Energy Regulation. (a) Immediately following the Separation and thereafter the Borrower and any Restricted Subsidiary that is a holding company as such term is defined in PUHCA is exempt in accordance with 18 CFR § 366.3 from the accounting, record-retention and reporting requirements of PUHCA.
(b) The Borrower is not subject to regulation as a “public utility” as such term is defined in the FPA. Each Restricted Subsidiary that is subject to regulation as a “public utility” as such term is defined in the FPA and that makes sales of energy or capacity that are not pursuant to a state regulatory authority’s implementation of PURPA has an order from the FERC, which order is not subject to any pending challenge, investigation, complaint, or other proceeding, except as could not reasonably be expected to result in a Material Adverse Effect and other than generic proceedings generally applicable in the industry, (x) authorizing such Restricted Subsidiary to engage in wholesale sales of electricity and, to the extent permitted under its market-based rate tariff, other transactions at market-based rates and (y) granting such waivers and blanket authorizations as are customarily granted to entities with market-based rate authority, including blanket authorizations to issue securities and to assume liabilities pursuant to Section 204 of the FPA. With respect to each Restricted Subsidiary described in the preceding sentence, except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(b), the FERC has not imposed any rate caps, mitigation measures, or other limits on market-based sales of power by that Restricted Subsidiary, other than rate caps and mitigation measures generally applicable to similarly situated marketers or generators selling electricity, ancillary services or other services at wholesale at market-based rates in the geographic market where such Restricted Subsidiary conducts its business.
(c) Each Restricted Subsidiary of the Borrower participating in the wholesale power market in state or regional transmission organizations has registered with the relevant state or regional body to sell electricity at wholesale at market-based rates, and, except as could not reasonably be expected to result in a Material Adverse Effect, such state or regional body has not imposed any specific rate cap or mitigation measure (other than pursuant to generic proceedings generally applicable in the industry). The rates charged b...
Energy Regulation. The Borrower and its Subsidiaries are in compliance with the Public Utility Holding Company Act of 2005 and the implementing regulations of the Federal Energy Regulatory Commission (“FERC”), as amended from time to time (together, “PUHCA 2005”), and consummation of the transactions contemplated by this Agreement and the other Loan Documents will not cause the Borrower or its Subsidiaries to cease to be in compliance with PUHCA 2005, except where any such non-compliance would not reasonably be expected to have a Material Adverse Effect.
Energy Regulation. As of the Closing Date:
(a) None of the Borrower, Diablo Holdings or Storage Holdings is (i) subject to regulation as a “public utility” under the FPA or (ii) a “holding company” under PUHCA other than with respect to one or more EWGs.
(b) (i) Diablo is not subject to regulation as a “public utility,” but will be subject to regulation as a “public utility” as of the effective date of its MBR Authority, and Borrower is not aware of any reason why Diablo would not receive MBR Authority prior to such time as required under the FPA, and (ii) Diablo is not an “electric utility company,” as defined in PUHCA.
(c) Each of Gateway and Vista (i) is subject to regulation as a “public utility,” under the FPA, (ii) has MBR Authority, which is in full force and effect, and (iii) is an EWG. FERC’s orders granting each of Gateway and Vista MBR Authority are final and no longer subject to rehearing before FERC or judicial review.
(d) Each Loan Party is in compliance with the FPA and PUHCA, except where failure to be in such compliance would not reasonably be expected to have a Material Adverse Effect.
(e) The Diablo Base Utility RA Contract #1 has been approved by the CPUC, and the CPUC’s order approving the Diablo Base Utility RA Contract #1 is final, in full force and effect, and no longer subject to rehearing or judicial review.
(f) No Loan Party is subject to any approval, obligation or regulation as a public utility, or equivalent term, by any Governmental Authority under any state law, by virtue of its ownership and operation of a Project and a Project Company’s sale of electric energy, capacity or ancillary services, except as set forth on Schedule 3.17.
(g) Except as provided in this Section 3.19 and Schedule 3.17, and except as may be required for the exercise of remedies under the Transaction Documents, no approval is required to be obtained by any Loan Party from FERC or any other state or federal Governmental Authority with jurisdiction over the sales of energy, capacity and any ancillary services or the financial agreements of the Loan Parties for execution and delivery, the consummation of the Transactions contemplated by, or the performance of obligations under the Transaction Documents, including the ownership, operation, control and sale of energy, capacity and ancillary services by a Project Company from any Project.
(h) None of the Lender Parties nor any “affiliate” (as that term is defined in PUHCA) of any of them will, solely as a result of the enterin...
Energy Regulation. The Company will take or cause to be taken all necessary or appropriate actions so that it (a) will be authorized by FERC to sell at wholesale electric energy, capacity and, to the extent applicable, ancillary services at market-based rates with all waivers of regulations and blanket authorizations as are customarily granted by FERC to entities authorized to sell electricity at wholesale at market-based rates, in each case to the extent such authorization is required for the Company to sell electricity at wholesale at market-based rates in accordance with all Applicable Law and (b) maintains EWG status pursuant to PUHCA.
Energy Regulation. As of the Closing Date:
(a) The Borrower (i) is not a “public utility,” as that term is defined in Section 201 of the FPA, but will be a “public utility” under the FPA as of the earliest of (A) its acquisition of ownership interests in certain Shared Facilities under the Shared Facility Agreement, (B) the effective date of its MBR Authority, (C) the date on which the Shared Facility Agreement first becomes effective pursuant to Section 205 of the FPA, and (D) the time at which any energy generated by the LeConte Project is injected into the transmission grid, and (ii) is not an “electric utility company,” a “public-utility company,” or a “holding company”, as defined in PUHCA, but will be an “electric utility company” and a “public-utility company” as of the earlier of (A) its acquisition of ownership interests in certain facilities under the Shared Facility Agreement and (B) the date on which it first generates electricity from the Project.
(b) Reserved.
Energy Regulation. (a) The Borrower shall obtain market-based rate authority under Section 205 of the FPA and blanket approval to issue securities under Section 204 of the FPA from the FERC in a final and binding order no longer subject to rehearing or appeal prior to the earlier of (i) September 1, 2007 (or, so long as the Borrower has properly filed all necessary applications with the FERC for the procurement of market-based rate authority by June 1, 2007 and, thereafter, is diligently pursuing the obtainment of market-based rate authority, then December 1, 2007) and (ii) the date the Project generates any electric energy, including for any testing prior to the Commercial Operation Date.
(b) The Borrower shall take all actions necessary to remain in compliance with, or exempt from, the FPA, PUHCA 2005, applicable state energy regulatory laws and all Governmental Rules, except where failure to be in compliance with such laws and Governmental Rules would not reasonably be expected to have a Material Adverse Effect.
Energy Regulation. The Borrower shall take or cause to be taken all necessary or appropriate actions so that (a) it has MBR Authority and (b) it maintains its EWG status.
Energy Regulation. (a) As of the Closing Date, the Borrower is in compliance in all material respects with the FPA and PUHCA 2005 and all Governmental Rules with respect to the ownership, operation, Control and sale of electricity from the Project.
(b) After the Closing Date, the Borrower and each Permitted Project Company are in compliance with the FPA and PUHCA 2005 and all Governmental Rules with respect to the ownership, operation, Control and sale of electricity from the Project, except where failure to be in such compliance would not reasonably be expected to have a Material Adverse Effect.
(c) Except as provided in Section 5.16, no approval is required to be obtained by the Borrower or any Permitted Project Company from the AR PSC, the FERC or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing agreements of the Borrower for the ownership, operation, Control and sale of electricity form the Project, or in connection with any of the transactions contemplated hereby or by any other Operative Document.
Energy Regulation. (a) The Borrower is not deemed by any Governmental Authority to be subject to financial, organizational or rate regulation as an “electric utility,” “electric corporation,” “electrical company,” “gas utility,” “steam company,” “steam utility,” “public-utility company,” “public utility” or “holding company,” “water utility,” “public service company” or similar entity under any law of the United States, any state or any political subdivision of the United States or any state, as such laws exist as of the Restatement Date, except that the Borrower (i) is a “public utility” and an “electric utility” under the FPA that has been granted market-based rate authorization by FERC under the FPA and an Exempt Wholesale Generator as defined in PUHCA 2005, and is subject to regulation under the FPA, and (ii) may be a “public-utility holding company” and an “electric utility company” under PUHCA 2005, and (iii) is a “public utility” under the Pennsylvania state public utility law, and may be subject to regulation under the Pennsylvania state law as a “public utility”, except as to the rates, terms and conditions of wholesale power sales from the Project which rates, terms and conditions are not themselves subject to regulation under Pennsylvania state public utility law (as such law is interpreted and applied by applicable judicial and administrative bodies).
(b) None of the Lenders will be, solely by reason of (i) the making of any Term Loan, (ii) the securing of the Obligations by Liens on the Collateral or (iii) any other transaction contemplated by any Loan Document and without regard to any other activity of such Lender, deemed by any Governmental Authority to be, subject to regulation as, an “electric utility,” “electric corporation,” “electrical company,” “gas utility,” “steam company,” “steam utility,” “public-utility company,” “public utility” or “holding company,” “water utility,” “public service company” or similar entity under any law of the United States, any state or any political subdivision of the United States or any state, as such laws exist as of the Second Lien Closing Date; provided that the foregoing shall not apply upon the exercise by any Lender of its remedies under any Loan Document.
(c) None of the Lenders will be, solely by reason of ownership or operation of the Project upon the exercise of its remedies under any Loan Document, and without regard to any other activity of any Lender, deemed by any Governmental Authority to be subject to financ...
Energy Regulation. Cause each Project SPE to comply with all applicable energy regulatory laws, including without limitation the Brazilian legislation, the regulation determined by the competent authorities and, if applicable, the Resolution No. 482, issued on April 17th, 2012 by the National Agency of Electrical Energy – XXXXX (Agência Nacional de Energia Elétrica – XXXXX), if applicable.
