Louisiana Revised Statutes 45:1254 – Investment recovery property
Terms Used In Louisiana Revised Statutes 45:1254
- Assignee: means any legal or commercial entity, including but not limited to a corporation, limited liability company, partnership, limited partnership, or other legally recognized entity to which an electric utility sells, assigns, or transfers, other than as security, all or a portion of its interest in or right to investment recovery property. See Louisiana Revised Statutes 45:1252
- Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
- Commission: means the Louisiana Public Service Commission or, solely with respect to an electric utility furnishing electric service within the city of New Orleans, the council of the city of New Orleans. See Louisiana Revised Statutes 45:1252
- Contract: A legal written agreement that becomes binding when signed.
- Counterclaim: A claim that a defendant makes against a plaintiff.
- Dependent: A person dependent for support upon another.
- Financing costs: means any of the following:
(a) Interest and acquisition, defeasance, or redemption premiums that are payable on investment recovery bonds. See Louisiana Revised Statutes 45:1252
- Financing order: means an order of the commission, if granted by the commission in its sole discretion, which allows for all of the following:
(a) The issuance of investment recovery bonds. See Louisiana Revised Statutes 45:1252
- Financing party: means any holder of investment recovery bonds, any party to or beneficiary of an ancillary agreement, and any trustee, collateral agent, or other person acting for the benefit of any of the foregoing. See Louisiana Revised Statutes 45:1252
- Investment recovery bonds: means bonds, debentures, notes, certificates of participation, certificates of ownership, or other evidences of indebtedness or ownership that are issued pursuant to an indenture, contract, or other agreement of an electric utility or an assignee pursuant to a financing order, the proceeds of which are used directly or indirectly to provide, recover, finance, or refinance commission-approved investment recovery costs and financing costs, and which are secured by or payable from investment recovery property. See Louisiana Revised Statutes 45:1252
- Investment recovery property: means the contract right constituting incorporeal movable property newly created pursuant to this Part which consists of any of the following:
(a) The rights and interests of an electric utility or successor or assignee of the electric utility specified under a financing order, including the right to impose, bill, charge, collect, and receive investment recovery charges authorized in the financing order and to obtain periodic adjustments to such charges as may be provided in the financing order. See Louisiana Revised Statutes 45:1252
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- person: includes a body of persons, whether incorporated or not. See Louisiana Revised Statutes 1:10
- Secured party: means a financing party in favor of which an electric utility or its successors or assignees creates a security interest in any or all portions of its interest in or right to investment recovery property. See Louisiana Revised Statutes 45:1252
- Security interest: means a pledge, hypothecation, or other encumbrance of or other right over any portion of investment recovery property created by contract to secure the payment or performance of an obligation. See Louisiana Revised Statutes 45:1252
- utility: means an "electric public utility" as defined in La. See Louisiana Revised Statutes 45:1252
A. All investment recovery property that is specified in a financing order shall constitute an existing, present contract right constituting an individualized, separate incorporeal movable susceptible of ownership, sale, assignment, transfer, and security interest, including, without limitation, for purposes of contracts concerning the sale of property and security interests in property, notwithstanding that the value of the property and the imposition and collection of investment recovery charges depends on future acts such as the electric utility to which the order is issued performing its servicing functions relating to the collection of investment recovery charges and on future electricity consumption. Such property shall exist whether or not the revenues or proceeds arising from the property have been billed, have accrued, or have been collected, notwithstanding the fact that the value or amount of the property is or may be dependent on the future provision of service to customers by the electric utility or its successors or assignees and the future consumption by customers of electricity. Investment recovery property created by a financing order shall be a vested contract right, and such financing order shall create a contractual obligation of irrevocability by the commission in favor of the electric utility and its assignees and financing parties.
B. Investment recovery property specified in a financing order shall continue to exist until the investment recovery bonds issued pursuant to the financing order are paid in full and all financing costs of the bonds have been recovered in full.
C. All or any portion of investment recovery property specified in a financing order issued to an electric utility may be sold, assigned, or transferred to a successor or an assignee, including an affiliate or affiliates of the electric utility created for the limited purpose of acquiring, owning, or administering investment recovery property or issuing investment recovery bonds under the financing order. All or any portion of investment recovery property may be encumbered by a security interest to secure investment recovery bonds issued pursuant to the order and other financing costs. Each such sale, assignment, transfer, or security interest granted by an electric utility or affiliate of an electric utility or assignee shall be considered to be a transaction in the ordinary course of business.
D. The description of investment recovery property being sold, assigned, or transferred to an assignee in any sale agreement, purchase agreement, or other transfer agreement, being encumbered to a secured party in any security agreement, pledge agreement, or other security document, or indicated in any financing statement shall be sufficient only if such description or indication refers to the specific financing order that created the investment recovery property and states that such agreement or financing statement covers all or part of such investment recovery property described in such financing order. A description of investment recovery property in a financing statement shall be sufficient if it refers to the financing order creating the investment recovery property. This Subsection applies to all purported sales, assignments, or transfers of, and all purported liens or security interests in, investment recovery property, regardless of whether the related sale agreement, purchase agreement, other transfer agreement, security agreement, pledge agreement, or other security document was entered into, or any financing statement was filed, before or after the effective date of this Part.*
E.(1) Investment recovery property shall be an individualized, separate incorporeal movable susceptible of ownership, sale, assignment, transfer, and security interest encumbrance, notwithstanding any of the following:
(a) That the investment recovery charges may be authorized by the commission and included as part of the electric utility’s base rate and are not shown as a separate line item on individual electric bills.
(b) That notice is not given to customers that the investment recovery property has been transferred to an assignee and that such assignee is the owner of the rights to the investment recovery charges.
(c) That notice is not given to customers that the electric utility or another entity, if applicable, is acting as a collection agent or servicer or in a similar capacity for an assignee.
(d) That funds arising from the collection of investment recovery property by the electric utility as collection agent are commingled with other monies of the electric utility prior to the electric utility’s transfer as collection agent of such funds to the assignee or financing party.
(2) A description of investment recovery property, and a sale, assignment, or transfer or grant of security interest, shall not be denied legal effect or enforceability due to the factors provided for in Paragraph (1) of this Subsection applying in whole or in part to such investment recovery property.
F. If an electric utility defaults on any required payment of charges arising from investment recovery property specified in a financing order, the district court of the domicile of the commission, upon application by an interested party, and without limiting any other remedies available to the applying party, shall order the sequestration and payment of the revenues arising from the investment recovery property to the financing parties or their representatives. Any such order shall remain in full force and effect, notwithstanding any reorganization, bankruptcy, or other insolvency proceedings with respect to the electric utility or its successors or assignees.
G. To the extent provided in a financing order, the interest of an assignee or secured party in investment recovery property specified in a financing order shall not be subject to setoff, counterclaim, surcharge, or defense by the electric utility or by any customer of the electric utility or other person, or in connection with the reorganization, bankruptcy, or other insolvency of the electric utility or any other person.
H. To the extent provided in a financing order, any successor to an electric utility, whether pursuant to any reorganization, bankruptcy, or other insolvency proceeding or whether pursuant to any merger or acquisition, sale, or other business combination, or transfer by operation of law, as a result of electric utility restructuring or otherwise, shall perform and satisfy all obligations of, and have the same rights under a financing order as, the electric utility under the financing order in the same manner and to the same extent as the electric utility, including collecting and paying to the persons entitled to receive them, the revenues, collections, payments, or proceeds of the investment recovery property. Nothing in this Section shall be intended to limit or impair any authority of the commission concerning the transfer or succession of interests of electric utilities.
Acts 2010, No. 988, §2, eff. July 6, 2010.
*July 6, 2010