Qualified Decommissioning Fund. (a) At the Closing, Seller shall cause to be transferred to the Trustee under the Post-Closing Decommissioning Trust Agreement all of the assets of the Seller's Qualified Decommissioning Fund, unless prior to such xxxx Xxxxxx shall have received a favorable private letter ruling from the IRS in respect of withdrawing excess decommissioning funds, as contemplated by Section 6.18, in which case Seller shall transfer an amount equal to the Decommissioning Target or such other amount (but not less than the Decommissioning Target) specified in such private letter ruling (the "PLR Decommissioning Amount"). Any assets held by Seller's Qualified Decommissioning Fund that are in excess of the PLR Decommissioning Amount (the "Excess PLR Decommissioning Amount") shall be retained by the Seller's Qualified Decommissioning Fund for distribution to the Seller as provided by the private letter ruling contemplated by Section 6.18. (b) Buyer shall take all reasonable steps necessary to satisfy any requirements imposed by the NRC regarding the Buyer's Qualified Decommissioning Fund, in a manner sufficient to obtain NRC approval of the transfer of Qualified Decommissioning Fund assets from Seller to Buyer. (c) The Parties shall not take any actions that would cause the actual Tax consequences of the transactions contemplated by this Agreement to differ from or be inconsistent with the Requested Rulings set forth in Section 6.18. (d) Seller shall cause the Trustee of Seller's Qualified Decommissioning Fund to pay final expenses for trustee and investment management fees and other administrative expenses of Seller's Qualified Decommissioning Fund to the extent practicable before the Closing. Seller shall cause the Trustee of Seller's Qualified Decommissioning Fund to notify Buyer in writing of any such Qualified Decommissioning Fund expenses due after the Closing. Buyer agrees to direct the Trustee of the Post-Closing Qualified Decommissioning Trust Agreement to pay the Qualified Decommissioning Fund expenses identified in the preceding sentence to the extent not paid before the Closing and such amount shall be charged against the Excess Qualified Decommissioning Fund assets, or if such Excess Qualified Decommissioning Fund assets are not sufficient to pay such expenses, Seller shall pay the same. Buyer agrees to ensure that its trust agreements allow for the payment of such expenses. (e) Any Excess Qualified Decommissioning Fund assets transferred to Buyer pursuant to this Section 6.12 shall be distributed to Seller if and to the extent required by Section 6.20(c). (f) Seller agrees not to amend Seller's Decommissioning Trust Agreement between the date of this Agreement and the Closing Date without Buyer's prior written consent, which shall not be unreasonably withheld, except for any amendment which may be required to be made to the Seller's Decommissioning Trust Agreement by any Law or to permit the transfers referred to in this Section 6.12 or to permit return to Seller of assets of the Qualified Decommissioning Fund in excess of the Decommissioning Target.
Appears in 2 contracts
Samples: Asset Sale Agreement (CMS Energy Corp), Asset Sale Agreement (CMS Energy Corp)
Qualified Decommissioning Fund. (a) At Except as described on Schedule 4.17, with respect to all periods prior to the Closing: (i) Seller's Qualified Decommissioning Fund has been a trust, validly existing under the Laws of the Commonwealth of Massachusetts or the State of Michigan, as applicable, with all requisite authority to conduct its affairs as it now does; (ii) Seller's Qualified Decommissioning Fund satisfied the requirements necessary for such fund to be treated as "Nuclear Decommissioning Reserve Fund" and a "Qualified Nuclear Decommissioning Fund" within the meaning of Treas. Reg. Section 1.468A-1(b)(3); (iii) Seller's Qualified Decommissioning Fund has been in compliance with all applicable Laws of the NRC, FERC, the IRS, MPSC and
Section 1. 468A-5(c)(2)(ii), has been made to Seller's Qualified Decommissioning Fund which has not been withdrawn within the period provided under Treas. Reg.
Section 1. 468A-5(c)(2)(i); and (vi) Seller has timely made valid elections to make annual contributions to the Qualified Decommissioning Fund and Seller has made available copies of such elections requested by the Buyer for the Tax years ended December 31, 2000 through 2004.
(b) Seller has heretofore delivered to Buyer a copy of Seller's Decommissioning Trust Agreement as in effect on the Effective Date.
(c) Subject only to Seller's Required Regulatory Approvals, Seller shall and the Trustee have, or as of Closing will have, all requisite authority to cause the assets of the Qualified Decommissioning Fund to be transferred on behalf of Buyer to the Trustee under of the Post-Closing Decommissioning Trust Agreement all of the assets of the Seller's Qualified Decommissioning Fund, unless prior to such xxxx Xxxxxx shall have received a favorable private letter ruling from the IRS in respect of withdrawing excess decommissioning funds, as contemplated by Section 6.18, in which case Seller shall transfer an amount equal to the Decommissioning Target or such other amount (but not less than the Decommissioning Target) specified in such private letter ruling (the "PLR Decommissioning Amount"). Any assets held by Seller's Qualified Decommissioning Fund that are in excess of the PLR Decommissioning Amount (the "Excess PLR Decommissioning Amount") shall be retained by the Seller's Qualified Decommissioning Fund for distribution to the Seller as provided by the private letter ruling contemplated by Section 6.18.
(b) Buyer shall take all reasonable steps necessary to satisfy any requirements imposed by the NRC regarding the Buyer's Qualified Decommissioning Fund, in a manner sufficient to obtain NRC approval of the transfer of Qualified Decommissioning Fund assets from Seller to Buyer.
(c) The Parties shall not take any actions that would cause the actual Tax consequences of the transactions contemplated by this Agreement to differ from or be inconsistent with the Requested Rulings set forth in Section 6.18Agreement.
(d) With respect to all periods prior to the Closing, (i) Seller shall cause and/or the Trustee of Seller's Qualified Decommissioning Fund has/have filed or caused to pay final expenses be filed with the NRC, FERC, MPSC and any other Governmental Authority all material forms, statements, reports, documents (including all exhibits, amendments and supplements thereto) required to be filed by such entities and (ii) there are no interim rate orders that may be retroactively adjusted or retroactive adjustments to interim rate orders that may affect amounts that may be contributed to the Qualified Decommissioning Fund. Seller has delivered to Buyer a copy of the schedule of ruling amounts most recently issued by the IRS for trustee the Seller's Qualified Decommissioning Fund and investment management fees a complete copy of the currently pending request for revised ruling amounts, together with all exhibits, amendments and other administrative expenses supplements thereto. Any amounts contributed to Seller's Qualified Decommissioning Fund while such ruling request is pending before the IRS and which are finally determined to exceed the applicable amounts provided in the schedule of ruling amounts issued by the IRS will be withdrawn from Seller's Qualified Decommissioning Fund within the period provided in Treasury Reg. 1.468A-5(c)(2)(i).
(e) Seller has made available to Buyer a statement of assets and liabilities verified by the Trustee for the Seller's Qualified Decommissioning Fund as of December 31, 2005 and will make such an unaudited statement as of the last Business Day before Closing available prior to Closing, and they present fairly in all material respects as of such dates the financial position of the Qualified Decommissioning Fund.
(f) Seller's Qualified Decommissioning Fund has filed or as of the Closing Date will have filed all material Tax Returns required to be filed prior to the Closing Date with respect to all taxable periods ending on or prior to the Closing Date, including returns for estimated Income Taxes; such Tax Returns are true, correct and complete in all material respects, and all Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule 4.17, no notice of deficiency or assessment has been received from any taxing authority with respect to any Liability for Taxes of Seller's Qualified Decommissioning Fund to which have not been fully paid or finally settled, and any such deficiency shown in such Schedule 4.17 is being contested in good faith through appropriate proceedings. Except as set forth in Schedule 4.17, there are no outstanding agreements or waivers extending the extent practicable before the Closing. Seller shall cause the Trustee applicable statutory periods of limitations for any Taxes associated with Seller's Qualified Decommissioning Fund to notify Buyer in writing of any such Qualified Decommissioning Fund expenses due after the Closing. Buyer agrees to direct the Trustee of the Post-Closing Qualified Decommissioning Trust Agreement to pay the Qualified Decommissioning Fund expenses identified in the preceding sentence to the extent not paid before the Closing and such amount shall be charged against the Excess Qualified Decommissioning Fund assets, or if such Excess Qualified Decommissioning Fund assets are not sufficient to pay such expenses, Seller shall pay the same. Buyer agrees to ensure that its trust agreements allow for the payment of such expenses.
(e) Any Excess Qualified Decommissioning Fund assets transferred to Buyer pursuant to this Section 6.12 shall be distributed to Seller if and to the extent required by Section 6.20(c).
(f) Seller agrees not to amend Seller's Decommissioning Trust Agreement between the date of this Agreement and the Closing Date without Buyer's prior written consent, which shall not be unreasonably withheld, except for any amendment which may be required to be made to the Seller's Decommissioning Trust Agreement by any Law or to permit the transfers referred to in this Section 6.12 or to permit return to Seller of assets of the Qualified Decommissioning Fund in excess of the Decommissioning Targetperiod.
Appears in 2 contracts
Samples: Asset Sale Agreement (CMS Energy Corp), Asset Sale Agreement (CMS Energy Corp)
Qualified Decommissioning Fund. (a) At Except as described on Section 3.16(a) of the Seller Disclosure Schedule, with respect to all periods prior to the Closing, Seller shall cause to be transferred to the Trustee under the Post-Closing Decommissioning Trust Agreement all of the assets of the : (i) Seller's Qualified Decommissioning Fund, unless prior to such xxxx Xxxxxx shall have received a favorable private letter ruling from the IRS in respect of withdrawing excess decommissioning funds, as contemplated by Section 6.18, in which case Seller shall transfer an amount equal to the Decommissioning Target or such other amount (but not less than the Decommissioning Target) specified in such private letter ruling (the "PLR Decommissioning Amount"). Any assets held by Seller's ’s Qualified Decommissioning Fund that are in excess has been a trust, validly existing under the Laws of the PLR Decommissioning Amount State of Illinois, with all requisite authority to conduct its affairs as it now does; (the "Excess PLR Decommissioning Amount"ii) shall be retained by the Seller's ’s Qualified Decommissioning Fund satisfied the requirements necessary for distribution such fund to be treated as a “Nuclear Decommissioning Fund” and a “Qualified Nuclear Decommissioning Fund” within the meaning of Treas. Reg. §1.468A-1(b)(3); (iii) Seller’s Qualified Decommissioning Fund has been in compliance with all applicable Laws of the NRC, FERC, the IRS, PSCW, MPSC and any other Governmental Authority; (iv) Seller’s Qualified Decommissioning Fund has not engaged in any acts of “self-dealing” as defined in Treas. Reg. § 1.468A-5(b)(2); (v) no “excess contribution,” as defined in Treas. Reg. § 1.468A-5(c)(2)(ii), has been made to Seller’s Qualified Decommissioning Fund which has not been withdrawn within the period provided under Treas. Reg. § 1.468A-5(c)(2)(i); and (vi) Seller has timely made valid elections to make annual contributions to the Qualified Decommissioning Fund since the first taxable year after the establishment of such fund and Seller as provided has made available copies of such elections requested by Buyer for the private letter ruling contemplated by Section 6.18Tax years ended December 31, 2001 through 2005.
(b) Seller has heretofore delivered or made available to Buyer shall take all reasonable steps necessary to satisfy any requirements imposed by the NRC regarding the Buyer's Qualified Decommissioning Fund, in a manner sufficient to obtain NRC approval of the transfer of Qualified Decommissioning Fund assets from Seller to Buyer.
(c) The Parties shall not take any actions that would cause the actual Tax consequences of the transactions contemplated by this Agreement to differ from or be inconsistent with the Requested Rulings set forth in Section 6.18.
(d) Seller shall cause the Trustee copy of Seller's Qualified Decommissioning Fund to pay final expenses for trustee and investment management fees and other administrative expenses of Seller's Qualified Decommissioning Fund to the extent practicable before the Closing. Seller shall cause the Trustee of Seller's Qualified Decommissioning Fund to notify Buyer in writing of any such Qualified Decommissioning Fund expenses due after the Closing. Buyer agrees to direct the Trustee of the Post-Closing Qualified ’s Decommissioning Trust Agreement to pay as in effect on the Qualified Decommissioning Fund expenses identified in the preceding sentence to the extent not paid before the Closing and such amount shall be charged against the Excess Qualified Decommissioning Fund assets, or if such Excess Qualified Decommissioning Fund assets are not sufficient to pay such expenses, Seller shall pay the samedate of this Agreement. Buyer agrees to ensure that its trust agreements allow for the payment of such expenses.
(e) Any Excess Qualified Decommissioning Fund assets transferred to Buyer pursuant to this Section 6.12 shall be distributed to Seller if and to the extent required by Section 6.20(c).
(f) Seller agrees not to amend Seller's ’s Decommissioning Trust Agreement between the date of this Agreement and the Closing Date without Buyer's ’s prior written consent, which shall not be unreasonably withheld, except for any amendment which may be required to be made to the Seller's ’s Decommissioning Trust Agreement by any Law or Law, to permit the transfers referred to in this transfer contemplated by Section 6.12 5.10 or to permit return facilitate receipt of any Required Rulings pursuant to Section 5.15.
(c) Subject only to Seller’s Required Regulatory Approvals, Seller and the Trustee have, or as of Closing will have, all requisite authority to cause the assets of the Qualified Decommissioning Fund in excess to be transferred on behalf of Buyer to the Trustee of the Post-Closing Decommissioning TargetTrust Agreement.
(d) With respect to all periods prior to the Closing, (i) Seller or the Trustee of Seller’s Qualified Decommissioning Fund has filed or caused to be filed with the NRC, FERC, PSCW, MPSC and any other Governmental Authority all material forms, statements, reports, documents (including all exhibits, amendments and supplements thereto) required to be filed by such entities and (ii) there are no interim rate orders that may be retroactively adjusted or retroactive adjustments to interim rate orders that may affect amounts that may be contributed to the Qualified Decommissioning Fund or may require distributions to be made from the Qualified Decommissioning Fund. Seller has delivered or made available to Buyer a copy of the schedule of ruling amounts most recently issued by the IRS for Seller’s Qualified Decommissioning Fund and a complete copy of the currently pending request for revised ruling amounts, together with all exhibits, amendments and supplements thereto. Any amounts contributed to Seller’s Qualified Decommissioning Fund while such ruling request is pending before the IRS and which are finally determined to exceed the applicable amounts provided in the schedule of ruling amounts issued by the IRS will be withdrawn from Seller’s Qualified Decommissioning Fund within the period provided in Treas. Reg. § 1.468A-5(c)(2)(i).
(e) Seller has made available to Buyer a statement of assets and liabilities verified by the Trustee for Seller’s Qualified Decommissioning Fund as of December 31, 2005 and will make such an unaudited statement as of the last Business Day before Closing available within sixty (60) days after the Closing, and they present or will present fairly in all material respects as of such dates the financial position of Seller’s Qualified Decommissioning Fund. There are no Encumbrances for Taxes upon the assets of the Seller’s Qualified Decommissioning Fund other than Permitted Encumbrances.
(f) Seller’s Qualified Decommissioning Fund has filed or as of the Closing Date will have filed all material Tax Returns required to be filed prior to the Closing Date with respect to all taxable periods ending on or prior to the Closing Date, including returns for estimated Income Taxes; such Tax Returns are true, correct and complete in all material respects, and all Taxes shown to be due on such Tax Returns have been paid in full. Except as shown on Section 3.16(f) of the Seller Disclosure Schedule, no notice of deficiency or assessment has been received from any taxing authority with respect to any Liability for Taxes of Seller’s Qualified Decommissioning Fund which have not been fully paid or finally settled, and any such deficiency shown on Section 3.16(f) of the Seller Disclosure Schedule, is being contested in good faith through appropriate proceedings. Except as set forth on Section 3.16(f) of the Seller Disclosure Schedule, there are no outstanding agreements or waivers extending the applicable statutory periods of limitations for any Taxes associated with Seller’s Qualified Decommissioning Fund for any period.
Appears in 1 contract
Qualified Decommissioning Fund. (a) At Seller's Qualified Decommissioning Fund is a trust validly existing and in good standing under the Closinglaws of California with all requisite authority to conduct its affairs as it now does, Seller shall cause subject to be transferred applicable regulatory requirements. The trustee under the Qualified Decommissioning Fund has legal title to the Trustee under the Post-Closing Decommissioning Trust Agreement all assets of the assets Qualified Decommissioning Fund. Seller has heretofore delivered to Purchaser a copy of the Seller's Qualified Decommissioning Fund, unless prior to such xxxx Xxxxxx shall have received a favorable private letter ruling from Fund trust agreement as in effect on the IRS in respect date of withdrawing excess decommissioning funds, as contemplated by Section 6.18, in which case Seller shall transfer an amount equal to the Decommissioning Target or such other amount (but not less than the Decommissioning Target) specified in such private letter ruling (the "PLR Decommissioning Amount")this Agreement. Any assets held by Seller's Qualified Decommissioning Fund that are in excess satisfies the requirements necessary for such Fund to be treated as a "Nuclear Decommissioning Reserve Fund" within the meaning of Code Section 468A(a) and as a "nuclear decommissioning fund" and a "qualified nuclear decommissioning fund" within the PLR Decommissioning Amount (the "Excess PLR Decommissioning Amount") shall be retained by the meaning of Treas. Reg. ss. 1.468A-1(b)(3). Seller's Qualified Decommissioning Fund for distribution is in material compliance with Section 8A.7.2.2 and Section 8A.7.2.3 of the Facilities Co-Tenancy Agreement and all applicable rules and regulations of the NRC, the CPUC, and the IRS, and Seller's Qualified Decommissioning Fund has not engaged in any acts of "self-dealing" as defined in Treas. Reg. ss. 1.468A-5(b)(2). No "excess contribution," as defined in Treas. Reg. ss. 1.468A-5(c)(2)(ii), has been made to Seller's Qualified Decommissioning Fund which has not been withdrawn within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(i). Seller has made timely and valid elections to make annual contributions to the Qualified Decommissioning Fund since the date of the creation of the Qualified Decommissioning Fund. Seller as provided by shall be deemed to have represented and warranted upon Closing that the private letter ruling contemplated by transfer pursuant to Section 6.182.2 was effected in compliance with Section 2.2. There has been and will be no failure on Seller's part to comply with regulations of any Governmental Authority that will result in the transfer of the Qualified Decommissioning Fund not qualifying for the tax consequences specified in Treasury Reg. ss. 1.468A-6(c).
(b) Buyer shall take all reasonable steps necessary Subject only to satisfy any requirements imposed by obtaining Seller's Required Regulatory Approvals, Seller and the NRC regarding the Buyer's Qualified Decommissioning Fundtrustee have, in a manner sufficient to obtain NRC approval or as of the transfer Closing will have, all requisite authority to cause the assets of the Qualified Decommissioning Fund assets from Seller to Buyerbe transferred to Purchaser in accordance with the provisions of this Agreement and applicable Laws.
(c) The Parties shall not take any actions that would cause Seller and/or the actual Tax consequences trustee of the transactions contemplated by this Agreement Qualified Decommissioning Fund has/have filed or caused to differ from be filed (or will file or cause to be inconsistent filed in a timely manner) with the Requested Rulings NRC, the IRS and any relevant state or local authority all material forms, Tax Returns, private letter rulings which set forth ruling amounts, statements, reports and documents (including all exhibits, amendments and supplements thereto) required to be filed by either of them. Subject only to obtaining Seller's Required Regulatory Approvals, Seller has delivered, or will deliver, to Purchaser copies of all schedules of ruling amounts contained in Section 6.18private letter rulings issued by the IRS for the Qualified Decommissioning Fund, copies of the requests that were filed to obtain such schedules of ruling amounts and copies of any pending request for revised ruling amounts, in each case together with all exhibits, amendments and supplements thereto. Any amounts contributed to the Qualified Decommissioning Fund while such request is pending before the IRS and which turn out to exceed the applicable amounts provided in the schedule of ruling amounts issued by the IRS will be withdrawn from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(i). There are no interim rate orders that may be retroactively adjusted or retroactive adjustments in interim rate orders that may materially affect amounts that Purchaser may contribute to the Qualified Decommissioning Fund or may require distributions to be made from the Qualified Decommissioning Fund.
(d) Seller shall cause the Trustee of has made or will, subject to Seller's Qualified Decommissioning Fund Required Regulatory Approvals, cause to pay final expenses for trustee and investment management fees and other administrative expenses of Seller's Qualified Decommissioning Fund make, available to Purchaser (i) the extent practicable before the Closing. most recent funding status report provided by Seller shall cause the Trustee of Seller's Qualified Decommissioning Fund pursuant to notify Buyer in writing of any such Qualified Decommissioning Fund expenses due after the Closing. Buyer agrees to direct the Trustee Section 8A.7A.2.4 of the PostFacilities Co-Tenancy Agreement (the "Funding Status Report"), (ii) all material reports received by Seller since December 31, 1999 and through the Closing Qualified Decommissioning Trust Agreement Date relating to pay the Qualified Decommissioning Fund expenses identified from the trustee of such Fund and/or any investment managers for any portion of the assets in such Fund or otherwise, which reports shall include (without limitation), on at least a quarterly basis and as otherwise reasonably requested by Purchaser, if available, identification of assets and asset categories within the Qualified Decommissioning Fund in form and substance similar to the "Asset Summary by Asset Category" and "Asset Summary" reports included in the Funding Status Report, but including asset detail reports listing individual securities, and (iii) a report in form and substance similar to the Funding Status Report but dated as of the most recent practicable date preceding the Closing Date and including asset detail reports listing individual securities, together with a list of the assets to be transferred pursuant to Section 2.2 hereof as of the Business Day prior to the Closing Date and available information from which Purchaser can reasonably determine the tax basis of all assets in the Qualified Decommissioning Fund as of the last Business Day before Closing. Each report and other information provided pursuant to clause (i) or (iii) of the preceding sentence to shall present fairly the extent not paid before financial position and asset holdings of the Closing and such amount shall be charged against the Excess Qualified Decommissioning Fund assetstrust as of the date shown. There are no liabilities (whether absolute, accrued, contingent or if such Excess otherwise and whether due or to become due), including, without limitation, agency or other legal proceedings, that may materially affect the financial position of the Qualified Decommissioning Fund assets other than those that are not sufficient described in the above reports delivered to pay such expenses, Seller shall pay Purchaser prior to the same. Buyer agrees to ensure that its trust agreements allow for the payment of such expensesEffective Date.
(e) Any Excess Seller has made or, subject to Seller's Required Regulatory Approvals, will cause to make, available to Purchaser all material contracts and agreements to which the trustee of the Qualified Decommissioning Fund assets transferred Fund, in its capacity as such, is a party, and any investment management or similar agreements relating to Buyer pursuant to this Section 6.12 shall be distributed to Seller if and to the extent required by Section 6.20(c)such Qualified Decommissioning Fund.
(f) Seller agrees not to amend Seller's The Qualified Decommissioning Trust Agreement between the date of this Agreement and the Closing Date without Buyer's prior written consent, which shall not be unreasonably withheld, except for any amendment which may be Fund has filed all Tax Returns required to be made filed and all Taxes shown to the Seller's Decommissioning Trust Agreement be due on such Tax Returns have been paid in full. No material notice of deficiency or assessment has been received by Seller from any Law or taxing authority with respect to permit the transfers referred to in this Section 6.12 or to permit return to Seller of assets liability for Taxes of the Qualified Decommissioning Fund which has not been fully paid or finally settled or is not being contested in excess of the Decommissioning Targetgood faith through appropriate proceedings.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pinnacle West Capital Corp)
Qualified Decommissioning Fund. (a) At Except as described on Schedule 4.17, with respect to all periods prior to the Closing, Seller shall cause to be transferred to the Trustee under the Post-Closing Decommissioning Trust Agreement all of the assets of the : (i) Seller's Qualified Decommissioning Fund, unless prior to such xxxx Xxxxxx shall have received a favorable private letter ruling from the IRS in respect of withdrawing excess decommissioning funds, as contemplated by Section 6.18, in which case Seller shall transfer an amount equal to the Decommissioning Target or such other amount (but not less than the Decommissioning Target) specified in such private letter ruling (the "PLR Decommissioning Amount"). Any assets held by Seller's ’s Qualified Decommissioning Fund that are in excess has been a trust, validly existing under the Laws of the PLR Decommissioning Amount Commonwealth of Massachusetts or the State of Michigan, as applicable, with all requisite authority to conduct its affairs as it now does; (the "Excess PLR Decommissioning Amount"ii) shall be retained by the Seller's ’s Qualified Decommissioning Fund satisfied the requirements necessary for distribution such fund to be treated as “Nuclear Decommissioning Reserve Fund” and a “Qualified Nuclear Decommissioning Fund” within the meaning of Treas. Reg. §1.468A-1(b)(3); (iii) Seller’s Qualified Decommissioning Fund has been in compliance with all applicable Laws of the NRC, FERC, the IRS, MPSC and any other Governmental Authority; (iv) Seller’s Qualified Decommissioning Fund has not engaged in any acts of “self-dealing” as defined in Treas. Reg. § 1.468A-5(b)(2); (v) no “excess contribution,” as defined in Treas. Reg. § 1.468A-5(c)(2)(ii), has been made to Seller’s Qualified Decommissioning Fund which has not been withdrawn within the period provided under Treas. Reg. § 1.468A-5(c)(2)(i); and (vi) Seller has timely made valid elections to make annual contributions to the Qualified Decommissioning Fund and Seller as provided has made available copies of such elections requested by the private letter ruling contemplated by Section 6.18Buyer for the Tax years ended December 31, 2000 through 2004.
(b) Seller has heretofore delivered to Buyer shall take all reasonable steps necessary to satisfy any requirements imposed by a copy of Seller’s Decommissioning Trust Agreement as in effect on the NRC regarding the Buyer's Qualified Decommissioning Fund, in a manner sufficient to obtain NRC approval of the transfer of Qualified Decommissioning Fund assets from Seller to BuyerEffective Date.
(c) The Parties shall not take any actions that would Subject only to Seller’s Required Regulatory Approvals, Seller and the Trustee have, or as of Closing will have, all requisite authority to cause the actual Tax consequences of the transactions contemplated by this Agreement to differ from or be inconsistent with the Requested Rulings set forth in Section 6.18.
(d) Seller shall cause the Trustee of Seller's Qualified Decommissioning Fund to pay final expenses for trustee and investment management fees and other administrative expenses of Seller's Qualified Decommissioning Fund to the extent practicable before the Closing. Seller shall cause the Trustee of Seller's Qualified Decommissioning Fund to notify Buyer in writing of any such Qualified Decommissioning Fund expenses due after the Closing. Buyer agrees to direct the Trustee of the Post-Closing Qualified Decommissioning Trust Agreement to pay the Qualified Decommissioning Fund expenses identified in the preceding sentence to the extent not paid before the Closing and such amount shall be charged against the Excess Qualified Decommissioning Fund assets, or if such Excess Qualified Decommissioning Fund assets are not sufficient to pay such expenses, Seller shall pay the same. Buyer agrees to ensure that its trust agreements allow for the payment of such expenses.
(e) Any Excess Qualified Decommissioning Fund assets transferred to Buyer pursuant to this Section 6.12 shall be distributed to Seller if and to the extent required by Section 6.20(c).
(f) Seller agrees not to amend Seller's Decommissioning Trust Agreement between the date of this Agreement and the Closing Date without Buyer's prior written consent, which shall not be unreasonably withheld, except for any amendment which may be required to be made to the Seller's Decommissioning Trust Agreement by any Law or to permit the transfers referred to in this Section 6.12 or to permit return to Seller of assets of the Qualified Decommissioning Fund in excess to be transferred on behalf of Buyer to the Trustee of the Post- Closing Decommissioning TargetTrust Agreement.
(d) With respect to all periods prior to the Closing, (i) Seller and/or the Trustee of Seller’s Qualified Decommissioning Fund has/have filed or caused to be filed with the NRC, FERC, MPSC and any other Governmental Authority all material forms, statements, reports, documents (including all exhibits, amendments and supplements thereto) required to be filed by such entities and (ii) there are no interim rate orders that may be retroactively adjusted or retroactive adjustments to interim rate orders that may affect amounts that may be contributed to the Qualified Decommissioning Fund. Seller has delivered to Buyer a copy of the schedule of ruling amounts most recently issued by the IRS for the Seller’s Qualified Decommissioning Fund and a complete copy of the currently pending request for revised ruling amounts, together with all exhibits, amendments and supplements thereto. Any amounts contributed to Seller’s Qualified Decommissioning Fund while such ruling request is pending before the IRS and which are finally determined to exceed the applicable amounts provided in the schedule of ruling amounts issued by the IRS will be withdrawn from Seller’s Qualified Decommissioning Fund within the period provided in Treasury Reg. 1.468A-5(c)(2)(i).
(e) Seller has made available to Buyer a statement of assets and liabilities verified by the Trustee for the Seller’s Qualified Decommissioning Fund as of December 31, 2005 and will make such an unaudited statement as of the last Business Day before Closing available prior to Closing, and they present fairly in all material respects as of such dates the financial position of the Qualified Decommissioning Fund.
(f) Seller’s Qualified Decommissioning Fund has filed or as of the Closing Date will have filed all material Tax Returns required to be filed prior to the Closing Date with respect to all taxable periods ending on or prior to the Closing Date, including returns for estimated Income Taxes; such Tax Returns are true, correct and complete in all material respects, and all Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule 4.17, no notice of deficiency or assessment has been received from any taxing authority with respect to any Liability for Taxes of Seller’s Qualified Decommissioning Fund which have not been fully paid or finally settled, and any such deficiency shown in such Schedule 4.17 is being contested in good faith through appropriate proceedings. Except as set forth in Schedule 4.17, there are no outstanding agreements or waivers extending the applicable statutory periods of limitations for any Taxes associated with Seller’s Qualified Decommissioning Fund for any period.
Appears in 1 contract
Samples: Asset Sale Agreement
Qualified Decommissioning Fund. (a) At the Closing, Seller shall cause to be transferred to the Trustee under the Post-Closing Decommissioning Trust Agreement all of the assets of the Seller's Qualified Decommissioning Fund, unless prior to such xxxx Xxxxxx shall have received a favorable private letter ruling from the IRS in respect of withdrawing excess decommissioning funds, as contemplated by Section 6.18, in which case Seller shall transfer an amount equal to the Decommissioning Target or such other amount (but not less than the Decommissioning Target) specified in such private letter ruling (the "PLR Decommissioning Amount"). Any assets held by The Seller's Qualified Decommissioning Fund that are in excess is a trust validly existing under the laws of the PLR State of New York with all requisite authority to conduct its affairs as it now does. The Seller has heretofore made available to the Buyer a copy of the Seller's Decommissioning Amount (Trust Agreement as in effect on the "Excess PLR Decommissioning Amount") shall be retained by the date of this Agreement. The Seller's Qualified Decommissioning Fund satisfies the requirements necessary for distribution such Fund to be treated as a "Nuclear Decommissioning Reserve Fund" within the meaning of Code Section 468A(a) and as a "nuclear decommissioning fund" and a "qualified nuclear decommissioning fund" within the meaning of Treas. Reg. Section 1.468A-1(b)(3). Such Fund is in compliance in all material respects with all applicable rules and regulations of the NRC, FERC, the VTDPS, the VTPSB, the IRS and any other Governmental Authority. The Seller has made timely and valid elections to make annual contributions to the Qualified Decommissioning Fund since 1984. The Seller as provided by has heretofore made available copies of such elections to the private letter ruling contemplated by Section 6.18Buyer.
(b) Buyer shall take Subject only to the Seller's Required Regulatory Approvals, the Seller and the Trustee have all reasonable steps necessary requisite authority to satisfy any requirements imposed by cause the NRC regarding the Buyer's Qualified Decommissioning Fund, in a manner sufficient to obtain NRC approval assets of the transfer of Qualified Decommissioning Fund assets from Seller to Buyerbe transferred in accordance with the provisions of this Agreement.
(c) The Parties shall not take any actions that would cause Seller and/or the actual Tax consequences Trustee of the transactions contemplated by this Agreement Qualified Decommissioning Fund has/have filed or caused to differ from or be inconsistent filed with the Requested Rulings set forth NRC, FERC, the IRS and any other Governmental Authority all material forms, statements, reports and documents (including all exhibits, amendments and supplements thereto) required to be filed by such entities. The Seller has made available to the Buyer a copy of the schedule of ruling amounts most recently issued by the IRS for the Qualified Decommissioning Fund, a copy of the request that was filed to obtain such schedule of ruling amounts and a copy of any pending request for revised ruling amounts, in each case together with all exhibits, amendments and supplements thereto. Any amounts contributed to the Qualified Decommissioning Fund while such request is pending before the IRS and which turn out to exceed the applicable amounts provided in the schedule of ruling amounts issued by the IRS will be withdrawn by the Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. Section 6.181.468A-5(c)(2)(i). There are no interim rate orders that may be retroactively adjusted or retroactive adjustments to interim rate orders that may affect amounts that the Buyer may contribute to the Qualified Decommissioning Fund or may require distributions to be made from the Qualified Decommissioning Fund.
(d) The Seller shall cause the Trustee of Seller's Qualified Decommissioning Fund to pay final expenses for trustee and investment management fees and other administrative expenses of Seller's Qualified Decommissioning Fund has made available to the extent practicable before Buyer the Closing. Seller shall cause the Trustee of Seller's Qualified Decommissioning Fund to notify Buyer in writing of any such Qualified Decommissioning Fund expenses due after the Closing. Buyer agrees to direct the Trustee of the Post-Closing Qualified Decommissioning Trust Agreement to pay balance sheets for the Qualified Decommissioning Fund expenses identified as of December 31, 2000, and promptly after becoming available, but in any event prior to Closing, such balance sheets as of December 31, 2001, and for the preceding sentence last quarter prior to Closing, and will make available to the extent not paid before Buyer the Closing and such amount shall be charged against balance sheets for B-1-50 the Excess Qualified Decommissioning Fund assetsas of the last Business Day before Closing, and they present or if such Excess will present, as the case may be, fairly in all material respects as of December 31, 2000 and as of the last Business Day before Closing, as the case may be, the financial position of the Qualified Decommissioning Fund in conformity with generally accepted accounting principles applied on a consistent basis, except as otherwise noted therein. The Seller will make available to the Buyer information from which the Buyer can determine the Tax Basis of all assets in the Qualified Decommissioning Fund as of the last Business Day before Closing. There are not sufficient no liabilities (whether absolute, accrued, contingent or otherwise and whether due or to pay such expensesbecome due), Seller shall pay including, without limitation, any acts of "self-dealing" as defined in Treas. Reg. Section 1.468A-5(b)(2), or agency or other legal proceedings that may materially affect the same. Buyer agrees to ensure financial position of the Qualified Decommissioning Fund other than those, if any, that its trust agreements allow for the payment of such expensesare disclosed in Schedule 4.20(d).
(e) Any Excess The Seller has made available to the Buyer copies of all contracts and agreements to which the Trustee of the Qualified Decommissioning Fund assets transferred to Buyer pursuant to this Section 6.12 shall be distributed to Seller if and to the extent required by Section 6.20(c)Fund, in its capacity as such, is a party.
(f) Seller agrees not to amend Seller's The Qualified Decommissioning Trust Agreement between the date of this Agreement and the Closing Date without Buyer's prior written consent, which shall not be unreasonably withheld, except for any amendment which may be Fund has filed all Tax Returns required to be made filed. Such Tax Returns were true, correct and complete in all material respects and all Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule 4.20(f), no notice of deficiency or assessment has been received from any taxing authority with respect to liability for Taxes of the Seller's Qualified Decommissioning Trust Agreement by Fund which have not been fully paid or finally settled, and any Law such deficiency shown in such Schedule 4.20(f) is being contested in good faith through appropriate proceedings. Except as set forth in Schedule 4.20(f), there are no outstanding agreements or to permit waivers extending the transfers referred to in this Section 6.12 or to permit return to applicable statutory periods of limitations for Taxes associated with the Qualified Decommissioning Fund for any period.
(g) To the extent Seller of has pooled assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in excess periods prior to the Closing, such pooling arrangement is a partnership for federal income tax purposes and the Seller has filed all Tax Returns required to be filed with respect to such pooling arrangement for such periods.
(h) For the period from and including April 1, 2001 to and including June 30, 2001, the Seller has made contributions to the Qualified Decommissioning Fund in accordance with the terms of the Decommissioning TargetFERC approved settlement agreement for rates effective January 1, 1995, at a rate of not less than $8,360,330 per annum, pro rated on a daily basis.
Appears in 1 contract
Qualified Decommissioning Fund. (a) At the Closing, As to each Seller shall cause to be transferred to the Trustee under the Post-Closing Decommissioning Trust Agreement all of the assets of the Seller's that has a Qualified Decommissioning Fund, unless (i) With respect to all periods ending on or prior to the Closing Date on which such xxxx Xxxxxx shall have received a favorable private letter ruling from Seller transfers its Ownership Share: (A) the IRS in respect of withdrawing excess decommissioning funds, as contemplated by Section 6.18, in which case Seller shall transfer an amount equal to the Decommissioning Target or such other amount (but not less than the Decommissioning Target) specified in such private letter ruling (the "PLR Decommissioning Amount"). Any assets held by Seller's Qualified Decommissioning Fund that Fund(s) of such Seller are in excess trust(s), validly existing under the laws of the PLR Decommissioning Amount State of Connecticut with all requisite authority to conduct its affairs as it now does; (B) the "Excess PLR Decommissioning Amount") shall be retained by the Seller's Qualified Decommissioning Fund Fund(s) of such Seller satisfy the requirements necessary for distribution to the Seller as provided by the private letter ruling contemplated by Section 6.18.
(b) Buyer shall take all reasonable steps necessary to satisfy any requirements imposed by the NRC regarding the Buyer's Qualified Decommissioning Fund, in a manner sufficient to obtain NRC approval of the transfer of Qualified Decommissioning Fund assets from Seller to Buyer.
(c) The Parties shall not take any actions that would cause the actual Tax consequences of the transactions contemplated by this Agreement to differ from or be inconsistent with the Requested Rulings set forth in Section 6.18.
(d) Seller shall cause the Trustee of Seller's each such Qualified Decommissioning Fund to pay final expenses for trustee be treated as a "Nuclear Decommissioning Reserve Fund" within the meaning of Section 468A(a) of the Code and investment management fees as a "nuclear decommissioning fund" and other administrative expenses a "qualified nuclear decommissioning fund" within the meaning of Seller's Qualified Decommissioning Fund to the extent practicable before the ClosingTreas. Seller shall cause the Trustee of Seller's Qualified Decommissioning Fund to notify Buyer in writing of any Reg. ss. 1.468A-1(b)(3); (C) each such Qualified Decommissioning Fund expenses due after is in compliance in all material respects with all applicable Laws of any Governmental Authority having jurisdiction (including, without limitation, the Closing. Buyer agrees to direct NRC, the Trustee of DPUC and the Post-Closing IRS), and the Qualified Decommissioning Trust Agreement Fund(s) of such Seller have not engaged in any acts of "self-dealing" as defined in Treas. Reg. ss. 1.468A- 5(b)(2); (D) no "excess contribution," as defined in Treas. Reg. ss. 1.468A-5(c)(2)(ii), has been made to pay any Qualified Decommissioning Fund(s) of such Seller which has not been withdrawn within the period provided under Treas. Reg. ss.
1. 468A-5(c)(2)(i); and (E) such Seller has made timely and valid elections to make annual contributions to its Qualified Decommissioning Fund(s) since and including such Seller's taxable year ending after July 18, 1984 (and in the case of the Qualified Decommissioning Fund expenses identified in the preceding sentence maintained for Millstone Unit 3, since and including such Seller's taxable year ending after April, 1986) and has heretofore delivered copies of such elections to the extent not paid before the Closing and such amount shall be charged against the Excess Qualified Decommissioning Fund assets, or if such Excess Qualified Decommissioning Fund assets are not sufficient to pay such expenses, Buyer. Such Seller shall pay the same. Buyer agrees to ensure that its trust agreements allow for the payment of such expenses.
(e) Any Excess Qualified Decommissioning Fund assets transferred to Buyer pursuant to this Section 6.12 shall be distributed to Seller if and has heretofore delivered to the extent required by Section 6.20(c).
(fBuyer a copy of its Decommissioning Trust Agreement(s) as in effect on the Effective Date. Such Seller agrees not to amend Seller's its Decommissioning Trust Agreement Agreement(s) between the date of this Agreement Effective Date and the Closing Date on which such Seller transfers its Ownership Share without the Buyer's prior written consent, which shall not be unreasonably withheld.
(ii) Subject only to Seller Regulatory Approvals, except such Seller and the Trustee(s) have or shall have prior to the Initial Closing Date or Subsequent Closing Date, as the case may be, all requisite right, power and authority to cause the assets of each Qualified Decommissioning Fund to be transferred to the Buyer's Qualified Decommissioning Fund in accordance with the provisions of this Agreement.
(iii) With respect to all periods ending on or prior to the Closing Date on which such Seller transfers its Ownership Share, (A) such Seller and/or the Trustee(s) -36-
(iv) Such Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee(s) for its Qualified Decommissioning Fund(s) as of June 30, 2000, and such statement of assets or liabilities will be updated by such Trustee as of the second Business Day before such Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents fairly as of June 30, 2000, and which updated statement will fairly present as of the last Business Day prior to such Closing Date on which such Seller transfers its Ownership Share, the financial position of each Qualified Decommissioning Fund. Each Seller will make available to the Buyer information from which the Buyer can determine the Tax Basis of all assets in such Seller's Qualified Decommissioning Fund(s) as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Share. There are no Liabilities (whether absolute, accrued, contingent or otherwise and whether due or to become due), including, but not limited to, any amendment acts of "self-dealing" as defined in Treas. Reg. ss. 1.468A-5(b)(2) or agency or other legal proceedings that may materially affect the financial position of the Qualified Decommissioning Funds other than those, if any, that are disclosed on Schedule 3.2(v).
(v) Such Seller has made available to the Buyer copies of all contracts and agreements to which may be the Trustee(s) of the Qualified Decommissioning Fund(s), in its capacity as such, is a party.
(vi) With respect to all periods ending on or prior to the Closing Date on which such Seller transfers its Ownership Shares, such Seller's Qualified Decommissioning Fund(s) have filed all Tax Returns required to be made filed and all material Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in -37-
(vii) To the Seller's Decommissioning Trust Agreement by any Law or to permit extent such Seller has pooled the transfers referred to in this Section 6.12 or to permit return to Seller of assets of the Qualified Decommissioning Fund Fund(s) with those of any other assets for investment purposes in excess of the Decommissioning Targetperiods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes and all Tax Returns required to be filed with respect to such pooling arrangement have been filed.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Dominion Resources Inc /Va/)
