Common use of Condition Upon Return Clause in Contracts

Condition Upon Return. At the time of a return of the Facility Interest by the Facility Lessee pursuant to Section 5.1 (other than a return pursuant to Section 13 or 14), the following conditions shall be complied with, all at the Facility Lessee's sole cost and expense: (a) the Facility will be in at least as good condition as if it had been maintained, repaired and operated during the Facility Lease Term in compliance with the provisions of this Facility Lease (including, without limitation, the provisions of Section 7), ordinary wear and tear excepted, and there shall be no deferred maintenance in respect of the Facility; (b) the Facility Interest shall be free and clear of all Liens other than Permitted Liens set forth in clauses (ii), (iii), (iv), (vi), (viii) and (ix) of the definition thereof; provided, however, that nothing in this Section 5.2(b) shall limit the obligations of the Facility Lessee under Section 10.1 of the Participation Agreement; (c) the Facility shall have at least the capability and functional ability, as certified by an independent professional engineer selected pursuant to the Independent Engineer Selection Procedure, to generate electricity, on a continuous basis in normal commercial operating conditions, substantially at the ratings for which it was designed after taking into account all Modifications to the Facility made in accordance with this Facility Lease (ordinary wear and tear excepted); (d) the Facility shall be in material compliance with all requirements of manufacturers required for the maintenance in full force and effect of any material warranty then in effect with respect to the Facility; (e) no Component of the Facility shall be a temporary Component and any replacement Component of the Facility shall satisfy the standards of Section 7.2; and (f) the Facility Lessee, at the request of the Owner Lessor, shall sell pursuant to Section 8.3 (subject to all existing encumbrances) to the Owner Lessor (or its designee or transferee) all Optional Modifications which are Severable Modifications or an undivided interest in such Optional Modifications which are Severable Modifications made to the Facility which are owned by the Facility Lessee (other than Severable Modifications referred to in the first sentence of Section 8.3). In addition to the foregoing conditions, the Facility Lessee, or an Affiliate thereof, shall enter into an agreement or other arrangements reasonably acceptable to the Owner Lessor, which arrangements, however, shall not be a condition precedent to the return of the Facility Interest (the "Support Arrangements") to provide the Owner Lessor with the Support Services; provided, that the Facility Lessee shall be bound to provide Support Services only to the extent the Facility Lessee or any domestic, unregulated Affiliate thereof is capable of providing such services and is either in the business of providing such Support Services to others or performing such Support Services on its own behalf, and only to the extent that such services cannot reasonably and timely be obtained by the Owner Lessor or its Affiliates from third parties. Support Arrangements shall provide for the provision of Support Services during and after the expiration of this Facility Lease, and will provide for fair market value compensation from time to time to be paid to the Facility Lessee, or an Affiliate thereof, for the performance of such Support Services, periodically in advance on no less than on an annual basis, for such rights and the performance of other services and all such arrangements shall terminate upon expiration or early termination of the Site Lease Term or at the Owner Lessor's option. Within 180 days after the expiration or termination of this Facility Lease, the Owner Lessor shall notify the Facility Lessee of the material elements of the Support Services that the Owner Lessor desires the Facility Lessee, or its Affiliate, to continue to perform. Following such notice, the Facility Lessee and the Owner Lessor shall negotiate in good faith the terms of the fair market value, performance standards, compensation and other terms of such specified Support Services, including the circumstances under which the Facility Lessee and its Affiliates shall be released of any further obligation to provide such Support Services, and enter into contracts for the performance of the Support Services upon any such negotiated terms. Other than the Support Services covered by such contracts, the Facility Lessee will have no further obligation to provide Support Services.

Condition Upon Return. At the time of a return of the Facility Undivided Interest and the Software Rights by the Facility Lessee to the Owner Lessor or any permitted transferee or assignee of the Owner Lessor pursuant to Section 5.1 (other than a return pursuant to Section 13 or 14)5.1, the following conditions shall be complied with, all at the Facility Lessee's ’s sole cost and expense: (a) the Facility Network and any related software (including all Modifications and Substituted Components (and any related software), and all Substituted Non-Network Equipment (and any related software)) will be in at least as good condition as if it had been maintained, repaired and operated during the Facility Network Lease Term in compliance with the provisions of this Facility Lease (including, without limitation, the provisions of Section 7)Network Lease, ordinary wear and tear and degradation excepted, and there shall be no deferred maintenance in respect of the FacilityNetwork (or any related software); (b) the Facility Undivided Interest and the Software Rights shall be free and clear of all Liens other than Permitted Liens set forth in clauses (ii), (iii), (iv), (vi), (viii) and (ix) of the definition thereof; provided, however, that nothing in this Section 5.2(b) shall limit the obligations of the Facility Lessee under Section 10.1 of the Participation AgreementPost Network Lease Term Liens; (c) if the Facility Network (including any related software) has been reconfigured or upgraded after the Closing Date in compliance with this Network Lease, the Network (including any related software) shall be returned in its reconfigured or upgraded form; (d) the Network shall have at least the capability and functional ability, ability to perform as certified by an independent professional engineer selected pursuant to integrated system substantially all of the Independent Engineer Selection Procedure, to generate electricity, on a continuous basis in Network Functions (normal commercial operating conditions, substantially at the ratings for which it was designed after taking into account all Modifications to the Facility made in accordance with this Facility Lease (ordinary wear and tear and degradation excepted); (d) the Facility shall be in material compliance with all requirements of manufacturers required for the maintenance in full force and effect of any material warranty then in effect with respect to the Facility; (e) no Component of the Facility shall be a temporary Component and any replacement Replacement Component of the Facility shall satisfy the standards of Section 7.2comply with Prudent Industry Practice; and (f) rights in respect of any software necessary for the Facility Lessee, efficient operation of the Network at the request standard required by the other provisions of this Section 5.2 will, to the Owner Lessorextent requiring the consent of any vendor or other Person, shall sell pursuant to Section 8.3 (be subject to all existing encumbrances) a consent of such vendor or other Person in a form substantially similar to the Owner Lessor (Software License Consents or its designee or transferee) all Optional Modifications which are Severable Modifications or an undivided interest in such Optional Modifications which are Severable Modifications made to the Facility which are owned by the Facility Lessee (other than Severable Modifications referred to in the first sentence of Section 8.3). In addition to the foregoing conditions, the Facility Lessee, or an Affiliate thereof, shall enter into an agreement or other arrangements a form reasonably acceptable to the Owner Lessor, which arrangements, however, shall not be a condition precedent to the return of the Facility Interest (the "Support Arrangements") to provide the Owner Lessor with the Support Services; provided, that the Facility Lessee shall be bound to provide Support Services only to the extent the Facility Lessee or any domestic, unregulated Affiliate thereof is capable of providing such services and is either in the business of providing such Support Services to others or performing such Support Services on its own behalf, and only to the extent that such services cannot reasonably and timely be obtained by the Owner Lessor or its Affiliates from third parties. Support Arrangements shall provide for the provision of Support Services during and after the expiration of this Facility Lease, and will provide for fair market value compensation from time to time to be paid to the Facility Lessee, or an Affiliate thereof, for the performance of such Support Services, periodically in advance on no less than on an annual basis, for such rights and the performance of other services and all such arrangements shall terminate upon expiration or early termination of the Site Lease Term or at the Owner Lessor's option. Within 180 days after the expiration or termination of this Facility Lease, the Owner Lessor shall notify the Facility Lessee of the material elements of the Support Services that the Owner Lessor desires the Facility Lessee, or its Affiliate, to continue to perform. Following such notice, the Facility Lessee and the Owner Lessor shall negotiate in good faith the terms of the fair market value, performance standards, compensation and other terms of such specified Support Services, including the circumstances under which the Facility Lessee and its Affiliates shall be released of any further obligation to provide such Support Services, and enter into contracts for the performance of the Support Services upon any such negotiated terms. Other than the Support Services covered by such contracts, the Facility Lessee will have no further obligation to provide Support Services.

Condition Upon Return. At the time of a return of the Facility a Unit Interest by the Facility Lessee to the Owner Lessor pursuant to Section 5.1 (other than a return pursuant to Section 13 or 14), the following conditions shall be complied with, all at the Facility Lessee's sole cost and expense: (a) such Unit and the Facility Related Common Facilities will be in at least as good condition as if it they had been maintained, repaired and operated during the Facility Lease Term in compliance with the provisions of this Facility Lease (including, without limitation, the provisions of Section 7)Lease, ordinary wear and tear excepted, and there shall be no deferred maintenance in respect of such Unit or the FacilityRelated Common Facilities; (b) the Facility such Unit Interest shall be free and clear of all Liens other than Permitted Liens set forth in clauses (ii), (iii), (iv), (vi), (viii) and (ix) of the definition thereof; provided, however, that nothing in this Section 5.2(b) shall limit the obligations of the Facility Lessee under Section 10.1 of the Participation AgreementLiens; (c) the Facility such Unit shall have at least the capability and functional ability, as certified by an independent professional engineer selected pursuant to the Independent Engineer Selection Procedure, ability to generate electricity, on a continuous basis in normal commercial operating conditions, substantially at the ratings for which it was designed after taking into account all Modifications to such Unit and the Facility Related Common Facilities made in accordance with this Facility Lease (ordinary wear and tear excepted); (d) such Unit and the Facility Related Common Facilities shall be in material compliance with all requirements of manufacturers required for the maintenance in full force and effect of any material warranty then in effect with respect to such Unit and the FacilityRelated Common Facilities; (e) no Component of such Unit or the Facility Related Common Facilities shall be a temporary Component and any replacement Replacement Component of such Unit or the Facility Related Common Facilities shall satisfy the standards of Section 7.2; and (f) the Facility Lessee, at the request of the Owner Lessor, shall sell pursuant to Section 8.3 (subject to all existing encumbrances) to the Owner Lessor (or its designee or transfereedesignee) all Optional Modifications which are Severable Modifications or at the then Fair Market Sales Value thereof, determined by agreement between the Facility Lessee and the Owner Lessor or, absent agreement, by an appraisal conducted according to the Appraisal Procedures, (i) an undivided interest in such Optional Modifications which are all Severable Modifications made to such Unit equal to the Facility which are owned by Unit Percentage, and (ii) to the Facility Lessee extent such Modifications relate to such Unit, an undivided interest in all Severable Modifications to the Related Common Facilities equal to the Common Facilities Percentage (other than than, in either case, Severable Modifications referred to in the first sentence of Section 8.3). In addition The appraiser's fees and expenses incurred pursuant to the foregoing conditions, the Facility Lessee, or an Affiliate thereof, this clause (f) shall enter into an agreement or other arrangements reasonably acceptable to be paid by the Owner Lessor, which arrangements, however, shall not be a condition precedent to the return of the Facility Interest (the "Support Arrangements") to provide the Owner Lessor with the Support Services; provided, that the Facility Lessee shall be bound to provide Support Services only to the extent the Facility Lessee or any domestic, unregulated Affiliate thereof is capable of providing such services and is either in the business of providing such Support Services to others or performing such Support Services on its own behalf, and only to the extent that such services cannot reasonably and timely be obtained by the Owner Lessor or its Affiliates from third parties. Support Arrangements shall provide for the provision of Support Services during and after the expiration of this Facility Lease, and will provide for fair market value compensation from time to time to be paid to the Facility Lessee, or an Affiliate thereof, for the performance of such Support Services, periodically in advance on no less than on an annual basis, for such rights and the performance of other services and all such arrangements shall terminate upon expiration or early termination of the Site Lease Term or at the Owner Lessor's option. Within 180 days after the expiration or termination of this Facility Lease, the Owner Lessor shall notify the Facility Lessee of the material elements of the Support Services that the Owner Lessor desires the Facility Lessee, or its Affiliate, to continue to perform. Following such notice, the Facility Lessee and the Owner Lessor shall negotiate in good faith the terms of the fair market value, performance standards, compensation and other terms of such specified Support Services, including the circumstances under which the Facility Lessee and its Affiliates shall be released of any further obligation to provide such Support Services, and enter into contracts for the performance of the Support Services upon any such negotiated terms. Other than the Support Services covered by such contracts, the Facility Lessee will have no further obligation to provide Support Services.

Condition Upon Return. At On the time Date of a return of Return, the Facility Interest by the Facility Lessee pursuant to Section 5.1 (other than a return pursuant to Section 13 or 14), agrees that the following conditions (the “Return Conditions”) shall be complied withsatisfied (unless waived by the Lessor), all at the whereupon this Facility Lessee's sole cost and expenseLease shall terminate: (a) the Facility will be in at least as good condition as if it had been maintained, repaired and operated during the Facility Lease Term in compliance with the provisions of this Facility Lease (including, without limitation, the provisions of Section 7), ordinary wear and tear excepted, and there Undivided Interest shall be no deferred maintenance returned to the Lessor free and clear of all Liens (other than Permitted Liens of the type described in clauses (a) (but only in respect of taxes attributable to periods following the FacilityDate of Return), (d), (e), (f) or (g) of the definition thereof) and the Facility and the Ancillary Facilities shall be in good working order and maintained in accordance with the standards required under Section 7 hereof as of and on the date returned; (b) the Facility Interest Lessee shall be free deliver to the Lessor any manuals, books, records and clear of all Liens other than Permitted Liens set forth in clauses (ii), (iii), (iv), (vi), (viii) and (ix) contracts necessary or commercially advisable for the use of the definition thereofFacility(except to the extent that such manuals, books, records or contracts relate to other facilities owned or operated by the Lessee and cannot be copied; providedprovided that in the event that such manuals, howeverbooks, that nothing in this Section 5.2(b) shall limit records or contracts relate to another such facility and cannot be copied, such manuals, books, records and contracts are otherwise freely available to the obligations Lessor pursuant to the terms of the Facility Lessee under Section 10.1 of Support Agreement or through other arrangements satisfactory to the Participation AgreementOwner Participant); (c) the Facility shall have at least the capability and the functional ability, as certified by an independent professional engineer selected pursuant to the Independent Engineer Selection Procedure, ability to generate electricity, on a continuous basis in normal commercial operating conditions, substantially at the ratings rating for which it was designed (i) after taking into account normal performance degradation as a function of (A) time, (B) ordinary wear and tear and (C) all Required Modifications to the Facility made in accordance with this Facility Lease Lease, and (ordinary wear ii) without derogation of the provisions of Section 7.1 or 7.3, in compliance with all Environmental Laws, Permits, the Consent Decree and tear excepted)any other administrative or judicial orders, agreements or decrees by, with or of any Governmental Entity; (d) the Facility Lessee shall be in material compliance cooperate with, and assist, the Lessor with all requirements reasonable requests of manufacturers required Lessor for the maintenance in full force and effect purposes of any material warranty then in effect with respect enabling the Lessor, to the Facilityextent permitted by Applicable Law, to obtain all environmental credits, benefits, offsets and allowances (including emission allowances under either Title IV of the Federal Clean Air Act (42 U.S.C. § 7401 et seq.), any applicable emission budget programs or any other state, regional or federal emission trading program) available under Environmental Laws and attributable to the Undivided Interest on a prospective basis at the Lessor’s expense; (e) no Component the Lessee shall, to the extent permitted by Applicable Law, reasonably cooperate with, and assist, the Lessor (including cooperating with all reasonable requests of the Facility Owner Participant, the Lessor or its designee, transferee or assignee) to enable the Lessor or its designee, transferee or assignee to obtain, by assignment or otherwise, or to become a co-permittee in respect of, to the extent permitted by the provisions of such Permits, an undivided interest equal to the Lessor’s Percentage in all Permits of any Governmental Entities, and all filings with and authorizations from the Midwest Independent System Operator or any applicable regional transmission organization or independent system operator, in each case that are or will be required as of the Date of Return by Applicable Law or are otherwise necessary or advisable to be obtained by Owner Participant, the Lessor or its designee, transferee or assignee in connection with its use, ownership, operation and maintenance of the Undivided Interest, the Ground Interest and the Ancillary Facilities Interest on or after such Return Date. Each party shall be a temporary Component responsible for its own costs and any replacement Component of expenses in connection with the Facility shall satisfy the standards of activities contemplated by this Section 7.2; and5.2(e); (f) the Facility Lessee, at the request of the Owner Lessor, shall sell pursuant to Section 8.3 (subject to all existing encumbrances) to the Owner Lessor (or its designee designee, transferee or transfereeassignee at the then fair market value thereof, determined by agreement between the Lessee and the Lessor or, absent such agreement, by an appraisal (the fees and expenses to be for the account of the Lessee) all Optional Modifications which are Severable Modifications or conducted according to the Appraisal Procedure, an undivided interest equal to the Lessor’s Percentage in such Optional Modifications which are (i) the Lessee’s right, title and interest in and to any or all Severable Modifications made to the Facility which that are owned by the Lessee, and (ii) any and all supplies, spare parts, consumables, safety equipment, and other parts or materials that are on the Facility Site; and (g) the Lessee (shall deliver to the Lessor and the Owner Participant a report of a Phase I Environmental Survey of the Facility and the Facility Site and, if as a result of such survey, facts are revealed that would reasonably necessitate a report of a Phase II Environmental Survey, a Phase II Environmental Survey, not later than 12 months prior to the Date of Return or, in connection with a return other than Severable Modifications referred pursuant to in Section 5.1, not later than the first sentence date such Undivided Interest is returned. The Phase I Environmental Survey shall evaluate the environmental condition of Section 8.3). In addition to and the foregoing conditionspresence or absence of any Environmental Conditions at the Facility and the Facility Site following, at a minimum, the ASTM Standard Practice – Phase I Environmental Site Assessment Process, and include an audit of the compliance of the Facility Lesseeand Facility Site with applicable Environmental Laws, Permits, the Consent Decree and any other administrative or an Affiliate thereofjudicial orders, agreements or decrees by, with or of any Governmental Entity. The surveys shall enter into an agreement or other arrangements be conducted and prepared by a reputable and nationally recognized environmental consulting firm (selected by the Lessee and reasonably acceptable to the Owner LessorParticipant) and be in form and scope reasonably satisfactory to the Owner Participant. The Phase I Environmental Survey and, which arrangementsif necessary, the Phase II Environmental Survey, shall be completed not more than ninety (90) days prior to the date the reports of the surveys are provided to the Lessor and Owner Participant. The cost and expense of preparing and providing such surveys shall be for the account of the Lessee. If, as a result of either such survey, any action (including, any cleaning, investigation, abatement, correction, removal or remediation) is required in order that the Facility and the Facility Site are in compliance with applicable Environmental Laws, Permits, the Consent Decree and any other administrative or judicial orders, agreements or decrees by, with or of any Governmental Entity, and the Return Conditions, the Lessee shall, at its own expense, (i) provide the Owner Participant and, so long as the Notes are outstanding and the Lien of the Indenture shall not have been discharged, the Indenture Trustee, within 90 days after the Lessee has delivered, or caused to be delivered, to the Lessor the surveys, with a plan, reasonably satisfactory to the Owner Participant and, if applicable, the Indenture Trustee, detailing actions required for the Facility and the Facility Site to be returned in compliance with the Return Conditions and applicable Environmental Laws, Permits, the Consent Decree and any other administrative or judicial orders, agreements or decrees by, with or of any Governmental Entity, and (ii) complete all actions under the plan as promptly as is reasonably practicable and without materially adversely affecting the continued operation of the Facility. The actions referred to in this Section 5.2(g) shall be completed prior to the expiration of the Basic Term or any then existing Renewal Term or early termination thereof, as applicable, in compliance with Environmental Laws, Permits, the Consent Decree and any other administrative or judicial orders, agreements or decrees by, with or of any Governmental Entity; provided, however, shall not be a condition precedent to the return of the Facility Interest (the "Support Arrangements") to provide the Owner Lessor with the Support Services; provided, that the Facility Lessee shall be bound to provide Support Services only to the extent the Facility Lessee or if any domestic, unregulated Affiliate thereof is capable of providing such services and is either in the business of providing such Support Services to others or performing such Support Services on its own behalf, and only to the extent that such services action cannot reasonably and timely be obtained by the Owner Lessor or its Affiliates from third parties. Support Arrangements shall provide for the provision of Support Services during and after the expiration of this Facility Lease, and will provide for fair market value compensation from time to time to be paid completed prior to the Facility Lessee, or an Affiliate thereof, for the performance of such Support Services, periodically in advance on no less than on an annual basis, for such rights and the performance of other services and all such arrangements shall terminate upon expiration or early termination of such Lease Term, and if continued operation of the Site Lease Term or at Facility would not reasonably be expected to result in strict liability being imposed upon the Lessor, the Owner Lessor's option. Within 180 days Participant, the OP Guarantor or the Lessee, and if the Guarantor, on the Date of Return, is rated not less than Investment Grade, then the Lessee shall complete such action as promptly thereafter as is reasonably practicable during the period of such action following the end of such Lease Term, and provided, further that any such action shall be completed no later than twelve months after the expiration or Date of Return. Neither the provision of the surveys contemplated by this Section 5.2(g), nor any other provision of this Section 5.2(g), shall alter the obligations of any party to the Operative Documents, including those set forth in Sections 5 and 9.1 of the Participation Agreement. The obligations of the Lessee set forth in this Section 5.2(g) shall survive the termination of this Facility Lease and the expiration of the applicable Lease Term. Nothing herein contained shall obligate the Lessor to remove the Facility or the Ancillary Facilities or any portion thereof from the Facility Site. Failure to satisfy the conditions for the return of the Undivided Interest, the Ground Interest and the Ancillary Facilities Interest set forth above shall constitute a Lease Event of Default. The Site Lease, Support Agreement and the Owner Lessor Ancillary Facilities Lease shall notify the Facility Lessee not terminate solely as a result of a return of the material elements of Undivided Interest pursuant to this Section 5, but shall continue and the Support Services that the Owner Lessor desires the Facility Lessee, or its Affiliate, to Lessee shall continue to perform. Following be obligated under such noticeagreements, the Facility Lessee and the Owner Lessor shall negotiate as applicable, in good faith the terms of the fair market value, performance standards, compensation and other terms of such specified Support Services, including the circumstances under which the Facility Lessee and its Affiliates shall be released of any further obligation to provide such Support Services, and enter into contracts for the performance of the Support Services upon any such negotiated accordance with their respective terms. Other than the Support Services covered by such contracts, the Facility Lessee will have no further obligation to provide Support Services.