LOAN GUARANTEE AGREEMENT dated as of February 20, 2014 between OGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION), as Borrower, and Plant Vogtle Nuclear Units 3&4 Burke County, Georgia

Exhibit 4.4

EXECUTION VERSION

LOAN GUARANTEE AGREEMENT

dated as of February 20, 2014

between

OGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION), as Borrower,

and

U.S. DEPARTMENT OF ENERGY, as Guarantor

Plant Vogtle Nuclear Units 3&4

▇▇▇▇▇ County, Georgia

Table of Contents

Table of Contents

Table of Contents

Table of Contents

Table of Contents

LOAN GUARANTEE AGREEMENT

This LOAN GUARANTEE AGREEMENT (this “Agreement”), dated as of February 20, 2014, is by and between (i) OGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION), an electric membership corporation organized and existing under the laws of Georgia (the “Borrower”) and (ii) the U.S. DEPARTMENT OF ENERGY, acting by and through the Secretary of Energy (or appropriate authorized representative thereof), for itself as guarantor of the Advances (as defined herein) (in such capacity, “DOE” or the “Guarantor”).

RECITALS

WHEREAS, the Borrower, together with each of the other Owners, intends to expand the facilities at the existing nuclear power generating facility commonly known as the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Electric Generating Plant located in ▇▇▇▇▇ County, Georgia, near Waynesboro, Georgia, on the west bank of the Savannah River, by developing, constructing, owning, operating and maintaining two additional nuclear generating units, consisting of two Westinghouse AP1000 nuclear reactors, each with a nominally rated generating capacity of approximately 1,100 megawatts, natural draft cooling towers, intake and discharge structures, associated transmission facilities, fuel and ancillary structures supporting the power generation process (together, the “Project”), located adjacent to such existing facility.

WHEREAS, the Borrower has requested, for the purpose of financing a portion of its ownership interest in the Project, that:

(i)            FFB enter into the FFB Note Purchase Agreement to evidence its agreement to make Advances in an aggregate principal amount not to exceed three billion fifty-seven million sixty-nine thousand four hundred and sixty-one Dollars ($3,057,069,461);

(ii)           FFB purchase from the Borrower the FFB Promissory Notes evidencing the Borrower’s obligation to repay such Advances; and

(iii)          the Guarantor guarantee all of the obligations of the Borrower under the FFB Promissory Notes pursuant to the DOE Guarantees;

WHEREAS, the Borrower has entered into that certain Mortgage Indenture, pursuant to which the Borrower has granted security title to, and a security interest in, substantially all of its real and tangible personal property and certain of its intangible property to secure its obligations under each of the FFB Promissory Notes and the DOE Reimbursement Notes and to secure certain other indebtedness.

WHEREAS, the execution of this Agreement is a condition precedent to DOE’s issuance of the DOE Guarantees, and FFB’s receipt of the DOE Guarantees is a condition precedent to FFB’s execution of the FFB Credit Facility Documents.

NOW, THEREFORE, in consideration of the foregoing, DOE’s entering into this Agreement, and other good and valid consideration, the receipt and adequacy of which are hereby expressly acknowledged, the parties hereby agree as follows:

ARTICLE 1
DEFINITIONS; RULES OF INTERPRETATION

1.1.                      Definitions.

Except as otherwise expressly provided herein, capitalized terms used in this Agreement and its exhibits and schedules shall have the meanings given in Exhibit A hereto.

1.2.                      Rules of Interpretation.

Except as otherwise expressly provided herein, the rules of interpretation set forth in Exhibit B hereto shall apply to this Agreement.

1.3.                      Conflict with FFB Credit Facility Documents.

Except as otherwise expressly provided herein, in the case of any conflict between the terms of this Agreement and the terms of any FFB Credit Facility Document, the terms of this Agreement, as between the Borrower and the Secured Parties party thereto, shall control.

ARTICLE 2
FUNDING

2.1.                      Summary of Key Terms; Financial Plan.

2.1.1.      Summary of Key Terms.

The following is a summary of certain key terms, conditions and dates.  To the extent of any inconsistency between the provisions of this Section 2.1 and any other provision of this Agreement, the provisions of this Agreement other than this Section 2.1 shall control:

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2.1.2.      Financial Plan.

The proposed sources and uses of financing with respect to the Borrower’s Undivided Interest in the Project are set forth in the Financial Plan below:

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2.2.                      Availability of Advances.

2.2.1.      Availability.

Subject to the satisfaction (or waiver by DOE) of each applicable condition precedent set forth in this Agreement and satisfaction (or waiver by FFB) of each applicable condition precedent in the FFB Credit Facility Documents, Advances shall only be made during the Availability Period.

2.2.2.      FFB Credit Facility Commitment Reductions and Cancellations.

The Borrower may, on not less than fifteen (15) days prior written notice to DOE and upon the satisfaction of any consent requirement or other applicable provisions of each FFB Credit Facility Document, permanently cancel or reduce the unutilized portions of the FFB Credit Facility Commitment, in whole or in part, if:

(a)           each partial reduction is in an amount permitted under the FFB Credit Facility Documents;

(b)           the Borrower certifies in writing that such reduction would not reasonably be expected to impair the ability of the Project to be completed by the Anticipated Completion Date; and

(c)           upon such cancellation or reduction, the Borrower pays all fees, Periodic Expenses, and other amounts then due with respect to such cancellation or reduction under the Loan Documents.

Once reduced or canceled, the FFB Credit Facility Commitment, or cancelled portion thereof, shall not be increased or reinstated.

2.2.3.      No Obligation to Make Advances.

Nothing in this Agreement obligates the Secured Parties to make Advances to the Borrower.  Advances will be made solely by FFB pursuant to the FFB Credit Facility Documents.

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(a)           Mechanics for Requesting Advances; Advance Notice. The Borrower may request an Advance by delivering to DOE, with a copy to the Lender’s Engineer, an appropriately completed Advance Notice with respect to such Advance at any time not less than (i) eighteen (18) Business Days prior to the Requested Advance Date in the case of an Advance in an amount less than $500,000,000, (ii) twenty (20) Business Days prior to the Requested Advance date in the case of an Advance in an amount equal to or greater than $500,000,000 and less than $2,000,000,000, and (iii) twenty-five (25) Business Days prior to the Requested Advance date in the case of an Advance in an amount equal to or greater than $2,000,000,000 (except that the eighteen (18) Business Day, twenty (20) Business Day and twenty-five (25) Business Day requirements shall not apply in the case of the initial Advance).  Without DOE’s written consent, the Borrower may not request an Advance more frequently than once per calendar quarter.

(b)           Each Advance Notice shall be in the form set forth in Exhibit F or otherwise in form and substance acceptable to DOE.

2.3.                      Mechanics for Funding Advances.

2.3.1.      Satisfaction of Conditions Precedent.  If DOE determines that (i) the Advance Notice has been satisfactorily completed, (ii) all conditions precedent set forth in Article 4 (Conditions Precedent to Advances) applicable to the requested Advance have been satisfied (or waived) and (iii) the FFB Advance Request and all other certificates and documentation required under the FFB Credit Facility Documents in respect of the requested Advance have been provided and are satisfactory (or have been waived), then, no later than fifteen (15) Business Days from DOE’s receipt of the Advance Notice with respect to such Advance (or such shorter period as agreed by DOE in its sole discretion), DOE shall sign the FFB Advance Request Approval Notice attached to the FFB Advance Request accompanying such Advance Notice, and deliver it together with such FFB Advance Request to FFB with a copy to the Borrower and the Lender’s Engineer.

2.3.2.      Drawstop Notices.

(a)           Issuance.  At any time after DOE delivers an FFB Advance Request Approval Notice together with the FFB Advance Request to FFB and prior to the FFB’s making of the Advance requested therein, regardless of whether DOE has signed such FFB Advance Request Approval Notice, DOE may deliver a notice (a “Drawstop Notice”) to FFB pursuant to Section 7.4(d) of the FFB Note Purchase Agreement or otherwise pursuant to the FFB Credit Facility Documents, if DOE has determined that:

(i)            the conditions in Article 4 (Conditions Precedent to Advances) with respect to such Advance are not met or, having been met, are no longer met; or

(ii)           the conditions precedent to such Advance contained in the FFB Credit Facility Documents are not met or, having been met, are no longer met.

(b)           Consequences.  If a Drawstop Notice is timely delivered to FFB, the requested Advance shall not be made unless DOE shall have delivered a notice to FFB indicating that DOE has withdrawn such Drawstop Notice (such notice, a “Drawstop Withdrawal Notice”). The

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issuance of a Drawstop Notice shall not preclude the Borrower from resubmitting an Advance Notice within the same or subsequent calendar quarter (notwithstanding Section 2.2.3(a) (Mechanics for Requesting Advances)) with respect to all or any portion of the same Advance.

(c)           Costs.  The Borrower shall pay all expenses incurred by DOE, FFB and the Trustee (including all fees and Periodic Expenses of the Independent Consultants) in respect of any Advance that is not made due to the issuance of a Drawstop Notice.

(d)           Copies to Borrower; No Effect on Validity.  Subject to Section 2.3.3 (No Liability), DOE shall provide a copy of each Drawstop Notice and Drawstop Withdrawal Notice to the Borrower upon the issuance thereof, provided that the failure to deliver a copy of any such notice to the Borrower shall have no effect on its validity.

2.3.3.      No Liability.  No Secured Party shall have any liability to the Borrower, or any Affiliate thereof or any other Person arising from the issuance of or failure to issue for any reason (including due to an Uncontrollable Cause as defined both hereunder and in the FFB Note Purchase Agreement) any FFB Advance Request Approval Notice, Drawstop Notice, or any other notice contemplated by this Section 2.3, except in each case to the extent of such Secured Party’s gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final non-appealable Governmental Judgment.

2.4.                      Advance Requirements under the FFB Credit Facility Documents.

Notwithstanding anything to the contrary contained in this Article 2, the Borrower shall comply with all disbursement requirements set forth in the FFB Credit Facility Documents.

2.5.                      No Approval of Work.

None of (x) the signing of any FFB Advance Request Approval Notice by DOE, (y) DOE’s forwarding any FFB Advance Request Approval Notice, FFB Advance Request or Advance Notice to FFB or (z) the making of any Advance under the Loan Documents shall be deemed an approval or acceptance by any Secured Party of any work, labor, supplies, materials or equipment furnished or supplied with respect to the Project.

2.6.                      Borrower Funding Commitments.

Prior to or concurrently with each Advance, the Borrower agrees to pay from sources other than the DOE Guaranteed Loan, (i) at least 30% of the sum of Eligible Base Project Costs being financed or reimbursed using the proceeds of such Advance plus all other Eligible Project Costs incurred to date and 100% of all Ineligible Base Project Costs previously incurred or then required to be paid (such obligation, the “Base Funding Commitment”) and (ii) 100% of all Overrun Project Costs previously incurred or then required to be paid (if any) (such obligation, the “Overrun Funding Commitment” and, together with the Base Funding Commitment, collectively, the “Funding Commitments”); provided, that the Funding Commitments shall terminate (a) upon the occurrence of any Alternate Amortization Event described in clause (v) of the definition of Alternate Amortization Event or (b) in the event the FFB Credit Facility Commitment is cancelled or terminated for any reason.

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2.7.                      Approval of Maturity Extension Election Notices by DOE after Notice from FFB.

If DOE receives any notice from FFB pursuant to the applicable FFB Promissory Note requiring DOE to approve each Maturity Extension Election Notice (as defined therein) delivered by the Borrower after the date of such notice, then DOE shall approve each such Maturity Extension Election Notice so long as no Potential Default, Event of Default, Potential Alternate Amortization Event or Alternate Amortization Event is continuing.

ARTICLE 3
PAYMENTS; ALTERNATE AMORTIZATION PAYMENT; PREPAYMENTS

3.1.                      Place and Manner of Payments.

3.1.1.

(a)     Generally. All payments due under the DOE Guaranteed Loan shall be made by the Borrower pursuant to the terms of the FFB Credit Facility Documents and as specified herein.

(b)     Alternate Amortization Events.  Upon the occurrence of an Alternate Amortization Event:

(i)            DOE may (A) suspend or terminate the commitment to guarantee any further Advances and (B) suspend or terminate the FFB Credit Facility Commitment; provided, that DOE reserves the right to revoke any such suspension in its sole discretion; and

(ii)           DOE may deliver an Alternate Amortization Notice to the Borrower.

(c)           Effect of Alternate Amortization Notice.   Upon delivery to the Borrower of an Alternate Amortization Notice:

(i)            the Availability Period and FFB Credit Facility Commitment shall immediately terminate, and the Borrower shall be required to repay the outstanding principal amount of the DOE Guaranteed Loan, commencing on the first Quarterly Payment Date immediately following the Borrower’s receipt of such notice, with equal payments of principal in twenty (20) consecutive quarterly installments on each Quarterly Payment Date;

(ii)           the level principal amount payable on each Quarterly Payment Date shall be equal to either (x) the aggregate outstanding principal amount of the DOE Guaranteed Loan immediately prior to the first Quarterly Payment Date immediately following delivery to the Borrower of the Alternate Amortization Notice divided by twenty (20) or (y) with respect to any Alternate Amortization Notice delivered solely in connection with an Event of Loss affecting one (1) Unit, an amount equal to the aggregate outstanding principal amount of the DOE Guaranteed Loan immediately prior to the first Quarterly Payment Date immediately following delivery to the Borrower of the Alternate Amortization Notice, less the aggregate amount of any outstanding Advances allocable to shared facilities that were unaffected by such Event of Loss, divided by forty (40); and

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(iii)          notwithstanding the delivery of an Alternate Amortization Notice, the Borrower shall continue to perform and observe all other obligations under the Loan Documents to which it is a party until the Debt Termination Date, subject in all cases to the survival of any provisions of the Loan Documents that survive the Debt Termination Date.

3.1.2.      Net of Tax, Etc.

(a)           Tax.  Any and all payments to any Secured Party by the Borrower hereunder or under any other Loan Document shall be made free and clear of, and without deduction for, any and all Taxes excluding (i) taxes imposed on or measured by the net income (however denominated) of such Secured Party by any jurisdiction or any political subdivision or taxing authority thereof or therein solely as a result of a present or former connection between such Secured Party and such jurisdiction or political subdivision (other than any connection arising as a result of the transactions contemplated by the Loan Documents), and (ii) any withholding Taxes or other Tax based on gross income imposed by the United States of America (all such Taxes, other than those Taxes described in clauses (i) and (ii) of this Section 3.1.2(a), the “Covered Taxes”).  If the Borrower shall be required by law to withhold or deduct any Covered Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Secured Party, (A) the sum payable shall be increased as may be necessary so that after making all such required deductions (including deductions applicable to additional sums payable under this Section 3.1.2), such Secured Party receives an amount equal to the sum it would have received had no such deductions been made, (B) the Borrower shall make such deductions and (C) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with all Governmental Rules.  If the Borrower shall make any payment with respect to Covered Taxes under this clause (a) to or for the benefit of any Secured Party and if such Secured Party shall claim any credit or deduction for such Covered Taxes against any other Taxes payable by such Secured Party that are not Covered Taxes, then such Secured Party shall pay to the Borrower an amount equal to the amount such Secured Party determines, absent manifest error, is the amount by which such other Taxes are actually reduced; provided that the aggregate amount payable by such Secured Party pursuant to this sentence shall not exceed the aggregate amount previously paid by the Borrower with respect to such Covered Taxes.

(b)           Indemnity.  The Borrower hereby indemnifies each Secured Party for the full amount of Covered Taxes (including any Covered Taxes imposed by any jurisdiction on amounts payable under this Section 3.1.2) paid by any Secured Party, whether or not such Covered Taxes were correctly or legally asserted.  Each Secured Party shall give notice to the Borrower of the assertion of any claim against such Secured Party relating to such Secured Party’s Covered Taxes as promptly as is practicable after being notified of such assertion; provided that any failure to notify the Borrower promptly of such assertion shall not relieve the Borrower of its obligation under this Section 3.1.2, except, with respect to any such notice given by a Secured Party more than ninety (90) days after such Secured Party has notice or knowledge of such claim, to the extent that the Borrower is actually prejudiced by such failure.  Payments by the Borrower pursuant to this indemnification shall be made within ten (10) days after the date such Secured Party makes written demand therefor (which may be submitted through DOE), which demand shall be accompanied by a certificate describing in reasonable detail the basis thereof.  Each Secured Party agrees to repay to the Borrower any refund (including that portion of any interest that was included as part of such refund with respect to Covered Taxes paid by the Borrower pursuant to this clause (b) for the period following such Borrower payment) received by such Secured Party for Covered Taxes that were paid by the

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Borrower pursuant to this clause (b), and to provide reasonable assistance to the Borrower (at the expense of the Borrower) to contest any such Covered Taxes that such Secured Party or the Borrower reasonably believes not to have been properly assessed.

(c)           Notice.  Within ten (10) days after the date of any payment of Covered Taxes by the Borrower, the Borrower shall furnish to each affected Secured Party the original or a certified copy of a receipt evidencing such payment or, if the relevant tax authority has not provided the Borrower with such a receipt, shall furnish such other evidence of such payment as may be available to the Borrower (in which case the Borrower shall promptly request a receipt from the relevant tax authority, and so furnish the original or a certified copy thereof promptly on receipt thereof).  The Borrower shall compensate each Secured Party for all reasonable losses and expenses sustained by such Secured Party as a result of any failure by the Borrower to so furnish such copy of such evidence or, if available, such receipt.

(d)           Survival of Obligations.  The obligations of the Borrower under this Section 3.1.2 shall survive the termination of this Agreement and the repayment of the Obligations.

3.2.                      Interest Provisions Relating to All Advances.

(a)           Interest shall accrue on the unpaid principal amount of each Advance as provided in the applicable FFB Promissory Note.

(b)           The Borrower hereby authorizes DOE to record in an account or accounts maintained by DOE (A) the information set forth in Section 3.5 (Evidence of Debt) and (B) such other information as DOE may determine is necessary for the administration of the DOE Guaranteed Loan.

(c)           All computations of interest (including with respect to the FFB Late Charge Rate on Overdue Amounts or any unpaid amounts under the Loan Documents, but excluding interest pursuant to Section 9.2.1 (Payments and Computations - Interest) or the DOE Late Penalty Charge) shall be made pursuant to the relevant FFB Credit Facility Documents.

3.3.                      Prepayments.

3.3.1.      Terms of all Prepayments.

(a)           All prepayments of the DOE Guaranteed Loan shall be pursuant to and in accordance with the FFB Credit Facility Documents, and the Borrower shall continue to perform and observe all other obligations under the Loan Documents to which it is a party until the Obligations shall have been paid in full, subject in all cases to the survival of any provisions of the Loan Documents that survive such payment in full.

(b)           The Borrower may not reborrow any amount of any DOE Guaranteed Loan that is prepaid.  Any interest rate reset for any Advance as provided in the FFB Credit Facility Documents shall not be considered for purposes hereof prepayment of principal.

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3.3.2.      Voluntary Prepayments.  Prior to the end of the Availability Period, without the consent of DOE, the Borrower may not prepay the DOE Guaranteed Loan (i) in part or (ii) in whole unless, in the case of this clause (ii), the Borrower simultaneously cancels the outstanding FFB Credit Facility Commitment.  After the end of the Availability Period, the Borrower may prepay the principal amount of any Advance in whole or in part upon no less than five (5) Business Days’ prior written notice submitted by the Borrower to DOE and FFB.  Any prepayment in whole or in part shall be subject to satisfaction of the following:

(a)           compliance with the terms and conditions of the FFB Credit Facility Documents, including (i) with respect to the DOE Guaranteed Loan, any “No-Call Period” specified in the FFB Note Purchase Agreement, if any, and (ii) satisfaction of any minimum amount requirement of the FFB Credit Facility Documents; and

(b)           payment of all accrued and unpaid interest on such principal amount under the FFB Credit Facility Documents, any other amounts as may be required under the Loan Documents and any other fees and Periodic Expenses then payable, including any prepayment premiums.

3.3.3.      Mandatory Prepayments.

(a)           Mandatory Prepayments in Connection with Certain Events of Taking.  The Borrower shall be required to make a mandatory prepayment of the DOE Guaranteed Loan if, as a result of any Event of Taking, the Borrower receives any Condemnation Proceeds, in the amount of the lesser of (x) any such Condemnation Proceeds received by or on behalf of the Borrower in connection with such Event of Taking or (y) the then outstanding principal, accrued and unpaid interest and any other amounts owing under the Loan Documents.  Any mandatory prepayment under this clause (a) shall be made no later than the Payment Date immediately following the receipt of such Condemnation Proceeds.

(b)           Mandatory Prepayments in Connection with Certain Applications of Advances.  If the Borrower fails to apply the proceeds of any Advance to Eligible Project Costs in accordance with the applicable Advance Notice or as otherwise approved by DOE, then:

(i)            DOE may (A) suspend or terminate the commitment to guarantee any further Advances and (B) suspend or terminate the FFB Credit Facility Commitment; provided, that DOE reserves the right to revoke any such suspension in its sole discretion;

(ii)           DOE may deliver a Mandatory Prepayment Notice to the Borrower; and

(iii)          within ninety (90) days after delivery to the Borrower of a Mandatory Prepayment Notice, the Borrower shall be required to make a mandatory prepayment of the DOE Guaranteed Loan in the amount of such misapplied proceeds.

(c)           Effect.  Mandatory prepayments of the DOE Guaranteed Loan shall be applied, and shall be subject to the terms and conditions (including conditions as to prepayment premiums or discounts) pursuant to the terms and conditions of the FFB Credit Facility Documents.  From and after the delivery of a Mandatory Prepayment Notice, the Borrower shall

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continue to perform and observe all other obligations under the Loan Documents to which it is a party until the Debt Termination Date, subject in all cases to the survival of any provisions of the Loan Documents that survive the Debt Termination Date.

3.4.                      Payment of Credit Subsidy Cost and Fees.

(a)           Prior to or concurrently with the issuance of the DOE Guarantee, the Borrower shall pay to DOE, (i) the remaining portion of the DOE Loan Facility Fee, (ii) the Credit Subsidy Cost in respect of the DOE Guarantee, as determined by DOE and approved by OMB (the “DOE Guaranteed Loan Credit Subsidy Cost”), and (iii) in accordance with subsection (c), the initial installment of the DOE Maintenance Fee.

(b)           The Borrower shall pay to FFB the fees payable to FFB from time to time in accordance with the terms and conditions of the FFB Credit Facility Documents.

(c)           The Borrower shall pay to DOE the DOE Maintenance Fee each year in advance until the Debt Termination Date, commencing on the Guarantee Issuance Date, and on January 1 of each calendar year thereafter; provided that (i) for the calendar year in which the Guarantee Issuance Date occurs, the DOE Maintenance Fee shall be pro-rated on a daily basis for the number of days starting with the Guarantee Issuance Date and ending on December 31 of such calendar year and (ii) for the calendar year in which the Maturity Date is scheduled to occur or, following the occurrence of an Alternate Amortization Event, in which the Debt Termination Date is scheduled to occur, the DOE Maintenance Fee shall be pro-rated on a daily basis for the number of days starting with January 1 of such calendar year and ending on the Maturity Date or the scheduled Debt Termination Date, as the case may be, provided that, in the case of this subclause (ii), if the Debt Termination Date does not occur on or before (x) the Maturity Date, or (y) following the occurrence of an Alternate Amortization Event, the scheduled Debt Termination Date, as the case may be, then the Borrower shall promptly pay to DOE the balance of the DOE Maintenance Fee for such calendar year.

(d)           The Borrower shall pay to DOE the DOE Modification Reimbursement Payments, if any, in the amount(s) and at the time(s) reasonably determined by DOE.

(e)           All DOE Guaranteed Loan Fees shall be paid on the dates due, in immediately available funds in Dollars, to the payee thereof, as applicable.  Once paid, the DOE Guaranteed Loan Fees shall not be refundable under any circumstances; provided, however, that the amounts payable pursuant to Section 3.4(a) shall become non-refundable upon the execution and delivery of this Agreement.

(f)            All amounts payable to DOE under this Section 3.4 shall be paid by wire transfer to the following account, or to such other account as may be specified by DOE from time to time.

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3.5.                      Evidence of Debt.

DOE shall maintain, in accordance with its usual practice, internal records evidencing the amounts from time to time (i) advanced by FFB under the FFB Note Purchase Agreement, (ii) paid by DOE with respect to the DOE Guarantee, (iii) principal and interest amounts paid by the Borrower with respect to the foregoing, and (iv) the interest periods for each Advance outstanding.

3.6.                      DOE Late Penalty Charge.

If the Borrower fails to pay in accordance with the terms of the FFB Credit Facility Documents, this Agreement or any other Loan Document (whether at scheduled maturity, as a mandatory prepayment, following an Alternate Amortization Event or otherwise) any principal of or interest on the DOE Guaranteed Loan when such principal or interest is due and payable, the Borrower shall pay to DOE the DOE Late Penalty Charge no later than three (3) Business Days after such amounts become due and payable.  All amounts payable to DOE under this Section 3.6 shall be paid in accordance with Section 3.4(f) (Payment of Credit Subsidy Cost and Fees).

ARTICLE 4
CONDITIONS PRECEDENT TO ADVANCES

4.1.                      Conditions Precedent to Guarantee Issuance Date and Initial Advance.

The obligation of the Guarantor to guarantee the initial Advance is subject to the prior satisfaction (or waiver in writing), as determined in all cases by DOE, of each of the following conditions precedent (and of any deliverable, as to its form and substance) as of the Guarantee Issuance Date and to their continued satisfaction on the Advance Notice Date and the Advance Date for such initial Advance.

4.1.1.      Loan Documents.  DOE shall have received fully executed originals, in sufficient counterparts for each Secured Party that is a party thereto (provided that there shall be only one original of each FFB Promissory Note and each DOE Reimbursement Note), of each of the following documents:

(a)           Loan Guarantee Agreement.  This Agreement.

(b)           FFB Credit Facility Documents.  Each of the following FFB Credit Facility Documents:

(i)            the FFB Note Purchase Agreement;

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(ii)           the FFB Promissory Notes;

(iii)          the DOE Reimbursement Notes; and

(iv)          all other documents, certificates and instruments required to be delivered on or before the Guarantee Issuance Date in connection with the foregoing.

(c)           Intentionally Omitted.

(d)           Security Documents.  Each of the following Security Documents:

(i)            the Mortgage Indenture;

(ii)           the Vogtle Supplemental Indenture; and

(iii)          all other documents, certificates and instruments required under the Security Documents, this Agreement and the FFB Credit Facility Documents to be delivered on or before the Guarantee Issuance Date in connection with the foregoing.

(e)           Direct Agreements.  Each of the following Direct Agreements:

(i)            the Owners Direct Agreement;

(ii)           the Southern Nuclear Direct Agreement;

(iii)          the Consent to Assignment, dated as of the date hereof, among the Borrower, the EPC Contractor and DOE;

(iv)          the Consent to Assignment, dated as of the date hereof, among the Borrower, the Operator, Westinghouse Electric Company LLC and DOE, with respect to the Westinghouse Fuel Assembly Agreement and the Westinghouse License Agreement;

(v)           the Consent to Assignment, dated as of the date hereof, among Toshiba Corporation, the Borrower and DOE; and

(vi)          the Consent to Assignment, dated as of the date hereof, among The ▇▇▇▇ Group, Inc., the Borrower and DOE.

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4.1.2.      Principal Project Documents.  (a) DOE shall have received complete copies of each of the following fully-executed documents, each certified by the Borrower that (x) such copy is a true, correct and complete copy of such document (including all schedules, exhibits, attachments, supplements and amendments thereto and any related Protocols and Side Letters), (y) such document has been duly executed and delivered by the Borrower (as applicable) and is in full force and effect, and (z) neither the Borrower nor, to the Borrower’s Knowledge, any other party to such document is, or but for the passage of time or giving of notice or both would be, in breach of any obligation thereunder except for any such breach that (i) would not reasonably be expected to have a material adverse effect on the completion or operation of the Project or (ii) is disclosed on Schedule 4.1.2 hereto:

(i)            Land Documents.  Each of the title deed or deeds for the Project Site.

(ii)           Operating Documents.  Each of the following Operating Documents:

(1)           the Fuel Disposal Agreements (other than those to be entered into after the Guarantee Issuance Date); and

(2)           the Nuclear Operating Agreement.

(iii)          Owner Documents.  Each of the following Owner Documents:

(1)           the Development Agreement;

(2)           the Nuclear Managing Board Agreement;

(3)           the Ownership Agreement;

(4)           the Declaration of Covenants;

(5)           the Cost Allocation Procedures; and

(6)           the Operating Agreement.

(iv)          the Letter Agreement for Construction Services.

(v)           the Wholesale Power Contracts.

(b)           The Borrower shall have established a confidential password-protected electronic data site that allows employees of DOE and outside legal counsel to DOE, on a need to know basis, to review from time to time (but not download or print) (the “Restricted Data Site”) complete, unredacted electronic copies of each of the following executed documents (provided that any such outside legal counsel of DOE shall be entitled to review only such documents as are authorized for review by such outside legal counsel pursuant to Section 6.1(q), and provided further that such documents shall be made available for review by employees of the Lender’s Engineer in accordance with Section 6.1(q)(ii)), each certified by the Borrower that (x) such copy is a true, correct and complete copy of such document (including all schedules, exhibits, attachments, supplements and amendments thereto and any related Protocols and Side Letters),

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(y) such document has been duly executed and delivered by the Borrower (as applicable) and is in full force and effect, and (z) neither the Borrower nor, to the Borrower’s Knowledge, any other party to such document is, or but for the passage of time or giving of notice or both will be, in breach of any obligation thereunder except for any such breach that (i) would not reasonably be expected to have a material adverse effect on the completion or operation of the Project, or (ii) is disclosed on Schedule 4.1.2 hereto.

(i)                                     Construction Contracts.  The EPC Contract.

(ii)                                  Operating Documents.  Each of the following Operating Documents:

(1)                                 the Westinghouse Fuel Assembly Agreement;

(2)                                 the Westinghouse License Agreement; and

(3)                                 the Software License.

(iii)                               The Toshiba Guarantee.

(iv)                              The ▇▇▇▇ Guarantee.

4.1.3.                  Pre-Closing Project Costs Report.  DOE shall have received: (a) a detailed description, with supporting documents as reasonably requested by DOE, of expenditures for Project Costs incurred and paid by the Borrower or any Affiliate of the Borrower prior to the Guarantee Issuance Date, which description shall specify those expenditures for which the Borrower seeks credit to be applied toward Base Funding; and (b) a certificate from the Lender’s Engineer and a certificate from the Borrower, each certifying that such Project Costs have been applied in accordance with the Construction Budget.

4.1.4.                  Borrower Base Case Projections; Project Milestone Schedule; Construction Budget; Advance Schedule; Employment Projections.  DOE shall have received (other than the Project Milestone Schedule, which shall be made available on the Restricted Data Site and made available for review by employees of the Lender’s Engineer in accordance with Section 6.1(q)(ii)), at least thirty (30) days prior to the Guarantee Issuance Date (or such shorter period as may be satisfactory to DOE), the items listed in this Section 4.1.4, certified by the Borrower in a Borrower Certificate substantially in the form of Exhibit C-4 (Form of Borrower Pre-Closing Certificate). With respect to items (a), (d) and (e), the Borrower shall have certified that such items were prepared in good faith based upon assumptions believed by the Borrower to be reasonable, as of the date of preparation and as of the Guarantee Issuance Date.  With respect to items (b), (c) and (f), the Borrower shall have certified to DOE that such items were, to the Borrower’s Knowledge, prepared by the Owners’ Agent in good faith, based on assumptions believed by the Owners’ Agent to be reasonable, in each case as of the date of preparation and as of the Guarantee Issuance Date.

(a)                                 the Borrower Base Case Projections, including a summary of the underlying assumptions and explanations thereto;

(b)                                 the Summary Project Milestone Schedule;

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(c)                                  the Project Milestone Schedule;

(d)                                 the Construction Budget;

(e)                                  the Advance Schedule; and

(f)                                   projections for jobs created and maintained in the U.S. as a result of the Project for each calendar year occurring during the term of the DOE Guaranteed Loan.

4.1.5.                  Financial Statements.

(a)                                 Delivery of Financial Statements.  (i) DOE shall have received (i) the most recent audited and unaudited Financial Statements of each of the Borrower and Chicago Bridge & Iron Company N.V. and the most recent audited Financial Statements with respect to Toshiba Corporation, and (ii) a Financial Officer Certificate substantially in the form of Exhibit C-3, dated as of the Guarantee Issuance Date, with respect to the Borrower’s Financial Statements that certifies that the Borrower has attached true, complete and correct copies of such Financial Statements of the Borrower and includes the certifications set forth in Section 6.1(e) (Information Covenants - Certification by Financial Officer) with respect to the Financial Statements of the Borrower.  DOE acknowledges and agrees that in connection with the Borrower’s delivery of Financial Statements of Chicago Bridge & Iron Company N.V. and Toshiba Corporation, the Borrower is making no representations or warranties with respect to such Financial Statements.

(ii)                                  Current Reports on Form 8-▇.  ▇▇▇ also shall have received any Current Reports on Form 8-K filed by the Borrower with the United States Securities and Exchange Commission subsequent to the date of the most recent unaudited Financial Statements delivered by the Borrower pursuant to Section 4.1.5(a)(i).

(b)                                 No Material Adverse Effect.  DOE shall have determined that no event or condition shall have occurred since the date of the most recent audited and unaudited Financial Statements of the Borrower delivered to DOE that had or would reasonably be expected to have a material adverse effect on the business, properties or financial condition of the Borrower or a material adverse effect on the ability of the Project to be completed.

4.1.6.                  Update of Conditional Commitment.  Either (i) DOE shall have determined that there are not any material changes to the terms and conditions of the Conditional Commitment or (ii) at least thirty (30) days prior to the Guarantee Issuance Date (or such shorter period as may be satisfactory to DOE), DOE shall have received a written summary of any such changes, which shall be approved by the Secretary of Energy and reflected in this Agreement.

4.1.7.                  Update of Credit Rating.  DOE shall have received the credit rating of the Borrower from ▇▇▇▇▇’▇, S&P or Fitch dated not less than thirty (30) days prior to the Guarantee Issuance Date, based on the updated commitment of DOE reflected in the FFB Credit Facility Documents and assuming that the FFB Credit Facility Commitment does not benefit from the DOE Guarantee.

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4.1.8.                  COL; Required Consents.  DOE shall have received (i) certification from the Borrower, together with such other evidence as DOE may request, that all necessary consents and waivers under all other current Indebtedness of the Borrower (including the RUS) have been duly obtained and are not subject to any conditions, except as disclosed on Schedule 5.7, (ii) certification from the Borrower, together with such other evidence as DOE may request, that the COLs and all Borrower Required Consents (except those identified on Schedule 5.7 as to be obtained at a later stage in the development of the Project) have been duly obtained and are not subject to any waiting period or appeal, (iii) a copy of each COL, and all Borrower Required Consents requested by DOE (except those identified on Schedule 5.7 as to be obtained at a later stage in the development of the Project), certified by the Borrower as being true, correct and complete, (iv) certification from the Borrower to DOE, together with such other evidence as DOE may request from the Borrower, that, to the Borrower’s Knowledge, all Required Consents (except for the COLs, the Borrower Required Consents and those consents identified on Schedule 5.7 as to be obtained at a later stage in the development of the Project) have been duly obtained and are not subject to any waiting period or appeal (except for the waiting periods and appeals that are disclosed on Schedule 5.7), and (v) a copy of each Required Consent requested by DOE (except for the COLs, the Borrower Required Consents and those consents identified on Schedule 5.7 as to be obtained at a later stage in the development of the Project), certified by the Borrower as being, to the Borrower’s Knowledge, true, correct and complete.  All such conditions to consents and waivers disclosed on Schedule 5.7, and all such waiting periods and appeals disclosed on Schedule 5.7, shall be satisfactory to DOE.

4.1.9.                  Insurance.  DOE shall have received (i) certification from the Borrower and the Insurance Advisor that all Required Insurance is in place, and in full force and effect without default and all premiums due thereon (x) have been paid in full, (y) are to be paid with the proceeds of the initial Advance, or (z) are to be paid by other arrangements disclosed to DOE, and (ii) certificates or policies with respect to all Required Insurance, designating the Borrower or the Owners’ Agent as loss payee, and the Secured Parties as additional insureds to the extent required by Schedule 6.3, certified by the Borrower and the Insurance Advisor as being true, correct and complete.  All such other arrangements disclosed to DOE referred to in clause (z) shall be satisfactory to DOE.

4.1.10.           Notice to Proceed; Conditions Precedent to Construction Contracts.  DOE shall have received a copy of the “Full Notice to Proceed” (as defined in the EPC Contract) certified by the Borrower as a true, complete and correct copy.

4.1.11.           Intentionally Omitted.

4.1.12.           Security Interests.

(a)                                 Security Interests.  DOE shall have received evidence (including evidence of the obtainment of any amendments or consents as may be required under the Mortgage Indenture) that (i) all Liens in the Collateral intended to be created by the Security Documents have been created to grant a first priority perfected Lien (subject to Permitted Liens and the December 2013 Mechanic’s Lien Exception) over the Collateral in favor of the Trustee, and (ii) all conditions precedent or any other actions necessary under the Mortgage Indenture for (x) the FFB Promissory Notes to constitute Additional Obligations under the Mortgage Indenture, (y) the

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DOE Reimbursement Notes to constitute “Credit Obligations” under the Mortgage Indenture, and (z) all Project assets attributable to the Borrower’s Undivided Interest, including without limitation, all intellectual property and such other Project assets attributable to the Borrower’s Undivided Interest as DOE may require but excluding Excepted Property, to constitute part of the Trust Estate under the Mortgage Indenture, in each case, shall have been satisfied in accordance with the Mortgage Indenture (or arrangements satisfactory to DOE have been made so that it will be).  To the extent each such Lien arises or attaches under the Uniform Commercial Code of any jurisdiction in the U.S., it shall be valid and enforceable and shall constitute a first priority perfected security interest, subject only to Permitted Liens.  In all other cases, each such Lien shall be valid and enforceable and shall constitute a first priority lien and security title, subject only to Permitted Liens, including having priority to the interest of any subsequent lienor (including a judgment lienor), any junior lienor, or any transferee for or not for value, in bulk, by operation of law, for the benefit of creditors, or otherwise.

(b)                                 Filings.  DOE shall have received evidence that (i) each of the Security Documents has been (or arrangements satisfactory to DOE have been made so that it will be) duly filed and registered or recorded in every jurisdiction in which such filing and registration or recording is necessary or advisable to make valid and effective the Liens intended to be created thereby and the rights of the Secured Parties thereunder, and (ii) all fees and duties in connection with such filing, registration or recording (x) have been paid in full, (y) are to be paid with the proceeds of the requested Advance, or (z) are to be paid by other arrangements satisfactory to DOE.

4.1.13.           Authority and Incumbency of Borrower Entities.  DOE shall have received certified copies of each of the Borrower’s, the Owners’ Agent’s and the Operator’s Organizational Documents, good standing certificates, incumbency certificates and resolutions, and any other such documents as DOE may reasonably request, with respect to approval of (i) each such Borrower Entity’s participation in the Project, (ii) in the case of the Borrower, the financing therefor and the granting of Liens pursuant to the Security Documents, and (iii) the execution, delivery and performance by each such Borrower Entity of the Transaction Documents (including any Direct Agreements) to which it is party.

4.1.14.           Guarantee Issuance Date Certificates.  DOE shall have received:

(a)                                 a Borrower Certificate, substantially in the form of Exhibit C-1, dated as of the Guarantee Issuance Date (Form of Borrower Guarantee Issuance Date Certificate), regarding the matters required to be certified by it as set forth in this Section 4.1, and such other certifications as may be required to be made to the Secured Parties by the Borrower as of the Guarantee Issuance Date under the FFB Credit Facility Documents;

(b)                                 a Lender’s Engineer Certificate, substantially in the form of Exhibit D-1 (Form of Lender’s Engineer Guarantee Issuance Date Certificate), dated as of the Guarantee Issuance Date, regarding the matters required to be certified by it as set forth in this Section 4.1, including a certification as to the reasonableness and appropriateness of (A) the Construction Budget, (B) the Summary Project Milestone Schedule, (C) the Project Milestone Schedule, (D) the Advance Schedule and (E) the Pre-Closing Project Costs Report; and

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(c)                                  an Insurance Advisor Certificate, substantially in the form of Exhibit E (Form of Insurance Advisor Certificate), regarding the matters required to be certified by it as set forth in this Section 4.1.

4.1.15.           Legal Opinions.  DOE shall have received the following legal opinions, each dated the Guarantee Issuance Date and in form and substance satisfactory to DOE:

(a)                                 opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrower with respect to matters of New York, Georgia and Federal law, including (i) due authorization, execution and delivery and enforceability of the Loan Documents and the Owner Documents, (ii) creation and perfection of security interests, (iii) receipt of all Governmental Approvals necessary to enter into the Loan Documents, and that such Governmental Approvals are in full force and effect and all applicable appeal periods have expired, except for any waiting periods and appeals that have been disclosed to DOE, (iv) DOE will not be regulated as an electric corporation or public utility under the federal law of United States of America or the law of the State of Georgia solely as a result of entering into the Transaction Documents to which it is a party, and (v) absence of conflicts with law, material agreements identified in such opinion letter or Organizational Documents of the Borrower;

(b)                                 (i) opinion of special counsel to the Owners’ Agent and the Operator with respect to matters of Georgia and Federal law and the General Corporation Law of the State of Delaware, including (A) due authorization, execution and delivery and enforceability of the Owner Documents, the Nuclear Operating Agreement and the Letter Agreement for Construction Services, in each case to which each such Major Project Participant is a party, and (B) absence of conflicts with law, material agreements identified in such opinion letter or Organizational Documents of such Major Project Participant, and (ii) opinion of counsel to the Borrower with respect to receipt of all Governmental Approvals necessary to construct and operate the Project (other than those Governmental Approvals not required to be obtained as of such date), and that such Governmental Approvals are in full force and effect and all applicable appeal periods have expired, except for any waiting periods and appeals that have been disclosed to DOE;

(c)                                  opinion of in-house counsel to Westinghouse Electric Company LLC with respect to, among other things, due authorization, execution and delivery of the Transaction Documents to which Westinghouse Electric Company LLC is a party;

(d)                                 opinion of in-house counsel to Stone & ▇▇▇▇▇▇▇, Inc. with respect to, among other things, due authorization, execution and delivery of the Transaction Documents to which Stone & ▇▇▇▇▇▇▇, Inc. is a party; and

(e)                                  opinion of special counsel to the Borrower, with respect to, among other things, the enforceability of the EPC Contract, the Software License, the Westinghouse Fuel Assembly Agreement and the Westinghouse License Agreement.

4.1.16.           Lender’s Engineer Report.  DOE shall have received a Lender’s Engineer Report, dated on or before the Guarantee Issuance Date, addressing such matters as DOE may reasonably request.

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4.1.17.           Receipt of Credit Subsidy Cost and Fees.

(a)                                 DOE shall have received payment in full of the DOE Guaranteed Loan Credit Subsidy Cost.

(b)                                 Each of DOE and FFB shall have received all other amounts then due and payable to it pursuant to Section 3.4 (Payment of Credit Subsidy Cost and Fees).

4.1.18.           Lobbying Certification.  DOE shall have received evidence that the Borrower has provided a Standard Form-LLL “Disclosure Form to Report Lobbying.”

4.1.19.           Title to Project Site.  DOE shall have received (i) evidence of the Borrower’s ownership of fee simple title, under the relevant laws of the State of Georgia, to the real estate comprising the Borrower’s Undivided Interest subject only to Permitted Liens and the December 2013 Mechanic’s Lien Exception, (ii) the Required Survey with respect to the Project Site, and (iii) an ALTA Form 2006 Mortgagee Policy of Title Insurance (or similar policy form) issued by the Title Company, with such coinsurers or reinsurers as may be reasonably acceptable to DOE, in the aggregate amount of not less than Sixty-Five Million Six Hundred Thousand Dollars ($65,600,000) insuring as of the Guarantee Issuance Date that the Mortgage Indenture creates a first and prior Lien and security title on Borrower’s Undivided Interest in and to the Project Site (subject only to Permitted Liens and the December 2013 Mechanic’s Lien Exception) and containing all endorsements requested by DOE and available in the State of Georgia.

4.1.20.           Intellectual Property.  DOE shall have received evidence that the Borrower, the Owners’ Agent and the Operator own or hold (or have available to them on commercially reasonable terms) a valid and enforceable license or right to use all Technology and Intellectual Property Rights necessary for the construction and operation of the Project through the Maturity Date (including all Intellectual Property Rights granted or conferred under the IP Agreements).

4.1.21.           Environmental; Compliance with NEPA.

(a)                                 Environmental.  DOE shall (i) have received certification from the Borrower, together with such other evidence as DOE may reasonably request from the Borrower, of satisfaction, as of the Guarantee Issuance Date and to the Borrower’s Knowledge, of all material environmental requirements applicable to the Project (including required mitigations and the receipt of any required environmental consultations and permits) pursuant to applicable Environmental Laws and Governmental Approvals to the extent such material environmental requirements are required to be satisfied as of the Guarantee Issuance Date, and (ii) with respect to any such requirements that are required to be satisfied after the Guarantee Issuance Date, be reasonably satisfied with the plan to comply with such requirements.

(b)                                 Compliance with NEPA.  DOE shall have (i) issued an Environmental Impact Statement for the Project pursuant to NEPA, (ii) issued a Record of Decision with respect to the Project and (iii) received evidence of satisfaction of and compliance with all material additional environmental requirements specified in the Environmental Impact Statement (or referenced therein) and required to be complied with as of the Guarantee Issuance Date, and (iv) with respect to any environmental requirements specified in the Environmental Impact Statement (or

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referenced therein) and required to be complied with after the Guarantee Issuance Date, DOE is satisfied with the plan to comply with such requirements.

4.1.22.           Fuel Supply and Disposal.  DOE shall have received evidence, including a certification from the Lender’s Engineer, that the implementation plans for the Project are sufficient to provide supply and disposal of nuclear fuel required to operate the Project in accordance with the COLs, all applicable Governmental Rules and the terms of the Fuel Supply Agreements (other than those to be entered into after the Guarantee Issuance Date).

4.1.23.           Conditions Precedent to Each Advance.  Each condition precedent to an Advance under Section 4.2 (Conditions Precedent to Each Advance) (except for the conditions precedent in Sections 4.2.1 (Conditions Precedent to Each Advance - Updated Advance Schedule; Application of Advance Proceeds; Security under Mortgage Indenture), 4.2.4 (Conditions Precedent to Each Advance - Consents and Approvals) and 4.2.8 (Conditions Precedent to Each Advance - Title Continuation)) shall have been satisfied (with any reference in Section 4.2 (Conditions Precedent to Each Advance) to an Advance Date being deemed for purposes of this Section 4.1.23 to refer to the Guarantee Issuance Date).

4.1.24.           Conditions Precedent in FFB Credit Facility Documents.  Each condition precedent to the initial Advance under the FFB Credit Facility Documents shall have been satisfied as determined by FFB and DOE, as applicable.

4.1.25.           Intentionally Omitted.

4.1.26.           Program Requirements.

(a)                                 Program Requirements. All Program Requirements required to have been satisfied as of the Guarantee Issuance Date shall have been satisfied.

(b)                                 System for Awards Management. The Borrower has registered in the ▇▇▇ database.

(c)                                  Patriot Act. Each of DOE and FFB have received all documentation and other information required by regulatory authorities under the applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, customarily delivered to financial institutions in connection with a transaction such as the issuance of the DOE Guaranteed Loan.

4.1.27.           Due Diligence Review.  DOE shall have completed its due diligence review of the Project, the Borrower, the Members, the Owners’ Agent, the Operator and all other matters related thereto and the results thereof shall have been satisfactory to DOE.

4.1.28.           DOE Approvals.  DOE has received each of the following: (i) evidence that OMB has reviewed and approved DOE’s calculation of the DOE Guaranteed Loan Credit Subsidy Cost as of the Guarantee Issuance Date, (ii) the action memorandum duly executed and delivered by the Secretary of Energy, authorizing the execution by DOE of the Loan Documents to which it is a party and the apportionment of the DOE Guaranteed Loan Credit Subsidy Cost and (iii)

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evidence that the Form SF132 Apportionment Request has been approved by OMB and the apportionment has occurred.

4.1.29.           ▇▇▇▇▇ ▇▇▇▇▇ Compliance.  DOE shall have received a Borrower Certificate, dated as of the Guarantee Issuance Date, (a) certifying that the Borrower and, to the DBA Knowledge of the Borrower, all DBA Contract Parties are in material compliance with all ▇▇▇▇▇-▇▇▇▇▇ Requirements, except to the extent that the ▇▇▇▇▇-▇▇▇▇▇ Requirements have been waived by the Department of Labor, including pursuant to the DOL Letter, (b) identifying and describing the immaterial non-compliance with all ▇▇▇▇▇-▇▇▇▇▇ Requirements of which the Borrower has DBA Knowledge, (c) certifying that the Borrower has commenced the cure of such immaterial non-compliance and reasonably believes that such immaterial non-compliance will be cured prior to any Advances subsequent to the Advance for which the Borrower Certificate identified in this Section 4.1.29 is being delivered, and (d) attaching a copy of the ▇▇▇▇▇-▇▇▇▇▇ and Related Acts Compliance Program and certifying that such copy is a true, correct and complete copy of the ▇▇▇▇▇-▇▇▇▇▇ and Related Acts Compliance Program.

4.1.30.           OMB Certification.  OMB shall have certified in writing that the FFB Credit Facility Commitment, the DOE Guaranteed Loan and the Project comply with the provisions of the Omnibus Appropriations ▇▇▇, ▇▇▇▇, ▇.▇. ▇▇. ▇▇▇-▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇, as amended by Section 408 of the Supplemental Appropriations ▇▇▇, ▇▇▇▇, P.L. No. 111-32 (the “Appropriations Act”).

4.1.31.           No Alternate Amortization Event.  DOE shall have received a certification from the Borrower that, as of the Guarantee Issuance Date, no Potential Alternate Amortization Event or Alternate Amortization Event has occurred and is continuing.

4.1.32.           Westinghouse Letter Agreement.  DOE shall have received a fully executed original counterpart of the Westinghouse Letter Agreement.

4.1.33.           Cargo Preference Act.

DOE shall have received a fully executed copy of that letter agreement dated January 8, 2014, between the Owners’ Agent and the United States Maritime Administration (the “CPA Agreement”), certified by the Borrower to be true, correct and complete.

4.1.34.           Borrower Appropriations Act Certificate.

DOE shall have received the Borrower Appropriations Act Certificate.

4.1.35.           MEAG Appropriations Act Certificate.

DOE shall have received the MEAG Appropriations Act Certificate.

4.2.                      Conditions Precedent to Each Advance.

The obligation of the Guarantor to guarantee each Advance, including the initial Advance, is subject to the prior satisfaction (or waiver in writing), as determined in all cases by DOE, of each of the following conditions precedent (and of any deliverable, as to its form and substance) as of

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the Advance Notice Date and to their continued satisfaction on the Advance Date for such Advance:

4.2.1.                  Updated Advance Schedule; Application of Advance Proceeds; Security under Mortgage Indenture.  DOE shall have received:

(a)                                 either (i) a proposed updated Advance Schedule, reflecting any changes to the estimated timing and amounts of proposed Advances and Base Funding to be provided, and certified by the Borrower as being consistent in all material respects with the most recent Construction Monitoring Report, the Construction Budget and the Project Milestone Schedule, provided that if such proposed updated Advance Schedule accelerates the estimated date of disbursement of any Advance amounts reflected in the initial Advance Schedule delivered pursuant to Section 4.1.4(d) (Borrower Base Case Projections; Project Milestone Schedule; Construction Budget; Advance Schedule; Employment Projections) the Borrower shall have paid any corresponding increase to the DOE Guaranteed Loan Credit Subsidy Cost that may be required to the extent such change constitutes a ‘modification’ within the meaning set forth in Section 502(9) of the Federal Credit Reform Act of 1990, or (ii) a certification from the Borrower that no changes to the then-current Advance Schedule are required;

(b)                                 certification from the Borrower and the Lender’s Engineer that the proceeds of the requested Advance will be needed for Eligible Project Costs that have been incurred by the applicable Requested Advance Date, together with a description in reasonable detail of such Eligible Project Costs; and

(c)                                  certification from the Borrower that the Borrower has taken all actions and delivered all documents and certificates (including to the Trustee, as applicable) such that immediately following disbursement of the requested Advance, the Borrower’s obligations with respect to such Advance are, and also with respect to all prior Advances, continue to be, secured by the first priority perfected Lien (subject only to Permitted Liens and the December 2013 Mechanic’s Lien Exception) in the Collateral intended to be created by the Security Documents.

4.2.2.                  Invoices and Lien Waivers.  With respect to each Advance Notice, DOE shall have received copies of (a) each invoice of the EPC Contractor that is the subject of such Advance Notice (whether via direct payment to the EPC Contractor or via reimbursement to the Borrower), (b) lien waivers and releases, in the form attached as Exhibit H (which form may be modified by the Borrower from time to time as may be required by Governmental Rule), with respect to all work reflected in the invoices specified in clause (a) of this Section 4.2.2, (c) for all advances after the initial Advance, each invoice for Project Costs (other than invoices of the EPC Contractor, invoices previously delivered and invoices with respect to Project Costs incurred through September 30, 2013) that (i) is the subject of such Advance Notice and (ii) is in an amount that exceeds one hundred thousand Dollars ($100,000), (d) for all Advances after the initial Advance, a spreadsheet in substantially the form attached hereto as Exhibit M, (e) for all advances after the initial Advance, a sample of between thirty (30) and fifty (50) of any invoices for Project Costs that are the subject of such Advance Notice (other than the invoices specified in clauses (a) and (c) of this Section 4.2.2) and, if requested by DOE or the Lender’s Engineer, any additional invoices of the type described in this clause (e) that are not included in such sample to the extent the Lender’s Engineer reasonably determines that a review of additional invoices is

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necessary in light of matters identified in the Lender’s Engineer’s review of such sample, and (f) in the case of the invoice for the final payment from the Owners under the EPC Contract, the EPC Contractor’s affidavit in the form attached as Exhibit I (which form may be modified by the Borrower from time to time as may be required by Governmental Rule).  To the extent any information delivered pursuant to this Section 4.2.2 contains confidential trade secret or proprietary information of the EPC Contractor, such information shall be provided via the Restricted Data Site and made available for review by employees of the Lender’s Engineer in accordance with Section 6.1(q)(ii).

4.2.3.                  Fees and Expenses.  DOE shall have received certification from the Borrower, and such other evidence as DOE may reasonably request, that (a) all required taxes, all DOE Guaranteed Loan Fees and Periodic Expenses (other than Periodic Expenses subject to a fee agreement with the Borrower), in each case incurred and invoiced prior to the relevant date (x) have been paid in full, (y) are to be paid with the proceeds of any requested Advance (only in the event that such amounts are Eligible Project Costs), or (z) are to be paid by other arrangements satisfactory to DOE, and (b) with respect to any Periodic Expenses subject to a fee agreement with the Borrower, the Borrower is not in default of its payment obligations under such fee agreement.

4.2.4.                  Consents and Approvals.  DOE shall have received (i) an updated schedule reflecting the status of all Required Consents, certified by the Borrower, with respect to Borrower Required Consents, as being true, correct and complete, and with respect to all other Required Consents, certified by the Borrower as being, to the Borrower’s Knowledge, true, correct and complete, and (ii) copies of any such Required Consents requested by DOE.

4.2.5.                  Representations and Warranties; No Default; No Alternate Amortization Event.  DOE shall have received certification from the Borrower, and DOE shall not have determined that such certification is untrue, that, on both the Advance Notice Date and the Advance Date, the representations and warranties in the Loan Documents (other than those in Sections 5.4 (Capitalization), 5.8 (Governmental Judgments), 5.11(a) (Environmental, Health and Safety Matters), 5.19(a) (Sufficiency of Project Documents), 5.19(f) (Sufficiency of Project Documents), 5.19(g) (Sufficiency of Project Documents) and 5.26(g) (U.S. Government Requirements), which are made only as of the Guarantee Issuance Date, the representation in the final clause of Section 5.19(c) (Sufficiency of Project Documents), which is made only on the Initial Advance Date, and those representations and warranties that speak only as to an earlier date, which shall be true and correct as of such earlier date) are true and correct in all material respects, and (x) no Potential Default (other than any Potential Default that would become a Specified Event of Default), Event of Default (other than any Specified Event of Default), Potential Alternate Amortization Event or Alternate Amortization Event has occurred and is continuing and (y) to the Borrower’s Knowledge, no Potential Default that would become a Specified Event of Default and no Specified Event of Default has occurred and is continuing.

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4.2.6.      Advance Certificates.  DOE shall have received:

(a)           a Borrower Certificate, substantially in the form of Exhibit C-2, confirming that to the Borrower’s Knowledge all conditions to the requested Advance (other than Section 4.2.14 (Certain Unqualified Representations, Warranties and Certifications)) have been satisfied and regarding the other matters required to be certified by the Borrower as set forth in this Section 4.2; and

(b)           a Lender’s Engineer Certificate, substantially in the form of Exhibit D-2, dated as of the Advance Date, regarding the matters required to be certified by the Lender’s Engineer as set forth in this Section 4.2.

4.2.7.      Borrower Funding Commitments.  DOE shall have received a certificate of an Authorized Official of the Borrower certifying that the amount of Base Funding and Overrun Funding provided by the Borrower prior to or concurrently with the requested Advance has been, or, prior to or concurrently with the requested Advance will be, applied to pay (A) at least 30% of the sum of the Eligible Base Project Costs being financed or reimbursed using the proceeds of the requested Advance plus all other Eligible Project Costs incurred to date, (B) 100% of all Ineligible Base Project Costs previously incurred or then required to be paid, and (C) 100% of all Overrun Project Costs previously incurred or then required to be paid.

4.2.8.      Title Continuation.  DOE shall have received a construction bringdown endorsement (dated as of a date not earlier than five (5) Business Days prior to the relevant Advance Date) insuring that the Mortgage Indenture remains a first priority Lien on the Borrower’s fee title (subject only to Permitted Liens and the December 2013 Mechanic’s Lien Exception), under the relevant laws of the State of Georgia, and on the Borrower’s Undivided Interest in and to the Project Site (subject only to Permitted Liens and the December 2013 Mechanic’s Lien Exception) as is necessary for the development of the Project.

4.2.9.      ▇▇▇▇▇-▇▇▇▇▇ Requirements.  DOE shall have received a Borrower Certificate, dated as of the Advance Date, (a) certifying that the Borrower and, to the DBA Knowledge of Borrower, all DBA Contract Parties are in material compliance with all ▇▇▇▇▇-▇▇▇▇▇ Requirements, except to the extent that the ▇▇▇▇▇-▇▇▇▇▇ Requirements have been waived by the Department of Labor, including pursuant to the DOL Letter, (b) identifying and describing the immaterial non-compliance with all ▇▇▇▇▇-▇▇▇▇▇ Requirements of which the Borrower has DBA Knowledge, (c) certifying that the Borrower has commenced the cure of such immaterial non-compliance and reasonably believes that such immaterial non-compliance will be cured prior to any Advances subsequent to the Advance for which the Borrower Certificate is being delivered, (d) certifying that all immaterial non-compliance identified on all prior Borrower Certificates in respect of compliance with ▇▇▇▇▇-▇▇▇▇▇ Requirements has been cured, and (e) certifying that there have been no updates to the ▇▇▇▇▇-▇▇▇▇▇ and Related Acts Compliance Program or, if there have been any updates to the ▇▇▇▇▇-▇▇▇▇▇ and Related Acts Compliance Program since the most recent prior Advance Date, attaching a copy of such updates and certifying that such copies are true, correct and complete copies of such updates.

4.2.10.    Advance Notice; Advance Schedule.  Pursuant to Article 2 (Funding), DOE shall have received (i) an Advance Notice in accordance with Section 2.2.3 (Mechanics for Requesting

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Advances; Advance Notice) and (ii) certification from the Borrower that the requested Advance conforms to the Advance Schedule.

4.2.11.    Issuance of FFB Advance Request Approval Notice.  Pursuant to Article 2 (Funding), FFB shall have received, in accordance with the FFB Credit Facility Documents, the FFB Advance Request signed by the Borrower, together with the FFB Advance Request Approval Notice signed by DOE.

4.2.12.    Absence of Drawstop Notice.  Pursuant to Article 2 (Funding), DOE shall not have delivered a Drawstop Notice in accordance with Section 2.3.2(a) (Drawstop Notices - Issuance) with respect to the Advance unless DOE shall have delivered a Drawstop Withdrawal Notice with respect to such Drawstop Notice in accordance with Section 2.3.2(b) (Drawstop Notices - Consequences).

4.2.13.    Owners’ Agent.  GPC is the Owners’ Agent.

4.2.14.    Certain Unqualified Representations, Warranties and Certifications.  Each of the (x) representations and warranties made or deemed to be made by the Borrower pursuant to Sections 5.7(a), 5.7(d) and 5.7(f) (Required Consents), 5.11 (Environmental, Health and Safety Matters), 5.17(b) (No Defaults or Alternate Amortization Events), 5.19(a), and the second sentence of 5.19(b) (Sufficiency of Project Documents) and (y) Borrower’s certifications required under this Article IV, shall be correct in all material respects when made or deemed to have been made, in each case, without giving effect to any qualification relating to the Borrower’s Knowledge as set forth therein.

4.2.15.    Cargo Preference Act.

(a)           DOE shall have received a Borrower Certificate, certifying that as of the Advance Notice Date and the Advance Date, to the Borrower’s Knowledge, the Owners’ Agent is in compliance with all of its obligations under the CPA Agreement.

(b)           DOE shall not have received written notice from United States Maritime Administration that the Owners’ Agent is not in compliance with all of its obligations under the CPA Agreement.

ARTICLE 5
REPRESENTATIONS AND WARRANTIES

The Borrower makes all of the following representations and warranties to and in favor of DOE on (i) the Guarantee Issuance Date, (ii) each Advance Notice Date, and (iii) each Advance Date, except (x) as such representations and warranties relate to an earlier date, (y) with respect to the representations in Sections 5.4 (Capitalization), 5.8 (Governmental Judgments), 5.11(a) (Environmental, Health and Safety Matters), 5.19(a) (Sufficiency of Project Documents), 5.19(f) (Sufficiency of Project Documents), 5.19(g) (Sufficiency of Project Documents) and 5.26(g) (U.S. Government Requirements) which are made only on the Guarantee Issuance Date and (z) with respect to the representation in the final clause of Section 5.19(c) (Sufficiency of Project Documents) which is made only on the initial Advance Date.

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5.1.                      Organization.

The Borrower (a) is an electric membership corporation duly incorporated, validly existing and in good standing under the laws of the State of Georgia, (b) is duly qualified to do business in the State of Georgia and in each other jurisdiction where the failure to so qualify would reasonably be expected to have a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed, and (c) has all requisite corporate power and authority to (i) own or hold under lease and operate the property it purports to own or hold under lease, (ii) carry on its business as now being conducted and as now proposed to be conducted in respect of the Project, (iii) incur Indebtedness and create Liens on its properties, and (iv) execute, deliver, perform and observe the terms and conditions of each of the Transaction Documents to which it is a party.

5.2.                      Authorization; No Conflict.

The Borrower has duly authorized, executed and delivered the Transaction Documents to which it is a party, and neither its execution and delivery thereof nor its consummation of the transactions contemplated thereby nor its compliance with the terms thereof (a) contravenes its Organizational Documents, (b) contravenes any Governmental Rules where such contravention would reasonably be expected to have a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed, (c) contravenes or results in any breach or constitutes any default under any Governmental Judgment, where such contravention, breach or default would reasonably be expected to have a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed, (d) contravenes or results in any breach or constitutes any default under, or results in or requires the creation of any Lien upon any of its revenues, properties or assets under, any agreement or instrument to which it is a party or by which it or any of its revenues, properties or assets may be bound, except for (x) the Liens created by the Security Documents and Permitted Liens, if any, and (y) where such contravention, breach or default would not reasonably be expected to have a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed or (e) requires the consent or approval of any Person other than the Required Consents.

5.3.                      Legality; Validity; Enforceability.

Each Transaction Document to which the Borrower is a party is a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to Bankruptcy Laws and general principles of equity, regardless of whether enforcement is considered in a proceeding at law or in equity.

5.4.                      Capitalization.

As of the Guarantee Issuance Date, the Equity Interests of the Borrower are wholly owned by the Members set forth on Schedule 5.4.

5.5.                      Title.

(a)           The Borrower (i) owns fee simple title to the real estate comprising the Borrower’s Undivided Interest and owns or validly leases and holds the other Collateral

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comprising interests in real property and (ii) owns or validly leases and is possessed of the personal property and other assets of the Borrower (tangible and intangible) on which it purports to grant Liens pursuant to the Security Documents, in each case free and clear of any Liens of any kind except for the Liens created by the Security Documents and Permitted Liens. The Borrower has full power and lawful authority to grant, bargain, sell, alienate, remise, release, convey, assign, transfer, mortgage, pledge, set over and confirm all such real, personal and other property as provided in the Security Documents. Except for the Liens created by the Security Documents and Permitted Liens, the Borrower is not under any obligation to create any Lien upon any of the Collateral.

(b)           The Borrower has at least a 30.0% undivided ownership interest as a tenant in common in the Additional Unit Properties and the Related Facilities.

(c)           The Project Site and the real property interests relating to the Transmission Facilities comprise all real estate necessary for the development of the Project.

5.6.                      Security Interests.

Pursuant to the Security Documents, the Trustee (for the benefit of the Holders of Outstanding Indenture Obligations, including the Secured Parties) has a perfected Lien in the Collateral (other than interests in real estate acquired after the date hereof and located in a county in which the Mortgage Indenture has not previously been recorded, in such case for a period of no more than 180 days after acquisition of such interests) subject only to the Permitted Liens. Such Lien in the Collateral is superior and prior to any and all Liens of all third Persons (other than Permitted Liens) now existing. All documents and instruments, including the Mortgage Indenture and financing statements, have been recorded or filed for record in such manner and in such places as are required, and all other actions as are necessary have been taken to establish and perfect the Trustee’s Lien in and to the Collateral (other than interests in real estate acquired after the date hereof and located in a county in which the Mortgage Indenture has not previously been recorded, in such case for a period of no more than 180 days after acquisition of such interests), for the benefit of the Holders of Outstanding Indenture Obligations, including the FFB and DOE,  to the extent contemplated by the Security Documents. The FFB Promissory Note constitutes an Additional Obligation under the Mortgage Indenture and the DOE Reimbursement Note constitutes a “Credit Obligation” under the Mortgage Indenture. All taxes and Periodic Expenses that are due and payable in connection with the execution, delivery, filing or recordation of the Mortgage Indenture and the financing statements, or the execution, issuance and delivery of the FFB Promissory Note and the DOE Reimbursement Note, or the granting of Liens pursuant to the Mortgage Indenture, have been paid or arrangements satisfactory to the relevant Secured Parties have been made to satisfy such obligations.

5.7.                      Required Consents.

(a)           Schedule 5.7 sets forth all consents and approvals, including all Governmental Approvals, that are required to have been obtained or to be obtained by the Borrower, or to the Borrower’s Knowledge, the Owners’ Agent or the Operator or for the ownership, construction, operation or routine maintenance of the Borrower’s Undivided Interest, in each case in connection with the Transaction Documents and the Project (all such consents and approvals,

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whether or not identified on such Schedule, the “Required Consents”, and all such consents and approvals required to be obtained by the Borrower (including the COL), whether or not identified on such Schedule, the “Borrower Required Consents”).

(b)           All Borrower Required Consents that are required to be obtained, and all applications for Borrower Required Consents that are required to be filed, on or as of the date this representation is made (including any Borrower Required Consents required on that date), have been filed or obtained, except for Borrower Required Consents that, if not obtained, would not reasonably be expected to have a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed or operated.  Such Borrower Required Consents required to have been obtained as of the date this representation is made are in full force and effect and as of the date this representation is made are not under appeal or subject to other proceedings or unsatisfied conditions that would reasonably be expected to result in a material adverse modification or cancellation as of such date (except for the appeals, proceedings and conditions that are disclosed on Schedule 5.7).

(c)           To the Borrower’s Knowledge, any Required Consent referred to under paragraph (b), above, which has not been obtained as of the date this representation is made, but which will be required to be obtained in the future, is reasonably expected to (i) be obtained on or prior to the relevant date or stage of development of the Project for which such Required Consent will be required, and (ii) contain only conditions or requirements which the Borrower expects to be satisfied or complied with, in each case, in accordance with the terms of such Required Consent.

(d)           To the Borrower’s Knowledge, all Required Consents (other than Borrower Required Consents) that are required to be obtained, and all applications for Required Consents (other than Borrower Required Consents) that are required to be filed, on or as of the date this representation is made (including any Required Consents (other than Borrower Required Consents) required on that date), have been filed or obtained, except for Required Consents (other than Borrower Required Consents) that, if not obtained, would not reasonably be expected to have a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed.  To the Borrower’s Knowledge, such Required Consents required to have been obtained as of the date this representation is made are in full force and effect and as of the date this representation is made are not under appeal or subject to other proceedings or unsatisfied conditions that would reasonably be expected to result in a material adverse modification or cancellation as of such date (except for the appeals, proceedings and conditions that are disclosed on Schedule 5.7).

(e)           To the Borrower’s Knowledge, any Required Consent referred to under paragraph (d), above, which has not been obtained as of the date this representation is made, but which will be required to be obtained in the future, is reasonably expected to (i) be obtained on or prior to the relevant date or stage of development of the Project for which such Required Consent will be required, and (ii) contain only conditions or requirements which the Borrower expects to be satisfied or complied with, in each case, in accordance with the terms of such Required Consent.

(f)            Each of the Borrower, and to the Borrower’s Knowledge, the Owners’ Agent, the Operator and the Project is in compliance in all respects with all Required Consents applicable to

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it, including all federal, state, and local Governmental Approvals, except (1) any such non-compliance that the Borrower (A) is diligently working to cure through appropriate regulatory procedures, including for the purpose of obtaining any necessary amendment to such Required Consent and (B) reasonably believes will be cured through such diligent efforts, or (2) where the failure to comply would not reasonably be expected to have a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed or operated.

5.8.                      Governmental Judgments.

(a)           Except as set forth on Schedule 5.8, there is no pending or threatened (in writing) action, suit, or proceeding, or investigation by a Governmental Authority, of any kind, including no action or proceeding of or before any Governmental Authority, in each case (x) involving the Borrower or (y) to the Borrower’s Knowledge, involving the Operator or any other Project Participant, in each case that relates to the Project or any transactions contemplated by any of the Transaction Documents that has, or would reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed or operated.

(b)           Neither the Borrower, nor to the Borrower’s Knowledge, the Owners’ Agent or the Operator has failed to observe in any material respect, or is otherwise in default with respect to, any Governmental Judgment or any order of any court, arbitrator, administrative agency or other Governmental Authority except (1) any such failure to observe or default that the Borrower (A) is diligently working to cure through procedures approved by the applicable court, arbitrator, arbitral panel, administrative agency or Governmental Authority or appropriate regulatory procedures and (B) reasonably believes will be cured through such diligent efforts, or (2) that has not and would not reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed or operated.  There is no injunction, writ, or preliminary restraining order of any nature issued by a court, arbitrator, administrative agency or other Governmental Authority directing that any of the obligations provided for in any of the Transaction Documents to be performed by the Borrower, or to the Borrower’s Knowledge, the Owners’ Agent, the Operator or any other Project Participant, not be consummated as herein or therein provided.  No Governmental Judgment or order of any court, arbitrator, administrative agency or other Governmental Authority has been entered against the Borrower, or to the Borrower’s Knowledge, the Owners’ Agent, the Operator or any other Project Participant that has, or would reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed or operated.

5.9.                      Tax.

The Borrower has filed all material tax returns required by Governmental Rules to be filed by it and has paid (a) all material income taxes payable by it that have become due pursuant to such tax returns and (b) all other material taxes and assessments payable by it that have become due, in either case, other than those taxes that it is contesting in good faith.

5.10.               Compliance with Governmental Rules.

Each of the Borrower, and to the Borrower’s Knowledge, the Owners’ Agent (with respect to the Project) and the Operator (with respect to the Project), is in compliance with, and has conducted

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its business, operations, assets, equipment, property, leaseholds, and other facilities in compliance with, (a) Title XVII and the Applicable Regulations, in all respects, and (b) all other Governmental Rules and all other Program Requirements in all material respects, except, in the case of this clause (b), (x) for any such non-compliance asserted by any Governmental Authority where the Borrower, the Owners’ Agent or the Operator is contesting such assertion in good faith by appropriate legal proceedings, and (y) for any such non-compliance that the Borrower, the Owners’ Agent or the Operator is diligently working to cure pursuant to an applicable Remediation Plan.

5.11.               Environmental, Health and Safety Matters.

(a)           Except as disclosed on Schedule 5.11(a), neither the Borrower, nor to the Borrower’s Knowledge, the Owners’ Agent or the Operator, is, with respect to the Project, in any material non-compliance with any Environmental Laws or has received any complaint, order, directive, claim, citation or notice by any Governmental Authority relating to any actual or potential material violation of its then-existing obligations under Environmental Laws.

(b)           The Borrower and, to the Borrower’s Knowledge, the Operator have developed and implemented policies and procedures with respect to the Project that are reasonably designed to provide for compliance with Governmental Rules concerning safety and the protection of human health, including the Occupational Safety and Health Act of 1970 and the rules and regulations promulgated thereunder and the rules and regulations of the NRC relating to safety matters.

5.12.               Investment Company Act.

The Borrower is not required to register as an “investment company” and it is not “controlled” by a company required to register as an “investment company” under the Investment Company Act.

5.13.               Regulation of Secured Parties.

(a)           No Secured Party shall be or become subject to regulation by the NRC under the Atomic Energy Act of 1954 and the NRC’s regulations thereunder solely as a result of the execution, performance or delivery of this Agreement or the other Loan Documents to which it is a party; provided, however, that in accordance with 42 U.S.C. §2234 and 10 CFR §50.81, (1) the rights of a Secured Party may be exercised only in compliance with and subject to the provisions of the COLs, the Atomic Energy Act of 1954 and regulations issued by the NRC pursuant to said Act; and (2) no Secured Party may take possession of the Project prior to the issuance or transfer of a license from the NRC to such Secured Party authorizing such possession.

(b)           No Secured Party shall be or become subject to regulation as a “public utility” under the Federal Power Act solely as a result of the execution, performance or delivery of this Agreement or the other Loan Documents to which it is a party; provided, however, that upon exercise by a Secured Party of certain remedies allowed under this Agreement or the Security Documents, such Secured Party may become subject to regulation as a “public utility” under the Federal Power Act.

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(c)           No Secured Party shall be or become subject to regulation under the Public Utility Holding Company Act of 2005, and the Federal Energy Regulatory Commission’s regulations thereunder, solely as a result of the execution, performance or delivery of this Agreement or the other Loan Documents to which it is a party; provided, however, that upon exercise by a Secured Party of certain remedies allowed under this Agreement or the Security Documents, such Secured Party may become subject to regulation under Public Utility Holding Company Act of 2005.

(d)           No Secured Party shall be or become subject to regulation by the Georgia PSC as an “electric light and power company”, a “person owning, leasing or operating public gas plants or electric light and power plants furnishing service to the public” or an “electric supplier” or similar term, under the laws of the State of Georgia, solely as a result of the execution, performance or delivery of this Agreement or the other Loan Documents to which it is a party; provided, however, that upon exercise by a Secured Party of certain remedies allowed under this Agreement or the Security Documents, such Secured Party may become subject to regulation by the Georgia PSC as an “electric light and power company”, a “person owning, leasing or operating public gas plants or electric light and power plants furnishing service to the public” or an “electric supplier” or similar term, under the laws of the State of Georgia.

5.14.               Intentionally Omitted.

5.15.               ERISA.

(a)     The Borrower and its ERISA Affiliates have operated the Pension Plans in compliance with their terms and with all applicable provisions and requirements of the Internal Revenue Code, ERISA, and other applicable federal or state laws and have performed in all respects their respective obligations under each Pension Plan, except where such failure to comply or perform would not reasonably be expected to have a Material Adverse Effect.

(b)     No ERISA Event has occurred or is reasonably expected to occur that is reasonably expected to have a Material Adverse Effect.

(c)     No Pension Plan has failed to satisfy the minimum funding standards under Section 412 or Section 430 of the Internal Revenue Code other than any such failure that would not reasonably be expected to have a Material Adverse Effect.

(d)     Except to the extent required under Section 4980B of the Internal Revenue Code or comparable state law, no Pension Plan provides health or welfare benefits (through the purchase of insurance or otherwise) for any retired or former employee of the Borrower or any of its ERISA Affiliates, which has or would result in liability to the Borrower that is reasonably expected to have a Material Adverse Effect.

(e)     As of the most recent valuation date for any Pension Plan, the outstanding unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities), is not reasonably expected to have a Material Adverse Effect.

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(f)      The execution and delivery of this Agreement and the consummation of the transactions contemplated hereunder will not involve any transaction that is a prohibited transaction within the meaning of Section 406 of ERISA for which an exemption is not available or in connection with which taxes are reasonably expected to be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Internal Revenue Code, and which is reasonably expected to result in liability to the Borrower, other than any such prohibited transaction that would not reasonably be expected to have a Material Adverse Effect.

(g)     All liabilities under each Pension Plan are (i) funded to at least the minimum level required by applicable law or, if higher, to the level required by the plan documents governing the Pension Plans other than any failure to fund at such level that would not reasonably be expected to have a Material Adverse Effect, (ii) provided for or recognized in the Financial Statements most recently delivered to DOE pursuant to Section 6.1 (Information Covenants) and (iii) estimated in the formal notes to the Financial Statements most recently delivered to DOE pursuant to Section 6.1 (Information Covenants).

(h)     (i) The Borrower is not a “plan” within the meaning of Section 4975(e) of the Internal Revenue Code; (ii) the assets of the Borrower do not constitute “plan assets” within the meaning of Section 3(42) of ERISA and the United States Department of Labor Regulations set forth in 29 C.F.R. 2510.3-101; (iii) the Borrower is not a “governmental plan” within the meaning of Section 3(32) of ERISA; (iv) transactions by or with the Borrower are not subject to state statutes applicable to the Borrower regulating investments of fiduciaries with respect to governmental plans; and (v) the Borrower has not engaged in any transaction that would cause any obligation, or action taken or to be taken, hereunder (or the exercise by the Secured Parties of any of their respective rights under this Agreement) to be a non-exempt prohibited transaction under ERISA or Section 4975 of the Internal Revenue Code, other than any such transaction or prohibited transaction described in this subclause (v) that would not reasonably be expected to have a Material Adverse Effect.

(i)      Neither the Borrower nor, to the Knowledge of the Borrower, any ERISA Affiliate or duly appointed administrator, (i) has instituted, or (ii) intends to initiate proceedings to withdraw from any Multiemployer Plan.

Notwithstanding anything in this Section 5.15 to the contrary, the specific representations and warranties made pursuant to this Section 5.15 shall not be interpreted to limit the generality of, or otherwise limit in any way, the representations made by the Borrower in Section 5.10 (Compliance with Government Rules) or the obligations (including the related exceptions and cure rights) of the Borrower in Section 8.1(l) (Events of Default - Compliance with Government Rules; Program Requirements), each of which shall be applied to the Borrower without regard to the provisions of this Section 5.15.

5.16.               Intentionally Omitted.

5.17.               No Defaults or Alternate Amortization Events.

(a)           No Potential Default (other than any Potential Default that would become a Specified Event of Default), Event of Default (other than any Specified Event of Default),

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Potential Alternate Amortization Event or Alternate Amortization Event has occurred and is continuing, and

(b)           to the Borrower’s Knowledge, no Potential Default that would become a Specified Event of Default and no Specified Event of Default has occurred and is continuing.

5.18.               No Judgment Liens; No Delinquent Indebtedness.

The Borrower (i) does not have a judgment lien against any of its property for a debt owed to the United States of America and (ii) does not have an outstanding debt owed to the United States of America or any agency thereof that is in delinquent status, as the term “delinquent status” is defined in 31 C.F.R. § 285.13(d), including any Tax liabilities, except to the extent such delinquency has been resolved with the appropriate Governmental Authority in accordance with Governmental Rule and, to the Knowledge of the Borrower, the standards of the Debt Collection Improvement Act of 1996.

5.19.               Sufficiency of Project Documents.

(a)           To the Borrower’s Knowledge, all easements, leasehold and other property interests, and all utility and other services, means of transportation, facilities, other materials and other rights that can reasonably be expected to be necessary for the construction, completion and operation of the Project in accordance with Governmental Rules and the Transaction Documents (including gas, electrical, water and sewage services and facilities) have been procured under the Project Documents or are commercially available to the Project at the Project Site.

(b)           DOE has received a true, complete and correct copy of each of the Project Documents executed by the Borrower (including all exhibits, schedules, attachments, supplements and amendments thereto and any related Protocols and Side Letters).  To the Borrower’s Knowledge, DOE has received a true, complete and correct copy of each of the other Project Documents (including all exhibits, schedules, attachments, supplements and amendments thereto and any related Protocols and Side Letters).

(c)           DOE has received a true, complete and correct copy of each of the Wholesale Power Contracts (including all exhibits, schedules, protocols and side letters referred to therein or delivered pursuant thereto, if any, and all amendments, modifications, additions, waivers thereto or thereof).  None of the Wholesale Power Contracts has been amended or modified after the Guarantee Issuance Date, except in accordance with Section 7.7 (Limitations on Certain Types of Contracts) and, as of the Initial Advance Date, each Wholesale Power Contract is in full force and effect.

(d)           Prior to the execution of each Wholesale Power Contract entered into on or prior to the date this representation is made, the Borrower believed that each party to each such Wholesale Power Contract would be able to carry out its obligations in accordance therewith.  Nothing has come to the attention of the Borrower to cause it to believe that any such party will either not be able to perform any of its payment obligations in accordance therewith or fail to perform any other of its obligations in accordance therewith,  in each case in any manner that

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would reasonably be expected to have a Material Adverse Effect or a material adverse effect upon the Project.

(e)                                  There exists no default by the Borrower under any Wholesale Power Contract that would reasonably be expected to have a Material Adverse Effect or a material adverse effect upon the Project.

(f)                                   Each Principal Project Document is in full force and effect.

(g)                                  The Project Documents are the only material contracts to be entered into by the Borrower, the Owners’ Agent or the Operator that are necessary for the construction of the Project.

5.20.                Financial Statements.

Each of the Financial Statements of the Borrower (a) included in the Borrower’s most recent Annual Report on Form 10-K and any subsequent Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission under the Exchange Act or, (b) if the Borrower is no longer subject to the periodic reporting requirements of the Exchange Act, most recently delivered to DOE pursuant to Section 4.1.5 (Conditions Precedent to Guarantee Issuance Date and Initial Advance - Financial Statements) or Sections 6.1(c) (Information Covenants - Quarterly Financial Statements and Reports) and (d) (Information Covenants - Annual Financial Statements and Reports), as applicable, has been prepared in accordance with Accounting Requirements and presents fairly in all material respects (i) the financial condition of the Borrower and its Subsidiaries as of the respective dates of the balance sheets included therein and (ii) the results of operations of the Borrower and its Subsidiaries for the respective periods covered by the statements of income included therein.

5.21.                Project Milestone Schedule; Construction Budget; and Borrower Base Case Projections.

(a)                                 The Construction Budget and the Borrower Base Case Projections, in each case when delivered by the Borrower to DOE, were prepared in good faith by the Borrower and were based upon assumptions believed by the Borrower to be reasonable.

(b)                                 The Project Milestone Schedule and the Summary Project Milestone Schedule are consistent with the most recent Construction Monitoring Report filed by the Owners’ Agent with the Georgia PSC.

5.22.                Sufficient Funds

Based on conditions existing as of the date this representation is being made, the Borrower is aware of no fact or circumstance preventing or materially impeding it from obtaining timely funding from the capital or bank finance markets or other sources on commercially reasonable terms, and it reasonably expects that it will be able to obtain funding (through the FFB Credit Facility Commitment and other sources of funding for Base Funding and Overrun Funding) sufficient to fund (i) the Base Project Costs, and (ii) any Overrun Project Costs that are reasonably expected to be incurred.

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5.23.                Fees and Enforcement.

Other than amounts (i) that have been paid in full or (ii) with respect to which arrangements have been made and such arrangements have been disclosed to DOE and to the Borrower’s Knowledge are satisfactory to DOE, no fees or taxes including documentary, stamp, transaction, registration, or similar taxes are required to be paid to ensure the legality, validity, enforceability, priority or admissibility in evidence in applicable jurisdictions of any Transaction Documents.

5.24.                Intentionally Omitted.

5.25.                No Additional Fees.

The Borrower has not paid or become obligated to pay any fee or commission to any broker, finder or intermediary for or on account of arranging the financing of the transactions contemplated by the Transaction Documents.

5.26.                U.S. Government Requirements.

(a)                                 ▇▇▇▇▇-▇▇▇▇▇ Requirements.  The Borrower and, to the DBA Knowledge of the Borrower,  all DBA Contract Parties are in material compliance with all ▇▇▇▇▇-▇▇▇▇▇ Requirements, except to the extent that the ▇▇▇▇▇-▇▇▇▇▇ Requirements have been waived by the Department of Labor.  The Borrower has established, implemented and enforced a program (such program, as updated in accordance with Section 6.11(h)(iv), the “▇▇▇▇▇-▇▇▇▇▇ and Related Acts Compliance Program”) designed to (i) ensure material compliance with all ▇▇▇▇▇-▇▇▇▇▇ Requirements and (ii) provide reasonable assurance that information relating to compliance with the ▇▇▇▇▇-▇▇▇▇▇ Requirements is made known to such Person or Persons who have principal oversight responsibility with respect to the Borrower’s compliance with the ▇▇▇▇▇-▇▇▇▇▇ Requirements (and each of the Persons referred to in this subclause (ii) are identified by name and position in the ▇▇▇▇▇-▇▇▇▇▇ and Related Acts Compliance Program).

(b)                                 Foreign Asset Control Regulations. Neither the making of any Advances nor the use of the proceeds thereof by the Borrower, nor to the Borrower’s Knowledge, any other Person, will violate any Foreign Asset Control Regulations.

(c)                                  Prohibited Persons. Neither the Borrower nor any Borrower Controlling Person nor any of their respective Principal Persons is a Prohibited Person.  To the Borrower’s Knowledge, no event has occurred and no condition exists that is likely to result in the Borrower, any Borrower Controlling Person or any of their respective Principal Persons becoming a Prohibited Person.  The internal management and accounting practices and controls of the Borrower have been designed and maintained to provide reasonable assurance of compliance with all Corrupt Practices Laws, the Patriot Act, the Anti-Terrorism Order and the rules and regulations of OFAC. The Borrower has designed and maintained disclosure controls and procedures to provide reasonable assurance that material information regarding the Borrower’s compliance with laws (including Corrupt Practices Laws, the Patriot Act, the Anti-Terrorism Order and the rules and regulations of OFAC) is made known to Senior Management Persons of the Borrower.

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(d)                                 Anti-Terrorism Order.  The Borrower, each Borrower Controlling Person, and each of their respective Principal Persons is in compliance with the Anti-Terrorism Order and has not previously violated the Anti-Terrorism Order.

(e)                                  Use of Collateral.  To the Borrower’s Knowledge, none of the Collateral consisting of the Project is traded or used by a Prohibited Person or by a Person organized in a Prohibited Jurisdiction.

(f)                                   Corrupt Practices Laws; OFAC.

(i)                                     The Borrower, each Borrower Controlling Person, and each of their respective Principal Persons, employees and agents (other than the Owners’ Agent, who is addressed in Section 5.26(f)(ii)) acting in such capacities, have complied with all Foreign Asset Control Regulations, all applicable orders, rules and regulations of the OFAC and all applicable Corrupt Practices Laws in obtaining any consents, licenses, approvals, authorizations, rights, or privileges with respect to the Project and, otherwise, have conducted the Project in compliance with all Foreign Asset Control Regulations, all applicable orders, rules and regulations of the OFAC and all applicable Corrupt Practices Laws.  The Borrower and each Borrower Controlling Person has designed controls, including internal management and accounting controls, to enable such Person’s compliance with all Corrupt Practices Laws, such controls are reasonable, and such Person has implemented such controls.

(ii)                                  To the Borrower’s Knowledge, the Owners’ Agent, the Operator and each of their respective Principal Persons, employees, and agents is in compliance with all Foreign Asset Control Regulations, all applicable orders, rules and regulations of the OFAC and all Corrupt Practices Laws in obtaining any consents, licenses, approvals, authorizations, rights, or privileges with respect to the Project and, otherwise, is conducting all activities in connection with the Project in compliance with all Foreign Asset Control Regulations, all applicable orders, rules and regulations of the OFAC and all applicable Corrupt Practices Laws.

(g)                                  Federal Agency Funds.  No funds, personnel or property (tangible or intangible) of any federal agency, instrumentality, personnel or affiliated entity are expected to be used (directly or indirectly) through acquisitions, contracts, demonstrations, exchanges, grants, incentives, leases, procurements, sales, other transaction authority, or other arrangements, to support the Borrower’s Undivided Interest or to obtain goods or services from the Borrower’s Undivided Interest, except to the extent that the Borrower’s Undivided Interest benefits from any exemption set forth in the Appropriations Act.

(h)                                 Lobbying.  In accordance with 31 U.S.C. § 1352, no proceeds of the Advances have been expended by the Borrower or any of its Affiliates to pay any Person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress (as defined for purposes of 31 U.S.C. § 1352), an officer or employee of Congress, or an employee of a Member of Congress.

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(i)                                     EPC Contractor.

(i)                                     None of the EPC Contractor, Chicago Bridge & Iron Company N.V., Toshiba Corporation, The ▇▇▇▇ Group, Inc. or any of their respective ultimate parent companies, or the successors or assigns of any such Person, is identified as a Prohibited Person on the lists set forth in clauses (i) and (ii) of the definition of Prohibited Person.

(ii)                                  In the EPC Contract, the EPC Contractor: (A) represented and warranted that neither it nor any of its “principals” (as defined in 7 C.F.R. Part 3017) was debarred, suspended, proposed for debarment, voluntarily excluded or declared ineligible by any Federal department or agency from participation in any “covered transaction” (as defined in 7 C.F.R. Part 3017), (B) agreed to comply with Subpart C (“Responsibilities of Participants Regarding Transactions”) of 7 C.F.R. Part 3017 in connection with the planning, design, licensing, acquisition, construction, completion, startup, renewal, addition, replacement, and modification of the Project and (C) agreed to cause each party performing services or providing goods (1) which relate to the planning, design, licensing, acquisition, construction, completion, startup, renewal, addition, replacement, and modification of the Project or future capital improvements related thereto and (2) the payments for which are expected to equal or exceed twenty-five thousand Dollars ($25,000) (or such other amount as is specified from time to time in 7 C.F.R. § 3017.220), to provide a representation and warranty and agreement substantially identical to the representation and warranty and agreement in clauses (A) and (B) above.

5.27.                Insolvency Proceedings; Solvency.

(a)                                 The Borrower is not the subject of any pending or, to the Borrower’s Knowledge, threatened, Insolvency Proceedings.

(b)                                 The Borrower is and, after giving effect to the requested Advance, will be solvent.

5.28.                Use of Proceeds.

The Borrower has used and shall continue to use the proceeds of all Advances in accordance with the terms and conditions of all applicable Loan Documents.

5.29.                No Material Adverse Effect.

No event or condition has occurred since the date of the Financial Statements of the Borrower delivered pursuant to Section 4.1.5 (Conditions Precedent to Guarantee Issuance Date and Initial Advance - Financial Statements) that has or would reasonably be expected to have a Material Adverse Effect.

5.30.                Certain Program Requirements.

(a)                                 Eligibility.  The Project qualifies as an “Eligible Project” under Title XVII and is not a research, development, or demonstration project or a project that employs Commercial Technology (as defined in the Applicable Regulations) in service in the United States.

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(b)                                 U.S. Nexus.  The Project will be constructed and operated in the United States, employs new or significantly improved technology that has the potential to be replicated in other commercial projects in the United States, and such technology is or is likely to be available in the United States for further commercial application.

(c)                                  Useful Life.  The Maturity Date occurs prior to the end of 90% of the projected useful life of the Project’s major physical assets, as calculated in accordance with Accounting Requirements.

(d)                                 No Tax-Exempt Indebtedness.  The FFB Credit Facility Commitment and the DOE Guaranteed Loan will not finance, either directly or indirectly, tax-exempt indebtedness obligations, consistent with the requirements of Section 149(b) of the Internal Revenue Code.

5.31.                No Omissions.

The statements and information pertaining to the Project, the Borrower’s Undivided Interest or the Borrower contained in any Borrower Certificate or Loan Document, taken together with all documents, reports or other written information pertaining to the Project, together with all updates of such information from time to time, that have been furnished by or on behalf of the Borrower to DOE, any other Secured Party or any Independent Consultant, are, at the time furnished, true and correct in all material respects and do not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not materially misleading in light of the circumstances in which they were made or, with respect to forward-looking statements or information contained therein, such statements or information were prepared in good faith based on assumptions believed by the Borrower to be reasonable at the time prepared.

ARTICLE 6
AFFIRMATIVE COVENANTS

The Borrower covenants and agrees that until the Debt Termination Date, unless DOE waives compliance in writing:

6.1.                       Information Covenants.

At its own expense the Borrower shall (except as otherwise provided in this Section 6.1 with respect to information made available for review through the Restricted Data Site) furnish or cause to be furnished the following items to DOE (x) in unalterable electronic format with a reproduction of the signatures where required, either (1) as an attachment via email or (2) through a confidential password-protected electronic data site that provides, each time a document is uploaded to the data site, prompt notification via email containing a link to such document, which email, in each of cases (1) and (2), shall provide a brief description of such document and a cross-reference to the provision(s) of this Agreement pursuant to which such document is required to be furnished, and (y) upon the reasonable request by DOE, in hard copy with sufficient copies for each Secured Party:

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(a)                                 Monthly Construction Progress Reports.  Prior to Commercial Operation of the Second Unit, no later than thirty (30) days following the end of each month:

(i)                                     Intentionally Omitted;

(ii)                                  an unredacted copy of the EPC Contractor’s monthly project status report delivered to the Owners’ Agent pursuant to Section 3.4(b) (Monthly Status Report) of the EPC Contract (the “EPC Contractor Monthly Report”) with respect to such month, which copy shall be provided via the Restricted Data Site;

(iii)                               a copy of the Operator’s monthly project report in the form delivered to the Owners (the “Southern Nuclear Monthly Report”) with respect to such month; provided, however, that if the Borrower determines that such copy contains confidential trade secret and proprietary information of the EPC Contractor, then such copy shall be provided via the Restricted Data Site;

(iv)                              a copy of the written materials delivered by the Owners’ Agent to the Owners in connection with any monthly project management board meeting, including any reports provided to the Owners pursuant to Section 5.7(c) of the Ownership Agreement (such written materials, the “Project Management Board Monthly Meeting Materials” and, together with the EPC Contractor Monthly Report and the Southern Nuclear Monthly Report, the “Monthly Construction Reports”), with respect to such month; provided, however, that if the Borrower determines that such copy contains confidential trade secret and proprietary information of the EPC Contractor, then such copy shall be provided via the Restricted Data Site.

(v)                                 The following shall be included in one or more of the Monthly Construction Reports furnished to DOE each month:

(1)                                 the status and progress of the development, planning, design, licensing, acquisition, construction, completion, startup and commissioning of each Unit, inclusive of the Owners’ scope of services, including an updated critical path schedule;

(2)                                 summary financial information regarding the construction of the Units, including an updated Construction Budget, Summary Project Milestone Schedule and Project Milestone Schedule, inclusive of both the Owners’ and the EPC Contractor’s scope of services, along with an explanation of reasons for any change to or deviations from the most recent prior Construction Budget and Project Milestone Schedule; provided, however, that if the Borrower determines that such Project Milestone Schedule contains confidential trade secret and proprietary information of the EPC Contractor, then such Project Milestone Schedule shall be provided via the Restricted Data Site;

(3)                                 a Transmission Facilities project report summarizing major activities, budget, schedule and issues specifically affecting design, construction and startup of Transmission Facilities;

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(4)                                 a summary relating to completed Inspections, Tests, Analyses, and Acceptance Criteria (ITAACs), acceptance and startup tests, and performance tests with respect to the Project, except to the extent the Owners’ Agent is prohibited from providing such information under applicable requirements of the NRC; and

(5)                                 other matters regarding the Project, including (1) disputes or litigation, (2) legislation or governmental proceedings, (3) delinquent payments under any Project Document or (4) strikes, slowdowns or work stoppages, in each case, to the extent such other matters are material to the Construction Budget, the Project Milestone Schedule or the ability of the Project to be completed or operated.

(vi)                              The Borrower agrees that representatives of the Borrower shall, at DOE’s request, meet with the Lender’s Engineer (and, if DOE requests, with representatives of DOE) on a mutually acceptable date (in person or telephonically) each month to discuss the most recent EPC Contractor Monthly Report and any other reports and information required to be provided pursuant to this Section 6.1(a).  The Borrower shall use its commercially reasonable efforts to provide DOE and/or the Lender’s Engineer with such additional information reasonably requested by DOE and/or the Lender’s Engineer based on their review of the Monthly Construction Reports.

(b)                                 Operation Period Reporting.

(i)                                     Plans and Budgets.  Promptly following approval by the Nuclear Managing Board, a copy of each of the following with respect to each Unit:

(1)                                 each Strategic Plan;

(2)                                 each Fuel Plan;

(3)                                 each Operation and Maintenance Budget (and the details of any deviations from the applicable Strategic Plan identified by the Operator to the Nuclear Managing Board);

(4)                                 each New Investment Budget (and the details of any deviations from the applicable Strategic Plan identified by the Operator to the Nuclear Managing Board); and

(5)                                 each Fuel Budget.

(ii)                                  Formal Routine Information; Reports.  Promptly following delivery to the Owners, a copy of each of the following with respect to each Unit:

(1)                                 Annual Energy Estimates.  Each written energy estimate projecting the estimated generation for such Unit during the succeeding five calendar years in accordance with Section 5.1.1.1 of the Nuclear Managing Board Agreement;

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(2)                                 Annual and Monthly Benchmark Performance Data.  (A) Annually, each comparison of the performance of such Unit relative to other similar units and plants in the United States and (B) monthly, each comparison of the performance of such Unit for the preceding month relative to the INPO performance index (both component and aggregate), in each case provided pursuant to Section 5.1.1.2 of the Nuclear Managing Board Agreement;

(3)                                 Monthly Plant Budget Reports.  Each report provided pursuant to Section 5.1.1.3 of the Nuclear Managing Board Agreement showing actual costs for operation and maintenance services, new investment services and fuel services at such Unit with comparisons to the respective budgets for such services; and

(4)                                 Bimonthly Strategic Plan Reports.  Each report provided pursuant to Section 5.1.1.4 of the Nuclear Managing Board Agreement showing actual performance for each Unit compared to goals and strategic objectives contained in the Strategic Plan for such Unit.

(iii)                               Formal Routine Information: INPO Evaluations and Assessments.  To the extent permitted under applicable proprietary information agreements with INPO, the Borrower shall make available for review by DOE or any Independent Consultant during visits to the Project Facility the evaluations and assessments of each Unit by INPO, promptly after the Operator has made such evaluations and assessments available for review by the Owners pursuant to Section 5.1.1.5 of the Nuclear Managing Board Agreement.

(iv)                              Formal Routine Information: Upon Request.  Upon request by DOE, a copy of any of the following:

(1)                                 Audit Reports.  Any financial or accounting reports concerning each Unit that are made available for review by the Owners pursuant to Section 5.1.1.7 of the Nuclear Managing Board Agreement, and that contain the results of audits by or for the Borrower, the Operator, Southern Company Services, Inc. or any Affiliate of Southern Company, for any Owner or its Affiliates, or by any regulatory agency;

(2)                                 Correspondence to and from NRC.  Any correspondence to or from the NRC concerning each Unit that is available to the Owners pursuant to Section 5.1.1.8 of the Nuclear Managing Board Agreement; and

(3)                                 Correspondence to and from Georgia Environmental Protection Division.  Any correspondence to or from the Georgia Environmental Protection Division concerning each Unit that is available to the Owners pursuant to Section 5.1.1.9 of the Nuclear Managing Board Agreement.

(v)                                 Formal Routine Information: Minutes of Meetings with the Nuclear Managing Board.  Promptly following approval by the Nuclear Managing Board in accordance with Section 2.7 of the Nuclear Managing Board Agreement, a copy of the minutes of each Nuclear Managing Board meeting that refer to matters concerning either or both Units.

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(vi)                              Formal Non-routine Information.

(1)                                 Changes to Operator’s Organizational Structure.  Promptly following delivery to the Owners pursuant to Section 5.1.2.2 of the Nuclear Managing Board Agreement, a copy of any material information reported by the Operator to the Owners regarding any change to the organizational structure of the Operator to the extent that such change has a material effect on the Operator’s personnel who are dedicated to each Unit; and

(2)                                 Changes in Key Plant Personnel.  Promptly following delivery to the Owners pursuant to Section 5.1.2.3 of the Nuclear Managing Board Agreement, a copy of any material information reported by the Operator to the Owners regarding the replacement of (A) the individual occupying the position of General Manager of each Unit, and the successors of such replacement, and (B) any officer of the Operator having responsibility for each Unit, and the successors of such replacement.

(c)                                  Quarterly Financial Statements and Reports.  Not later than sixty (60) days after the end of the first three fiscal quarters of each Fiscal Year, unaudited Financial Statements and reports of the Borrower as at the end of such quarterly period.

(d)                                 Annual Financial Statements and Reports.  Not later than one hundred twenty (120) days after the end of each Fiscal Year:

(i)                                     audited Financial Statements of the Borrower as at the end of such Fiscal Year, including the related report or reports of the Borrower’s Accountant; and

(ii)                                  a discussion and analysis by the management of the Borrower of the Borrower’s business and operations at the end of such Fiscal Year (which may be satisfied by delivery of the Management’s Discussion and Analysis of Financial Condition and Results of Operation filed with the Securities and Exchange Commission).

(e)                                  Certification by Financial Officer.  Each time Financial Statements of the Borrower are delivered pursuant to clauses (c) and (d)(i) hereof, such Financial Statements shall be certified by a Financial Officer of the Borrower as having been prepared in accordance with Accounting Requirements (except for the absence of footnotes and, in the case of unaudited Financial Statements, subject to changes resulting from audits and normal year-end adjustments and, in the case of audited Financial Statements, changes with which the Borrower’s Accountant shall concur) on a consistent basis and as fairly presenting in all material respects the financial condition of the Borrower as of the date thereof and the results of operations and cash flows of the Borrower for the periods presented.  Such certification shall also include a certification that (x) no Potential Default (other than any Potential Default that would become a Specified Event of Default), Event of Default (other than any Specified Event of Default), Potential Alternate Amortization Event or Alternate Amortization Event has occurred and is continuing and (y) to the Borrower’s Knowledge, no Potential Default that would become a Specified Event of Default and no Specified Event of Default has occurred and is continuing, or if such certification cannot be made, the nature and period of existence of such Event of Default, Potential Default, Potential

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Alternate Amortization Event or Alternate Amortization Event and what corrective action the Borrower has taken or proposes to take with respect thereto.

(f)                                   Borrower Base Case Projections.  So long as any amount of the DOE Guaranteed Loan remains outstanding, not later than one hundred twenty (120) days after the end of each Fiscal Year, updated Borrower Base Case Projections and a summary of the underlying assumptions and explanations thereto.

(g)                                  Notice to RUS.  As soon as practicable, copies of any written notice delivered by Borrower to RUS pursuant to Section 9.1 of the RUS Loan Contract.

(h)                                 Reporting Obligations; 5 Business Day Notices.  Promptly, but in any event within five (5) Business Days (except as provided in clause (vii) of this Section 6.1(h)), in each case after the Borrower obtains Knowledge thereof:

(i)                                     notice of any event that constitutes an Event of Default, Potential Default Potential Alternate Amortization Event, or Alternate Amortization Event specifying the nature thereof, together with a Borrower Certificate indicating any steps the Borrower, the Owners’ Agent or the Operator has taken or proposes to take to remedy the same;

(ii)                                  notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with respect to the foregoing, with respect to the Borrower, the Owners’ Agent, or the Operator or their participation in the Project, in each case that has had, or would reasonably be expected to have, a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed or operated;

(iii)                               notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with respect to the foregoing, with respect to the Borrower, the Owners’ Agent or the Operator or their participation in the Project, in each case that has resulted in, or the Borrower believes will result in, Public Inquiries;

(iv)                              notice and a copy of any of the following communications with respect to the Project received by the Borrower, the Owners’ Agent or the Operator from the NRC: (1) notice of a potential violation of severity level III or higher (or its equivalent level in subsequent versions of the NRC Enforcement Policy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight Policy); (3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR § 2.204; or (5) any other immediately effective, unilateral docket-specific non-routine communication requiring action by any licensee with respect to the Project except, in each case, to the extent the Borrower, the Owners’ Agent or the Operator is prohibited from doing so by Governmental Rule;

(v)                                 notice of:

(1)                                 any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority with respect to the Project received by the Borrower, the Owners’ Agent or the Operator relating to any actual or potential

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material non-compliance with its then-existing obligations under Environmental Laws; and

(2)                                 within thirty (30) days after notice is provided pursuant to clause (1) of this Section 6.1(h)(v), the Borrower shall provide to DOE a written description of any steps the Borrower,  the Owners’ Agent or the Operator is taking and proposes to take with respect to the matters described in such notice;

(vi)                              notice and a copy of any stop work order issued by the Borrower, the Owners’ Agent or the Operator with respect to any work on the Project (other than any suspension of work for convenience for which advance notice has been provided under Section 6.14 (Suspension of EPC Contract)); and

(vii)                           any item required to be delivered by the Borrower pursuant to Section 6.13(h)(ii) or Section 6.13(h)(iv), in each case subject to the time for delivery provided therein;

provided, however, that if the Borrower determines that any notice or other document required to be delivered pursuant to this Section 6.1(h) (other than any item required to be delivered pursuant to Section 6.13(h)(iv)) contains confidential trade secret or proprietary information of the EPC Contractor, then such notice or document shall be provided via the Restricted Data Site.

(i)                                     Governmental and Environmental Indemnity Claims and Reports.

(i)                                     Simultaneously with or promptly following any notification or report to the NRC with respect to (A) any event or condition required to be reported to the NRC within seven days or less under 10 CFR Part 73 (each such event, a “Safeguards Event”) or (B) any accident related to the Project having a material and adverse impact on the environment or on human health (including any accident resulting in the loss of life), notice of such Safeguards Event accident, notification or report, and, within ten (10) days thereafter, a copy of such notification or report and, to the extent not included in the notification or report to the NRC, a report describing such Safeguards Event or accident, the impact of such Safeguards Event or accident and the remedial efforts required and (as and when taken) implemented with respect thereto, provided that the Borrower shall not be required to disclose any information pursuant to this paragraph (h)(i) to the extent it is prohibited from doing so by Governmental Rule or to the extent such information otherwise is security-related sensitive information that is not ordinarily disclosed to the public under standard nuclear operating practices;

(ii)                                  within one hundred five (105) days after the close of each Fiscal Year, a report, satisfactory to DOE in its reasonable discretion, summarizing any notices received by the Borrower or, to the Borrower’s Knowledge, the Owners’ Agent or the Operator with respect to any material alleged or actual violations of Environmental Laws or Required Consents in connection with the Project over the preceding year, with sufficient information (as determined by DOE) to allow DOE to monitor the Project’s performance with respect to the contest of such alleged violations and the cure of such actual violations and its compliance with Environmental Laws and Required Consents and including a narrative summary of (A) the results of environmental monitoring or sampling activity and (B) any violations of Environmental Laws or Required Consents identified by any Governmental Authority and any remedial action taken with

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respect thereto and a description of any steps the Borrower, the Owners’ Agent or the Operator is taking and proposes to take with respect thereto; provided that the Borrower shall not be required to disclose information in such report to the extent it is prohibited from doing so by Governmental Rule.

(j)                                    Safety Audit Reports.  Within ten (10) days after any such report is submitted, a copy of any safety audit report with respect to the Project submitted by the Borrower (or on behalf of the Borrower) or the Operator to any Governmental Authority; provided that the Borrower shall not be required to disclose information in any such report to the extent it is prohibited from doing so by Governmental Rule.

(k)                                 Exchange Reports and Filings.  Promptly following transmission thereof, copies of all financial information, statutory audits, proxy materials and other information and periodic reports, if any, which the Borrower has delivered to the Securities and Exchange Commission or any successor regulatory authority.

(l)                                     Insurance Certificates.  Certificates of insurance (and, if requested by DOE, certified copies of any insurance policies) evidencing the Required Insurance in accordance with, and at the times required by, Schedule 6.3.

(m)                             Additional Monthly Reporting;  Project Documents, Required Consents, Casualty Damages, Authorized Officials.  No later than thirty (30) days following the end of each month, the Borrower shall provide DOE with:

(i)                                     an up-to-date list, to the Borrower’s Knowledge, of all Additional Project Documents, together with a copy of each Additional Project Document (which copy, in the case of any Fuel Supply Agreement or the BEACON Software Agreement (if any), shall be provided via the Restricted Data Site) entered into during such month (unless, in each case, there have been no changes since the end of the preceding month, in which case the Borrower shall state the same);

(ii)                                  an up-to-date list of all Borrower Required Consents and, to the Borrower’s Knowledge, all other Required Consents including an updated schedule reflecting the status of such Required Consents (unless there have been no changes during such month, in which case the Borrower shall state the same) and promptly following DOE’s request, any Borrower Required Consent and, to the extent made available to the Borrower, a copy of any other Required Consent in such list that has been obtained;

(iii)                               a list, (x) of (A) any termination, amendment or material waiver or breach of, or material notices and material correspondence with respect to, any Project Document executed by the Borrower or Borrower Required Consent during such month, and (B) promptly following DOE’s request, a copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing and (y) to the Borrower’s Knowledge, of (A) any termination, amendment or material waiver or breach of, or material notices and correspondence with respect to, any other Project Document (other than the EPC Contract, the Toshiba Guarantee, the ▇▇▇▇ Guarantee, the Software License, the Westinghouse Fuel Assembly Agreement, any other Fuel Supply Agreement or the BEACON Software Agreement (if any)) or

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Required Consent during such month, and (B) promptly following DOE’s request, a copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing;

(iv)                              a list of (A) any termination, amendment or material waiver or breach of, or material notices and material correspondence with respect to, the EPC Contract, the Toshiba Guarantee, the ▇▇▇▇ Guarantee, the Software License, the Westinghouse License Agreement, the Westinghouse Fuel Assembly Agreement, any other Fuel Supply Agreement or the BEACON Software Agreement (if any) during such month, and (B) promptly following DOE’s request, a copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing, which copy shall be provided via the Restricted Data Site;

(v)                                 notice of any material changes in any Required Insurance with respect to the Project, including any proposed material changes to the Required Insurance that have been accepted by the Borrower or the Owners’ Agent and the provider of such Required Insurance but that have yet to become effective;

(vi)                              notice of any challenges to or appeals of any of the COLs filed with any Governmental Authority, and notice of any additional conditions to any of the COLs imposed since the last report under this Section 6.1(m)(vi) that would reasonably be expected to have a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed or operated.

(vii)                           (A) notice of any correspondence to or from the NRC that identifies an event, condition or other matters that would reasonably be expected to have a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed or operated, and (B) promptly following DOE’s request, delivery of a copy of any of the foregoing notices or correspondence except to the extent that the Borrower is prohibited from doing so by Governmental Rule;

(viii)                        notice of any report filed by the Borrower, the Owners’ Agent or the Operator (or, if the Borrower receives a copy or notice thereof, by any Construction Contractor, Fuel Supply Contractor or Fuel Disposal Contractor) with any Governmental Authority other than the NRC that identifies an event, condition or other matters that would reasonably be expected to have a Material Adverse Effect or a material adverse effect on the ability of the Project to be completed or operated, and (B) promptly following DOE’s request, delivery of a copy of any such report except to the extent that the Borrower is prohibited from doing so by Governmental Rule;

(ix)                              notice of any material casualty damages or losses with respect to the Project during such month; and

(x)                                 notice of any change in the Authorized Officials of the Borrower, together with an amended incumbency certificate of the Borrower reflecting such change and including certified specimen signatures of any new Person so appointed and satisfactory evidence of the authority of such Person.

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(n)                                 Wholesale Power Contracts.  Promptly following its Knowledge thereof, the Borrower shall provide DOE notice of:

(i)                                     any Wholesale Power Contract becoming an Ineffective Wholesale Power Contract; and

(ii)                                  any pending or threatened legal, arbitration or governmental actions or proceedings that would reasonably be expected to result in any Wholesale Power Contract becoming an Ineffective Wholesale Power Contract.

(o)                                 Other Information.  As soon as reasonably available through the use of commercially reasonable efforts by the Borrower following such request, such other information or documents reasonably related to the Project or the Borrower’s obligations under the Loan Documents as DOE or any Independent Consultant may reasonably request.

(p)                                 Information Made Available.

(i)                                     (A) The information that will be made available to DOE from and after the date hereof is as set forth in the Loan Documents, and (B) such information will be made publicly available to the extent required by applicable federal law; and

(ii)                                  The Borrower acknowledges that (A) prior to the date hereof it made available to DOE information (including correspondence, books, documents, papers and records) in connection with the pre-application, the Application, the negotiation and execution of the Conditional Commitment and the negotiation and execution of this Agreement and the other Loan Documents, and (B) such information will be made publicly available to the extent required by applicable federal law.

(q)                                 Restricted Data Site.

(i)                                     At all times, the Borrower shall maintain the Restricted Data Site and ensure that complete, unredacted electronic copies of the EPC Contract, the Toshiba Guarantee, the ▇▇▇▇ Guarantee, the Software License, the Westinghouse Fuel Assembly Agreement, any other Fuel Supply Agreement, the Westinghouse License Agreement, the BEACON Software Agreement (if any), all EPC Contractor Monthly Reports required to be made available on the Restricted Data Site pursuant to Section 6.1(a)(ii), all Project Management Board Monthly Meeting Materials that are required to be made available via the Restricted Data Site pursuant to Section 6.1(a)(iii), all Southern Nuclear Monthly Reports that are required to be made available via the Restricted Data Site pursuant to Section 6.1(a)(iv), each Project Milestone Schedule that is required to be made available on the Restricted Data Site pursuant to Section 6.1(a)(v)(2) and all notices and other documents that are required to be made available via the Restricted Data Site pursuant to Section 4.1.4, Section 4.2.2, Section 6.1(h) or Section 6.1(m)(i) or (iv), are available on the Restricted Data Site for review (but not downloading or printing) from time to time by (A) employees of DOE, and (B) attorneys with DOE’s outside legal counsel, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, and nuclear regulatory specialist attorneys with DOE’s outside legal counsel for nuclear regulatory matters, Hunton & ▇▇▇▇▇▇▇▇ LLP, in each case on a need to know and use basis solely for the purpose of monitoring the Project in connection with their work in relation to

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the DOE Guaranteed Loans of the Borrower (and not with respect to any DOE guaranteed loans not related to the Project); provided, that access by attorneys described in clause (B) of this Section 6.1(q)(i) shall be limited to the EPC Contract, the Toshiba Guarantee, the ▇▇▇▇ Guarantee, the Software License, the Westinghouse Fuel Assembly Agreement, any other Fuel Supply Agreement, the Westinghouse License Agreement, the BEACON Software Agreement (if any) and any notices and other documents required to be provided via the Restricted Data Site pursuant to Section 4.1.4, Section 4.2.2, Section 6.1(h) or Section 6.1(m)(i) or (iv), and provided further, that such access shall be subject to each such law firm and each such individual attorney being granted such access, executing and delivering to the Borrower a nondisclosure agreement in the form attached hereto as Exhibit L-1.  In addition, access to the Restricted Data Site shall be further conditioned on each such firm acting as outside legal counsel to DOE, including each employee of such firm or company, not being a “competitor of Westinghouse” or a “competitor of Stone & ▇▇▇▇▇▇▇” (as each such term is defined in Exhibit L-3).  Notwithstanding the foregoing, any such reports or other documents to be provided on the Restricted Data Site, to the extent such documents contain sensitive or protected information of the EPC Contractor’s employees or other personnel working on the Project, may have such sensitive or protected information redacted.

(ii)                                  With respect to any report or other document required to be made available on the Restricted Data Site, the Borrower shall also make such report or other document available in its offices for review by employees of the Lender’s Engineer, on a need to know and use basis solely for the purpose of monitoring the Project and the DOE Guaranteed Loans of Borrower (and not with respect to any DOE guaranteed loans not related to the Project); provided, that such access shall be subject to the Lender’s Engineer and each employee of the Lender’s Engineer being granted such access, executing and delivering to the Borrower a nondisclosure agreement in the form attached hereto as Exhibit L-2.  In addition, access to the Restricted Data Site shall be further conditioned on such company acting as Lender’s Engineer, including each employee of such company, not being a “competitor of Westinghouse” or a “competitor of Stone & ▇▇▇▇▇▇▇” (as each such term is defined in Exhibit L-3), provided that such condition shall not apply to MPR Associates, Inc. or any of its employees, notwithstanding that it may be a “competitor of Westinghouse” or a “competitor of Stone & ▇▇▇▇▇▇▇”.  Notwithstanding the foregoing, to the extent any such reports or other documents to be made available in the Borrower’s office for review by the Lender’s Engineer contain:

(A)                               Protected Information, such reports or other documents may have such Protected Information redacted; provided that, notwithstanding any such redaction, the Monthly Construction Reports made available for review by the Lender’s Engineer shall contain a level of substantive information with respect to the Project that is substantially consistent with the level of substantive information contained in such Monthly Construction Reports delivered or made available to the Lender’s Engineer prior to the Guarantee Issuance Date; provided further, that in the event DOE notifies the Borrower that DOE requires the Lender’s Engineer to review any such redacted information on the grounds that disclosure of such information to Lender’s Engineer is necessary in connection with the administration, preservation, protection or enforcement of any of the Loan Documents, or of any Secured Party’s rights thereunder or in connection

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therewith, OPC agrees that it will seek disclosure of such redacted information from either or both EPC Contractors (as applicable), in the same manner and based on the same principles as would apply in connection with a request by the Owners to the EPC Contractor for disclosure of Contractor Non-Disclosable Information (as defined in the EPC Contract) pursuant to Section 19.3(e) of the EPC Contract.  To the extent that the Borrower obtains permission from either or both EPC Contractors (as applicable) to disclose such redacted information through its exercise of the procedures set forth in Section 19.3(e) of the EPC Contract, the redacted information shall be made available by the Borrower to the Lender’s Engineer in the same manner and under the same conditions as the same redacted information has been made available by either or both EPC Contractors (as applicable) to the Borrower in accordance with the procedures set forth in Section 19.3(e) of the EPC Contract; and

(B)                               sensitive or protected information of the EPC Contractor’s employees or other personnel working on the Project, such reports or other documents may have such sensitive or protected information redacted.

(iii)                               Notwithstanding anything in Section 4.1.2(b), 4.1.4, 4.2.2, 6.1(a)(ii), (iii) (iv) or (v)(2), 6.1(h) or 6.1(m)(i) or (iv) to the contrary, at DOE’s request:

(1)                                 the Borrower shall grant access to the Restricted Data Site on a need to know basis to any of the following Persons identified by DOE to the Borrower in writing (other than any such Person, including the employees and advisors of such Person, that is a “competitor of Westinghouse” or a “competitor of Stone & ▇▇▇▇▇▇▇” (as each such term is defined in Exhibit L-3)):

(A)                               following notice from DOE to the Borrower that an Event of Default has occurred and is continuing, any potential transferee of the Borrower’s Undivided Interest;

(B)                               following receipt by DOE of a “Project Termination Notice” (as defined in the Owners Direct Agreement), any potential transferee of (x) the rights and obligations of any “Non-Continuing Owner” (as defined in the Owners Direct Agreement) under the EPC Contract or (y) the “Ownership Interest” (as defined in the Ownership Agreement) of any Non-Continuing Owner; or

(C)                               following any termination of the EPC Contract, any potential transferee of DOE’s rights under the Westinghouse Letter Agreement; and

provided, that, such access shall be conditioned upon: (i) DOE providing notice to the Borrower of the identity of any potential transferee(s) not less than five Business Days prior to providing access to such potential transferee(s) such that the Borrower may notify the EPC Contractor and object to providing

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information to such potential transferee(s) if provision of information to such potential transferee(s) would be in violation of this Section 6.1(q)(ii); and (ii) the execution and delivery by such Person, including each employee or advisor of such Person granted such access on a need to know basis of a nondisclosure agreement in a form acceptable to the EPC Contractor, with such acceptance not to be unreasonably withheld;

(2)                                 the Borrower shall promptly provide to DOE complete, unredacted hard copies of the EPC Contract, the Westinghouse Fuel Assembly Agreement, the Westinghouse License Agreement, the Software License, the BEACON Software Agreement (if any), any of the EPC Contractor Monthly Reports, or any of the Project Management Board Monthly Meeting Materials and Southern Nuclear Monthly Reports described in clause (i) of this Section 6.1(q), (i) following receipt of notice from DOE that it intends to exercise any of its rights and remedies in connection with an Event of Default that has occurred and is continuing, (ii) following delivery of a Project Termination Notice, (iii) as DOE may require in order to comply with any Governmental Rule or Governmental Judgment (including any subpoena), or (iv) as required to respond to, defend or evaluate any action, claim, suit, litigation, proceeding or governmental investigation or inquiry to which DOE is a party.

6.2.                       Books, Records and Inspections; Accounting and Auditing Matters.

(a)                                 The Borrower shall keep complete and accurate books and records of its transactions in accordance with good accounting practices on the basis of Accounting Requirements (including the establishment and maintenance of appropriate reserves).  In accordance with the Applicable Regulations, the Borrower shall keep such books and records concerning the Borrower and the Borrower’s Undivided Interest as are necessary to facilitate an effective and accurate audit and performance evaluation of the Borrower and the Borrower’s Undivided Interest.

(b)                                 Each set of Financial Statements of the Borrower delivered hereunder shall be prepared in accordance with Accounting Requirements consistently applied except to the extent that there have been any changes to such accounting principles or the application thereof noted in such Financial Statements and all financial records of the Borrower shall be maintained at the principal executive office of the Borrower.

(c)                                  The Borrower shall consult with and cooperate with DOE with regards to DOE’s monitoring of the Borrower, the Borrower’s Undivided Interest and the Project and audit, examination and inspection of the books and records of the Borrower, the Borrower’s Undivided Interest and the Project as provided in the Applicable Regulations, and in furtherance thereof (i) shall permit officers and designated representatives of DOE, its agents, the Comptroller General and the Independent Consultants to visit and inspect the Project Facility and any ancillary facilities upon reasonable notice and at reasonable times during normal business hours, subject to the rules and regulations of the NRC and to the reasonable direction of senior plant management, (ii) shall provide to officers and designated representatives of DOE, its agents, the

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Comptroller General and the Independent Consultants access to any pertinent books, documents, papers and records of the Borrower, including those with respect to the Borrower’s Undivided Interest and, to the extent in the possession of the Borrower or reasonably obtainable by the Borrower , with respect to the Project, for the purpose of audit, examination, inspection and monitoring upon reasonable notice and at reasonable times during normal business hours, to examine and discuss the Project and the affairs, finances and accounts of the Borrower with the representatives of the Borrower, (iii) shall afford proper facilities for such inspection and shall make copies (at the Borrower’s expense) of any records that are subject to such inspection, and (iv) shall require the Owners’ Agent and the Operator to make available to DOE, its agents, the Comptroller General and the Independent Consultants the same rights of inspection and access to its books and records that the Owners’ Agent or the Operator makes available to the Owners; provided that the Owners’ Agent and the Operator shall not be required to disclose the information in such books and records to the extent the Owners’ Agent or the Operator, as applicable, is prohibited from doing so by Governmental Rule.

(d)                                 Borrower shall appoint and maintain a firm of independent public accountants of recognized national or, if Borrower first complies with Section 7.10 (Notice to DOE; Objection of DOE), regional standing in the U.S. as accountants for the Borrower.

(e)                                  The Borrower shall retain all records relating to expenditures with respect to which Advances were made until the later of (x) the date that is five (5) years after the Advance was made with respect to such expenditure and (y) Commercial Operation of the Second Unit.

(f)                                   The Borrower shall, upon the request of DOE, (i) exercise its right pursuant to Section 5.6 (Management Audit; Access to Records) of the Ownership Agreement to conduct management audits of Owners’ Agent’s performance in respect of the Project or (ii) exercise its right pursuant to Section 7.8 (Cost Audits) of the Ownership Agreement to conduct audits of costs charged to and paid by the Borrower pursuant to the Ownership Agreement, provided that the references to the Sections of the Ownership Agreement contained in this Section 6.2(f) refer to such sections without regard to any amendments thereto (other than any amendment not prohibited under Section 7.7(c) (Limitations on Certain Types of Contracts - Impairment of Consent Rights under the Project Documents)) after the date of this Agreement.

6.3.                       Maintenance of Insurance.

The Borrower shall keep the Borrower’s Undivided Interest insured in accordance with normal nuclear industry practices (provided that such insurance coverage is available on commercially reasonable terms, conditions and price) and in accordance with the terms and provisions described on Schedule 6.3.  The Borrower shall obtain and maintain Required Insurance and shall pursue any contractual remedies to cause other Persons required to provide Required Insurance pursuant to their respective Project Documents, including any Construction Contractor and the Operator, to obtain and maintain such Required Insurance, or alternate coverage as provided for on Schedule 6.3 as required pursuant to their respective Project Documents, as the case may be.

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6.4.                       Maintenance of Existence.

The Borrower shall maintain and preserve all of its material licenses, rights, privileges and franchises necessary for the maintenance of its corporate existence (subject to permitted mergers and sales of substantially all assets not prohibited under Section 7.2 (Mergers, Consolidations and Asset Transfers)), and comply, in all material respects, with its Organizational Documents.

6.5.                       Tax, Duties, Expenses, and Liabilities.

The Borrower shall pay or arrange for the payment before they become overdue of all present and future material taxes (including stamp taxes), duties, fees, Periodic Expenses, or other charges payable on or in connection with the execution, issue, delivery, registration, or notarization, or for the legality, validity, or enforceability, of this Agreement, any other Transaction Documents and any other documents related to this Agreement (other than those taxes that it is contesting in good faith and by appropriate proceedings for which reserves have been established to the extent required by Accounting Requirements).

6.6.                       Intentionally Omitted

6.7.                       Construction and Operation of Project.

The Borrower shall cause the Project to be constructed and operated, in each case in accordance with the Required Consents (including the COLs), and any Governmental Rules and other directions or instructions issued or provided by the NRC with respect to the Project unless, with respect to any noncompliance with any such Required Consents, Governmental Rules and other directions or instructions, the Owners’ Agent or the Operator is diligently working to cure the noncompliance through appropriate regulatory procedures or to obtain a necessary amendment to such Required Consent.

6.8.                       Use of Proceeds.

The Borrower shall use the proceeds of all Advances in accordance with the terms and conditions of all applicable Loan Documents.

6.9.                       Title to Collateral.

The Borrower shall preserve and maintain its ownership of the Collateral, and full power and lawful authority to alienate, remise, release, convey, assign, transfer, mortgage, pledge, set over and confirm the Collateral as provided in the Security Documents, subject only to the Liens of the Security Documents and Permitted Liens and any Disposition not prohibited under Section 7.2 (Mergers, Consolidations and Asset Transfers).

6.10.                Creation and Perfection of Security Interests; Additional Documents; Filings and Recordings.

(a)                                 The Borrower shall execute and deliver, from time to time as reasonably requested DOE or the Trustee at the Borrower’s expense, such other documents and instruments as shall be necessary or advisable or that DOE or the Trustee may reasonably request in

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connection with the rights and remedies of DOE and the Trustee granted or provided for by the Loan Documents, and to consummate the transactions contemplated therein.

(b)                                 If the Borrower shall at any time acquire any interest in any Collateral related to the Project that is not perfected by the Security Documents or the Lien created thereby, the Borrower shall promptly notify DOE of such interest and, to the extent requested by DOE, shall promptly (i) execute, deliver and record a supplement to the Security Documents, satisfactory in form and substance to DOE, and (ii) establish and perfect a first priority (subject to Permitted Liens) Lien of the Trustee (for the benefit of the holders of Outstanding Indenture Obligations, including the Secured Parties) in each such interest.

(c)                                  If the Borrower shall at any time execute any Additional Project Document, the Borrower shall promptly notify DOE of such Additional Project Document and, to the extent requested by DOE, shall use its reasonable best efforts to promptly deliver to the Secured Parties a Direct Agreement in substantially the form attached hereto as Exhibit K (Form of Additional Project Document Consent to Assignment ) with respect to such Additional Project Document; provided however, that if any such Additional Project Document creates, terminates, replaces or otherwise modifies any IP Interest (other than any Additional Project Document for the supply of fuel assemblies and/or related required software for the Project), the Borrower shall promptly deliver to the Secured Parties a Direct Agreement in substantially the form attached hereto as Exhibit K (Form of Additional Project Document Consent to Assignment ) with respect to such Additional Project Document, except where the Borrower’s failure to own or hold all or any part of such IP Interest would not reasonably be expected to result in a material adverse effect on the ability of the Project to be completed or operated, or to be conveyed or disposed of.

(d)                                 Without limiting the generality of the foregoing, as soon as practicable after the date of Commercial Operation with respect to each Unit, the Borrower shall (i) provide DOE with a copy of all descriptions provided to the Owners pursuant to Section 4.9(c) of the Ownership Agreement of the Additional Unit Property(ies) (as defined in the Ownership Agreement) setting forth in reasonable detail the facilities, equipment and other property and rights then constituting such applicable Additional Unit Property, including all property (including a metes and bounds description of the Identified Sites (as defined in the Ownership Agreement)), real or personal, and rights therein jointly paid for under the Ownership Agreement and (ii) if requested by DOE, enter into any amendment to the Security Documents, including a Supplemental Indenture, necessary for such Additional Unit Property to constitute part of the “Trust Estate” under the Mortgage Indenture.

(e)                                  Upon the written request of DOE, to the extent the Borrower owns any Additional Unit Properties consisting of nuclear fuel located outside the State of Georgia as to which a security interest can be created under the Uniform Commercial Code and perfected solely by the filing of a financing statement under the Uniform Commercial Code, the Borrower shall cause such nuclear fuel to be subjected to the Lien of the Mortgage Indenture.

6.11.                Acceptance, Startup and Testing.

(a)                                                                                 As soon as available, the Borrower shall provide to DOE a schedule setting forth the anticipated dates of startup and testing of the Project Facility, or any part

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thereof, pursuant to the Project Documents, and, from time to time promptly following any changes to the information in such schedule, shall provide to DOE an updated schedule reflecting such changes.

(b)                                 The Borrower shall provide, or cause to be provided, prior notice to DOE and the Lender’s Engineer that is reasonable under the circumstances of startup and testing of the Project Facility pursuant to the Project Documents, and shall allow the Lender’s Engineer or DOE or both to attend and witness such startup and testing, in all cases subject to the requirements of the NRC and to the reasonable direction of senior plant management.

(c)                                  At the request of DOE, the Borrower shall provide DOE and the Lender’s Engineer with access to and copies of any data or reports received by the Borrower in connection with any of the startup and other testing of the Project Facility provided that the Borrower shall not be required to disclose the information in such data or reports to the extent it is expressly prohibited from doing so by Governmental Rule.

6.12.                Technology.

(a)                                 The Borrower shall not take any action that would in any way prevent it, the Owners’ Agent or the Operator from exercising the IP Interests that have vested to the Borrower, the Owners’ Agent or the Operator under the IP Agreements, or that would otherwise materially conflict with or adversely affect the IP Interests that have vested to the Borrower, the Owners’ Agent or the Operator under the IP Agreements.  With respect to all other IP Interests that have been granted, but have not yet vested to the Borrower, the Owners’ Agent or the Operator under the IP Agreements, the Borrower shall use reasonable best efforts to not take any action that would in any way prevent it, the Owners’ Agent or the Operator from exercising such IP Interests or that would otherwise materially conflict with or adversely affect such IP Interests.

(b)                                 The Borrower shall take all commercially reasonable actions necessary to maintain and protect the IP Interests granted to it under the IP Agreements, including (i) protecting the secrecy and confidentiality of all confidential information and trade secrets having material value by establishing and taking commercially reasonable actions to enforce a policy requiring all current and former employees, consultants, licensees, vendors and contractors who will be provided access to such Technology and Intellectual Property Rights to execute appropriate confidentiality agreements; and (ii) taking all other commercially reasonable actions necessary to maintain the secrecy of all Technology and Intellectual Property Rights that are trade secrets having a material value.

(c)                                  If the Borrower obtains Knowledge of any breach or violation of any of the terms or conditions of the IP Agreements by a third Person, and such breach or violation is reasonably likely to prevent the Borrower, the Owners’ Agent or the Operator from exercising any IP Interest granted to any of them under the IP Agreements, or that would otherwise materially conflict with or adversely affect any IP Interest granted to any of them under the IP Agreements, then the Borrower shall promptly take or request the Owners’ Agent or the Operator to take, such commercially reasonable actions under the IP Agreements to protect the rights granted to the Borrower, the Owners’ Agent or the Operator, including, for example, suing for an injunction against such violation or breach and posting any bond in conjunction therewith.

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(d)                                 None of the provisions of this Section 6.10 shall in any way prohibit the Borrower or the Owners’ Agent from terminating the EPC Contract and the related IP Agreements in accordance with the requirements of the Owners Direct Agreement.

6.13.                Compliance with Certain U.S. Government Requirements.

(a)                                 Lobbying Requirements.  The Borrower shall comply with all requirements of 31 U.S.C. §1352, including, if any funds have been paid or will be paid to any Person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress (as defined for purposes of 31 U.S.C. §1352), an officer or employee of Congress, or an employee of a Member of Congress in connection with the DOE Guaranteed Loan, the Borrower shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

(b)                                 Intentionally Omitted.

(c)                                  Program Requirements.  The Borrower shall comply with all other Program Requirements.

(d)                                 Prohibited Persons.

(i)                                     The Borrower shall provide prompt written notice (including a brief description) to DOE if, at any time, it obtains Knowledge that the representations made with respect to Prohibited Persons (including the Debarment Regulations) in any of the Loan Documents were erroneous when made.

(ii)                                  If the Borrower, any Borrower Controlling Person or any of their respective Principal Persons becomes a Prohibited Person, or, to the Borrower’s Knowledge, any other Owner, the Operator, the EPC Contractor, Chicago Bridge & Iron Company N.V., Toshiba Corporation, The ▇▇▇▇ Group, Inc., or any of their respective ultimate parent companies, or the successors or assigns of any such Person becomes (whether through a transfer or otherwise) a Prohibited Person identified in clauses (i) or (ii) of the definition of Prohibited Person, the Borrower shall, within thirty (30) days of obtaining Knowledge that such Person has become a Prohibited Person, engage and continue to engage in good faith discussions with DOE regarding (A) the removal or replacement of such Person or, (B) if such removal or replacement is not reasonably feasible, the implementation of other mitigation measures.

(e)                                  Foreign Ownership.  The Borrower shall and shall cause the Owners’ Agent and the Operator to, comply at all times with the requirements of the NRC with respect to foreign ownership, control and domination of each of the Borrower and the Operator.

(f)                                   Foreign Asset Control Regulations.  The Borrower shall ensure that the making of any Advances and the use of the proceeds thereof will not violate any Foreign Asset Control Regulations.

(g)                                  Use of Collateral.  None of the Collateral consisting of the Project shall be traded or used by a Prohibited Person or by a Person organized in a Prohibited Jurisdiction.

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(h)                                 ▇▇▇▇▇-▇▇▇▇▇ Act.

(i)                                     In accordance with Section 1702(k) of Title XVII, beginning on the Guarantee Issuance Date, all laborers and mechanics employed by contractors and subcontractors in the performance of construction work financed in whole or in part by the DOE Guaranteed Loan shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with the ▇▇▇▇▇-▇▇▇▇▇ Act, including but not limited to those wages set forth in Schedule 6.13(h)(i).  The contract clauses set forth in Exhibit G shall be incorporated into all ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contracts.

(ii)                                  The Borrower shall systematically review (by itself or through its agent) the certified payrolls that are required, pursuant to subparagraph (a)(3)(i) of Exhibit G, to be maintained by all project contractors and subcontractors that employ laborers and mechanics in the performance of construction work financed in whole or in part by the DOE Guaranteed Loan.  The Borrower shall notify DOE in writing within 10 Business Days after it obtains DBA Knowledge of: (a) receipt by the Borrower of any complaint alleging non-compliance with the ▇▇▇▇▇-▇▇▇▇▇ Act or (b) any non-compliance with the ▇▇▇▇▇-▇▇▇▇▇ Act.  In such instances, the Borrower shall forward to DOE (A) a copy of all written complaints or a written summary of any oral complaint or non-compliant incident, (B) a summary of the investigation of the Borrower (or its agent) into such complaint or such incident, (C) a summary of the resolution (or proposed resolution) of the complaint or incident, (D) the relevant certified payrolls and (E) any other information reasonably requested by DOE regarding the complaint or incident.  Certified payrolls maintained, or caused to be maintained, by the Borrower shall be considered federal government records for the purposes of the Freedom of Information Act, 42 U.S.C. § 552.

(iii)                               If the Borrower , the Owners’ Agent, or any Affiliate of the Borrower, or Owners’ Agent, intends to: (A) enter into a ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contract after the Guarantee Issuance Date; (B) materially change the scope of work of any ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contract; or (C) exercise any option to extend the term of a ▇▇▇▇▇-▇▇▇▇▇ Act Covered Contract to perform work for a period of time for which it was not obligated under the terms of the original contract (subclauses (A), (B) and (C) collectively, “▇▇▇▇▇-▇▇▇▇▇ Actions”), the Borrower shall provide DOE: (1) a statement of the work for any DBA Contract Party that will perform construction, alteration, or repair of a building or work financed in whole or in part by the DOE Guaranteed Loan; (2) notice of intent to exercise any option described in subclause (C) above; and (3) any other information requested by DOE relating to such ▇▇▇▇▇-▇▇▇▇▇ Action.  This information shall be provided no less than ten (10) Business Days prior to the occurrence of such ▇▇▇▇▇-▇▇▇▇▇ Action.

(iv)                              The Borrower shall update the ▇▇▇▇▇-▇▇▇▇▇ and Related Acts Compliance Program as necessary and appropriate so that such program (A) remains designed to (1) ensure material compliance with all ▇▇▇▇▇-▇▇▇▇▇ Requirements and (2) provide reasonable assurance that information relating to compliance with the ▇▇▇▇▇-▇▇▇▇▇ Requirements is made known to the such Person or Persons who have principal oversight responsibility with respect to the Borrower’s compliance with the ▇▇▇▇▇-▇▇▇▇▇ Requirements and (B) identifies all of the Persons referred to in subclause (A)(2) above by name and position.  The Borrower shall provide notice to DOE of each update to the ▇▇▇▇▇-▇▇▇▇▇ and Related Acts Compliance Program and a copy of such update not later than ten (10) Business Days after the effective date of such update.

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(v)                                 The Borrower shall implement and enforce the ▇▇▇▇▇-▇▇▇▇▇ and Related Acts Compliance Program.

(i)                                     Corrupt Practices Laws.

(i)                                     The Borrower and its respective officers, directors, employees and agents acting in such capacities shall comply with all applicable Corrupt Practices Laws.

(ii)                                  The internal management and accounting practices and controls of the Borrower shall be designed and maintained to provide reasonable assurance of compliance with all Corrupt Practices Laws, the Patriot Act, the Anti-Terrorism Order and the rules and regulations of OFAC. The disclosure controls and procedures of the Borrower shall be designed and maintained to provide reasonable assurance that material information regarding the Borrower’s compliance with laws (including Corrupt Practices Laws, the Patriot Act, the Anti-Terrorism Order and the rules and regulations of OFAC) is made known to Senior Management Persons of the Borrower.

(iii)                               If the Borrower or its officers, directors, employees or agents acting in such capacities fails to comply with the requirements of clause (i) of this Section 6.11(i), the Borrower shall, within thirty (30) days of obtaining Knowledge that such Person has so failed to comply, engage and continue to engage in good faith discussions with DOE regarding (A) the removal or replacement of such Person or, (B) if such removal or replacement is not reasonably feasible, the implementation of other mitigation measures.

(j)                                    OFAC.  If the Borrower, any Borrower Controlling Person or any of their respective Principal Persons, employees or agents acting in such capacities, or, to the Borrower’s Knowledge, any other Owner, the Operator, the EPC Contractor, Chicago Bridge & Iron Company N.V., Toshiba Corporation, The ▇▇▇▇ Group, Inc., or any of their respective ultimate parent companies, or the successors or assigns of any such Person, fails to comply with any or all applicable orders, rules and regulations of OFAC in obtaining any consents, licenses, approvals, authorizations, rights, or privileges with respect to the Project or, otherwise, in conducting activities in connection with the Project, the Borrower shall, within thirty (30) days of obtaining Knowledge that such Person has so failed to comply, engage and continue to engage in good faith discussions with DOE regarding (i) the removal or replacement of such Person or, (ii) if such removal or replacement is not reasonably feasible, the implementation of other mitigation measures.

(k)                                 Anti-Terrorism Order.  If the Borrower, any Borrower Controlling Person or any of their respective Principal Persons, or, to the Borrower’s Knowledge, any other Owner, the Operator, the EPC Contractor, Chicago Bridge & Iron Company N.V., Toshiba Corporation, The ▇▇▇▇ Group, Inc., or any of their respective ultimate parent companies, or the successors or assigns of any such Person, fails to comply with the Anti-Terrorism Order, the Borrower shall, within thirty (30) days of obtaining Knowledge that such Person has so failed to comply, engage and continue to engage in good faith discussions with DOE regarding (i) the removal or replacement of such Person or, (ii) if such removal or replacement is not reasonably feasible, the implementation of other mitigation measures.

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6.14.                Suspension of EPC Contract.

The Borrower shall provide forty-five (45) days’ (or such shorter period satisfactory to DOE) prior notice to DOE in advance of exercising the Owners’ Agent or the Owners’ right under the EPC Contract to suspend all work under the EPC Contract for the Owners’ convenience, provided, however, that only concurrent notice of any such action to suspend all work under the EPC Contract shall be required where such action is necessary due to an emergency or otherwise is necessary in order to comply with requirements of the NRC, the Georgia PSC or any other Governmental Authority.

6.15.                Intentionally Omitted.

6.16.                Rates and Coverage Ratios.

(a)                                 Routine Reporting of Coverage Ratios.  In connection with the furnishing of its annual report to DOE pursuant to Section 6.1(d) (Information Covenants - Annual Financial Statements and Reports), the Borrower shall report to DOE, in such written format as DOE may require, the Margins for Interest level which was achieved during such Fiscal Year.

(b)                                 Corrective Plans.

(i)                                     Within thirty (30) days after (A) sending a notice to DOE under Section 6.16(a) above that shows the Margins for Interest level specified by Section 13.14 of the Mortgage Indenture was not achieved for any Fiscal Year or (B) being notified by DOE that the Margins for Interest level specified by Section 13.14 of the Mortgage Indenture was not achieved for any Fiscal Year, the Borrower in consultation with DOE shall provide a written plan reasonably satisfactory to DOE setting forth the actions that shall be taken to achieve such specified Margins for Interest level on a timely basis.

(ii)                                  Upon delivering any written plan to RUS pursuant to Section 5.5(b) of the RUS Loan Contract, the Borrower shall simultaneously deliver a copy of such written plan to DOE.

6.17.                Mortgage Indenture Affirmative Covenants.

The Borrower shall comply (at its own expense) with the terms and conditions set forth in Sections 13.5, 13.8 and 13.14 of the Mortgage Indenture.

ARTICLE 7
NEGATIVE COVENANTS

The Borrower covenants and agrees that until the Debt Termination Date, unless DOE waives compliance in writing:

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7.1.                       Liens.

The Borrower shall not, and shall not agree to, create, assume or otherwise permit to exist any Lien upon the Borrower’s Undivided Interest, or any of the other Collateral, other than the Lien of the Security Documents and Permitted Liens.

7.2.                       Mergers, Consolidations and Asset Transfers.

The Borrower shall not, and shall not agree to:

(a)                                 without first complying with the requirements of Section 7.10 (Notice to DOE; Objection of DOE), consolidate or merge with any other Person or convey or otherwise transfer the Trust Estate under the Mortgage Indenture substantially as an entirety;

(b)                                 liquidate, wind up or dissolve itself or otherwise commence any Insolvency Proceeding in respect of itself or file any petition or pass a resolution seeking the same;

(c)                                  without first complying with the requirements of Section 7.10 (Notice to DOE; Objection of DOE), convey, sell, lease or sublease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in any one transaction or series of transactions (each a “Disposition”), all or any part of the Project if such Disposition requires the Borrower’s consent under the Project Documents;

(d)                                 without first complying with the requirements of Section 7.10 (Notice to DOE; Objection of DOE), any Disposition of all or any part of the Borrower’s Undivided Interest other than any Disposition of all or any part of the Borrower’s Undivided Interest after the date of Commercial Operation of the Second Unit in compliance with the terms of the Mortgage Indenture and that has been approved by the NRC; or

(e)                                  without first complying with the requirements of Section 7.10 (Notice to DOE; Objection of DOE), request the release of capital assets (other than the Borrower’s Undivided Interest) that constitute utility plant from the lien of the Mortgage Indenture pursuant to Section 5.2 of the Mortgage Indenture if ((A) taking into account any substantially contemporaneous or otherwise related purchase, construction, lease or other acquisition of similar property that is subject to the lien of the Mortgage Indenture) there will result a decrease in the generating capacity of the System or any generating plant by more than 5% and (B) the aggregate net book value of all such assets released from the lien of the Mortgage Indenture (i) in the current fiscal year of the Borrower is greater than 5% of the Borrower’s Total Utility Plant or (ii) in the current and two immediately preceding fiscal years of the Borrower is greater than 10% of the Borrower’s Total Utility Plant.

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7.3.                       Affiliate Transactions.

The Borrower shall not, directly or indirectly, enter into any transaction or series of related transactions with any Affiliate, other than on an arm’s-length basis, except for at cost services provided to or received from Affiliates consistent with past practices and in accordance with applicable Governmental Rules.

7.4.                       Commissions.

The Borrower shall not, without first complying with the requirements of Section 7.10 (Notice to DOE; Objection of DOE), pay:

(a)                                 any commission or fee to any Affiliate of the Borrower for furnishing guarantees, counter-guarantees or similar credit support for any obligations undertaken in connection with the Project (other than as set forth in paragraph (b) below); or

(b)                                 any fee to any Affiliate of the Borrower with respect to or in connection with the development, construction, financing or operation of the Project, including salaries, bonuses, commissions, management fees, consulting fees, and technical assistance fees other than as specifically provided for in the Project Documents.

7.5.                       Use of Non-AP1000 Reactor Technology.

The Borrower shall not construct, or permit to be constructed, any nuclear reactor for the Project other than Westinghouse AP1000 standard nuclear reactor plant design, certified at 76 Fed. Reg. 82,079 (Dec. 30, 2011) (codified at 10 C.F.R. Part 52 Appendix D), and any amendments thereto, as described in each COL for the Project, including any amendments to the COLs or exemptions issued by NRC approving modifications to such certified standard design.

7.6.                       Replacement or Removal of the Operator or Owners’ Agent.

The Borrower shall not agree to replace or remove the Operator or the Owners’ Agent under the Owner Documents, other than with the prior written consent of DOE and upon receipt of any necessary approvals from the NRC.

7.7.                       Limitations on Certain Types of Contracts.

(a)                                 Amendment and Release of Obligations under Certain Contracts.  The Borrower shall not, without first complying with the requirements of Section 7.10 (Notice to DOE; Objection of DOE), enter into or otherwise agree to any amendment or modification to any of the Wholesale Power Contracts, including the Schedules thereto and the form of Withdrawal Agreement incorporated therein, except that the Borrower may amend or modify any of (A) Exhibit 1 to “Rate Schedule A” thereto, (B) the Exhibits to Appendix 1 to “Rate Schedule A” thereto in the manner expressly provided in the Wholesale Power Contracts, (C) Sections I and II of Appendix 2 (Control Area Services) to “Rate Schedule A” thereto, (D) Appendix 3 (General Terms and Conditions) to “Rate Schedule A” thereto, (E) Schedule B - Form of Subscription Agreement in the manner expressly provided in Section 13.3.1 of the Wholesale Power Contracts, and (F) the Wholesale Power Contracts in the manner expressly provided in any

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“Withdrawal Agreement” (as defined in the Wholesale Power Contracts) entered into in connection with such Wholesale Power Contracts.

(b)                                 Impairment of Wholesale Power Contracts.  The Borrower shall not materially breach any obligation to be paid or performed by the Borrower under any Wholesale Power Contract, or take any action which is likely to materially impair the value of any Wholesale Power Contract.

(c)                                  Impairment of Consent Rights under Project Documents.  The Borrower shall not, without first complying with the requirements of Section 7.10 (Notice to DOE; Objection of DOE), enter into or otherwise agree to any amendment or modification to (i) (A) Section 5.6 (Management Audit; Access to Records) of the Ownership Agreement, Section 7.8 (Cost Audits) of the Ownership Agreement, or (B) any Project Document to which the Borrower is a party that limits, conditions or removes any right the Borrower has thereunder as of the date hereof to consent to, reject or approve any action to be taken by the Owners’ Agent or the Operator on behalf of the Owners, to cause a Disposition of all or any part of the Project, (ii) any provision of the Owner Documents listed on Schedule 7.4, or (iii) any provision of the Nuclear Operating Agreement listed on Schedule 7.4, other than any such agreement or modification that is necessary to comply with the requirements of any Governmental Rule, including any requirements of the NRC.

7.8.                       Rate Reductions.

The Borrower shall not, without first complying with the requirements of Section 7.10 (Notice to DOE; Objection of DOE), decrease its Rates if it has failed to comply with the provisions of Section 13.14 of the Mortgage Indenture for the Fiscal Year prior to such reduction.

7.9.                       Indenture Restrictions.

The Borrower shall not, without first complying with the requirements of Section 7.10 (Notice to DOE; Objection of DOE):

(a)                                 issue Additional Obligations under the Mortgage Indenture while any Borrower Reimbursement Obligation remains outstanding;

(b)                                 enter into a Supplemental Indenture pursuant to Section 12.1B or 12.1C of the Mortgage Indenture if (i) the Holders of the Indenture Obligations issued under such Supplemental Indenture are granted greater security rights in and to the Trust Estate than those security rights enjoyed by DOE in its capacity as a Holder of Indenture Obligations under the Mortgage Indenture, provided, however, that neither (A) the existence of “Credit Enhancement” (as defined in the Mortgage Indenture) nor (B) the creation and maintenance of debt service or similar funds for the payment of the principal and interest on Indenture Obligations issued under such Supplemental Indenture (to the extent such debt service or other similar funds are funded from the proceeds of the issuance of such Indenture Obligations or funded in connection with the refinancing of other debt by such Indenture Obligations), shall constitute greater security rights in and to the Trust Estate requiring the Borrower to comply with the requirements of Section 7.10 (Notice to DOE; Objection of DOE); (ii) the Supplemental Indenture provides for

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covenants, restrictions, limitations, conditions, events of defaults or remedies not applicable to all Indenture Obligations then Outstanding or not equally available to all Holders of Indenture Obligations then Outstanding, provided, however, that provisions for covenants and events of default that relate solely to assuring that the interest on such Indenture Obligations (or other indebtedness secured by such Indenture Obligations) is excludable from the gross income of the holder thereof pursuant to the Internal Revenue Code, as amended, shall not constitute the providing of covenants or events of default requiring the Borrower to comply with the requirements of Section 7.10 (Notice to DOE; Objection of DOE); or (iii) the Indenture Obligations issued under such Supplemental Indenture, or the indebtedness secured by such Indenture Obligations, can be accelerated, or effectively accelerated through a mandatory purchase or similar mechanism, in either case, as a consequence of a breach or default by the Borrower under the related loan agreement or similar agreement entered into in connection with such Indenture Obligation or indebtedness, provided, however, that acceleration and similar rights may be granted to development authorities, government or governmental entities, or trustees without first complying with the requirements of Section 7.10 (Notice to DOE; Objection of DOE) in connection with the issuance of Indenture Obligations (or other indebtedness secured by or issued in connection with such Indenture Obligations) the interest on which is excludable from the gross income of the holder thereof pursuant to the Internal Revenue Code, as amended, if such acceleration and similar rights are substantially similar to those customarily granted to development authorities, government or governmental entities, or trustees; or

(c)                                  modify or alter Section 8.7 of the Mortgage Indenture or the obligation of the Trustee under the Mortgage Indenture to hold the Trust Estate for the equal and proportionate benefit and security of the Holders, without any priority of any Indenture Obligation over any other Indenture Obligation.

7.10.                Notice to DOE; Objection of DOE.

Before undertaking any transaction described in this Agreement that requires compliance with the requirements of this Section 7.10, the Borrower shall give to DOE (i) notice in writing describing in reasonable detail the proposed transaction and expressly stating that the transaction is covered by this Section 7.10 and (ii) drafts of all material documents to effect such transaction. If DOE delivers to the Borrower written notice that it objects to the proposed transaction within (x) sixty (60) days (or such shorter period as the parties shall agree to in writing as provided below) in the case of any transaction of the nature described in clause (a) below, or (y) thirty (30) days (or such shorter period as the parties shall agree to in writing as provided below) in the case of any transaction of the nature described in clause (b) below, the Borrower shall not complete the transaction without DOE approval.

(a)                                 Transactions requiring compliance with the requirements of this Section 7.10 pursuant to Sections 7.2(a), (c) - (e) (Mergers, Consolidations and Asset Transfers), 7.7(a), (Limitations on Certain Types of Contracts - Amendment and Release of Obligations under Certain Contracts), 7.7(c) (Limitations on Certain Types of Contracts -Impairment of Consent Rights under Project Documents), 7.9 (Indenture Restrictions) and 7.12 (Amendments to Mortgage Indenture) shall be subject to a sixty- (60) day review and objection period (or such shorter period as the parties shall agree to in writing).

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(b)                                 Transactions requiring compliance with the requirements of this Section 7.10 pursuant to Sections 6.2(d) (Books, Records and Inspections; Accounting and Auditing Matters), 7.4 (Commissions) and 7.8 (Rate Reductions) shall be subject to a thirty- (30) day review and objection period (or such shorter period as the parties shall agree to in writing).

7.11.                Mortgage Indenture Negative Covenants.

The Borrower shall comply with the terms and conditions set forth in Sections 13.9, 13.15 and 13.17 of the Mortgage Indenture.

7.12.                Amendments to Mortgage Indenture.

The Borrower shall not (i) without first complying with the requirements of Section 7.10 (Notice to DOE; Objection of DOE), at any time enter into a Supplemental Indenture to cure any ambiguity, inconsistency or inaccuracy in the Mortgage Indenture pursuant to Section 12.1H of the same, or (ii) (A) without first complying with the requirements of Section 7.10 (Notice to DOE; Objection of DOE), prior to the Commercial Operation of the Second Unit or (B) without the prior written consent of DOE, in DOE’s sole discretion, at any time during the existence of an “Event of Default” as set forth in Section 8.1 of the Mortgage Indenture, enter into any Supplemental Indenture to amend, modify, or supplement any of Sections 5.2.C, 5.2.D, 12.1, 12.2, 13.5, 13.8, 13.9, 13.14, 13.15 or 13.17 of the Mortgage Indenture pursuant to Section 12.2 of the same.

7.13.                Compliance with Certain U.S. Government Requirements.

(a)                                 Lobbying Requirements.  No proceeds of the Advances will be expended to pay any Person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress.

(b)                                 Use of U.S. Government Funds.  The Borrower shall not use funds obtained from the U.S. Government, or from a loan or other instrument guaranteed by the U.S. Government, for the payment of Credit Subsidy Costs, administrative fees, or other fees charged by or paid to DOE relating to the Applicable Regulations, except to the extent explicitly authorized by an act of Congress.

7.14.                ERISA.

(a) The Borrower shall not be a “plan” within the meaning of Section 4975(e) of the Internal Revenue Code; (b) the assets of the Borrower shall not constitute “plan assets” within the meaning of Section 3(42) of ERISA and the United States Department of Labor Regulations set forth in 29 C.F.R. § 2510.3-101; (c) the Borrower shall not be a “governmental plan” within the meaning of Section 3(32) of ERISA; (d) transactions by or with the Borrower are not subject to state statutes applicable to the Borrower regulating investments of fiduciaries with respect to governmental plans; and (e) the Borrower shall not engage in any transaction that would cause any obligation, or action taken or to be taken, hereunder (or the exercise by the Secured Parties of any of their respective rights under this Agreement) to be a non-exempt prohibited transaction

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under ERISA or Section 4975 of the Internal Revenue Code, other than any such transaction or prohibited transaction that is not reasonably expected to have a Material Adverse Effect.

ARTICLE 8
EVENTS OF DEFAULT; REMEDIES

8.1.                       Events of Default.

The occurrence of any of the following events shall constitute an Event of Default hereunder:

(a) Failure to Make Payment Under Loan Documents.  The Borrower shall fail to pay, in accordance with the terms of the FFB Credit Facility Documents, this Agreement or any other Loan Document (whether at scheduled maturity, as a mandatory prepayment, by acceleration or otherwise), (i) any principal of or interest on any DOE Guaranteed Loan (including, without limitation, pursuant to Section 3.1(c) (Effect of Alternate Amortization Notice)) on or before the date such amount is due, or (ii) any scheduled fee, charge or other amount due under any Loan Document on or before the date such amount is due, provided, in the case of either clause (i) or (ii), that such failure to pay shall continue for a period of three (3) Business Days (except that no grace period shall apply with respect to any failure to pay amounts due on the Maturity Date); provided further, however, that the DOE Late Penalty Charge shall apply as of the date of any such missed payment and shall be payable in accordance with Section 3.6 (DOE Late Penalty Charge).

(b)                                 Misstatements; Omissions.  Any representation or warranty made or deemed to be made by the Borrower in any Loan Document or any related agreement or document issued or delivered hereunder or thereunder or pursuant hereto or thereto (other than any representation or warranty referenced in Section 8.1(n) (Events of Default - Certain Representations and Warranties)), shall be found to have been incorrect in any material respect when made or deemed to have been made, unless such incorrect representation or warranty is capable of being remedied, and such incorrect representation or warranty is remedied within ninety (90) days following the earlier of (i) the date that the Borrower obtains Knowledge of such incorrect representation or warranty or (ii) the date of notice thereof from DOE to the Borrower; provided, that any incorrect representation as to the non-existence of a Potential Default shall be deemed to be remedied if DOE is satisfied (in its sole discretion) that such incorrect representation was unintentional and otherwise made in good faith and such Potential Default is remedied within such ninety (90) day period.

(c)                                  Borrower Payment Default under EPC Contract or Owner Documents. A payment default by the Borrower occurs under any IP Agreement or any of the Owner Documents that is not cured by the Borrower or another Owner within thirty (30) days.  For the avoidance of doubt, a payment default by an Owner other than the Borrower with respect to amounts owed under the Owner Documents that causes a payment default by the Owners under any IP Agreement shall not constitute an Event of Default under this Section 8.1(c).

(d)                                 Covenants and Other Agreements.  The Borrower shall fail to perform or observe any term, covenant or agreement (other than those set forth in clauses (a) and (b) above) contained in any Loan Document to which it is a party, where (other than with respect to

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Section 7.2 (Mergers, Consolidations and Asset Transfers), which, for the avoidance of doubt, shall not be subject to a cure period), if such default is remediable, such default has not been remedied within ninety (90) days, in each case following the earlier of (i) the date of notice thereof from DOE to the Borrower or (ii) the date on which the Borrower obtains Knowledge of such breach, unless such default cannot be reasonably cured within such ninety- (90) day period, then in such event and so long as a cure is being diligently pursued in consultation with and to the satisfaction DOE (in its sole discretion), the Borrower shall have a reasonable period of time (as determined by DOE in consultation, as it deems necessary or advisable, with the relevant Independent Consultants) beyond such ninety (90) days to complete such cure.

(e)                                  Environmental and Safety Matters.  Any failure by the Borrower, the Owners’ Agent, the Operator or the Borrower’s Undivided Interest to comply in all material respects with any Environmental Law, Governmental Approvals or safety regulations applicable to the Project, including compliance in all material respects with all conditions and requirements required in connection with the Environmental Impact Statement, if such failure continues for ninety (90) days, in each case following the earlier of (i) the date of notice thereof from DOE to the Borrower or (ii) the date on which the Borrower obtains Knowledge of such failure (unless such default cannot reasonably be cured within such time period and the Borrower, the Owners’ Agent or the Operator is diligently working to cure such default according to an applicable Remediation Plan or, in the case of any non-compliance with NRC-issued Governmental Approvals and other NRC directions and instructions, the Borrower (A) is diligently working to cure such noncompliance through appropriate NRC regulatory procedures, which cure may include obtaining a necessary amendment to such NRC-issued Governmental Approval and (B) reasonably believes will be cured through such diligent efforts); provided that no such failure shall be considered to have occurred under this subsection (e) (y) if such failure cannot reasonably be cured within such ninety (90) day period, the Borrower, the Owners’ Agent or the Operator, as applicable, is diligently working to cure such failure according to an applicable Remediation Plan, or (z) for so long as the Borrower, the Owners’ Agent or the Operator, as applicable, is contesting in good faith by appropriate legal proceedings each assertion by a Governmental Authority that the Borrower, the Owners’ Agent, the Operator or the Borrower’s Undivided Interest is not in compliance with such Environmental Law, Governmental Approval or safety regulation.

(f)                                   Unenforceability, Termination, Repudiation or Transfer of Certain Transaction Documents.

(i)                                     This Agreement or any of the other Loan Documents (other than the DOE Guarantee), or any material provision hereof or thereof,  at any time for any reason (A) (x) is or becomes invalid, illegal, void or unenforceable against the Borrower, or (y) the Borrower shall have repudiated or disavowed or taken any action to challenge the validity or enforceability of such agreement or material provision, (B) ceases to be in full force and effect, except at the expiration of the stated term thereof, or shall otherwise be prematurely terminated, (C) except as otherwise expressly permitted hereunder, shall be assigned or otherwise transferred by the Borrower (other than with the prior written consent of DOE), or (D) shall cease to give the Trustee or DOE in any material respect any Lien, right, power or privilege purported to be created hereby or thereby and, in each case, such event continues unremedied for thirty (30) days unless such event cannot reasonably be cured within such thirty- (30) day period as determined

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by DOE in its sole discretion and provided that such thirty- (30) day cure period shall not apply to clause (A)(y).

(ii)                                  The aggregate Revenue Percentage of all Ineffective Wholesale Power Contracts shall equal or exceed ten percent (10%), and such event continues unremedied for thirty (30) days (unless such event cannot reasonably be cured within such thirty- (30) day period as determined by DOE in its sole discretion).

(g)                                  Security Interests.  (i) Any of the Security Documents shall fail in any material respect to provide any Lien, right, title, interest, remedy, power or privilege intended to be created thereby (including the priority intended to be created thereby), and if such default relates to perfection or priority and is remediable (as determined by DOE in its sole discretion), such default has not been remedied within thirty (30) days, in each case following such default, or (ii) any Security Document or Lien shall cease to be in full force and effect, or the validity thereof or the applicability thereof to the Advances or the Obligations or any part thereof purported to be secured or guaranteed thereby, shall be disaffirmed by or on behalf of the Borrower.

(h)                                 Default under Other Indebtedness.  Default by the Borrower (i) in the payment of any obligation, whether direct or contingent, for borrowed money in excess of ten million Dollars ($10,000,000) or (ii) in the performance or observance of the terms of any instrument pursuant to which such obligation was created or securing such obligation if, in the case of this clause (ii), such default has resulted in such obligation becoming or being declared, due and payable prior to the date on which it would otherwise be due and payable.

(i)                                     Bankruptcy; Insolvency; Dissolution.

(i)                                     Involuntary Bankruptcy, Etc.  The entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Borrower in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (ii) a decree or order adjudging the Borrower bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Borrower under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Borrower or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief of any such other decree or order unstayed and in effect for a period of sixty (60) consecutive days.

(ii)                                  Voluntary Bankruptcy, Etc.  The commencement by the Borrower of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Borrower in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or the appointment of a taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Borrower

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or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Borrower in furtherance of any such action.

(iii)                               Dissolution.  The dissolution of the Borrower.

(j)                                    ERISA Events.  There occurs one or more ERISA Events, or there exists an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA) for Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities), other than any such ERISA Event or liability that would not reasonably be expected to have a Material Adverse Effect.

(k)                                 Suspension and Debarment.  The failure of the Borrower to comply with the Debarment Regulations unless such breach is capable of being cured and such breach is cured, in each case, within ninety (90) days following the earlier of (i) the date of notice thereof from DOE to the Borrower and (ii) the date on which the Borrower obtains Knowledge of such breach.

(l)                                     Compliance with Governmental Rules; Program Requirements.

(i)                                     The Borrower, the Owners’ Agent (with respect to the Project), the Operator (with respect to the Project), or the Borrower’s Undivided Interest shall fail to comply with the provisions of Title XVII and such failure continues unremedied for any period of at least thirty (30) days or, in the case of a failure to comply with Section 1702(k) of Title XVII, such failure continues unremedied for ninety (90) days, in each case following the earlier of (x) the date of notice thereof from DOE to the Borrower and (y) the date on which the Borrower obtains Knowledge of such failure.

(ii)                                  The Borrower, the Owners’ Agent (with respect to the Project), the Operator (with respect to the Project), or the Borrower’s Undivided Interest shall fail to comply with the provisions of the Applicable Regulations and such failure continues unremedied for ninety (90) days, in each case following the earlier of (x) the date of notice thereof from DOE to the Borrower and (y) the date on which the Borrower obtains Knowledge of such failure.

(iii)                               The Borrower, the Owners’ Agent (with respect to the Project), the Operator (with respect to the Project), or the Borrower’s Undivided Interest shall fail to comply in all material respects with (A) all other Governmental Rules and (B) all Program Requirements (other than the provisions of Title XVII and the Applicable Regulations, which are addressed in clauses (i) and (ii) of this Section 8.1(l)), and in each case such failure continues unremedied for at least ninety (90) days, following the earlier of (w) the date of notice thereof from DOE to the Borrower and (x) the date on which the Borrower obtains Knowledge of such failure; provided, that no such failure shall be considered to have occurred under this clause (iii) at any time (y) if such failure cannot reasonably be cured within such ninety (90) day period, the Borrower, the Owners’ Agent or the Operator, as applicable, is diligently working to cure such failure according to an applicable Remediation Plan, or (z) the Borrower, the Owners’ Agent or the Operator is contesting in good faith by appropriate legal proceedings each assertion by a

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Governmental Authority that the Borrower, the Owners’ Agent, the Operator or the Project is not in compliance with such Program Requirements or other Governmental Rules.

(m)                             Mortgage Indenture Events of Default.  Any “Event of Default” as set forth in Section 8.1 of the Mortgage Indenture and any event (as set forth in such Section 8.1) that with the giving of notice or the passage of time, or both, could become an “Event of Default” under the Mortgage Indenture.

(n)                                 Certain Representations and Warranties.  Any of the representations and warranties made or deemed to be made by the Borrower pursuant to Sections 5.7(f), 5.10, 5.26(b), the second sentence of Section 5.26(c) with respect to the Borrower only, the third sentence of Section 5.26(c), Section 5.26(d), 5.26(e) or 5.26(f) shall be found to have been incorrect in any material respect when made or deemed to have been made, in each case, without giving effect to any qualification relating to the Borrower’s Knowledge as set forth therein, unless such incorrect representation or warranty is capable of being remedied, and such incorrect representation or warranty is remedied within ninety (90) days following the earlier of (i) the date that the Borrower obtains Knowledge of such incorrect representation or warranty or (ii) the date of notice thereof from DOE to the Borrower.

(o)                                 Fuel Supply Agreements.

(i)                                     After Substantial Completion of both Units (as each such term is defined in the EPC Contract), the Owners’ Agent terminates and or causes the Westinghouse Fuel Assembly Agreement to be terminated prior to the time it is fully performed unless the Owners’ Agent at the time of such termination has a contract or contracts in place for an alternate supply of fuel assemblies for not less than the next two (2) reloads for each Unit, and has the right to use the BEACON Software or another core monitoring system that complies with the COLs with such alternate supply of fuel assemblies.

(ii)                                  The Owners’ Agent shall fail at any time (A) to ensure that a contractual obligation for the supply of not less than two (2) additional reloads of fuel assemblies and related fuel fabrication services for each Unit is in place or (B) to have the right to use the BEACON Software or another core monitoring system that complies with the COLs with such reloads.

(iii)                               Notwithstanding the foregoing, no Event of Default shall be deemed to have occurred under clauses (i) and (ii) of this Section 8.1(o), unless the Owners’ Agent shall have failed to remedy any such non-compliance by the date that is nine (9) months in advance of the next scheduled delivery date for the last fuel assembly for the next reload for the Unit in question available under the then-effective Fuel Supply Agreement, provided that (1) the Owners’ Agent is diligently working to remedy such non-compliance pursuant to a plan of remediation with a timetable for curing such non-compliance that has been provided to DOE at the time of such non-compliance, (2) the Borrower reasonably believes such non-compliance will be remedied through such diligent efforts, and (3) such non-compliance would not reasonably be expected to have a Material Adverse Effect or a material adverse effect on the ability of the Project to be operated.

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For the avoidance of doubt, each clause of this Section 8.1 shall operate independently, and the occurrence of any event described in any such clause shall constitute an Event of Default (subject, in each case, to all applicable requirements of notice, knowledge, lapse of time and right of the Borrower to cure or remedy any such event).

Notwithstanding the provisions of Section 11.1.1 of the FFB Note Purchase Agreement and Sections 23 and 24 of the FFB Promissory Note, DOE acknowledges and agrees that the Secured Parties shall not be entitled to exercise any of the remedies set forth in the Loan Documents with respect to any failure by the Borrower to make payments of principal and interest under the FFB Promissory Note unless and until an Event of Default shall have occurred and be continuing pursuant to Section 8.1(a).

DOE further acknowledges and agrees that (i) any payment made by the Borrower to the account specified in Section 10(a) of the FFB Promissory Note as the subaccount of the Secretary (U.S. Treasury Department, ABA No. ▇▇▇▇-▇▇▇▇-▇, TREAS NYC/CTR/BNF=89000001, OBI=LGPO Oglethorpe Power Corporation Loan #1017) (the “Secretary Subaccount”) on or before the applicable Payment Date (or, if such Payment Date shall fall on a day on which either the FFB or the Federal Reserve Bank of New York is not open for business, the first day thereafter on which FFB and the Federal Reserve Bank of New York are both open for business) specified in the FFB Promissory Note (the “Required Payment Date”) shall be deemed made on the later of the date such payment is received at the Secretary Subaccount or the Required Payment Date, (ii) DOE shall take all actions necessary to ensure that the amounts paid by the Borrower and received at the Secretary Subaccount are, no later than the Required Payment Date, credited to the subaccount of FFB (within the account of the United States Treasury maintained at the Federal Reserve Bank of New York) as provided in Section 10(a) of the FFB Promissory Note (the “FFB Subaccount”), (iii) if the Borrower makes the payment to the Secretary Subaccount on or before the Required Payment Date and DOE fails to credit such payment to the FFB Subaccount on the Required Payment Date, DOE shall be responsible to the Borrower for any late charges that may be payable to FFB because of such DOE failure, (iv) DOE, and not FFB, has the sole authority, pursuant to Section 23 of the FFB Promissory Note, to exercise any and all remedies with respect to any “default” under the FFB Promissory Note or Event of Default under this Agreement, and (v)  if the Borrower makes the payment to the Secretary Subaccount on or before the Required Payment Date and such amounts are not credited to the FFB Subaccount by the Required Payment Date, DOE shall not declare a default in payment under the FFB Promissory Note and neither a Potential Default nor an Event of Default shall be deemed to have occurred as a result of such amounts not being credited to the FFB Subaccount by the Required Payment Date, and DOE shall not be entitled to exercise any rights or remedies against the Borrower in connection with such failure.

8.2.                       Remedies for Events of Default.

(a)                                 Upon the occurrence and during the continuance of an Event of Default, DOE may, in its discretion, without further notice of default, presentment or demand for payment, protest or notice of non-payment or dishonor, or other notices or demands of any kind, all such notices and demands being waived (to the extent not prohibited by Governmental Rules), pursue

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all rights and remedies available to DOE that are contemplated by this Agreement in the manner, upon the conditions, and with the effect provided in this Agreement, including a suit for specific performance, injunctive relief or compensatory damages. DOE is hereby authorized, to the maximum extent permitted by Governmental Rules, to demand specific performance of this Agreement at any time when the Borrower shall have failed to comply with any provision of this Agreement applicable to it. The Borrower hereby irrevocably waives, to the maximum extent permitted by Governmental Rules, any defense based on the adequacy of a remedy at law that might be asserted as a bar to such remedy for specific performance. Nothing herein shall limit the right of DOE to pursue all rights and remedies available to a creditor at law or in equity following the occurrence of an Event of Default, or any right or remedy available to the DOE as a “Holder” of an “Obligation” under the Mortgage Indenture. Each right, power and remedy of DOE shall be cumulative and concurrent, and recourse to one or more rights or remedies shall not constitute a waiver of any other right, power or remedy.

(b)                                 Upon the occurrence and during the continuance of an Event of Default, DOE may, in its sole discretion, exercise any or all rights and remedies at law or in equity (in any combination or order that DOE may elect), including, without prejudice to DOE’s other rights and remedies, the following:

(i)                                     (A) refuse, and DOE and FFB shall not be obligated, to make or guarantee any further Advances, and (B) suspend or terminate the FFB Credit Facility Commitment;

(ii)                                  charge interest at the FFB Late Charge Rate on any amounts not paid when due; and

(iii)                               exercise any and all rights and remedies available to it under any of the Transaction Documents (other than the Mortgage Indenture) with respect to the Project, the Borrower, the Owners and any other Project Participant.

(c)                                  In addition to, and without limitation of, the rights and remedies described in clause (b) above, upon the occurrence and during the continuance of an Event of Default as described in Section 8.1(m) (Events of Default - Mortgage Indenture Events of Default), DOE may, in its sole discretion, exercise any or all rights and remedies at law or in equity (in any combination or order that DOE may elect), including, without prejudice to DOE’s other rights and remedies, the following:

(i)                                     exercise any and all rights and remedies available to it or FFB under the Mortgage Indenture, including to direct the Trustee to exercise any trust or power conferred upon the Trustee pursuant to Section 8.16 of the Mortgage Indenture; and

(ii)                                  exercise any and all rights and remedies available to it under any of the Transaction Documents with respect to the Project, the Borrower, the Owners and any other Project Participant and under the Collateral or otherwise under Governmental Rules.

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8.3.                       Appointment of a Receiver.

Notwithstanding any appointment of a receiver, subject to mandatory provisions of Governmental Rule, the Secured Parties shall be entitled to retain possession and control of all cash and investments held by, or deposited with, them or their agents or nominees pursuant to any provision of this Agreement or any other Security Document or Loan Document.

ARTICLE 9
REIMBURSEMENT AGREEMENT

9.1.                       Reimbursement Obligation.

If the Borrower defaults in any payment due to FFB under the DOE Guaranteed Loan or otherwise under any FFB Credit Facility Document, and as a result of such payment default by the Borrower, the Guarantor makes any payments to FFB pursuant to the DOE Guarantee (a “DOE Guarantee Payment”), the Borrower shall become immediately obligated to reimburse the Guarantor in an amount (the “DOE Guarantee Payment Amount”) equal to the sum of (i) all DOE Guarantee Payments paid by the Guarantor to FFB, and (ii) all fees, costs, expenses and other amounts incurred by the Guarantor in connection therewith, whether by payment to FFB or otherwise; provided, however, that (x) any DOE Guarantee Payment shall not operate to satisfy the Borrower’s obligations to FFB under the DOE Guaranteed Loan or otherwise under the FFB Credit Facility Documents and (y) to the extent of any DOE Guarantee Payment, DOE shall be deemed hereunder to have been granted a participation in any or all of FFB’s rights under the Loan Documents and, to the extent applicable, with respect to the Collateral. Any DOE Guarantee Payment Amount shall be due and payable to DOE by the Borrower on the same day as the date on which DOE made payment of the DOE Guarantee Payment to which it relates.

9.2.                       Payments and Computations.

9.2.1.                  Interest.  The Borrower shall pay to the Guarantor an amount (the “Borrower Reimbursement Obligations”) equal to the sum of (i) the DOE Guarantee Payment Amount, and (ii) interest on the DOE Guarantee Payment Amount from the date the DOE Guarantee Payment was paid by the Guarantor under the DOE Guarantee until payment in full by the Borrower to the Guarantor of the DOE Guarantee Payment Amount, at the FFB Late Charge Rate at the time of the payment default by the Borrower.

9.2.2.                  Method of Payment.  The Borrower shall make each payment with respect to Borrower Reimbursement Obligations hereunder (a “Borrower Reimbursement Payment”), irrespective of any right of counterclaim or set off, in Dollars and in immediately available funds by wire transfer to the following account, or to such other account as may be specified by the Guarantor in writing to the Borrower from time to time:

Bank: U.S. Treasury Department

ABA #: ▇▇▇▇-▇▇▇▇-▇

Account Name: U.S. Department of Energy

Account #: TREASNYC/CTR/BNF = 89000001

OBI: Oglethorpe Power Corporation (An Electric Membership Corporation), LGPO Loan
No. 1017  – Guarantee Reimbursement

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9.2.3.                  Taxes.  All Borrower Reimbursement Payments by the Borrower hereunder shall be made in accordance with Section 3.1.2 (Place and Manner of Payments - Net of Tax, Etc.).

9.2.4.                  Determinations.  The parties to this Agreement agree that each determination by DOE of an amount of interest or fees payable hereunder shall be conclusive and binding for all purposes, absent manifest error.

9.3.                       Obligations Absolute.

To the fullest extent permitted by law, the Borrower Reimbursement Obligations are absolute, irrevocable and unconditional, will be evidenced by the DOE Reimbursement Notes, and shall be paid strictly in accordance with the terms of each of this Agreement and the DOE Reimbursement Notes under all circumstances whatsoever, including the following circumstances, whether or not with notice to or the consent of the Borrower:

(i)                                     the occurrence, or the failure by DOE or any other Secured Party or any other Person to give notice to the Borrower of the occurrence, of any Event of Default or Potential Default under this Agreement or any default under any of the other Loan Documents;

(ii)                                  the extension of the time for performance of any obligations, covenants or agreements of any Person under or arising out of any of the Loan Documents;

(iii)                               the existence of any claim, set off, counterclaim, defense or other rights of any kind or nature that (A) the Borrower, DOE or any other Person may have at any time against FFB or any transferee, or (B) the Borrower or any other Person may have at any time against DOE, whether in connection with the Loan Documents, the transactions contemplated therein or any unrelated transactions;

(iv)                              any failure, omission or delay on the part of (i) DOE to assert a defense to a DOE Guarantee Payment Amount under the DOE Guarantee or to otherwise contest the DOE Guarantee, or (ii) DOE or any other Secured Party or the Borrower to enforce, assert or exercise any other right, power or remedy conferred by this Agreement or any of the Loan Documents;

(v)                                 the taking or the omission on the part of DOE or any other Secured Party or the Borrower of any other actions or remedies referred to in any of the Loan Documents;

(vi)                              the compromise, settlement, release, modification, amendment (whether material or otherwise) or termination of any or all of the obligations, conditions, covenants or agreements of any Person in respect of any of the Loan Documents;

(vii)                           any amendment or waiver of the payment, performance or observance of any of the obligations, conditions, covenants or agreements of any Person contained in any of the Loan Documents;

(viii)                        the exchange, surrender, substitution or modification of any security for any of the Loan Documents;

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(ix)                              any disability, incapacity or lack of powers, authority or legal personality of or dissolution or change in the status of the Borrower or any other Person;

(x)                                 any release, irregularity, invalidity, illegality, lack of genuineness, unenforceability or modification affecting this Agreement, the DOE Guarantee, the DOE Guaranteed Loan, or the other Loan Documents, or the transactions contemplated hereby or thereby;

(xi)                              the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets of, the marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings that affect the Borrower or any other Person party to any of the Loan Documents;

(xii)                           the release or discharge by operation of law of the Borrower from the performance or observance of any obligation, covenant or agreement contained in any of the Loan Documents;

(xiii)                        any statement or any other document presented under the DOE Guarantee proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever;

(xiv)                       any determination by a court or arbitrator, or any settlement of a disputed claim by any party hereto or other Person, relating to this Agreement, the DOE Guarantee, or the other Loan Documents, or the transactions contemplated hereby or thereby;

(xv)                          any promptness, diligence, presentment, demand of payment, protest, notice of dishonor or nonpayment of any liabilities of the Borrower, suit or taking of other action by DOE or any other Secured Party against any party liable thereon; or

(xvi)                       any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.

9.4.                       Security.

9.4.1.                  DOE Reimbursement Notes Secured.  The parties expressly acknowledge that the Collateral pledged and assigned under the Security Documents is pledged and assigned to secure payment by the Borrower of the DOE Reimbursement Notes.

9.4.2.                  Actions.  The Borrower expressly acknowledges that DOE is free to litigate, settle or otherwise satisfy or discharge its obligation with respect to any DOE Guarantee Payment Amount, and take any action under the Security Documents or otherwise with respect to the Collateral as and to the extent permitted under the Mortgage Indenture, as it may from time to time deem appropriate, and any failure by DOE to advise, notify, or consult with the Borrower shall not be a defense to, or in any way diminish, discharge or derogate from the Borrower Reimbursement Obligations hereunder.

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9.5.                DOE Rights.

9.5.1.                  Rights Cumulative.  The Guarantor’s right to reimbursement provided for in this Article 9 shall be in addition to, and not in limitation of, any other claims, rights or remedies of subrogation, reimbursement, contribution, exoneration or indemnification or similar claims, rights or remedies, whether arising under contract, by statute, or otherwise that DOE may have from time to time.

9.5.2.                  Subrogation.  Without limiting the generality of Section 9.5.1 (DOE Rights — Rights Cumulative), upon any DOE Guarantee Payment DOE shall be subrogated to the rights of FFB or any subsequent holder of the DOE Guaranteed Loan, including, to the extent applicable, all related Liens and Collateral.

9.6.                Further Assurances.

The Borrower shall cooperate with DOE in connection with the exercise of any of its rights under this Article 9 and agrees, promptly upon request by DOE, to execute, acknowledge and deliver all further instruments and documents, and take all such further acts as DOE may reasonably request from time to time in order to carry out the purposes of this Article 9 or to enable DOE to exercise and enforce its rights and remedies hereunder.

ARTICLE 10
MISCELLANEOUS

10.1.               Addresses.

Any communications, including any notices, between or among the parties to the Loan Documents shall be given to the addresses listed in Schedule 10.1.  All notices or other communications required or permitted to be given under the Loan Documents shall be in writing and shall be considered as properly given (a) if delivered in person, (b) if sent by overnight delivery service for delivery, (c) in the event overnight delivery service is not readily available, if mailed by first class mail, postage prepaid, registered or certified with return receipt requested, (d) if sent by facsimile or telecopy with transmission verified or (e) if transmitted by electronic mail (with such transmission verified).  Notice so given shall be effective upon delivery to the addressee, except that (A) communication or notice so transmitted by facsimile or telecopy or other direct written electronic means shall be deemed to have been validly and effectively given on the day (if a Business Day and, if not, on the next following Business Day) on which it is validly transmitted if transmitted (with such transmission verified) before 2:00 p.m., recipient’s time, and if transmitted after that time, on the next following Business Day, (B) if any notice is tendered to an addressee and the delivery thereof is refused by such addressee, such notice shall be effective upon such tender, and (C) if such addressee requires delivery to a mail room or other central depository, delivery to such room or depository shall be effective.  Any party shall have the right to change its address for notice under any of the Loan Documents to any other location by giving prior written notice to the other parties in the manner set forth hereinabove.

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10.2.               Further Assurances.

(a)                                 The Borrower shall fully cooperate with all Persons as may be necessary to ensure that each Secured Party receives any notices due to such Secured Party pursuant to the Loan Documents.

(b)                                 (i) Each of the Borrower and the Secured Parties shall cooperate with one another in furtherance of the express purposes of this Agreement and each of the other Loan Documents, and each one of them agrees, upon the reasonable request of another, to execute, acknowledge and deliver all further instruments and documents, and take all such further action as any one or more of them may reasonably request from time to time to carry out such purposes; and (ii) the Borrower agrees to use commercially reasonable efforts to provide such legal opinions, certificates and consents as reasonably requested by DOE from time to time.

(c)                                  The Borrower shall take all action to ensure that each of the Transaction Documents is in proper legal form under the respective governing laws selected in such Transaction Document, without any further action required with respect to such legal form for the enforcement of such Transaction Documents.

(d)                                 The Borrower (i) shall cooperate in all respects with each Independent Consultant, (ii) shall ensure that each Independent Consultant is provided with all information reasonably requested by such Independent Consultant in fulfilling its duties to DOE and ensure that any information that it may supply to such Independent Consultant, when taken together with all of the statements, information, documents, reports and other information and updates then included in the Disclosure Package, is true and correct in all material respects and not, by omission of information or otherwise, materially misleading in light of the circumstances in which they were made or, with respect to forward-looking statements or information contained therein, such statements or information were prepared in good faith based on assumptions believed by the Borrower to be reasonable at the time prepared.

(e)                                  Each of the parties agrees that money damages would not be a sufficient remedy for any breach of this Section 10.2 and Section 6.10 (Creation and Perfection of Security Interests; Additional Documents; Filings and Recordings) and agrees that in addition to all other remedies, any court or arbitrator having proper jurisdiction may award specific performance or other equitable relief as a remedy for any such breach.

10.3.               Delay and Waiver.

No delay or omission in exercising any right, power, privilege or remedy under this Agreement or any other Loan Document, including any rights and remedies in connection with the occurrence of an Event of Default or Potential Default shall impair any such right, power, privilege or remedy of the Secured Parties, nor shall it be construed to be a waiver of any right, power, privilege or remedy or of any breach or default, or an acquiescence therein, or in any similar breach or default thereafter occurring, nor shall any waiver of any single right, power, privilege or remedy, or of any breach or default be deemed a waiver of any other right, power, privilege or remedy or of any other breach or default theretofore or thereafter occurring.  Any waiver, permit, consent or approval of any kind or character on the part of any of the Secured

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Parties of any right, power, privilege or remedy including any rights and remedies in connection with the occurrence of an Event of Default or Potential Default or of any other breach or default under this Agreement or any other Loan Document, or any waiver on the part of any of the Secured Parties of any provision or condition of this Agreement or any other Transaction Document, must be in writing and shall be effective only to the extent specifically set forth in such writing.  All rights, powers, privileges and remedies, either under this Agreement or any other Loan Document or by law or otherwise afforded to any of the Secured Parties, shall be cumulative and not alternative and not exclusive of any other rights, powers, privileges and remedies that such Secured Parties may otherwise have.

10.4.               Right of Set Off.

In addition to any rights now or hereafter granted under Governmental Rules or otherwise, and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default, each Secured Party is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to the Borrower or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special, time or demand, provisional or final) and any other Indebtedness at any time held or owing by such Secured Party (including by any branches and agencies of such Secured Party wherever located) to or for the credit or the account of the Borrower against and on account of the Obligations and liabilities of the Borrower to such Secured Party under this Agreement or any other Loan Document.

10.5.               Amendment or Waiver.

Except as otherwise provided herein, neither this Agreement nor any of the terms hereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing and signed by the Borrower and DOE.  Any amendment to or waiver of this Agreement or any of the terms hereof that constitutes a ‘modification’ within the meaning set forth in Section 502(9) of the Federal Credit Reform Act of 1990 and OMB Circular A-11 may be conditioned upon payment of any increase to the DOE Guaranteed Loan Credit Subsidy Cost by the Borrower.

10.6.               Entire Agreement.

This Agreement, including any agreement, document or instrument attached hereto or referred to herein (including the other Loan Documents), integrates all the terms and conditions mentioned herein or incidental hereto and supersedes all oral negotiations and prior agreements and understandings of the parties hereto in respect to the subject matter hereof.

10.7.               Governing Law.

This Agreement and the rights and obligations of the parties hereunder shall be governed by, and construed and interpreted in accordance with, the Federal law of the United States of America.  To the extent that Federal law does not specify the appropriate rule of decision for a particular matter at issue, it is the intention and agreement of the parties hereto that the law of the State of

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New York (without giving effect to its conflict of laws principles (except Section 5-1401 of the New York General Obligations Law) shall be adopted as the governing Federal rule of decision.

10.8.               Severability.

In case any one or more of the provisions contained in any Loan Document should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the parties thereto shall enter into good faith negotiations to replace the invalid, illegal or unenforceable provision.

10.9.               Financial Statements.