Common use of True-Up Payment Clause in Contracts

True-Up Payment. (a) Upon the (i) the dissolution of the Partnership, and (ii) each sale, assignment or other transfer, directly or indirectly, of all or any part of the Partnership Interests held by NDP and DIL to a Person or Persons other than Affiliates of NDP or DIL (each a “True-Up Date”), NDP and DIL shall jointly pay to the other Partners (each, a “True-Up Payment”) an amount equal to 50% of the amount, if any, by which the present value, as of the Amendment Date, calculated using a reasonable discount rate, of the economic benefits included in the “stream of benefits”, as such term is used and defined by the Federal Energy Regulatory Commission (“Commission”) in connection with determining the equity interest in a qualifying cogeneration facility held by a person primarily engaged in the generation or sale of electricity under Section 292.206 of the Commission’s regulations implementing the Public Utility Regulatory Policies Act of 1978, as amended, received by NDP and DIL from the Partnership from the Amendment Date through and including the respective True-Up Date, exceeds 50% of such present value of the total “stream of benefits” from the Partnership from the Amendment Date through and including such True-Up Date. (b) True-up Payments shall be divided proportionately among the Partners receiving them in accordance with their relative Partnership Interests. (c) The obligations, if any, to make True-Up Payments shall automatically terminate and shall be of no further force or effect without any further action being taken by the Partnership or the Partners, other than confirmation that the order referred to below is acceptable, in form and substance, to PAS and the Agent, upon the receipt by the Partnership of an order issued by the Commission or its staff by delegated authority in which the Commission finds or confirms that, based on the Partnership’s reasonable projections of distributions of cash and allocations of profits, losses and deductions to be made after the Amendment Date to the Partners, fees to be paid to the Partners after the Amendment Date and the fair market price of the services to be provided for such fees, at no time between the Amendment Date and the expiration of the Partnership’s contract with Florida Power Corporation for the sale of electricity generated by the Project will NDP and DIL have received, collectively and cumulatively, more than 50% of the Project’s “stream of benefits”. 7. Section 7.01(a) of the Partnership Agreement is hereby amended to read in its entirety as follows: (a) Net Cash Flow, if any, shall be distributed to the Partners under the terms of Section 7.01(b), in proportion to their Interests in the Partnership, provided however, that any such distributions to be made on or before March 31, 1995 in respect of any Interest, or part thereof, held by Pasco Interest Holdings Inc. on the date when such distribution would otherwise be made shall be withheld by the Partnership until the earlier of (i) March 31, 1995, or (ii) the transfer by PIHI of such Interest, or part thereof, and shall be made promptly thereafter to the holder of such Interest, or part thereof, on the date when such distribution is made. 8. Section 14.01(e) of the Partnership Agreement is hereby amended to read in its entirety as follows:

True-Up Payment. (a) Upon the (i) the dissolution of the Partnership, and (ii) each sale, assignment or other transfer, directly or indirectly, transfer of all or any part of the Partnership Interests held held, directly or indirectly, by NDP NCP Lake and DIL LIL to a Person or Persons other than Affiliates an Affiliate of NDP NCP Lake or DIL LIL (each each, a “True-Up Date”), NDP ) NCP Lake and DIL LIL shall jointly pay to the other Partners (each, a “True-Up Payment”) an amount equal to 50% of the amount, if any, by which the present value, as of the Amendment Date, calculated using a reasonable discount rate, of the economic benefits included in the “stream of benefits”, as such term is used and defined by the Federal Energy Regulatory Commission (“Commission”) in connection with determining the equity interest in a qualifying cogeneration facility held by a person primarily engaged in the generation or and sale of electricity under Section 292.206 of the Commission’s regulations implementing the Public Utility Regulatory Policies Act of 1978, as amended, received by NDP NCP Lake and DIL LIL from the Partnership from the Amendment Date through and including the respective True-Up Date, exceeds 50% of such present value of the total “stream of benefits” from the Partnership from the Amendment Date through and including such the True-Up Date. (b) True-up Payments shall be divided proportionately among the Partners receiving them in accordance with their relative Partnership Interests. (c) The obligations, if any, to make True-Up Payments shall automatically terminate and shall be of no further force or effect without any further action being taken by the Partnership or the Partners, other than confirmation that the order referred to below is acceptable, in form and substance, to PAS LIHI and the AgentOwner-Participant and receipt of such consents as may be required under the Participation Agreement, upon the receipt by the Partnership of an order issued by the Federal Energy Regulatory Commission or its staff by delegated authority (collectively, the “Commission”) in which the Commission finds or confirms that, based on the Partnership’s reasonable projections of distributions of cash and allocations of profits, losses and deductions to be made after the Amendment Date to the Partners, fees to be paid to the Partners after the Amendment Date and the fair market price of the services to be provided for such fees, at no time between the Amendment Date and the expiration of the Partnership’s contract with Florida Power Corporation and Light Company for the sale of electricity generated by the Project Cogeneration Facility will NDP NCP Lake and DIL LIL have received, collectively and cumulatively, more than 50% of the ProjectCogeneration Facility’s “stream of benefits.”. 7. (d) The word “and” immediately preceding clause (iii) in Section 7.01(a7.1 is deleted and the following is added after said clause (iii): “; and (iv) no Distributions shall be made prior to the earlier of (A) the consummation of the transfer of LIHI’s aggregate Partnership Agreement Interest pursuant to the exercise of the Lake Option, or (B) the expiration or termination of the Lake Option.” (e) The first sentence of Section 8.2 is hereby amended to read in its entirety as follows: : “NCP Lake is designated as the tax matters partner (a“Tax Matters Partner”) Net Cash Flow, if any, shall be distributed to the Partners under the terms of as provided in Section 7.01(b), in proportion to their Interests in the Partnership, provided however, that any such distributions to be made on or before March 31, 1995 in respect of any Interest, or part thereof, held by Pasco Interest Holdings Inc. on the date when such distribution would otherwise be made shall be withheld by the Partnership until the earlier of (i) March 31, 1995, or (ii) the transfer by PIHI of such Interest, or part thereof, and shall be made promptly thereafter to the holder of such Interest, or part thereof, on the date when such distribution is made. 8. Section 14.01(e6231(a)(7)(A) of the Partnership Agreement Code and any comparable provision of state or local law.” (f) The Title of Article XI is hereby amended to read in its entirety as follows: “MANAGEMENT OF THE PARTNERSHIP” (g) Section 11.1 is deleted and the following shall be added preceding Section 11.2 which shall be renumbered Section 11.4: