Common use of Public Utility Status Clause in Contracts

Public Utility Status. Neither the Security Agent nor any of the Secured Parties will solely by reason of (a) the ownership interest of the Pledgor in the Corporation, (b) the purchasing of the Notes; (c) the securing of the Obligations by Liens on the Pledged Collateral or (d) any other transaction contemplated by this Agreement or any of the other Basic Documents, be deemed by any Governmental Authority to be, or to be subject to regulation as (i) an "electric utility", "electric corporation", "electrical company", "public utility" or "public utility holding company" under existing law, rule or regulation of any Governmental Authority, or (ii) an "affiliate" of a public utility holding company as such terms are defined in the PUHCA. Neither the Security Agent nor any of the Secured Parties will, by reason of its or their ownership of the Pledged Collateral upon the exercise of their remedies hereunder and under the other Basic Documents, nor by reason of its or their exercise of other remedies thereunder, be deemed by any Governmental Authority to be (i) subject to financial, organizational or rate regulation as an "electric utility", "electric corporation", "electrical company", "public utility" or a "public utility holding company" under any existing law, rule or regulation of any Governmental Authority, or (ii) an "affiliate of a public utility holding company as such terms are defined in PUHCA; provided that to the extent that the Security Agent or the Noteholders exercise their remedies under the Stock Pledge to foreclose under the shares of stock pledged thereunder and become the owner or owners of such shares of stock, then unless the Company shall at such time be an "Exempt Wholesale Generator" pursuant to Section 32 of PUHCA or shall control less than ten percent of the aggregate voting rights in either of the Partnerships, the Security Agent and the Noteholders may have to make certain filings with the Federal Energy Regulation Commission and/or the Securities and Exchange Commission to avoid becoming subject to regulation as an "electric utility" or an "affiliate" of a public utility holding company as such terms are defined in PUHCA.

Public Utility Status. Neither (a) The Company is an EWG. The Company will be subject to the Security Agent compliance requirements under PUHCA applicable to an EWG and an owner or operator of an “eligible facility” (as such term is defined in PUHCA), and also will be considered an “electric utility company”, “public utility” and “public-utility company” under PUHCA. (b) The Company has “market-based rate authority” approval from FERC with authority to sell wholesale electric power at market-based rates and with all required waivers of regulations and authorizations as have been granted by FERC, and such “market-based rate authority” is not, to the knowledge of the Company, subject to any actual or threatened revocation, limitation, or administrative or judicial proceeding. The Company is not subject to regulation under the laws of the State of Arizona respecting the rates of electric utilities or the financial or organizational activities of electric utilities. (c) None of the Secured Parties, nor any of the Secured Parties will their respective Affiliates, will, solely by reason of (ai) the ownership interest ownership, operation and maintenance of the Pledgor in Project by the CorporationCompany or UNS Electric (as applicable), (bii) the purchasing making of the Notes; Loans hereunder, (ciii) the securing of the Obligations by Liens on the Pledged Collateral Project and the Collateral, or (div) any other transaction contemplated by this Agreement or any of the other Basic DocumentsTransaction Documents (subject to the immediately succeeding sentence), be deemed by any Governmental Authority to be, or having jurisdiction to be subject to regulation as (i) an "electric utility", "electric corporation", "electrical company", "public utility" or "public utility holding company" under existing law, rule or regulation of any Governmental Authority, or (ii) an "affiliate" of a public utility holding company as such terms are defined in the PUHCA. Neither the Security Agent nor any of the Secured Parties will, by reason of its or their ownership of the Pledged Collateral upon the exercise of their remedies hereunder and under the other Basic Documents, nor by reason of its or their exercise of other remedies thereunder, be deemed by any Governmental Authority to be (i) subject to financial, organizational or rate regulation as an "“electric utility"”, "“electric corporation"”, "“electrical company"”, "“public utility" or a "”, “public utility company”, “public utility holding company" ” or any similar entity under any existing law, rule or regulation of any Governmental Authorityapplicable Laws, or (ii) an "affiliate of a public utility holding company as such terms are defined in PUHCA; provided that be deemed to the extent that the Security Agent or the Noteholders exercise their remedies under the Stock Pledge to foreclose under the shares of stock pledged thereunder and become the owner or owners of such shares of stock, then unless the Company shall at such time be an "Exempt Wholesale Generator" pursuant to Section 32 of PUHCA or shall control less than ten percent of the aggregate voting rights in either of the Partnerships, the Security Agent and the Noteholders may have to make certain filings with the Federal Energy Regulation Commission and/or the Securities and Exchange Commission to avoid becoming subject to regulation as a “public-utility company”, an "“electric utility company”, or a “holding company”, or a “subsidiary company” or “affiliate” of either of the foregoing within the meaning of PUHCA or as a “public-utility”, an “electric utility" ”, or a “transmitting utility” within the meaning of the Federal Power Act, except that (x) a Secured Party or an "affiliate" Affiliate thereof may be subject to (1) Section 203(a)(2) of the Federal Power Act if it is otherwise a “holding company” as that term is defined under PUHCA or (2) Section 203(a)(1)(c) of the Federal Power Act if it is otherwise a “public utility holding company utility” as such terms are that term is defined in the Federal Power Act, or (y) if a Secured Party or an Affiliate thereof will be the owner or operator of, or control, the Company, the Plant or the Company’s FERC-jurisdictional facilities upon the exercise of remedies under the Security Documents, such Person may be subject to regulation under the Federal Power Act and PUHCA.

Public Utility Status. (a) Neither the Security Agent Borrower nor the Parent nor any of the Secured Parties their respective Affiliates is or will solely be, by reason of (ai) the ownership interest of the Pledgor in Project or the Corporationoperation thereof by the Borrower or the Parent, (b) the purchasing of the Notes; (c) the securing of the Obligations by Liens on the Pledged Collateral or (dii) any other transaction contemplated by this Agreement or any of the other Basic Project Documents, be deemed by any Governmental Authority to be, or having jurisdiction to be subject to regulation as (i) an "electric utility", "electric corporation", "electrical company", "public utility" or "public utility holding company" under existing law, rule or regulation of any Governmental Authority, or (ii) an "affiliate" of a public utility holding company as such terms are defined in the PUHCA. Neither the Security Agent nor any of the Secured Parties will, by reason of its or their ownership of the Pledged Collateral upon the exercise of their remedies hereunder and under the other Basic Documents, nor by reason of its or their exercise of other remedies thereunder, be deemed by any Governmental Authority to be (i) subject to financial, organizational or rate regulation as an "electric utility", "electric corporation", "electrical company", "public utility" or a "public utility holding company" under any existing law, rule or regulation of any Governmental Authority. (b) Neither the Lenders nor the Agent nor the Issuing Bank nor any of their Affiliates is or will be, by reason of (i) the ownership of the Project or the operation thereof by the Borrower, (ii) the making of the Term Loans hereunder, (iii) the securing of the Term Loans by Liens on the Project and the Assigned Contracts or (iv) any other transaction contemplated by this Agreement or any of the other Project Documents, deemed to be, or be subject to regulation as, an "affiliate of electric utility", "electric corporation", "electrical company", "public utility" or a "public utility holding company as such terms are defined in PUHCAcompany" under any existing law, rule or regulation of any Governmental Authority; provided that to and neither the extent that Lenders nor the Security Issuing Bank nor the Agent nor any of their respective Affiliates will, by reason of its ownership or operation of the Noteholders Project upon the exercise their of remedies under the Stock Pledge Security Documents, be deemed to foreclose under the shares of stock pledged thereunder and become the owner or owners of such shares of stock, then unless the Company shall at such time be an "Exempt Wholesale Generator" pursuant to Section 32 of PUHCA or shall control less than ten percent of the aggregate voting rights in either of the Partnerships, the Security Agent and the Noteholders may have to make certain filings with the Federal Energy Regulation Commission and/or the Securities and Exchange Commission to avoid becoming subject to financial, organizational or rate regulation as an "electric utility", "electric corporation", "electrical company", "public utility" or an a "affiliate" of a public utility holding company company" under any existing law, rule or regulation of any Governmental Authority. (c) The Facility is, and on the Third Restatement Effective Date and thereafter at all times will continue to be, a Qualifying Facility and is and will be exempt from all regulation under the Public Utility Holding Company Act of 1935, as such terms are defined amended. (d) The Borrower meets, and will on the Third Restatement Effective Date and thereafter at all times continue to meet, the ownership criteria for a "qualifying cogeneration facility" set forth in PUHCA18 CFR 292.207.

Public Utility Status. (a) Neither the Security Agent Limited Partnership nor any of the Secured Parties will solely Borrower will, by reason of (ai) the ownership interest of the Pledgor in Facility or the Corporationoperation thereof by the Limited Partnership, (b) the purchasing of the Notes; (c) the securing of the Obligations by Liens on the Pledged Collateral or (dii) any other transaction contemplated by this Agreement or any of the other Basic DocumentsDocument, be deemed by any Governmental Authority to be, or having jurisdiction to be subject to regulation as (i) an "electric utility", "electric corporation", "electrical company", "public utility" or "public utility holding company" under existing law, rule or regulation of any Governmental Authority, or (ii) an "affiliate" of a public utility holding company as such terms are defined in the PUHCA. Neither the Security Agent nor any of the Secured Parties will, by reason of its or their ownership of the Pledged Collateral upon the exercise of their remedies hereunder and under the other Basic Documents, nor by reason of its or their exercise of other remedies thereunder, be deemed by any Governmental Authority to be (i) subject to financial, organizational or rate regulation as an "electric utility", "electric corporation", "electrical company", "public utility" or a "public utility holding company" under any existing lawApplicable Law, rule except where (x) the effect of such determination would result only in the imposition of reporting or safety requirements which, in the reasonable opinion of the Lender, are non-burdensome in nature and (y) in the event that steam from the Project is supplied, directly or indirectly, to Persons other than the Steam Host under the Steam Supply Agreement or otherwise, the Limited Partnership shall have obtained a declaratory order or other official assurance, satisfactory to the Lender,in form and substance reasonably from the PUC to the effect that such sales will not result in the Facility, the owner thereof or any of such owner's Affiliates being deemed to be, or subject to regulation as, a "public utility" under any Applicable Law (other than regulation of any Governmental Authoritythe nature described in clause (x) of this clause (ii). (b) The Lender will not, by reason of (i) the ownership of the Facility or the operation thereof by the Limited Partnership, (ii) the making of the Term Loan hereunder, (iii) the securing of the Term Loan by the Assignment and Security Agreement, the Cogen Pledge Agreement and, from and after the date of the execution and delivery thereof, the Security Deposit Agreement or (iv) any other transaction contemplated by this Agreement or any of the other Basic Documents, be deemed by any Governmental Authority having jurisdiction to be, or to be subject to regulation as, an "affiliate of electric utility", "electric corporation", "electrical company", "public utility" or a "public utility holding company as such terms are defined in PUHCAcompany" under existing Applicable Law; provided that to and the extent that Lender will not solely by reason of the Security Agent or exercise of the Noteholders exercise their Lender's remedies under the Stock Pledge Collateral Security Documents and without regard to foreclose under the shares of stock pledged thereunder and become the owner or owners of such shares of stock, then unless the Company shall at such time be an "Exempt Wholesale Generator" pursuant to Section 32 of PUHCA or shall control less than ten percent any other activities of the aggregate voting rights in either of the PartnershipsLender, the Security Agent and the Noteholders may have be deemed by any Governmental Authority having jurisdiction to make certain filings with the Federal Energy Regulation Commission and/or the Securities and Exchange Commission to avoid becoming be subject to financial, organizational or rate regulation as an "electric utility", "electric corporation", "electrical company", "public utility" or an a "affiliate" of a public utility holding company company" under any Applicable Law. (c) The Facility is a Qualifying Facility; and FERC has issued final orders granting the Limited Partnership's application for certification as a Qualifying Facility, which (except as such terms orders are defined subject to modification to reflect an increase in PUHCAthe net generating capacity of the Facility from 120 megawatts to 134 megawatts and the ownership of the Facility by the Limited Partnership) orders are in full force and effect and are not the subject of any pending or threatened administrative or judicial proceedings.

Public Utility Status. Neither the Security Agent nor any of the Secured Parties (a) The Borrower will not, solely by reason of (ai) the ownership interest of the Pledgor in Facility or the Corporationoperation thereof by the Borrower, (b) the purchasing of the Notes; (c) the securing of the Obligations by Liens on the Pledged Collateral or (dii) any other transaction contemplated by this Agreement or any of the other Basic Project Documents, be deemed by any Governmental Authority having jurisdiction to be (A) subject to regulation as a public utility under Parts II and III of the Federal Power Act (except for certain provisions relating to interconnection, wheeling, and reporting interlocking directorates) or considered an electric utility company under the Public Utility Holding Company Act of 1935; or (B) subject to any state law or regulation respecting (i) the rates of electric utilities, or (ii) the financial and organizational regulation of electric utilities. (b) Neither the Agent nor any Lender will, solely by reason of (i) the ownership of the Facility or the operation thereof by the Borrower, (ii) the making of the Loans or the issuance of the Letters of Credit or any other Extension of Credit hereunder, (iii) the securing of the Obligations by Liens on the Project and the Assigned Agreements or (iv) any other transaction contemplated by this Agreement or any of the other Project Documents, be deemed by any Governmental Authority having jurisdiction to be, or to be subject to regulation as (i) as, an "electric utility", ," "electric corporation", ," "electrical company", "public utility," or "public utility holding company," under existing law, rule "public service company," "public service corporation" or regulation a corporation carrying on the services of any Governmental Authority, or (ii) an "affiliate" of a public utility holding company as such terms are defined in the PUHCA. Neither the Security Agent nor exercising any of the Secured Parties willpowers or functions of, by reason of its or their ownership of the Pledged Collateral upon the exercise of their remedies hereunder and under the other Basic Documents, nor by reason of its or their exercise of other remedies thereunder, be deemed by any Governmental Authority to be (i) subject to financial, organizational or rate regulation as an "electric utility", "electric corporation", "electrical company", "public utility" or a "public utility holding companyservice enterprise" or organized to conduct the business of a "public service business" under any existing law, rule or regulation of any Governmental Authority; and neither the Agent nor any Lender will, solely by reason of the Agent's or the Lenders' ownership or operation of the Facility upon the exercise of remedies under the Security Documents and without regard to any other activities of the Agent or any Lender, be deemed by any Governmental Authority having jurisdiction to be (A) subject to regulation as a public utility under Parts II and III of the Federal Power Act (except for certain provisions relating to interconnection, wheeling, and reporting interlocking directorates) or considered an electric utility company under the Public Utility Holding Company Act of 1935; or (B) subject to any state law or regulation respecting (i) the rates of electric utilities, or (ii) the financial and organizational regulation of electric utilities, provided that neither the Agent nor the Lender is otherwise an "electric utility, electric utility holding company, or a subsidiary or affiliate of a public utility holding company as such terms are defined in PUHCA; provided that to the extent that the Security Agent either, or the Noteholders exercise their remedies under the Stock Pledge to foreclose under the shares of stock pledged thereunder and become the owner or owners of such shares of stock, then unless the Company shall at such time be an "Exempt Wholesale Generator" pursuant to Section 32 of PUHCA or shall control less than ten percent of the aggregate voting rights in either of the Partnerships, the Security Agent and the Noteholders may have to make certain filings with the Federal Energy Regulation Commission and/or the Securities and Exchange Commission to avoid becoming subject to regulation as an "electric utility" or an "affiliate" of a public utility holding company as such terms are defined in PUHCAany combination thereof.

Public Utility Status. (a) Neither the Security Agent Borrower nor any of the Secured Parties will solely General Partner will, by reason of (ai) the ownership interest of the Pledgor in Facility or the Corporationoperation thereof by the Borrower, (b) the purchasing of the Notes; (c) the securing of the Obligations by Liens on the Pledged Collateral or (dii) any other transaction contemplated by this Agreement or any of the other Basic DocumentsDocument, be deemed by any Governmental Authority to be, or having jurisdiction to be subject to regulation as (i) an "electric utility", "electric corporation", "electrical company", "public utility" or "public utility holding company" under existing law, rule or regulation of any Governmental Authority, or (ii) an "affiliate" of a public utility holding company as such terms are defined in the PUHCA. Neither the Security Agent nor any of the Secured Parties will, by reason of its or their ownership of the Pledged Collateral upon the exercise of their remedies hereunder and under the other Basic Documents, nor by reason of its or their exercise of other remedies thereunder, be deemed by any Governmental Authority to be (i) subject to financial, organizational or rate regulation as an "electric utility", "electric corporation", "electrical company", "public utility" or a "public utility holding company" under any existing lawApplicable Law except where (x) the effect of such determination would result only in the imposition of reporting or safety requirements which, rule in the reasonable opinion of the Lender, are non-burdensome in nature and (y) in the event that steam from the Project is supplied, directly or indirectly, to Persons other than the Steam Host under the Steam Supply Agreement or otherwise, the Limited Partnership shall have obtained a declaratory order or other official assurance, in form and substance reasonably satisfactory to the Lender, from the New Jersey Board of Regulatory Commissioners to the effect that such sales will not result in the Facility, the owner thereof or any of such owner's Affiliates being deemed to be, or subject to regulation as, a "public utility" under any Applicable Law (other than regulation of the nature described in clause (x) of this clause (m). (b) Neither the Agents or any Governmental AuthorityLender will, by reason of (i) the ownership of the Facility or the operation thereof by the Borrower, (ii) the making of the Loans hereunder, (iii) the securing of the Loans by Liens on the Project and the Assigned Contracts or (iv) any other transaction contemplated by this Agreement or any of the other Basic Documents, be deemed by any Governmental Authority having jurisdiction to be subject to regulation as, an "affiliate of electric utility", "electric corporation", "electrical company", "public utility" or a "public utility holding company as such terms are defined in PUHCAcompany" under existing Applicable Law; provided that to and neither the extent that Agents nor any Lender will, solely by reason of the Security Agent Lenders' ownership or operation of the Noteholders Facility upon the exercise their of the Lenders' remedies under the Stock Pledge Collateral Security Documents and without regard to foreclose under the shares of stock pledged thereunder and become the owner or owners of such shares of stock, then unless the Company shall at such time be an "Exempt Wholesale Generator" pursuant to Section 32 of PUHCA or shall control less than ten percent any other activities of the aggregate voting rights in either of the PartnershipsAgents or any Lender, the Security Agent and the Noteholders may have be deemed by any Governmental Authority having jurisdiction to make certain filings with the Federal Energy Regulation Commission and/or the Securities and Exchange Commission to avoid becoming be subject to financial, organizational or rate regulation as an "electric utility", "electric corporation", "electrical company", "public utility" or an a "affiliate" of a public utility holding company company" under any Applicable Law except where (x) the effect of such determination would result only in the imposition of reporting or safety requirements which, in the reasonable opinion of the Required Lenders, are non-burdensome in nature and (y) in the event that steam from the Project is supplied, directly or indirectly, to Persons other than the Steam Host under the Steam Supply Agreement or otherwise, the Limited Partnership shall have obtained a declaratory order or other official assurance, in form and substance reasonably satisfactory to the Required Lenders, from the New Jersey Board of Regulatory Commissioners to the effect that such sales will not result in the Facility, the owner thereof or any of such owner's Affiliates being deemed to be, or subject to regulation as, a "public utility" under any Applicable Law (other than regulation of the nature described in clause (x) of this clause (m). (c) The Facility is a Qualifying Facility; and FERC has issued final orders granting the Borrower's application for certification as a Qualifying Facility, which (except as such terms orders are defined subject to modification to reflect an increase in PUHCAthe net generating capacity of the Facility from 120 megawatts to 134 megawatts and the ownership of the Facility by the Borrower) orders are in full force and effect and are not the subject of any pending or threatened administrative or judicial proceedings.