PTCs. Seller shall bear all risks, financial and otherwise, associated with Seller’s or the Facility’s eligibility to receive PTCs. The Parties agree that the obligations of the Parties under this Agreement, including those obligations set forth in Section 5.1 regarding the purchase price for Net Output and the associated Renewable Energy Credits (if applicable), shall be effective regardless of whether the sale of energy from the Facility is eligible for, or receives, PTCs during the Term.
PTCs. If such Disposition would occur prior to the end of the PTC Period, such Disposition will not result in the disallowance of the PTCs otherwise accruing to the Company; provided, if the Minority of Class A Members delivers to the Company not later than five (5) Business Days prior to the effective date of the Disposition (which effective date is prior to the occurrence of the end of the PTC Period), a written opinion of a nationally recognized law firm that there is substantial authority that such Disposition would result in the disallowance of the PTCs otherwise accruing to the Company, such Disposition shall nevertheless not be effective.
PTCs. (a) The only physical work performed prior to January 1, 2016 with respect to the Project (or any other project on the Site), either on the Site or with respect to equipment that will be incorporated into the Project, is set forth on Schedule 4.16.
(b) The aggregate cost basis for federal income tax purposes of the Sellers (including affiliates or predecessors in interest), with respect to the Project or any other project on the Site prior to January 1, 2016, was not more than $[**].
(c) Merricourt is a “disregarded entity” that is considered part of EDF-USD as one taxpayer for federal income tax purposes.
(d) On or after December 27, 2016, but before December 31, 2016, EDF-USD will pay in full to Vestas for the 5% Safe Harbor Turbines an aggregate amount of not less than [**] ($[**]) (the “PTC Advance Payment”).
(e) Neither EDF-USD nor an Affiliate will have a right to cancel the order for the 5% Safe Harbor Turbines or receive a refund of the PTC Advance Payment, in each case, except in the case of certain breaches by Vestas or force majeure.
(f) The PTC Advance Payment will not be paid as compensation for any on-site storage, any warranty or any other equipment, component or service, other than the 5% Safe Harbor Turbines. Transportation or storage costs will be paid separately from the PTC Advance Payment. _____________________________
(g) No portion of the PTC Advance Payment will be or was loaned to EDF-USD, or any Affiliate of EDF-USD, by Vestas or any Affiliate of Vestas.
(h) EDF-USD is an accrual basis taxpayer for federal income tax purposes.
(i) For federal income tax purposes, EDF-USD may utilize, as a method of accounting, the rule described in Treasury Regulation 1.461-4(d)(6)(ii).
(j) EDF-USD and/or Merricourt will be, or were, responsible for insurance of the 5% Safe Harbor Turbines as of the “Ex Works Date” (as defined in the Daughter Contract) and will take, or took, title and risk of loss for, and will or did contractually accept under the Daughter Contract, each such 5% Safe Harbor Turbine on or before such Ex Work Date.
(k) The Ex Works Date (as defined in the Daughter Contract) for each 5% Safe Harbor Turbine will occur before three and one half months of the date of the PTC Advance Payment (the “PTC Deadline”).
(l) On or before the Ex Works Date (as defined in the Daughter Contract), for each 5% Safe Harbor Turbine, either EDF-USD or Merricourt, or Vestas (as agent or bailee or warehouseman for EDF-USD or Merricourt) shall have physi...
PTCs. If such Disposition would occur prior to the end of the PTC Period, such Disposition will not result in the disallowance or reduction of PTCs with respect to income of the Company or Subs from sales of power thereafter accruing to the Company.
PTCs. (A) PTC Amounts will be calculated on the basis of the Fixed Tax Assumptions, unless any Fixed Tax Assumption is incorrect as the result of the breach of a representation or covenant by the Class A Member in this Agreement or the Contribution Agreement. The Fixed Tax Assumptions will apply without regard to any changes in law and irrespective of any determination as to whether such assumptions were correct when made or whether any assumed or resulting tax treatment is allowable on or at any time after the Closing Date. In all other respects PTC Amounts for any taxable period will be calculated based on the amounts actually realized or deemed to be realized under subsection (B) below in accordance with the federal income tax accounting methods and tax elections actually used with respect to such period by the Company in the preparation of its federal income tax reports and returns, or as adjusted as a result of any amended return or federal income tax audit of the Company (other than any adjustments in an amended return or as a result of a federal income tax audit resulting in any change in the Fixed Tax Assumptions except to the extent the Fixed Tax Assumption is incorrect as the result of the breach of a representation or covenant by the Class A Member in this Agreement or the Contribution Agreement) and taking into account any change in the PTC reference price. Notwithstanding anything herein to the contrary, the calculation of PTC Amounts shall not take into account Section 199 of the Code.
(B) Any PTCs and any adjustments to such items from a period after the Closing Date (without regard to adjustments to PTCs that result from the inaccuracy of a Fixed Tax Assumption, except to the extent such inaccuracy results from the breach of a representation or covenant by the Class A Member in this Agreement or the Contribution Agreement) allocable to the Class B Membership Interests will be deemed to produce Grossed-Up PTC Amounts on the Estimated Tax Payment Dates (to be spread in four equal installments across the applicable Estimated Tax Payment Periods) for the Taxable Year in which such PTCs arise without regard to any provision of law limiting, restricting, deferring or disallowing such PTCs that are applicable to the Class B Member as opposed to the Company and without regard to the existence of tax liability against which the Class B Member is permitted to offset such PTC.
(C) With respect to any calendar year which has not ended prior to the date as of...
PTCs. The Parties acknowledge and agree that Section 4.7 of the Operating Agreement shall be interpreted such that, with respect to any calendar year, Georgia Power will not be obligated to purchase PTCs from Oglethorpe in excess of the amount of PTCs earned in such calendar year as determined under Section 45J of the Internal Revenue Code (and, for the avoidance of doubt, such determination shall be made giving effect to the limitations set forth in Sections 45J(b) and 45J(c), as applicable). The Parties acknowledge and agree that Georgia Power is obligated to purchase one hundred percent (100%) of the PTCs that Oglethorpe elects to sell pursuant to Section 4.7 of the Operating Agreement (taking into account the foregoing sentence), and nothing in this Agreement shall be construed to limit Georgia Power’s obligation to purchase such PTCs (other than as set forth in the foregoing sentence), including in the event that Georgia Power has insufficient federal tax liability in any period to utilize such PTCs or any portion thereof.
PTCs. Counterparty shall bear all risks, financial and otherwise throughout the Term, associated with Counterparty’s or the Facility’s eligibility to receive production tax credits (“PTCs”)or qualify for accelerated depreciation for Counterparty's accounting, reporting or tax purposes.
PTCs. If at any time following the date hereof but prior to the Measurement Time, any Contract is entered into with respect to the sale of PTCs of a PTC Project generated through the earlier of December 31, 2024 or the Measurement Time, the applicable member of the Company Group or the Non-Controlled Joint Ventures Group shall, and, following the Closing, Buyer shall cause such member to, promptly pay in cash the proceeds of any such sale to Seller (or its designee) as and when received by Buyer (or any of its Affiliates) or the applicable member. None of Buyer, any member of the Company Group, any member of the Non-Controlled Joint Ventures Group, or any Affiliate of any of the foregoing shall amend, modify, or otherwise novate any such Contract without the prior written consent of Seller (such consent not to be unreasonably withheld, conditioned, or delayed) if such an amendment, modification, or novation reasonably would be expected to have a disproportionate and material adverse effect on Seller or any of its Affiliates (as compared to Buyer or any of its Affiliates). Buyer, Seller, and their respective Affiliates shall treat and report any payment made pursuant to this Section 5.33, to the extent permitted by applicable Law, as an adjustment to the Purchase Price for applicable tax purposes. Seller shall indemnify and hold harmless Buyer and each member of the Company Group and the Non-Controlled Joint Ventures Group with respect to Losses arising from, relating to, or as a result of, the sale of PTCs pursuant to this Section 5.33, including any claims from the purchaser(s) of such PTCs.
PTCs. (A) PTC Amounts that are not consistent with the Fixed Tax Assumptions shall be recalculated for purposes of the Internal Rate of Return in a manner consistent with the Fixed Tax Assumptions, except to the extent that such inconsistency with the Fixed Tax Assumptions is the result of (1) the relevant Tax Return filed with the IRS by or for the Company being a Non-Conforming Return (as provided in Section 7.6(c)), (2) a change in the Code or Treasury Regulations promulgated thereunder that affect Fixed Tax Assumptions, or (3) the breach of any representations, warranties, or covenants by a Class A Member, the Managing Member, the Tax Matters Partner, or the Partnership Representative (in each case, as long as it is, or is an Affiliate of, a Class A Member) under this Agreement or the Contribution Agreement. PTC Amounts shall also be recalculated to include any credit that would have been realized by the Class B Member, but which is not so recognized as the result of the breach of the representations, warranties or covenants of a Class B Member in Sections 3.11 or 12.3(a) – (c) of this Agreement or of Sections 2.3 or 4.8 of the Contribution Agreement. For purposes of calculating and determining PTC Amounts, each Class B Member shall be treated as able to use immediately, subject to the same timing described in Section 7.11(c), and fully any PTC Amounts without regard to (X) whether the Class B Member has any income, gains, or tax liability against which it is permitted to offset such credits, (Y) any provision of Law limiting, restricting, deferring or disallowing such credit that is applicable to any Class B Member (as opposed to the Company), or (Z) a Company-level limitation, restriction, deferral or disallowance of such loss, deduction or credits that results from the breach of any representation, warranty or covenant of a Class B Member in this Agreement or the Contribution Agreement.
(B) For the avoidance of doubt, in all respects outside those described in Section 7.7(c)(iii) the Internal Rate of Return and the amount of Deferred Contributions shall be based upon the PTC Amounts or gross income allocation, as applicable, without any adjustment or recalculation, in accordance with the federal income tax accounting methods and tax elections actually used with respect to such period by the Company in the preparation of its Tax Returns, and as subsequently adjusted as a result of any amended Tax Return or a final determination in any federal income tax au...
PTCs. Borrower shall be entitled to claim tax credits available under the PTCs from all WTGs comprising the Projects (other than WTGs in an aggregate amount for all of the Projects not to exceed nineteen (19) and unless a Total Term Loan Commitment Resizing that takes into account the inability to realize PTCs with respect to certain WTGs has occurred).
