Common use of Regulatory Status Clause in Contracts

Regulatory Status. Each of the Scrubgrass Plant and the Panther Creek Plant is a “qualifying small power production facility” under the Public Utility Regulatory Policies Act of 1978, as amended, and the FERC’s regulations thereunder, at 18 C.F.R. Part 292, and interpretations thereof by the FERC and courts of competent jurisdiction (collectively, “PURPA Requirements”). Each of the Scrubgrass Plant and the Panther Creek Plant is exempt from the size limitations applicable to qualifying small power production facilities in 18 C.F.R. § 292.204(a) pursuant to the Solar, Wind, Waste, and Geothermal Power Production Incentives Act of 1990. Each of the Scrubgrass Project Company and the Panther Creek Project Company (i) is not subject to the jurisdiction of FERC as a “public utility” under the FPA other than as contemplated by 18 C.F.R. § 292.601(c), (ii) has been authorized by FERC to make wholesale sales of electric energy, capacity and certain ancillary services at market-based rates pursuant to Section 205 of the FPA (“MBR Authority”) and has received those blanket authorizations and waivers customarily granted by FERC to parties authorized to sell electric power at market-based rates, and (iii) has on file with FERC an effective Tariff for Reactive Supply and Voltage Control (“Reactive Power Tariff”). Neither (x) the MBR Authority nor the Reactive Power Tariff of the Panther Creek Project Company or Scrubgrass Project Company nor (y) the Panther Creek Plant’s or Scrubgrass Plant’s status as a qualifying small power production facility under the PURPA Requirements, in each case, is the subject of any pending or, to the knowledge of the Company, threatened, judicial or administrative proceeding to revoke or modify such status or to impose any material penalty thereunder other than as set forth on Schedule 4.19 of the Company Disclosure Letter. None of the Company nor any of its Subsidiaries (i) is a “public-utility company” as defined in PUHCA other than the Scrubgrass Project Company and the Panther Creek Project Company or (ii) is a “holding company” as defined in PUHCA other than with respect to the ownership of qualifying small power production facilities.

Regulatory Status. Each (a) Except as set forth on Schedule 3.28 of the Scrubgrass Plant and Contributor Disclosure Letter, the Panther Creek Plant is rates charged by the Contributor Subsidiaries are not currently regulated by the Federal Energy Regulatory Commission under the Interstate Commerce Act, Natural Gas Act, or the Natural Gas Policy Act of 1978. Except as set forth on Schedule 3.28 of the Contributor Disclosure Letter, neither the Contributor nor the Contributor Subsidiaries have received written notice from any Governmental Entity indicating that (i) the Contributor Midstream Facilities or the Contributor Subsidiaries are being regulated or will be regulated by Federal Energy Regulatory Commission, (ii) the Federal Energy Regulatory Commission considers the Contributor Midstream Facilities or the Contributor Subsidiaries to be subject to regulation under any applicable Law as a “qualifying small power production facilitynatural gas company” under the Public Utility Regulatory Policies Act of 1978Natural Gas Act, as amended, and (iii) any state public service commission or the FERC’s regulations thereunder, at 18 C.F.R. Part 292, and interpretations thereof by Texas Railroad Commission considers the FERC and courts of competent jurisdiction (collectively, “PURPA Requirements”). Each of Contributor Subsidiaries or the Scrubgrass Plant and the Panther Creek Plant is exempt from the size limitations applicable Contributor Midstream Facilities to qualifying small power production facilities in 18 C.F.R. § 292.204(a) pursuant to the Solar, Wind, Waste, and Geothermal Power Production Incentives Act of 1990. Each of the Scrubgrass Project Company and the Panther Creek Project Company (i) is not be subject to the jurisdiction of FERC regulation under applicable Law as a “public utility,” “public service company” or similar designation(s) or any similar designations of a regulated entity, (iv) any Governmental Entity considers the Contributor Subsidiaries or the Contributor Midstream Facilities subject to regulation as a “holding company” under the FPA other than U.S. Public Utility Holding Company Act of 2005 or similar designation of such regulated entity or (v) the Department of Transportation considers the Contributor Subsidiaries or the Contributor Midstream Facilities as contemplated by 18 C.F.R. § 292.601(c)subject to regulation under the Pipeline and Hazardous Materials Safety Administration Rules on Pipeline Integrity Management. (b) Neither the Contributor nor any of the Contributor Subsidiaries is (i) an “investment company” as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”) or (ii) has been authorized by FERC to make wholesale sales a “holding company,” a “subsidiary company” of electric energy, capacity and certain ancillary services at market-based rates pursuant to Section 205 a “holding company,” an Affiliate of the FPA (a “MBR Authority”) and has received those blanket authorizations and waivers customarily granted by FERC to parties authorized to sell electric power at market-based rates, and (iii) has on file with FERC an effective Tariff for Reactive Supply and Voltage Control (holding company,” a “Reactive Power Tariff”). Neither (x) the MBR Authority nor the Reactive Power Tariff of the Panther Creek Project Company public utility,” or Scrubgrass Project Company nor (y) the Panther Creek Plant’s or Scrubgrass Plant’s status as a qualifying small power production facility under the PURPA Requirements, in each case, is the subject of any pending or, to the knowledge of the Company, threatened, judicial or administrative proceeding to revoke or modify such status or to impose any material penalty thereunder other than as set forth on Schedule 4.19 of the Company Disclosure Letter. None of the Company nor any of its Subsidiaries (i) is a “public-utility company,” as each such term is defined in PUHCA other than the Scrubgrass Project U.S. Public Utility Holding Company and the Panther Creek Project Company or (ii) is a “holding company” as defined in PUHCA other than with respect to the ownership Act of qualifying small power production facilities2005.

Regulatory Status. (A) Except as set forth on Schedule 4.18 of the ETE Disclosure Schedule, none of the SUG Parties is a natural gas company under the NGA, a public utility, transmitting utility, electric utility or electric utility company under the FPA, a common carrier under the ICA, or a utility, utility holding company, intrastate pipeline, gas service company, electric service company, gas company, electric company, or any similar entity however described under the laws of any state or local jurisdiction and the regulations promulgated thereunder. Except by reason of direct or indirect ownership and/or control of Exempt Wholesale Generators, none of the SUG Parties is a holding company as defined in the PUHCA. (B) Each of the Scrubgrass Plant and the Panther Creek Plant SUG’s Subsidiaries that is a “qualifying small power production facility” under the Public Utility Regulatory Policies Act of 1978, as amended, and the FERC’s regulations thereunder, at 18 C.F.R. Part 292, and interpretations thereof by the FERC and courts of competent jurisdiction (collectively, “PURPA Requirements”). Each identified on Section 4.18(a) of the Scrubgrass Plant and the Panther Creek Plant is exempt from the size limitations applicable to qualifying small power production facilities in 18 C.F.R. § 292.204(a) pursuant to the Solar, Wind, Waste, and Geothermal Power Production Incentives Act of 1990. Each of the Scrubgrass Project Company and the Panther Creek Project Company (i) is not subject to the jurisdiction of FERC ETE Disclosure Schedule as a “public utility” utility under the FPA other than as contemplated by 18 C.F.R. § 292.601(c), (ii) engages in the sale of electricity exclusively at wholesale and has been authorized by FERC the FERC, pursuant to the FPA, to make wholesale such sales of electric energy, capacity and certain ancillary services at market-based rates pursuant to Section 205 of the FPA (“MBR Authority”) and has received those blanket authorizations and waivers customarily granted by FERC to parties authorized to sell electric power at market-based rates, and has been granted such waivers and blanket authorizations (iii) has on file with FERC an effective Tariff for Reactive Supply including blanket authorization to issue securities and Voltage Control (“Reactive Power Tariff”). Neither (x) the MBR Authority nor the Reactive Power Tariff to assume liabilities under Section 204 of the Panther Creek Project Company FPA and 18 C.F.R. Pt. 34) as are customarily granted to entities with market-based rate authority. Each such Subsidiary has obtained an order from the FERC finding it, or Scrubgrass Project Company nor (y) has in good faith self-certified itself to the Panther Creek Plant’s FERC, to be an Exempt Wholesale Generator under PUHCA. There are no pending, or Scrubgrass Plant’s status as a qualifying small power production facility under the PURPA Requirements, in each case, is the subject of any pending or, to the knowledge of the CompanyETE, threatened, judicial or administrative proceeding proceedings to revoke any such Subsidiary’s market-based rate authorization or modify Exempt Wholesale Generator status, as applicable. To the knowledge of ETE, there are no facts that are reasonably likely to cause any such status Subsidiary to lose or be ineligible for its market based rate authorization or to impose any material penalty thereunder lose its status as an Exempt Wholesale Generator under PUHCA. (C) All filings (other than immaterial filings) required to be made by the SUG Parties during the three years preceding the date hereof, with the FERC under the FPA, NGA, NGPA, the ICA or PUHCA, the Department of Energy, the Federal Communications Commission, the Massachusetts Department of Public Utilities, the Missouri Public Service Commission or any other applicable state public utility commission or department, as set forth on Schedule 4.19 the case may be, have been made, including all forms, statements, reports, notices, agreements and all documents, exhibits, amendments and supplements appertaining thereto, including all rates, tariffs and related documents, and all such filings complied, as of their respective dates, and, as amended or supplemented, continue to comply with all applicable requirements of applicable statutes and the rules and regulations promulgated thereunder, except for filings the failure of which to make or the failure of which to make in compliance with all applicable requirements of applicable statutes and the rules and regulations promulgated thereunder, would not, individually or in the aggregate, materially and adversely affect the ability of the Company Disclosure Letter. None of SUG Parties to operate their business in the Company nor any of its Subsidiaries (i) is a “public-utility company” as defined in PUHCA other than the Scrubgrass Project Company and the Panther Creek Project Company or (ii) is a “holding company” as defined in PUHCA other than ordinary course consistent with respect to the ownership of qualifying small power production facilitiespast practices.

Regulatory Status. Each (A) Except as would not, individually or in the aggregate, have an ETP Material Adverse Effect, (i) none of HHI and each of the Scrubgrass Plant SUN Parties is a natural gas company under the Natural Gas Act, (“NGA”), 15 U.S.C. §§ 717-717W, and the Panther Creek Plant regulations promulgated by the FERC thereunder, or a utility, intrastate pipeline, gas service company, electric service company, gas company, electric company, or any similar entity however described under the laws of any state or local jurisdiction and the regulations promulgated thereunder and (ii) none of HHI or any of the SUN Parties is a holding company or a public-utility company as defined in the Public Utility Holding Company Act of 2005, 42 U.S.C. §§ 16451-16453, and the regulations promulgated by the FERC thereunder (“PUHCA”). (B) Except as would not, individually or in the aggregate, have an ETP Material Adverse Effect, (i) each of HHI and SUN’s Subsidiaries and each Subsidiary of the SUN in the past three years that is or was a public utility under the FPA engaged in the sale of electricity at wholesale and has been authorized by the FERC, pursuant to the FPA, to make such sales at market-based rates, and has been granted such waivers and blanket authorizations (including blanket authorization to issue securities and to assume liabilities under Section 204 of the FPA and 18 C.F.R. Pt. 34) as are customarily granted to entities with market-based rate authority, (ii) each such Subsidiary that was a public-utility company, as such term is defined under PUHCA, has obtained an order from the FERC finding it, or has in good faith self-certified itself to the FERC, to be either (A) an Exempt Wholesale Generator as such term is defined under PUHCA (“Exempt Wholesale Generator”) or (B) a qualifying small power production facility” facility (“Qualifying Facility”) under the Public Utility Regulatory Policies Act of 1978, as amended1978 §§ 16 U.S.C. 2601-2645, and the FERC’s regulations thereunder, at 18 C.F.R. Part 292, and interpretations thereof promulgated by the FERC and courts of competent jurisdiction thereunder (collectively, “PURPA RequirementsPURPA”). Each Prior to the Closing of the Scrubgrass Plant and Merger Agreement, SUN’s Subsidiary, Sunoco Power Marketing, LLC, filed a notice of cancellation with the Panther Creek Plant is exempt from the size limitations applicable to qualifying small power production facilities in 18 C.F.R. § 292.204(a) pursuant to the Solar, Wind, Waste, and Geothermal Power Production Incentives Act of 1990. Each of the Scrubgrass Project Company and the Panther Creek Project Company (i) is not subject to the jurisdiction of FERC as a “public utility” under the FPA other than as contemplated by 18 C.F.R. § 292.601(c), (ii) has been authorized by FERC to make wholesale sales of electric energy, capacity and certain ancillary services at requesting that its market-based rates pursuant to Section 205 rate tariff be canceled and the FERC issued an order accepting the notice of cancellation, effective July 2, 2012. Except as stated in the FPA (“MBR Authority”) and has received those blanket authorizations and waivers customarily granted by FERC to parties authorized to sell electric power at market-based ratespreceding sentence, and (iii) has on file with FERC except as would not, individually or in the aggregate, have an effective Tariff for Reactive Supply and Voltage Control (“Reactive Power Tariff”). Neither (x) the MBR Authority nor the Reactive Power Tariff of the Panther Creek Project Company or Scrubgrass Project Company nor (y) the Panther Creek Plant’s or Scrubgrass Plant’s status as a qualifying small power production facility under the PURPA Requirements, in each case, is the subject of any pending orETP Material Adverse Effect, to the knowledge of the CompanyETP, threatened, judicial there are no facts that are reasonably likely to cause any such Subsidiary to lose or administrative proceeding to revoke be ineligible for its market-based rate authorization or modify such status customary waivers and blanket authorizations or to impose any material penalty thereunder lose or be ineligible for its status as an Exempt Wholesale Generator under PUHCA or a Qualifying Facility under PURPA, as applicable. (C) Except as would not, individually or in the aggregate, have an ETP Material Adverse Effect, all filings (other than as set forth on Schedule 4.19 of the Company Disclosure Letter. None of the Company nor any of its Subsidiaries (iimmaterial filings) is a “public-utility company” as defined in PUHCA other than the Scrubgrass Project Company required to be made by HHI and the Panther Creek Project Company SUN Parties during the three years preceding the date hereof, with the FERC under the NGA, Natural Gas Policy Act of 1978, 15 U.S.C. §§ 3302-3432, and regulations promulgated by the FERC thereunder (“NGPA”), the Interstate Commerce Act implemented by the FERC pursuant to 49 USC § 60502 and the regulations promulgated by the FERC thereunder (“ICA”), the FPA, PUHCA, the Department of Energy, the Federal Communications Commission (the “FCC”), or (ii) is a “holding company” any applicable state public utility commission or department, as defined in PUHCA other than the case may be, have been made, including all forms, statements, reports, notices, agreements and all documents, exhibits, amendments and supplements appertaining thereto, including all rates, tariffs and related documents, and all such filings complied, as of their respective dates, and, as amended or supplemented, with respect to all applicable requirements of applicable statutes and the ownership of qualifying small power production facilitiesrules and regulations promulgated thereunder.

Regulatory Status. Each (a) Schedule 3.10(a) of the Scrubgrass Plant Astoria Disclosure Letter sets forth, the name, location, nominal capacity and Astoria’s direct or indirect ownership of each generating facility owned directly or indirectly, in whole or in part, by Astoria or any of its Subsidiaries (the Panther Creek Plant is a “qualifying small power production facility” under the Public Utility Regulatory Policies Act of 1978, as amended, and the FERC’s regulations thereunder, at 18 C.F.R. Part 292, and interpretations thereof by the FERC and courts of competent jurisdiction (collectively, “PURPA RequirementsAstoria Facilities”). Each of the Scrubgrass Plant and the Panther Creek Plant is exempt from the size limitations applicable to qualifying small power production facilities in 18 C.F.R. § 292.204(a) pursuant to the Solar, Wind, Waste, and Geothermal Power Production Incentives Act of 1990. Each of the Scrubgrass The Astoria Project Company and the Panther Creek Project Company Subsidiary (i) is not subject meets the requirements for, and has made the necessary filing with, or has been determined by, FERC to be EWGs within the jurisdiction meaning of FERC as a “public utility” under the FPA other than as contemplated by 18 C.F.R. § 292.601(c), Section 1262(6) of PUHCA; (ii) has been is authorized by FERC to make wholesale sales of electric energy, capacity and certain ancillary services at market-based rates pursuant to Section 205 of the FPA to sell electric power, including energy and capacity and ancillary services, at market-based rates; and (“MBR Authority”iii) and has received those such waivers and blanket authorizations and waivers as are customarily granted by FERC to parties entities authorized to sell electric power at market-based rates, including, but not limited to, authorization to issue securities and assume obligations or liabilities pursuant to Section 204 of the FPA. (b) There are no pending FERC proceedings in which the EWG status, market-based rate authority, or the FPA Section 204 authority of the Astoria Project Company Subsidiary is subject to withdrawal, revocation or material modification other than (i) FERC rulemakings of general applicability, including, but not limited to, Market-Based Rates for Wholesale Sales of Energy, Capacity and Ancillary Services by Public Utilities in Docket No. RM04-7-000; and (iiiii) has on file FERC proceedings concerning New York Independent System Operator market rules including, but not limited to market mitigation measures as may apply to such Astoria Project Company Subsidiary and similarly situated sellers of wholesale electric power with market based rates. (c) Astoria and each of its Subsidiaries is in full compliance in all material respects with the terms and conditions of all orders issued by FERC an effective Tariff for Reactive Supply and Voltage Control (“Reactive Power Tariff”). Neither (x) the MBR Authority nor the Reactive Power Tariff under Section 203 of the Panther Creek Project Company FPA and obtained by Astoria or Scrubgrass Project Company nor (y) the Panther Creek Plant’s or Scrubgrass Plant’s status as a qualifying small power production facility under the PURPA Requirements, in each case, is the subject of any pending or, to the knowledge of the Company, threatened, judicial or administrative proceeding to revoke or modify such status or to impose any material penalty thereunder other than as set forth on Schedule 4.19 of the Company Disclosure Letter. None of the Company nor any of its Subsidiaries Subsidiaries. (id) is a “public-utility company” as defined in PUHCA other than the Scrubgrass Project Company and the Panther Creek Project Company or (ii) Astoria is a “holding company” as defined in within the meaning of Section 1262(8) of PUHCA other than solely with respect to the its ownership of qualifying small power production facilitiesone or more EWGs, and is not subject to or is otherwise exempt from regulation under PUHCA except for regulation under Section 1265 of PUHCA. (e) Astoria and each of its Subsidiaries has filed or caused to be filed with the applicable state or local utility commissions or utility regulatory bodies and the FERC, all material forms, statements, reports and documents (including all exhibits, amendments and supplements thereto) required to be filed by it with respect to Astoria and each of its Subsidiaries’ businesses and each Astoria Facility under all applicable laws and PUHCA and the respective rules and regulations thereunder, all of which complied in all material respects with all applicable requirements of the appropriate act and the rules and regulations thereunder in effect on the date each such report was filed. (f) No order, judgment or decree shall have been issued or proposed to be issued by any Governmental Entity that, as a result of the construction, ownership, leasing or operation of any Astoria Facility by Astoria or any of its Subsidiaries, the sale of electricity therefrom by the Astoria Project Company Subsidiary, or any transaction contemplated hereby, could reasonably be expected to cause or deem Astoria or any of its Subsidiaries to be subject to, and not exempted from, regulation under PUHCA, except for regulation under Section 1265 of PUHCA. (g) Astoria has disclosed to EBG all information regarding Astoria and each of its Subsidiaries, their respective businesses, financial conditions and corporate governance, directors, officers and affiliates, any agreements and arrangements among such Persons regarding their direct and indirect interests in Astoria and each of its Subsidiaries and the allocation among such Persons of economic and management rights relating to Astoria and its Subsidiaries that could be reasonably expected to affect the ability of the parties to obtain any approval, Consent or authorization of any Governmental Entity under the FPA or any other federal, state or local energy law or regulation (including any Section 203 approval) or to make any requisite filing with any Governmental Entity under the FPA or any other federal, state or local energy law or regulation, in any case necessary for or required as a result of the execution, delivery and performance of this Agreement.

Regulatory Status. Each (a) Schedule 2.10(a) of the Scrubgrass Plant EBG Disclosure Letter sets forth, the name, location, nominal capacity and EBG’s direct or indirect ownership of each generating facility owned directly or indirectly, in whole or in part, by EBG or any of its Subsidiaries (the Panther Creek Plant is a “qualifying small power production facility” under the Public Utility Regulatory Policies Act of 1978, as amended, and the FERC’s regulations thereunder, at 18 C.F.R. Part 292, and interpretations thereof by the FERC and courts of competent jurisdiction (collectively, “PURPA RequirementsEBG Facilities”). Each of the Scrubgrass Plant and EBG Project Company Subsidiaries meets the Panther Creek Plant is exempt from the size limitations applicable to qualifying small power production facilities in 18 C.F.R. § 292.204(a) pursuant to the Solar, Wind, Wasterequirements for, and Geothermal Power Production Incentives Act has made the necessary filing with, or has been determined by, FERC to be an exempt wholesale generator (“EWG”) within the meaning of 1990Section 1262(6) of PUHCA. Each of BG and the Scrubgrass EBG Project Company and the Panther Creek Project Company (i) Subsidiaries is not subject to the jurisdiction of FERC as a “public utility” under the FPA other than as contemplated by 18 C.F.R. § 292.601(c), (ii) has been authorized by FERC to make wholesale sales of electric energy, capacity and certain ancillary services at market-based rates pursuant to Section 205 of the FPA (“MBR Authority”) to sell electric power, including energy and capacity and ancillary services, at market-based rates and has received those such waivers and blanket authorizations and waivers as are customarily granted by FERC to parties entities authorized to sell electric power at market-based rates, including, but not limited to, authorization to issue securities and (iii) has on file with FERC an effective Tariff for Reactive Supply and Voltage Control (“Reactive Power Tariff”). Neither (x) the MBR Authority nor the Reactive Power Tariff assume obligations or liabilities pursuant to Section 204 of the Panther Creek FPA. (b) There are no pending FERC proceedings in which the EWG status (as applicable), market-based rate authority or the FPA Section 204 authority of BG or any EBG Project Company Subsidiary is subject to withdrawal, revocation or Scrubgrass Project Company nor (y) the Panther Creek Plant’s or Scrubgrass Plant’s status as a qualifying small power production facility under the PURPA Requirements, in each case, is the subject of any pending or, to the knowledge of the Company, threatened, judicial or administrative proceeding to revoke or modify such status or to impose any material penalty thereunder modification other than as set forth on Schedule 4.19 of the Company Disclosure Letter. None of the Company nor any of its Subsidiaries (i) is a “publicFERC rulemakings of general applicability, including, but not limited to, Market-utility company” as defined Based Rates for Wholesale Sales of Energy, Capacity and Ancillary Services by Public Utilities in PUHCA other than the Scrubgrass Project Company Docket No. RM04-7-000 and the Panther Creek Project Company or (ii) FERC proceedings concerning ISO New England market rules including, but not limited to, market mitigation measures as may apply to BG or such EBG Project Company Subsidiary and similarly situated sellers of wholesale electric power with market-based rates. (c) EBG, BG and each EBG Project Company Subsidiary is in full compliance in all material respects with the terms and conditions of all orders issued by FERC under Section 203 of the FPA and obtained by EBG, BG or any EBG Project Company Subsidiary. (d) Each of EBG and BG is a “holding company” as defined in within the meaning of Section 1262(8) of PUHCA other than solely with respect to the its ownership of qualifying small power production facilitiesone or more EWGs, and is not subject to or is otherwise exempt from regulation under PUHCA except for regulation under Section 1265 of PUHCA. (e) EBG and each of its Subsidiaries has filed or caused to be filed with the applicable state or local utility commissions or utility regulatory bodies and the FERC, all material forms, statements, reports and documents (including all exhibits, amendments and supplements thereto) required to be filed by it with respect to EBG and each of its Subsidiaries’ businesses and each EBG Facility under all applicable laws and PUHCA and the respective rules and regulations thereunder, all of which complied in all material respects with all applicable requirements of the appropriate act and the rules and regulations thereunder in effect on the date each such report was filed. (f) No order, judgment or decree shall have been issued or proposed to be issued by any Governmental Entity that, as a result of the construction, ownership, leasing or operation of any EBG Facility by EBG or any of its Subsidiaries, the sale of electricity therefrom by BG or the EBG Project Company Subsidiaries, or any transaction contemplated hereby, could reasonably be expected to cause or deem EBG or any of its Subsidiaries to be subject to, and not exempted from, regulation under PUHCA, except for regulation under Section 1265 of PUHCA. (g) EBG has disclosed to Astoria all information regarding EBG and each of its Subsidiaries, their respective businesses, financial conditions and corporate governance, directors, officers and affiliates, any agreements and arrangements among such Persons regarding their direct and indirect interests in EBG and each of its Subsidiaries and the allocation among such Persons of economic and management rights relating to EBG and its Subsidiaries that could be reasonably expected to affect the ability of the parties to obtain any approval, Consent or authorization of any Governmental Entity under the FPA or any other federal, state or local energy law or regulation (including any Section 203 approval) or to make any requisite filing with any Governmental Entity under the FPA or any other federal, state or local energy law or regulation, in any case necessary for or required as a result of the execution, delivery and performance of this Agreement.

Regulatory Status. Each (a) Section 5.15(a) of the Scrubgrass Plant Parent Disclosure Letter identifies and describes in sufficient detail each electric generating facility that is owned or operated by any member of the Panther Creek Plant Energy Supply Group or is otherwise an Energy Supply Asset (such generating facilities, collectively, the “Energy Supply Facilities”). (b) None of Energy Supply or the New Entities is a “qualifying small power production facilitypublic utility” under as defined in the Public Utility Regulatory Policies Act of 1978, as amended, and the FERC’s regulations thereunder, at 18 C.F.R. Part 292, and interpretations thereof by the FERC and courts of competent jurisdiction (collectively, “PURPA Requirements”)FPA. Each Section 5.15(b) of the Scrubgrass Plant Parent Disclosure Letter identifies the Energy Supply Subs that are “public utilities” as defined in the FPA and the Panther Creek Plant is exempt from the size limitations applicable are subject to qualifying small power production facilities regulation by FERC as public utilities. Except as set forth in 18 C.F.R. § 292.204(aSection 5.15(b) pursuant to the Solar, Wind, Waste, and Geothermal Power Production Incentives Act of 1990. Each of the Scrubgrass Project Company and Parent Disclosure Letter, none of Parent, any Subsidiary of Parent or any member of the Panther Creek Project Company Energy Supply Group is subject to regulation as a “public utility” or “public service company” (or similar designation) with respect to its rates, securities issuances or capital structure by any state Governmental Authority. (c) Each Energy Supply Sub that sells electric energy, capacity and/or certain ancillary services at wholesale in interstate commerce (i) is not subject to the jurisdiction of FERC as a “public utility” under the FPA other than as contemplated by 18 C.F.R. § 292.601(c)FPA, (ii) has been authorized by FERC to make wholesale sales of electric energy, capacity and certain ancillary services at market-based rates pursuant to Section 205 of the FPA (“MBR Authority”) to make wholesale sales of electric energy, capacity and has received those blanket authorizations and waivers customarily granted by FERC to parties authorized to sell electric power certain ancillary services into the markets in which it sells at market-based rates, subject to the mitigation listed in Section 5.15(c) of the Parent Disclosure Letter, and (iii) except for PPL EnergyPlus, is an Exempt Wholesale Generator (“EWG”) under the Energy Policy Act of 2005 (the “EPAct 2005”) and either has on file been determined by order of FERC to be an EWG or has filed with FERC an effective Tariff for Reactive Supply a notification of self-certification of EWG status that is complete and Voltage Control (“Reactive Power Tariff”)accurate in all respects. Neither (x) the MBR Authority of such Energy Supply Subs, nor the Reactive Power Tariff of the Panther Creek Project Company or Scrubgrass Project Company nor (y) the Panther Creek Plant’s or Scrubgrass Plant’s such Energy Supply Subs’ status as a qualifying small power production facility an EWG under the PURPA Requirements, in each caseEPAct 2005, is the subject of any pending or, to the knowledge Knowledge of the CompanyParent, threatened, judicial or administrative proceeding to revoke or modify such status. To the Knowledge of Parent, there are no facts that are reasonably likely to cause such Energy Supply Sub to lose its MBR Authority or its status as an EWG under the EPAct 2005. (d) Each hydroelectric generating facility that is owned or to impose operated by any material penalty thereunder other than as set forth on Schedule 4.19 member of the Company Disclosure Letter. None Energy Supply Group or is otherwise an Energy Supply Asset is duly licensed by FERC under Part I of the Company nor any of its Subsidiaries FPA and each such hydroelectric generating facility (i) is a “public-utility company” as defined in PUHCA other than to the Scrubgrass Project Company Knowledge of Parent, has continuously been duly licensed by FERC under Part I of the FPA and the Panther Creek Project Company or (ii) is a “holding company” as defined in PUHCA other than with respect not subject to any pending or, to the ownership Knowledge of qualifying small power production facilitiesParent, threatened, judicial or administrative proceeding to revoke or modify such license.