While it remains to be seen how the revised rule will be interpreted and applied, it contains significant changes that may affect parties who currently have status quo or toll agreements, and which affect how these agreements will be concluded in the future. However, the Court of Justice has often faced the question of whether such agreements, whether they are status quo agreements or mere “no steps” letters, met the requirements of the rule and, if so, what was the time limit in the agreement. Was the agreement not to take steps to apply indefinitely, or only until the lawyer had the opportunity to meet with the client or review the evidence? If an applicant is unable to agree with another party to a stay period under the rule, or if he does not wish to obtain the agreement or approval of the other party, he can now apply to the court, at point 4.33 (9), for an order setting a stay period that will not be included in the calculation of the period. The rule contains no indication of the factors that a court will or should consider. Finally, the revised Rule 4.33 specifies that the agreement must be disclosed to all other parties to the action if the parties enter into agreements to avoid the application of the drop-dead rule. It remains to be seen legally what the consequences of non-disclosure will be, so the parties should be aware of this disclosure obligation. In accordance with the terms of the extension, Decatur Energy will immediately receive payments for 34 MW of additional capacity and will receive additional capacity payments of up to 79 MW if an updated interconnection agreement is reached and is expected to be concluded in 2021. As a result, Adjusted EBITDA is expected to increase by $11 million ($8 million) in 2021 and $27 million in 2022 ($20 million). In 2023, the first year of the additional 10-year maturity, Adjusted EBITDA is expected to be $73 million ($54 million) per year, before declining by about 4% per year on average. The revised Rule 4.33 is intended to codify and hopefully clarify the requirements that must be met to suspend the operation of the watch in accordance with section 4.33. Revised Rule 4.33 requires parties to review their current status quo or toll agreements to ensure that they fall within the limits of the new rule and, in particular, within the limits of the new rule, and in particular: (a) a specific date or b) the events of a particular event.
Often, such agreements are in place indefinitely until a party grants termination, but it remains to be seen whether this would constitute a “specific event,” as the revised rule provides, but we expect that to be the case. The Statute of Limitations also allows parties to agree in writing on an extension of the statute of limitations, as is generally the case through so-called “toll” agreements. However, the statute of limitations set by the Statute of Limitations cannot be reduced.  Parties may decide to enter into toll agreements alternatively or in addition, while activities are interrupted by COVID 19 measures. If this option is chosen, some editorial considerations should be taken into account. Ultimately, a toll agreement, whether or not the courts have suspended statutes of limitations, may be a specific deadline if the suspension of a statute of limitations ends and the watch resumes marking the statute of limitations for a right.