Qualified Decommissioning Funds. With respect to each Seller other ------------------------------- than a Seller organized by or under the Order of a Governmental Authority: (a) (i) The Qualified Decommissioning Fund of such Seller is a trust, validly existing under the Laws of the State of New Hampshire with all requisite authority to conduct its affairs as it now does; (ii) the Qualified Decommissioning Fund of such Seller satisfies the requirements necessary for each such Qualified Decommissioning Fund to be treated as a "Nuclear Decommissioning Reserve Fund" within the meaning of Section 468A(a) of the Code and as a "nuclear decommissioning fund" and a "qualified nuclear decommissioning fund" within the meaning of Treas. Reg. paragraph 1.468A-1(b)(3); (iii) each such Qualified Decommissioning Fund is in compliance in all material respects withall applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUC, the NDFC, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB and the IRS), and the Qualified Decommissioning Fund of such Seller has not engaged in any material acts of "self-dealing" as defined in Treas. Reg. parargraph 1.468A-5(b)(2); (iv) no "excess contribution," as defined in Treas. Reg. parargraph 1.468A-5(c)(2)(ii), has been made to the Qualified Decommissioning Fund of such Seller which has not been withdrawn within the period provided under Treas. Reg. parargraph 1.468A-5(c)(2)(i); and (v) such Seller has made timely and valid elections to make annual contributions to its Qualified Decommissioning Fund since the first taxable year after establishment of such fund and has heretofore made available copies of such elections to the Buyer. Such Seller has heretofore made available to the Buyer a copy of its Decommissioning Trust Agreement as in effect on the Effective Date. (b) Subject only to Seller Regulatory Approvals and approval by the NDFC of Buyer's Funding Assurance pursuant to RSA 162-F, such Seller and the Trustee 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. (i) Such Seller and/or the Trustee of the Qualified Decommissioning Funds has/have filed or caused to be filed with the NRC, the IRS and all other applicable Governmental Authorities 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 to be contributed by the Buyer to the Qualified Decommissioning Funds or to be distributed from the Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund. Such Seller has made available to the Buyer a copy of the schedules o of ruling amounts (the "IRS Ruling Amounts") most recently issued by the IRS for the Qualified Decommissioning Fund, a copy of the requests that were filed to o btain such IRS Ruling Amounts and a copy of any pending request for revised IRS Ruling Amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Qualified Decommissioning Fund while such request(s) is/are pending before the IRS which exceed the applicable amounts provided in the IRS Ruling Amounts issued by the IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(i), subject to the approval by the Office of the State Treasurer of New Hampshire of such withdrawal, as applicable. (d) Such Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee for its Qualified Decommissioning Fund as of February 28, 2002, and such statement of assets and liabilities will be verified by such Trustee as of the second Business Day before the Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents fairly as of February 28, 2002, and will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Share, the financial position of each Qualified Decommissioning Fund. Each Seller will make available to Buyer information from which Buyer can determine the Tax Basis of all assets in such Seller's Qualified Decommissioning Fund 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 acts of "self-dealing" as defined in Treas. Reg. parargraph 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 3.8. ------------ (e) Such Seller has made available to the Buyer copies of all contracts and agreements to which the Trustee of the Qualified Decommissioning Fund, in its capacity as such, is a party. (f) Such Seller's Qualified Decommissioning Fund has filed all Tax Returns required to be filed and all material Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule 3.8, no notice of ------------ deficiency or assessment has been received from any taxing authority with respect to liability for Taxes of any such Seller's Qualified Decommissioning Fund which have not been fully paid or Finally settled, and any such deficiency shown in such Schedule 3.8 is being contested in good faith through appropriate ------------ proceedings. Except as set forth in Schedule 3.8, there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with the Qualified Decommissioning Funds for any period. (g) To the extent such Seller has pooled the assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-
Appears in 1 contract
Qualified Decommissioning Funds. With respect to each Seller other ------------------------------- than a Seller organized by or under the Order of a Governmental Authority:
(a) Except as disclosed on Schedule 3.16, the Company is the sole owner of the AmerGen Clinton-1 Qualified Fund, AmerGen Three Mile Island-1 Qualified Fund and AmerGen Oyster Creek Qualified Fund (i) The collectively, the Qualified Decommissioning Fund Funds), each of such Seller which is, and since its inception has been, treated as a nuclear decommissioning reserve fund in accordance with Code Section 468A and is therefore treated as a corporation in accordance with Code Section 468A(e)(2)(D). Each of the Company’s Qualified Decommissioning Funds is a trust, validly existing and in good standing under the Laws laws of the State jurisdiction of New Hampshire its formation with all requisite authority to conduct its affairs as it now does; (ii) . Seller has heretofore made available to Buyer a copy of the Decommissioning Trust Agreement provided by the Company as in effect on the date of this Agreement. Seller agrees to furnish Buyer with copies of all amendments to the Decommissioning Trust Agreement adopted after the date of this Agreement promptly after each such amendment has been adopted and provided by the Company to Seller. Each of the Company’s Qualified Decommissioning Fund of such Seller Funds satisfies the requirements necessary for each such Qualified Decommissioning Fund fund to be treated as a "“Nuclear Decommissioning Reserve Fund" ” within the meaning of Section Code section 468A(a) of the Code and as a "“nuclear decommissioning fund" ” and a "“qualified nuclear decommissioning fund" ” within the meaning of Treas. Reg. paragraph 1.468A-1(b)(3Section 1.468 A-1 (b)(3); (iii) each . Each such Qualified Decommissioning Fund fund is in compliance in all material respects withall with all applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUCPaPUC, the NDFCNJBPU, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB FERC and the IRSICC). Except as set forth in Schedule 3.16, and none of the Company’s Qualified Decommissioning Fund of such Seller Funds has not engaged in any material acts of "“self-dealing" ” as defined in Treas. Reg. parargraph 1.468A-5(b)(2Section 1,468A-5(b)(2); (iv) no ". No “excess contribution," ” as defined in Treas. Reg. parargraph Section 1.468A-5(c)(2)(ii), has been made to the Company’s Qualified Decommissioning Fund of such Seller Funds which has not been withdrawn within the period provided under Treas. Reg. parargraph Section 1.468A-5(c)(2)(i); and (v) such Seller has made timely and valid elections to make annual for withdrawals of excess contributions to its Qualified Decommissioning Fund since be made without resulting in a disqualification of the first taxable year after establishment of such fund and has heretofore made available copies of such elections to the Buyerfunds under Treas. Such Seller has heretofore made available to the Buyer a copy of its Decommissioning Trust Agreement as in effect on the Effective DateReg.
Section 1. 468A-5(c)(1).
(b) Subject only to Seller Regulatory Approvals and approval by The Company and/or the NDFC of Buyer's Funding Assurance pursuant to RSA 162-F, such Seller and the Trustee 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 trustee of each Qualified Decommissioning Fund to be transferred to the Buyer's Qualified Decommissioning Fund in accordance with the provisions of this Agreement.
(i) Such Seller and/or the Trustee of the Qualified Decommissioning Funds has/have filed or caused to be filed with the NRC, the IRS and all other applicable any state or local Governmental Authorities Authority all material forms, statements, reports, documents (including all exhibits, amendments and supplements thereto) required to be filed by such entities; any of them. As of the Closing, the Company has not requested a revised schedule of ruling amounts and (ii) there are no interim rate orders that may be retroactively adjusted or retroactive adjustments to interim rate orders that may affect has not contributed any amounts to be contributed by the Buyer to the Qualified Decommissioning Funds or to be distributed from during the period that the Company has held such Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund. Such Funds.
(c) Seller has made available to Buyer the Buyer a copy of the schedules o of ruling amounts (the "IRS Ruling Amounts") most recently issued trustee statements provided by the IRS Company for each of the Qualified Decommissioning Fund, a copy of the requests that were filed to o btain such IRS Ruling Amounts and a copy of any pending request for revised IRS Ruling Amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Qualified Decommissioning Fund while such request(s) is/are pending before the IRS which exceed the applicable amounts provided in the IRS Ruling Amounts issued by the IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(i), subject to the approval by the Office of the State Treasurer of New Hampshire of such withdrawal, as applicable.
(d) Such Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee for its Qualified Decommissioning Fund Funds as of February 28December 31, 2002, and such statement of assets and liabilities will be verified by such Trustee as of the second Business Day before the Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents they present fairly as of February 28, 2002, and will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Share, date the financial position of each of the Qualified Decommissioning FundFunds. Each Seller has made or will make available available, or has caused or will cause to be made available, to Buyer information from which Buyer can determine the Tax Basis of all assets in such Seller's the Qualified Decommissioning Fund Funds as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership ShareDecember 31, 2002. There are no Liabilities (whether absoluteLiabilities, accrued, contingent or otherwise and whether due or to become due), including, but not limited to, including any acts of "“self-dealing" ” as defined in Treas. Reg. parargraph Section 1.468A-5(b)(2) or agency or other legal proceedings that may materially affect the financial position of each of the Qualified Decommissioning Funds other than those, if any, that are disclosed on Schedule 3.8. ------------3.16.
(ed) Such Seller has made available to the Buyer copies of all contracts and agreements provided by the Company to which the Trustee trustee of each of the Qualified Decommissioning FundFunds, in its capacity as such, is a party.
(fe) Such Seller's Each of the Qualified Decommissioning Fund Funds has filed all material Tax Returns required to be filed and all material Taxes Taxes, whether or not shown to be due on such Tax Returns Returns, have been paid in full. Except as shown in disclosed on Schedule 3.83.16, no notice of ------------ deficiency or assessment has been received from any taxing authority Taxing Authority with respect to liability Liability for Taxes of any such Seller's each of the Qualified Decommissioning Fund Funds which have not been fully paid or Finally finally settled, and any such deficiency shown in such Schedule 3.8 3.16 is being contested in good faith through appropriate ------------ proceedings. Except as set forth in disclosed on Schedule 3.83.16, to Seller’s Knowledge there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with each of the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-
Appears in 1 contract
Qualified Decommissioning Funds. With respect to each Seller other ------------------------------- than a Seller organized by or under the Order of a Governmental Authority:
(a) (i) The Seller's Qualified Decommissioning Fund of such Seller is Funds are held in a trust, trust validly existing and in good standing under the Laws laws of the State of New Hampshire Texas with all requisite authority to conduct its affairs as it now does; (ii) , subject to applicable regulatory requirements. Seller has heretofore delivered to each Purchaser a copy of the trust agreement that governs Seller's Qualified Decommissioning Fund Funds as in effect on the date of such Seller satisfies this Agreement. Seller's Qualified Decommissioning Funds satisfy the requirements necessary for each such Qualified Decommissioning Fund them to be treated as a "Nuclear Decommissioning Reserve FundFunds" within the meaning of Code Section 468A(a) of the Code and as a "nuclear decommissioning fundfunds" and a "qualified nuclear decommissioning fundfunds" within the meaning of Treas. Reg. paragraph ss. 1.468A-1(b)(3); (iii) each such . Seller's Qualified Decommissioning Fund is Funds are in compliance in all material respects withall with all applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUC, the NDFC, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB PUCT and the IRS), and the Seller's Qualified Decommissioning Fund of such Seller has Funds have not engaged in any material acts of "self-dealing" as defined in Treas. Reg. parargraph ss. 1.468A-5(b)(2); (iv) no . No "excess contribution," as defined in Treas. Reg. parargraph ss. 1.468A-5(c)(2)(ii), has been made to the Seller's Qualified Decommissioning Fund of such Seller which Funds that has not been withdrawn within the period provided under Treas. Reg. parargraph ss. 1.468A-5(c)(2)(i); and (v) such . Seller has made timely and valid elections to make annual monthly contributions to its Seller's Qualified Decommissioning Fund Funds since the first taxable year after establishment date of such fund and has heretofore made available copies the creation of such elections to the Buyer. Such Seller has heretofore made available to the Buyer a copy of its Seller's Qualified Decommissioning Trust Agreement as in effect on the Effective DateFunds.
(b) Subject only to Seller obtaining Seller's Required Regulatory Approvals and approval by the NDFC of Buyer's Funding Assurance pursuant to RSA 162-FApprovals, such Seller and the Trustee have trustee have, or shall have prior as of the Closing will have, all requisite authority to cause each Purchaser's Proportionate Share of the Initial Closing Date assets of Seller's Qualified Decommissioning Funds to be transferred to such Purchaser's Qualified Decommissioning Funds or Subsequent Closing Datesuch Purchaser's Nonqualified Decommissioning Funds, 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.
(ic) Such Seller and/or the Trustee trustee of the Seller's Qualified Decommissioning Funds has/have filed or caused to be filed (or will file or cause to be filed in a timely manner) with the NRC, the IRS and all other applicable Governmental Authorities any relevant state or local authority all material forms, Tax Returns, private letter rulings which set forth ruling amounts, statements, reports, reports and 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 either of them. Subject only to interim rate orders that may affect amounts to be contributed by the Buyer to the Qualified Decommissioning Funds or to be distributed from the Qualified Decommissioning Funds to the Buyerobtaining Seller's Qualified Decommissioning Fund. Such Required Regulatory Approvals, Seller has made available delivered, or will deliver, to the Buyer a copy each Purchaser copies of the most recent schedules o of ruling amounts (the "IRS Ruling Amounts") most recently contained in private letter rulings issued by the IRS for the Seller's Qualified Decommissioning FundFunds, a copy copies of the requests that were filed to o btain obtain such IRS Ruling Amounts schedules of ruling amounts and a copy copies of any pending request for revised IRS Ruling Amountsruling amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Seller's Qualified Decommissioning Fund Funds while any such request(s) is/are request is pending before the IRS and which turn out to exceed the applicable amounts provided in the IRS Ruling Amounts schedule of ruling amounts issued by the IRS will be withdrawn by such Seller from the Seller's Qualified Decommissioning Fund Funds within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(i), subject . There are no interim rate orders that may be retroactively adjusted or retroactive adjustments in interim rate orders that may materially affect amounts that each Purchaser may contribute to the approval by the Office its Proportionate Share of the State Treasurer of New Hampshire of such withdrawal, as applicableSeller's Qualified Decommissioning Funds or may require distributions to be made from Seller's Qualified Decommissioning Funds.
(d) Such Seller (i) has made available to the Buyer each Purchaser a statement of assets and liabilities verified by the Trustee trustee for its Seller's Qualified Decommissioning Fund Funds as of February 28December 31, 20022003, and such (ii) will make available to each Purchaser on or before the last Business Day prior to the Closing Date a statement of assets and liabilities will be verified by such Trustee the trustee for Seller's Qualified Decommissioning Funds as of the second Business Day before the Closing Date on which such Seller transfers its Ownership ShareDate, which statement statements of assets and liabilities presents fairly as of February 28present fairly, 2002, and or when made available will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Sharefairly, in all material respects, the financial position of each Seller's Qualified Decommissioning FundFunds as of the dates thereof. Each Seller will make available to Buyer each Purchaser available information from which Buyer each Purchaser can reasonably determine the Tax Basis tax basis of its Proportionate Share of all assets in such Seller's Qualified Decommissioning Fund Funds as of the second last Business Day prior to the Closing Date on which such Seller transfers its Ownership Sharebefore Closing. There are no Liabilities liabilities (whether absolute, accrued, contingent or otherwise and whether due or to become due), including, but not limited towithout limitation, any acts of "self-dealing" as defined in Treas. Reg. parargraph 1.468A-5(b)(2) or agency or other legal proceedings proceedings, that may materially affect the financial position of the Seller's Qualified Decommissioning Funds other than those, if any, those that are disclosed described in such statement made available to each Purchaser prior to the Effective Date or on Schedule 3.8. ------------4.7.
(e) Such Seller has made available to the Buyer copies of each Purchaser all material contracts and agreements to which the Trustee trustee of the Seller's Qualified Decommissioning FundFunds, in its capacity as such, is a party.
(f) Such Seller's Qualified Decommissioning Fund has Funds have filed all Tax Returns required to be filed and all material Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule 3.8, no No notice of ------------ deficiency or assessment has been received by Seller from any taxing authority with respect to liability for Taxes of any such Seller's Qualified Decommissioning Fund Funds which have has not been fully paid or Finally settled, and any such deficiency shown in such Schedule 3.8 finally settled or is not being contested in good faith through appropriate ------------ proceedings. Except as set forth in Schedule 3.8, there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Seller's Qualified Decommissioning Fund with those of any other assets Funds for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-.
Appears in 1 contract
Qualified Decommissioning Funds. (a) With respect to each Seller other ------------------------------- than a Seller organized by or under all periods prior to the Order of a Governmental Authority:
(a) Closing Date: (i) The each Seller's Qualified Decommissioning Fund of such Seller is a trust, validly existing under the Laws laws of the State of New Hampshire York with all requisite authority to conduct its affairs as it now does; (ii) the each Seller's Qualified Decommissioning Fund of such Seller satisfies the requirements necessary for each such Qualified Decommissioning Fund to be treated as a "Nuclear Decommissioning Reserve Fund" within the meaning of Code Section 468A(a) of the Code and as a "nuclear decommissioning fundDecommissioning Fund" and a "qualified nuclear decommissioning fundDecommissioning Fund" within the meaning of Treas. Reg. paragraph (S) 1.468A-1(b)(3); (iii) each such Qualified Decommissioning Fund is in compliance in all material respects withall with all applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUC, the NDFC, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB NYPSC and the IRS), and the each Seller's Qualified Decommissioning Fund of such Seller has not engaged in any material acts of "self-dealing" as defined in Treas. Reg. parargraph 1.468A-5(b)(2(S) 1.468A- 5(b)(2); (iv) no "excess contribution," as defined in Treas. Reg. parargraph 1.468A-5(c)(2)(ii(S) 1.468A- 5(c)(2)(ii), has been made to the each Seller's Qualified Decommissioning Fund of such Seller which has not been withdrawn within the period provided under Treas. Reg. parargraph 1.468A-5(c)(2)(i(S) 1.468A- 5(c)(2)(i); and (v) such each Seller has made timely and valid elections to make annual contributions to its the Qualified Decommissioning Fund since the first taxable year after establishment of such fund 1984 and each Seller has heretofore made available delivered copies of such elections to the Buyer. Such Each Seller has heretofore made available delivered to the Buyer a copy of its each Seller's Decommissioning Trust Agreement as in effect on the Effective Datedate of this Agreement. Each 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 to permit the transfer referred to in Section 6.12(a).
(b) Subject only to Seller each Seller's Required Regulatory Approvals and approval by the NDFC of Buyer's Funding Assurance pursuant to RSA 162-FApprovals, such each Seller and the Trustee have have, or shall have prior to the Initial as of Closing Date or Subsequent Closing Date, as the case may bewill have, all requisite right, power and authority to cause the assets of each the Qualified Decommissioning Fund to be transferred to the Buyer's Qualified Trustee of the Post-Closing Decommissioning Fund in accordance with the provisions of this Trust Agreement.
(c) With respect to all periods prior to the Closing Date, (i) Such each Seller and/or the Trustee of the Qualified Decommissioning Funds Fund has/have filed or caused to be filed with the NRC, the IRS and all other applicable Governmental Authorities any state or local 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 to be contributed by the that Buyer may contribute to the Qualified Decommissioning Funds Fund or may require distributions to be distributed made from the Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund. Such Each Seller has made available delivered to the Buyer a copy of the schedules o schedule of ruling amounts (the "IRS Ruling Amounts") most recently issued by the IRS for the Qualified Decommissioning Fund, a copy of the requests request that were was filed to o btain obtain such IRS Ruling Amounts schedule of ruling amounts and a copy of any pending request for revised IRS Ruling Amountsruling amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Qualified Decommissioning Fund while such request(s) is/are request is pending before the IRS and which turn out to exceed the applicable amounts provided in the IRS Ruling Amounts schedule of ruling amounts issued by the IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(i(S) 1.468A- 5(c)(2)(i), subject to the approval by the Office of the State Treasurer of New Hampshire of such withdrawal, as applicable.
(d) Such Each Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee for its the respective Qualified Decommissioning Fund Funds as of February 28December 31, 2002, 1999 and such statement of assets and liabilities will be verified by such Trustee as of the second Business Day before the Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents they present fairly as of February 28December 31, 2002, 1999 and will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Sharebefore Closing, the financial position of each respective Qualified Decommissioning Fund. Each Seller will make has made available to Buyer information from which Buyer can determine the Tax Basis of all assets in such Seller's the Qualified Decommissioning Fund 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 acts of "self-dealing" as defined in Treas. Reg. parargraph 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 3.8. ------------before Closing.
(e) Such Each Seller has made available to the Buyer copies of all contracts and agreements to which the Trustee of the Qualified Decommissioning Fund, in its capacity as such, is a party.
(f) Such With respect to all periods prior to the Closing Date, each Seller's Qualified Decommissioning Fund has filed all Tax Returns required to be filed filed, such Tax Returns are true, correct and complete in all material respects, and all material Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule 3.84.21, no notice of ------------ deficiency or assessment has been received from any taxing authority with respect to liability for Taxes of any such each Seller's Qualified Decommissioning Fund which have not been fully paid or Finally finally settled, and any such deficiency shown in such Schedule 3.8 4.21 is being contested in good faith through appropriate ------------ proceedings. Except as set forth in Schedule 3.84.21, there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-
Appears in 1 contract
Samples: Asset Purchase Agreement (Rochester Gas & Electric Corp)
Qualified Decommissioning Funds. (a) With respect to each Seller other ------------------------------- than a Seller organized by or under all periods prior to the Order of a Governmental Authority:
(a) Closing Date: (i) The Seller's Qualified Decommissioning Fund of such Seller is a trust, validly existing under the Laws laws of the State of New Hampshire York with all requisite authority to conduct its affairs as it now does; (ii) the Seller's Qualified Decommissioning Fund of such Seller satisfies the requirements necessary for each such Qualified Decommissioning Fund to be treated as a "Nuclear Decommissioning Reserve Fund" within the meaning of Code Section 468A(a) of the Code and as a "nuclear decommissioning fundDecommissioning Fund" and a "qualified nuclear decommissioning fundDecommissioning Fund" within the meaning of Treas. Reg. paragraph 1.468A-1(b)(3); (iii) each such Qualified Decommissioning Fund is in compliance in all material respects withall with all applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUC, the NDFC, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB NYPSC and the IRS), and the Seller's Qualified Decommissioning Fund of such Seller has not engaged in any material acts of "self-dealing" as defined in Treas. Reg. parargraph 1.468A-5(b)(2); (iv) no "excess contribution," as defined in Treas. Reg. parargraph 1.468A-5(c)(2)(ii), has been made to the Seller's Qualified Decommissioning Fund of such Seller which has not been withdrawn within the period provided under Treas. Reg. parargraph 1.468A-5(c)(2)(i1.468A-5(c) (2)(i); and (v) such Seller has made timely and valid elections to make annual contributions to its the Qualified Decommissioning Fund since the first taxable year after establishment of such fund 1984 and Seller has heretofore made available delivered copies of such elections to the Buyer. Such Seller has heretofore made available delivered to the Buyer a copy of its Seller's Decommissioning Trust Agreement as in effect on the Effective Datedate of this Agreement. 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 to permit the transfer referred to in Section 6.12(a).
(b) Subject only to Seller Seller's Required Regulatory Approvals and approval by the NDFC of Buyer's Funding Assurance pursuant to RSA 162-FApprovals, such Seller and the Trustee have have, or shall have prior to the Initial as of Closing Date or Subsequent Closing Date, as the case may bewill have, all requisite right, power and authority to cause the assets of each the Qualified Decommissioning Fund to be transferred to the Buyer's Qualified Trustee of the Post-Closing Decommissioning Fund in accordance with the provisions of this Trust Agreement.
(c) With respect to all periods prior to the Closing Date, (i) Such Seller and/or the Trustee of the Qualified Decommissioning Funds Fund has/have filed or caused to be filed with the NRC, the IRS and all other applicable Governmental Authorities any state or local 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 to be contributed by the that Buyer may contribute to the Qualified Decommissioning Funds Fund or may require distributions to be distributed made from the Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund. Such Seller has made available delivered to the Buyer a copy of the schedules o schedule of ruling amounts (the "IRS Ruling Amounts") most recently issued by the IRS for the Qualified Decommissioning Fund, a copy of the requests request that were was filed to o btain obtain such IRS Ruling Amounts schedule of ruling amounts and a copy of any pending request for revised IRS Ruling Amountsruling amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Qualified Decommissioning Fund while such request(s) is/are request is pending before the IRS and which turn out to exceed the applicable amounts provided in the IRS Ruling Amounts schedule of ruling amounts issued by the IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(i), subject to the approval by the Office of the State Treasurer of New Hampshire of such withdrawal, as applicable.
(d) Such Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee for its the respective Qualified Decommissioning Fund Funds as of February 28December 31, 2002, 1999 and such statement of assets and liabilities will be verified by such Trustee as of the second Business Day before the Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents they present fairly as of February 28December 31, 2002, 1999 and will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Sharebefore Closing, the financial position of each respective Qualified Decommissioning Fund. Each Seller will make has made available to Buyer information from which Buyer can determine the Tax Basis of all assets in such Seller's the Qualified Decommissioning Fund 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 acts of "self-dealing" as defined in Treas. Reg. parargraph 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 3.8. ------------before Closing.
(e) Such Seller has made available to the Buyer copies of all contracts and agreements to which the Trustee of the Qualified Decommissioning Fund, in its capacity as such, is a party.
(f) Such With respect to all periods prior to the Closing Date, Seller's Qualified Decommissioning Fund has filed all Tax Returns required to be filed filed, such Tax Returns are true, correct and complete in all material respects, and all material Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule 3.84.21, no notice of ------------ deficiency or assessment has been received from any taxing authority with respect to liability for Taxes of any such Seller's Qualified Decommissioning Fund which have not been fully paid or Finally finally settled, and any such deficiency shown in such Schedule 3.8 4.21 is being contested in good faith through appropriate ------------ proceedings. Except as set forth in Schedule 3.84.21, there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-
Appears in 1 contract
Samples: Asset Purchase Agreement (Niagara Mohawk Power Corp /Ny/)
Qualified Decommissioning Funds. With respect to each Seller other ------------------------------- than a Seller organized by or under the Order of a Governmental Authority:
(a) Except as disclosed on Schedule 3.16, the Company is the sole owner of the AmerGen Clinton-l Qualified Fund, AmerGen Three Mile Island-l Qualified Fund and AmerGen Oyster Creek Qualified Fund (i) The collectively, the Qualified Decommissioning Fund Funds), each of such Seller which is, and since its inception has been, treated as a nuclear decommissioning reserve fund in accordance with Code Section 468A and is therefore treated as a corporation in accordance with Code Section 468A(e)(2)(D). Each of the Company's Qualified Decommissioning Funds is a trust, validly existing and in good standing under the Laws laws of the State jurisdiction of New Hampshire its formation with all requisite authority to conduct its affairs as it now does; (ii) . Seller has heretofore made available to Buyer a copy of the Decommissioning Trust Agreement provided by the Company as in effect on the date of this Agreement. Seller agrees to furnish Buyer with copies of all amendments to the Decommissioning Trust Agreement adopted after the date of this Agreement promptly after each such amendment has been adopted and provided by the Company to Seller. Each of the Company's Qualified Decommissioning Fund of such Seller Funds satisfies the requirements necessary for each such Qualified Decommissioning Fund fund to be treated as a "Nuclear Decommissioning Reserve Fund" within the meaning of Section Code section 468A(a) of the Code and as a "nuclear decommissioning fund" and a "qualified nuclear decommissioning fund" within the meaning of Treas. Reg. paragraph 1.468A-1(b)(3Section 1.468A- I (b)(3); (iii) each . Each such Qualified Decommissioning Fund fund is in compliance in all material respects withall with all applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUCPaPUC, the NDFCNJBPU, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB FERC and the IRSICC). Except as set forth in Schedule 3.16, and none of the Company's Qualified Decommissioning Fund of such Seller Funds has not engaged in any material acts of "self-dealing" as defined in Treas. Reg. parargraph Section 1.468A-5(b)(2); (iv) no . No "excess contribution," as defined in Treas. Reg. parargraph Section 1.468A-5(c)(2)(ii), has been made to the Company's Qualified Decommissioning Fund of such Seller Funds which has not been withdrawn within the period provided under Treas. Reg.
Section 1. parargraph 1.468A-5(c)(2)(i); and (v468A-5(c)(2)(i) such Seller has made timely and valid elections to make annual for withdrawals of excess contributions to its Qualified Decommissioning Fund since be made without resulting in a disqualification of the first taxable year after establishment of such fund and has heretofore made available copies of such elections to the Buyerfunds under Treas. Such Seller has heretofore made available to the Buyer a copy of its Decommissioning Trust Agreement as in effect on the Effective DateReg.
Section 1. 468A-5(c)(l).
(b) Subject only to Seller Regulatory Approvals and approval by The Company and/or the NDFC of Buyer's Funding Assurance pursuant to RSA 162-F, such Seller and the Trustee 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 trustee of each Qualified Decommissioning Fund to be transferred to the Buyer's Qualified Decommissioning Fund in accordance with the provisions of this Agreement.
(i) Such Seller and/or the Trustee of the Qualified Decommissioning Funds has/have filed or caused to be filed with the NRC, the IRS and all other applicable any state or local Governmental Authorities Authority all material forms, statements, reports, documents (including all exhibits, amendments and supplements thereto) required to be filed by such entities; any of them. As of the Closing, the Company has not requested a revised schedule of ruling amounts and (ii) there are no interim rate orders that may be retroactively adjusted or retroactive adjustments to interim rate orders that may affect has not contributed any amounts to be contributed by the Buyer to the Qualified Decommissioning Funds or to be distributed from during the period that the Company has held such Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund. Such Funds.
(c) Seller has made available to Buyer the Buyer a copy of the schedules o of ruling amounts (the "IRS Ruling Amounts") most recently issued trustee statements provided by the IRS Company for each of the Qualified Decommissioning Fund, a copy of the requests that were filed to o btain such IRS Ruling Amounts and a copy of any pending request for revised IRS Ruling Amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Qualified Decommissioning Fund while such request(s) is/are pending before the IRS which exceed the applicable amounts provided in the IRS Ruling Amounts issued by the IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(i), subject to the approval by the Office of the State Treasurer of New Hampshire of such withdrawal, as applicable.
(d) Such Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee for its Qualified Decommissioning Fund Funds as of February 28December 31, 2002, and such statement of assets and liabilities will be verified by such Trustee as of the second Business Day before the Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents they present fairly as of February 28, 2002, and will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Share, date the financial position of each of the Qualified Decommissioning FundFunds. Each Seller has made or will make available available, or has caused or will cause to be made available, to Buyer information from which Buyer can determine the Tax Basis of all assets in such Seller's the Qualified Decommissioning Fund Funds as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership ShareDecember 31, 2002. There are no Liabilities (whether absoluteLiabilities, accrued, contingent or otherwise and whether due or to become due), including, but not limited to, including any acts of "self-dealing" as defined in Treas. Reg. parargraph Section 1.468A-5(b)(2) or agency or other legal proceedings that may materially affect the financial position of each of the Qualified Decommissioning Funds other than those, if any, that are disclosed on Schedule 3.8. ------------3.16.
(ed) Such Seller has made available to the Buyer copies of all contracts and agreements provided by the Company to which the Trustee trustee of each of the Qualified Decommissioning FundFunds, in its capacity as such, is a party.
(fe) Such Seller's Each of the Qualified Decommissioning Fund Funds has filed all material Tax Returns required to be filed and all material Taxes Taxes, whether or not shown to be due on such Tax Returns Returns, have been paid in full. Except as shown in disclosed on Schedule 3.83.16, no notice of ------------ deficiency or assessment has been received from any taxing authority Taxing Authority with respect to liability Liability for Taxes of any such Seller's each of the Qualified Decommissioning Fund Funds which have not been fully paid or Finally finally settled, and any such deficiency shown in such Schedule 3.8 3.16 is being contested in good faith through appropriate ------------ proceedings. Except as set forth in disclosed on Schedule 3.83.16, to Seller's Knowledge there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with each of the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-
Appears in 1 contract
Samples: Purchase and Sale Agreement (Commonwealth Edison Co)
Qualified Decommissioning Funds. With respect to each Seller other ------------------------------- than a Seller organized by or under the Order of a Governmental Authority:
(a) (i) The Each of Sellers' Qualified Decommissioning Fund of such Seller Funds is a trust, validly existing and in good standing under the Laws laws of the State of New Hampshire York with all requisite authority to conduct its affairs as it now does; (ii) . Sellers have heretofore delivered to Buyer a copy of the Decommissioning Indenture as in effect on the date of this Agreement. Sellers agree to furnish Buyer with copies of all amendments of the Decommissioning Indenture adopted after the date of this Agreement promptly after each such amendment has been adopted. Each of Sellers' Qualified Decommissioning Fund of such Seller Funds satisfies the requirements necessary for
Section 1. 468A-5(c)(2)(i) for each such Qualified Decommissioning Fund withdrawals of excess contributions to be treated as made without resulting in a "Nuclear Decommissioning Reserve Fund" within the meaning of Section 468A(a) disqualification of the Code and as a "nuclear decommissioning fund" and a "qualified nuclear decommissioning fund" within the meaning of Treas. Reg. paragraph 1.468A-1(b)(3); (iii) each such Qualified Decommissioning Fund is in compliance in all material respects withall applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUC, the NDFC, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB and the IRS), and the Qualified Decommissioning Fund of such Seller has not engaged in any material acts of "self-dealing" as defined in Treas. Reg. parargraph 1.468A-5(b)(2); (iv) no "excess contribution," as defined in Treas. Reg. parargraph 1.468A-5(c)(2)(ii), has been made to the Qualified Decommissioning Fund of such Seller which has not been withdrawn within the period provided Funds under Treas. RegReg Section 1.468A-5(c)(1). parargraph 1.468A-5(c)(2)(i); and (v) such Seller has Sellers have made timely and valid elections to make annual contributions to its the Qualified Decommissioning Fund Funds since the first taxable year after establishment of such fund and has 1984. Sellers have heretofore made available delivered copies of such elections to the Buyer. Such Seller has heretofore made available to the Buyer a copy of its Decommissioning Trust Agreement as in effect on the Effective Date.
(b) Subject only to Seller Sellers' Required Regulatory Approvals and approval by the NDFC of Buyer's Funding Assurance pursuant to RSA 162-FApprovals, such Seller and the Trustee Sellers 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 the Qualified Decommissioning Fund Funds to be transferred to the Buyer's Qualified Decommissioning Fund Buyer in accordance with the provisions of this Agreement.
(ic) Such Seller Sellers and/or the Trustee of each of the Qualified Decommissioning Funds has/have filed or caused to be filed with the NRC, the IRS and all other applicable Governmental Authorities any state or local 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 either of them. Sellers have delivered to interim rate orders that may affect amounts to be contributed by the Buyer to the Qualified Decommissioning Funds or to be distributed from the Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund. Such Seller has made available to the Buyer a copy of the schedules o schedule of ruling amounts (the "IRS Ruling Amounts") most recently issued by the IRS for each of the Qualified Decommissioning FundFunds, a copy of the requests request that were was filed to o btain obtain such IRS Ruling Amounts schedule of ruling amounts and a copy of any pending request requests for revised IRS Ruling Amountsruling amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Qualified Decommissioning Fund while such request(s) is/are pending before the IRS which exceed the applicable amounts provided in the IRS Ruling Amounts issued by the IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(i), subject to the approval by the Office As of the State Treasurer Closing, Sellers will have timely filed all requests for revised schedules of New Hampshire of such withdrawal, as applicable.
(d) Such Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee ruling amounts for its Qualified Decommissioning Fund as of February 28, 2002, and such statement of assets and liabilities will be verified by such Trustee as of the second Business Day before the Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents fairly as of February 28, 2002, and will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Share, the financial position of each Qualified Decommissioning Fund. Each Seller will make available to Buyer information from which Buyer can determine the Tax Basis of all assets in such Seller's Qualified Decommissioning Fund 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 acts of "self-dealing" as defined in Treas. Reg. parargraph 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 3.8. ------------
(e) Such Seller has made available to the Buyer copies of all contracts and agreements to which the Trustee of the Qualified Decommissioning Fund, in its capacity as such, is a partyaccordance with Treas.
(f) Such Seller's Qualified Decommissioning Fund has filed all Tax Returns required to be filed and all material Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule 3.8, no notice of ------------ deficiency or assessment has been received from any taxing authority with respect to liability for Taxes of any such Seller's Qualified Decommissioning Fund which have not been fully paid or Finally settled, and any such deficiency shown in such Schedule 3.8 is being contested in good faith through appropriate ------------ proceedings. Except as set forth in Schedule 3.8, there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-
Appears in 1 contract
Samples: Asset Purchase Agreement (Pennsylvania Electric Co)
Qualified Decommissioning Funds. With respect to each Seller other ------------------------------- than a Seller organized by or under the Order of a Governmental Authority:
(a) (i) The Qualified Decommissioning Fund of such Seller is a trust, validly existing under the Laws of the State of New Hampshire with all requisite authority to conduct its affairs as it now does; (ii) the Qualified Decommissioning Fund of such Seller satisfies the requirements necessary for each such Qualified Decommissioning Fund to be treated as a "Nuclear Decommissioning Reserve Fund" within the meaning of Section 468A(a) of the Code and as a "nuclear decommissioning fund" and a "qualified nuclear decommissioning fund" within the meaning of Treasthe
1. Reg. paragraph 1.468A-1(b)(3); (iii) each such Qualified Decommissioning Fund is in compliance in all material respects withall applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUC, the NDFC, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB and the IRS), and the Qualified Decommissioning Fund of such Seller has not engaged in any material acts of "self-dealing" as defined in Treas. Reg. parargraph 1.468A-5(b)(2); (iv) no "excess contribution," as defined in Treas. Reg. parargraph 1.468A-5(c)(2)(ii), has been made to the Qualified Decommissioning Fund of such Seller which has not been withdrawn within the period provided under Treas. Reg. parargraph 1.468A-5(c)(2)(i468A-5(c)(2)(i); and (v) such Seller has made timely and valid elections to make annual contributions to its Qualified Decommissioning Fund since the first taxable year after establishment of such fund and has heretofore made available copies of such elections to the Buyer. Such Seller has heretofore made available to the Buyer a copy of its Decommissioning Trust Agreement as in effect on the Effective Date.
(b) Subject only to Seller Regulatory Approvals and approval by the NDFC of Buyer's Funding Assurance pursuant to RSA 162-F, such Seller and the Trustee 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.
(i) Such Seller and/or the Trustee of the Qualified Decommissioning Funds has/have filed or caused to be filed with the NRC, the IRS and all other applicable Governmental Authorities 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 to be contributed by the Buyer to the Qualified Decommissioning Funds or to be distributed from the Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund. Such Seller has made available to the Buyer a copy of the schedules o of ruling amounts (the "IRS Ruling Amounts") most recently issued by the IRS for the Qualified Decommissioning Fund, a copy of the requests that were filed to o btain obtain such IRS Ruling Amounts and a copy of any pending request for revised IRS Ruling Amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Qualified Decommissioning Fund while such request(s) is/are pending before the IRS which exceed the applicable amounts provided in the IRS Ruling Amounts issued by the IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(i), subject to the approval by the Office of the State Treasurer of New Hampshire of such withdrawal, as applicable.
(d) Such Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee for its Qualified Decommissioning Fund as of February 28, 2002, and such statement of assets and liabilities will be verified by such Trustee as of the second Business Day before the Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents fairly as of February 28, 2002, and will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Share, the financial position of each Qualified Decommissioning Fund. Each Seller will make available to Buyer information from which Buyer can determine the Tax Basis of all assets in such Seller's Qualified Decommissioning Fund 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 acts of "self-dealing" as defined in Treas. Reg. parargraph 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 SCHEDULE 3.8. ------------.
(e) Such Seller has made available to the Buyer copies of all contracts and agreements to which the Trustee of the Qualified Decommissioning Fund, in its capacity as such, is a party.
(f) Such Seller's Qualified Decommissioning Fund has filed all Tax Returns required to be filed and all material Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule SCHEDULE 3.8, no notice of ------------ deficiency or assessment has been received from any taxing authority with respect to liability for Taxes of any such Seller's Qualified Decommissioning Fund which have not been fully paid or Finally settled, and any such deficiency shown in such Schedule SCHEDULE 3.8 is being contested in good faith through appropriate ------------ proceedings. Except as set forth in Schedule SCHEDULE 3.8, there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-.
Appears in 1 contract
Qualified Decommissioning Funds. With respect to each Seller other ------------------------------- than a Seller organized by or under the Order of a Governmental Authority:
(a) Except as disclosed on Schedule 3.16, the Company is the sole owner of the AmerGen Clinton-1 Qualified Fund, AmerGen Three Mile Island-1 Qualified Fund and AmerGen Oyster Creek Qualified Fund (i) The collectively, the Qualified Decommissioning Fund Funds), each of such Seller which is, and since its inception has been, treated as a nuclear decommissioning reserve fund in accordance with Code Section 468A and is therefore treated as a corporation in accordance with Code Section 468A(e)(2)(D). Each of the Company’s Qualified Decommissioning Funds is a trust, validly existing and in good standing under the Laws laws of the State jurisdiction of New Hampshire its formation with all requisite authority to conduct its affairs as it now does; (ii) . Seller has heretofore made available to Buyer a copy of the Decommissioning Trust Agreement provided by the Company as in effect on the date of this Agreement. Seller agrees to furnish Buyer with copies of all amendments to the Decommissioning Trust Agreement adopted after the date of this Agreement promptly after each such amendment has been adopted and provided by the Company to Seller. Each of the Company’s Qualified Decommissioning Fund of such Seller Funds satisfies the requirements necessary for each such Qualified Decommissioning Fund fund to be treated as a "“Nuclear Decommissioning Reserve Fund" ” within the meaning of Section 468A(aCode section 468 A(a) of the Code and as a "“nuclear decommissioning fund" ” and a "“qualified nuclear decommissioning fund" ” within the meaning of Treas. Reg. paragraph 1.468A-1(b)(3Section 1.468A-l(b)(3); (iii) each . Each such Qualified Decommissioning Fund fund is in compliance in all material respects withall with all applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUCPaPUC, the NDFCNJBPU, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB FERC and the IRSICC). Except as set forth in Schedule 3.16, and none of the Company’s Qualified Decommissioning Fund of such Seller Funds has not engaged in any material acts of "“self-dealing" ” as defined in Treas. Reg. parargraph Section 1.468A-5(b)(2); (iv) no ". No “excess contribution," ” as defined in Treas. Reg. parargraph Section 1.468A-5(c)(2)(ii), has been made to the Company’s Qualified Decommissioning Fund of such Seller Funds which has not been withdrawn within the period provided under Treas. Reg. parargraph Section 1.468A-5(c)(2)(i) for withdrawals of excess contributions to
Section 1. 468A-5(c)(l); and (v) such Seller has made timely and valid elections to make annual contributions to its Qualified Decommissioning Fund since the first taxable year after establishment of such fund and has heretofore made available copies of such elections to the Buyer. Such Seller has heretofore made available to the Buyer a copy of its Decommissioning Trust Agreement as in effect on the Effective Date.
(b) Subject only to Seller Regulatory Approvals and approval by The Company and/or the NDFC of Buyer's Funding Assurance pursuant to RSA 162-F, such Seller and the Trustee 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 trustee of each Qualified Decommissioning Fund to be transferred to the Buyer's Qualified Decommissioning Fund in accordance with the provisions of this Agreement.
(i) Such Seller and/or the Trustee of the Qualified Decommissioning Funds has/have filed or caused to be filed with the NRC, the IRS and all other applicable any state or local Governmental Authorities Authority all material forms, statements, reports, documents (including all exhibits, amendments and supplements thereto) required to be filed by such entities; any of them. As of the Closing, the Company has not requested a revised schedule of ruling amounts and (ii) there are no interim rate orders that may be retroactively adjusted or retroactive adjustments to interim rate orders that may affect has not contributed any amounts to be contributed by the Buyer to the Qualified Decommissioning Funds or to be distributed from during the period that the Company has held such Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund. Such Funds.
(c) Seller has made available to Buyer the Buyer a copy of the schedules o of ruling amounts (the "IRS Ruling Amounts") most recently issued trustee statements provided by the IRS Company for each of the Qualified Decommissioning Fund, a copy of the requests that were filed to o btain such IRS Ruling Amounts and a copy of any pending request for revised IRS Ruling Amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Qualified Decommissioning Fund while such request(s) is/are pending before the IRS which exceed the applicable amounts provided in the IRS Ruling Amounts issued by the IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(i), subject to the approval by the Office of the State Treasurer of New Hampshire of such withdrawal, as applicable.
(d) Such Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee for its Qualified Decommissioning Fund Funds as of February 28December 31, 2002, and such statement of assets and liabilities will be verified by such Trustee as of the second Business Day before the Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents they present fairly as of February 28, 2002, and will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Share, date the financial position of each of the Qualified Decommissioning FundFunds. Each Seller has made or will make available available, or has caused or will cause to be made available, to Buyer information from which Buyer can determine the Tax Basis of all assets in such Seller's the Qualified Decommissioning Fund Funds as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership ShareDecember 31,2002. There are no Liabilities (whether absoluteLiabilities, accrued, contingent or otherwise and whether due or to become due), including, but not limited to, including any acts of "“self-dealing" ” as defined in Treas. Reg. parargraph Section 1.468A-5(b)(2) or agency or other legal proceedings that may materially affect the financial position of each of the Qualified Decommissioning Funds other than those, if any, that are disclosed on Schedule 3.8. ------------3.16.
(ed) Such Seller has made available to the Buyer copies of all contracts and agreements provided by the Company to which the Trustee trustee of each of the Qualified Decommissioning FundFunds, in its capacity as such, is a party.
(fe) Such Seller's Each of the Qualified Decommissioning Fund Funds has filed all material Tax Returns required to be filed and all material Taxes Taxes, whether or not shown to be due on such Tax Returns Returns, have been paid in full. Except as shown in disclosed on Schedule 3.83.16, no notice of ------------ deficiency or assessment has been received from any taxing authority Taxing Authority with respect to liability Liability for Taxes of any such Seller's each of the Qualified Decommissioning Fund Funds which have not been fully paid or Finally finally settled, and any such deficiency shown in such Schedule 3.8 3.16 is being contested in good faith through appropriate ------------ proceedings. Except as set forth in disclosed on Schedule 3.83.16, to Seller’s Knowledge there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with each of the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-
Appears in 1 contract
Qualified Decommissioning Funds. (a) With respect to each Seller other ------------------------------- than a Seller organized by or under all periods prior to the Order of a Governmental Authority:
(a) Closing Date: (i) The each Seller's Qualified Decommissioning Fund of such Seller is a trust, validly existing under the Laws laws of the State of New Hampshire York with all requisite authority to conduct its affairs as it now does; (ii) the each Seller's Qualified Decommissioning Fund of such Seller satisfies the requirements necessary for each such Qualified Decommissioning Fund to be treated as a "Nuclear Decommissioning Reserve Fund" within the meaning of Code Section 468A(a) of the Code and as a "nuclear decommissioning fundDecommissioning Fund" and a "qualified nuclear decommissioning fundDecommissioning Fund" within the meaning of Treas. Reg. paragraph section 1.468A-1(b)(3); (iii) each such Qualified Decommissioning Fund is in compliance in all material respects withall with all applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUC, the NDFC, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB NYPSC and the IRS), and the each Seller's Qualified Decommissioning Fund of such Seller has not engaged in any material acts of "self-dealing" as defined in Treas. Reg. parargraph section 1.468A-5(b)(2); (iv) no "excess contribution," as defined in Treas. Reg. parargraph section 1.468A-5(c)(2)(ii), has been made to the each Seller's Qualified Decommissioning Fund of such Seller which has not been withdrawn within the period provided under Treas. Reg. parargraph section 1.468A-5(c)(2)(i); and (v) such each Seller has made timely and valid elections to make annual contributions to its the Qualified Decommissioning Fund since the first taxable year after establishment of such fund 1984 and each Seller has heretofore made available delivered copies of such elections to the Buyer. Such Each Seller has heretofore made available delivered to the Buyer a copy of its each Seller's Decommissioning Trust Agreement as in effect on the Effective Datedate of this Agreement. Each 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 to permit the transfer referred to in Section 6.12(a).
(b) Subject only to Seller each Seller's Required Regulatory Approvals and approval by the NDFC of Buyer's Funding Assurance pursuant to RSA 162-FApprovals, such each Seller and the Trustee have have, or shall have prior to the Initial as of Closing Date or Subsequent Closing Date, as the case may bewill have, all requisite right, power and authority to cause the assets of each the Qualified Decommissioning Fund to be transferred to the Buyer's Qualified Trustee of the Post-Closing Decommissioning Fund in accordance with the provisions of this Trust Agreement.
(c) With respect to all periods prior to the Closing Date, (i) Such each Seller and/or the Trustee of the Qualified Decommissioning Funds Fund has/have filed or caused to be filed with the NRC, the IRS and all other applicable Governmental Authorities any state or local 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 to be contributed by the that Buyer may contribute to the Qualified Decommissioning Funds Fund or may require distributions to be distributed made from the Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund. Such Each Seller has made available delivered to the Buyer a copy of the schedules o schedule of ruling amounts (the "IRS Ruling Amounts") most recently issued by the IRS for the Qualified Decommissioning Fund, a copy of the requests request that were was filed to o btain obtain such IRS Ruling Amounts schedule of ruling amounts and a copy of any pending request for revised IRS Ruling Amountsruling amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Qualified Decommissioning Fund while such request(s) is/are request is pending before the IRS and which turn out to exceed the applicable amounts provided in the IRS Ruling Amounts schedule of ruling amounts issued by the IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. section 1.468A-5(c)(2)(i), subject to the approval by the Office of the State Treasurer of New Hampshire of such withdrawal, as applicable.
(d) Such Each Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee for its the respective Qualified Decommissioning Fund Funds as of February 28December 31, 2002, 1999 and such statement of assets and liabilities will be verified by such Trustee as of the second Business Day before the Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents they present fairly as of February 28December 31, 2002, 1999 and will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Sharebefore Closing, the financial position of each respective Qualified Decommissioning Fund. Each Seller will make has made available to Buyer information from which Buyer can determine the Tax Basis of all assets in such Seller's the Qualified Decommissioning Fund 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 acts of "self-dealing" as defined in Treas. Reg. parargraph 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 3.8. ------------before Closing.
(e) Such Each Seller has made available to the Buyer copies of all contracts and agreements to which the Trustee of the Qualified Decommissioning Fund, in its capacity as such, is a party.
(f) Such With respect to all periods prior to the Closing Date, each Seller's Qualified Decommissioning Fund has filed all Tax Returns required to be filed filed, such Tax Returns are true, correct and complete in all material respects, and all material Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule 3.84.21, no notice of ------------ deficiency or assessment has been received from any taxing authority with respect to liability for Taxes of any such each Seller's Qualified Decommissioning Fund which have not been fully paid or Finally finally settled, and any such deficiency shown in such Schedule 3.8 4.21 is being contested in good faith through appropriate ------------ proceedings. Except as set forth in Schedule 3.84.21, there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-
Appears in 1 contract
Qualified Decommissioning Funds. (a) With respect to each Seller other ------------------------------- than a Seller organized by or under all periods prior to the Order of a Governmental Authority:
(a) Closing Date: (i) The each Seller's Qualified Decommissioning Fund of such Seller is a trust, validly existing under the Laws laws of the State of New Hampshire York with all requisite authority to conduct its affairs as it now does; (ii) the each Seller’s Qualified Decommissioning Fund of such Seller satisfies the requirements necessary for each such Qualified Decommissioning Fund to be treated as a "“Nuclear Decommissioning Reserve Fund" ” within the meaning of Code Section 468A(a) of the Code and as a "“nuclear decommissioning fund" Decommissioning Fund” and a "“qualified nuclear decommissioning fund" Decommissioning Fund” within the meaning of Treas. Reg. paragraph 1.468A-1(b)(3Reg.ss.1.468A-1(b)(3); (iii) each such Qualified Decommissioning Fund is in compliance in all material respects withall with all applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUC, the NDFC, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB NYPSC and the IRS), and the each Seller’s Qualified Decommissioning Fund of such Seller has not engaged in any material acts of "“self-dealing" ” as defined in Treas. Reg. parargraph 1.468A-5(b)(2Reg.ss.1.468A-5(b)(2); (iv) no "“excess contribution," ” as defined in Treas. Reg. parargraph 1.468A-5(c)(2)(iiReg.ss.1.468A-5(c)(2)(ii), has been made to the each Seller’s Qualified Decommissioning Fund of such Seller which has not been withdrawn within the period provided under Treas. RegReg.ss.
1. parargraph 1.468A-5(c)(2)(i468A-5(c)(2)(i); and (v) such each Seller has made timely and valid elections to make annual contributions to its the Qualified Decommissioning Fund since the first taxable year after establishment of such fund 1984 and each Seller has heretofore made available delivered copies of such elections to the Buyer. Such Each Seller has heretofore made available delivered to the Buyer a copy of its each Seller's Decommissioning Trust Agreement as in effect on the Effective Datedate of this Agreement. Each 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 to permit the transfer referred to in Section 6.12(a).
(b) Subject only to Seller each Seller's Required Regulatory Approvals and approval by the NDFC of Buyer's Funding Assurance pursuant to RSA 162-FApprovals, such each Seller and the Trustee have have, or shall have prior to the Initial as of Closing Date or Subsequent Closing Date, as the case may bewill have, all requisite right, power and authority to cause the assets of each the Qualified Decommissioning Fund to be transferred to the Buyer's Qualified Trustee of the Post-Closing Decommissioning Fund in accordance with the provisions of this Trust Agreement.
(c) With respect to all periods prior to the Closing Date, (i) Such each Seller and/or the Trustee of the Qualified Decommissioning Funds Fund has/have filed or caused to be filed with the NRC, the IRS and all other applicable Governmental Authorities any state or local 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 to be contributed by the that Buyer may contribute to the Qualified Decommissioning Funds Fund or may require distributions to be distributed made from the Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund. Such Each Seller has made available delivered to the Buyer a copy of the schedules o schedule of ruling amounts (the "IRS Ruling Amounts") most recently issued by the IRS for the Qualified Decommissioning Fund, a copy of the requests request that were was filed to o btain obtain such IRS Ruling Amounts schedule of ruling amounts and a copy of any pending request for revised IRS Ruling Amountsruling amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Qualified Decommissioning Fund while such request(s) is/are request is pending before the IRS and which turn out to exceed the applicable amounts provided in the IRS Ruling Amounts schedule of ruling amounts issued by the IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(iReg.ss.1.468A-5(c)(2)(i), subject to the approval by the Office of the State Treasurer of New Hampshire of such withdrawal, as applicable.
(d) Such Each Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee for its the respective Qualified Decommissioning Fund Funds as of February 28December 31, 2002, 1999 and such statement of assets and liabilities will be verified by such Trustee as of the second Business Day before the Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents they present fairly as of February 28December 31, 2002, 1999 and will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Sharebefore Closing, the financial position of each respective Qualified Decommissioning Fund. Each Seller will make has made available to Buyer information from which Buyer can determine the Tax Basis of all assets in such Seller's the Qualified Decommissioning Fund 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 acts of "self-dealing" as defined in Treas. Reg. parargraph 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 3.8. ------------before Closing.
(e) Such Each Seller has made available to the Buyer copies of all contracts and agreements to which the Trustee of the Qualified Decommissioning Fund, in its capacity as such, is a party.
(f) Such With respect to all periods prior to the Closing Date, each Seller's ’s Qualified Decommissioning Fund has filed all Tax Returns required to be filed filed, such Tax Returns are true, correct and complete in all material respects, and all material Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule 3.84.21, no notice of ------------ deficiency or assessment has been received from any taxing authority with respect to liability for Taxes of any such each Seller's Qualified Decommissioning Fund which have not been fully paid or Finally finally settled, and any such deficiency shown in such Schedule 3.8 4.21 is being contested in good faith through appropriate ------------ proceedings. Except as set forth in Schedule 3.84.21, there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-
Appears in 1 contract
Samples: Asset Purchase Agreement (Niagara Mohawk Power Corp /Ny/)
Qualified Decommissioning Funds. (a) With respect to each Seller other ------------------------------- than a Seller organized by or under all periods prior to the Order of a Governmental Authority:
(a) Closing Date: (i) The each Seller's Qualified Decommissioning Fund of such Seller is a trust, validly existing under the Laws laws of the State of New Hampshire York with all requisite authority to conduct its affairs as it now does; (ii) the each Seller's Qualified Decommissioning Fund of such Seller satisfies the requirements necessary for each such Qualified Decommissioning Fund to be treated as a "Nuclear Decommissioning Reserve Fund" within the meaning of Code Section 468A(a) of the Code and as a "nuclear decommissioning fundDecommissioning Fund" and a "qualified nuclear decommissioning fundDecommissioning Fund" within the meaning of Treas. Reg. paragraph Section 1.468A-1(b)(3); (iii) each such Qualified Decommissioning Fund is in compliance in all material respects withall with all applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUC, the NDFC, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB NYPSC and the IRS), and the each Seller's Qualified Decommissioning Fund of such Seller has not engaged in any material acts of "self-dealing" as defined in Treas. Reg. parargraph 1.468A-5(b)(2Section 1.468A- 5(b)(2); (iv) no "excess contribution," as defined in Treas. Reg. parargraph 1.468A-5(c)(2)(iiSection 1.468A- 5(c)(2)(ii), has been made to the each Seller's Qualified Decommissioning Fund of such Seller which has not been withdrawn within the period provided under Treas. Reg. parargraph 1.468A-5(c)(2)(iSection 1.468A- 5(c)(2)(i); and (v) such each Seller has made timely and valid elections to make annual contributions to its the Qualified Decommissioning Fund since the first taxable year after establishment of such fund 1984 and each Seller has heretofore made available delivered copies of such elections to the Buyer. Such Each Seller has heretofore made available delivered to the Buyer a copy of its each Seller's Decommissioning Trust Agreement as in effect on the Effective Datedate of this Agreement. Each 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 to permit the transfer referred to in Section 6.12(a).
(b) Subject only to Seller each Seller's Required Regulatory Approvals and approval by the NDFC of Buyer's Funding Assurance pursuant to RSA 162-FApprovals, such each Seller and the Trustee have have, or shall have prior to the Initial as of Closing Date or Subsequent Closing Date, as the case may bewill have, all requisite right, power and authority to cause the assets of each the Qualified Decommissioning Fund to be transferred to the Buyer's Qualified Trustee of the Post-Closing Decommissioning Fund in accordance with the provisions of this Trust Agreement.
(c) With respect to all periods prior to the Closing Date, (i) Such each Seller and/or the Trustee of the Qualified Decommissioning Funds Fund has/have filed or caused to be filed with the NRC, the IRS and all other applicable Governmental Authorities any state or local 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 to be contributed by the that Buyer may contribute to the Qualified Decommissioning Funds Fund or may require distributions to be distributed made from the Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund. Such Each Seller has made available delivered to the Buyer a copy of the schedules o schedule of ruling amounts (the "IRS Ruling Amounts") most recently issued by the IRS for the Qualified Decommissioning Fund, a copy of the requests request that were was filed to o btain obtain such IRS Ruling Amounts schedule of ruling amounts and a copy of any pending request for revised IRS Ruling Amountsruling amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Qualified Decommissioning Fund while such request(s) is/are request is pending before the IRS and which turn out to exceed the applicable amounts provided in the IRS Ruling Amounts schedule of ruling amounts issued by the IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. 1.468A-5(c)(2)(iSection 1.468A- 5(c)(2)(i), subject to the approval by the Office of the State Treasurer of New Hampshire of such withdrawal, as applicable.
(d) Such Each Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee for its the respective Qualified Decommissioning Fund Funds as of February 28December 31, 2002, 1999 and such statement of assets and liabilities will be verified by such Trustee as of the second Business Day before the Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents they present fairly as of February 28December 31, 2002, 1999 and will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Sharebefore Closing, the financial position of each respective Qualified Decommissioning Fund. Each Seller will make has made available to Buyer information from which Buyer can determine the Tax Basis of all assets in such Seller's the Qualified Decommissioning Fund 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 acts of "self-dealing" as defined in Treas. Reg. parargraph 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 3.8. ------------before Closing.
(e) Such Each Seller has made available to the Buyer copies of all contracts and agreements to which the Trustee of the Qualified Decommissioning Fund, in its capacity as such, is a party.
(f) Such With respect to all periods prior to the Closing Date, each Seller's Qualified Decommissioning Fund has filed all Tax Returns required to be filed filed, such Tax Returns are true, correct and complete in all material respects, and all material Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule 3.84.21, no notice of ------------ deficiency or assessment has been received from any taxing authority with respect to liability for Taxes of any such each Seller's Qualified Decommissioning Fund which have not been fully paid or Finally finally settled, and any such deficiency shown in such Schedule 3.8 4.21 is being contested in good faith through appropriate ------------ proceedings. Except as set forth in Schedule 3.84.21, there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-
Appears in 1 contract
Samples: Asset Purchase Agreement (New York State Electric & Gas Corp)
Qualified Decommissioning Funds. With respect to each Seller other ------------------------------- than a Seller organized by or under the Order of a Governmental Authority:
(a) (i) The Qualified Decommissioning Fund of such Seller is a trust, validly existing under the Laws of the State of New Hampshire with all requisite authority to conduct its affairs as it now does; (ii) the Qualified Decommissioning Fund of such Seller satisfies the requirements necessary for each such Qualified Decommissioning Fund to be treated as a "Nuclear Decommissioning Reserve Fund" within the meaning of the
Section 468A(a) of the Code and as a "nuclear decommissioning fund" and a "qualified nuclear decommissioning fund" within the meaning of Treas1. Reg. paragraph 1.468A-1(b)(3468A-1(b)(3); (iii) each such Qualified Decommissioning Fund is in compliance in all material respects withall with all applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUC, the NDFC, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB and the IRS), and the Qualified Decommissioning Fund of such Seller has not engaged in any material acts of "self-dealing" as defined in Treas. Reg. parargraph Section 1.468A-5(b)(2); (iv) no "excess contribution," as defined in Treas. Reg. parargraph Section 1.468A-5(c)(2)(ii), has been made to the Qualified Decommissioning Fund of such Seller which has not been withdrawn within the period provided under Treas. Reg.
Section 1. parargraph 1.468A-5(c)(2)(i468A-5(c)(2)(i); and (v) such Seller has made timely and valid elections to make annual contributions to its Qualified Decommissioning Fund since the first taxable year after establishment of such fund and has heretofore made available copies of such elections to the Buyer. Such Seller has heretofore made available to the Buyer a copy of its Decommissioning Trust Agreement as in effect on the Effective Date.
(b) Subject only to Seller Regulatory Approvals and approval by the NDFC of Buyer's Funding Assurance pursuant to RSA 162-F, such Seller and the Trustee 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.
(i) Such Seller and/or the Trustee of the Qualified Decommissioning Funds has/have filed or caused to be filed with the NRC, the IRS and all other applicable Governmental Authorities 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 to be contributed by the Buyer to the Qualified Decommissioning Funds or to be distributed from the Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund. Such Seller has made available to the Buyer a copy of the schedules o of ruling amounts (the "IRS Ruling Amounts") most recently issued by the IRS for the Qualified Decommissioning Fund, a copy of the requests that were filed to o btain obtain such IRS Ruling Amounts and a copy of any pending request for revised IRS Ruling Amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Qualified Decommissioning Fund while such request(s) is/are pending before the IRS which exceed the applicable amounts provided in the IRS Ruling Amounts issued by the IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. Section 1.468A-5(c)(2)(i), subject to the approval by the Office of the State Treasurer of New Hampshire of such withdrawal, as applicable.
(d) Such Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee for its Qualified Decommissioning Fund as of February 28, 2002, and such statement of assets and liabilities will be verified by such Trustee as of the second Business Day before the Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents fairly as of February 28, 2002, and will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Share, the financial position of each Qualified Decommissioning Fund. Each Seller will make available to Buyer information from which Buyer can determine the Tax Basis of all assets in such Seller's Qualified Decommissioning Fund 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 acts of "self-dealing" as defined in Treas. Reg. parargraph Section 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 3.8. ------------.
(e) Such Seller has made available to the Buyer copies of all contracts and agreements to which the Trustee of the Qualified Decommissioning Fund, in its capacity as such, is a party.
(f) Such Seller's Qualified Decommissioning Fund has filed all Tax Returns required to be filed and all material Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule 3.8, no notice of ------------ deficiency or assessment has been received from any taxing authority with respect to liability for Taxes of any such Seller's Qualified Decommissioning Fund which have not been fully paid or Finally settled, and any such deficiency shown in such Schedule 3.8 is being contested in good faith through appropriate ------------ proceedings. Except as set forth in Schedule 3.8, there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Connecticut Light & Power Co)
Qualified Decommissioning Funds. With respect to each Seller other ------------------------------- than a Seller organized by or under the Order of a Governmental Authority:
(a) (i) The Qualified Decommissioning Fund of such Seller is a trust, validly existing under the Laws of the State of New Hampshire with all requisite authority to conduct its affairs as it now does; (ii) the Qualified Decommissioning Fund of such Seller satisfies the requirements necessary for each such Qualified Decommissioning Fund to be treated as a "Nuclear Decommissioning Reserve Fund" within the meaning of Section 468A(a) of the Code and as a "nuclear decommissioning fund" and a "qualified nuclear decommissioning fund" within the meaning of Treas. Reg. paragraph section 1.468A-1(b)(3); (iii) each such Qualified Decommissioning Fund is in compliance in all material respects withall with all applicable rules and regulations of any Governmental Authority having jurisdiction (including, without limitation, the NRC, the NHPUC, the NDFC, the DPUC, the FERC, the MDTE, the RIPUC, the VTPSB and the IRS), and the Qualified Decommissioning Fund of such Seller has not engaged in any material acts of "self-dealing" as defined in Treas. Reg. parargraph section 1.468A-5(b)(2); (iv) no "excess contribution," as defined in Treas. Reg. parargraph section 1.468A-5(c)(2)(ii), has been made to the Qualified Decommissioning Fund of such Seller which has not been withdrawn within the period provided under Treas. Reg. parargraph 1.468A-5(c)(2)(isection 1.468A- 5(c)(2)(i); and (v) such Seller has made timely and valid elections to make annual contributions to its Qualified Decommissioning Fund since the first taxable year after establishment of such fund and has heretofore made available copies of such elections to the Buyer. Such Seller has heretofore made available to the Buyer a copy of its Decommissioning Trust Agreement as in effect on the Effective Date.
(b) Subject only to Seller Regulatory Approvals and approval by the NDFC of Buyer's Funding Assurance pursuant to RSA 162-F, such Seller and the Trustee 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.
(i) Such Seller and/or the Trustee of the Qualified Decommissioning Funds has/have filed or caused to be filed with the NRC, the IRS and all other applicable Governmental Authorities 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 to be contributed by the Buyer to the Qualified Decommissioning Funds or to be distributed from the Qualified Decommissioning Funds to the Buyer's Qualified Decommissioning Fund. Such Seller has made available to the Buyer a copy of the schedules o of ruling amounts (the "IRS Ruling Amounts") most recently issued by the IRS for the Qualified Decommissioning Fund, a copy of the requests that were filed to o btain obtain such IRS Ruling Amounts and a copy of any pending request for revised IRS Ruling Amounts, in each case together with all exhibits, amendments and supplements thereto. Any excess amounts contributed to the Qualified Decommissioning Fund while such request(s) is/are pending before the IRS which exceed the applicable amounts provided in the IRS Ruling Amounts issued by the IRS will be withdrawn by such Seller from the Qualified Decommissioning Fund within the period provided under Treas. Reg. ss. section 1.468A-5(c)(2)(i), subject to the approval by the Office of the State Treasurer of New Hampshire of such withdrawal, as applicable.
(d) Such Seller has made available to the Buyer a statement of assets and liabilities verified by the Trustee for its Qualified Decommissioning Fund as of February 28, 2002, and such statement of assets and liabilities will be verified by such Trustee as of the second Business Day before the Closing Date on which such Seller transfers its Ownership Share, which statement of assets and liabilities presents fairly as of February 28, 2002, and will present as of the second Business Day prior to the Closing Date on which such Seller transfers its Ownership Share, the financial position of each Qualified Decommissioning Fund. Each Seller will make available to Buyer information from which Buyer can determine the Tax Basis of all assets in such Seller's Qualified Decommissioning Fund 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 acts of "self-dealing" as defined in Treas. Reg. parargraph section 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 3.8. ------------.
(e) Such Seller has made available to the Buyer copies of all contracts and agreements to which the Trustee of the Qualified Decommissioning Fund, in its capacity as such, is a party.
(f) Such Seller's Qualified Decommissioning Fund has filed all Tax Returns required to be filed and all material Taxes shown to be due on such Tax Returns have been paid in full. Except as shown in Schedule 3.8, no notice of ------------ deficiency or assessment has been received from any taxing authority with respect to liability for Taxes of any such Seller's Qualified Decommissioning Fund which have not been fully paid or Finally settled, and any such deficiency shown in such Schedule 3.8 is being contested in good faith through appropriate ------------ proceedings. Except as set forth in Schedule 3.8, there are no outstanding ------------ agreements or waivers extending the applicable statutory periods of limitations for Taxes associated with the Qualified Decommissioning Funds for any period.
(g) To the extent such Seller has pooled the assets of the Qualified Decommissioning Fund with those of any other assets for investment purposes in periods prior to Closing, such pooling arrangement is not taxable as a corporation for federal income tax purposes. -29-.
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