Draft Loan Guarantee Agreement GPC January 2012

7/30/2019 Draft Loan Guarantee Agreement GPC January 2012

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Chadbourne & Parke LLPDraft of January 30, 2012

CPAM: 1517411.18

LOAN GUARANTEE AGREEMENT

dated as of [_________]

among

GEORGIA POWER COMPANY, as Borrower,

U.S. DEPARTMENT OF ENERGY, as Guarantor,

and

U.S. DEPARTMENT OF ENERGY, as Loan Servicer

Plant Vogtle Nuclear Units 3&4

Burke County, Georgia


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ARTICLE 1 DEFINITIONS; RULES OF INTERPRETATION .................................................21.1. Definitions. ..............................................................................................................21.2. Rules of Interpretation. ............................................................................................21.3. Conflict with FFB Credit Facility Documents. .......................................................2

ARTICLE 2 FUNDING................................................................................................................22.1. Summary of Key Terms; Financial Plan. ................................................................22.2. Availability of Advances. ........................................................................................42.3. Mechanics for Requesting Advances. .....................................................................52.4. Mechanics for Funding Advances. ..........................................................................52.5. Advance Requirements under the FFB Credit Facility Documents. .......................62.6. No Approval of Work. .............................................................................................62.7. Borrower Funding Commitments. ...........................................................................6

ARTICLE 3 PAYMENTS; PREPAYMENTS .............................................................................63.1. Place and Manner of Payments. ..............................................................................73.2. Interest Provisions Relating to All Advances. .........................................................83.3. Prepayments. ...........................................................................................................93.4. Payment of Credit Subsidy Cost and Fees. ...........................................................103.5. Evidence of Debt. ..................................................................................................11

ARTICLE 4 CONDITIONS PRECEDENT TO ADVANCES ..................................................114.1. Conditions Precedent to Guarantee Issuance Date and Initial Advance. ..............11

4.2. Conditions Precedent to Each Advance. ...............................................................22

ARTICLE 5 REPRESENTATIONS AND WARRANTIES......................................................265.1. Organization. .........................................................................................................265.2. Authorization; No Conflict. ...................................................................................265.3. Legality; Validity; Enforceability..........................................................................265.4. Capitalization. ........................................................................................................275.5. [Intentionally Omitted] ..........................................................................................275.6. Title. ......................................................................................................................275.7. [Intentionally Omitted] ..........................................................................................275.8. Security Interests. ..................................................................................................275.9. [Intentionally Omitted] ..........................................................................................285.10. Required Consents. ................................................................................................285.11. Governmental Judgments. [FIRST ADVANCE ONLY] .....................................295.12. Tax. ........................................................................................................................295.13. [Intentionally Omitted] ..........................................................................................295.14. [Intentionally Omitted] ..........................................................................................295.15. Compliance with Governmental Rules. .................................................................29


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5.16. Environmental, Health and Safety Matters. ..........................................................30 5.17. Investment Company Act. .....................................................................................305.18. Regulation of Credit Parties. .................................................................................305.19. [Intentionally Omitted] ..........................................................................................305.20. ERISA. ..................................................................................................................30 5.21. [Intentionally Omitted] ..........................................................................................325.22. Intellectual Property. .............................................................................................325.23. No Defaults or Mandatory Prepayment Events .....................................................33 5.24. No Judgment Liens; No Delinquent Indebtedness. ...............................................335.25. Sufficiency of Project Documents. ........................................................................33 5.26. Financial Statements. .............................................................................................345.27. Project Milestone Schedule; Construction Budget; Project Plans; and

Borrower Base Case Projections. ..........................................................................34 5.28. Sufficient Funds. ...................................................................................................345.29. Fees and Enforcement. ..........................................................................................345.30. [Intentionally Omitted] ..........................................................................................35

5.31. [Intentionally Omitted] ..........................................................................................355.32. No Additional Fees. ...............................................................................................355.33. U.S. Government Requirements. ...........................................................................35 5.34. [Intentionally Omitted] ..........................................................................................375.35. Insolvency Proceedings; Solvency. .......................................................................37 5.36. Use of Proceeds. ....................................................................................................375.37. No Material Adverse Effect. [FIRST ADVANCE ONLY] .................................375.38. Certain Program Requirements. ............................................................................375.39. No Omissions. .......................................................................................................38 5.40. DOE Approval of Project Construction Contract Replacements. .........................385.41. No Revocation of Certification Order. ..................................................................38

5.42. . ........................................................................................385.43. [Other]. ..................................................................................................................39

ARTICLE 6 AFFIRMATIVE COVENANTS ...........................................................................39 6.1. Information Covenants. .........................................................................................396.2. Books, Records and Inspections; Accounting and Auditing Matters. ...................516.3. Maintenance of Insurance......................................................................................526.4. Maintenance of Existence......................................................................................526.5. [Intentionally Omitted] ..........................................................................................526.6. [Intentionally Omitted] ..........................................................................................526.7. [Intentionally Omitted] ..........................................................................................526.8. [Intentionally Omitted] ..........................................................................................526.9. [Intentionally Omitted] ..........................................................................................536.10. [Intentionally Omitted] ..........................................................................................536.11. Construction and Operation of Project. .................................................................53 6.12. Use of Proceeds. ....................................................................................................536.13. [Intentionally Omitted] ..........................................................................................536.14. [Intentionally Omitted] ..........................................................................................53

(b)(4)


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6.15. [Intentionally Omitted] ..........................................................................................536.16. [Intentionally Omitted] ..........................................................................................536.17. Maintenance of Liens. ...........................................................................................536.18. [Intentionally Omitted] ..........................................................................................546.19. Creation and Perfection of Security Interests; Additional Documents;

Filings and Recordings. .........................................................................................546.20. [Intentionally Omitted] ..........................................................................................556.21. [Intentionally Omitted] ..........................................................................................556.22. Acceptance and Startup Testing. ...........................................................................55 6.23. Technology. ...........................................................................................................55 6.24. Compliance with Certain U.S. Government Requirements. .................................566.25. . .....................................................59 6.26. Cargo Preference Act. ...........................................................................................596.27. [Other]. ..................................................................................................................59

ARTICLE 7 NEGATIVE COVENANTS ..................................................................................59

7.1. [Intentionally Omitted] ..........................................................................................607.2. Liens. .....................................................................................................................60 7.3. [Intentionally Omitted] ..........................................................................................607.4. [Intentionally Omitted] ..........................................................................................607.5. [Intentionally Omitted] ..........................................................................................607.6. [Intentionally Omitted] ..........................................................................................607.7. Corporate Existence. .............................................................................................607.8. [Intentionally Omitted] ..........................................................................................607.9. [Intentionally Omitted] ..........................................................................................607.10. [Intentionally Omitted] ..........................................................................................607.11. [Intentionally Omitted] ..........................................................................................607.12. Affiliate Transactions; Commissions. ...................................................................60 7.13. Amendment of Certain Project Documents. ..........................................................60 7.14. [Intentionally Omitted] ..........................................................................................617.15. [Intentionally Omitted] ..........................................................................................617.16. Material Modifications to Project Plans. ...............................................................61 7.17. [Intentionally Omitted] ..........................................................................................617.18. [Intentionally Omitted] ..........................................................................................617.19. [Intentionally Omitted] ..........................................................................................617.20. [Intentionally Omitted] ..........................................................................................617.21. [Intentionally Omitted] ..........................................................................................617.22. [Intentionally Omitted] ..........................................................................................617.23. [Intentionally Omitted] ..........................................................................................617.24. ERISA. ..................................................................................................................61 7.25. Investment Company Act. .....................................................................................627.26. [Intentionally Omitted] ..........................................................................................627.27. [Intentionally Omitted] ..........................................................................................627.28. [Intentionally Omitted] ..........................................................................................627.29. Replacement or Removal of the Operator or Owners' Agent. ...............................62

(b)(4)


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7.30. [Other]. ..................................................................................................................62ARTICLE 8 EVENTS OF DEFAULT; REMEDIES .................................................................62

8.1. Events of Default. ..................................................................................................628.2. Remedies for Events of Default. ...........................................................................688.3. Automatic Acceleration. ........................................................................................698.4. [Intentionally Omitted] ..........................................................................................698.5. Delivery of Remedies Instructions. .......................................................................708.6. Appointment of a Receiver. ...................................................................................708.7. DOE Independent Rights. ......................................................................................70

ARTICLE 9 AGENTS AND ADVISORS .................................................................................709.1. Appointment of Agents. ........................................................................................709.2. Duties and Responsibilities. ..................................................................................709.3. Rights and Obligations. .........................................................................................719.4. No Responsibility for Certain Conduct. ................................................................729.5. Defaults. ................................................................................................................739.6. No Liability. ..........................................................................................................749.7. Fees and Expenses of the Loan Servicer ...............................................................749.8. Resignation and Removal. .....................................................................................759.9. Successor Loan Servicers. .....................................................................................759.10. Due Authorization; Execution; Delivery. ..............................................................769.11. Actions. ..................................................................................................................769.12. Delegation of Duties. .............................................................................................769.13. Authority of the Loan Servicer. .............................................................................779.14. Force Majeure. .......................................................................................................779.15. Survival. ................................................................................................................77

ARTICLE 10 REIMBURSEMENT AGREEMENT ....................................................................7710.1. Reimbursement Obligation. ...................................................................................7710.2. Payments and Computations. ................................................................................7810.3. Obligations Absolute. ............................................................................................7810.4. Security. .................................................................................................................8010.5. DOE Rights. ..........................................................................................................8010.6. Further Assurances. ...............................................................................................81

ARTICLE 11 MISCELLANEOUS ..............................................................................................8111.1. Addresses. ..............................................................................................................8111.2. Further Assurances. ...............................................................................................8111.3. Delay and Waiver. .................................................................................................8211.4. Right of Set Off. ....................................................................................................8211.5. Amendment or Waiver. .........................................................................................83


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11.6. Entire Agreement. .................................................................................................8311.7. Governing Law. .....................................................................................................8311.8. Severability. ...........................................................................................................8311.9. Financial Statements. .............................................................................................8311.10. Limitation on Liability. .........................................................................................8411.11. Waiver of Jury Trial. .............................................................................................8411.12. Consent to Jurisdiction. .........................................................................................8411.13. Successors and Assigns. ........................................................................................8511.14. Participations. ........................................................................................................8511.15. Reinstatement. .......................................................................................................8511.16. No Partnership; Etc. ..............................................................................................8611.17. Payment of Costs and Expenses. ...........................................................................8611.18. Counterparts. .........................................................................................................8811.19. No Prejudice to IRS Determination of Tax Basis. ................................................8811.20. [Release of Collateral. ...........................................................................................89

Exhibits to the Loan Guarantee Agreement

Exhibit A DefinitionsExhibit B Rules of InterpretationExhibit C-1 Form of Borrower Guarantee Issuance Date CertificateExhibit C-2 Form of Borrower Advance Date CertificateExhibit D-1 Form of Lender's Engineer Guarantee Issuance Date

CertificateExhibit D-2 Form of Lender's Engineer Advance Date CertificateExhibit E Form of Insurance Advisor CertificateExhibit F Form of Advance NoticeExhibit G Davis-Bacon Act Required ProvisionsExhibit H Form of Lien Waivers and Releases1Exhibit I Form of Contractor AffidavitExhibit J Form of Intercreditor Agreement

Schedules to the Loan Guarantee Agreement2

1

Note to GPC: Exhibits H and I will be identical to the analogous exhibits of the Project ConstructionAgreement.

2 All representations and warranties that are only made as of the Guarantee Issuance Date and the relatedschedules will be deleted from the body of this Agreement and inserted as certifications and appendices toExhibit C-1 (Form of Borrower Guarantee Issuance Date Certificate). Those representations andwarranties have been retained in this draft for ease of comparison to prior drafts.


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Schedule 4.1.3(c) Rate Recovery AuthorizationSchedule 5.2 Outstanding Consents and ApprovalsSchedule 5.4 Equity Interests of the Borrower and Operator

Schedule 5.10 Required ConsentsSchedule 5.11 Governmental JudgmentsSchedule 5.12(b) Withholding TaxesSchedule 5.16 Hazardous SubstancesSchedule 6.3 Required InsurancesSchedule 6.24(h)(i) Davis-Bacon Act Wage DeterminationsSchedule 6.24(h)(iii) Davis-Bacon Act Covered ContractsSchedule 7.13 Provisions of Certain Project Documents Not to Be

Amended without DOE ConsentSchedule 11.1 Addresses


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CPAM: 1517411.18

LOAN GUARANTEE AGREEMENT

This LOAN GUARANTEE AGREEMENT (this "Agreement"), dated as of [_________],is by and among (i) Georgia Power Company, a corporation organized and existing under thelaws of the State of Georgia (the "Borrower"), (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") and (iii) the U.S. DEPARTMENT OF ENERGY, acting by and through theSecretary of Energy (or appropriate authorized representative thereof), as the loan servicer (insuch capacity, the "Loan Servicer").3

RECITALS

WHEREAS, the Borrower, together with each of the other Owners, intends to expand thefacilities at the existing nuclear power generating facility commonly known as the Alvin W.Vogtle Electric Generating Plant located in Burke County, Georgia, near Waynesboro, Georgia,on the west bank of the Savannah River, by developing, constructing, owning, operating and

maintaining a nuclear generating facility, consisting of two (2) Westinghouse AP1000 nuclearreactors, each with a nominally rated generating capacity of 1,102 MW, natural draft coolingtowers, intake and discharge structures, associated transmission facilities, fuel and ancillarystructures supporting the power generation process (together, the "Project"), located adjacent tosuch existing facility.

WHEREAS, the Borrower, in furtherance of its obligations with respect to the Project hasrequested that:

(i) FFB enter into the FFB Note Purchase Agreement to evidence itsagreement to make Advances in an aggregate principal amount not to exceed [three billion four

hundred sixty-two million four hundred nine thousand Dollars ($3,462,409,000)], and

(ii) the Guarantor guarantee the repayment of the DOE Guaranteed Loanpursuant to the DOE Guarantee.

WHEREAS, the execution of this Agreement is a condition precedent to DOE's issuanceof the DOE Guarantee, and FFB's receipt of the DOE Guarantee is a condition precedent toFFB's execution of the FFB Credit Facility Documents.

NOW, THEREFORE, in consideration of the foregoing, DOE's entering into thisAgreement, and other good and valid consideration, the receipt and adequacy of which arehereby expressly acknowledged, the parties hereby agree as follows:

3 In the next draft, the only parties to the LGA will be DOE and the Borrower, and all references to "LoanServicer" (except in Article 9 as appropriate) will be deleted or, as the context requires, replaced withreferences to "DOE" or "Guarantor".


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ARTICLE 1DEFINITIONS; RULES OF INTERPRETATION

1.1. Definitions.Except as otherwise expressly provided herein, capitalized terms used in this Agreement and itsexhibits 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 Bhereto 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 ofthis Agreement and the terms of any FFB Credit Facility Document, the terms of this Agreement,

as between the Borrower and the Credit Parties party thereto, shall control.

ARTICLE 2FUNDING

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 anyinconsistency between the provisions of this Section 2.1 and any other provision of thisAgreement, the provisions of this Agreement other than this Section 2.1 shall control:

Base Project Costs U.S. Dollars ($)

Eligible Base Project Costs

Ineligible Base Project Costs

Base Project Costs

Funding of Eligible Base Project Costs

FFB Credit Facility Commitment

Base Funding

Funding of Ineligible Base Project Costs

Base Funding


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Completion of Project

Anticipated Completion Date

Certain Key Terms

Last Day for an Advance

First Principal Payment Date

Maturity Date

[Other]4

2.1.2. Financial Plan.The proposed sources and uses of financing with respect to the Borrower's Undivided Interest are

set forth in the Financial Plan below:

SOURCES:

Debt

Maximum Amount of DOE Guaranteed Loan $

Borrower Funding

Base Funding $

Total BorrowerFunding

$

TOTAL SOURCES $

USES:5

Certified Plant in Service Costs: $_______

Independent Evaluator and monitoring Costs: $_______

Financing Cost: $_______

Nuclear Fuel Costs: $_______

4 DOE Loan Monitoring to advise what additional information, if any, should be included in the summary ofkey terms.

5 The "Uses" section of the Financial Plan to be developed by Borrower.


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Transmission Grid Costs: $_______

TOTAL USES (BASE PROJECT COSTS): $_______

2.2.

Availability of Advances.2.2.1. Availability.6

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

2.2.2. Loan Commitment Reductions and Cancellations.The Borrower may, on not less than fifteen (15) days prior written notice to the Loan Servicerand upon the satisfaction of any consent requirement or other applicable provisions of each FFB

Credit Facility Document, permanently reduce the unutilized portions of the FFB Credit FacilityCommitment, in whole or in part, but only if:

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

(b) the Borrower certifies in writing that such reduction could not reasonably beexpected to impair the completion of the Project by the Anticipated Completion Date; and

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

Once canceled, the FFB Credit Facility Commitment may not be reinstated, and once reduced,the FFB Credit Facility Commitment may not be increased.

2.2.3. No Obligation to Make Advances.Nothing in this Agreement obligates the Credit Parties to make Advances to the Borrower. AnyAdvances will be made solely by FFB pursuant to the FFB Credit Facility Documents.

6 Subject to FFB approval, DOE can agree to (b)(4)


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2.3. Mechanics for Requesting Advances.2.3.1. Advance Notices.(a) The Borrower may request an Advance by delivering to DOE and the Loan

Servicer, with a copy to the Lender's Engineer, at any time not less than eighteen (18) BusinessDays prior to the Requested Advance Date (except that such eighteen (18) Business Dayrequirement shall not apply in the case of the initial Advance), an appropriately completedAdvance Notice with respect to such Advance. Without DOE's written consent, the Borrowermay 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 inform and substance acceptable to DOE.

2.4. Mechanics for Funding Advances.2.4.1. Satisfaction of Conditions Precedent. If DOE determines that (i) the Advance

Notice has been satisfactorily completed, (ii) all conditions precedent set forth in Article 4applicable to the requested Advance have been satisfied (or waived) and (iii) the FFB AdvanceRequest and all other certificates and documentation required under the FFB Credit FacilityDocuments in respect of the requested Advance have been provided and are satisfactory (or havebeen waived), then, no later than fifteen (15) Business Days from DOE's receipt of the AdvanceNotice with respect to such Advance (except that such fifteen (15) Business Day requirementshall not apply in the case of the initial Advance), DOE shall sign the FFB Advance RequestApproval Notice attached to the FFB Advance Request accompanying such Advance Notice, andforward it together with such FFB Advance Request to FFB with a copy to the Borrower and theLender's Engineer.

2.4.2.

Drawstop Notices.

(a) Issuance. At any time after DOE forwards an Advance Notice to FFB and prior tothe FFB's making of the Advance requested therein, whether or not DOE has issued an FFBAdvance Request Approval Notice, DOE may issue a notice (a "Drawstop Notice") to FFBpursuant to Section 7.4(d) of the FFB Note Purchase Agreement or otherwise pursuant to theFFB Credit Facility Documents, indicating that DOE has determined that:

(i) the conditions in Article 4 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 CreditFacility Documents are not met or, having been met, are no longer met.

(b) Consequences. If a Drawstop Notice is issued, the requested Advance shall notbe made, unless DOE shall have delivered a notice to FFB indicating that DOE has waived theconditions precedent referred to in clauses (a)(i) and (ii) that were not met or were no longer metor that such conditions precedent have been met to its satisfaction (such notice, a "DrawstopWithdrawal Notice"). The issuance of a Drawstop Notice shall not preclude the Borrower from


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resubmitting an Advance Notice within the same or subsequent calendar quarter(notwithstanding Section 2.3.1) with respect to all or any portion of the same Advance.

(c) Costs. The Borrower shall pay all expenses incurred by DOE, FFB, the LoanServicer and the Collateral Agent (including all fees and Periodic Expenses of the IndependentConsultants) in respect of any Advance that is not made due to the issuance of a DrawstopNotice.

2.4.3. No Liability.Without limiting the generality of Section 9.6, no Credit Party shall have any liability to theBorrower or any Affiliate thereof or to any other Person solely arising from the failure to issuefor any reason (including due to an Uncontrollable Cause as defined both hereunder and in theFFB Note Purchase Agreement) any FFB Advance Request Approval Notice, Drawstop Notice,or any other notice contemplated by this Section 2.4, except in each case to the extent of suchCredit Party's gross negligence or willful misconduct as determined by a court of competentjurisdiction in a final non-appealable Governmental Judgment.

2.5. Advance Requirements under the FFB Credit Facility Documents.Notwithstanding anything to the contrary contained in this Article 2, the Borrower also shallcomply with all disbursement requirements set forth in the FFB Credit Facility Documents.

2.6. No Approval of Work.None of (x) the signing of any FFB Advance Request Approval Notice by DOE, (y) DOE'sforwarding any FFB Advance Request Approval Notice, FFB Advance Request or AdvanceNotice to FFB or (z) the making of any Advance under the Loan Documents shall be deemed an

approval or acceptance by any Credit Party of any work, labor, supplies, materials or equipmentfurnished or supplied with respect to the Project.

2.7. Borrower Funding Commitments.Prior to or concurrently with each Advance, the Borrower agrees to pay from sources other thanthe DOE Guaranteed Loan, (i) at least 30% of the sum of the Eligible Base Project Costs beingfinanced or reimbursed using the proceeds of such Advance plus all other Eligible Project Costsincurred to date and 100% of all Ineligible Base Project Costs previously incurred or thenrequired to be paid (such obligation, the "Base Funding Commitment") and (ii) 100% of allOverrun 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 shallterminate (a) upon the occurrence of any Mandatory Prepayment Event described in clause (iii)or (iv) of the definition of Mandatory Prepayment Event or (b) in the event the FFB CreditFacility Commitment is terminated for any reason.

ARTICLE 3PAYMENTS; PREPAYMENTS


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3.1. Place and Manner of Payments.3.1.1. Generally.

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

3.1.2. Net of Tax, Etc.(a) Tax. Any and all payments to any Credit Party by the Borrower hereunder or

under any other Loan Document shall be made free and clear of, and without deduction for, anyand all Taxes excluding (i) taxes imposed on or measured by the net income (howeverdenominated) of such Credit Party by any jurisdiction or any political subdivision or taxingauthority thereof or therein solely as a result of a present or former connection between suchCredit Party and such jurisdiction or political subdivision (other than any connection arising as aresult of the transactions contemplated by the Loan Documents), and (ii) any withholding Taxesor other Tax based on gross income imposed by the United States of America (all such Taxes,

"Covered Taxes"). If the Borrower shall be required by law to withhold or deduct any CoveredTaxes from or in respect of any sum payable hereunder or under any other Loan Document toany Credit Party, (A) the sum payable shall be increased as may be necessary so that aftermaking all such required deductions (including deductions applicable to additional sums payableunder this Section 3.1.2), such Credit Party receives an amount equal to the sum it would havereceived 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 otherauthority in accordance with all Governmental Rules. If the Borrower shall make any paymentwith respect to Covered Taxes under this clause (a) to or for the benefit of any Credit Party and ifsuch Credit Party shall claim any credit or deduction for such Covered Taxes against any otherTaxes payable by such Credit Party that are not Covered Taxes, then such Credit Party shall pay

to the Borrower an amount equal to the amount such Credit Party determines, absent manifesterror, is the amount by which such other Taxes are actually reduced; provided that the aggregateamount payable by such Credit Party pursuant to this sentence shall not exceed the aggregateamount previously paid by the Borrower with respect to such Covered Taxes.

(b) Indemnity. The Borrower shall indemnify each Credit Party for the full amountof Covered Taxes (including any Covered Taxes imposed by any jurisdiction on amountspayable under this Section 3.1.2) paid by any Credit Party, whether or not such Covered Taxeswere correctly or legally asserted. Each Credit Party shall give notice to the Borrower of theassertion of any claim against such Credit Party relating to such Credit Party's Covered Taxes aspromptly 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 obligationunder this Section 3.1.2, except, with respect to any such notice given by a Credit Party morethan ninety (90) days after such Credit Party has notice or knowledge of such claim, to the extentthat the Borrower is actually prejudiced by such failure. Payments by the Borrower pursuant tothis indemnification shall be made within ten (10) days after the date such Credit Party makeswritten demand therefor (which may be submitted through the Loan Servicer), which demandshall be accompanied by a certificate describing in reasonable detail the basis thereof. EachCredit Party agrees to repay to the Borrower any refund (including that portion of any interest


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that was included as part of such refund with respect to Covered Taxes paid by the Borrowerpursuant to this clause (b) for the period following such Borrower payment) received by suchCredit Party for Covered Taxes that were paid by the Borrower pursuant to this clause (b), and toprovide reasonable assistance to the Borrower (at the expense of the Borrower) to contest anysuch Covered Taxes that such Credit 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 bythe Borrower, the Borrower shall furnish to each affected Credit Party the original or a certifiedcopy of a receipt evidencing such payment or, if the relevant tax authority has not provided theBorrower with such a receipt, shall furnish such other evidence of such payment as may beavailable to the Borrower (in which case the Borrower shall promptly request a receipt from therelevant tax authority, and so furnish the original or a certified copy thereof promptly on receiptthereof). The Borrower shall compensate each Credit Party for all reasonable losses andexpenses sustained by such Credit Party as a result of any failure by the Borrower to so furnishsuch copy of such evidence or, if available, such receipt.

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

3.2. Interest Provisions Relating to All Advances.3.2.1. Interest Account and Interest Computations.(a) In accordance with Section 609.10(e)(1) of the Applicable Regulations, interest

shall accrue on the unpaid principal amount of each Advance from the date such Advance isdisbursed or deemed disbursed pursuant to the FFB Credit Facility Documents, to the date suchAdvance is paid in full, at a rate per annum relating thereto as specified in the FFB Promissory

Note.

(b) The Borrower hereby authorizes the Loan Servicer to record in an account oraccounts maintained by the Loan Servicer on behalf of DOE (A) the interest rates applicable toall Advances, (B) the interest periods for each Advance outstanding, (C) the date and amount ofeach principal and interest payment on the DOE Guaranteed Loan, and (D) such otherinformation as DOE or the Loan Servicer may determine is necessary for the computation ofinterest payable by the Borrower hereunder.

(c) All computations of interest (including with respect to the Late Charge Rate onOverdue Amounts or any unpaid amounts under the Loan Documents[, but excluding interestpursuant to Section 3.2.3]) shall be made as set forth in the relevant FFB Credit FacilityDocuments.

(d) The parties to this Agreement acknowledge that the amount of interest permittedto be capitalized in accordance with the FFB Promissory Note is zero (0).

3.2.2. Interest Payment Dates.


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Subject to the terms of the FFB Credit Facility Documents, the Borrower shall pay accruedinterest on the outstanding principal amount of each Advance on each Quarterly Payment Date,on prepayment (to the extent thereof), and at maturity (whether by acceleration or otherwise).

3.3. Prepayments.3.3.1. Terms of all Prepayments.(a) With respect to any prepayment of the DOE Guaranteed Loan, in whole or in part,

and whether such prepayment is voluntary or mandatory, including a prepayment uponacceleration, the Borrower shall comply with all applicable terms and provisions of the FFBCredit Facility Documents and this Agreement.

(b) All prepayments of the DOE Guaranteed Loan shall be applied in accordancewith, and shall be subject to the terms and conditions (including conditions as to prepaymentpremiums or discounts) as set forth in, the FFB Credit Facility Documents.

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

3.3.2. Voluntary Prepayments.(a) Prior to Commercial Operation of the Second Unit, without the consent of DOE,

the Borrower may not prepay the DOE Guaranteed Loan (i) in part or (ii) in whole unless, in thecase of this clause (ii), the Borrower simultaneously cancels the outstanding FFB Credit FacilityCommitment.

(b) After Commercial Operation of the Second Unit has occurred, the Borrower mayprepay 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 the Credit Parties and FFB.Any prepayment in whole or in part shall be subject to satisfaction of the following conditions:

(i) compliance with any restrictions contained in the FFB Credit FacilityDocuments, including satisfaction of any minimum amount requirement of the FFB CreditFacility Documents; and

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

(c) Any prepayment pursuant to this Section 3.3.2 shall be applied as directed by theBorrower in accordance with the FFB Promissory Note.

3.3.3. Mandatory Prepayments.(a) Mandatory Prepayments in Connection with Certain Events of Taking. If, as a

result of any Event of Taking, any Condemnation Proceeds for the account of the Borrower are


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received by or on behalf of the Borrower, the Borrower shall be required to make a mandatoryprepayment of the DOE Guaranteed Loan in the amount of all such Condemnation Proceeds.Each mandatory prepayment under this clause (a) shall be made on the Payment Dateimmediately following the receipt of such Condemnation Proceeds.

(b) Mandatory Prepayment Events. Upon the occurrence of a Mandatory PrepaymentEvent:

(i) DOE may (A) suspend or terminate the commitment to guarantee anyfurther Advances and (B) shall not be required to (1) review any Advance Notice or (2) forwardto FFB any FFB Advance Request Approval Notice;

(ii) the Loan Servicer may deliver a Mandatory Prepayment Notice to theBorrower.

(c) Effect of Notice. Upon delivery to the Borrower of a Mandatory PrepaymentNotice, the Availability Period shall immediately terminate, and the Borrower shall be required

to prepay the outstanding principal amount of the DOE Guaranteed Loan, commencing on thenext Quarterly Payment Date immediately following the Borrower's receipt of such notice, intwenty (20) consecutive quarterly installments (each reflecting an equal amount of principalrepayment) on each Quarterly Payment Date. Subject to Section 2.7, from and after the deliveryof a Mandatory Prepayment Notice, the Borrower shall continue to perform and observe all otherobligations under the Loan Documents to which it is a party until the Secured Obligations shallhave been paid in full, subject in all cases to the survival of any provisions of the LoanDocuments that survive such payment in full.

(d) All prepayments pursuant to this Section 3.3.3 shall be applied pro rata amongstthe principal of each outstanding Advance and, as to each Advance, to the scheduled repayments

of outstanding principal of such Advance in inverse order of maturity.

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 SubsidyCost in respect of the DOE Guarantee, as determined by DOE and approved by OMB (the "DOEGuaranteed Loan Credit Subsidy Cost"), and (iii) in accordance with subsection (c), the initialinstallment of the DOE Maintenance Fee.

(b) The Borrower shall pay to FFB the fees payable to FFB from time to time inaccordance with the requirements of the FFB Credit Facility Documents.

(c) The Borrower shall pay to DOE, for its own account, the DOE Maintenance Feeeach year in advance over the term of the DOE Guaranteed Loan, commencing on the GuaranteeIssuance Date, and on January 1 of each calendar year thereafter; provided that (i) for thecalendar year in which the Agreement Date occurs, the DOE Maintenance Fee shall be pro-ratedon a daily basis for the number of days starting with the Agreement Date and ending onDecember 31 of such calendar year and (ii) for the calendar year in which the Maturity Date isscheduled to occur, the DOE Maintenance Fee shall be pro-rated on a daily basis for the number


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of days starting with January 1 of such calendar year and ending on the Maturity Date, providedthat, in the case of this subclause (ii), if all Secured Obligations have not been satisfied as of theMaturity Date, then the Borrower shall promptly pay to DOE the balance of the DOEMaintenance Fee for such calendar year.

(d) The Borrower shall pay to DOE the DOE Modification ReimbursementPayments, 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 immediatelyavailable funds in Dollars, to DOE or FFB, as applicable. Once paid, the DOE Guaranteed LoanFees shall not be refundable under any circumstances.

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

U.S. Treasury Department

ABA No. 0210-3000-4 TREASNYC/CTR/BNF =D89000001OBI = LGPO Loan No. [___]

3.5. Evidence of Debt.(a) The Loan Servicer shall maintain, in accordance with its usual practice, internal

records evidencing the amounts from time to time (i) advanced by FFB under the FFB NotePurchase Agreement, (ii) paid by DOE with respect to the DOE Guarantee and, (iii) principaland interest amounts paid by the Borrower with respect to the foregoing.

(b) In the event of any conflict among the records of the Loan Servicer and FFB, therecords of FFB shall prevail.

ARTICLE 4CONDITIONS PRECEDENT TO ADVANCES

4.1. Conditions Precedent to Guarantee Issuance Date and Initial Advance.The obligation of the Guarantor to issue the DOE Guarantee and forward to FFB the FFBAdvance Request Approval Notice with respect to the initial Advance is subject to the priorsatisfaction (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 GuaranteeIssuance Date and to their continued satisfaction on the Advance Notice Date and the AdvanceDate for the initial Advance.

4.1.1. Loan Documents.The Loan Servicer shall have received fully executed originals, in sufficient counterparts foreach Credit Party that is a party thereto, of each of the following documents:


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(a) Loan Guarantee Agreement. This Agreement.(b) FFB Credit Facility Documents. Each of the following FFB Credit Facility

Documents:

(i) the FFB Program Financing Agreement;(ii) the FFB Note Purchase Agreement;(iii) the FFB Promissory Note;(iv) the DOE Guarantee; and(v) 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].7(d) Security Documents. Each of the following Security Documents:

(i) the [Deed to Secure Debt/Mortgage]8(ii) the Collateral Agency Agreement; and(iii) all other documents, certificates and instruments required under the

Security Documents and this Agreement to be delivered on or before the Guarantee IssuanceDate in connection with the foregoing.

(e) Direct Agreements. Each of the following Direct Agreements:(i) a consent and direct agreement among the Owners, the Owners' Agent, the

Borrower, Midland (as Collateral Agent, and as collateral agent with respect to each DOEguaranteed financing entered into after the Agreement Date with respect to an undivided interestin the Project directly or indirectly owned by MEAG (the "MEAG Collateral Agent")), and U.S.

7

References to "Intentionally Omitted" in this Agreement will be deleted once the draft is substantially final.8

(b)(4)


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Bank National Association, as successor to SunTrust Bank, formerly known as SunTrust Bank,Atlanta, as trustee under the Indenture, dated as of March 1, 1997, with OPC (the "Trustee");9

(ii) a consent and direct agreement among the Operator, the Owners' Agent,Midland (as Collateral Agent and MEAG Collateral Agent) and the Trustee;

(iii) a consent and direct agreement among the Owners' Agent,, Midland (as Collateral Agent and MEAG Collateral Agent) and the

Trustee;

(iv) [a consent and direct agreement with respect to theamong the Owners' Agent, [ Midland (as Collateral Agent

and MEAG Collateral Agent) and the Trustee;]

(v) a consent and direct agreement among , the Owners'Agent, and Midland (as Collateral Agent and MEAG Collateral Agent) and the Trustee; and

(vi) a consent and direct agreement among the Owners'Agent, Midland (as Collateral Agent and MEAG Collateral Agent) and the Trustee.104.1.2. Principal Project Documents.11

The Loan Servicer shall have received fully executed copies of each of the following documents,each certified by the Borrower that (x) such copy is a true, correct and complete copy of suchdocument (including all schedules, exhibits, attachments, supplements and amendments theretoand any related protocols or side letters), (y) such document has been duly executed anddelivered by the Borrower (as applicable) and is in full force and effect, and (z) neither theBorrower 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 exceptfor any such breach that could not reasonably be expected to have a material adverse effect onthe completion or operation of the Project.12

(a) Land Documents13. Each of the following Land Documents:

9 DOE is analyzing whether the rights contemplated under this direct agreement can be achieved pursuant toan amendment to the Ownership Agreement.

10 Other required Direct Agreements subject to additional due diligence.

11 GPC to provide DOE with copies of the Land Documents,.

12 The list will contain the "Principal Project Documents" and will be refined based on results of continuingdue diligence.

13 Subject to further due diligence by GPC's and DOE's real property specialists. GPC to provide title search.

(b)(4)

(b)(4)

(b)(4)

(b)(4)

(b)(4)

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(i) [any agreements regarding land purchase]; and(ii) the title deed or deeds for the Project Site.

(b) Construction Contracts14. Each of the following Construction Contracts:(i) the Project Construction Contract; and(ii) ].15

(c) Operating Documents. Each of the following Operating Documents:(i) the (other than those entered into after the

Guarantee Issuance Date);

(ii) the Fuel Disposal Agreements (other than those entered into after theGuarantee Issuance Date);

(iii) the Nuclear Operating Agreement; and(iv) the .

(d) Owner Documents. Each of the following Owner Documents:(i) the Development Agreement;(ii) the Nuclear Managing Board Agreement;(iii) the Ownership Agreement;(iv) the Declaration of Covenants;(v) the Cost Allocation Procedures; and(vi) the Operating Agreement.

(e) the Letter Agreement for Construction Services;(f) the ; and(g) the .

14

15

(b)(4)

(b)(4)

(b)(4)

(b)(4)

(b)(4)

(b)(4)


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4.1.3. Pre-Closing Project Costs Report; Rate Recovery Authorization.(a) The Loan Servicer shall have received a detailed description, with supporting

documents as reasonably requested by DOE, of Project Costs incurred and paid by the Borroweror any Affiliate of the Borrower prior to the Guarantee Issuance Date specifying those ProjectCosts for which the Borrower seeks credit to be applied toward Base Funding, together with acertificate of each of the Lender's Engineer and the Borrower certifying that such amounts havebeen applied in accordance with the Construction Budget.

(b) The Loan Servicer shall have received:(i) copies of the final amended certification order and all orders on remand

entered by the Georgia PSC in Docket No. 27800-U, which orders evidence the Borrower's rightto recover certified Project Costs through regulated rates in accordance with and subject to therequirements of applicable Georgia law (Official Code of Georgia Annotated, 46-3A-1 through46-3A-11);

(ii) copies of each order entered by the Georgia PSC on the semi-annualconstruction monitoring reports filed by the Borrower pursuant thereto through the GuaranteeIssuance Date, which orders verify and approve the expenditures made pursuant to the certificateissued by the Georgia PSC or approve, or modify without any material adverse effect on theBorrower's ability to recover Project Costs, any proposed revisions to such certificate; and

(iii) copies of each order in Georgia PSC Dockets 31958 and 32539 approvingas filed, or modifying without any adverse effect on the Borrower's ability to recover financingcosts associated with the Project, the Nuclear Construction Cost Recovery Schedule (NCCR)tariff (the "NCCR Tariff") through the Guarantee Issuance Date.

(c)

The Loan Servicer shall have received a Borrower Certificate, dated as of theGuarantee Issuance Date, certifying that the documents provided pursuant to Section 4.1.3(b)permitted the Borrower to recover the Base Project Costs and Overrun Project Costs (if any)incurred through the Guarantee Issuance Date through rates regulated by the Georgia PSC except(A) as set forth on Schedule 4.1.3(c) and (B) that the Borrower's inability to recover any suchcosts as set forth on Schedule 4.1.3(c) through regulated rates could not reasonably be expectedto have a material adverse effect on the ability of the Borrower to repay Advances when due orthe ability of the Project to be completed.

4.1.4. Borrower Base Case Projections; Project Milestone Schedule; ConstructionBudget; Advance Schedule; Employment Projections.

The Loan Servicer shall have received, at least thirty (30) days prior to the Guarantee IssuanceDate (or such shorter period as may be satisfactory to DOE), the following items, certified by theBorrower in a Borrower Certificate as prepared in good faith based upon assumptions believedby the Borrower to be reasonable, in each case as of the date of preparation and as of theGuarantee Issuance Date:


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(a) the Borrower Base Case Projections, including a computer file containing theBorrower Base Case Projections and the underlying models and assumptions and explanationsthereto;

(b) the Project Milestone Schedule;(c) the Construction Budget;(d) the Advance Schedule; and(e) 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. The Loan Servicer shall have received (i) the

most recent audited and unaudited Financial Statements from each of the Borrower, The Shaw

Group, Inc. and Toshiba Corporation, and (ii) a Financial Officer Certificate with respect to theBorrower's Financial Statements that certifies that the Borrower has attached true, complete andcorrect copies of such Financial Statements and includes the certifications set forth in Section6.1(f).

(b) No Material Adverse Effect. DOE shall have determined that no event orcondition shall have occurred since the date of the most recent audited and unaudited FinancialStatements of the Borrower delivered to the Loan Servicer that had or could reasonably beexpected to have a material adverse effect on the business, properties or financial condition ofthe 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 andconditions of the Conditional Commitment or (ii) at least thirty (30) days prior to the GuaranteeIssuance Date (or such shorter period as may be satisfactory to the DOE), the Loan Servicer shallhave received a written summary of any such changes, which shall be reflected in an amendmentto the Conditional Commitment and in this Agreement.

4.1.7. Update of Credit Rating.The Loan Servicer shall have received a credit rating of the Borrower from Moody's, S&P orFitch dated no more 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 thatthe FFB Credit Facility Commitment does not benefit from the DOE Guarantee.

4.1.8. COL; Required Consents.The Loan Servicer shall have received (i) certification from the Borrower, together with suchother evidence as the Loan Servicer may request, that all necessary consents and waivers underany other current Indebtedness or Other Obligations of the Borrower have been duly obtained


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and are not subject to any conditions, except as disclosed to, and as are satisfactory to, DOE onSchedule 5.10, (ii) certification from the Borrower, together with such other evidence as theLoan Servicer may request, that the COL, Georgia PSC approval of the issuance of indebtednessunder the Loan Documents, and all other Required Consents listed on Schedule 5.10 (exceptthose identified on Schedule 5.10 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 forthe waiting periods and appeals that are disclosed to, and as are satisfactory to, DOE onSchedule 5.10), and (iii) a copy of the COL, Georgia PSC approval of the issuance ofindebtedness under the Loan Documents, and each such other Required Consent, certified by theBorrower as being true, correct and complete.

4.1.9. Project Plans.The Loan Servicer shall have received the Project Plans for the design, development, financing,construction, implementation, operation and management of the Project, certified by the Lender'sEngineer as being satisfactory.

4.1.10.Insurance.[The Loan Servicer shall have received (i) certification from the Borrower and the InsuranceAdvisor that all Required Insurance is in place, and in full force and effect without default and allpremiums due thereon (x) have been paid in full, (y) are to be paid with the proceeds of theinitial Advance, or (z) are to be paid by other arrangements satisfactory to DOE, and(ii) certificates or policies with respect to all Required Insurance, designating the CollateralAgent as loss payee, as appropriate, and the Secured Parties as additional insureds, certified bythe Borrower and the Insurance Advisor as being true, correct and complete.]16

4.1.11.Notice to Proceed.The Loan Servicer shall have received a copy of the "Full Notice to Proceed" (as defined in theProject Construction Contract), certified by the Borrower as a true, complete and correct copy.

4.1.12.[Intentionally Omitted]4.1.13.Security Interests.(a) Security Interests. The Loan Servicer shall have received evidence that all Liens

in the Collateral intended to be created by the Security Documents have been created and, whereappropriate, have been (or, subject to arrangements satisfactory to DOE, will be) registered orotherwise perfected to create a first priority perfected Lien, subject only to Permitted Liens, over

the Collateral in favor of the Collateral Agent. Each such Lien (i) to the extent it arises orattaches under the Uniform Commercial Code of any jurisdiction in the U.S., shall be valid and

16 All insurance provisions to be reviewed by the Insurance Advisor.


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enforceable and, subject only to Permitted Liens, shall constitute a first priority perfectedsecurity interest, and (ii) in all other cases, shall be enforceable against the Borrower, anysubsequent lienor (including a judgment lienor), any junior lienor, or any transferee for or not forvalue, in bulk, by operation of law, for the benefit of creditors, or otherwise.

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

4.1.14.Authority and Incumbency of Major Project Participants.The Loan Servicer shall have received certified copies of each of the Borrower's and the

Operator's Organizational Documents, good standing certificates, incumbency certificates andresolutions, and any other such documents as the Loan Servicer may reasonably request, withrespect to approval of (i) each such Major Project Participant's participation in the Project, (ii) inthe case of the Borrower, the financing therefor and the granting of Liens pursuant to theSecurity Documents, and (iii) the execution, delivery and performance by each such MajorProject Participant of the Transaction Documents (including any Direct Agreement) to which itis party.

4.1.15.Guarantee Issuance Date Certificates.The Loan Servicer shall have received:

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

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

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

4.1.16.Legal Opinions.


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The Loan Servicer shall have received legal opinions, dated the Guarantee Issuance Date andfrom legal counsel satisfactory to DOE, with respect to the laws of the jurisdictions governingthe Transaction Documents to which each of the Borrower, the Operator

r17 is a party and the laws of the jurisdictions of organization of each suchProject Participant, including the laws of the State of New York, the State of Georgia and the

General Corporation Law of the State of Delaware. Such legal opinions shall include thefollowing: (i) due authorization, execution, delivery and enforceability of the TransactionDocuments to which such Project Participant is a party, (ii) creation and perfection of securityinterests, (iii) receipt of all Governmental Approvals necessary to (1) recover Project Coststhrough electricity rates regulated by the Georgia PSC, (2) construct and operate the Project(other than those Governmental Approvals not required to be obtained as of such date), (3) (inthe case of the Borrower) enter into financing arrangements with respect to the Project and(4) enter into the applicable Transaction Documents, and that such Governmental Approvals arein full force and effect and all applicable appeal periods have expired, except for any waitingperiods and appeals that have been disclosed to DOE, (iv) DOE will not be regulated as anelectric 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, and(v) absence of conflicts with law, material agreements identified in such opinion letter orOrganizational Documents.

4.1.17.Lender's Engineer Report.The Loan Servicer shall have received a Lender's Engineer Report, dated as of the GuaranteeIssuance Date, addressing such matters as DOE may reasonably request.

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

Subsidy Cost in accordance with the Program Requirements.

(b) Each of DOE and FFB shall have received all amounts then due and payable to itpursuant to Section 3.4.

4.1.19.Lobbying Certification.The Loan Servicer shall have received evidence that the Borrower has provided a StandardForm-LLL "Disclosure Form to Report Lobbying".

4.1.20.Land Acquisition.

17

(b)(4)

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(a) Title to Project Site. The Loan Servicer shall have received (i) evidence of theBorrower's ownership of unencumbered fee simple title (subject only to Permitted Liens), underthe relevant laws of the State of Georgia, to the real estate comprising the Borrower's UndividedInterest, (ii) the [ALTA Survey]18 with respect to the Project Site, and (iii) an ALTA Form 2006Mortgagee Policy of Title Insurance (or similar policy form) issued by the Title Company, with

such coinsurers or reinsurers as may be reasonably acceptable to the Loan Servicer, in theaggregate amount of not less than 19 insuring as ofthe Guarantee Issuance Date that the [Deed to Secure Debt/Mortgage] creates a first and priorLien and security title on Borrower's Undivided Interest in and to the Project Site subject only toPermitted Liens and containing all endorsements requested by the Loan Servicer and available inthe State of Georgia.20

4.1.21.Intellectual Property.The Loan Servicer shall have received evidence that the Borrower, the Owners' Agent and theOperator own or hold (or have available to them on commercially reasonable terms) a valid andenforceable 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 IntellectualProperty Rights granted or conferred under the Project IP License Agreements).

4.1.22.[Intentionally Omitted]4.1.23.Environmental.

(i) DOE has conducted an environmental assessment for the Project Site pursuant to NEPA; (ii)DOE has issued a Finding of No Significant Impact with respect to the Project Site; and (iii) theProject is in compliance with NEPA.

4.1.24.Fuel Supply and Disposal.

The Loan Servicer shall have received evidence, including a certification from the Lender'sEngineer, that the implementation plans for the Project are sufficient to provide supply anddisposal of nuclear fuel required to operate the Project in accordance with the COL, allapplicable Governmental Rules and the terms of the Fuel Supply Agreements.

4.1.25.[Intentionally Omitted]

18 GPC to advise what survey is available and provide a copy to DOE.

19

20 GPC to provide title commitment and title search, and all other real property related documents thatChadbourne has requested to date.

(b)(4)

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4.1.26.Conditions Precedent to Each Advance.Each condition precedent to an Advance under Section 4.2 shall have been satisfied (with anyreference in Section 4.2 to an Advance Date being deemed for purposes of this Section 4.1.26 torefer to the Guarantee Issuance Date).

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

4.1.28.Conditions Precedent in Transaction Documents.The Loan Servicer shall have received such evidence as the Loan Servicer may request, that (a)all conditions precedent to the obligations of any party to be performed as of the GuaranteeIssuance Date under the Project Construction Contract or any other contract necessary for theconstruction of the Project have been satisfied and (b) all contracts that are required under the

Project Plans to be in place as of the Guarantee Issuance Date are in full force and effect.

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

Issuance Date shall have been satisfied.

(b) Central Contractor Registration. The Borrower has registered in the CCRdatabase.

(c) Patriot Act. Each of DOE and FFB have received all documentation and otherinformation required by regulatory authorities under the applicable "know your customer" and

anti-money laundering rules and regulations, including the Patriot Act, customarily deliveredto financial institutions in connection with a transaction such as the issuance of the DOEGuaranteed Loan.

4.1.30.Due Diligence Review.The Loan Servicer shall have received from DOE confirmation that it has completed its duediligence review of the Project, the Borrower, the Operator and all other matters related theretoand that the results thereof are satisfactory to DOE.

4.1.31.DOE Approvals.DOE has received each of the following: (i) evidence that OMB has reviewed and approvedDOE's calculation of the DOE Guaranteed Loan Credit Subsidy Cost as of the GuaranteeIssuance Date, (ii) the action memorandum duly executed and delivered by the Secretary ofEnergy, authorizing the execution by DOE of the Loan Documents to which it is a party and theapportionment of the DOE Guaranteed Loan Credit Subsidy Cost and (iii) evidence that theForm SF132 Apportionment Request has been approved by OMB and the apportionment hasoccurred.


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4.1.32.[Intentionally Omitted]4.1.33.Davis-Bacon Compliance.

The Loan Servicer shall have received a Borrower Certificate, dated as of the Guarantee IssuanceDate, certifying that the Borrower and all DBA Contract Parties are in compliance with allDavis-Bacon Requirements.

4.1.34.OMB Certification.OMB shall have certified in writing that the FFB Credit Facility Commitment, the DOEGuaranteed Loan and the Project comply with the provisions of the Omnibus AppropriationsAct, 2009, P.L. No. 111-8, Division C, Title III, as amended by Section 408 of the SupplementalAppropriations Act, 2009, P.L. No. 111-32.

4.1.35.[Other].[Additional conditions identified by DOE following due diligence.]

4.2. Conditions Precedent to Each Advance.The obligation of the Guarantor to guarantee each Advance, including the initial Advance, issubject to the prior satisfaction (or waiver in writing), as determined in all cases by DOE, of eachof the following conditions precedent (and of any deliverable, as to its form and substance) as ofthe Advance Notice Date and to their continued satisfaction on the Advance Date for suchAdvance:

4.2.1. Updated Advance Schedule; Application of Advance Proceeds.The Loan Servicer shall have received:

(a) either (i) a proposed updated Advance Schedule, reflecting any changes to theestimated timing and amounts of proposed Advances and Base Funding to be provided, andcertified by the Lender's Engineer as being consistent in all material respects with the ProjectPlans, the Construction Budget and the Project Milestone Schedule, provided that if suchproposed updated Advance Schedule accelerates the estimated date of disbursement of anyAdvance amounts reflected in the then current Advance Schedule, the Borrower shall have paidany corresponding increase to the DOE Guaranteed Loan Credit Subsidy Cost that may berequired to the extent such change constitutes a 'modification' within the meaning set forth inSection 502(9) of the Federal Credit Reform Act of 1990 and OMB Circular A-11, or (ii) a

certification from the Borrower that no changes to the then-current Advance Schedule arerequired; and

(b) certification from the Borrower and the Lender's Engineer that the proceeds of therequested Advance will be needed for Eligible Project Costs that have been incurred by theapplicable Requested Advance Date, together with a description in reasonable detail of suchEligible Project Costs.


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4.2.2. Lien Waivers.With respect to each invoice of the Project Construction Contractor that is the subject of anAdvance Request (whether via direct payment to the Project Construction Contractor or viareimbursement to the Borrower), the Loan Servicer shall have received copies of (a) lien waiversand releases, in the form attached as Exhibit H, with respect to all work reflected in such invoiceand (b) in the case of the invoice for the final payment from the Owners under the ProjectConstruction Contractor, the Project Construction Contractor's affidavit in the form attached asExhibit I.

4.2.3. Fees and Expenses.The Loan Servicer shall have received certification from the Borrower, and such other evidenceas the Loan Servicer may reasonably request, that all DOE Guaranteed Loan Fees, all PeriodicExpenses, and all recordation and other costs and fees including those due in connection with theexecution, delivery, filing, registration, or performance of the Loan Documents, the creation andperfection of the Liens in the Collateral pursuant to the Security Documents, in each case

incurred and invoiced prior to the relevant date (x) have been paid in full, (y) are to be paid withthe proceeds of any requested Advance (only in the event that such amounts are Eligible ProjectCosts), or (z) are to be paid by other arrangements satisfactory to DOE.

4.2.4. Consents and Approvals.The Loan Servicer shall have received copies, certified by the Borrower as being true, correctand complete and being in full force and effect, of all Required Consents as may be required inconnection with the proposed Advance and as of the Advance Date, other than RequiredConsents that have been delivered to the Loan Servicer previously or which, if not obtained as ofthe Advance Date, could not reasonably be expected to have a Material Adverse Effect or a

material adverse effect on the ability of the Project to be completed.

4.2.5. [Intentionally Omitted]4.2.6. [Intentionally Omitted]4.2.7. Representations and Warranties; No Default; No Mandatory Prepayment Event.

The Loan Servicer shall have received certification from the Borrower, and DOE shall not havedetermined that such certification is untrue, that, on both the Advance Notice Date and theAdvance Date, the representations and warranties in the Loan Documents (other than [those inSections 5.11, 5.16(a), 5.20(b), (e) and (i), 5.25(a), (c) and (d), 5.33(c)(ii), (d)(ii), (f)(ii) and (g),

and 5.37, which are made only as of the Guarantee Issuance Date, and]21 those that speak only as

21 In the next draft, all representations and warranties that are only made as of the Guarantee Issuance Dateand the related schedules will be deleted from the body of this Agreement and inserted as certifications andappendices to Exhibit C-1 (Form of Borrower Guarantee Issuance Date Certificate). Thoserepresentations and warranties have been retained in this draft for ease of comparison to the prior draft.


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to an earlier date, which shall be true and correct as of such earlier date) are true and correct inall material respects, and no Event of Default, Potential Default or Mandatory Prepayment Eventhas occurred and is continuing.

4.2.8. [Intentionally Omitted]4.2.9. Advance Certificates.

The Loan Servicer shall have received:

(a) a Borrower Certificate, substantially in the form of Exhibit C-2, confirming thatall conditions to the requested Advance have been satisfied and regarding the other mattersrequired 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 asof the Advanced Date, regarding the matters required to be certified by the Lender's Engineer asset forth in this Section 4.2.

4.2.10.Borrower Funding Commitments.The Loan Servicer shall have received a certificate of an Authorized Official of the Borrowercertifying that the amount of Base Funding and Overrun Funding provided by the Borrower priorto or concurrently with the requested Advancehas been, or, prior to or concurrently with therequested Advance will be, applied to pay (A) at least 30% of the sum of the Eligible BaseProject Costs being financed or reimbursed using the proceeds of the requested Advance plus allother Eligible Project Costs incurred to date, (B) 100% of all Ineligible Base Project Costspreviously incurred or then required to be paid, and (C) 100% of all Overrun Project Costspreviously incurred or then required to be paid.

4.2.11.[Intentionally Omitted]4.2.12.[Intentionally Omitted]4.2.13.[Title Continuation.

The Loan Servicer shall have received a construction bringdown endorsement (dated as of a datenot earlier than five (5) Business Days prior to the relevant Advance Date) insuring that the[Deed to Secure Debt/Mortgage] remains a first priority Lien on the Borrower's unencumberedfee title (subject only to Permitted Liens), under the relevant laws of the State of Georgia, of theBorrower's Undivided Interest in and to the Project Site as is necessary for the development of

the Project. [Additionally, the Borrower shall cause the Title Company to issue an endorsementas to each Advance insuring that the Lien created by the [Deed to Secure Debt/Mortgage] haspriority over mechanics' liens resulting from work performed or materials supplied which are


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represented in such Advance, to the extent such endorsement is available on commerciallyreasonable terms.]22

4.2.14.[Intentionally Omitted]4.2.15.Davis-Bacon Requirements.

The Loan Servicer shall have received a certificate from the Borrower, dated as of the AdvanceDate, certifying that the Borrower and all DBA Contract Parties are in compliance with allDavis-Bacon Requirements.

4.2.16.[Intentionally Omitted]4.2.17.Advance Request; Advance Schedule.

Pursuant to Article 2, the Loan Servicer shall have received (i) an Advance Notice in accordancewith Section 2.3 and (ii) certification from the Borrower that the requested Advance conforms to

the Advance Schedule.

4.2.18.Issuance of FFB Advance Request Approval Notice.Pursuant to Article 2, FFB shall have received, in accordance with the FFB Credit FacilityDocuments, the FFB Advance Request signed by the Borrower, together with the FFB AdvanceRequest Approval Notice signed by DOE.

4.2.19.Absence of Drawstop Notice.Pursuant to Article 2, DOE shall not have delivered a Drawstop Notice in accordance withSection 2.4.2(a) of this Agreement with respect to the Advance unless DOE shall have delivered

a Drawstop Withdrawal Notice with respect to such Drawstop Notice in accordance with Section2.4.2(b) of this Agreement.

4.2.1. [Advances 23: [TBD]]

4.2.2. [Other].

22 Timing of date down endorsement to be determined.

23

(b)(4)

(b)(4)

(b)(4)

(b)(4)


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[Additional conditions identified by DOE following due diligence.]

ARTICLE 5REPRESENTATIONS AND WARRANTIES

The Borrower makes all of the following representations and warranties to and in favor ofDOE on (i) the Agreement Date, (ii) the Guarantee Issuance Date, (iii) each Advance NoticeDate, and (iv) each Advance Date, except [(x)] as such representations and warranties relate toan earlier date [and (y) with respect to the representations in Sections 5.11, 5.16(a), 5.20(b), (e)and (i), 5.25(a), (c) and (d), 5.33(c)(ii), (d)(ii), (f)(ii) and (g), and 5.37, which are made only as ofthe Agreement Date and the Guarantee Issuance Date].

5.1. Organization.The Borrower (a) is a corporation duly incorporated, validly existing and in good standing underthe laws of the State of Georgia, (b) is duly qualified to do business in the State of Georgia andin each other jurisdiction where the failure to so qualify could 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 operatethe property it purports to own or hold under lease, (ii) carry on its business as now beingconducted and as now proposed to be conducted in respect of the Project, (iii) incur Indebtednessand Other Obligations and create Liens on its properties, and (iv) execute, deliver, perform andobserve 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 whichit is a party. Neither the Borrower's execution and delivery of the Transaction Documents to

which it is a party, nor the consummation of the transactions contemplated thereby nor itscompliance with the terms thereof (a) contravenes its Organizational Documents, (b) contravenesany Governmental Rules where such contravention could reasonably be expected to have aMaterial 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 GovernmentalJudgment, where such contravention, breach or default could reasonably be expected to have aMaterial 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 requiresthe creation of any Lien upon any of its revenues, properties or assets under, any agreement orinstrument