Taxes and Cash Grants. (i) All income Tax Returns, all material non-income Tax Returns and all Cash Grant Reports required to be filed by Applicable Law by or with respect to the Company Entities have been timely filed (taking into account any extension of time within which to file) and such Tax Returns and Cash Grant Reports are complete and accurate in all material respects. None of the Company Entities are the beneficiary of any extension of time within which to file any Tax Return or Cash Grant Report. (ii) All material Taxes for which a Company Entity is liable, whether or not reflected on any Tax Return, have been timely paid (other than current Taxes not yet due and payable). The Company Entities have withheld and timely paid over to the appropriate Tax Authority all material Taxes which they are required to withhold from amounts paid or owing or accruing to any owner of an equity interest in each Company Entity (including with respect to the issuance or vesting of Interests), employee, independent contractor, creditor or other third party, and are not liable for any material Taxes for failure to withhold or pay such amounts. (iii) There are no Liens (except for Permitted Liens) for Taxes (other than for current Taxes not yet due and payable) on any Company Entity’s assets or properties. (iv) No deficiencies for any Taxes have been proposed, asserted or assessed in writing against any Company Entity that are still pending. (v) There are no outstanding agreements, waivers, or arrangements or requests for such agreements, waivers or arrangements extending the statutory period of limitations applicable to any claim for, or period of collection or assessment of, Taxes of or with respect to any Company Entity. (vi) No written notice has been received by any Company Entity that (i) any Tax Return of such Company Entity is under current examination by the IRS or by any state, local or foreign Tax Authority or that any such examination is threatened or contemplated or (ii) any Cash Grant award is under current examination by the United States Treasury Department or that any such examination is threatened or contemplated. (vii) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of any Cash Grant received by any Company Entity and no request for any such waiver or extension is currently pending. (viii) No Company Entity has entered into any “reportable transaction,” as defined in Treasury Regulation Section 1.6011-4(b). (ix) Schedule 3.09(a)(ix) sets forth the entity classification for U.S. federal income tax purposes for each Company Entity. (x) Other than pursuant to the tax equity documents listed on Schedule 3.09(a)(x) (the “Tax Equity Documents”), no Company Entity is a party to or bound by any Tax indemnity, Tax sharing or Tax allocation agreement or Cash Grant indemnity, Cash Grant sharing or Cash Grant allocation agreement with any party the principal purpose of which, in each case, is the allocation, apportionment, sharing or assignment of any Cash Grant or any Tax liability or benefit, nor does any Company Entity have any Liability or potential Liability to another party under any such agreement. (xi) Each of the Company and Operating Seller is a “United States person” within the meaning of Section 7701(a)(30) of the Code. (xii) No Company Entity (i) has been a member of an affiliated group filing a consolidated federal income Tax Return or (ii) has any liability for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign law) as a transferee or successor or otherwise under Applicable Law. (xiii) No Company Entity is a party to any agreement, contract, arrangement or plan that has resulted or could result, separately or in the aggregate, in the payment of (i) any “excess parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state or local law) and (ii) any amount that will not be fully deductible as a result of Section 162(m) of the Code (or any corresponding provisions of state or local law). (xiv) No Company Entity has agreed or is required to make any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise. (xv) No Company Entity or any Person acting on behalf of a Company Entity has applied to the IRS for a private letter ruling with respect to a Company Entity, including any application for a private letter ruling that has been withdrawn (xvi) No Company Entity is or has been a “tax-exempt entity” within the meaning of Section 168(h)(2) of the Code (determined after application of Section 168(h)(2)(B) of the Code) or is a “tax-exempt controlled entity” within the meaning of Section 168(h)(6)(F)(iii) of the Code, unless such entity has made the election provided in Section 168(h)(6)(F)(ii) of the Code. (xvii) No asset of a Company Entity is treated wholly or partly as “tax exempt use property” within the meaning of Section 168(h) of the Code. (xviii) With respect to each Earnout Project, other than the Project Company that is identified as the owner of such Earnout Project, no person has an ownership interest, or a right to acquire an ownership interest, in such Earnout Project. (xix) No more than 20% of the “energy property” as defined in Section 48(a) of the Code acquired or installed at an Earnout Project constitutes previously used property for purposes of Section 48(a)(3)(B) of the Code. (xx) With respect to each of the wind Earnout Projects, for purposes of and within the meaning of Section 45(b)(3) of the Code, there has never been (i) any grant provided by the United States, any state or any political subdivision of a state for use in connection with such wind Earnout Project, (ii) any issue of state or local government obligations used to provide financing for such wind Earnout Project (or any portion thereof) the interest on which is exempt from federal income tax under Section 103 of the Code, (iii) any subsidized energy financing provided (directly or indirectly) under a federal, state or local program provided in connection with such wind Earnout Project (or any portion thereof) or (iv) any federal credit (other than the credit described in Section 45(a) of the Code) allowable with respect to such wind Earnout Project, any property or equipment included therein, or any electricity produced thereby. (xxi) With respect to each wind Earnout Project, no application has been submitted to the United States Treasury Department for a Cash Grant with respect to any property or equipment included in such wind Earnout Project. (xxii) With respect to each Cash Grant Project, (i) the Cash Grant Application was (as of the date it was submitted) and, to the Company’s Knowledge, continues to be true and correct in all material respects, (ii) from and after the date the Cash Grant Application was submitted, the Company’s interest in such Cash Grant applicant has been held through Subsidiaries of the Company that are treated as corporations for U.S. federal income tax purposes, which Subsidiaries have, in turn, owned all of their interests in the Cash Grant applicant directly or indirectly through entities treated as partnerships or disregarded entities for U.S. federal income tax purposes, and each such Subsidiary, such disregarded entity, such partnership and such Cash Grant applicant is not and has never been a disqualified person (within the meaning of the Cash Grant Guidance) (iii) to the Knowledge of the Company, any direct or indirect owners of the Cash Grant applicant that do not own an ownership interest in the Cash Grant applicant through the Company are not and have never been disqualified persons (within the meaning of the Cash Grant Guidance), (iv) the property has not ceased to qualify as a specified energy property (within the meaning of the Cash Grant Guidance) so as to cause any part of the awarded Cash Grant to be disallowed, reduced (other than for reason of sequestration), recaptured or treated as resulting in income subject to tax as a result of an excessive Cash Grant award (v) the Cash Grant applicant, the Company Entities, and any other direct or indirect owners of the Cash Grant applicant that own an ownership interest in the Cash Grant applicant through the Company have not received notice from the United States Treasury Department or the IRS that would suggest that any part of the awarded Cash Grant will be disallowed, reduced (other than for reason of sequestration), recaptured or treated as resulting in income subject to tax as a result of an excessive Cash Grant award, (vi) to the Knowledge of the Company, any direct or indirect owners of the Cash Grant applicant that do not own an ownership interest in the Cash Grant applicant through the Company have not received notice from the United States Treasury Department or the IRS that would suggest that any part of the awarded Cash Grant will be disallowed, reduced (other than for reason of sequestration), recaptured or treated as resulting in income subject to tax as a result of an excessive Cash Grant award, and (vii) no election to pass-through the Cash Grant to a lessee (as described in the section under the heading “VI. Leased Property” of the Cash Grant Guidance) has been made. (xxiii) The information set forth in Schedule 2.5(t) to the Equity Capital Contribution Agreement for the South Plains I Project (a true and correct copy of which is attached hereto as Attachment 1 to Schedule 3.09(a)(xxiii)) and in Schedule 3.09(a)(xxiii) with respect to the South Plains I Project and South Plains II Project is true and correct in all material respects solely for purposes of allowing Holdco Buyer to confirm that physical work of a significant nature has begun with respect to such Projects (within the meaning of the IRS Notices). The information set forth in Exhibit G-5 to the Oakfield Financing Agreement (a true and correct copy of which is attached hereto as Attachment 2 to Schedule 3.09(a)(xxiii)) and in Schedule 3.09(a)(xxiii)), with respect to the Oakfield Project is true and correct in all material respects solely for purposes of allowing Holdco Buyer to confirm that physical work of a significant nature has begun with respect to such Project that the applicable Project Company has incurred more than 5% of the cost of such Project (within the meaning of the IRS Notices). The information set forth in Schedule 3.09(a)(xxiii)), with respect to the Xxxxxxx Project and the Xxxxxxx Project is true and correct in all material respects solely for purposes of allowing Holdco Buyer to confirm with respect to each such Project that the applicable Project Company has incurred more than 5% of the cost of such Project (within the meaning of the IRS Notices). (xxiv) To the Knowledge of the Company, with respect to each of the wind Earnout Projects that is a physical works test Project, no specific event, fact or circumstance has occurred or arisen that the Company believes would be likely to result in the failure of such Project to satisfy the requirements of Section 4.06 of IRS Notice 2013-29, as modified by IRS Notice 2013-60, on or prior to December 31, 2015; provided that this representation shall expire with respect to such Project on the date a “Full Notice to Proceed” under the applicable EPC Agreement for such Project has been given. (xxv) With respect to each Operating Entity, each of the representations and warranties that relate to Taxes and that were made by a Company Entity in connection with the tax equity financing for such Operating Entity were, as of the date that they were made, true and correct in all material respects. No Operating Entity has sold electricity generated by the applicable Project to a Related Party. (xxvi) Each Operating Entity has made or will make (to be effective for the period including the Closing Date) a valid and effective election under Section 754 of the Code, and each Operating Entity has not commenced any action to revoke any election. (xxvii) None of the real property as to which any Company Entity is obligated, contractually or by Applicable Law, to pay ad valorem taxes, (i) is subject to rollback Taxes or Tax penalties, or (ii) has been or is entitled to a preferential or special real estate Tax assessment or Tax treatment.
Appears in 3 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Sunedison, Inc.), Purchase and Sale Agreement (TerraForm Power, Inc.)
Taxes and Cash Grants. (i) All income Tax Returns, all material non-income Tax Returns and all Cash Grant Reports required to be filed by Applicable Law by or with respect to the Company Entities have been timely filed (taking into account any extension of time within which to file) and such Tax Returns and Cash Grant Reports are complete and accurate in all material respects. None of the Company Entities are the beneficiary of any extension of time within which to file any Tax Return or Cash Grant Report.
(ii) All material Taxes for which a Company Entity is liable, whether or not reflected on any Tax Return, have been timely paid (other than current Taxes not yet due and payable). The Company Entities have withheld and timely paid over to the appropriate Tax Authority all material Taxes which they are required to withhold from amounts paid or owing or accruing to any owner of an equity interest in each Company Entity (including with respect to the issuance or vesting of Interests), employee, independent contractor, creditor or other third party, and are not liable for any material Taxes for failure to withhold or pay such amounts.
(iii) There are no Liens (except for Permitted Liens) for Taxes (other than for current Taxes not yet due and payable) on any Company Entity’s assets or properties.
(iv) No deficiencies for any Taxes have been proposed, asserted or assessed in writing against any Company Entity that are still pending.
(v) There are no outstanding agreements, waivers, or arrangements or requests for such agreements, waivers or arrangements extending the statutory period of limitations applicable to any claim for, or period of collection or assessment of, Taxes of or with respect to any Company Entity.
(vi) No written notice has been received by any Company Entity that (i) any Tax Return of such Company Entity is under current examination by the IRS or by any state, local or foreign Tax Authority or that any such examination is threatened or contemplated or (ii) any Cash Grant award is under current examination by the United States Treasury Department or that any such examination is threatened or contemplated.
(vii) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of any Cash Grant received by any Company Entity and no request for any such waiver or extension is currently pending.
(viii) No Company Entity has entered into any “reportable transaction,” as defined in Treasury Regulation Section 1.6011-4(b).
(ix) Schedule 3.09(a)(ix) sets forth the entity classification for U.S. federal income tax purposes for each Company Entity.
(x) Other than pursuant to the tax equity documents listed on Schedule 3.09(a)(x) (the “Tax Equity Documents”), no Company Entity is a party to or bound by any Tax indemnity, Tax sharing or Tax allocation agreement or Cash Grant indemnity, Cash Grant sharing or Cash Grant allocation agreement with any party the principal purpose of which, in each case, is the allocation, apportionment, sharing or assignment of any Cash Grant or any Tax liability or benefit, nor does any Company Entity have any Liability or potential Liability to another party under any such agreement.
(xi) Each of the Company and Operating Seller is a “United States person” within the meaning of Section 7701(a)(30) of the Code.
(xii) No Company Entity (i) has been a member of an affiliated group filing a consolidated federal income Tax Return or (ii) has any liability for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign law) as a transferee or successor or otherwise under Applicable Law.
(xiii) No Company Entity is a party to any agreement, contract, arrangement or plan that has resulted or could result, separately or in the aggregate, in the payment of (i) any “excess parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state or local law) and (ii) any amount that will not be fully deductible as a result of Section 162(m) of the Code (or any corresponding provisions of state or local law).
(xiv) No Company Entity has agreed or is required to make any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise.
(xv) No Company Entity or any Person acting on behalf of a Company Entity has applied to the IRS for a private letter ruling with respect to a Company Entity, including any application for a private letter ruling that has been withdrawn
(xvi) No Company Entity is or has been a “tax-exempt entity” within the meaning of Section 168(h)(2) of the Code (determined after application of Section 168(h)(2)(B) of the Code) or is a “tax-exempt controlled entity” within the meaning of Section 168(h)(6)(F)(iii) of the Code, unless such entity has made the election provided in Section 168(h)(6)(F)(ii) of the Code.
(xvii) No asset of a Company Entity is treated wholly or partly as “tax exempt use property” within the meaning of Section 168(h) of the Code.
(xviii) With respect to each Earnout Project, other than the Project Company that is identified as the owner of such Earnout Project, no person has an ownership interest, or a right to acquire an ownership interest, in such Earnout Project.
(xix) No more than 20% of the “energy property” as defined in Section 48(a) of the Code acquired or installed at an Earnout Project constitutes previously used property for purposes of Section 48(a)(3)(B) of the Code.
(xx) With respect to each of the wind Earnout Projects, for purposes of and within the meaning of Section 45(b)(3) of the Code, there has never been (i) any grant provided by the United States, any state or any political subdivision of a state for use in connection with such wind Earnout Project, (ii) any issue of state or local government obligations used to provide financing for such wind Earnout Project (or any portion thereof) the interest on which is exempt from federal income tax under Section 103 of the Code, (iii) any subsidized energy financing provided (directly or indirectly) under a federal, state or local program provided in connection with such wind Earnout Project (or any portion thereof) or (iv) any federal credit (other than the credit described in Section 45(a) of the Code) allowable with respect to such wind Earnout Project, any property or equipment included therein, or any electricity produced thereby.
(xxi) With respect to each wind Earnout Project, no application has been submitted to the United States Treasury Department for a Cash Grant with respect to any property or equipment included in such wind Earnout Project.
(xxii) With respect to each Cash Grant Project, (i) the Cash Grant Application was (as of the date it was submitted) and, to the Company’s Knowledge, continues to be true and correct in all material respects, (ii) from and after the date the Cash Grant Application was submitted, the Company’s interest in such Cash Grant applicant has been held through Subsidiaries of the Company that are treated as corporations for U.S. federal income tax purposes, which Subsidiaries have, in turn, owned all of their interests in the Cash Grant applicant directly or indirectly through entities treated as partnerships or disregarded entities for U.S. federal income tax purposes, and each such Subsidiary, such disregarded entity, such partnership and such Cash Grant applicant is not and has never been a disqualified person (within the meaning of the Cash Grant Guidance) (iii) to the Knowledge of the Company, any direct or indirect owners of the Cash Grant applicant that do not own an ownership interest in the Cash Grant applicant through the Company are not and have never been disqualified persons (within the meaning of the Cash Grant Guidance), (iv) the property has not ceased to qualify as a specified energy property (within the meaning of the Cash Grant Guidance) so as to cause any part of the awarded Cash Grant to be disallowed, reduced (other than for reason of sequestration), recaptured or treated as resulting in income subject to tax as a result of an excessive Cash Grant award (v) the Cash Grant applicant, the Company Entities, and any other direct or indirect owners of the Cash Grant applicant that own an ownership interest in the Cash Grant applicant through the Company have not received notice from the United States Treasury Department or the IRS that would suggest that any part of the awarded Cash Grant will be disallowed, reduced (other than for reason of sequestration), recaptured or treated as resulting in income subject to tax as a result of an excessive Cash Grant award, (vi) to the Knowledge of the Company, any direct or indirect owners of the Cash Grant applicant that do not own an ownership interest in the Cash Grant applicant through the Company have not received notice from the United States Treasury Department or the IRS that would suggest that any part of the awarded Cash Grant will be disallowed, reduced (other than for reason of sequestration), recaptured or treated as resulting in income subject to tax as a result of an excessive Cash Grant award, and (vii) no election to pass-through the Cash Grant to a lessee (as described in the section under the heading “VI. Leased Property” of the Cash Grant Guidance) has been made.
(xxiii) The information set forth in Schedule 2.5(t) to the Equity Capital Contribution Agreement for the South Plains I Project (a true and correct copy of which is attached hereto as Attachment 1 to Schedule 3.09(a)(xxiii)) and in Schedule 3.09(a)(xxiii) with respect to the South Plains I Project and South Plains II Project is true and correct in all material respects solely for purposes of allowing Holdco Buyer to confirm that physical work of a significant nature has begun with respect to such Projects (within the meaning of the IRS Notices). The information set forth in Exhibit G-5 to the Oakfield Financing Agreement (a true and correct copy of which is attached hereto as Attachment 2 to Schedule 3.09(a)(xxiii)) and in Schedule 3.09(a)(xxiii)), with respect to the Oakfield Project is true and correct in all material respects solely for purposes of allowing Holdco Buyer to confirm that physical work of a significant nature has begun with respect to such Project that the applicable Project Company has incurred more than 5% of the cost of such Project (within the meaning of the IRS Notices). The information set forth in Schedule 3.09(a)(xxiii)), with respect to the Xxxxxxx Project and the Xxxxxxx Project is true and correct in all material respects solely for purposes of allowing Holdco Buyer to confirm with respect to each such Project that the applicable Project Company has incurred more than 5% of the cost of such Project (within the meaning of the IRS Notices).
(xxiv) To the Knowledge of the Company, with respect to each of the wind Earnout Projects that is a physical works test Project, no specific event, fact or circumstance has occurred or arisen that the Company believes would be likely to result in the failure of such Project to satisfy the requirements of Section 4.06 of IRS Notice 2013-29, as modified by IRS Notice 2013-60, on or prior to December 31, 2015; provided that this representation shall expire with respect to such Project on the date a “Full Notice to Proceed” under the applicable EPC Agreement for such Project has been given.
(xxv) With respect to each Operating Entity, each of the representations and warranties that relate to Taxes and that were made by a Company Entity in connection with the tax equity financing for such Operating Entity were, as of the date that they were made, true and correct in all material respects. No Operating Entity has sold electricity generated by the applicable Project to a Related Party.
(xxvi) Each Operating Entity has made or will make (to be effective for the period including the Closing Date) a valid and effective election under Section 754 of the Code, and each Operating Entity has not commenced any action to revoke any election.
(xxvii) None of the real property as to which any Company Entity is obligated, contractually or by Applicable Law, to pay ad valorem taxes, (i) is subject to rollback Taxes or Tax penalties, or (ii) has been or is entitled to a preferential or special real estate Tax assessment or Tax treatment.
Appears in 1 contract
Samples: Purchase and Sale Agreement
