Common use of Energy Regulation Clause in Contracts

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 by each such Restricted Subsidiary are not subject to any pending challenge or investigation. (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, any other Governmental Authority or any state or regional transmission organizations seeking abrogation or modification, or otherwise investigating the terms, of a contract for the sale of power by Borrower or its Restricted Subsidiaries. (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiary, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any state or regional transmission organizations all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) all of such filings complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and (ii) “lightened regulation” by the New York State Public Service Commission and material financial and organizational regulation by the Vermont Public Service Board. Except for such approvals that have been obtained, no approval is required to be obtained in connection with the Transactions from the FERC or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted Subsidiaries.

Energy Regulation. (a) Immediately following the Separation and thereafter the The Borrower and any Restricted Subsidiary Guarantor 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 Guarantor that is subject to regulation as a “public utility” as such term is defined in within the meaning of the FPA and that makes sales not otherwise exempt from regulation under Section 205 and 206 of energy or capacity that are not pursuant to the FPA (“FPA-Jurisdictional Subsidiary Guarantors”), has a state regulatory authority’s implementation of PURPA has an validly-issued order from the FERC, which order is not subject to any pending challenge, challenge or 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 it to engage in wholesale sales of electricity electric energy, capacity and certain ancillary services 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 FPAFPA (together, “FPA MBR Authorizations, Exemptions and Waivers”). With respect to each Restricted Subsidiary described in As of the preceding sentenceSixth Amendment Effective Date, 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 limitations on the FPA MBR Authorizations, Exemptions and Waivers of any FPA-Jurisdictional Subsidiary Guarantor or any of the FPA-Jurisdictional Subsidiary Guarantors’ authority to engage in sales of electricity at market-based sales of power by that Restricted Subsidiaryrates, other than (i) rate caps and mitigation measures generally applicable to similarly situated marketers or generators selling electricitywholesale suppliers participating in the applicable FERC-jurisdictional electric market (although, ancillary services or other services at wholesale at to the knowledge of the Borrower, there are no generally applicable challenges currently pending before FERC to the market-based rates rate authorization of wholesale suppliers in the geographic market where such Restricted electric markets in which the Subsidiary conducts its businessGuarantors described in the previous sentence make wholesale sales under their market-based rate tariffs). (c) Each Restricted Subsidiary of the Borrower Guarantor participating in the wholesale or retail power market in state that is not a FPA-Jurisdictional Subsidiary Guarantor (“Non-FPA-Jurisdictional Subsidiary Guarantors”) has made all filings with and obtained all authorizations necessary from the applicable Governmental Authority to generate electric energy and sell electric energy, capacity or regional transmission organizations has registered with the relevant state or regional body to sell electricity ancillary services at wholesale at marketor retail (“Non-based ratesFPA Sales Authorizations”), and, except as could not reasonably be expected to result in a Material Adverse Effect, such state or regional body the applicable Governmental Authority has not imposed any specific rate cap or mitigation measure on such Non-FPA Sales Authorizations (other than pursuant to generic proceedings generally applicable in the industry). The To each Non-FPA-Jurisdictional Subsidiary Guarantor’s knowledge, as of the Closing Date, the rates charged by each such Restricted Non-FPA-Jurisdictional Subsidiary Guarantor are not subject to any pending challenge or investigation. (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, any other Governmental Authority FERC or any state or regional transmission organizations the PUCT seeking abrogation or modificationmodification or refunds, or otherwise investigating the termsrates, terms or conditions, of a contract for the sale of power by the Borrower or its Restricted SubsidiariesSubsidiary Guarantors. (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiaryof the Subsidiary Guarantors, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any applicable state or regional transmission organizations local utility commission or regulatory bodies, ERCOT and the FERC all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) thereunder, all of such filings which complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within Borrower or any of the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary Guarantors is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries Subsidiary Guarantors that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and ), (ii) “lightened regulation” by the New York State Public Service Commission and material financial and organizational regulation (the “NYPSC”) of the type described in the NYPSC’s order issued on September 23, 2004 in Case 04-E-0884, (iii) the assertion of jurisdiction by the Vermont Public Service BoardState of California over maintenance and operating standards of all generating facilities pursuant to SB 39XX, (iv) with respect to Subsidiary Guarantors making sales of wholesale energy within ERCOT, regulations issued by the PUCT and (v) with respect to Subsidiary Guarantors that are retail electric providers, regulations issued by the respective state legislatures and regulatory Commissions. Except for such approvals that have been obtainedOther than the approval of the NYPSC, which was granted by an order issued in Case 10-E-0405 (November 18, 2010), no approval is required to be obtained in connection with the Transactions by Borrower or its Subsidiary Guarantors from the FERC PUCT, the FERC, or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted SubsidiariesSubsidiary Guarantors. (g) As of the Sixth Amendment Effective Date, (i) each Facility identified as a “QF” in Schedule 3.23(g) is a QF under PURPA and the current rules and regulations promulgated thereunder; (ii) each Person identified as an “EWG” in Schedule 3.23(g) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended, and (iii) each Person identified as a FUCO in Schedule 3.23(g) is a “foreign utility company” within the meaning of PUHCA.

Energy Regulation. (a) Immediately following the Separation and thereafter Each of the Borrower and any Restricted Subsidiary Guarantor that is a holding company as such term is defined in PUHCA is exempt in accordance with 18 CFR § 366.3 from the federal 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 Guarantor that is subject to regulation as a “public utility” as such term is defined in within the meaning of the FPA and that makes sales of energy or capacity that are not pursuant to (“FPA-Jurisdictional Subsidiary Guarantors”) has a state regulatory authority’s implementation of PURPA has an validly-issued order from the FERC, which order is not subject to any pending challenge, challenge or 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 it to engage in wholesale sales of electricity electric energy, capacity and certain ancillary services 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 FPAFPA (together, “FPA MBR Authorizations, Exemptions and Waivers”). With respect to each Restricted Subsidiary described in As of the preceding sentenceClosing Date, 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 limitations on the FPA MBR Authorizations, Exemptions and Waivers of any FPA-Jurisdictional Subsidiary Guarantor or any of the FPA-Jurisdictional Subsidiary Guarantors’ authority to engage in sales of electricity at market-based sales of power by that Restricted Subsidiaryrates, other than (i) rate caps and mitigation measures generally applicable to similarly situated marketers or generators selling electricitywholesale suppliers participating in the applicable FERC-jurisdictional electric market (although, ancillary services or other services at wholesale at to the knowledge of the Borrower, there are no generally applicable challenges currently pending before FERC to the market-based rates rate authorization of wholesale suppliers in the geographic market where such Restricted electric markets in which the Subsidiary conducts its business. (c) Each Restricted Subsidiary of the Borrower participating Guarantors described in the previous sentence make wholesale power market in state or regional transmission organizations has registered with the relevant state or regional body to sell electricity at wholesale at sales under their market-based rates, andrate tariffs). As of the Closing Date, except as could not reasonably be expected to result in a Material Adverse Effect, such state or regional body no applicable Governmental Authority has not imposed any specific rate cap or mitigation measure limitation on the ability of any FPA-Jurisdictional Subsidiary Guarantor to participate in any RTO Market (other than pursuant to generic proceedings limitations generally applicable to similarly situated participants in the industrysuch RTO Market). The rates charged by each such Restricted Subsidiary are not subject to any pending challenge or investigation. (c) [Reserved]. (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, FERC or any other Governmental applicable Government Authority or any state or regional transmission organizations seeking abrogation or modificationmodification or refunds, or otherwise investigating the termsrates, terms or conditions, of a contract for the sale of power electric energy, capacity or ancillary services by the Borrower or its Restricted SubsidiariesSubsidiary Guarantors. (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiaryof the Subsidiary Guarantors, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any applicable state or regional transmission organizations local utility commission or regulatory bodies, FERC or any other applicable Governmental Authority, all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all 98 US-DOCS\104110541.24 Applicable Laws, including PUHCA, the FPA FPA, the rules for RTO Markets and state utility laws and the respective rules thereunder and (ii) thereunder, all of such filings which complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within Borrower or any of the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary Guarantors is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and (ii) “lightened regulation” by the New York State Public Service Commission and material financial and organizational regulation (the “NYPSC”) of the type described in the NYPSC’s order issued on September 23, 2004 in Case 04-E-0884, (ii) the assertion of jurisdiction by the Vermont State of California over maintenance and operating standards of all generating facilities pursuant to California Public Service BoardUtilities Commission General Order 167 and (iii) with respect to Subsidiary Guarantors that are retail electric providers, regulations issued by the respective state legislatures and regulatory Commissions. Except for such approvals that have been obtainedOther than the approval of the NYPSC, which was granted by an order issued in Case 10-E-0405 (November 18, 2010), no approval is required to be obtained in connection with the Transactions by the Borrower or the Subsidiary Guarantors from the FERC or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted Subsidiariesthe Subsidiary Guarantors. (g) As of the Closing Date, each Person identified as an “EWG” in Schedule 3.23(g) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended.

Energy Regulation. (a) Immediately following Neither the Separation and thereafter Company nor any “subsidiary company” of the Borrower and any Restricted Subsidiary that is Company is, or by virtue of the Transactions, will become, subject to regulation as (i) a “holding company company” or a “public utility company” or, to the best of the knowledge of the Company after due inquiry, (ii) a “subsidiary company” of a “holding company,” in each case as such term is terms are defined in PUHCA is exempt PUHCA. To the best of the knowledge of the Company after due inquiry, as of the Restatement Date, none of the Company or any “subsidiary company” of the Company shall be a “subsidiary company” of a “holding company,” in accordance with 18 CFR § 366.3 from the accounting, record-retention and reporting requirements of each case as such terms are defined in PUHCA. (b) The Borrower None of the Company or any of the Subsidiaries is not subject to regulation as a “public utility” as such term is defined in the FPA, other than entities that have market-based rate authority under Section 205 of 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 validly issued orders from the FERCFERC that, which order is to the best of the knowledge of the Company after due inquiry, are not subject to any pending challenge, investigation, complaint, investigation or other proceeding, except as could not reasonably be expected to result in a Material Adverse Effect and proceeding (other than the FERC’s generic proceedings generally applicable proceeding initiated in the industry, Docket No. EL01-118-000) (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 assume liabilities pursuant to Section 204 of the FPA. Devon Power LLC, Middleton Power LLC and Montville Power LLC also have “reliability must run” agreements with ISO New England, which impose certain limitations on these companies in exchange for a guarantee of fixed cost recovery. The FERC has issued an order stating that it grants to the Company authority to issue certain securities under Section 204 of the FPA, but it has not issued an order stating that it grants to the Company blanket authorizations to issue securities and assume liabilities pursuant to Section 204 of the FPA. With respect to each Restricted Subsidiary Person 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, caps or mitigation measures, or other limits on market-based sales of power by that Restricted Subsidiary, measures 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 Person 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 by each such Restricted Subsidiary are not subject to any pending challenge or investigation. (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, any other Governmental Authority or any state or regional transmission organizations seeking abrogation or modification, or otherwise investigating the terms, of a contract for the sale of power by Borrower or its Restricted Subsidiaries. (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiary, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any state or regional transmission organizations all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) all of such filings complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Company or any of the Subsidiaries is a “foreign utility company” within the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) than, with respect to those Restricted Subsidiaries that are QFsQF’s, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and (ii) ), “lightened regulation” by the New York State Public Service Commission (the “NYPSC”) of the type described in the NYPSC’s order issued on September 23, 2004 in Case 04-E-0884 and material financial and organizational regulation the assertion of jurisdiction by the Vermont Public Service Board. Except for such approvals that have been obtained, no approval is required State of California over maintenance and operating standards of all generating facilities pursuant to be obtained in connection with the Transactions from the FERC or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted SubsidiariesSB 39XX.

Energy Regulation. (a) Immediately following the Separation and thereafter the 3. The Borrower and any Restricted Subsidiary Guarantor 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. (ba) The Borrower is not subject to regulation as a “public utility” as such term is defined in the FPA. Each Restricted Subsidiary Guarantor that is subject to regulation as a “public utility” as such term is defined in within the meaning of the FPA and that makes sales not otherwise exempt from regulation under Section 205 and 206 of energy or capacity that are not pursuant to the FPA (“FPA-Jurisdictional Subsidiary Guarantors”), has a state regulatory authority’s implementation of PURPA has an validly-issued order from the FERC, which order is not subject to any pending challenge, challenge or 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 it to engage in wholesale sales of electricity electric energy, capacity and certain ancillary services 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 FPAFPA (together, “FPA MBR Authorizations, Exemptions and Waivers”). With respect to each Restricted Subsidiary described in As of the preceding sentenceClosing Date, 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 limitations on the FPA MBR Authorizations, Exemptions and Waivers of any FPA-Jurisdictional Subsidiary Guarantor or any of the FPA-Jurisdictional Subsidiary Guarantors’ authority to engage in sales of electricity at market-based sales of power by that Restricted Subsidiaryrates, other than (i) rate caps and mitigation measures generally applicable to similarly situated marketers or generators selling electricitywholesale suppliers participating in the applicable FERC-jurisdictional electric market (although, ancillary services or other services at wholesale at to the knowledge of the Borrower, there are no generally applicable challenges currently pending before FERC to the market-based rates rate authorization of wholesale suppliers in the geographic market where such Restricted electric markets in which the Subsidiary conducts its businessGuarantors described in the previous sentence make wholesale sales under their market-based rate tariffs). (cb) Each Restricted Subsidiary of the Borrower Guarantor participating in the wholesale or retail power market in state that is not a FPA-Jurisdictional Subsidiary Guarantor (“Non-FPA-Jurisdictional Subsidiary Guarantors”) has made all filings with and obtained all authorizations necessary from the applicable Governmental Authority to generate electric energy and sell electric energy, capacity or regional transmission organizations has registered with the relevant state or regional body to sell electricity ancillary services at wholesale at marketor retail (“Non-based ratesFPA Sales Authorizations”), and, except as could not reasonably be expected to result in a Material Adverse Effect, such state or regional body the applicable Governmental Authority has not imposed any specific rate cap or mitigation measure on such Non-FPA Sales Authorizations (other than pursuant to generic proceedings generally applicable in the industry). The To each Non-FPA-Jurisdictional Subsidiary Guarantor’s knowledge, as of the Closing Date, the rates charged by each such Restricted Non-FPA-Jurisdictional Subsidiary Guarantor are not subject to any pending challenge or investigation. (dc) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, any other Governmental Authority FERC or any state or regional transmission organizations the PUCT seeking abrogation or modificationmodification or refunds, or otherwise investigating the termsrates, terms or conditions, of a contract for the sale of power by the Borrower or its Restricted SubsidiariesSubsidiary Guarantors. (ed) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiaryof the Subsidiary Guarantors, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any applicable state or regional transmission organizations local utility commission or regulatory bodies, ERCOT and the FERC all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) thereunder, all of such filings which complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (fe) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within Borrower or any of the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary Guarantors is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries Subsidiary Guarantors that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and ), (ii) “lightened regulation” by the New York State Public Service Commission and material financial and organizational regulation (the “NYPSC”) of the type described in the NYPSC’s order issued on September 23, 2004 in Case 04-E-0884, (iii) the assertion of jurisdiction by the Vermont Public Service BoardState of California over maintenance and operating standards of all generating facilities pursuant to SB 39XX, (iv) with respect to Subsidiary Guarantors making sales of wholesale energy within ERCOT, regulations issued by the PUCT and (v) with respect to Subsidiary Guarantors that are retail electric providers, regulations issued by the respective state legislatures and regulatory Commissions. Except for such approvals that have been obtainedOther than the approval of the NYPSC, which was granted by an order issued in Case 10-E-0405 (November 18, 2010), no approval is required to be obtained in connection with the Transactions by Borrower or its Subsidiary Guarantors from the FERC PUCT, the FERC, or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted SubsidiariesSubsidiary Guarantors. (f) As of the Closing Date, (i) each Facility identified as a “QF” in Schedule 3.23(g) is a QF under PURPA and the current rules and regulations promulgated thereunder; (ii) each Person identified as an “EWG” in Schedule 3.23(g) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended, and (iii) each Person identified as a FUCO in Schedule 3.23(g) is a “foreign utility company” within the meaning of PUHCA.

Energy Regulation. (a) Immediately following The Borrower, the Separation and thereafter the Borrower Company and any Restricted Opco Subsidiary Guarantor 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 and the Company are not subject to regulation as a “public utility” as such term is defined in the FPA. Each Restricted Opco Subsidiary Guarantor 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 as of the Closing Date, a Material Adverse Effect or, after the Closing Date, a Funding Date Material Adverse Effect and other than generic proceedings generally applicable in the industry, (x) authorizing such Restricted Opco Subsidiary Guarantor 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 Opco Subsidiary Guarantor described in the preceding sentence, except as could not reasonably be expected to result in as of the Closing Date, a Material Adverse Effect or, after the Closing Date, a Funding Date 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 SubsidiaryOpco Subsidiary Guarantor, other than (i) 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 Opco Subsidiary Guarantor conducts its business, and (ii) the restrictions imposed on Cabrillo Power I LLC, Cabrillo Power II LLC, Devon Power LLC, Middletown Power LLC, Montville Power LLC, Norwalk Power LLC, and Connecticut Jet Power LLC pursuant to those entities’ “reliability must run” agreements and/or other agreements /arrangements with the independent system operators, or other similar arrangements. (c) Each Restricted Opco Subsidiary of the Borrower Guarantor participating in the wholesale power market in state or regional transmission organizations ERCOT has registered with the relevant state or regional body PUCT to sell electricity at wholesale at market-based rates, and, except as could not reasonably be expected to result in as of the Closing Date, a Material Adverse Effect or, after the Closing Date, a Funding Date Material Adverse Effect, such state or regional body the PUCT has not imposed any specific rate cap or mitigation measure (other than pursuant to generic proceedings generally applicable in the industry). The To its knowledge, as of the Closing Date, the rates charged by each such Restricted Opco Subsidiary Guarantor are not subject to any pending challenge or investigationinvestigation . (d) Except as could not reasonably be expected to result in as of the Closing Date, a Material Adverse Effect or, after the Closing Date, a Funding Date Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, any other Governmental Authority FERC or any state or regional transmission organizations the PUCT seeking abrogation or modification, or otherwise investigating the terms, of a contract for the sale of power by Borrower the Borrower, the Company or its Restricted Subsidiariesthe Opco Subsidiary Guarantors. (e) Except as could not reasonably be expected to result in as of the Closing Date, a Material Adverse Effect or, after the Closing Date, a Funding Date Material Adverse Effect, (i) each of the Borrower Borrower, the Company and each Restricted Subsidiaryof the Opco Subsidiary Guarantors, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any applicable state or regional transmission organizations local utility commission or regulatory bodies, ERCOT and the FERC all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) thereunder, all of such filings which complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within Borrower, the meaning Company or any of PUHCA. (g) Neither the Borrower nor any Restricted Opco Subsidiary Guarantors is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries Opco Subsidiary Guarantors that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and ), (ii) “lightened regulation” by the New York State Public Service Commission (the “NYPSC”) of the type described in the NYPSC’s order issued on September 23, 2004 in Case 04-E-0884 and material financial and organizational regulation (iii) the assertion of jurisdiction by the Vermont Public Service Board. Except for such approvals that have been obtained, no approval is required State of California over maintenance and operating standards of all generating facilities pursuant to be obtained in connection with the Transactions from the FERC or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements SB 39XX. (g) As of the Borrower date of this Agreement, each Facility identified as a “QF” in Schedule 3.23(g) is a QF under PURPA and its Restricted Subsidiariesthe current rules and regulations promulgated thereunder. As of the date of this Agreement, each person identified as an “EWG” in Schedule 3.23(g) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. As of the date of this Agreement, each person identified as a FUCO in Schedule 3.23(g) is a “foreign utility company” within the meaning of PUHCA.

Energy Regulation. (a) Immediately following the Separation and thereafter Neither the Borrower and nor any Restricted Subsidiary that is “subsidiary company” of the Borrower is, or by virtue of the Transactions, will become, subject to regulation under PUHCA as a “holding company company,” a “public-utility company” or, to the knowledge of the Borrower, a “subsidiary company” of a “holding company,” in each case as such term is terms are defined in PUHCA is exempt in accordance with 18 CFR § 366.3 from PUHCA; provided that after February 8, 2006, the accounting, record-retention representations and reporting requirements warranties of PUHCAthis Section 3.23(a) shall be of no force and effect. (b) The None of the Borrower or any of the Subsidiaries is not subject to regulation as a “public utility” as such term is defined in the FPA, other than entities that have market-based rate authority under Section 205 of 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 proceeding (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 (i) 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, and (ii) the restrictions imposed on Devon Power LLC, Middleton Power LLC, Montville Power LLC, Norwalk Power LLC and Connecticut Jet Power LLC pursuant to those entities’ “reliability must run” agreements and/or other agreements with ISO New England. (c) Each Restricted Subsidiary of the Borrower participating in the wholesale power market in state or regional transmission organizations ERCOT, including Subsidiaries acquired through the Acquisition, has registered with ERCOT and the relevant state or regional body PUCT to sell generate electricity at wholesale at market-based rateswholesale, and, except as could not reasonably be expected to result in a Material Adverse Effect, such state or regional body and the PUCT has not imposed any specific rate cap or mitigation measure (other than pursuant to generic proceedings generally applicable in measure. To its knowledge, the industry). The rates charged by each such Restricted Subsidiary are not subject to any pending challenge or investigationinvestigation other than (i) the obligation of certain Subsidiaries to sell capacity in auctions mandated by the PUCT under Section 39.153 of the Texas Public Utility Regulatory Act and (ii) a petition for certiorari filed for review of the decision of the United States Court of Appeals for the Fifth Circuit in Texas Commercial Energy v. TXU Energy, Inc., 413 F.3d 503 (5th Cir. 2005). (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there There are no complaint proceedings pending with the FERC, any other Governmental Authority FERC or any state or regional transmission organizations the PUCT seeking abrogation or modification, or otherwise investigating the terms, of a contract for the sale of power by Borrower or its Restricted SubsidiariesSubsidiary Guarantors, other than as expressly set forth on Schedule 3.23(d). (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiaryof the Subsidiary Guarantors, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any applicable state or regional transmission organizations local utility commission or regulatory bodies, ERCOT and the FERC all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) thereunder, all of such filings which complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within Borrower or any of the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary Guarantors is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and ), (ii) “lightened regulation” by the New York State Public Service Commission (the “NYPSC”) of the type described in the NYPSC’s order issued on September 23, 2004 in Case 04-E-0884 and material financial and organizational regulation (iii) the assertion of jurisdiction by the Vermont Public Service BoardState of California over maintenance and operating standards of all generating facilities pursuant to SB 39XX. Except for such Other than the approvals that have been obtainednoted in Schedule 3.23(f) associated with the Acquisition, no approval is required to be obtained in connection with the Transactions by Borrower or its Subsidiaries from the FERC PUCT, the FERC, or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted Subsidiaries. (g) As of the date of this Agreement, each Facility identified as a “QF” in Schedule 3.23(g) is a QF under PURPA and the current rules and regulations promulgated thereunder. As of the date of this Agreement, each person identified as an “EWG” in Schedule 3.23(g) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 1992, as amended. As of the date of this Agreement, each person identified as a FUCO in Schedule 3.23(g) is a “foreign utility company” within the meaning of PUHCA.

Energy Regulation. (a) Immediately following Except for regulation by FERC under FPA, PUHCA (as an exempt holding company) and PURPA, or, in the Separation case of Independence, lightened regulation as an electric corporation and thereafter lightened and incidental regulation as a steam corporation by the New York Public Service Commission, none of Intermediate Holdings, the Borrower and or any Restricted Subsidiary that is subject to regulation as a public utility holding company, public utility or public service 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(or similar designation) by any Governmental Authority. (b) The Borrower Each Loan Party and each other subsidiary that makes sales of electric energy, capacity or ancillary services (other than any subsidiary that is not subject to regulation as the owner of a “public utilityqualifying facility” as such term is defined in the FPA. Each Restricted Subsidiary under PURPA and that is subject to exempt from regulation as a “public utility” as such term is defined in under Sections 205 and 206 of the FPA and that makes sales of energy or capacity that are not pursuant to a state regulatory authority’s implementation of PURPA 18 C.F.R. § 292.601) has received an order from FERC granting it (i) authorization to make wholesale sales of electric energy, capacity and ancillary services at market-based rates and (ii) such waivers and blanket authorizations as are customarily granted to entities with market-based rate authority, including blanket authorization to issue securities and assume liabilities pursuant to Section 204 of the FERCFPA, which order is not subject to any pending challenge, investigation, complaint, or other proceeding, except as could would 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, potential refunds or other limits on such market-based sales of power by that Restricted Subsidiaryrate sales, other than (x) rate caps and mitigation measures generally applicable to similarly situated marketers or generators selling electricity, capacity, or ancillary services or other services at wholesale at market-based rates in the relevant geographic market where such Restricted Subsidiary conducts its business. markets or (cy) Each Restricted Subsidiary of the Borrower participating in the wholesale power market in state restrictions imposed through “reliability-must-run” agreements or similar agreements with independent system operators 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 by each such Restricted Subsidiary are not subject to any pending challenge or investigationorganizations. (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, any other Governmental Authority or any state or regional transmission organizations seeking abrogation or modification, or otherwise investigating the terms, of a contract for the sale of power by Borrower or its Restricted Subsidiaries. (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiary, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any state or regional transmission organizations all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) all of such filings complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and (ii) “lightened regulation” by the New York State Public Service Commission and material financial and organizational regulation by the Vermont Public Service Board. Except for such approvals that have been obtained, no approval is required to be obtained in connection with the Transactions from the FERC or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted Subsidiaries.

Energy Regulation. (a) Immediately following the Separation and thereafter the The Borrower and any Restricted Subsidiary Guarantor 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 Guarantor 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 Guarantor 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 Guarantor 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)Effect, the FERC has not imposed any rate caps, mitigation measures, or other limits on market-based sales of power by that Restricted SubsidiarySubsidiary Guarantor, other than (i) 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 Guarantor conducts its business, and (ii) the restrictions imposed on Cabrillo Power I LLC, Cabrillo Power II LLC, Devon Power LLC, Middletown Power LLC, Montville Power LLC, Norwalk Power LLC, and Connecticut Jet Power LLC pursuant to those entities’ “reliability must run” agreements and/or other agreements/arrangements with the independent system operators, or other similar arrangements. (c) Each Restricted Subsidiary Guarantor of the Borrower participating in the wholesale power market in state or regional transmission organizations ERCOT has registered with the relevant state or regional body PUCT 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 the PUCT has not imposed any specific rate cap or mitigation measure (other than pursuant to generic proceedings generally applicable in the industry). The To its knowledge, as of the Restatement Date, the rates charged by each such Restricted Subsidiary Guarantor are not subject to any pending challenge or investigation. (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d)Effect, there are no complaint proceedings pending with the FERC, any other Governmental Authority FERC or any state or regional transmission organizations the PUCT seeking abrogation or modification, or otherwise investigating the terms, of a contract for the sale of power by Borrower or its Restricted SubsidiariesSubsidiary Guarantors. (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiaryof the Subsidiary Guarantors, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any applicable state or regional transmission organizations local utility commission or regulatory bodies, ERCOT and the FERC all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) thereunder, all of such filings which complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within Borrower or any of the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary Guarantors is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries Subsidiary Guarantors that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and ), (ii) “lightened regulation” by the New York State Public Service Commission (the “NYPSC”) of the type described in the NYPSC’s order issued on September 23, 2004 in Case 04-E-0884 and material financial and organizational regulation (iii) the assertion of jurisdiction by the Vermont Public Service BoardState of California over maintenance and operating standards of all generating facilities pursuant to SB 39XX. Except for such approvals that have been obtained, no No approval is required to be obtained in connection with the Transactions by Borrower or its Subsidiary Guarantors from the FERC PUCT, the FERC, or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted SubsidiariesSubsidiary Guarantors. (g) As of the Restatement Date, each Facility identified as a “QF” in Schedule 3.23(g) is a QF under PURPA and the current rules and regulations promulgated thereunder. As of the Restatement Date, each person identified as an “EWG” in Schedule 3.23(g) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. As of the Restatement Date, each person identified as a FUCO in Schedule 3.23(g) is a “foreign utility company” within the meaning of PUHCA.

Energy Regulation. (a) Immediately following Except for regulation by FERC under FPA, PUHCA (as an exempt holding company) and PURPA, or, in the Separation case of Independence, lightened regulation as an electric corporation and thereafter lightened and incidental regulation as a steam corporation by the New York Public Service Commission, none of Intermediate Holdings, the Borrower and or any Restricted Subsidiary that is subject to regulation as a public utility holding company, public utility or public service 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(or similar designation) by any Governmental Authority. (b) The Borrower Each Loan Party and each other subsidiary that makes sales of electric energy, capacity or ancillary services (other than any subsidiary that is not subject to regulation as the owner of a “public utilityqualifying facility” as such term is defined in the FPA. Each Restricted Subsidiary under PURPA and that is subject to exempt from regulation as a “public utility” as such term is defined in under Sections 205 and 206 of the FPA and that makes sales of energy or capacity that are not pursuant to a state regulatory authority’s implementation of PURPA 18 C.F.R. § 292.601) has received an order from FERC granting it (i) authorization to make wholesale sales of electric energy, capacity and ancillary services at market-based rates and (ii) such waivers and blanket authorizations as are customarily granted to entities with market-based rate authority, including blanket authorization to issue securities and assume liabilities pursuant to Section 204 of the FERCFPA, which order is not subject to any pending challenge, investigation, complaint, or other proceeding, except as could would 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, potential refunds or other limits on such market-based sales of power by that Restricted Subsidiaryrate sales, other than (x) rate caps and mitigation measures generally applicable to similarly situated marketers or generators selling electricity, capacity, or ancillary services or other services at wholesale at market-based rates in the relevant geographic market where such Restricted Subsidiary conducts its businessmarkets or (y) restrictions imposed through “reliability-must-run” agreements or similar agreements with independent system operators or regional transmission organizations. (c) Each Restricted Subsidiary of All “qualifying facilities” (if any) owned by any Loan Party or any other subsidiary continue to meet 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, andeligibility requirements for “qualifying facilities” under PURPA and related regulations, except as where failure to meet such eligibility requirements would not reasonably be expected to have a Material Adverse Effect. All “exempt wholesale generators” and “foreign utility companies” (if any) owned by any Loan Party or any other subsidiary continue to meet the requirements for “exempt wholesale generators” and “foreign utility companies” under PUHCA and related regulations, except where failure to meet such requirements could not reasonably be expected to result in have 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 by each such Restricted Subsidiary are not subject to any pending challenge or investigation. (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, any other Governmental Authority or any state or regional transmission organizations seeking abrogation or modification, or otherwise investigating the terms, of a contract for the sale of power by Borrower or its Restricted Subsidiaries. (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiary, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any state or regional transmission organizations all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) all of such filings complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and (ii) “lightened regulation” by the New York State Public Service Commission and material financial and organizational regulation by the Vermont Public Service Board. Except for such approvals that have been obtained, no approval is required to be obtained in connection with the Transactions from the FERC or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted Subsidiaries.

Energy Regulation. (a) Immediately following the Separation and thereafter the The Borrower and any Restricted Subsidiary Guarantor 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 Guarantor 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 Guarantor 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 Guarantor 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 SubsidiarySubsidiary Guarantor, other than (i) 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 Guarantor conducts its business, and (ii) the restrictions imposed on Cabrillo Power I LLC, Cabrillo Power II LLC, Devon Power LLC, Middletown Power LLC, Montville Power LLC, Norwalk Power LLC, and Connecticut Jet Power LLC pursuant to those entities’ “reliability must run” agreements and/or other agreements/arrangements with the independent system operators, or other similar arrangements. (c) Each Restricted Subsidiary Guarantor of the Borrower participating in the wholesale power market in state or regional transmission organizations ERCOT has registered with the relevant state or regional body PUCT 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 the PUCT has not imposed any specific rate cap or mitigation measure (other than pursuant to generic proceedings generally applicable in the industry). The To its knowledge, as of the First Restatement Date, the rates charged by each such Restricted Subsidiary Guarantor are not subject to any pending challenge or investigation. (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, any other Governmental Authority FERC or any state or regional transmission organizations the PUCT seeking abrogation or modification, or otherwise investigating the terms, of a contract for the sale of power by Borrower or its Restricted SubsidiariesSubsidiary Guarantors. (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiaryof the Subsidiary Guarantors, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any applicable state or regional transmission organizations local utility commission or regulatory bodies, ERCOT and the FERC all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) thereunder, all of such filings which complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within Borrower or any of the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary Guarantors is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries Subsidiary Guarantors that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and ), (ii) “lightened regulation” by the New York State Public Service Commission (the “NYPSC”) of the type described in the NYPSC’s order issued on September 23, 2004 in Case 04-E-0884 and material financial and organizational regulation (iii) the assertion of jurisdiction by the Vermont Public Service BoardState of California over maintenance and operating standards of all generating facilities pursuant to SB 39XX. Except for such approvals that have been obtained, no No approval is required to be obtained in connection with the Transactions by Borrower or its Subsidiary Guarantors from the FERC PUCT, the FERC, or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted SubsidiariesSubsidiary Guarantors. (g) As of the First Restatement Date, each Facility identified as a “QF” in Schedule 3.23(g) is a QF under PURPA and the current rules and regulations promulgated thereunder. As of the Second Restatement Date, each person identified as an “EWG” in Schedule 3.23(g) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. As of the First Restatement Date, each person identified as a FUCO in Schedule 3.23(g) is a “foreign utility company” within the meaning of PUHCA.

Energy Regulation. (a) Immediately following the Separation Except for regulation by FERC under FPA, PUHCA (as an exempt holding company) and thereafter PURPA, none of Intermediate Holdings, the Borrower and or any Restricted Subsidiary that is subject to regulation as a public utility holding company, public utility or public service 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(or similar designation) by any Governmental Authority. (b) The Borrower Each Loan Party and each other subsidiary that makes sales of electric energy, capacity or ancillary services (other than any subsidiary that is not subject to regulation as the owner of a “public utilityqualifying facility” as such term is defined in the FPA. Each Restricted Subsidiary under PURPA and that is subject to exempt from regulation as a “public utility” as such term is defined in under Sections 205 and 206 of the FPA and that makes sales of energy or capacity that are not pursuant to a state regulatory authority’s implementation of PURPA 18 C.F.R. § 292.601) has received an order from FERC granting it (i) authorization to make wholesale sales of electric energy, capacity and ancillary services at market-based rates and (ii) such waivers and blanket authorizations as are customarily granted to entities with market-based rate authority, including blanket authorization to issue securities and assume liabilities pursuant to Section 204 of the FERCFPA, which order is not subject to any pending challenge, investigation, complaint, or other proceeding, except as could would 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, potential refunds or other limits on such market-based sales of power by that Restricted Subsidiaryrate sales, other than (x) rate caps and mitigation measures generally applicable to similarly situated marketers or generators selling electricity, capacity, or ancillary services or other services at wholesale at market-based rates in the relevant geographic market where such Restricted Subsidiary conducts its businessmarkets or (y) restrictions imposed through “reliability-must-run” agreements or similar agreements with independent system operators or regional transmission organizations. (c) Each Restricted Subsidiary of All “qualifying facilities” (if any) owned by any Loan Party or any other subsidiary continue to meet 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, andeligibility requirements for “qualifying facilities” under PURPA and related regulations, except as where failure to meet such eligibility requirements would not reasonably be expected to have a Material Adverse Effect. All “exempt wholesale generators” and “foreign utility companies” (if any) owned by any Loan Party or any other subsidiary continue to meet the requirements for “exempt wholesale generators” and “foreign utility companies” under PUHCA and related regulations, except where failure to meet such requirements could not reasonably be expected to result in have 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 by each such Restricted Subsidiary are not subject to any pending challenge or investigation. (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, any other Governmental Authority or any state or regional transmission organizations seeking abrogation or modification, or otherwise investigating the terms, of a contract for the sale of power by Borrower or its Restricted Subsidiaries. (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiary, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any state or regional transmission organizations all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) all of such filings complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and (ii) “lightened regulation” by the New York State Public Service Commission and material financial and organizational regulation by the Vermont Public Service Board. Except for such approvals that have been obtained, no approval is required to be obtained in connection with the Transactions from the FERC or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted Subsidiaries.

Energy Regulation. (a) Immediately following the Separation and thereafter the The Borrower and any Restricted Subsidiary Guarantor 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 Guarantor 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 Guarantor 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 Guarantor 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 SubsidiarySubsidiary Guarantor, other than (i) 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 Guarantor conducts its business, and (ii) the restrictions imposed on Cabrillo Power I LLC, Cabrillo Power II LLC, Devon Power LLC, Middletown Power LLC, Montville Power LLC, Norwalk Power LLC, and Connecticut Jet Power LLC pursuant to those entities’ “reliability must run” agreements and/or other agreements/arrangements with the independent system operators, or other similar arrangements. (c) Each Restricted Subsidiary Guarantor of the Borrower participating in the wholesale or retail power market in state or regional transmission organizations ERCOT has registered with the relevant state or regional body PUCT to sell electricity at wholesale at or retail market-based rates, and, except as could not reasonably be expected to result in a Material Adverse Effect, such state or regional body the PUCT has not imposed any specific rate cap or mitigation measure (other than pursuant to generic proceedings generally applicable in the industry). The To its knowledge, as of the Third Restatement Date, the rates charged by each such Restricted Subsidiary Guarantor are not subject to any pending challenge or investigation. (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, any other Governmental Authority FERC or any state or regional transmission organizations the PUCT seeking abrogation or modificationmodification or refunds, or otherwise investigating the termsrates, terms or conditions, of a contract for the sale of power by the Borrower or its Restricted SubsidiariesSubsidiary Guarantors. (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiaryof the Subsidiary Guarantors, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any applicable state or regional transmission organizations local utility commission or regulatory bodies, ERCOT and the FERC all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) thereunder, all of such filings which complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within Borrower or any of the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary Guarantors is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries Subsidiary Guarantors that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and ), (ii) “lightened regulation” by the New York State Public Service Commission and material financial and organizational regulation (the “NYPSC”) of the type described in the NYPSC’s order issued on September 23, 2004 in Case 04-E-0884, (iii) the assertion of jurisdiction by the Vermont Public Service BoardState of California over maintenance and operating standards of all generating facilities pursuant to SB 39XX and (iv) with respect to Subsidiary Guarantors that are Texas retail electric providers, regulations issued by the PUCT. Except for such approvals that have been obtainedOther than the approval of the NYPSC, which was granted by an order issued in Case 05-E-1528 (February 10, 2006), no approval is required to be obtained in connection with the Transactions by Borrower or its Subsidiary Guarantors from the FERC PUCT, the FERC, or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted SubsidiariesSubsidiary Guarantors. (g) As of the Third Restatement Date, each Facility identified as a “QF” in Schedule 3.23(g) is a QF under PURPA and the current rules and regulations promulgated thereunder. As of the Third Restatement Date, each person identified as an “EWG” in Schedule 3.23(g) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. As of the Third Restatement Date, each person identified as a FUCO in Schedule 3.23(g) is a “foreign utility company” within the meaning of PUHCA. As of the Third Restatement Date, each person identified as a “REP” in Schedule 3.23(g) is a “retail electric provider” under the Texas Public Utility Regulatory Act and the rules and regulations promulgated thereunder.

Energy Regulation. (a) Immediately following Neither the Separation and thereafter Company nor any Affiliate of the Borrower and any Restricted Subsidiary that is Company (other than First Energy Corp.) is, or by virtue of the Transactions, will become, subject to regulation as (i) a "holding company company," (ii) a "subsidiary company" of a "holding company" (other than Xcel Energy Inc.) or (iii) a "public-utility company," in each case as such term is terms are defined in PUHCA is exempt PUHCA. As of the Plan Effective Date for the NRG Plan, none of the Company or any of the Affiliates of the Company shall be a "subsidiary company" of a "holding company," in accordance with 18 CFR § 366.3 from the accounting, record-retention and reporting requirements of each case as such terms are defined in PUHCA. (b) The Borrower None of the Company or any of the Subsidiaries is not subject to regulation as a “"public utility” " as such term is defined in the FPA, other than (i) as a power marketer or an owner of generator leads, which has market-based rate authority under Section 205 of the FPA or (ii) as a QF under PURPA, as contemplated by 18 C.F.R. Section 292.601(c). Each Restricted Subsidiary Except as set forth in Schedule 3.24, each of the Company and any of the Subsidiaries 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 validly issued orders from the FERC, which order is not subject to any pending challenge, investigation, complaint, investigation or other proceeding, except as could not reasonably be expected to result in a Material Adverse Effect and proceeding (other than the FERC's generic proceedings generally applicable proceeding initiated in the industry, Docket No. EL01-118-000) (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; provided, however, that FERC has indicated in at least one order that it will treat the Company as a "public utility" for purposes of Section 204 of the FPA. With The Company does not have blanket authorizations to issue securities and assume liabilities pursuant to Section 204 of the FPA. Except as set forth in Schedule 3.24, with respect to each Restricted Subsidiary person 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, caps or mitigation measures, or other limits on market-based sales of power by that Restricted Subsidiary, measures 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 person 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 by each such Restricted Subsidiary are not subject to any pending challenge or investigation. (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, any other Governmental Authority or any state or regional transmission organizations seeking abrogation or modification, or otherwise investigating the terms, of a contract for the sale of power by Borrower or its Restricted Subsidiaries. (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiary, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any state or regional transmission organizations all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) all of such filings complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Company or any of the Subsidiaries is a “foreign utility company” within the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) than, with respect to those Restricted Subsidiaries that are QFsQF's, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and (ii) “"lightened regulation” " as defined by the New York State Public Service Commission and material financial and organizational regulation by the Vermont Public Service Board. Except for such approvals that have been obtained, no approval is required to be obtained in connection with the Transactions from the FERC or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted SubsidiariesCommission.

Energy Regulation. (a) Immediately following the Separation and thereafter the The Borrower and any Restricted Subsidiary Guarantor 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 Guarantor that is subject to regulation as a “public utility” as such term is defined in within the meaning of the FPA and that makes sales not otherwise exempt from regulation under Section 205 and 206 of energy or capacity that are not pursuant to the FPA (“FPA-Jurisdictional Subsidiary Guarantors”), has a state regulatory authority’s implementation of PURPA has an validly-issued order from the FERC, which order is not subject to any pending challenge, challenge or 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 it to engage in wholesale sales of electricity electric energy, capacity and certain ancillary services 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 FPAFPA (together, “FPA MBR Authorizations, Exemptions and Waivers”). With respect to each Restricted Subsidiary described in As of the preceding sentenceClosing Date, 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 limitations on the FPA MBR Authorizations, Exemptions and Waivers of any FPA-Jurisdictional Subsidiary Guarantor or any of the FPA-Jurisdictional Subsidiary Guarantors’ authority to engage in sales of electricity at market-based sales of power by that Restricted Subsidiaryrates, other than (i) rate caps and mitigation measures generally applicable to similarly situated marketers or generators selling electricitywholesale suppliers participating in the applicable FERC-jurisdictional electric market (although, ancillary services or other services at wholesale at to the knowledge of the Borrower, there are no generally applicable challenges currently pending before FERC to the market-based rates rate authorization of wholesale suppliers in the geographic market where such Restricted electric markets in which the Subsidiary conducts its businessGuarantors described in the previous sentence make wholesale sales under their market-based rate tariffs). (c) Each Restricted Subsidiary of the Borrower Guarantor participating in the wholesale or retail power market in state that is not a FPA-Jurisdictional Subsidiary Guarantor (“Non-FPA-Jurisdictional Subsidiary Guarantors”) has made all filings with and obtained all authorizations necessary from the applicable Governmental Authority to generate electric energy and sell electric energy, capacity or regional transmission organizations has registered with the relevant state or regional body to sell electricity ancillary services at wholesale at marketor retail (“Non-based ratesFPA Sales Authorizations”), and, except as could not reasonably be expected to result in a Material Adverse Effect, such state or regional body the applicable Governmental Authority has not imposed any specific rate cap or mitigation measure on such Non-FPA Sales Authorizations (other than pursuant to generic proceedings generally applicable in the industry). The To each Non-FPA-Jurisdictional Subsidiary Guarantor’s knowledge, as of the Closing Date, the rates charged by each such Restricted Non-FPA-Jurisdictional Subsidiary Guarantor are not subject to any pending challenge or investigation. (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, any other Governmental Authority FERC or any state or regional transmission organizations the PUCT seeking abrogation or modificationmodification or refunds, or otherwise investigating the termsrates, terms or conditions, of a contract for the sale of power by the Borrower or its Restricted SubsidiariesSubsidiary Guarantors. (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiaryof the Subsidiary Guarantors, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any applicable state or regional transmission organizations local utility commission or regulatory bodies, ERCOT and the FERC all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) thereunder, all of such filings which complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within Borrower or any of the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary Guarantors is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries Subsidiary Guarantors that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and ), (ii) “lightened regulation” by the New York State Public Service Commission and material financial and organizational regulation (the “NYPSC”) of the type described in the NYPSC’s order issued on September 23, 2004 in Case 04-E-0884, (iii) the assertion of jurisdiction by the Vermont Public Service BoardState of California over maintenance and operating standards of all generating facilities pursuant to SB 39XX, (iv) with respect to Subsidiary Guarantors making sales of wholesale energy within ERCOT, regulations issued by the PUCT and (v) with respect to Subsidiary Guarantors that are retail electric providers, regulations issued by the respective state legislatures and regulatory Commissions. Except for such approvals that have been obtainedOther than the approval of the NYPSC, which was granted by an order issued in Case 10-E-0405 (November 18, 2010), no approval is required to be obtained in connection with the Transactions by Borrower or its Subsidiary Guarantors from the FERC PUCT, the FERC, or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted SubsidiariesSubsidiary Guarantors. (g) As of the Closing Date, (i) each Facility identified as a “QF” in Schedule 3.23(g) is a QF under PURPA and the current rules and regulations promulgated thereunder; (ii) each Person identified as an “EWG” in Schedule 3.23(g) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended, and (iii) each Person identified as a FUCO in Schedule 3.23(g) is a “foreign utility company” within the meaning of PUHCA.

Energy Regulation. (a) Immediately following the Separation and thereafter the The Borrower and any Restricted Subsidiary Guarantor 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 Guarantor 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 Guarantor 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 Guarantor 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 SubsidiarySubsidiary Guarantor, other than (i) 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 Guarantor conducts its businessbusiness and (ii) the restrictions imposed on Cabrillo Power I LLC, Cabrillo Power II LLC, Devon Power LLC, Middletown Power LLC, Montville Power LLC, Norwalk Power LLC, and Connecticut Jet Power LLC pursuant to those entities’ “reliability must run” agreements (none of which are in effect as of the Closing Date) and/or other agreements/arrangements with the independent system operators, or other similar arrangements. (c) Each Restricted Subsidiary of the Borrower Guarantor participating in the wholesale or retail power market in state or regional transmission organizations ERCOT has registered with the relevant state or regional body PUCT to sell electricity at wholesale at or retail market-based rates, and, except as could not reasonably be expected to result in a Material Adverse Effect, such state or regional body the PUCT has not imposed any specific rate cap or mitigation measure (other than pursuant to generic proceedings generally applicable in the industry). The To each Subsidiary Guarantor’s knowledge, as of the Closing Date, the rates charged by each such Restricted Subsidiary Guarantor are not subject to any pending challenge or investigation. (d) Except as could not reasonably be expected to result in a Material Adverse Effect and except as set forth on Schedule 3.23(d), there are no complaint proceedings pending with the FERC, any other Governmental Authority FERC or any state or regional transmission organizations the PUCT seeking abrogation or modificationmodification or refunds, or otherwise investigating the termsrates, terms or conditions, of a contract for the sale of power by the Borrower or its Restricted SubsidiariesSubsidiary Guarantors. (e) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) each of the Borrower and each Restricted Subsidiaryof the Subsidiary Guarantors, as applicable, has filed or caused to be filed with the FERC, all other relevant Governmental Authorities and any applicable state or regional transmission organizations local utility commission or regulatory bodies, ERCOT and the FERC all forms, applications, notices, statements, reports and documents (including all exhibits and amendments thereto) required to be filed by it under all Applicable Laws, including PUHCA, the FPA and state utility laws and the respective rules thereunder and (ii) thereunder, all of such filings which complied with the applicable requirements of the appropriate act and rules, regulations and orders thereunder in effect on the date each was filed. (f) Each power facility identified as a “QF” in Schedule 3.23(f) is a qualifying facility under PURPA and the current rules and regulations promulgated thereunder. Each person identified as an “EWG” in Schedule 3.23(f) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended. None of the Restricted Subsidiaries is a “foreign utility company” within Borrower or any of the meaning of PUHCA. (g) Neither the Borrower nor any Restricted Subsidiary Guarantors is subject to any material state laws or material regulations respecting rates or the financial or organizational regulation of utilities, other than (i) with respect to those Restricted Subsidiaries Subsidiary Guarantors that are QFs, such state regulations contemplated by 18 C.F.R. Section 292.602(c) and ), (ii) “lightened regulation” by the New York State Public Service Commission and material financial and organizational regulation (the “NYPSC”) of the type described in the NYPSC’s order issued on September 23, 2004 in Case 04-E-0884, (iii) the assertion of jurisdiction by the Vermont Public Service BoardState of California over maintenance and operating standards of all generating facilities pursuant to SB 39XX and (iv) with respect to Subsidiary Guarantors that are Texas retail electric providers, regulations issued by the PUCT. Except for such approvals that have been obtainedOther than the approval of the NYPSC, which was granted by an order issued in Case 10-E-0405 (November 18, 2010), no approval is required to be obtained in connection with the Transactions by Borrower or its Subsidiary Guarantors from the FERC PUCT, the FERC, or any other state or federal Governmental Authority with jurisdiction over the energy sales or financing arrangements of the Borrower and its Restricted SubsidiariesSubsidiary Guarantors. (g) As of the Closing Date, (i) each Facility identified as a “QF” in Schedule 3.23(g) is a QF under PURPA and the current rules and regulations promulgated thereunder; (ii) each Person identified as an “EWG” in Schedule 3.23(g) is an “exempt wholesale generator” within the meaning of PUHCA and the Energy Policy Act of 2005, as amended, (iii) each Person identified as a FUCO in Schedule 3.23(g) is a “foreign utility company” within the meaning of PUHCA and (iv) each Person identified as a “REP” in Schedule 3.23(g) is a “retail electric provider” under the Texas Public Utility Regulatory Act and the rules and regulations promulgated thereunder.