Common use of Nonappropriation of Funds Clause in Contracts

Nonappropriation of Funds. (a) In the event no funds or insufficient funds are appropriated and budgeted for any [Commonwealth/Owner] fiscal period for payments due under this Agreement, then, as more fully set out in clause (b) of this Section, Owner will notify Issuer and Trustee or their assignees of such occurrence and this Agreement shall terminate as of the last day of [Commonwealth’s/Owner’s] fiscal period for which appropriations were received without penalty or expense to the [Commonwealth or the Owner/Owner] of any kind whatsoever. In the event of such termination, Owner agrees to peaceably surrender possession of the Project in good operating condition, subject to normal wear and tear, to the Issuer or its assignee on the date of such termination. Issuer or its assignee will have all legal and equitable rights and remedies to take possession of the Project (b) If, on the thirtieth (30th) day after the commencement of any fiscal period of the [Commonwealth/Owner], sufficient funds have not been appropriated for the purpose of making all of the Lease Payments scheduled to be paid in such fiscal period, Owner shall cause to be delivered written notice thereof (a “notice of nonappropriation”) to the Issuer and the Trustee or their assignees within ten (10) calendar days after such thirtieth (30th) day. Upon Issuer’s receipt of a notice of nonappropriation, this Agreement shall terminate as of the end of the [Commonwealth’s/Owner’s] fiscal period just ended with the effect set forth in clause (a) of this Section; provided, however, such termination shall not become effective as of the end of such [Commonwealth/Owner] fiscal period just ended if, within ten (10) calendar days of the thirtieth (30th) day after the end of such fiscal period just completed, Owner shall cause to be 1 In Sections 2.4 and 2.7 bracketed references should be to the Commonwealth for state agencies and to Owner for governmental units that do not receive state appropriations. Governmental units that receive state appropriations and also have independent revenue sources should consult with the PennSEF Program as to the appropriate approach to completing these Sections. delivered to the Issuer and the Trustee or their assignees a written statement to the effect that it reasonably expects sufficient funds for the then-current [Commonwealth/Owner] fiscal period to be appropriated for this Agreement, and in such event the term shall continue into the then- current [Commonwealth/Owner] fiscal period so long, but only so long, as an appropriation becomes available for which to make the payments. (c) Notwithstanding the foregoing, Owner agrees that (i) it will not cancel this Agreement under the provisions of this Section 2.7 if any funds are appropriated to it, or by it, for the acquisition, retention, or operation of the Project or other equipment and property performing functions similar to the Project for the fiscal period following the fiscal period in which funds were appropriated; and (ii) it will not during the term of this Agreement give priority in the application of funds to any other functionally similar project.

Nonappropriation of Funds. (a) A. In the event that no funds or insufficient funds are appropriated and budgeted for in any [Commonwealth/Owner] fiscal period Commonwealth Fiscal Period for payments due under this Agreement, then, as more fully set out in clause (b) of this Section, Owner then the Funding Agency will immediately notify Issuer and Trustee FINANCER or their assignees its assignee of such occurrence occurrence, and this Agreement shall terminate as of on the last day of [Commonwealth’s/Owner’s] fiscal period Commonwealth’s Fiscal Period for which appropriations were received without penalty or expense to the [Commonwealth or the Owner/Owner] Funding Agency of any kind whatsoever. In the event of such termination, Owner the Funding Agency agrees to peaceably peaceable surrender possession of the Project all ECMs requested by FINANCER in good operating condition, subject to normal wear and tear, tear to the Issuer FINANCER or its assignee on the date of such termination, packed for shipment in accordance with manufacturer’s published specifications and with freight and insurance prepaid to FINANCER’s or its assignee’s nearest warehouse location in the United States, such location to be specified by FINANCER or its assignee. Issuer FINANCER or its assignee will have all legal and equitable rights and remedies to take possession of the ProjectECMs. Upon such termination, title to the ECMs will revert to FINANCER or its assignee. (b) If, B. If on the thirtieth (30th) day after the commencement of any fiscal period of the [Commonwealth/Owner]Fiscal Period, sufficient funds have not been appropriated for the purpose of making all of the Lease Payments payments scheduled to be paid in such fiscal periodFiscal Period, Owner the Funding Agency shall cause to be delivered written notice thereof (a “notice of nonappropriationnon-appropriation”) to the Issuer and the Trustee FINANCER or their assignees its assignee within ten (10) calendar days after such thirtieth (30th) day. Upon IssuerFINANCER’s receipt of a notice of nonappropriationnon-appropriation, this Agreement shall terminate as of the end of the [Commonwealth’s/Owner’s] fiscal period Fiscal Period just ended with the effect set forth in clause (a) of this Sectionended; provided, however, that such termination shall not become effective as of the end of such [Commonwealth/Owner] fiscal period Fiscal Period just ended if, within ten (10) calendar days of the thirtieth (30th) day after the end of such fiscal period Fiscal Period just completed, Owner the Funding Agency shall cause to be 1 In Sections 2.4 and 2.7 bracketed references should be to the Commonwealth for state agencies and to Owner for governmental units that do not receive state appropriations. Governmental units that receive state appropriations and also have independent revenue sources should consult with the PennSEF Program as to the appropriate approach to completing these Sections. delivered to the Issuer and the Trustee or their assignees FINANCER a written statement to the effect that it reasonably expects sufficient funds for the then-current [Commonwealth/Owner] fiscal period Fiscal Period to be appropriated for this Agreement, and in such event that the term shall continue into the then- then-current [Commonwealth/Owner] fiscal period Fiscal Period so long, but only so long, as an appropriation becomes available for from which to make the payments. (c) . Notwithstanding the foregoing, Owner the Funding Agency agrees that (i) it will not cancel this Agreement under the provisions of this Section 2.7 paragraph if any funds are appropriated to it, or by it, for the acquisition, retention, or operation of the Project or other equipment and property performing functions similar to the Project this Guaranteed Energy Saving Act project for the fiscal period Fiscal Period following the fiscal period Fiscal Period in which funds were appropriated; and (ii) it will not during the term of this Agreement give priority in the application of funds to any other functionally similar project.

Nonappropriation of Funds. (a) In the event no funds or insufficient funds are appropriated and budgeted for any [Commonwealth/Owner] fiscal period for payments due The payment obligations of Purchaser under this Agreement, then, as more fully set out in clause (b) of this Section, Owner will notify Issuer and Trustee or their assignees of such occurrence and this Agreement shall constitute a current expense of Purchaser. Any non-substitution, notification, time limitation, or other provision in this Agreement restricting or limiting Purchaser’s right to terminate the Agreement upon a Nonappropriation Event (defined below) shall be enforceable only to the extent that such restriction or limitation is permitted by applicable law and would not cause Purchaser’s obligation to make payments under the Agreement to be deemed or construed as a debt of Purchaser in contravention of any constitutional, statutory or other legal requirement governing the creation of indebtedness by Purchaser. Nothing in this Agreement shall be deemed a pledge of general tax revenues, funds or monies of Purchaser. Notwithstanding anything contained in this Agreement to the contrary, if a Nonappropriation Event occurs, this Agreement shall automatically terminate on the last day of [Commonwealth’s/Owner’s] the fiscal period for which appropriations were received received, without penalty or expense to the [Commonwealth or the Owner/Owner] Purchaser of any kind whatsoever, except as to the payments or portions thereof for which funds have been appropriated and budgeted. In Seller may, immediately upon becoming aware of a Nonappropriation Event or upon Purchaser’s failure to make a payment under this Agreement as a result of a Nonappropriation Event, re-subscribe, sell, transfer, assign and convey to any third party the event electrical energy comprising the Purchaser’s Percentage and any and all Net Energy Billing Credits and Environmental Attributes associated therewith without penalty or expense to Seller so long as any such re-subscription, sale, transfer, assignment, or conveyance has an effective date as of such terminationthe automatic termination date, Owner and Purchaser hereby agrees to peaceably surrender possession reasonably cooperate with Seller to effectuate and evidence the termination of this Agreement, the Project in good operating conditioninterconnection agreement with the Utility, subject and any other contract or agreement contemplated herein. All obligations of Purchaser and Seller accruing prior to normal wear and tear, to the Issuer or its assignee on the such automatic termination date of will survive any such termination. Issuer or its assignee will have all legal and equitable rights and remedies to take possession “Nonappropriation Event” means the failure of the Project legislative body (bas such term is used in 20-A M.R.S. §§ 2307 and 1481-A, et seq., as well as any successor provision) If, on the thirtieth (30th) day after the commencement of any fiscal period of the [Commonwealth/Owner], sufficient funds have not been appropriated for the purpose of making all of the Lease Payments scheduled Purchaser to be paid in such fiscal period, Owner shall cause to be delivered written notice thereof (a “notice of nonappropriation”) to the Issuer and the Trustee or their assignees within ten (10) calendar days after such thirtieth (30th) day. Upon Issuer’s receipt of a notice of nonappropriation, this Agreement shall terminate as of the end of the [Commonwealth’s/Owner’s] fiscal period just ended with the effect set forth in clause (a) of this Section; provided, however, such termination shall not become effective as of the end of such [Commonwealth/Owner] fiscal period just ended if, within ten (10) calendar days of the thirtieth (30th) day after the end of such fiscal period just completed, Owner shall cause to be 1 In Sections 2.4 and 2.7 bracketed references should be to the Commonwealth for state agencies and to Owner for governmental units that do not receive state appropriations. Governmental units that receive state appropriations and also have independent revenue sources should consult with the PennSEF Program as to the appropriate approach to completing these Sections. delivered to the Issuer and the Trustee or their assignees a written statement to the effect that it reasonably expects sufficient funds for the then-current [Commonwealth/Owner] fiscal period to be appropriated for payment Purchaser’s obligations under this Agreement, and in such event the term shall continue into the then- current [Commonwealth/Owner] fiscal period so long, but only so long, as an appropriation becomes available for which to make the payments. (c) Notwithstanding the foregoing, Owner agrees that (i) it will not cancel this Agreement under the provisions of this Section 2.7 if any funds are appropriated to it, or by it, for the acquisition, retention, or operation of the Project or other equipment and property performing functions similar to the Project for the fiscal period following the fiscal period in which funds were appropriated; and (ii) it will not during the term of this Agreement give priority in the application of funds to any other functionally similar project.

Nonappropriation of Funds. (a) 6.1 In the event no School District funds or insufficient School District funds are appropriated and budgeted for in any [Commonwealth/Owner] fiscal period School District Fiscal Year for payments due under this AgreementContract, then, as more fully set out in clause (b) of this Section, Owner then the School District will immediately notify Issuer and Trustee ESCO or their assignees its assignee of such occurrence and this Agreement Contract shall terminate as of on the last day of [Commonwealth’s/Owner’s] fiscal period School District's Fiscal Year for which appropriations were received without penalty or expense to the [Commonwealth or the Owner/Owner] School District of any kind whatsoever. In . 6.1.1 If, in the event that ESCO has a rightful claim to title of the Selected ECMs at the time of such termination, Owner then the School District agrees to peaceably surrender possession of all the Project Selected ECMs in good operating condition, subject to normal wear and tear, to the Issuer ESCO or its assignee on the date of such termination. Issuer ESCO or its assignee will have all legal and equitable rights and remedies to take possession of the ProjectSelected ECMs. Upon such termination, title to the Selected ECMs will revert to ESCO or its assignee. (b) 6.2 If, on the thirtieth (30th) day after the commencement of any fiscal period of the [Commonwealth/Owner]Fiscal Year, sufficient funds have not been appropriated for the purpose of making all of the Lease Payments payments scheduled to be paid in such fiscal periodFiscal Year, Owner the School District shall cause to be delivered written notice thereof (a “notice Notice of nonappropriationNonappropriation”) to the Issuer and the Trustee or their assignees ESCO within ten (10) calendar days after such thirtieth (30th) day. Upon Issuer’s ESCO's receipt of a notice of nonappropriation, this Agreement Contract shall terminate terminate, as of the end of the [Commonwealth’s/Owner’s] fiscal period Fiscal Year just ended with the effect set forth in clause (a) of this Sectionended; provided, however, such termination shall not become effective as of the end of such [Commonwealth/Owner] fiscal period Fiscal Year just ended if, within ten (10) calendar days of the thirtieth (30th) day after the end of such fiscal period Fiscal Year just completed, Owner the School District shall cause to be 1 In Sections 2.4 and 2.7 bracketed references should be to the Commonwealth for state agencies and to Owner for governmental units that do not receive state appropriations. Governmental units that receive state appropriations and also have independent revenue sources should consult with the PennSEF Program as to the appropriate approach to completing these Sections. delivered to the Issuer and the Trustee or their assignees ESCO a written statement to the effect that it reasonably expects sufficient funds for the then-current [Commonwealth/Owner] fiscal period Fiscal Year to be appropriated for this Agreementtherefore, and in such event the term shall continue into the then- then-current [Commonwealth/Owner] fiscal period Fiscal year so long, but only so long, as an appropriation becomes available for from which to make the payments. (c) Notwithstanding the foregoing, Owner agrees that (i) it will not cancel this Agreement under the provisions of this Section 2.7 if any funds are appropriated to it, or by it, for the acquisition, retention, or operation of the Project or other equipment and property performing functions similar to the Project for the fiscal period following the fiscal period in which funds were appropriated; and (ii) it will not during the term of this Agreement give priority in the application of funds to any other functionally similar project.

Nonappropriation of Funds. (a) In the event no funds or insufficient funds are appropriated and budgeted for budgeted, or funds are otherwise not available out of current revenues of Lessee by any [Commonwealth/Owner] means whatsoever, in any fiscal period for payments Rent due under this AgreementLease, then, as more fully set out in clause (b) of this Section, Owner then Lessee will immediately notify Issuer and Trustee Lessor or their assignees its assignee of such occurrence occurrence, and this Agreement Lease shall terminate as of on the last day of [Commonwealth’s/Owner’s] the fiscal period for which appropriations were received without penalty or expense to the [Commonwealth or the Owner/Owner] Lessee of any kind whatsoever, except as to the portions of Rent Payments herein agreed upon for which funds shall have been appropriated and budgeted or are otherwise available. In the event of such termination, Owner Lessee agrees to peaceably surrender possession of the Project in good operating condition, subject Equipment to normal wear and tear, to the Issuer Lessor or its assignee on the date of such termination, in accordance with the provisions of Paragraph 9 of this Lease. Issuer or its assignee Lessor will have all legal and equitable rights and remedies to take possession of the ProjectEquipment. (b) If, on the thirtieth (30th) day after the commencement of any fiscal period of the [Commonwealth/Owner], sufficient funds have not been appropriated for the purpose of making all of the Lease Payments scheduled to be paid in such fiscal period, Owner shall cause to be delivered written notice thereof (a “notice of nonappropriation”) to the Issuer and the Trustee or their assignees within ten (10) calendar days after such thirtieth (30th) day. Upon Issuer’s receipt of a notice of nonappropriation, this Agreement shall terminate as of the end of the [Commonwealth’s/Owner’s] fiscal period just ended with the effect set forth in clause (a) of this Section; provided, however, such termination shall not become effective as of the end of such [Commonwealth/Owner] fiscal period just ended if, within ten (10) calendar days of the thirtieth (30th) day after the end of such fiscal period just completed, Owner shall cause to be 1 In Sections 2.4 and 2.7 bracketed references should be to the Commonwealth for state agencies and to Owner for governmental units that do not receive state appropriations. Governmental units that receive state appropriations and also have independent revenue sources should consult with the PennSEF Program as to the appropriate approach to completing these Sections. delivered to the Issuer and the Trustee or their assignees a written statement to the effect that it reasonably expects sufficient funds for the then-current [Commonwealth/Owner] fiscal period to be appropriated for this Agreement, and in such event the term shall continue into the then- current [Commonwealth/Owner] fiscal period so long, but only so long, as an appropriation becomes available for which to make the payments. (c) Notwithstanding the foregoing, Owner Lessee agrees that (i) that it will not cancel this Agreement Lease under the provisions of this Section 2.7 Paragraph if any funds are appropriated to it, or by it, for the acquisition, retention, retention or operation of the Project Equipment or other equipment and property performing functions similar to the Project Equipment for the fiscal period following the fiscal period in which funds were appropriated; such termination occurs or the next succeeding fiscal period thereafter, and (ii) that it will not not, during the term a period of this Agreement five (5) years after such termination occurs, appropriate funds or otherwise give priority in the application of funds to any other functionally similar projectequipment. This Paragraph 4 will not be construed so as to permit Lessee to terminate this Lease in order to acquire any other equipment or to allocate funds directly or indirectly to perform essentially the same function for which the Equipment is intended. (c) Notwithstanding any provision to the contrary contained in this Lease, it is expressly understood and agreed that Rent payments to be made in each fiscal year shall be payable only out of current revenues of Lessee for that year lawfully budgeted and appropriated during such year.

Nonappropriation of Funds. (a) 6.1 In the event no School District funds or insufficient School District funds are appropriated and budgeted for in any [Commonwealth/Owner] fiscal period School District Fiscal Year for payments due under this AgreementContract, then, as more fully set out in clause (b) of this Section, Owner then the School District will immediately notify Issuer and Trustee ESCO or their assignees its assignee of such occurrence and this Agreement Contract shall terminate as of on the last day of [Commonwealth’s/Owner’s] fiscal period School District's Fiscal Year for which appropriations were received without penalty or expense to the [Commonwealth or the Owner/Owner] School District of any kind whatsoever. In . 6.1.1 If, in the event that ESCO has a rightful claim to title of the Selected ECMs at the time of such termination, Owner then the School District agrees to peaceably surrender possession of all the Project Selected ECMs in good operating condition, subject to normal wear and tear, to the Issuer ESCO or its assignee on the date of such termination. Issuer ESCO or its assignee will have all legal and equitable rights and remedies to take possession of the ProjectSelected ECMs. Upon such termination, title to the Selected ECMs will revert to ESCO or its assignee. (b) 6.2 If, on the thirtieth (30th) day after the commencement of any fiscal period of the [Commonwealth/Owner]Fiscal Year, sufficient funds have not been appropriated for the purpose of making all of the Lease Payments payments scheduled to be paid in such fiscal periodFiscal Year, Owner the School District shall cause to be delivered written notice thereof (a “notice "Notice of nonappropriation”Nonappropriation") to the Issuer and the Trustee or their assignees ESCO within ten (10) calendar days after such thirtieth (30th) day. Upon Issuer’s ESCO's receipt of a notice of nonappropriation, this Agreement Contract shall terminate terminate, as of the end of the [Commonwealth’s/Owner’s] fiscal period Fiscal Year just ended with the effect set forth in clause (a) of this Sectionended; provided, however, such termination shall not become effective as of the end of such [Commonwealth/Owner] fiscal period Fiscal Year just ended if, within ten (10) calendar days of the thirtieth (30th) day after the end of such fiscal period Fiscal Year just completed, Owner the School District shall cause to be 1 In Sections 2.4 and 2.7 bracketed references should be to the Commonwealth for state agencies and to Owner for governmental units that do not receive state appropriations. Governmental units that receive state appropriations and also have independent revenue sources should consult with the PennSEF Program as to the appropriate approach to completing these Sections. delivered to the Issuer and the Trustee or their assignees ESCO a written statement to the effect that it reasonably expects sufficient funds for the then-current [Commonwealth/Owner] fiscal period Fiscal Year to be appropriated for this Agreementtherefore, and in such event the term shall continue into the then- then-current [Commonwealth/Owner] fiscal period Fiscal year so long, but only so long, as an appropriation becomes available for from which to make the payments. (c) Notwithstanding the foregoing, Owner agrees that (i) it will not cancel this Agreement under the provisions of this Section 2.7 if any funds are appropriated to it, or by it, for the acquisition, retention, or operation of the Project or other equipment and property performing functions similar to the Project for the fiscal period following the fiscal period in which funds were appropriated; and (ii) it will not during the term of this Agreement give priority in the application of funds to any other functionally similar project.

Nonappropriation of Funds. (a) In the event no funds or insufficient funds are appropriated and budgeted for budgeted, or funds are otherwise not available out of current revenues of Lessee, in any [Commonwealth/Owner] fiscal period for payments Lease Payments due under this AgreementLease, then, as more fully set out in clause (b) of this Section, Owner then Lessee will immediately notify Issuer and Trustee Lessor or their assignees its assignee of such occurrence and this Agreement Lease shall terminate as of on the last day of [Commonwealth’s/Owner’s] the fiscal period for which appropriations were received without penalty or expense to the [Commonwealth or the Owner/Owner] Lessee of any kind whatsoever, except as to the portions of Lease Payments herein agreed upon for which funds shall have been appropriated and budgeted or are otherwise available. In the event of such termination, Owner Lessee agrees to peaceably and immediately surrender possession of the Project in good operating condition, subject Equipment to normal wear and tear, to the Issuer Lessor or its assignee on the date of such termination. Issuer , packed for shipment in accordance with manufacturer specifications and freight prepaid and insured to any location in the continental United States designated by Lessor and to execute any and all documents necessary or convenient to memorialize the relinquishment of all of Lessee’s rights, title and or interest in such Equipment to Lessor or its assignee successors and assigns. Lessor will have all legal and equitable rights and remedies to take possession of the Project (b) If, on the thirtieth (30th) day after the commencement of any fiscal period of the [Commonwealth/Owner], sufficient funds have not been appropriated for the purpose of making all of the Lease Payments scheduled to be paid in such fiscal period, Owner shall cause to be delivered written notice thereof (a “notice of nonappropriation”) to the Issuer and the Trustee or their assignees within ten (10) calendar days after such thirtieth (30th) dayEquipment. Upon Issuer’s receipt of a notice of nonappropriation, this Agreement shall terminate as of the end of the [Commonwealth’s/Owner’s] fiscal period just ended with the effect set forth in clause (a) of this Section; provided, however, such termination shall not become effective as of the end of such [Commonwealth/Owner] fiscal period just ended if, within ten (10) calendar days of the thirtieth (30th) day after the end of such fiscal period just completed, Owner shall cause to be 1 In Sections 2.4 and 2.7 bracketed references should be to the Commonwealth for state agencies and to Owner for governmental units that do not receive state appropriations. Governmental units that receive state appropriations and also have independent revenue sources should consult with the PennSEF Program as to the appropriate approach to completing these Sections. delivered to the Issuer and the Trustee or their assignees a written statement to the effect that it reasonably expects sufficient funds for the then-current [Commonwealth/Owner] fiscal period to be appropriated for this Agreement, and in such event the term shall continue into the then- current [Commonwealth/Owner] fiscal period so long, but only so long, as an appropriation becomes available for which to make the payments. (c) Notwithstanding the foregoing, Owner Lessee agrees that (i) it will not cancel this Agreement Lease under the provisions of this Section 2.7 if any funds are appropriated to it, or by it, for the acquisition, retention, retention or operation of the Project Equipment or other equipment and property performing functions similar to the Project Equipment for the fiscal period following the fiscal period in which funds were appropriated; such termination occurs or the next succeeding fiscal period thereafter. Notwithstanding any provision to the contrary contained in this Lease, it is expressly understood and (ii) it will not agreed that Lease Payments to be made in each fiscal year shall be payable only out of current revenues of Lessee for that fiscal year lawfully budgeted and appropriated during the term of this Agreement give priority in the application of funds to any other functionally similar projectsuch year.

Nonappropriation of Funds. (a) In the event no Agency funds or insufficient Agency funds are appropriated and budgeted for in any [Commonwealth/Owner] fiscal period County Fiscal Year for payments due under this AgreementContract, then, as more fully set out in clause (b) of this Section, Owner then Agency will immediately notify Issuer and Trustee ESCO or their assignees its assignee of such occurrence and this Agreement Contract shall terminate as of on the last day of [Commonwealth’s/Owner’s] fiscal period County's Fiscal Year for which appropriations were received without penalty or expense to the [Commonwealth or the Owner/Owner] Agency of any kind whatsoever. In the event of such termination, Owner Agency agrees to peaceably surrender possession of all the Project Equipment in good operating condition, subject to normal wear and tear, tear to the Issuer ESCO or its assignee on the date of such termination. Issuer ESCO or its assignee will have all legal and equitable rights and remedies to take possession of the Project (b) Equipment. Upon such termination, title to the Equipment will revert to ESCO or its assignee. If, on the thirtieth (30th) day after the commencement of any fiscal period of the [Commonwealth/Owner]Fiscal Year, sufficient funds have not been appropriated for the purpose of making all of the Lease Payments payments scheduled to be paid in such fiscal periodFiscal Year, Owner Agency shall cause to be delivered written notice thereof (a “"notice of nonappropriation”non-appropriation") to the Issuer and the Trustee or their assignees ESCO within ten (10) calendar days after such thirtieth (30th) day. Upon Issuer’s ESCO's receipt of a notice of nonappropriationnon-appropriation, this Agreement Contract shall terminate terminate, as of the end of the [Commonwealth’s/Owner’s] fiscal period Fiscal Year just ended with the effect set forth in clause (a) of this Sectionended; provided, however, such termination shall not become effective as of the end of such [Commonwealth/Owner] fiscal period Fiscal Year just ended if, within ten (10) calendar days of the thirtieth (30th30) day after the end of such fiscal period Fiscal Year just completed, Owner Agency shall cause to be 1 In Sections 2.4 and 2.7 bracketed references should be to the Commonwealth for state agencies and to Owner for governmental units that do not receive state appropriations. Governmental units that receive state appropriations and also have independent revenue sources should consult with the PennSEF Program as to the appropriate approach to completing these Sections. delivered to the Issuer and the Trustee or their assignees ESCO a written statement to the effect that it reasonably expects sufficient funds for the then-current [Commonwealth/Owner] fiscal period Fiscal Year to be appropriated for this Agreementtherefore, and in such event the term shall continue into the then- then-current [Commonwealth/Owner] fiscal period Fiscal year so long, but only so long, as an appropriation becomes available for from which to make the payments. (c) Notwithstanding the foregoing, Owner agrees that (i) it will not cancel this Agreement under the provisions of this Section 2.7 if any funds are appropriated to it, or by it, for the acquisition, retention, or operation of the Project or other equipment and property performing functions similar to the Project for the fiscal period following the fiscal period in which funds were appropriated; and (ii) it will not during the term of this Agreement give priority in the application of funds to any other functionally similar project.

Nonappropriation of Funds. (a) 6.1 In the event no City funds or insufficient City funds are appropriated and budgeted for in any [Commonwealth/Owner] fiscal period City Fiscal Year for payments due under this AgreementContract, then, as more fully set out in clause (b) of this Section, Owner then the PEA will immediately notify Issuer and Trustee ESCO or their assignees its assignee of such occurrence and this Agreement Contract shall terminate as of on the last day of [Commonwealth’s/Owner’s] fiscal period City's Fiscal Year for which appropriations were received without penalty or expense to the [Commonwealth or the Owner/Owner] City of any kind whatsoever. In . 6.1.1 If, in the event that XXXX has a rightful claim to title of the Selected ECMs at the time of such termination, Owner then the City agrees to peaceably surrender possession of all the Project Selected ECMs in good operating condition, subject to normal wear and tear, to the Issuer ESCO or its assignee on the date of such termination. Issuer ESCO or its assignee will have all legal and equitable rights and remedies to take possession of the ProjectSelected ECMs. Upon such termination, title to the Selected ECMs will revert to ESCO or its assignee. (b) 6.2 If, on the thirtieth (30th) day after the commencement of any fiscal period of the [Commonwealth/Owner]Fiscal Year, sufficient funds have not been appropriated for the purpose of making all of the Lease Payments payments scheduled to be paid in such fiscal periodFiscal Year, Owner the PEA shall cause to be delivered written notice thereof (a “notice "Notice of nonappropriation”Nonappropriation") to the Issuer and the Trustee or their assignees ESCO within ten (10) calendar days after such thirtieth (30th) day. Upon Issuer’s XXXX'x receipt of a notice of nonappropriation, this Agreement Contract shall terminate terminate, as of the end of the [Commonwealth’s/Owner’s] fiscal period Fiscal Year just ended ended, with the effect set forth in clause (a) exception that PEA shall make payment to ESCO within thirty days thereafter for all Work performed prior to ESCO’s receipt of this Sectionsuch Notice of Nonappropriation; provided, however, such termination shall not become effective as of the end of such [Commonwealth/Owner] fiscal period Fiscal Year just ended if, within ten (10) calendar days of the thirtieth (30th) day after the end of such fiscal period Fiscal Year just completed, Owner the PEA shall cause to be 1 In Sections 2.4 and 2.7 bracketed references should be to the Commonwealth for state agencies and to Owner for governmental units that do not receive state appropriations. Governmental units that receive state appropriations and also have independent revenue sources should consult with the PennSEF Program as to the appropriate approach to completing these Sections. delivered to the Issuer and the Trustee or their assignees ESCO a written statement to the effect that it reasonably expects sufficient funds for the then-current [Commonwealth/Owner] fiscal period Fiscal Year to be appropriated for this Agreementtherefore, and in such event the term shall continue into the then- current [Commonwealth/Owner] fiscal period Fiscal year so long, but only so long, as an appropriation becomes available for from which to make the payments. (c) Notwithstanding the foregoing, Owner agrees that (i) it will not cancel this Agreement under the provisions of this Section 2.7 if any funds are appropriated to it, or by it, for the acquisition, retention, or operation of the Project or other equipment and property performing functions similar to the Project for the fiscal period following the fiscal period in which funds were appropriated; and (ii) it will not during the term of this Agreement give priority in the application of funds to any other functionally similar project.