can be completed by a date thirty-six (36) months prior to the end of the Basic Lease Term or twelve (12) months prior to the end of any Renewal Lease Term then in effect or elected by the Facility Lessee, and (B) an appraisal of an independent appraiser selected by the Facility Lessee, such appraiser and such appraisal to be reasonably acceptable to the Owner Participant, and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilt or replacement unit will have at least the same current and residual value, utility and remaining useful life as such Unit immediately prior to the Event of Loss and such rebuilding or replacement will not result in the Facility being "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647 (assuming such Unit was then be in the condition required by the terms of this Facility Lease), and (C) an Officer's Certificate of the Facility Lessee to the effect that no Significant Lease Default or Event of Default shall have occurred and is continuing; and (ii) receipt by the Owner Participant prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (y) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of either (A) a tax opinion of its counsel, such opinion to be reasonably satisfactory to the Owner Participant, to the effect that, assuming the proposed rebuilding or replacement is completed in the manner and within the time proposed, such rebuilding or replacement will not cause any material incremental adverse tax risk to the Owner Participant, such opinion to take into account any payments (or indemnities made pursuant to clause (B) of this Section 10.3(a)(ii)) made or caused to be made by the Facility Lessee (in its sole discretion) to reimburse (or protect) the Owner Participant for any loss of Tax Benefits (it being agreed that upon the occurrence of an Event of Loss described in clause (a) or (b) of the definition thereof the Facility Lessee may request the Owner Participant to ask its counsel whether it can render such opinion and the Owner Participant agrees to make such request) or (B) an indemnity arrangement against such risk satisfactory to the Owner Participant; and (iii) no material adverse accounting effect on the Owner Participant shall have occurred and is continuing. (b) The Facility Lessee shall cause the rebuilding or replacement of such Unit to commence as soon as practicable after notifying the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustees pursuant to Section 10.1(a), of its election to rebuild or replace such Unit, and in all events within twenty-four (24) months of the occurrence of the event that caused such Event of Loss and will cause work on such rebuilding or replacement to proceed diligently thereafter. As the rebuilding or replacement of such Unit progresses, title to the rebuilt or replacement Unit shall vest in the Owner Lessor and such title shall become subject to this Facility Lease and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lien of the Lease Indenture and be deemed a part of the Facility for all purposes of this Facility Lease, automatically without any further act by any Person. (c) On the date of the completion of such rebuilding or replacement of such Unit (the "Rebuilding Closing Date") the following documents shall be ----------------------- duly authorized, executed and delivered and, if appropriate, filed for recordation by the respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each thereto shall be delivered to the Owner Lessor, the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee: (i) supplements to this Facility Lease subjecting such rebuilt or replacement facilities to this Facility Lease (with no change in Purchase Price or the Periodic Lease Rent or Renewal Lease Rent as a result of such rebuilding or replacement); (ii) supplements to the Lease Indenture subjecting such rebuilt or replacement facilities to the Lien of the Lease Indenture; (iii) such recordings and filings as may be reasonably requested by the Owner Participant and the Lease Indenture Trustee to be made or filed; (iv) an opinion of counsel of the Facility Lessee, such counsel and such opinion to be reasonably satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee to the effect that (A) the supplements to this Facility Lease required by clause (i) above constitute effective instruments for subjecting such rebuilt or replacement facilities to this Facility Lease, (B) the supplements to the Lease Indenture required by clause (ii) above, if any, constitute effective instruments for subjecting such rebuilt or replacement facilities to the Lien of the Lease Indenture, and (C) all filings and other action necessary to perfect and protect the Owner Lessor's and, if applicable, the Lease Indenture Trustee's interest in such rebuilt or replacement facilities have been accomplished; (v) an appraisal by an Independent Appraiser, certifying that the rebuilt or replacement Unit has a current and residual value, remaining useful life and utility at least equal to the current and residual value, remaining useful life and utility of such Unit would have had on the Rebuilding Closing Date had such Event of Loss not occurred (assuming such Unit would then be in the condition and repair required to be maintained by the terms of this Facility Lease) and is not "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647; and (vi) a report by an independent engineer certifying that the rebuilt or replacement Unit is in a state of repair and condition required by this Facility Lease; (vii) an Officer's Certificate of the Facility Lessee as to compliance with this Section 10.3 and that no Lease Event of Default shall have occurred and be continuing as a result of the rebuild or replacement; and (viii) satisfactory evidence as to the compliance with Section 11 of this Facility Lease with respect to the rebuilt or replacement Unit. If the Rebuilding Closing Date of a Unit and the satisfaction of the foregoing conditions shall not have occurred by the earlier of (x) sixty (60) months after the occurrence of the Event of Loss and (y) eighteen (18) months prior to the expiration of the Basic Lease Term or, if the Facility Lessee has elected to renew this Facility Lease for one or more Renewal Lease Terms, the expiration of any Renewal Lease Term then in effect or elected by the Facility Lessee, then the Lessee shall be required to comply with Section 10.2 and the Termination Date shall be the first Termination Date that occurs after such date. (d) Whether or not the transactions contemplated by this Section 10.3 are consummated, the Facility Lessee agrees to pay or reimburse, on an After-Tax Basis, any costs or expenses (including reasonable legal fees and expenses) incurred by the Owner Lessor, the Owner Participant, the Lease Indenture Trustee and the Pass Through Trustees in connection with the transactions contemplated by this Section 10.3.

Rebuild or Replace. (a) The Facility Lessee's ’s right to rebuild or replace the Facility or any Unit Relevant Portion of the Facility pursuant to Section 10.1(a) shall be subject to the fulfillment, at the Facility Lessee's ’s sole cost and expense, in addition to the conditions contained in said clause (a), of the following conditions: (i) receipt by the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (ya) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of: (A) a report of the Engineering Consultant or another independent engineer, such other engineer and such report to be satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilding or replacement of such Unit is technologically feasible and economically viable and that such rebuilding or replacement can be completed by a date thirty-six (36) months prior to the end of the Basic Lease Term or twelve (12) months prior to the end of any Renewal Lease Term then in effect or elected by the Facility Lessee, and (B) an appraisal of an independent appraiser selected by the Facility Lessee, such appraiser and such appraisal to be reasonably acceptable to the Owner Participant, and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilt or replacement unit will have at least the same current and residual value, utility and remaining useful life as such Unit immediately prior to the Event of Loss and such rebuilding or replacement will not result in the Facility being "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647 (assuming such Unit was then be in the condition required by the terms of this Facility Lease), and (C) an Officer's Certificate of the Facility Lessee to the effect that no Significant Lease Default or Event of Default shall have occurred and is continuing; and (ii) receipt by the Owner Participant prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (y) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of either (A) a tax opinion of its counsel, such opinion to be reasonably satisfactory to the Owner Participant, to the effect that, assuming the proposed rebuilding or replacement is completed in the manner and within the time proposed, such rebuilding or replacement will not cause any material incremental adverse tax risk to the Owner Participant, such opinion to take into account any payments (or indemnities made pursuant to clause (B) of this Section 10.3(a)(ii)) made or caused to be made by the Facility Lessee (in its sole discretion) to reimburse (or protect) the Owner Participant for any loss of Tax Benefits (it being agreed that upon the occurrence of an Event of Loss described in clause (a) or (b) of the definition thereof the Facility Lessee may request the Owner Participant to ask its counsel whether it can render such opinion and the Owner Participant agrees to make such request) or (B) an indemnity arrangement against such risk satisfactory to the Owner Participant; and (iii) no material adverse accounting effect on the Owner Participant shall have occurred and is continuing. (b) The Facility Lessee shall cause the rebuilding or replacement of such Unit the Facility or any Relevant Portion of the Facility to commence as soon as reasonably practicable after notifying the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustees pursuant to Section 10.1(a), ) of its election to rebuild or replace such Unitthe Facility or any Relevant Portion of the Facility, and in all events within twentythirty-four six (2436) months of the occurrence of the event that caused such Event of Loss Loss, and will cause work on such rebuilding or replacement to proceed diligently thereafter. As the rebuilding or replacement of such Unit progresses, the Facility or any Relevant Portion of the Facility progresses and title to the rebuilt or replacement Unit shall vest Facility or Relevant Portion of the Facility vests in the Head Lessor, an undivided interest equal to the Owner Lessor and such title Lessor’s Percentage Interest in the rebuilt or replacement facilities shall become subject to the Head Lease, this Facility Lease and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lien of the Lease Indenture and be deemed a part of the Facility Undivided Interest for all purposes of the Head Lease and this Facility Lease, automatically without any further act by any Person.; and (cb) On within thirty (30) days after the date of the completion of such rebuilding or replacement of such Unit (the "“Rebuilding Closing Date"”) the following documents shall be ----------------------- duly authorized, executed and delivered and, if appropriate, filed for recordation by the respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each thereto thereof shall be delivered to the Owner Lessor, the Owner Participant Lessor Manager and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee: : (i) supplements to the Head Lease and this Facility Lease subjecting such the Owner Lessor’s Percentage Interest in the rebuilt or replacement facilities to the Head Lease and this Facility Lease (with no change in Purchase Price or the Periodic Head Lease Rent or Renewal in Basic Lease Rent as a result of such rebuilding or replacement); , (ii) so long as the Lien of the Lease Indenture shall not have been terminated or discharged, supplements to the Lease Indenture subjecting such the Owner Lessor’s Percentage Interest in the rebuilt or replacement facilities to the Lien of the Lease Indenture; , (iii) such recordings and filings as may be reasonably requested by the Owner Participant and Lessor or the Lease Indenture Trustee to be made or filed; , (iv) an opinion of counsel of the Facility Lessee, such counsel and such opinion to be reasonably satisfactory to the Owner Participant Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee to the effect that (A) the supplements to the Head Lease and this Facility Lease required by clause (i) above constitute effective instruments for subjecting such the Owner Lessor’s Percentage Interest in the rebuilt or replacement facilities to the Head Lease and this Facility Lease, (B) the supplements to the Lease Indenture required by clause (ii) above, if any, constitute effective instruments for subjecting such the Owner Lessor’s Percentage Interest in the rebuilt or replacement facilities to the Lien of the Lease Indenture, and (C) all filings and other action necessary to perfect and protect the Owner Lessor's ’s and, if applicable, the Lease Indenture Trustee's ’s interest in such the rebuilt or replacement facilities have been accomplished; , (v) an appraisal by an Independent Appraiser, certifying that the rebuilt or replacement Unit has a current and residual value, remaining useful life and utility at least equal to the current and residual value, remaining useful life and utility of such Unit would have had on the Rebuilding Closing Date had such Event of Loss not occurred (assuming such Unit would then be in the condition and repair required to be maintained by the terms of this Facility Lease) and is not "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647; and (vi) a report by an independent engineer certifying that the rebuilt or replacement Unit is facilities are in a state of repair and condition required by this Facility Lease; , and (viivi) an Officer's ’s Certificate of the Facility Lessee as to compliance with this Section 10.3 and that no Lease Event of Default shall have occurred and be continuing as a result of the rebuild rebuilding or replacement; and (viii) satisfactory evidence as to the compliance with Section 11 of this Facility Lease with respect to the rebuilt or replacement Unit. If the Rebuilding Closing Date of a Unit and the satisfaction of the foregoing conditions shall not have occurred by the earlier of (x) sixty (60) months after the occurrence of the Event of Loss and (y) eighteen (18) months prior to the expiration of the Basic Lease Term or, if the Facility Lessee has elected to renew this Facility Lease for one or more Renewal Lease Terms, the expiration of any Renewal Lease Term then in effect or elected by the Facility Lessee, then the Lessee shall be required to comply with Section 10.2 and the Termination Date shall be the first Termination Date that occurs after such date. (d) Whether or not the transactions contemplated by this Section 10.3 are consummated, the Facility Lessee agrees to pay or reimburse, on an After-Tax Basis, any costs or expenses (including reasonable and documented legal fees and expenses) incurred by the Owner Lessor, the Owner Participant, Lessor Manager and the Lease Indenture Trustee and the Pass Through Trustees in connection with the transactions contemplated by this Section 10.3.

Rebuild or Replace. (a) The Facility Lessee's right to rebuild or replace any Unit Facility pursuant to clause (a) of Section 10.1(a) 10.1 shall be subject to the fulfillment, at the Facility Lessee's sole cost and expense, in addition to the conditions contained in said clause (a), of the following conditions: : (a) no Lease Event of Default shall have occurred and be continuing; (b) Section 10.1(a) of on the date the Facility Lessee shall give notice pursuant to its election to rebuild or replace the Facility in accordance with this Section 10.3, either (i) receipt the Owner Participant shall have received an opinion reasonably satisfactory to it from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois) or its affiliates, or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such rebuilding would not result in any unindemnified tax consequences (determined based on the indemnification provisions contained in the Operative Documents) to the Owner Participant, (ii) an indemnity against such risk in form and substance reasonably satisfactory to the Owner Participant from or guaranteed by an entity that meets the Minimum Credit Rating, or (iii) any other indemnity arrangements against such risk satisfactory to the Owner Participant; (c) on the date the Facility Lessee shall give notice pursuant to Section 10.1(a) of its election to rebuild or replace the Facility in accordance with this Section 10.3, the Facility Lessee shall deliver to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, prior to the earlier of Trustee (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (y) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of: (Ai) a report of the Engineering Consultant Consultant, or another independent engineer, such other independent engineer and such report to be reasonably satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilding or replacement of such Unit the Facility is technologically feasible and economically viable and that such rebuilding or replacement can be completed by a date thirty-six (36) that is 36 months prior to the end of the Basic Lease Term or twelve (12) 12 months prior to the end expiration of any Renewal Lease Term then in effect or which has been elected by the Facility Lessee, and (Bii) an appraisal of an independent appraiser selected by the Facility Lessee, such appraiser and such appraisal to be Independent Appraiser reasonably acceptable to the Owner Owrier Participant, and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, Trustee to the effect that the rebuilt Facility will, after completion of rebuilding or replacement unit will replacement, have at least the same current and value, residual value, utility and remaining useful life as such Unit the Facility immediately prior to the Event of Loss Loss, Shawville Facility Lease 21 assuming the Facility was then in the condition required to have been maintained by the terms of this Facility Lease and such rebuilding or replacement will not result in the Facility being "limited use" property within the meaning of Rev. Proc. 75 75-28, 1975 1975-1 C.B. 752 or Rev. Proc. 76 76-30, 1976 1976-2 C.B. 647 647; (assuming d) on the date the FacilityLesseeshallgivenoticepursuant to Section lO.l(a) of its election to rebuild or replace the Facility in accordance with this Section 10.3, the Facility Lessee shall demonstrate to the reasonable satisfaction of the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, that it will have adequate financial resources, from insurance proceeds or otherwise, to complete such Unit was then be rebuilding or replacement; (e)on the datetheFacilityLesseeshallg1venoticepursuant to Section lO.l(a) of its election to rebuild or replace the Facility in accordance with this Section 10.3, the condition required by the terms of this Facility Lease), and (C) Lessee shall deliver an Officer's Certificate of the Facility Lessee to the effect that no Significant it reasonably believes that it will have sufficient funds available to continue to pay Periodic Lease Default Rent or Event of Default shall have occurred and is continuing; and (ii) receipt by Renewal Lease Rent, as the Owner Participant prior to the earlier of (x) 60 days after the date of case may be, while the Facility Lessee's notice pursuant to Section 10.1(a) or is being rebuilt; (yf) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of either (A) a tax opinion of its counsel, such opinion to be reasonably satisfactory to the Owner Participant, to the effect that, assuming the proposed rebuilding or replacement is completed in the manner and within the time proposed, such rebuilding or replacement will not cause any material incremental adverse tax risk to the Owner Participant, such opinion to take into account any payments (or indemnities made pursuant to clause (B) of this Section 10.3(a)(ii)) made or caused to be made by the Facility Lessee (in its sole discretion) to reimburse (or protect) the Owner Participant for any loss of Tax Benefits (it being agreed that upon the occurrence of an Event of Loss described in clause (a) or (b) of the definition thereof the Facility Lessee may request the Owner Participant to ask its counsel whether it can render such opinion and the Owner Participant agrees to make such request) or (B) an indemnity arrangement against such risk satisfactory to the Owner Participant; and (iii) no material adverse accounting effect on the Owner Participant shall have occurred and is continuing. (b) The Facility Lessee shall cause the rebuilding or replacement of such Unit the Facility to commence as soon as practicable after notifying the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustees Trustee pursuant to Section 10.1(alO.l(a), of its election to rebuild or replace such Unitthe Facility, and in all events within twenty-four (24) 24 months of the occurrence of the event that caused such Event of Loss and will cause work on such rebuilding or replacement to proceed diligently thereafter. As the rebuilding or replacement of such Unit the Facility progresses, title to the rebuilt or replacement Unit Facility shall vest in the Owner Lessor and such title rebuild or replacement Facility shall become subject to this Facility Lease and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lien of the Lease Indenture and be deemed a part of the Facility for all purposes of this Facility Lease, automatically and without any further act by any Person. ; and (cg) On on the date of the completion of such rebuilding or replacement of such Unit the Facility (the "Rebuilding Closing Date") ), the following documents shall be ----------------------- duly authorized, executed and delivered and, if appropriate, filed for recordation by the respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each thereto shall be delivered to the Owner Lessor, the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee: : (i) supplements to this Facility Lease subjecting such the rebuilt or replacement facilities Facility to this Facility Lease (with no change in Purchase Price or the Periodic Lease Rent or Allocated Rent or Renewal Lease Rent as a result of such rebuilding or replacement); , (ii) so long as the Lien of the Lease Indenture shall not have been terminated or discharged, supplements to the Lease Indenture subjecting such the rebuilt or replacement facilities to the Lien of the Lease Indenture; , (iii) such recordings and filings as may be reasonably requested by the Owner Participant and so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee to be made or filed; , (iv) an opinion of counsel of the Facility Lessee, such counsel and such opinion to be reasonably satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee to the effect that (A) the supplements to this Shawville Facility Lease required by clause (i) above constitute effective instruments for subjecting such rebuilt or replacement facilities to this Facility Lease, (B) the supplements to the Lease Indenture required by clause (ii) above, if any, constitute effective instruments for subjecting such rebuilt or replacement facilities to the Lien of the Lease Indenture, and (C) all filings and other action necessary to perfect and protect the Owner Lessor's and, if applicable, the Lease Indenture Trustee's interest in such rebuilt or replacement facilities have been accomplished; (v) an appraisal by an Independent Appraiser, certifying that the rebuilt or replacement Unit has a current and residual value, remaining useful life and utility at least equal to the current and residual value, remaining useful life and utility of such Unit would have had on the Rebuilding Closing Date had such Event of Loss not occurred (assuming such Unit would then be in the condition and repair required to be maintained by the terms of this Facility Lease) and is not "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647; and (vi) a report by an independent engineer certifying that the rebuilt or replacement Unit is in a state of repair and condition required by this Facility Lease; (vii) an Officer's Certificate of the Facility Lessee as to compliance with this Section 10.3 and that no Lease Event of Default shall have occurred and be continuing as a result of the rebuild or replacement; and (viii) satisfactory evidence as to the compliance with Section 11 of this Facility Lease with respect to the rebuilt or replacement Unit. If the Rebuilding Closing Date of a Unit and the satisfaction of the foregoing conditions shall not have occurred by the earlier of (x) sixty (60) months after the occurrence of the Event of Loss and (y) eighteen (18) months prior to the expiration of the Basic Lease Term or, if the Facility Lessee has elected to renew this Facility Lease for one or more Renewal Lease Terms, the expiration of any Renewal Lease Term then in effect or elected by the Facility Lessee, then the Lessee shall be required to comply with Section 10.2 and the Termination Date shall be the first Termination Date that occurs after such date. (d) Whether or not the transactions contemplated by this Section 10.3 are consummated, the Facility Lessee agrees to pay or reimburse, on an After-Tax Basis, any costs or expenses (including reasonable legal fees and expenses) incurred by the Owner Lessor, the Owner Participant, the Lease Indenture Trustee and the Pass Through Trustees in connection with the transactions contemplated by this Section 10.3.22

Rebuild or Replace. (a) The Facility Lessee's right ability to rebuild or replace any Unit the Facility pursuant to Section 10.1(a) shall be subject to the fulfillment, at the Facility Lessee's sole cost and expense, in addition to the conditions contained in said clause (aSection 10.1(a), of the following conditions: (i) receipt by the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (y) the last date of the nine twelve month period referred to in the second sentence proviso of Section 10.1(a), of: (A) a report of the Engineering Consultant or another independent a licensed engineer, such other which licensed engineer and such report to shall be reasonably satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture TrusteeTrustee (it being understood that an internal engineer at KeySpan would be considered reasonable), to the effect that the rebuilding or replacement of such Unit the Facility is technologically feasible and economically viable and that such rebuilding or replacement can be completed by a date thirty-six at least eighteen (3618) months prior to the end of the Basic Facility Lease Term or twelve (12) months prior to the end of Term, including any Renewal Lease Term then in effect or elected by the Facility Lessee, and (B) an appraisal of an independent appraiser selected by the Facility Lessee, such appraiser and such appraisal to be reasonably acceptable to the Owner Participant, and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilt Facility as a whole will, after completion of the rebuilding or replacement unit will replacement, have at least the same current and residual value, utility and remaining useful life as such Unit the Facility as a whole immediately prior to the Event of Loss and such rebuilding or replacement will not result in (assuming the Facility being "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647 (assuming such Unit was then be in the condition required to be maintained by the terms of this Facility Lease), and (C) an Officer's Certificate of the Facility Lessee to the reasonable satisfaction of the Owner Participant to the effect that (1) no Significant Lease Default or Event of Default shall have occurred and is continuing; andcontinuing (other than any Significant Lease Default or Lease Event of Default that would be cured by such rebuilding or replacement), and (2) the Lessee has adequate financial resources, from insurance proceeds, Requisition proceeds or otherwise, to complete such rebuilding or replacement (including pursuant to a guaranty of its obligations by any of its Affiliates); (ii) receipt by the Owner Participant prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (y) the last date of the nine twelve month period referred to in the second sentence proviso of Section 10.1(a), of either (A) a tax favorable (more likely than not) legal opinion of its counsel, such opinion to be independent tax counsel selected by the Owner Participant and reasonably satisfactory to the Owner Participant, Lessee to the effect that, assuming the proposed rebuilding or replacement is completed in the manner and within the time proposed, that such rebuilding or replacement (including any extension of the Facility Lease Term or payment of renewal rent pursuant to Section 10.3(e)) will not cause result in any material incremental adverse tax risk to the Owner Participant, such opinion to take into account any payments (or indemnities made pursuant to clause (B) of this Section 10.3(a)(ii)) made or caused to be made by the Facility Lessee (in its sole discretion) to reimburse (or protect) the Owner Participant for any loss of Tax Benefits (it being agreed that upon the occurrence of an Event of Loss described in clause (a) or (b) of the definition thereof the Facility Lessee may request the Owner Participant to ask its counsel whether it can render such opinion and the Owner Participant agrees to make such request) or (B) an indemnity arrangement against any such incremental tax risk satisfactory to the extent provided for under the Tax Indemnity Agreement; (iii) the Owner ParticipantParticipant shall not suffer any material adverse accounting effect under GAAP as a result of such rebuilding or replacement; and (iiiiv) no material adverse accounting effect on the Owner Participant Lessee shall have occurred and is continuing. (b) The Facility Lessee shall cause demonstrated to the rebuilding or replacement reasonable satisfaction of such Unit to commence as soon as practicable after notifying the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee and Trustee, that all Governmental Approvals required in connection with such rebuilding or replacement have been obtained or can reasonably be expected to be obtained on or prior to the Pass Through Trustees pursuant date required in connection therewith. (b) The Lessee shall cause the rebuilding or replacement of the Facility to Section 10.1(a), of its election to rebuild or replace such Unitcommence as soon as practicable, and in all events any event within twenty-four eighteen (2418) months of the occurrence of the event that caused such Event of Loss and will cause work on such rebuilding or replacement to proceed diligently thereafter. As the rebuilding or replacement of such Unit the Facility progresses, title to the rebuilt or replacement Unit Facility shall vest in the Owner Lessor and such title shall become subject to this Facility Lease and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lien of the Lease Indenture and be deemed a part of the Facility for all purposes of this Facility Lease, automatically without any further act by any Person. (c) On the date of the completion of such rebuilding or replacement of such Unit the Facility (the "Rebuilding Closing Date") ), the following documents shall be ----------------------- duly authorized, executed and delivered and, if appropriate, filed for recordation by the respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each thereto shall be delivered to the Owner Lessor, the Owner Trustee, the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee: (i) supplements to this Facility Lease subjecting such rebuilt or replacement facilities to this Facility Lease (with no change in Purchase Price or the Periodic Basic Lease Rent or Renewal Lease Rent as a result of such rebuilding or replacement); (ii) supplements to the Lease Indenture subjecting such rebuilt or replacement facilities to the Lien of the Lease Indenture; (iii) subject to the terms and conditions of Section 5.8 of the Participation Agreement, such recordings and filings as may be reasonably requested by the Owner Participant and the Lease Indenture Trustee to be made or filed; (iv) an opinion of counsel of the Facility Lessee, such counsel and Lessee (such opinion and counsel to be reasonably satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee Participant) to the effect that (A) the supplements to this Facility Lease required by clause (i) above constitute effective instruments for subjecting such rebuilt or replacement facilities to this Facility Lease, (B) the supplements to the Lease Indenture required by clause (ii) above, if any, constitute effective instruments for subjecting such rebuilt or replacement facilities to the Lien of the Lease Indenture, and (C) all filings and other action necessary to perfect and protect the Owner Lessor's and, if applicable, the Lease Indenture Trustee's interest in such rebuilt or replacement facilities have been accomplished; (v) an appraisal by an Independent Appraiser, certifying that the rebuilt or replacement Unit Facility (A) has a current and residual value, remaining useful life and utility at least equal to the current and residual value, remaining useful life and utility of such Unit that the Facility as a whole would have had on the Rebuilding Closing Date had such Event of Loss not occurred (assuming such Unit would the Facility was then be in the condition and repair required to be maintained by the terms of this Facility Lease) and (B) is not "limited use" property within the meaning of Rev. Proc. 75 Revenue Procedure 2001-28, 1975 1 C.B. 752 2001-19 I.R.B. 1156 or Rev. Proc. 76 30Revenue Procedure 2001-29, 1976 2 C.B. 647; and2001-19 I.R.B. 1160; (vi) a report by a licensed engineer, which licensed engineer shall be reasonably satisfactory to the Owner Participant and, so long as the Lien of the Indenture shall not have been terminated or discharged, the Indenture Trustee (it being understood that an independent internal engineer at KeySpan would be considered reasonable), certifying that the rebuilt or replacement Unit Facility is in a state of repair and condition required by this Facility Lease; (vii) an Officer's Certificate of the Facility Lessee as to compliance with this Section 10.3 and that no Significant Lease Default or Lease Event of Default shall have occurred and be continuing as a result of the rebuild or replacement; and (viii) satisfactory evidence as to the compliance with Section 11 of this Facility Lease with respect to the rebuilt or replacement UnitFacility. If the Rebuilding Closing Date of a Unit and the satisfaction of the foregoing conditions shall not have occurred by the earlier of (x) sixty (60) months after the occurrence of the Event of Loss and (y) eighteen (18) months prior to the expiration of the Basic Lease Term or, if the Facility Lessee has elected to renew this Facility Lease for one or more Renewal Lease Terms, the expiration of any Renewal Lease Term then in effect or elected by the Facility Lessee, then the Lessee shall be required to comply with Section 10.2 10.1(b) and the Termination Date shall be the first Termination Date that occurs after such date. (d) Whether or not the transactions contemplated by this Section 10.3 are consummated, the Facility Lessee agrees to pay or reimburse, on an After-Tax Basis, any reasonable, documented out-of-pocket costs or expenses (including reasonable legal fees and expenses) incurred by the Owner Lessor, the Owner Trustee, the Owner Participant, the Lease Indenture Trustee and the Pass Through Trustees Trustee in connection with the transactions contemplated by this Section 10.3. (e) In connection with any such Event of Loss in respect of which the Lessee intends to rebuild or replace the Facility if such Event of Loss occurs after the last day upon which the Lessee may exercise a renewal right under this Facility Lease, (i) the Facility Lease Term shall be automatically extended for such period of time as is reasonably necessary for the Lessee to complete any rebuilding or replacement required hereunder, (ii) the Lessee shall pay as renewal rent during any such extended term an amount, payable monthly in arrears, equal to the average monthly Basic Lease Rent or Renewal Lease Rent paid during the Basic Lease Term or Renewal Lease Term, as the case may be, then being extended, and (iii) the Termination Value during such extended term shall be the Termination Value as of the end of the Basic Lease Term or Renewal Lease Term, as the case may be, then ending without giving effect to any such extension.

Rebuild or Replace. (a) The Facility Lessee's right to rebuild or replace the Facility or any Unit Relevant Portion of the Facility pursuant to Section 10.1(a) shall be subject to the fulfillment, at the Facility Lessee's sole cost and expense, in addition to the conditions contained in said clause (a), of the following conditions: (i) receipt by the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (ya) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of: (A) a report of the Engineering Consultant or another independent engineer, such other engineer and such report to be satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilding or replacement of such Unit is technologically feasible and economically viable and that such rebuilding or replacement can be completed by a date thirty-six (36) months prior to the end of the Basic Lease Term or twelve (12) months prior to the end of any Renewal Lease Term then in effect or elected by the Facility Lessee, and (B) an appraisal of an independent appraiser selected by the Facility Lessee, such appraiser and such appraisal to be reasonably acceptable to the Owner Participant, and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilt or replacement unit will have at least the same current and residual value, utility and remaining useful life as such Unit immediately prior to the Event of Loss and such rebuilding or replacement will not result in the Facility being "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647 (assuming such Unit was then be in the condition required by the terms of this Facility Lease), and (C) an Officer's Certificate of the Facility Lessee to the effect that no Significant Lease Default or Event of Default shall have occurred and is continuing; and (ii) receipt by the Owner Participant prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (y) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of either (A) a tax opinion of its counsel, such opinion to be reasonably satisfactory to the Owner Participant, to the effect that, assuming the proposed rebuilding or replacement is completed in the manner and within the time proposed, such rebuilding or replacement will not cause any material incremental adverse tax risk to the Owner Participant, such opinion to take into account any payments (or indemnities made pursuant to clause (B) of this Section 10.3(a)(ii)) made or caused to be made by the Facility Lessee (in its sole discretion) to reimburse (or protect) the Owner Participant for any loss of Tax Benefits (it being agreed that upon the occurrence of an Event of Loss described in clause (a) or (b) of the definition thereof the Facility Lessee may request the Owner Participant to ask its counsel whether it can render such opinion and the Owner Participant agrees to make such request) or (B) an indemnity arrangement against such risk satisfactory to the Owner Participant; and (iii) no material adverse accounting effect on the Owner Participant shall have occurred and is continuing. (b) The Facility Lessee shall cause the rebuilding or replacement of such Unit the Facility or any Relevant Portion of the Facility to commence as soon as reasonably practicable after notifying the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustees pursuant to Section 10.1(a), ) of its election to rebuild or replace such Unitthe Facility or any Relevant Portion of the Facility, and in all events within twentythirty-four six (2436) months of the occurrence of the event that caused such Event of Loss Loss, and will cause work on such rebuilding or replacement to proceed diligently thereafter. As the rebuilding or replacement of such Unit progresses, the Facility or any Relevant Portion of the Facility progresses and title to the rebuilt or replacement Unit shall vest Facility or Relevant Portion of the Facility vests in the Owner Lessor and such title Head Lessor, the rebuilt or replacement facilities shall become subject to the Head Lease, this Facility Lease and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lien of the Lease Indenture and be deemed a part of the Facility for all purposes of the Head Lease and this Facility Lease, automatically 13 without any further act by any Person. ; and (cb) On within thirty (30) days after the date of the completion of such rebuilding or replacement of such Unit (the "“Rebuilding Closing Date"”) the following documents shall be ----------------------- duly authorized, executed and delivered and, if appropriate, filed for recordation by the respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each thereto thereof shall be delivered to the Owner Lessor, the Owner Participant Lessor Manager and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee: : (i) supplements to the Head Lease and this Facility Lease subjecting such the rebuilt or replacement facilities to the Head Lease and this Facility Lease (with no change in Purchase Price or the Periodic Head Lease Rent or Renewal in Basic Lease Rent as a result of such rebuilding or replacement); , (ii) so long as the Lien of the Lease Indenture shall not have been terminated or discharged, supplements to the Lease Indenture subjecting such the rebuilt or replacement facilities to the Lien of the Lease Indenture; , (iii) such recordings and filings as may be reasonably requested by the Owner Participant and Lessor or the Lease Indenture Trustee to be made or filed; , (iv) an opinion of counsel of the Facility Lessee, such counsel and such opinion to be reasonably satisfactory to the Owner Participant Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee to the effect that (A) the supplements to the Head Lease and this Facility Lease required by clause (i) above constitute effective instruments for subjecting such the rebuilt or replacement facilities to the Head Lease and this Facility Lease, (B) the supplements to the Lease Indenture required by clause (ii) above, if any, constitute effective instruments for subjecting such the rebuilt or replacement facilities to the Lien of the Lease Indenture, and (C) all filings and other action necessary to perfect and protect the Owner Lessor's and, if applicable, the Lease Indenture Trustee's interest in such the rebuilt or replacement facilities have been accomplished; , (v) an appraisal by an Independent Appraiser, certifying that the rebuilt or replacement Unit has a current and residual value, remaining useful life and utility at least equal to the current and residual value, remaining useful life and utility of such Unit would have had on the Rebuilding Closing Date had such Event of Loss not occurred (assuming such Unit would then be in the condition and repair required to be maintained by the terms of this Facility Lease) and is not "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647; and (vi) a report by an independent engineer certifying that the rebuilt or replacement Unit is facilities are in a state of repair and condition required by this Facility Lease; , and (viivi) an Officer's Certificate of the Facility Lessee as to compliance with this Section 10.3 and that no Lease Event of Default shall have occurred and be continuing as a result of the rebuild rebuilding or replacement; and (viii) satisfactory evidence as to the compliance with Section 11 of this Facility Lease with respect to the rebuilt or replacement Unit. If the Rebuilding Closing Date of a Unit and the satisfaction of the foregoing conditions shall not have occurred by the earlier of (x) sixty (60) months after the occurrence of the Event of Loss and (y) eighteen (18) months prior to the expiration of the Basic Lease Term or, if the Facility Lessee has elected to renew this Facility Lease for one or more Renewal Lease Terms, the expiration of any Renewal Lease Term then in effect or elected by the Facility Lessee, then the Lessee shall be required to comply with Section 10.2 and the Termination Date shall be the first Termination Date that occurs after such date. (d) Whether or not the transactions contemplated by this Section 10.3 are consummated, the Facility Lessee agrees to pay or reimburse, on an After-Tax Basis, any costs or expenses (including reasonable and documented legal fees and expenses) incurred by the Owner Lessor, the Owner Participant, Lessor Manager and the Lease Indenture Trustee and the Pass Through Trustees in connection with the transactions contemplated by this Section 10.3.. Section 10.4

Rebuild or Replace. (a) The Facility Lessee's right to rebuild or replace any Unit and the Related Common Facilities pursuant to Section 10.1(a) shall be subject to the fulfillment, at the Facility Lessee's sole cost and expense, in addition to the conditions contained in said clause (a), of the following conditions: (a) the Facility Lessee shall, on the date it gives notice pursuant to Section 10.1(a) of its election to rebuild or replace such Unit and the Related Common Facilities, (i) receipt by deliver to the Owner Participant an indemnity against all adverse tax risks as a result of such proposed rebuilding or replacement, such indemnity to be in form and substance satisfactory to the Owner Participant, (ii) deliver to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (y) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of: Trustee (A) a report of the Engineering Consultant or R.W. ▇▇▇▇ ▇▇ another independent engineer, such other engineer and such report to be satisfactory reasonably acceptable to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilding or replacement of such Unit and the Related Common Facilities is technologically feasible and economically viable and that such rebuilding or replacement can be completed by a date thirty-six (36) 36 months prior to the end of the Basic Lease Term or twelve (12) months prior to the end of any Renewal Lease Term then in effect or elected by the Facility Lessee, and (B) an appraisal of an independent appraiser selected by the Facility Lesseeappraiser, such appraiser and such appraisal to be reasonably acceptable to the Owner Participant, and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, Trustee to the effect that the rebuilt or replacement unit facilities to the extent of the Undivided Interest, will have at least the same current and value, residual value, utility and remaining useful life and utility as such Unit and the Related Common Facilities to the extent of the Undivided Interest as immediately prior to the Event of Loss and such rebuilding or replacement will not result in the Facility being "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647 (assuming such Unit was then be in the condition required by the terms of this Facility Lease)Loss, and (C) an Officer's Certificate of the Facility Lessee to the effect that no Significant Lease Default or Event of Default shall have occurred and is continuing; and (ii) receipt by the Owner Participant prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (y) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of either (A) a tax opinion of its counsel, such opinion to be it reasonably satisfactory to the Owner Participant, to the effect that, assuming the proposed rebuilding or replacement is completed in the manner and within the time proposed, such rebuilding or replacement will not cause any material incremental adverse tax risk to the Owner Participant, such opinion to take into account any payments (or indemnities made pursuant to clause (B) of this Section 10.3(a)(ii)) made or caused to be made by believes that the Facility Lessee (in its sole discretion) will have sufficient funds available to reimburse (or protect) the Owner Participant for any loss of Tax Benefits (it being agreed that upon the occurrence of an Event of Loss described in clause (a) or (b) of the definition thereof the Facility Lessee may request the Owner Participant continue to ask its counsel whether it can render such opinion and the Owner Participant agrees to make such request) or (B) an indemnity arrangement against such risk satisfactory to the Owner Participant; and (iii) no material adverse accounting effect on the Owner Participant shall have occurred and is continuing. (b) The Facility Lessee shall cause the rebuilding or replacement of such Unit to commence as soon as practicable after notifying the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustees pursuant to Section 10.1(a), of its election to rebuild or replace such Unit, and in all events within twenty-four (24) months of the occurrence of the event that caused such Event of Loss and will cause work on such rebuilding or replacement to proceed diligently thereafter. As the rebuilding or replacement of such Unit progresses, title to the rebuilt or replacement Unit shall vest in the Owner Lessor and such title shall become subject to this Facility Lease and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lien of the Lease Indenture and be deemed a part of the Facility for all purposes of this Facility Lease, automatically without any further act by any Person. (c) On the date of the completion of such rebuilding or replacement of such Unit (the "Rebuilding Closing Date") the following documents shall be ----------------------- duly authorized, executed and delivered and, if appropriate, filed for recordation by the respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each thereto shall be delivered to the Owner Lessor, the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee: (i) supplements to this Facility Lease subjecting such rebuilt or replacement facilities to this Facility Lease (with no change in Purchase Price or the pay Periodic Lease Rent or and Renewal Lease Rent as a result during the period of such rebuilding or replacement); (ii) supplements to the Lease Indenture subjecting such rebuilt or replacement facilities to the Lien of the Lease Indenture; , and (iii) such recordings and filings as may be reasonably requested by demonstrate to the Owner Participant and the Lease Indenture Trustee to be made or filed; (iv) an opinion reasonable satisfaction of counsel of the Facility Lessee, such counsel and such opinion to be reasonably satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee to the effect that (A) the supplements to this Facility Lease required by clause (i) above constitute effective instruments for subjecting such rebuilt or replacement facilities to this Facility Lease, (B) the supplements to the Lease Indenture required by clause (ii) above, if any, constitute effective instruments for subjecting such rebuilt or replacement facilities to the Lien of the Lease Indenture, and (C) all filings and other action necessary to perfect and protect the Owner Lessor's and, if applicable, the Lease Indenture Trustee's interest in such rebuilt or replacement facilities have been accomplished; (v) an appraisal by an Independent Appraiser, certifying that the rebuilt or replacement Unit has a current and residual value, remaining useful life and utility at least equal to the current and residual value, remaining useful life and utility of such Unit would have had on the Rebuilding Closing Date had such Event of Loss not occurred (assuming such Unit would then be in the condition and repair required to be maintained by the terms of this Facility Lease) and is not "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647; and (vi) a report by an independent engineer certifying that the rebuilt or replacement Unit is in a state of repair and condition required by this Facility Lease; (vii) an Officer's Certificate of the Facility Lessee as to compliance with this Section 10.3 and that no Lease Event of Default shall have occurred and be continuing as a result of the rebuild or replacement; and (viii) satisfactory evidence as to the compliance with Section 11 of this Facility Lease with respect to the rebuilt or replacement Unit. If the Rebuilding Closing Date of a Unit and the satisfaction of the foregoing conditions shall not have occurred by the earlier of (x) sixty (60) months after the occurrence of the Event of Loss and (y) eighteen (18) months prior to the expiration of the Basic Lease Term or, if the Facility Lessee has elected to renew this Facility Lease for one or more Renewal Lease Terms, the expiration of any Renewal Lease Term then in effect or elected by the Facility Lessee, then the Lessee shall be required to comply with Section 10.2 and the Termination Date shall be the first Termination Date that occurs after such date. (d) Whether or not the transactions contemplated by this Section 10.3 are consummated, the Facility Lessee agrees to pay or reimburse, on an After-Tax Basis, any costs or expenses (including reasonable legal fees and expenses) incurred by the Owner Lessor, the Owner Participant, the Lease Indenture Trustee and the Pass Through Trustees in connection with the transactions contemplated by this Section 10.3.adequate

Rebuild or Replace. (a) The Facility Lessee's right to rebuild or replace the Facility or any Unit Relevant Portion of the Facility pursuant to Section 10.1(a) shall be subject to the fulfillment, at the Facility Lessee's sole cost and expense, in addition to the conditions contained in said clause (a), of the following conditions: (i) receipt by the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (ya) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of: (A) a report of the Engineering Consultant or another independent engineer, such other engineer and such report to be satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilding or replacement of such Unit is technologically feasible and economically viable and that such rebuilding or replacement can be completed by a date thirty-six (36) months prior to the end of the Basic Lease Term or twelve (12) months prior to the end of any Renewal Lease Term then in effect or elected by the Facility Lessee, and (B) an appraisal of an independent appraiser selected by the Facility Lessee, such appraiser and such appraisal to be reasonably acceptable to the Owner Participant, and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilt or replacement unit will have at least the same current and residual value, utility and remaining useful life as such Unit immediately prior to the Event of Loss and such rebuilding or replacement will not result in the Facility being "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647 (assuming such Unit was then be in the condition required by the terms of this Facility Lease), and (C) an Officer's Certificate of the Facility Lessee to the effect that no Significant Lease Default or Event of Default shall have occurred and is continuing; and (ii) receipt by the Owner Participant prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (y) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of either (A) a tax opinion of its counsel, such opinion to be reasonably satisfactory to the Owner Participant, to the effect that, assuming the proposed rebuilding or replacement is completed in the manner and within the time proposed, such rebuilding or replacement will not cause any material incremental adverse tax risk to the Owner Participant, such opinion to take into account any payments (or indemnities made pursuant to clause (B) of this Section 10.3(a)(ii)) made or caused to be made by the Facility Lessee (in its sole discretion) to reimburse (or protect) the Owner Participant for any loss of Tax Benefits (it being agreed that upon the occurrence of an Event of Loss described in clause (a) or (b) of the definition thereof the Facility Lessee may request the Owner Participant to ask its counsel whether it can render such opinion and the Owner Participant agrees to make such request) or (B) an indemnity arrangement against such risk satisfactory to the Owner Participant; and (iii) no material adverse accounting effect on the Owner Participant shall have occurred and is continuing. (b) The Facility Lessee shall cause the rebuilding or replacement of such Unit the Facility or any Relevant Portion of the Facility to commence as soon as reasonably practicable after notifying the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustees pursuant to Section 10.1(a), ) of its election to rebuild or replace such Unitthe Facility or any Relevant Portion of the Facility, and in all events within twentythirty-four six (2436) months of the occurrence of the event that caused such Event of Loss Loss, and will cause work on such rebuilding or replacement to proceed diligently thereafter. As the rebuilding or replacement of such Unit progresses, the Facility or any Relevant Portion of the Facility progresses and title to the rebuilt or replacement Unit shall vest Facility or Relevant Portion of the Facility vests in the Owner Lessor and such title Head Lessor, the rebuilt or replacement facilities shall become subject to the Head Lease, this Facility Lease and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lien of the Lease Indenture and be deemed a part of the Facility for all purposes of the Head Lease and this Facility Lease, automatically without any further act by any Person.; and (cb) On within thirty (30) days after the date of the completion of such rebuilding or replacement of such Unit (the "“Rebuilding Closing Date"”) the following documents shall be ----------------------- duly authorized, executed and delivered and, if appropriate, filed for recordation by the respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each thereto thereof shall be delivered to the Owner Lessor, the Owner Participant Lessor Manager and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee: : (i) supplements to the Head Lease and this Facility Lease subjecting such the rebuilt or replacement facilities to the Head Lease and this Facility Lease (with no change in Purchase Price or the Periodic Head Lease Rent or Renewal in Basic Lease Rent as a result of such rebuilding or replacement); , (ii) so long as the Lien of the Lease Indenture shall not have been terminated or discharged, supplements to the Lease Indenture subjecting such the rebuilt or replacement facilities to the Lien of the Lease Indenture; , (iii) such recordings and filings as may be reasonably requested by the Owner Participant and Lessor or the Lease Indenture Trustee to be made or filed; , (iv) an opinion of counsel of the Facility Lessee, such counsel and such opinion to be reasonably satisfactory to the Owner Participant Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee to the effect that (A) the supplements to the Head Lease and this Facility Lease required by clause (i) above constitute effective instruments for subjecting such the rebuilt or replacement facilities to the Head Lease and this Facility Lease, (B) the supplements to the Lease Indenture required by clause (ii) above, if any, constitute effective instruments for subjecting such the rebuilt or replacement facilities to the Lien of the Lease Indenture, and (C) all filings and other action necessary to perfect and protect the Owner Lessor's and, if applicable, the Lease Indenture Trustee's interest in such the rebuilt or replacement facilities have been accomplished; , (v) an appraisal by an Independent Appraiser, certifying that the rebuilt or replacement Unit has a current and residual value, remaining useful life and utility at least equal to the current and residual value, remaining useful life and utility of such Unit would have had on the Rebuilding Closing Date had such Event of Loss not occurred (assuming such Unit would then be in the condition and repair required to be maintained by the terms of this Facility Lease) and is not "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647; and (vi) a report by an independent engineer certifying that the rebuilt or replacement Unit is facilities are in a state of repair and condition required by this Facility Lease; , and (viivi) an Officer's Certificate of the Facility Lessee as to compliance with this Section 10.3 and that no Lease Event of Default shall have occurred and be continuing as a result of the rebuild rebuilding or replacement; and (viii) satisfactory evidence as to the compliance with Section 11 of this Facility Lease with respect to the rebuilt or replacement Unit. If the Rebuilding Closing Date of a Unit and the satisfaction of the foregoing conditions shall not have occurred by the earlier of (x) sixty (60) months after the occurrence of the Event of Loss and (y) eighteen (18) months prior to the expiration of the Basic Lease Term or, if the Facility Lessee has elected to renew this Facility Lease for one or more Renewal Lease Terms, the expiration of any Renewal Lease Term then in effect or elected by the Facility Lessee, then the Lessee shall be required to comply with Section 10.2 and the Termination Date shall be the first Termination Date that occurs after such date. (d) Whether or not the transactions contemplated by this Section 10.3 are consummated, the Facility Lessee agrees to pay or reimburse, on an After-Tax Basis, any costs or expenses (including reasonable and documented legal fees and expenses) incurred by the Owner Lessor, the Owner Participant, Lessor Manager and the Lease Indenture Trustee and the Pass Through Trustees in connection with the transactions contemplated by this Section 10.3.

Rebuild or Replace. (a) The Facility Lessee's right to rebuild or replace any Unit Facility pursuant to clause (a) of Section 10.1(a) 10.1 shall be subject to the fulfillment, at the Facility Lessee's sole cost and expense, in addition to the conditions contained in said clause (a), of the following conditions: (a) no Lease Event of Default shall have occurred and be continuing; (b) on the date the Facility Lessee shall give notice pursuant to Section 10.1(a) of its election to rebuild or replace the Facility in accordance with this Section 10.3, either (i) receipt the Owner Participant shall have received an opinion reasonably satisfactory to it from Skadden, Arps, Slate, Meag▇▇▇ & ▇lom (▇▇linois) or its affiliates, or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such rebuilding would not result in any unindemnified tax consequences (determined based on the indemnification provisions contained in the Operative Documents) to the Owner Participant, (ii) an indemnity against such risk in form and substance reasonably satisfactory to the Owner Participant from or guaranteed by an entity that meets the Minimum Credit Rating, or (iii) any other indemnity arrangements against such risk satisfactory to the Owner Participant; (c) on the date the Facility Lessee shall give notice pursuant to Section 10.1(a) of its election to rebuild or replace the Facility in accordance with this Section 10.3, the Facility Lessee shall deliver to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, prior to the earlier of Trustee (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (y) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of: (Ai) a report of the Engineering Consultant Consultant, or another independent engineer, such other independent engineer and such report to be reasonably satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilding or replacement of such Unit the Facility is technologically feasible and economically viable and that such rebuilding or replacement can be completed by a date thirty-six (36) that is 36 months prior to the end of the Basic Lease Term or twelve (12) 12 months prior to the end expiration of any Renewal Lease Term then in effect or which has been elected by the Facility Lessee, and (Bii) an appraisal of an independent appraiser selected by the Facility Lessee, such appraiser and such appraisal to be Independent Appraiser reasonably acceptable to the Owner Participant, and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, Trustee to the effect that the rebuilt Facility will, after completion of rebuilding or replacement unit will replacement, have at least the same current and value, residual value, utility and remaining useful life as such Unit the Facility immediately prior to the Event of Loss Loss, assuming the Facility was then in the condition required to have been maintained by the terms of this Facility Lease and such rebuilding or replacement will not result in the Facility being "limited use" property within the meaning of Rev. Proc. 75 75-28, 1975 1975-1 C.B. 752 or Rev. Proc. 76 76-30, 1976 1976-2 C.B. 647 647; (assuming such Unit was then be in d) on the condition required by the terms of this Facility Lease), and (C) an Officer's Certificate of date the Facility Lessee to the effect that no Significant Lease Default or Event of Default shall have occurred and is continuing; and (ii) receipt by the Owner Participant prior to the earlier of (x) 60 days after the date of the Facility Lessee's give notice pursuant to Section 10.1(a) or (y) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of either (A) a tax opinion of its counsel, such opinion to be reasonably satisfactory to the Owner Participant, to the effect that, assuming the proposed rebuilding or replacement is completed in the manner and within the time proposed, such rebuilding or replacement will not cause any material incremental adverse tax risk to the Owner Participant, such opinion to take into account any payments (or indemnities made pursuant to clause (B) of this Section 10.3(a)(ii)) made or caused to be made by the Facility Lessee (in its sole discretion) to reimburse (or protect) the Owner Participant for any loss of Tax Benefits (it being agreed that upon the occurrence of an Event of Loss described in clause (a) or (b) of the definition thereof the Facility Lessee may request the Owner Participant to ask its counsel whether it can render such opinion and the Owner Participant agrees to make such request) or (B) an indemnity arrangement against such risk satisfactory to the Owner Participant; and (iii) no material adverse accounting effect on the Owner Participant shall have occurred and is continuing. (b) The Facility Lessee shall cause the rebuilding or replacement of such Unit to commence as soon as practicable after notifying the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustees pursuant to Section 10.1(a), of its election to rebuild or replace such Unitthe Facility in accordance with this Section 10.3, and in all events within twenty-four (24) months of the occurrence of the event that caused such Event of Loss and will cause work on such rebuilding or replacement to proceed diligently thereafter. As the rebuilding or replacement of such Unit progresses, title Facility Lessee shall demonstrate to the rebuilt or replacement Unit shall vest in the Owner Lessor and such title shall become subject to this Facility Lease and, so long as the Lien reasonable satisfaction of the Lease Indenture shall not have been terminated or discharged, the Lien of the Lease Indenture and be deemed a part of the Facility for all purposes of this Facility Lease, automatically without any further act by any Person. (c) On the date of the completion of such rebuilding or replacement of such Unit (the "Rebuilding Closing Date") the following documents shall be ----------------------- duly authorized, executed and delivered and, if appropriate, filed for recordation by the respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each thereto shall be delivered to the Owner Lessor, the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee: (i) supplements , that it will have adequate financial resources, from insurance proceeds or otherwise, to this Facility Lease subjecting such rebuilt or replacement facilities to this Facility Lease (with no change in Purchase Price or the Periodic Lease Rent or Renewal Lease Rent as a result of complete such rebuilding or replacement); (ii) supplements to the Lease Indenture subjecting such rebuilt or replacement facilities to the Lien of the Lease Indenture; (iii) such recordings and filings as may be reasonably requested by the Owner Participant and the Lease Indenture Trustee to be made or filed; (iv) an opinion of counsel of the Facility Lessee, such counsel and such opinion to be reasonably satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee to the effect that (A) the supplements to this Facility Lease required by clause (i) above constitute effective instruments for subjecting such rebuilt or replacement facilities to this Facility Lease, (B) the supplements to the Lease Indenture required by clause (ii) above, if any, constitute effective instruments for subjecting such rebuilt or replacement facilities to the Lien of the Lease Indenture, and (C) all filings and other action necessary to perfect and protect the Owner Lessor's and, if applicable, the Lease Indenture Trustee's interest in such rebuilt or replacement facilities have been accomplished; (v) an appraisal by an Independent Appraiser, certifying that the rebuilt or replacement Unit has a current and residual value, remaining useful life and utility at least equal to the current and residual value, remaining useful life and utility of such Unit would have had on the Rebuilding Closing Date had such Event of Loss not occurred (assuming such Unit would then be in the condition and repair required to be maintained by the terms of this Facility Lease) and is not "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647; and (vi) a report by an independent engineer certifying that the rebuilt or replacement Unit is in a state of repair and condition required by this Facility Lease; (vii) an Officer's Certificate of the Facility Lessee as to compliance with this Section 10.3 and that no Lease Event of Default shall have occurred and be continuing as a result of the rebuild or replacement; and (viii) satisfactory evidence as to the compliance with Section 11 of this Facility Lease with respect to the rebuilt or replacement Unit. If the Rebuilding Closing Date of a Unit and the satisfaction of the foregoing conditions shall not have occurred by the earlier of (x) sixty (60) months after the occurrence of the Event of Loss and (y) eighteen (18) months prior to the expiration of the Basic Lease Term or, if the Facility Lessee has elected to renew this Facility Lease for one or more Renewal Lease Terms, the expiration of any Renewal Lease Term then in effect or elected by the Facility Lessee, then the Lessee shall be required to comply with Section 10.2 and the Termination Date shall be the first Termination Date that occurs after such date. (d) Whether or not the transactions contemplated by this Section 10.3 are consummated, the Facility Lessee agrees to pay or reimburse, on an After-Tax Basis, any costs or expenses (including reasonable legal fees and expenses) incurred by the Owner Lessor, the Owner Participant, the Lease Indenture Trustee and the Pass Through Trustees in connection with the transactions contemplated by this Section 10.3.

Rebuild or Replace. (a) The Facility Lessee's ’s right to rebuild or replace the Facility or any Unit Relevant Portion of the Facility pursuant to Section 10.1(a) shall be subject to the fulfillment, at the Facility Lessee's ▇▇▇▇▇▇’s sole cost and expense, in addition to the conditions contained in said clause (a), of the following conditions: (i) receipt by the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (ya) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of: (A) a report of the Engineering Consultant or another independent engineer, such other engineer and such report to be satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilding or replacement of such Unit is technologically feasible and economically viable and that such rebuilding or replacement can be completed by a date thirty-six (36) months prior to the end of the Basic Lease Term or twelve (12) months prior to the end of any Renewal Lease Term then in effect or elected by the Facility Lessee, and (B) an appraisal of an independent appraiser selected by the Facility Lessee, such appraiser and such appraisal to be reasonably acceptable to the Owner Participant, and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilt or replacement unit will have at least the same current and residual value, utility and remaining useful life as such Unit immediately prior to the Event of Loss and such rebuilding or replacement will not result in the Facility being "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647 (assuming such Unit was then be in the condition required by the terms of this Facility Lease), and (C) an Officer's Certificate of the Facility Lessee to the effect that no Significant Lease Default or Event of Default shall have occurred and is continuing; and (ii) receipt by the Owner Participant prior to the earlier of (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (y) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of either (A) a tax opinion of its counsel, such opinion to be reasonably satisfactory to the Owner Participant, to the effect that, assuming the proposed rebuilding or replacement is completed in the manner and within the time proposed, such rebuilding or replacement will not cause any material incremental adverse tax risk to the Owner Participant, such opinion to take into account any payments (or indemnities made pursuant to clause (B) of this Section 10.3(a)(ii)) made or caused to be made by the Facility Lessee (in its sole discretion) to reimburse (or protect) the Owner Participant for any loss of Tax Benefits (it being agreed that upon the occurrence of an Event of Loss described in clause (a) or (b) of the definition thereof the Facility Lessee may request the Owner Participant to ask its counsel whether it can render such opinion and the Owner Participant agrees to make such request) or (B) an indemnity arrangement against such risk satisfactory to the Owner Participant; and (iii) no material adverse accounting effect on the Owner Participant shall have occurred and is continuing. (b) The Facility Lessee shall cause the rebuilding or replacement of such Unit the Facility or any Relevant Portion of the Facility to commence as soon as reasonably practicable after notifying the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustees pursuant to Section 10.1(a), ) of its election to rebuild or replace such Unitthe Facility or any Relevant Portion of the Facility, and in all events within twentythirty-four six (2436) months of the occurrence of the event that caused such Event of Loss Loss, and will cause work on such rebuilding or replacement to proceed diligently thereafter. As the rebuilding or replacement of such Unit progresses, the Facility or any Relevant Portion of the Facility progresses and title to the rebuilt or replacement Unit shall vest Facility or Relevant Portion of the Facility vests in the Owner Lessor and such title Head Lessor, the rebuilt or replacement facilities shall become subject to the Head Lease, this Facility Lease and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lien of the Lease Indenture and be deemed a part of the Facility for all purposes of the Head Lease and this Facility Lease, automatically without any further act by any Person.; and (cb) On within thirty (30) days after the date of the completion of such rebuilding or replacement of such Unit (the "“Rebuilding Closing Date"”) the following documents shall be ----------------------- duly authorized, executed and delivered and, if appropriate, filed for recordation by the respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each thereto thereof shall be delivered to the Owner Lessor, the Owner Participant Lessor Manager and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee: : (i) supplements to the Head Lease and this Facility Lease subjecting such the rebuilt or replacement facilities to the Head Lease and this Facility Lease (with no change in Purchase Price or the Periodic Head Lease Rent or Renewal in Basic Lease Rent as a result of such rebuilding or replacement); , (ii) so long as the Lien of the Lease Indenture shall not have been terminated or discharged, supplements to the Lease Indenture subjecting such the rebuilt or replacement facilities to the Lien of the Lease Indenture; , (iii) such recordings and filings as may be reasonably requested by the Owner Participant and Lessor or the Lease Indenture Trustee to be made or filed; , (iv) an opinion of counsel of the Facility Lessee, such counsel and such opinion to be reasonably satisfactory to the Owner Participant Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee to the effect that (A) the supplements to the Head Lease and this Facility Lease required by clause (i) above constitute effective instruments for subjecting such the rebuilt or replacement facilities to the Head Lease and this Facility Lease, (B) the supplements to the Lease Indenture required by clause (ii) above, if any, constitute effective instruments for subjecting such the rebuilt or replacement facilities to the Lien of the Lease Indenture, and (C) all filings and other action necessary to perfect and protect the Owner Lessor's ’s and, if applicable, the Lease Indenture Trustee's ’s interest in such the rebuilt or replacement facilities have been accomplished; , (v) an appraisal by an Independent Appraiser, certifying that the rebuilt or replacement Unit has a current and residual value, remaining useful life and utility at least equal to the current and residual value, remaining useful life and utility of such Unit would have had on the Rebuilding Closing Date had such Event of Loss not occurred (assuming such Unit would then be in the condition and repair required to be maintained by the terms of this Facility Lease) and is not "limited use" property within the meaning of Rev. Proc. 75 28, 1975 1 C.B. 752 or Rev. Proc. 76 30, 1976 2 C.B. 647; and (vi) a report by an independent engineer certifying that the rebuilt or replacement Unit is facilities are in a state of repair and condition required by this Facility Lease; , and (viivi) an Officer's ’s Certificate of the Facility Lessee as to compliance with this Section 10.3 and that no Lease Event of Default shall have occurred and be continuing as a result of the rebuild rebuilding or replacement; and (viii) satisfactory evidence as to the compliance with Section 11 of this Facility Lease with respect to the rebuilt or replacement Unit. If the Rebuilding Closing Date of a Unit and the satisfaction of the foregoing conditions shall not have occurred by the earlier of (x) sixty (60) months after the occurrence of the Event of Loss and (y) eighteen (18) months prior to the expiration of the Basic Lease Term or, if the Facility Lessee has elected to renew this Facility Lease for one or more Renewal Lease Terms, the expiration of any Renewal Lease Term then in effect or elected by the Facility Lessee, then the Lessee shall be required to comply with Section 10.2 and the Termination Date shall be the first Termination Date that occurs after such date. (d) Whether or not the transactions contemplated by this Section 10.3 are consummated, the Facility Lessee ▇▇▇▇▇▇ agrees to pay or reimburse, on an After-Tax Basis, any costs or expenses (including reasonable and documented legal fees and expenses) incurred by the Owner Lessor, the Owner Participant, Lessor Manager and the Lease Indenture Trustee and the Pass Through Trustees in connection with the transactions contemplated by this Section 10.3.

Rebuild or Replace. (a) The Facility Lessee's right to rebuild or replace any Unit Facility pursuant to clause (a) of Section 10.1(a) 10.1 shall be subject to the fulfillment, at the Facility Lessee's sole cost and expense, in addition to the conditions contained in said clause (a), of the following conditions: : (a) no Lease Event of Default shall have occurred and be continuing; (b) Section IO.l(a) of on thedate the FacilityLesseeshall give notice pursuant to its election to rebuild or replace the Facility in accordance with this Section 10.3, either (i) receipt the Owner Participant shall have received an opinion reasonably satisfactory to it from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois) or its affiliates, or from a nationally recognized tax counsel selected by the Owner Participant and reasonably acceptable to the Facility Lessee, to the effect that such rebuilding would not result in any unindemnified tax consequences (determined based on the indemnification provisions contained in the Operative Conemaugh Facility Lease 22 HOU01:587603.2 Docwnents) to the Owner Participant, (ii) an indemnity against such risk in form and substance reasonably satisfactory to the Owner Participant from or guaranteed by an entity that meets the Minimwn Credit Rating, or (iii) any other indemnity arrangements against such risk satisfactory to the Owner Participant; (c) on the date the FacilityLessee shallgivenoticepursuant to Section 10.1(a) of its election to rebuild or replace the Facility in accordance with this Section 10.3, the Facility Lessee shall deliver to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, prior to the earlier of Trustee (x) 60 days after the date of the Facility Lessee's notice pursuant to Section 10.1(a) or (y) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of: (Ai) a report of the Engineering Consultant Consultant, or another independent engineer, such other independent engineer and such report to be reasonably satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, to the effect that the rebuilding or replacement of such Unit the Facility is technologically feasible and economically viable and that such rebuilding or replacement can be completed by a date thirty-six (36) that is 36 months prior to the end of the Basic Lease Term or twelve (12) 12 months prior to the end expiration of any Renewal Lease Term then in effect or which has been elected by the Facility Lessee, and (Bii) an appraisal of an independent appraiser selected by the Facility Lessee, such appraiser and such appraisal to be Independent Appraiser reasonably acceptable to the Owner Participant, and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, Trustee to the effect that the rebuilt Facility will, after completion of rebuilding or replacement unit will replacement, have at least the same current and value, residual value, utility and remaining useful life as such Unit the Facility immediately prior to the Event of Loss Loss, asswning the Facility was then in the condition required to have been maintained by the terms of this Facility Lease and such rebuilding or replacement will not result in the Facility being "limited use" property within the meaning of Rev. Proc. 75 75-28, 1975 1975-1 C.B. 752 or Rev. Proc. 76 76-30, 1976 1976-2 C.B. 647 647; (assuming d) on the date the FacilityLessee shall givenoticepursuant to Section 10.1(a) of its election to rebuild or replace the Facility in accordance with this Section 10.3, the Facility Lessee shall demonstrate to the reasonable satisfaction of the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee, that it will have adequate financial resources, from insurance proceeds or otherwise, to complete such Unit was then be rebuilding or replacement; (e)on the date the FacilityLesseeshall give noticepursuantto Section lO.l(a) of its election to rebuild or replace the Facility in accordance with this Section 10.3, the condition required by the terms of this Facility Lease), and (C) Lessee shall deliver an Officer's Certificate of the Facility Lessee to the effect that no Significant it reasonably believes that it will have sufficient funds available to continue to pay Periodic Lease Default Rent or Event of Default shall have occurred and is continuing; and (ii) receipt by Renewal Lease Rent, as the Owner Participant prior to the earlier of (x) 60 days after the date of case may be, while the Facility Lessee's notice pursuant to Section 10.1(a) or is being rebuilt; (yf) the last date of the nine month period referred to in the second sentence of Section 10.1(a), of either (A) a tax opinion of its counsel, such opinion to be reasonably satisfactory to the Owner Participant, to the effect that, assuming the proposed rebuilding or replacement is completed in the manner and within the time proposed, such rebuilding or replacement will not cause any material incremental adverse tax risk to the Owner Participant, such opinion to take into account any payments (or indemnities made pursuant to clause (B) of this Section 10.3(a)(ii)) made or caused to be made by the Facility Lessee (in its sole discretion) to reimburse (or protect) the Owner Participant for any loss of Tax Benefits (it being agreed that upon the occurrence of an Event of Loss described in clause (a) or (b) of the definition thereof the Facility Lessee may request the Owner Participant to ask its counsel whether it can render such opinion and the Owner Participant agrees to make such request) or (B) an indemnity arrangement against such risk satisfactory to the Owner Participant; and (iii) no material adverse accounting effect on the Owner Participant shall have occurred and is continuing. (b) The Facility Lessee shall cause the rebuilding or replacement of such Unit the Facility to commence as soon as practicable after notifying the Owner Lessor and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee and the Pass Through Trustees Trustee pursuant to Section 10.1(alO.l(a), of its election to rebuild or replace such Unitthe Facility, and in all events within twenty-four (24) 24 months of the occurrence of the event that caused such Event of Loss and will cause work on such rebuilding or replacement to proceed diligently thereafter. As the rebuilding or replacement of such Unit the Facility progresses, title to an undivided interest equal to the Owner Lessor's Percentage in the rebuilt or replacement Unit Facility shall vest in Conemaugh Facility Lease 23 HOUOI:587603.2 the Owner Lessor and such title undivided interest shall become subject to this Facility Lease and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lien of the Lease Indenture and be deemed a part of the Facility Interest for all purposes of this Facility Lease, automatically and without any further act by any Person. ; and (cg) On on the date of the completion of such rebuilding or replacement of such Unit the Facility (the "Rebuilding Closing Date") ), the following documents shall be ----------------------- duly authorized, executed and delivered and, if appropriate, filed for recordation by the respective party or parties thereto and shall be in full force and effect, and an executed counterpart of each thereto shall be delivered to the Owner Lessor, the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee: : (i) supplements to this Facility Lease subjecting such an undivided interest equal to the Owner Lessor's Percentage in the rebuilt or replacement facilities Facility to this Facility Lease (with no change in Purchase Price or the Periodic Lease Rent or Allocated Rent or Renewal Lease Rent as a result of such rebuilding or replacement); , (ii) so long as the Lien of the Lease Indenture shall not have been terminated or discharged, supplements to the Lease Indenture subjecting such undivided interests in the rebuilt or replacement facilities to the Lien of the Lease Indenture; , (iii) such recordings and filings as may be reasonably requested by the Owner Participant and so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee to be made or filed; , (iv) an opinion of counsel of the Facility Lessee, such counsel and such opinion to be reasonably satisfactory to the Owner Participant and, so long as the Lien of the Lease Indenture shall not have been terminated or discharged, the Lease Indenture Trustee to the effect that (A) the supplements to this Facility Lease required by clause (i) above constitute effective instruments for subjecting such undivided interests in the rebuilt or replacement facilities to this Facility Lease, (B) the supplements to the Lease Indenture required by clause (ii) above, if any, constitute effective instruments for subjecting such undivided interests in the rebuilt or replacement facilities to the Lien of the Lease Indenture, and (C) all filings and other action necessary to perfect and protect the Owner Lessor's and, if applicable, the Lease Indenture Trustee's interest in such undivided interests in the rebuilt or replacement facilities have been accomplished; , (v) an appraisal by an Independent Appraiser, certifying certifYing that the Facility as so rebuilt or replacement Unit replaced has a current and residual value, remaining useful life and utility at least equal to the current and residual value, remaining useful life and utility of such Unit would have had on the Rebuilding Closing Date had such Facility immediately prior to the Event of Loss not occurred giving rise to such repair or replacement (assuming such Unit would then be the Facility was in the condition and repair required to be maintained by the terms of this Facility Lease) Lease and is such rebuilding or replacement has not resulted in the Facility being "limited use" property within the meaning of Rev. Proc. 75 75-28, 1975 1 C.B. 752 or Rev. Proc. 76 76-30, 1976 2 C.B. 647; and ▇▇▇▇-▇ ▇.▇. ▇▇▇), (vi▇▇) a report by an independent engineer certifying that the such Facility as so rebuilt or replacement Unit replaced is in a state of repair and condition required by this Facility Lease; , (vii) an Officer's Certificate of the Facility Lessee certifying as to compliance with this Section 10.3 and that no Lease Event of Default shall have occurred and be continuing as a result of the rebuild or replacement; and , and (viii) satisfactory evidence as to the compliance with Section 11 II of this Facility Lease with respect to the Facility, as so rebuilt or replacement Unitreplaced. If the Rebuilding Closing Date of a Unit and the satisfaction of the foregoing conditions shall not have occurred by the earlier of (x) sixty (60) months after the occurrence of the Event of Loss and (y) eighteen (18) months prior to the expiration of the Basic Lease Term or, if the Facility Lessee has elected to renew this Facility Lease for one or more Renewal Lease Terms, the expiration of any Renewal Lease Term then in effect or elected by the Facility Lessee, then the Lessee shall be required to comply with Section 10.2 and the Termination Date shall be the first Termination Date that occurs after such date. (d) Whether or not the transactions contemplated by this Section 10.3 I 0.3 are consummated, the Facility Lessee agrees to pay or reimburse, on an After-Tax Basis, any costs or expenses (including reasonable legal fees and expenses) incurred by the Owner Lessor, the Owner Participant, the Conemaugh Facility Lease Indenture Trustee and the Pass Through Trustees in connection with the transactions contemplated by this Section 10.3.24 HOU0l:587603.2