Common use of EITC and Depreciation Loss Clause in Contracts

EITC and Depreciation Loss. Without limiting any other Liquidated Damages required to be paid under this Article 17, the following additional remedies shall apply: The Parties acknowledge that the Contract Price reflects, in part, the value to Owner of certain tax benefits (as specified below) and to obtain those tax benefits in accordance with the expected schedule for the construction and completion of the Facility. If Contractor fails to cause the Facility to achieve the Construction Start Date on or prior to the Guaranteed Construction Start Date or thereafter achieve Substantial Completion by the Guaranteed Substantial Completion Date for any reason other than, subject to Section 17.6(f), an Owner-Caused Delay or an Owner Event of Default, then Contractor shall pay Owner, as a Contract Price adjustment and not as a penalty, the following amounts (collectively, the “EITC Liquidated Damages”)15: an amount equal to the difference, if any, between the Maximum EITCs for the Facility and the Expected EITCs for the Facility, and an amount equal to the equivalent of interest (using the Wall Street Journal “prime rate” as of the dates specified below as an annual rate, compounded annually) on the following amounts, determined as follows: the sum of (A) interest on the amount paid pursuant to Section 17.6(b)(i) for the period from the applicable estimated tax installment payment dates on which Owner would have taken all or any part of the corresponding Maximum EITCs into account when paying its estimated taxes (assuming Owner will pay its estimated taxes based on the annualized income installment method of Section 6655(e)(2) of the Code (using the annualization periods set forth in Sections 6655(e)(2)(A) and (B) of the Code)) until such payment pursuant to Section 17.6(b)(i) is received by Owner, and using as the interest rate the Wall Street Journal “prime rate” as of the first Business Day preceding the date of such first estimated tax installment payment, plus (B) the time value of the deferred tax depreciation available to Owner with respect to the Facility based on the difference between the Depreciation Benefit that would have been available had Contractor achieved Substantial Completion on the Guaranteed Substantial Completion Date (assuming that the Facility is deemed Placed in Service upon achieving Substantial Completion) and the available depreciation deductions (determined based on the same principles and tax rates specified in the definition of Depreciation Benefit (utilizing in the last sentence thereof “Expected EITCs” rather than “Maximum EITCs”)) given the applicable actual Substantial Completion Date, assuming Owner pays estimated taxes when specified in Section 17.6(b)(ii)(A) and such time value is calculated based on the hypothetical estimated tax payments that would be made on each estimated tax installment payment date given the actual Substantial Completion Date, compared to the hypothetical payments that would have been made had Contractor achieved Substantial Completion as specified above in this Section 17.6(b)(ii)(B) and using as the interest rate the Wall Street Journal “prime rate” as of the first Business Day preceding the date of such first estimated tax installment payment that is affected by such depreciation or EITC, plus (C) the EITC Timing Determinate. For the avoidance of doubt, there is to be no “double counting” of the interest factors calculated under Sections 17.6(b)(ii)(A) and 17.6(b)(ii)(B) with respect to EITCs, and in the event the interest factor determined under Section 17.6(b)(ii)(A) includes with respect to the reduced EITCs reimbursed under Section 17.6(b)(i) a portion of the time value captured under Section 17.6(b)(ii)(B) with respect to the deferral of EITCs, then the amount due under Section 17.6(b)(ii)(B) shall be reduced by the amount of such overlap. Any EITC Liquidated Damages required by Section 17.6(b) shall be paid within thirty (30) Days of Owner providing Contractor a written request therefor setting forth the calculations thereof in reasonable detail. Within ten (10) Days of receipt of such request, Contractor may request that a nationally recognized independent accounting firm selected by Owner and reasonably acceptable to Contractor verify the calculation of the EITC Liquidated Damages. The fees and expenses of such accounting firm shall be borne by Contractor. Absent manifest error, the determination of such accounting firm shall be final and binding upon the Parties. The calculation of the EITC Liquidated Damages due pursuant to Section 17.6(b) is intended to be hypothetical. Therefore, the amount shall not be altered based on (i) Owner’s actual federal income tax posture or liability, (ii) any audit or adjustment by the Internal Revenue Service or the results of any cost segregation analysis that allocates tax basis in a manner different than that set forth in Exhibit 23, (iii) any transfer, merger, sale, reorganization, lease, financing or other transaction entered into by Owner or any Affiliate thereof, (iv) any tax election made by Owner or any Affiliate thereof, (v) any penalties or interest payable to any tax authority, and (vi) all state tax items shall be disregarded. Notwithstanding the foregoing, Contractor agrees that it shall not be entitled to claim an Owner-Caused Delay or Owner Event of Default as a defense to liability for Contractor’s failure to achieve Substantial Completion by the Guaranteed Substantial Completion Date, unless: (i) delays caused by such events exceed seventy-five (75) Days in the aggregate commencing on the Effective Date and (ii) Contractor demonstrates that such Owner-Caused Delay or Owner Event of Default had an actual and demonstrable adverse impact to the Contractor Critical Path Items set forth on the Construction Schedule and that Contractor has used reasonable efforts to minimize and mitigate the impacts of any such events. Contractor’s liability for the EITC Liquidated Damages shall survive any termination of this Agreement due to a Contractor Default, in which case such liability shall be determined by reference to the date that Substantial Completion is ultimately achieved by Owner or any replacement EPC contractor, and any EITC Liquidated Damages owing from Contractor shall be included in the Termination Payment calculated pursuant to Section 20.5(b).

EITC and Depreciation Loss. Without limiting any other Liquidated Damages required to be paid under this Article 17, the following additional remedies shall apply: (a) The Parties acknowledge that the Contract Price reflects, in part, the value to Owner of certain tax benefits (as specified below) and to obtain those tax benefits in accordance with the expected schedule for the construction and completion of the Facility. Project. (b) If Contractor fails to cause the Facility to achieve the Construction Start Date on or prior to any Block is not completed in accordance with the Guaranteed Construction Start Date or thereafter achieve Substantial Completion by Block On-line Schedule (as in effect on the Guaranteed Substantial Completion Date Effective Date) for any reason other than, subject to Section 17.6(f17.8(f), an Owner-Caused Delay Delay, an Excusable Event, a Force Majeure Event (but only with respect to subclause (ii) below) or an Owner Event of Default, then Contractor shall pay Owner, as a Contract Price adjustment and not as a penalty, the following amounts amounts: (collectively, the “EITC Liquidated Damages”)15: i) an amount equal to the difference***, if any, between the Maximum EITCs for the Facility and the Expected EITCs for the Facility, and and (ii) an amount for each Block equal to the equivalent of interest (using the Wall Street Journal “prime rate” as of the dates specified below as an annual rate, compounded annually) on the following amounts, determined as follows: the sum of (A) interest on the amount paid pursuant to Section 17.6(b)(i) for the period from the applicable estimated tax installment payment dates on which Owner would have taken all or any part of the corresponding Maximum EITCs into account when paying its estimated taxes (assuming Owner will pay its estimated taxes based on the annualized income installment method of Section 6655(e)(2) of the Code (using the annualization periods set forth in Sections 6655(e)(2)(A) and (B) of the Code)) until such payment pursuant to Section 17.6(b)(i) is received by Owner, and using as the interest rate the Wall Street Journal “prime rate” as of the first Business Day preceding the date of such first estimated tax installment payment, plus (B) the time value of the deferred tax depreciation available to Owner with respect to the Facility based on the difference between the Depreciation Benefit that would have been available had Contractor achieved Substantial Completion on the Guaranteed Substantial Completion Date (assuming that the Facility is deemed Placed in Service upon achieving Substantial Completion) and the available depreciation deductions (determined based on the same principles and tax rates specified in the definition of Depreciation Benefit (utilizing in the last sentence thereof “Expected EITCs” rather than “Maximum EITCs”)) given the applicable actual Substantial Completion Date, assuming Owner pays estimated taxes when specified in Section 17.6(b)(ii)(A) and such time value is calculated based on the hypothetical estimated tax payments that would be made on each estimated tax installment payment date given the actual Substantial Completion Date, compared to the hypothetical payments that would have been made had Contractor achieved Substantial Completion as specified above in this Section 17.6(b)(ii)(B) and using as the interest rate the Wall Street Journal “prime rate” as of the first Business Day preceding the date of such first estimated tax installment payment that is affected by such depreciation or EITC, plus (C) the EITC Timing Determinate***. For the avoidance of doubt, there is to be no “double counting” of the interest factors calculated under Sections 17.6(b)(ii)(A17.8(b)(ii)(A) and 17.6(b)(ii)(B17.8(b)(ii)(C) with respect to EITCs, and in the event the interest factor determined under Section 17.6(b)(ii)(A17.8(b)(ii)(A) includes with respect to the reduced EITCs reimbursed under Section 17.6(b)(i17.8(b)(i) a portion of the time value captured under Section 17.6(b)(ii)(B17.8(b)(ii)(B) with respect to the deferral of EITCs, then the amount due under Section 17.6(b)(ii)(B17.8(b)(ii)(B) shall be reduced by the amount of such overlap. . (c) Any EITC Liquidated Damages Contract Price adjustment required by Section 17.6(b) 17.8(b), shall be paid within thirty (30) Days *** of Owner providing Contractor a written request therefor setting forth the calculations thereof in reasonable detail. *** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. (d) Within ten (10) Days *** of receipt of such request, Contractor may request that a *** (so long as they are not the accounting firm used by either Party) or another nationally recognized independent accounting firm selected by Owner and reasonably acceptable to Contractor verify the calculation of the EITC Liquidated Damagescalculation. The fees and expenses of such accounting firm shall be borne by Contractor; provided, however, if the accounting firm determines that Owner's calculations were overstated by more than five (5) percent, then Owner shall pay (or, if applicable, reimburse Contractor) for such fees and expenses. Absent manifest error, the determination of such accounting firm shall be final and binding upon the Parties. parties. (e) The calculation of the EITC Liquidated Damages any amount due pursuant to Section 17.6(b17.8(b) is intended to be hypothetical. Therefore, the amount shall not be altered based on (i) Owner’s 's actual federal income tax posture or liability, (ii) any audit or adjustment by the Internal Revenue Service or the results of any cost segregation analysis that allocates tax basis in a manner different than that set forth in Exhibit 23Service, (iii) any transfer, merger, sale, reorganization, lease, financing or other transaction entered into by Owner or any Affiliate thereof, (iv) any tax election made by Owner or any Affiliate thereof, (v) any penalties or interest payable to any tax authority, and (vi) all state tax items shall be disregarded. Notwithstanding the foregoing, Contractor agrees that it shall not be entitled to claim an Owner-Caused Delay or Owner Event of Default as a defense to liability for Contractor’s failure to achieve Substantial Completion by the Guaranteed Substantial Completion Date, unless: (i) delays caused by such events exceed seventy-five (75) Days in the aggregate commencing on the Effective Date and (ii) Contractor demonstrates that such Owner-Caused Delay or Owner Event of Default had an actual and demonstrable adverse impact to the Contractor Critical Path Items set forth on the Construction Schedule and that Contractor has used reasonable efforts to minimize and mitigate the impacts of any such events. Contractor’s liability for the EITC Liquidated Damages shall survive any termination of this Agreement due to a Contractor Default, in which case such liability shall be determined by reference to the date that Substantial Completion is ultimately achieved by Owner or any replacement EPC contractor, and any EITC Liquidated Damages owing from Contractor shall be included in the Termination Payment calculated pursuant to Section 20.5(b).

EITC and Depreciation Loss. Without limiting any other Liquidated Damages required to be paid under this Article 17, the following additional remedies shall apply: (a) The Parties acknowledge that the Contract Price reflects, in part, the value to Owner of certain tax benefits (as specified below) and to obtain those tax benefits in accordance with the expected schedule for the construction and completion of the Facility. Project. (b) If Contractor fails to cause the Facility to achieve the Construction Start Date on or prior to any Block is not completed in accordance with the Guaranteed Construction Start Date or thereafter achieve Substantial Completion by Block On-line Schedule (as in effect on the Guaranteed Substantial Completion Date Effective Date) for any reason other than, subject to Section 17.6(f17.8(f), an Owner-Caused Delay Delay, an Excusable Event, a Force Majeure Event (but only with respect to subclause (ii) below) or an Owner Event of Default, then Contractor shall pay Owner, as a Contract Price adjustment and not as a penalty, the following amounts amounts: *** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. (collectively, the “EITC Liquidated Damages”)15: i) an amount equal to the differencedollar amount associated with the *** for such Block less the *** for such Block, if any, between the Maximum EITCs for the Facility and the Expected EITCs for the Facility, and and (ii) an amount for each Block equal to the equivalent of interest (using the Wall Street Journal “prime rate” as of the dates specified below as an annual rate, compounded annually) on the following amounts, determined as follows: the sum of *** (A) with respect to ***, interest on the amount paid pursuant to Section 17.6(b)(i17.8(b)(i) for the period from the applicable estimated tax installment *** payment dates on which Owner would have taken all or any part of the corresponding Maximum EITCs *** into account when paying its estimated *** taxes (assuming Owner will pay its estimated *** taxes based on the annualized income installment method of Section 6655(e)(2) of the Code (using the annualization periods set forth in Sections 6655(e)(2)(A) and (B) of the Code)) until such payment pursuant to Section 17.6(b)(i17.8(b)(i) is received by Owner, and using as the interest rate the Wall Street Journal “prime rate” as of the first Business Day preceding the date of such first estimated *** tax installment payment, plus (B) the time value *** of the deferred tax depreciation available to Owner with respect to the Facility each *** based on the difference between the Depreciation Benefit *** that would have been available had Contractor *** achieved Substantial Completion *** for each *** on the Guaranteed Substantial Completion Date its *** (assuming that the Facility each *** is deemed Placed in Service upon achieving Substantial Completion***) and the available depreciation deductions (determined based on the same principles and tax rates specified in the definition of Depreciation Benefit *** (utilizing in the last sentence thereof “Expected EITCs” *** rather than “Maximum EITCs”***)) given the applicable actual Substantial Completion Date***, assuming Owner pays estimated *** taxes when specified in Section 17.6(b)(ii)(A17.8(b)(ii)(A) and such time value is calculated based on the hypothetical estimated *** tax payments that would be made on each estimated tax installment payment date given the actual Substantial Completion Date***, compared to the hypothetical payments *** that would have been made had Contractor *** achieved Substantial Completion *** for each *** as specified above in this Section 17.6(b)(ii)(B17.8(b)(ii)(B) and using as the interest rate the Wall Street Journal “prime rate” as of the first Business Day preceding the date of such first estimated *** tax installment *** payment that is affected by such depreciation *** or EITC***, plus (C) the EITC Timing Determinate***. For the avoidance of doubt, there is to be no “double counting” of the interest factors calculated under Sections 17.6(b)(ii)(A17.8(b)(ii)(A) and 17.6(b)(ii)(B17.8(b)(ii)(C) with respect to EITCs, and in the event the interest factor determined under Section 17.6(b)(ii)(A17.8(b)(ii)(A) includes with respect to the reduced EITCs reimbursed under Section 17.6(b)(i17.8(b)(i) a portion of the time value captured under Section 17.6(b)(ii)(B17.8(b)(ii)(B) with respect to the deferral of EITCs, then the amount due under Section 17.6(b)(ii)(B17.8(b)(ii)(B) shall be reduced by the amount of such overlap. . (c) Any EITC Liquidated Damages Contract Price adjustment required by Section 17.6(b) 17.8(b), shall be paid within thirty (30) Days *** of Owner providing Contractor a written request therefor setting forth the calculations thereof in reasonable detail. . (d) Within ten (10) Days of receipt of such request, Contractor may request that a KPMG LLP (so long as they are not the accounting firm used by either Party) or another nationally recognized independent accounting firm selected by Owner and reasonably acceptable to Contractor verify the calculation of the EITC Liquidated Damagescalculation. The fees and expenses of such accounting firm shall be borne by Contractor; provided, however, if the accounting firm determines that Owner's calculations were overstated by more than *** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. five (5) percent, then Owner shall pay (or, if applicable, reimburse Contractor) for such fees and expenses. Absent manifest error, the determination of such accounting firm shall be final and binding upon the Parties. parties. (e) The calculation of the EITC Liquidated Damages any amount due pursuant to Section 17.6(b17.8(b) is intended to be hypothetical. Therefore, the amount shall not be altered based on (i) Owner’s 's actual federal income tax posture or liability, (ii) any audit or adjustment by the Internal Revenue Service or the results of any cost segregation analysis that allocates tax basis in a manner different than that set forth in Exhibit 23Service, (iii) any transfer, merger, sale, reorganization, lease, financing or other transaction entered into by Owner or any Affiliate thereof, (iv) any tax election made by Owner or any Affiliate thereof, (v) any penalties or interest payable to any tax authority, and (vi) all state tax items shall be disregarded. . (f) Notwithstanding the foregoing, solely as it relates to Contractor's liability under ***, Contractor agrees that it shall not be entitled to claim an Owner-Caused Delay that the occurrence of events described in *** or Owner Event *** of Default as the first sentence of *** are a defense *** to liability for Contractor’s 's failure to achieve Facility Substantial Completion by the Guaranteed Substantial Completion Date, *** unless: (i) delays caused by such events exceed seventy-five *** (75***) Days in the aggregate *** during the period commencing on the Effective Date and ending on the date on which Contractor completes *** percent (***%) of the Facility; (ii) delays caused by such events exceed *** (***) Days in the *** during the period commencing on the day after the date on which Contractor demonstrates completes *** percent (***%) of the Facility and ending on the date on which Contractor completes *** percent (***%) of the Facility; (iii) delays caused by such events exceed *** (***) Days in the *** during the period commencing on the day after the date on which Contractor completes *** percent (***%) of the Facility until the day that is *** (***) Days prior to ***; (iv) delays caused by such Owner-Caused Delay events occur on or Owner Event after the day that is *** (***) Days prior to ***; or (v) items (i)-(iv) have resulted in delays in excess of Default *** (***) Days in the ***; provided, however, that *** must demonstrate that the events described in *** or *** of the first sentence of *** had an actual *** and demonstrable adverse *** impact to the Contractor Critical Path Items *** set forth on the Construction Schedule and that Contractor has used reasonable efforts to minimize and mitigate the impacts of any such events. Contractor’s liability for the EITC Liquidated Damages shall survive any termination of this Agreement due to a Contractor Default, in which case such liability shall be determined by reference to the date that Substantial Completion is ultimately achieved by Owner or any replacement EPC contractor, and any EITC Liquidated Damages owing from Contractor shall be included in the Termination Payment calculated pursuant to Section 20.5(b).

EITC and Depreciation Loss. Without limiting any other Liquidated Damages required to be paid under this Article 17, the following additional remedies shall apply: (a) The Parties acknowledge that the Contract Price reflects, in part, the value to Owner of certain tax benefits (as specified below) and to obtain those tax benefits in accordance with the expected schedule for the construction and completion of the Facility. Project. (b) If Contractor fails to cause the Facility to achieve the Construction Start Date on or prior to any Block is not completed in accordance with the Guaranteed Construction Start Date or thereafter achieve Substantial Completion by Block On-line Schedule (as in effect on the Guaranteed Substantial Completion Date Effective Date) for any reason other than, subject to Section 17.6(f17.8(f), an Owner-Caused Delay Delay, an Excusable Event, a Force Majeure Event (but only with respect to subclause (ii) below) or an Owner Event of Default, then Contractor shall pay Owner, as a Contract Price adjustment and not as a penalty, the following amounts amounts: *** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. (collectively, the “EITC Liquidated Damages”)15: i) an amount equal to the difference***, if any, between the Maximum EITCs for the Facility and the Expected EITCs for the Facility, and and (ii) an amount for each Block equal to the equivalent of interest (using the Wall Street Journal “prime rate” as of the dates specified below as an annual rate, compounded annually) on the following amounts, determined as follows: the sum of (A) interest on the amount paid pursuant to Section 17.6(b)(i) for the period from the applicable estimated tax installment payment dates on which Owner would have taken all or any part of the corresponding Maximum EITCs into account when paying its estimated taxes (assuming Owner will pay its estimated taxes based on the annualized income installment method of Section 6655(e)(2) of the Code (using the annualization periods set forth in Sections 6655(e)(2)(A) and (B) of the Code)) until such payment pursuant to Section 17.6(b)(i) is received by Owner, and using as the interest rate the Wall Street Journal “prime rate” as of the first Business Day preceding the date of such first estimated tax installment payment, plus (B) the time value of the deferred tax depreciation available to Owner with respect to the Facility based on the difference between the Depreciation Benefit that would have been available had Contractor achieved Substantial Completion on the Guaranteed Substantial Completion Date (assuming that the Facility is deemed Placed in Service upon achieving Substantial Completion) and the available depreciation deductions (determined based on the same principles and tax rates specified in the definition of Depreciation Benefit (utilizing in the last sentence thereof “Expected EITCs” rather than “Maximum EITCs”)) given the applicable actual Substantial Completion Date, assuming Owner pays estimated taxes when specified in Section 17.6(b)(ii)(A) and such time value is calculated based on the hypothetical estimated tax payments that would be made on each estimated tax installment payment date given the actual Substantial Completion Date, compared to the hypothetical payments that would have been made had Contractor achieved Substantial Completion as specified above in this Section 17.6(b)(ii)(B) and using as the interest rate the Wall Street Journal “prime rate” as of the first Business Day preceding the date of such first estimated tax installment payment that is affected by such depreciation or EITC, plus (C) the EITC Timing Determinate***. For the avoidance of doubt, there is to be no “double counting” of the interest factors calculated under Sections 17.6(b)(ii)(A17.8(b)(ii)(A) and 17.6(b)(ii)(B17.8(b)(ii)(C) with respect to EITCs, and in the event the interest factor determined under Section 17.6(b)(ii)(A17.8(b)(ii)(A) includes with respect to the reduced EITCs reimbursed under Section 17.6(b)(i17.8(b)(i) a portion of the time value captured under Section 17.6(b)(ii)(B17.8(b)(ii)(B) with respect to the deferral of EITCs, then the amount due under Section 17.6(b)(ii)(B17.8(b)(ii)(B) shall be reduced by the amount of such overlap. . (c) Any EITC Liquidated Damages Contract Price adjustment required by Section 17.6(b) 17.8(b), shall be paid within thirty (30) Days *** of Owner providing Contractor a written request therefor setting forth the calculations thereof in reasonable detail. . (d) Within ten (10) Days *** of receipt of such request, Contractor may request that a *** (so long as they are not the accounting firm used by either Party) or another nationally recognized independent accounting firm selected by Owner and reasonably acceptable to Contractor verify the calculation of the EITC Liquidated Damagescalculation. The fees and expenses of such accounting firm shall be borne by Contractor; provided, however, if the accounting firm determines that Owner's calculations were overstated by more than five (5) percent, then Owner shall pay (or, if applicable, reimburse Contractor) for such fees and expenses. Absent manifest error, the determination of such accounting firm shall be final and binding upon the Parties. parties. (e) The calculation of the EITC Liquidated Damages any amount due pursuant to Section 17.6(b17.8(b) is intended to be hypothetical. Therefore, the amount shall not be altered based on (i) Owner’s 's actual federal income tax posture or liability, (ii) any audit or adjustment by the Internal Revenue Service or the results of any cost segregation analysis that allocates tax basis in a manner different than that set forth in Exhibit 23Service, (iii) any transfer, merger, sale, reorganization, lease, financing or other transaction entered into by Owner or any Affiliate thereof, (iv) any tax election made by Owner or any Affiliate thereof, (v) any penalties or interest payable to any tax authority, and (vi) all state tax items shall be disregarded. Notwithstanding the foregoing, Contractor agrees that it shall not be entitled to claim an Owner-Caused Delay or Owner Event of Default as a defense to liability for Contractor’s failure to achieve Substantial Completion by the Guaranteed Substantial Completion Date, unless: (i) delays caused by such events exceed seventy-five (75) Days in the aggregate commencing on the Effective Date and (ii) Contractor demonstrates that such Owner-Caused Delay or Owner Event of Default had an actual and demonstrable adverse impact to the Contractor Critical Path Items set forth on the Construction Schedule and that Contractor has used reasonable efforts to minimize and mitigate the impacts of any such events. Contractor’s liability for the EITC Liquidated Damages shall survive any termination of this Agreement due to a Contractor Default, in which case such liability shall be determined by reference to the date that Substantial Completion is ultimately achieved by Owner or any replacement EPC contractor, and any EITC Liquidated Damages owing from Contractor shall be included in the Termination Payment calculated pursuant to Section 20.5(b).

EITC and Depreciation Loss. Without limiting any other Liquidated Damages required to be paid under this Article 17, the following additional remedies shall apply: CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. (a) The Parties acknowledge that the Contract Price reflects, in part, the value to Owner of certain tax benefits (as specified below) and to obtain those tax benefits in accordance with the expected schedule for the construction and completion of the Facility. Project. (b) If Contractor fails to cause the Facility to achieve the Construction Start Date on or prior to any Block is not completed in accordance with the Guaranteed Construction Start Date or thereafter achieve Substantial Completion by Block On-line Schedule (as in effect on the Guaranteed Substantial Completion Date Effective Date) for any reason other than, subject to Section 17.6(f17.8(f), an Owner-Caused Delay Delay, an Excusable Event, a Force Majeure Event (but only with respect to subclause (ii) below) or an Owner Event of Default, then Contractor shall pay Owner, as a Contract Price adjustment and not as a penalty, the following amounts amounts: (collectively, the “EITC Liquidated Damages”)15: i) an amount equal to the difference, if any, between dollar amount associated with the Maximum EITCs for the Facility and the Expected EITCs for the Facility***, and for such Block less the *** for such Block (ii) an amount for each Block equal to the equivalent of interest (using the Wall Street Journal “prime rate” as of the dates specified below as an annual rate, compounded annually) on the following amounts, determined as follows: the sum of *** (A) with respect to ***, interest on the amount paid pursuant to Section 17.6(b)(i17.8(b)(i) for the period from the applicable estimated tax installment *** payment dates on which Owner would have taken all or any part of the corresponding Maximum EITCs *** into account when paying its estimated *** taxes (assuming Owner will pay its estimated *** taxes based on the annualized income installment method of Section 6655(e)(2) of the Code (using the annualization periods set forth in Sections 6655(e)(2)(A) and (B) of the Code)) until such payment pursuant to Section 17.6(b)(i17.8(b)(i) is received by Owner, and using as the interest rate the Wall Street Journal “prime rate” as of the first Business Day preceding the date of such first estimated *** tax installment payment, plus (B) the time value *** of the deferred tax depreciation available to Owner with respect to the Facility each *** based on the difference between the Depreciation Benefit *** that would have been available had Contractor *** achieved Substantial Completion *** for each *** on the Guaranteed Substantial Completion Date its *** (assuming that the Facility each *** is deemed Placed in Service upon achieving Substantial Completion***) and the available depreciation deductions (determined based on the same principles and tax rates specified in the definition of Depreciation Benefit *** (utilizing in the last sentence thereof “Expected EITCs” *** rather than “Maximum EITCs”***)) given the applicable actual Substantial Completion Date***, assuming Owner pays estimated *** taxes when specified in Section 17.6(b)(ii)(A17.8(b)(ii)(A) and such time value is calculated based on the hypothetical estimated *** tax payments that would be made on each estimated tax installment payment date given the actual Substantial Completion Date***, compared to the hypothetical payments *** that would have been made had Contractor *** achieved Substantial Completion *** for each *** as specified above in this Section 17.6(b)(ii)(B17.8(b)(ii)(B) and using as the interest rate the Wall Street Journal “prime rate” as of the first Business Day preceding the date of such first estimated *** tax installment *** payment that is affected by such depreciation *** or EITC***, plus (C) the EITC Timing Determinate***. For the avoidance of doubt, there is to be no “double counting” of the interest factors calculated under Sections 17.6(b)(ii)(A17.8(b)(ii)(A) and 17.6(b)(ii)(B17.8(b)(ii)(C) with respect to EITCs, and in the event the interest factor determined under Section 17.6(b)(ii)(A17.8(b)(ii)(A) includes with respect to the reduced EITCs reimbursed under Section 17.6(b)(i17.8(b)(i) a portion of the time value captured under Section 17.6(b)(ii)(B*** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. 17.8(b)(ii)(B) with respect to the deferral of EITCs, then the amount due under Section 17.6(b)(ii)(B17.8(b)(ii)(B) shall be reduced by the amount of such overlap. . (c) Any EITC Liquidated Damages Contract Price adjustment required by Section 17.6(b) 17.8(b), shall be paid within thirty (30) Days of Owner providing Contractor a written request therefor setting forth the calculations thereof in reasonable detail. . (d) Within ten (10) Days of receipt of such request, Contractor may request that a KPMG LLP (so long as they are not the accounting firm used by either Party) or another nationally recognized independent accounting firm selected by Owner and reasonably acceptable to Contractor verify the calculation of the EITC Liquidated Damagescalculation. The fees and expenses of such accounting firm shall be borne by Contractor; provided, however, if the accounting firm determines that Owner's calculations were overstated by more than five (5) percent, then Owner shall pay (or, if applicable, reimburse Contractor) for such fees and expenses. Absent manifest error, the determination of such accounting firm shall be final and binding upon the Parties. parties. (e) The calculation of the EITC Liquidated Damages any amount due pursuant to Section 17.6(b17.8(b) is intended to be hypothetical. Therefore, the amount shall not be altered based on (i) Owner’s 's actual federal income tax posture or liability, (ii) any audit or adjustment by the Internal Revenue Service or the results of any cost segregation analysis that allocates tax basis in a manner different than that set forth in Exhibit 23Service, (iii) any transfer, merger, sale, reorganization, lease, financing or other transaction entered into by Owner or any Affiliate thereof, (iv) any tax election made by Owner or any Affiliate thereof, (v) any penalties or interest payable to any tax authority, and (vi) all state tax items shall be disregarded. . (f) Notwithstanding the foregoing, solely as it relates to Contractor's liability under ***, Contractor agrees that it shall not be entitled to claim an Owner-Caused Delay that the occurrence of events described in *** or Owner Event *** of Default as the first sentence of *** are a defense *** to liability for Contractor’s 's failure to achieve Facility Substantial Completion by the Guaranteed Substantial Completion Date, *** unless: (i) delays caused by such events exceed seventy-five *** (75***) Days in the aggregate *** during the period commencing on the Effective Date and ending on the date on which Contractor completes *** percent (***%) of the Facility; (ii) delays caused by such events exceed *** (***) Days in the *** during the period commencing on the day after the date on which Contractor demonstrates completes *** percent (***%) of the Facility and ending on the date on which Contractor completes *** percent (***%) of the Facility; (iii) delays caused by such events exceed *** (***) Days in the *** during the period commencing on the day after the date on which Contractor completes *** percent (***%) of the Facility until the day that is *** (***) Days prior to ***; (iv) delays caused by such Owner-Caused Delay events occur on or Owner Event after the day that is *** (***) Days prior to ***; or (v) items (i)-(iv) have resulted in delays in excess of Default *** (***) Days in the ***; provided, however, that *** must demonstrate that the events described in *** or *** of the first sentence of *** had an actual *** and demonstrable adverse *** impact to the Contractor Critical Path Items *** set forth on the Construction Schedule and that Contractor has used reasonable efforts to minimize and mitigate the impacts of any such events. Contractor’s liability for the EITC Liquidated Damages shall survive any termination of this Agreement due to a Contractor Default, in which case such liability shall be determined by reference to the date that Substantial Completion is ultimately achieved by Owner or any replacement EPC contractor, and any EITC Liquidated Damages owing from Contractor shall be included in the Termination Payment calculated pursuant to Section 20.5(b).