Common use of Determination of Foreign Tax Credit Usage Clause in Contracts

Determination of Foreign Tax Credit Usage. For purposes of determining under Section 6.9(a) whether the Owner Participant has utilized any foreign tax credits attributable to the Facility Lease as a credit against its federal income tax liability, such tax shall be considered utilized as a credit after any other foreign tax of the Owner Participant. However, if the Owner Participant has entered into or enters into an unrelated lease transaction, the Owner Participant shall be deemed to utilize (i) first, foreign taxes other than those described in clauses (ii) and (iii) below, (ii) second, on a pro rata basis, all foreign taxes with respect to which the Owner Participant is entitled to obtain indemnification in connection with a lease transaction (including the Facility Lease), other than Deemed Last Utilized Taxes and (iii) third, Deemed Last Utilized Taxes. Once a foreign tax, the loss of the credit in respect of which the Owner Participant was indemnified and paid by EME in accordance with Section 6.4, is deemed to be utilized pursuant to the ordering rules set forth in the preceding sentence, it shall not subsequently be recharacterized as not having been utilized as a result of a foreign tax liability arising in a subsequent year. A subsequent loss by the Owner Participant (by reason of an IRS determination) of any portion of any reduction in any tax liability for which the Owner Participant has paid EME pursuant to Section 6.4 shall be subject to indemnity hereunder without regard to the exclusions set forth in Section 7, except for the exclusions set forth in Section 7(iii) or Section 7(xii).

Determination of Foreign Tax Credit Usage. For purposes of determining under Section 6.9(a) whether the Owner Participant has utilized any foreign tax credits attributable to the Facility Lease as a credit against its federal income tax liability, such tax shall be considered utilized as a credit after any other foreign tax of the Owner Participant. However, if the Owner Participant has entered into or enters into an unrelated lease transaction, the Owner Participant shall be deemed to utilize (i) first, first foreign taxes other than those described in clauses (ii) and (iii) below, (ii) second, on a pro rata basis, all foreign taxes with respect to which the Owner Participant is entitled to obtain indemnification in connection with a lease transaction (including the Facility Lease), other than Deemed Last Utilized Taxes and (iii) third, Deemed Last Utilized Taxes. Once a foreign tax, the loss of the credit in respect of which the Owner Participant was indemnified and paid by EME in accordance with Section 6.4, is deemed to be utilized pursuant to the ordering rules set forth in the preceding sentence, it shall not subsequently be recharacterized as not having been utilized as a result of a foreign tax liability arising in a subsequent year. A subsequent loss by the Owner Participant (by reason of an IRS determination) of any portion of any reduction in any tax liability for which the Owner Participant has paid EME pursuant to Section 6.4 shall be subject to indemnity hereunder without regard to the exclusions set forth in Section 7, except for the exclusions set forth in Section 7(iii) or Section 7(xii).

Determination of Foreign Tax Credit Usage. For purposes of determining under Section 6.9(a) whether the Owner Participant has utilized any foreign tax credits attributable to the Facility Lease as a credit against its federal income tax liability, such tax shall be considered utilized as a credit after any other foreign tax of the Owner Participant. However, if the Owner Participant has entered into or enters into an unrelated lease transaction, the Owner Participant shall be deemed to utilize (i1) first, first foreign taxes other than those described in clauses (ii) and (iii) below, (ii) second, on a pro rata basis, all foreign taxes with respect to which the Owner Participant is entitled to obtain indemnification in connection with a lease transaction (including the Facility Lease), other than Deemed Last Utilized Taxes and (iii) third, Deemed Last Utilized Taxes. Once a foreign tax, the loss of the credit in respect of which the Owner Participant was indemnified and paid by EME in accordance with Section 6.4, is deemed to be utilized pursuant to the ordering rules set forth in the preceding sentence, it shall not subsequently be recharacterized as not having been utilized as a result of a foreign tax liability arising in a subsequent year. A subsequent loss by the Owner Participant (by reason of an IRS determination) of any portion of any reduction in any tax liability for which the Owner Participant has paid EME pursuant to Section 6.4 shall be subject to indemnity hereunder without regard to the exclusions set forth in Section 7, except for the exclusions set forth in Section 7(iii) or Section 7(xii).