ex-410






Exhibit 4.10  EXECUTION VERSION     Oglethorpe Power Corporation   (An Electric Membership Corporation)    3.75% First Mortgage Bonds, Series 2020A due 2050    _____________________________    Exchange and Registration Rights Agreement  August 25, 2020  MUFG Securities Americas Inc.  As representative of the Purchasers  named in Schedule I to the Purchase Agreement  c/o MUFG Securities Americas Inc.  1221 Avenue of the Americas, 6th Floor  New York, NY 10020-1001    Ladies and Gentlemen:  Oglethorpe Power Corporation (An Electric Membership Corporation), an electric  membership corporation organized under the laws of the State of Georgia (the “Company”),  proposes to issue and sell to the Purchasers (as defined herein) upon the terms set forth in the  Purchase Agreement (as defined herein) $450,000,000 in aggregate principal amount of its 3.75%  First Mortgage Bonds, Series 2020A due 2050 (the “Securities”) to be issued pursuant to the  Indenture dated as of March 1, 1997 (the “Base Indenture”), made by the Company to U.S. Bank  National Association, as successor to SunTrust Bank, formerly known as SunTrust Bank, Atlanta,  as trustee (the “Trustee”), as amended and supplemented through and including the Eightieth  Supplemental Indenture thereto, to be dated as of August 1, 2020 (the Base Indenture, as so  amended and supplemented, the “Indenture”).  As an inducement to the Purchasers to enter into  the Purchase Agreement and in satisfaction of a condition to the obligations of the Purchasers  thereunder, the Company agrees with the Purchasers for the benefit of holders (as defined herein)  from time to time of the Registrable Securities (as defined herein) as follows:  1. Certain Definitions.  For purposes of this Exchange and Registration Rights Agreement (this  “Agreement”), the following terms shall have the following respective meanings:  “Alternative Registration” shall have the meaning assigned thereto in Section 2(b).  “Alternative Registration Statement” shall have the meaning assigned thereto in  Section 2(b).  “Base Indenture” shall have the meaning assigned thereto in the Preamble.  “Base Interest” shall mean the interest that would otherwise accrue on the Securities under  the terms thereof and the Indenture, without giving effect to the provisions of this Agreement.  





 






   2   The term “broker-dealer” shall mean any broker or dealer registered with the Commission  under the Exchange Act.  “Business Day” shall have the meaning set forth in Rule 13e-4(a)(3) promulgated by the  Commission under the Exchange Act, as the same may be amended or succeeded from time  to time.  “Closing Date” shall mean the date on which the Securities are initially issued.  “Commission” shall mean the United States Securities and Exchange Commission, or any  other federal agency at the time administering the Exchange Act or the Securities Act,  whichever is the relevant statute for the particular purpose.  “Company” shall have the meaning assigned thereto in the Preamble.  “EDGAR System” means the EDGAR filing system of the Commission and the rules and  regulations pertaining thereto promulgated by the Commission in Regulation S-T under the  Securities Act and the Exchange Act, in each case as the same may be amended or  succeeded from time to time (and without regard to format).  “Effective Time,” in the case of (i) an Exchange Registration, shall mean the time and date  as of which the Commission declares the Exchange Registration Statement effective or as of  which the Exchange Registration Statement otherwise becomes effective and, (ii) an  Alternative Registration, shall mean the time and date as of which the Commission declares  the Alternative Registration Statement effective or as of which the Alternative Registration  Statement otherwise becomes effective.  “Electing Holder” shall mean any holder of Registrable Securities that has returned a  completed and signed Notice and Questionnaire to the Company in accordance with  Section 3(c)(ii) or Section 3(c)(iii) and the instructions set forth in the Notice and  Questionnaire.  “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the  rules and regulations promulgated by the Commission thereunder, as the same may be  amended or succeeded from time to time.  “Exchange Offer” shall have the meaning assigned thereto in Section 2(a).  “Exchange Registration” shall have the meaning assigned thereto in Section 3(b).  “Exchange Registration Statement” shall have the meaning assigned thereto in  Section 2(a).  “Exchange Securities” shall have the meaning assigned thereto in Section 2(a).  The term “holder” shall mean each of the Purchasers and other persons who acquire  Securities from time to time (including any successors or assigns), in each case for so long  as such person owns any Securities.  “Indenture” shall have the meaning assigned thereto in the Preamble.  





 






   3   “Notice and Questionnaire” means a Notice of Registration Statement and Selling  Securityholder Questionnaire substantially in the form of Exhibit A hereto.  The term “person” shall mean a corporation, limited liability company, cooperative or  membership corporation, association, partnership, organization, business, individual,  government or political subdivision thereof or governmental agency.  “Purchase Agreement” shall mean the Purchase Agreement, dated as of August 17, 2020,  between the Purchasers and the Company relating to the Securities.  “Purchasers” shall mean the Purchasers named in Schedule I to the Purchase Agreement.  “Registrable Securities” shall mean the Securities; provided, however, that a Security shall  cease to be a Registrable Security upon the earliest to occur of the following: (i) in the  circumstances contemplated by Section 2(a), the Security has been exchanged for an  Exchange Security in an Exchange Offer as contemplated in Section 2(a) (provided that any  Exchange Security that, pursuant to the last two sentences of Section 2(a), is included in a  prospectus for use in connection with resales by broker-dealers shall be deemed to be a  Registrable Security with respect to Sections 5, 6 and 9 until resale of such Registrable  Security has been effected within the Resale Period); (ii) in the circumstances contemplated  by Section 2(b), an Alternative Registration Statement registering such Security under the  Securities Act has been declared or becomes effective and such Security has been sold or  otherwise transferred by the holder thereof pursuant to and in a manner contemplated by such  effective Alternative Registration Statement; (iii) subject to Section 8(b), such Security is  actually sold by the holder thereof pursuant to Rule 144, provided that a Security will not cease  to be a Registrable Security for purposes of the Exchange Offer by virtue of this clause (iii);  or (iv) such Security shall cease to be outstanding.  “Registration Default” shall have the meaning assigned thereto in Section 2(c).  “Registration Default Period” shall have the meaning assigned thereto in Section 2(c).  “Registration Expenses” shall have the meaning assigned thereto in Section 4.  “Resale Period” shall have the meaning assigned thereto in Section 2(a).  “Restricted Holder” shall mean (i) a holder that is an affiliate of the Company within the  meaning of Rule 405, (ii) a holder who acquires Exchange Securities outside the ordinary  course of such holder’s business, (iii) a holder who has arrangements or understandings with  any person to participate in the Exchange Offer for the purpose of distributing Exchange  Securities and (iv) a holder that is a broker-dealer, but only with respect to Exchange  Securities received by such broker-dealer pursuant to an Exchange Offer in exchange for  Registrable Securities acquired by the broker-dealer directly from the Company.  “Rule 144,” “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433” shall mean, in  each case, such rule promulgated by the Commission under the Securities Act (or any  successor provision), as the same may be amended or succeeded from time to time.  “Securities” shall have the meaning assigned thereto in the Preamble.  





 






   4   “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and  regulations promulgated by the Commission thereunder, as the same may be amended or  succeeded from time to time.  “Special Interest” shall have the meaning assigned thereto in Section 2(c).  “Suspension Period” shall have the meaning assigned thereto in Section 2(b).  “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the  rules and regulations promulgated by the Commission thereunder, as the same may be  amended or succeeded from time to time.  “Trustee” shall have the meaning assigned thereto in the Preamble.  Unless the context otherwise requires, any reference herein to a “Section” or “clause”  refers to a Section or clause, as the case may be, of this Agreement, and the words “herein,”  “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole  and not to any particular Section or other subdivision.  2. Registration Under the Securities Act.  (a) Except as set forth in Section 2(b) below, the Company agrees to file under the  Securities Act, no later than 220 days after the Closing Date, a registration statement relating  to an offer to exchange (such registration statement, the “Exchange Registration Statement”,  and such offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal  amount of debt securities issued by the Company, which debt securities are substantially  identical to the Securities (and are entitled to the benefits of the Indenture), except that they  have been registered pursuant to an effective registration statement under the Securities Act  and do not contain provisions for Special Interest contemplated in Section 2(c) below (such  new debt securities hereinafter called “Exchange Securities”).  The Company agrees to use  commercially reasonable efforts to cause the Exchange Registration Statement to become  effective under the Securities Act no later than 310 days after the Closing Date.  The  Exchange Offer will be registered under the Securities Act on the appropriate form and will  comply with all applicable tender offer rules and regulations under the Exchange Act.  Unless  the Exchange Offer would not be permitted by applicable law or Commission policy, the  Company further agrees to use commercially reasonable efforts to (i) commence the  Exchange Offer promptly following the Effective Time of such Exchange Registration  Statement, (ii) hold the Exchange Offer open for at least 20 Business Days in accordance with  Regulation 14E promulgated by the Commission under the Exchange Act and (iii) exchange  Exchange Securities for all Registrable Securities that have been properly tendered and not  withdrawn promptly following the expiration of the Exchange Offer.  The Exchange Offer will  be deemed to have been “completed” only (i) if the debt securities received by holders other  than Restricted Holders in the Exchange Offer for Registrable Securities are, upon receipt,  transferable by each such holder without restriction under the Securities Act and the Exchange  Act and without material restrictions under the blue sky or securities laws of a majority of the  States of the United States of America and (ii) upon the Company having exchanged,  pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that have  been properly tendered and not withdrawn before the expiration of the Exchange Offer, which  shall be on a date that is at least 20 and not more than 60 Business Days following the  commencement of the Exchange Offer.  The Company agrees (x) to include in the Exchange  Registration Statement a prospectus for use in any resales by any holder of Exchange  





 






   5   Securities that is a broker-dealer and (y) to use commercially reasonable efforts to keep such  Exchange Registration Statement effective for a period (the “Resale Period”) beginning when  Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the  expiration of the 180th day after the Exchange Offer has been completed or such time as such  broker-dealers no longer own any Registrable Securities.  With respect to such Exchange  Registration Statement, such holders shall have the benefit of the rights of indemnification  and contribution set forth in Subsections 6(a), (c), (d) and (e).  (b) If (i) on or prior to the time the Exchange Offer is completed existing law or  Commission interpretations are changed such that the debt securities received by holders  other than Restricted Holders in the Exchange Offer for Registrable Securities are not or would  not be, upon receipt, transferable by each such holder without restriction under the Securities  Act, (ii) the Effective Time of the Exchange Registration Statement is not within 310 days  following the Closing Date and the Exchange Offer has not been completed within  60 Business Days of such Effective Time or (iii) any holder of Registrable Securities notifies  the Company prior to the 20th day following the completion of the Exchange Offer that:  (A) it  is prohibited by law or Commission policy from participating in the Exchange Offer, (B) it may  not resell the Exchange Securities to the public without delivering a prospectus and the  prospectus supplement contained in the Exchange Registration Statement is not appropriate  or available for such resales or (C) it is a broker-dealer and owns Securities acquired directly  from the Company or an affiliate of the Company, then the Company shall, in lieu of (or, in the  case of clause (iii), in addition to) conducting the Exchange Offer contemplated by  Section 2(a), file under the Securities Act no later than 30 Business Days after the time such  obligation to file arises (but no earlier than 220 days after the Closing Date), an alternative  registration statement providing for the registration of, and the sale on a continuous or delayed  basis by the holders of, all of the Registrable Securities, pursuant to Rule 415 or any similar  rule that may be adopted by the Commission (such filing, the “Alternative Registration” and  such registration statement, the “Alternative Registration Statement”).  The Company agrees  to use commercially reasonable efforts to cause the Alternative Registration Statement to  become or be declared effective no later than 90 days after such Alternative Registration  Statement filing obligation arises (but no earlier than 310 days after the Closing Date).  The  Company agrees to use commercially reasonable efforts to keep such Alternative Registration  Statement continuously effective for a period ending on the earlier of the first anniversary of  the Effective Time or such time as there are no longer any Registrable Securities outstanding.   No holder shall be entitled to be named as a selling securityholder in the Alternative  Registration Statement or to use the prospectus forming a part thereof for resales of  Registrable Securities unless such holder is an Electing Holder.  The Company agrees, after  the Effective Time of the Alternative Registration Statement and promptly upon the request of  any holder of Registrable Securities that is not then an Electing Holder, to use commercially  reasonable efforts to enable such holder to use the prospectus forming a part thereof for  resales of Registrable Securities, including, without limitation, any action necessary to identify  such holder as a selling securityholder in the Alternative Registration Statement (whether by  post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and 424(b)  under the Securities Act identifying such holder), provided, however, that nothing in this  sentence shall relieve any such holder of the obligation to return a completed and signed  Notice and Questionnaire to the Company in accordance with Section 3(c)(iii).   Notwithstanding anything to the contrary in this Section 2(b), upon notice to the Electing  Holders, the Company may suspend the use or the effectiveness of such Alternative  Registration Statement, or extend the time period in which it is required to file the Alternative  Registration Statement, for up to 30 consecutive days and up to 60 days in the aggregate, in  each case in any 12-month period (a “Suspension Period”) if the Company determines that  





 






   6   there is a valid business purpose for suspension of the Alternative Registration Statement;  provided that the Company shall promptly notify the Electing Holders when the Alternative  Registration Statement may once again be used or is effective.  (c) In the event that (i) the Company has not filed the Exchange Registration Statement  or the Alternative Registration Statement on or before the date on which such registration  statement is required to be filed pursuant to Section 2(a) or Section 2(b), respectively, or  (ii) such Exchange Registration Statement or Alternative Registration Statement has not  become effective or been declared effective by the Commission on or before the date on  which such registration statement is required to become or be declared effective pursuant to  Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been completed  within 60 Business Days after the Effective Time of the Exchange Registration Statement  relating to the Exchange Offer (if the Exchange Offer is then required to be made) or (iv) any  Exchange Registration Statement or Alternative Registration Statement required by  Section 2(a) or Section 2(b) is filed and declared effective but shall thereafter either be  withdrawn by the Company or shall become subject to an effective stop order issued pursuant  to Section 8(d) of the Securities Act suspending the effectiveness of such registration  statement (except as specifically permitted herein, including, with respect to any Alternative  Registration Statement, during any applicable Suspension Period in accordance with the last  sentence of Section 2(b)) without being succeeded within 30 days from the date such  registration statement was suspended by an additional registration statement filed and  declared effective (each such event referred to in clauses (i) through (iv), a “Registration  Default” and each period during which a Registration Default has occurred and is continuing,  a “Registration Default Period”), then, as liquidated damages for such Registration Default,  subject to the provisions of Section 9(b), special interest (“Special Interest”), in addition to the  Base Interest, shall accrue on all Registrable Securities then outstanding at a per annum rate  of 0.25% for the first 90 days of the Registration Default Period and at a per annum rate of  0.50% thereafter for the remaining portion of the Registration Default Period. Special Interest  shall accrue and be payable only with respect to a single Registration Default at any given  time, notwithstanding the fact that multiple Registration Defaults may exist at such time.  Immediately upon the cure of all Registration Defaults, the accrual of Special Interest will  cease and the interest rate on the Securities shall revert to the original rate.  (d) The Company shall take all actions necessary or advisable to be taken by it to ensure  that the transactions contemplated herein are effected as so contemplated.  (e) Any reference herein to a registration statement or prospectus as of any time shall be  deemed to include any document incorporated, or deemed to be incorporated, therein by  reference as of such time; and any reference herein to any post-effective amendment to a  registration statement or to any prospectus supplement as of any time shall be deemed to  include any document incorporated, or deemed to be incorporated, therein by reference as of  such time.  (f) The parties hereto agree that the liquidated damages in the form of Special Interest  provided for in Section 2(c) constitute a reasonable estimate of and are intended to constitute  the sole damages payable under this Agreement that will be suffered by the holders of  Securities, and the sole remedy available to the holders, by reason of the failure of (i) the  Exchange Offer to be completed, (ii) the Alternative Registration Statement, if required  hereby, to be declared effective, or (iii) the Alternative Registration Statement to remain  effective (and the prospectus contained therein to remain usable), in each case to the extent  required by this Agreement.  





 






   7   3. Registration Procedures.  If the Company files a registration statement pursuant to Section 2(a) or Section 2(b), the  following provisions shall apply:  (a) At or before the Effective Time of the Exchange Registration or any Alternative  Registration, whichever may occur first, the Company shall cause the Indenture to be qualified  under the Trust Indenture Act.  (b) In connection with the Company’s obligations with respect to the registration of  Exchange Securities as contemplated by Section 2(a) (the “Exchange Registration”), if  applicable, the Company shall:  (i)  prepare and file with the Commission, no later than 220 days after the Closing  Date, an Exchange Registration Statement on any form which may be utilized by the  Company and which shall permit the Exchange Offer and resales of Exchange Securities  by broker-dealers during the Resale Period to be effected as contemplated by  Section 2(a), and use commercially reasonable efforts to cause such Exchange  Registration Statement to become effective no later than 310 days after the Closing Date;  (ii)  as soon as practicable prepare and file with the Commission such amendments  and supplements to such Exchange Registration Statement and the prospectus included  therein as may be necessary to effect and maintain the effectiveness of such Exchange  Registration Statement for the periods and purposes contemplated in Section 2(a) and as  may be required by the applicable rules and regulations of the Commission and the  instructions applicable to the form of such Exchange Registration Statement, and promptly  provide each broker-dealer holding Exchange Securities with such number of copies of  the prospectus included therein (as then amended or supplemented), in conformity in all  material respects with the requirements of the Securities Act and the Trust Indenture Act,  as such broker-dealer reasonably may request prior to the expiration of the Resale Period,  for use in connection with resales of Exchange Securities;  (iii)  promptly notify each broker-dealer that has requested or received copies of the  prospectus included in such Exchange Registration Statement, and confirm such advice  in writing, (A) when such Exchange Registration Statement or the prospectus included  therein or any prospectus amendment or supplement or post-effective amendment has  been filed, and, with respect to such Exchange Registration Statement or any  post-effective amendment, when the same has become effective, (B) of any comments by  the Commission and by the blue sky or securities commissioner or regulator of any state  with respect thereto or any request by the Commission for amendments or supplements  to such Exchange Registration Statement or prospectus or for additional information,  (C) of the issuance by the Commission of any stop order suspending the effectiveness of  such Exchange Registration Statement or the initiation of any proceedings for that  purpose, (D) if at any time the representations and warranties of the Company  contemplated by Section 5 cease to be true and correct in all material respects, (E) of the  receipt by the Company of any notification with respect to the suspension of the  qualification of the Exchange Securities for sale in any jurisdiction or the initiation of any  proceeding for such purpose, (F) the occurrence of any event that causes the Company  to become an “ineligible issuer” as defined in Rule 405, or (G) if at any time during the  Resale Period when a prospectus is required to be delivered under the Securities Act, that  such Exchange Registration Statement, prospectus, prospectus amendment or  





 






   8   supplement or post-effective amendment does not conform in all material respects to the  applicable requirements of the Securities Act or the Trust Indenture Act or contains an  untrue statement of a material fact or omits to state any material fact required to be stated  therein or necessary to make the statements therein not misleading in light of the  circumstances then existing;  (iv)  in the event that the Company would be required, pursuant to Section 3(b)(iii)(G),  to notify any broker-dealers holding Exchange Securities (except as otherwise permitted  during any Suspension Period), promptly prepare and furnish to each such holder a  reasonable number of copies of a prospectus supplemented or amended so that, as  thereafter delivered to purchasers of such Exchange Securities during the Resale Period,  such prospectus shall conform in all material respects to the applicable requirements of  the Securities Act and the Trust Indenture Act and shall not contain an untrue statement  of a material fact or omit to state a material fact required to be stated therein or necessary  to make the statements therein not misleading in light of the circumstances then existing;  (v)  use commercially reasonable efforts to obtain the withdrawal of any order  suspending the effectiveness of such Exchange Registration Statement or any  post-effective amendment thereto at the earliest practicable date;  (vi)  use commercially reasonable efforts to (A) register or qualify the Exchange  Securities under the securities laws or blue sky laws of such jurisdictions as are  contemplated by Section 2(a) no later than the commencement of the Exchange Offer, to  the extent required by such laws, (B) keep such registrations or qualifications in effect and  comply with such laws so as to permit the continuance of offers, sales and dealings therein  in such jurisdictions until the expiration of the Resale Period, (C) take any and all other  actions as may be reasonably necessary or advisable to enable each broker-dealer  holding Exchange Securities to consummate the disposition thereof in such jurisdictions  and (D) obtain the consent or approval of each governmental agency or authority, whether  federal, state or local, which may be required to effect the Exchange Registration, the  Exchange Offer and the offering and sale of Exchange Securities by broker-dealers during  the Resale Period; provided, however, that the Company  shall not be required for any  such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it would not  otherwise be required to qualify but for the requirements of this Section 3(b)(vi),  (2) consent to general service of process in any such jurisdiction or become subject to  taxation in any such jurisdiction or (3) make any changes to its certificate of incorporation  or by-laws or other governing documents or any agreement between it and its members;  (vii)  obtain a CUSIP number for all Exchange Securities, not later than the applicable  Effective Time; and  (viii)  comply with all applicable rules and regulations of the Commission, and make  generally available to its securityholders no later than eighteen months after the Effective  Time of such Exchange Registration Statement, an “earning statement” of the Company  and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the  option of the Company, Rule 158 thereunder).  (c) In connection with the Company’s obligations with respect to the Alternative  Registration, if applicable, the Company shall:  





 






   9   (i)  prepare and file with the Commission, within the time periods specified in  Section 2(b), an Alternative Registration Statement on any form which may be utilized by  the Company and which shall register all of the Registrable Securities for resale by the  holders thereof in accordance with such method or methods of disposition as may be  specified by the holders of Registrable Securities as, from time to time, may be Electing  Holders and use commercially reasonable efforts to cause such Alternative Registration  Statement to become effective within the time periods specified in Section 2(b);  (ii)  mail the Notice and Questionnaire to the holders of Registrable Securities not less  than 30 days prior to the anticipated Effective Time of the Alternative Registration  Statement no holder shall be entitled to be named as a selling securityholder in the  Alternative Registration Statement, and no holder shall be entitled to use the prospectus  forming a part thereof for resales of Registrable Securities at any time, unless and until  such holder has returned a completed and signed Notice and Questionnaire to the  Company;  (iii)  after the Effective Time of the Alternative Registration Statement, upon the request  of any holder of Registrable Securities that is not then an Electing Holder, promptly send  a Notice and Questionnaire to such holder; provided that the Company shall not be  required to take any action to name such holder as a selling securityholder in the  Alternative Registration Statement or to enable such holder to use the prospectus forming  a part thereof for resales of Registrable Securities until such holder has returned a  completed and signed Notice and Questionnaire to the Company;  (iv)  as soon as practicable prepare and file with the Commission such amendments  and supplements to such Alternative Registration Statement and the prospectus included  therein as may be necessary to effect and maintain the effectiveness of such Alternative  Registration Statement for the period specified in Section 2(b) and as may be required by  the applicable rules and regulations of the Commission and the instructions applicable to  the form of such Alternative Registration Statement, and furnish to the Electing Holders  copies of any such supplement or amendment simultaneously with or prior to its being  used or filed with the Commission to the extent such documents are not publicly available  on the Commission’s EDGAR System;  (v)  comply with the provisions of the Securities Act with respect to the disposition of  all of the Registrable Securities covered by such Alternative Registration Statement in  accordance with the intended methods of disposition by the Electing Holders provided for  in such Alternative Registration Statement;  (vi)  provide the Electing Holders and not more than one counsel for all the Electing  Holders the opportunity to participate in the preparation of such Alternative Registration  Statement, each prospectus included therein or filed with the Commission and each  amendment or supplement thereto;  (vii)  for a reasonable period prior to the filing of such Alternative Registration  Statement, and throughout the period specified in Section 2(b), make available at  reasonable times at the Company’s principal place of business or such other reasonable  place for inspection by the persons referred to in Section 3(c)(vi) who shall certify to the  Company that they have a current intention to sell the Registrable Securities pursuant to  the Alternative Registration such financial and other information and books and records of  the Company, and cause the officers, employees, counsel and independent certified  





 






   10   public accountants of the Company to respond to such inquiries, as shall be reasonably  necessary (and in the case of counsel, not violate an attorney-client privilege, in such  counsel’s reasonable belief), in the judgment of the respective counsel referred to in  Section 3(c)(vi), to conduct a reasonable investigation within the meaning of Section 11 of  the Securities Act; provided, however, that the foregoing inspection and information  gathering on behalf of the Electing Holders shall be conducted by one counsel designated  by the holders of at least a majority in aggregate principal amount of the Registrable  Securities held by the Electing Holders at the time outstanding; provided, further, that each  such party shall be required to maintain in confidence and not to disclose to any other  person any information or records reasonably designated by the Company as being  confidential, until such time as (A) such information becomes a matter of public record  (whether by virtue of its inclusion in such Alternative Registration Statement or otherwise),  or (B) such person shall be required so to disclose such information pursuant to a  subpoena or order of any court or other governmental authority having jurisdiction over  the matter (subject to the requirements of such order, and only after such person shall  have given the Company prompt prior written notice of such requirement so that the  Company may, at its own expense, undertake to prevent disclosure of the information  deemed confidential), or (C) such information is required to be set forth in such Alternative  Registration Statement or the prospectus included therein or in an amendment to such  Alternative Registration Statement or an amendment or supplement to such prospectus in  order that Alternative Registration Statement, prospectus, amendment or supplement, as  the case may be, complies with applicable requirements of the federal securities laws and  the rules and regulations of the Commission and does not contain an untrue statement of  a material fact or omit to state therein a material fact required to be stated therein or  necessary to make the statements therein not misleading in light of the circumstances  then existing;  (viii)  promptly notify each of the Electing Holders and confirm such advice in writing,  (A) when such Alternative Registration Statement or the prospectus included therein or  any prospectus amendment or supplement or post-effective amendment has been filed,  and, with respect to such Alternative Registration Statement or any post-effective  amendment, when the same has become effective, (B) of any comments by the  Commission and by the blue sky or securities commissioner or regulator of any state with  respect thereto or any request by the Commission for amendments or supplements to  such Alternative Registration Statement or prospectus or for additional information, (C) of  the issuance by the Commission of any stop order suspending the effectiveness of such  Alternative Registration Statement or the initiation or threatening of any proceedings for  that purpose, (D) if at any time the representations and warranties of the Company set  forth in Section 5 cease to be true and correct in all material respects, (E) of the receipt  by the Company of any notification with respect to the suspension of the qualification of  the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any  proceeding for such purpose, (F) the occurrence of any event that causes the Company  to become an “ineligible issuer” as defined in Rule 405, or (G) if at any time when a  prospectus is required to be delivered under the Securities Act, that such Alternative  Registration Statement, prospectus, prospectus amendment or supplement or  post-effective amendment does not conform in all material respects to the applicable  requirements of the Securities Act and the Trust Indenture Act or contains an untrue  statement of a material fact or omits to state any material fact required to be stated therein  or necessary to make the statements therein not misleading in light of the circumstances  then existing;  





 






   11   (ix)  use commercially reasonable efforts to obtain the withdrawal of any order  suspending the effectiveness of such Alternative Registration Statement or any  post-effective amendment thereto at the earliest practicable date;  (x)  if requested by any Electing Holder, promptly incorporate in a prospectus  supplement or post-effective amendment such information as is required by the applicable  rules and regulations of the Commission and as such Electing Holder, based on the advice  of counsel referred to in Section 3(c)(vi), specifies should be included therein relating to  the terms of the sale of such Registrable Securities, including information with respect to  the principal amount of Registrable Securities being sold by such Electing Holder, the  name and description of such Electing Holder, the offering price of such Registrable  Securities and any discount, commission or other compensation payable in respect  thereof and with respect to any other terms of the offering of the Registrable Securities to  be sold by such Electing Holder; and make all required filings of such prospectus  supplement or post-effective amendment promptly after notification of the matters to be  incorporated in such prospectus supplement or post-effective amendment;  (xi)  furnish to each Electing Holder and the counsel referred to in Section 3(c)(vi) an  executed copy (or a conformed copy) of such Alternative Registration Statement, each  such amendment and supplement thereto (in each case including all exhibits thereto (in  the case of an Electing Holder of Registrable Securities, upon request) and documents  incorporated by reference therein) and such number of copies of such Alternative  Registration Statement (excluding exhibits thereto and documents incorporated by  reference therein unless specifically so requested by such Electing Holder) and of the  prospectus included in such Alternative Registration Statement (including each  preliminary prospectus and any summary prospectus), in conformity in all material  respects with the applicable requirements of the Securities Act and the Trust Indenture  Act to the extent such documents are not available through the Commission’s EDGAR  System, and such other documents, as such Electing Holder may reasonably request in  order to facilitate the offering and disposition of the Registrable Securities owned by such  Electing Holder and to permit such Electing Holder to satisfy the prospectus delivery  requirements of the Securities Act; and subject to Section 3(d), the Company hereby  consents to the use of such prospectus (including such preliminary and summary  prospectus) and any amendment or supplement thereto by each such Electing Holder  (subject to any applicable Suspension Period), in each case in the form most recently  provided to such person by the Company, in connection with the offering and sale of the  Registrable Securities covered by the prospectus (including such preliminary and  summary prospectus) or any supplement or amendment thereto;  (xii)  use commercially reasonable efforts to (A) register or qualify the Registrable  Securities to be included in such Alternative Registration Statement under such securities  laws or blue sky laws of such jurisdictions as any Electing Holder shall reasonably request,  (B) keep such registrations or qualifications in effect and comply with such laws so as to  permit the continuance of offers, sales and dealings therein in such jurisdictions during the  period the Alternative Registration Statement is required to remain effective under  Section 2(b) and for so long as may be necessary to enable any such Electing Holder to  complete its distribution of Registrable Securities pursuant to such Alternative Registration  Statement, (C) take any and all other actions as may be reasonably necessary or  advisable to enable each such Electing Holder to consummate the disposition in such  jurisdictions of such Registrable Securities and (D) obtain the consent or approval of each  governmental agency or authority, whether federal, state or local, which may be required  





 






   12   to effect the Alternative Registration or the offering or sale in connection therewith or to  enable the selling holder or holders to offer, or to consummate the disposition of, their  Registrable Securities; provided, however, that the Company shall not be required for any  such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it would not  otherwise be required to qualify but for the requirements of this Section 3(c)(xii),  (2) consent to general service of process in any such jurisdiction or become subject to  taxation in any such jurisdiction or (3) make any changes to its certificate of incorporation  or by-laws or other governing documents or any agreement between it and its members;  (xiii)  unless any Registrable Securities shall be in book-entry only form, cooperate  with the Electing Holders to facilitate the timely preparation and delivery of certificates  representing Registrable Securities to be sold, which certificates, if so required by any  securities exchange upon which any Registrable Securities are listed, if applicable, shall  be printed, penned, lithographed, engraved or otherwise produced by any combination of  such methods, on steel engraved borders, and which certificates shall not bear any  restrictive legends;  (xiv)  obtain a CUSIP number for all Securities that have been registered under the  Securities Act, not later than the applicable Effective Time;  (xv)  notify in writing each holder of Registrable Securities of any proposal by the  Company to amend or waive any provision of this Agreement pursuant to Section 9(h) and  of any amendment or waiver effected pursuant thereto, each of which notices shall contain  the text of the amendment or waiver proposed or effected, as the case may be; and  (xvi)  comply with all applicable rules and regulations of the Commission, and make  generally available to its securityholders no later than eighteen months after the Effective  Time of such Alternative Registration Statement an “earning statement” of the Company  and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the  option of the Company, Rule 158 thereunder).  (d) In the event that the Company would be required, pursuant to Section 3(c)(viii)(G), to  notify the Electing Holders, the Company shall promptly prepare and furnish to each of the  Electing Holders a reasonable number of copies of a prospectus supplemented or amended  so that, as thereafter delivered to purchasers of Registrable Securities, such prospectus shall  conform in all material respects to the applicable requirements of the Securities Act and the  Trust Indenture Act and shall not contain an untrue statement of a material fact or omit to state  a material fact required to be stated therein or necessary to make the statements therein not  misleading in light of the circumstances then existing.  Each Electing Holder agrees that upon  receipt of any notice from the Company pursuant to Section 3(c)(viii)(G), such Electing Holder  shall forthwith discontinue the disposition of Registrable Securities pursuant to the Alternative  Registration Statement applicable to such Registrable Securities until such Electing Holder  shall have received copies of such amended or supplemented prospectus, and if so directed  by the Company, such Electing Holder shall deliver to the Company (at the Company’s  expense) all copies, other than permanent file copies, of the prospectus covering such  Registrable Securities in such Electing Holder’s possession at the time of receipt of such  notice.  (e) In the event of an Alternative Registration, in addition to the information required to be  provided by each Electing Holder in its Notice and Questionnaire, the Company may require  such Electing Holder to furnish to the Company such additional information regarding such  





 






   13   Electing Holder and such Electing Holder’s intended method of distribution of Registrable  Securities as may be required in order to comply with the Securities Act.  Each such Electing  Holder agrees to notify the Company as promptly as practicable of any inaccuracy or change  in information previously furnished by such Electing Holder to the Company or of the  occurrence of any event in either case as a result of which any prospectus relating to such  Alternative Registration contains or would contain an untrue statement of a material fact  regarding such Electing Holder or such Electing Holder’s intended method of disposition of  such Registrable Securities or omits to state any material fact regarding such Electing Holder  or such Electing Holder’s intended method of disposition of such Registrable Securities  required to be stated therein or necessary to make the statements therein not misleading in  light of the circumstances then existing, and promptly to furnish to the Company any additional  information required to correct and update any previously furnished information or required so  that such prospectus shall not contain, with respect to such Electing Holder or the disposition  of such Registrable Securities, an untrue statement of a material fact or omit to state a material  fact required to be stated therein or necessary to make the statements therein not misleading  in light of the circumstances then existing.  (f) Until the expiration of two years after the Closing Date, the Company will not, and will  not permit any of its “affiliates” (as defined in Rule 144) to, resell any of the Securities that  have been reacquired by any of them except pursuant to an effective registration statement,  or a valid exemption from the registration requirements, under the Securities Act.  (g) As a condition to its participation in the Exchange Offer, each holder of Registrable  Securities shall furnish, upon the request of the Company, a written representation to the  Company (which may be contained in the letter of transmittal or “agent’s message” transmitted  via The Depository Trust Company’s Automated Tender Offer Procedures, in either case  contemplated by the Exchange Registration Statement) to the effect that (A) it is not an  “affiliate” of the Company, as defined in Rule 405 of the Securities Act, or if it is such an  “affiliate”, it will comply with the registration and prospectus delivery requirements of the  Securities Act to the extent applicable, (B) it is not engaged in and does not intend to engage  in, and has no arrangement or understanding with any person to participate in, a distribution  of the Exchange Securities to be issued in the Exchange Offer, (C) it is acquiring the  Exchange Securities in its ordinary course of business, (D) if it is a broker-dealer that holds  Securities that were acquired for its own account as a result of market-making activities or  other trading activities (other than Securities acquired directly from the Company or any of its  affiliates), it will deliver a prospectus meeting the requirements of the Securities Act in  connection with any resales of the Exchange Securities received by it in the Exchange Offer,  (E) if it is a broker-dealer, that it did not purchase the Securities to be exchanged in the  Exchange Offer from the Company or any of its affiliates, and (F) it is not acting on behalf of  any person who could not truthfully and completely make the representations contained in the  foregoing subclauses (A) through (E).  4. Registration Expenses.  The Company agrees to bear and to pay or cause to be paid promptly all expenses  incident to the Company’s performance of or compliance with this Agreement, including (a) all  Commission and any FINRA registration, filing and review fees and expenses including  reasonable fees and disbursements of one counsel for the Electing Holders in connection with  such registration, filing and review, (b) all fees and expenses in connection with the qualification  of the Registrable Securities, the Securities and the Exchange Securities, as applicable, for  offering and sale under the State securities and blue sky laws referred to in Section 3(c)(xii) and  





 






   14   determination of their eligibility for investment under the laws of such jurisdictions as the Electing  Holders may designate, including any reasonable fees and disbursements of Orrick, Herrington  & Sutcliffe LLP, counsel for the Electing Holders in connection with such qualification and  determination, (c) all expenses relating to the preparation, printing, production, distribution and  reproduction of each registration statement required to be filed hereunder, each prospectus  included therein or prepared for distribution pursuant hereto, each amendment or supplement to  the foregoing, the expenses of preparing the Securities or Exchange Securities, as applicable, for  delivery and the expenses of printing or producing any selling agreements and blue sky or legal  investment memoranda and all other documents in connection with the offering, sale or delivery  of Securities or Exchange Securities, as applicable, to be disposed of (including certificates  representing the Securities or Exchange Securities, as applicable), (d) messenger, telephone and  delivery expenses relating to the offering, sale or delivery of Securities or Exchange Securities,  as applicable, and the preparation of documents referred in clause (c) above, (e) fees and  expenses of the Trustee under the Indenture, any agent of the Trustee and any counsel for the  Trustee and of any collateral agent or custodian, (f) internal expenses (including all salaries and  expenses of the Company’s officers and employees performing legal or accounting duties),  (g) reasonable fees, disbursements and expenses of counsel and independent certified public  accountants of the Company, (h) reasonable fees, disbursements and expenses of  Orrick,  Herrington & Sutcliffe LLP, counsel for the Electing Holders retained in connection with an  Alternative Registration, (i) any fees charged by securities rating services for rating the  Registrable Securities , the Securities or the Exchange Securities, as applicable, and (j) fees,  expenses and disbursements of any other persons, including special experts, retained by the  Company in connection with such registration (collectively, the “Registration Expenses”).  To the  extent that any Registration Expenses are incurred, assumed or paid by any holder of Registrable  Securities, Securities or Exchange Securities, as applicable, the Company shall reimburse such  person for the full amount of the Registration Expenses so incurred, assumed or paid promptly  after receipt of a request therefor.  Notwithstanding the foregoing, the holders of the Registrable  Securities being registered shall pay all agency fees and commissions and underwriting discounts  and commissions, if any, and transfer taxes, if any, attributable to the sale of such Registrable  Securities , Securities and Exchange Securities, as applicable, and the fees and disbursements  of any counsel or other advisors or experts retained by such holders (severally or jointly), other  than the counsel and experts specifically referred to above.  5. Representations and Warranties.  The Company represents and warrants to, and agrees with, each Purchaser and each of  the holders from time to time of Registrable Securities that:  (a) Each registration statement covering Registrable Securities, Securities or Exchange  Securities, as applicable, and each prospectus (including any preliminary or summary  prospectus) contained therein or furnished pursuant to Section 3(b) or Section 3(c) and any  further amendments or supplements to any such registration statement or prospectus, when  it becomes effective or is filed with the Commission, as the case may be, will conform in all  material respects to the requirements of the Securities Act and the Trust Indenture Act and  will not contain an untrue statement of a material fact or omit to state a material fact required  to be stated therein or necessary to make the statements therein not misleading; and at all  times subsequent to the Effective Time when a prospectus would be required to be delivered  under the Securities Act, other than (A) from (i) such time as a notice has been given to  holders of Registrable Securities pursuant to Section 3(b)(iii)(G) or Section 3(c)(viii)(G) until  (ii) such time as the Company furnishes an amended or supplemented prospectus pursuant  to Section 3(b)(iv) or Section 3(d) or (B) during any applicable Suspension Period, each such  





 






   15   registration statement, and each prospectus (including any summary prospectus) contained  therein or furnished pursuant to Section 3(b) or Section 3(c), as then amended or  supplemented, will conform in all material respects to the requirements of the Securities Act  and the Trust Indenture Act and will not contain an untrue statement of a material fact or omit  to state a material fact required to be stated therein or necessary to make the statements  therein not misleading in the light of the circumstances then existing; provided, however, that  this representation and warranty shall not apply to any statements or omissions made in  reliance upon and in conformity with information furnished in writing to the Company by a  holder of Registrable Securities expressly for use therein.  (b) Any documents incorporated by reference in any prospectus referred to in  Section 5(a), when they become or became effective or are or were filed with the Commission,  as the case may be, will conform or conformed in all material respects to the requirements of  the Securities Act or the Exchange Act, as applicable, and none of such documents will  contain or contained an untrue statement of a material fact or will omit or omitted to state a  material fact required to be stated therein or necessary to make the statements therein not  misleading; provided, however, that this representation and warranty shall not apply to any  statements or omissions made in reliance upon and in conformity with information furnished  in writing to the Company by a holder of Registrable Securities expressly for use therein.  (c) The compliance by the Company with all of the provisions of this Agreement and the  consummation of the transactions herein contemplated will not (i) conflict with or result in a  breach or violation of any of the terms or provisions of, or constitute a default under, any  indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which  the Company is a party or by which the Company is bound or to which any of the property or  assets of the Company is subject, (ii) result in any violation of the provisions of the certificate  of incorporation, as amended, or the by-laws or other governing documents, as applicable, of  the Company or (iii)  result in any violation of any statute or any order, rule or regulation of  any court or governmental authority having jurisdiction over the Company or any of its  properties, except in the case of (i) and (ii) above as would not have a material adverse effect  on the business, financial condition or results of operations of the Company; and no consent,  approval, authorization, order, registration or qualification of or with any such court or  governmental authority is required for the consummation by the Company  of the transactions  contemplated by this Agreement, except (x) the registration under the Securities Act of the  Registrable Securities , the Securities and the Exchange Securities, as applicable, and  qualification of the Indenture under the Trust Indenture Act, (y) such consents, approvals,  authorizations, registrations or qualifications as may be required under state securities or blue  sky laws in connection with the offering and distribution of the Registrable Securities , the  Securities and the Exchange Securities, as applicable, and (z) such consents, approvals,  authorizations, registrations or qualifications that have been obtained and are in full force and  effect as of the date hereof.  (d) This Agreement has been duly authorized, executed and delivered by the Company.  6. Indemnification and Contribution.  (a) Indemnification by the Company.  The Company will indemnify and hold harmless  each of the holders of Registrable Securities included in an Exchange Registration Statement  and, each of the Electing Holders as holders of Registrable Securities included in an  Alternative Registration Statement  against any losses, claims, damages or liabilities, joint or  several, to which such holder or, such Electing Holder may become subject under the  





 






   16   Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions  in respect thereof) arise out of or are based upon an untrue statement or alleged untrue  statement of a material fact contained in any Exchange Registration Statement or, any  Alternative Registration Statement, as the case may be, under which such Registrable  Securities, Securities or Exchange Securities were registered under the Securities Act, or any  preliminary, final or summary prospectus (including, without limitation, any “issuer free writing  prospectus” as defined in Rule 433) contained therein or furnished by the Company to any  such holder or, any such Electing Holder, or any amendment or supplement thereto, or arise  out of or are based upon the omission or alleged omission to state therein a material fact  required to be stated therein or necessary to make the statements therein not misleading, and  will reimburse each such holder and, each such Electing Holder for any and all legal or other  expenses reasonably incurred by them in connection with investigating or defending any such  action or claim as such expenses are incurred; provided, however, that the Company shall  not be liable to any such person in any such case to the extent that any such loss, claim,  damage or liability (or action in respect thereof) arises out of or is based upon an untrue  statement or alleged untrue statement or omission or alleged omission made in such  registration statement, or preliminary, final or summary prospectus (including, without  limitation, any “issuer free writing prospectus” as defined in Rule 433), or amendment or  supplement thereto, in reliance upon and in conformity with written information furnished to  the Company by such person expressly for use therein.  (b) Indemnification by the Electing Holders.  The Company may require, as a condition to  including any Registrable Securities in any Alternative Registration Statement filed pursuant  to Section 2(b), that the Company shall have received an undertaking reasonably satisfactory  to it from each Electing Holder of Registrable Securities included in such Alternative  Registration Statement, severally and not jointly, to (i) indemnify and hold harmless the  Company and all other Electing Holders of Registrable Securities included in such Alternative  Registration Statement, against any losses, claims, damages or liabilities to which the  Company or such other Electing Holders may become subject, under the Securities Act or  otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)  arise out of or are based upon an untrue statement or alleged untrue statement of a material  fact contained in such registration statement, or any preliminary, final or summary prospectus  (including, without limitation, any “issuer free writing prospectus” as defined in Rule 433)  contained therein or furnished by the Company to any Electing Holder, or any amendment or  supplement thereto, or arise out of or are based upon the omission or alleged omission to  state therein a material fact required to be stated therein or necessary to make the statements  therein not misleading, in each case to the extent, but only to the extent, that such untrue  statement or alleged untrue statement or omission or alleged omission was made in reliance  upon and in conformity with written information furnished to the Company by such Electing  Holder expressly for use therein, and (ii) reimburse the Company for any legal or other  expenses reasonably incurred by the Company in connection with investigating or defending  any such action or claim as such expenses are incurred; provided, however, that no such  Electing Holder shall be required to undertake liability to any person under this Section 6(b)  for any amounts in excess of the dollar amount of the proceeds to be received by such Electing  Holder from the sale of such Electing Holder’s Registrable Securities pursuant to such  registration.  (c) Notices of Claims, Etc.  Promptly after receipt by an indemnified party under  subsection (a) or (b) above of written notice of the commencement of any action, such  indemnified party shall, if a claim in respect thereof is to be made against an indemnifying  party pursuant to the indemnification provisions of or contemplated by this Section 6, notify  





 






   17   such indemnifying party in writing of the commencement of such action; but the omission so  to notify the indemnifying party shall not relieve it from any liability which it may have to any  indemnified party otherwise than under the indemnification provisions of or contemplated by  Section 6(a) or Section 6(b), except to the extent that it has been materially prejudiced  (through the forfeiture of substantive rights or defenses) by such omission. In case any such  action shall be brought against any indemnified party and it shall notify an indemnifying party  of the commencement thereof, such indemnifying party shall be entitled to participate therein  and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified,  to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party  (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying  party), and, after notice from the indemnifying party to such indemnified party of its election  so to assume the defense thereof, such indemnifying party shall not be liable to such  indemnified party for any legal expenses of other counsel or any other expenses, in each case  subsequently incurred by such indemnified party, in connection with the defense thereof other  than reasonable costs of investigation.  No indemnifying party shall, without the prior written  consent of the indemnified party, effect the settlement or compromise of, or consent to the  entry of any judgment with respect to, any pending or threatened action or claim in respect of  which indemnification or contribution may be sought hereunder (whether or not the  indemnified party is an actual or potential party to such action or claim) unless such  settlement, compromise or judgment (i) includes an unconditional release of the indemnified  party from all liability arising out of such action or claim and (ii) does not include a statement  as to, or an admission of, fault, culpability or a failure to act by or on behalf of any indemnified  party.  (d) Contribution.  If for any reason the indemnification provisions contemplated by  Section 6(a) or Section 6(b) are unavailable to or insufficient to hold harmless an indemnified  party in respect of any losses, claims, damages or liabilities (or actions in respect thereof)  referred to therein, then each indemnifying party shall contribute to the amount paid or payable  by such indemnified party as a result of such losses, claims, damages or liabilities (or actions  in respect thereof) in such proportion as is appropriate to reflect the relative fault of the  indemnifying party and the indemnified party in connection with the statements or omissions  which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as  well as any other relevant equitable considerations.  The relative fault of such indemnifying  party and indemnified party shall be determined by reference to, among other things, whether  the untrue or alleged untrue statement of a material fact or omission or alleged omission to  state a material fact relates to information supplied by such indemnifying party or by such  indemnified party, and the parties’ relative intent, knowledge, access to information and  opportunity to correct or prevent such statement or omission.  The parties hereto agree that it  would not be just and equitable if contributions pursuant to this Section 6(d) were determined  by pro rata allocation (even if the holders were treated as one entity for such purpose) or by  any other method of allocation which does not take account of the equitable considerations  referred to in this Section 6(d).  The amount paid or payable by an indemnified party as a  result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to  above shall be deemed to include any legal or other fees or expenses reasonably incurred by  such indemnified party in connection with investigating or defending any such action or claim.   Notwithstanding the provisions of this Section 6(d), no Electing Holder shall be required to  contribute any amount in excess of the amount by which the dollar amount of the proceeds  received by such holder from the sale of any Registrable Securities exceeds the amount of  any damages which such holder has otherwise been required to pay by reason of such untrue  or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent  misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled  





 






   18   to contribution from any person who was not guilty of such fraudulent misrepresentation.  The  holders’ obligations in this Section 6(d) to contribute shall be several in proportion to the  principal amount of Registrable Securities registered by them and not joint.  (e) The obligations of the Company under this Section 6 shall be in addition to any liability  which the Company may otherwise have and shall extend, upon the same terms and  conditions, to each officer, director and partner of each holder, each Electing Holder, and each  person, if any, who controls any of the foregoing within the meaning of the Securities Act; and  the obligations of the holders and the Electing Holders contemplated by this Section 6 shall  be in addition to any liability which the respective holder or Electing Holder may otherwise  have and shall extend, upon the same terms and conditions, to each officer and director of  the Company and to each person, if any, who controls the Company within the meaning of  the Securities Act, as well as to each officer and director of the other holders and to each  person, if any, who controls such other holders within the meaning of the Securities Act.  7. Underwritten Offerings.  Each holder of Registrable Securities hereby agrees with the Company and each other  such holder that no holder of Registrable Securities may participate in any underwritten offering  hereunder unless (a) the Company gives its prior written consent to such underwritten offering,  (b) the managing underwriter or underwriters thereof shall be designated by Electing Holders  holding at least a majority in aggregate principal amount of the Registrable Securities to be  included in such offering, provided that such designated managing underwriter or underwriters is  or are reasonably acceptable to the Company, (c) each holder of Registrable Securities  participating in such underwritten offering agrees to sell such holder’s Registrable Securities on  the basis provided in any underwriting arrangements approved by the persons entitled selecting  the managing underwriter or underwriters hereunder and (d) each holder of Registrable Securities  participating in such underwritten offering completes and executes all questionnaires, powers of  attorney, indemnities, underwriting agreements and other documents reasonably required under  the terms of such underwriting arrangements.  The Company hereby agrees with each holder of  Registrable Securities that, to the extent it consents to an underwritten offering hereunder, it will  negotiate in good faith and execute all indemnities, underwriting agreements and other  documents reasonably required under the terms of such underwriting arrangements, including  using commercially reasonable efforts to procure customary legal opinions and auditor “comfort”  letters.  8. Rule 144.  (a) Facilitation of Sales Pursuant to Rule 144.  The Company covenants to the holders of  Registrable Securities that to the extent it shall be required to do so under the Exchange Act,  the Company shall timely file the reports required to be filed by it under the Exchange Act or  the Securities Act (including the reports under Sections 13 and 15(d) of the Exchange Act  referred to in subparagraph (c)(1) of Rule 144), and shall take such further action as any  holder of Registrable Securities may reasonably request, all to the extent required from time  to time to enable such holder to sell Registrable Securities without registration under the  Securities Act within the limitations of the exemption provided by Rule 144.  Upon the request  of any holder of Registrable Securities in connection with that holder’s sale pursuant to  Rule 144, the Company shall deliver to such holder a written statement as to whether it has  complied with such requirements.  





 






   19   (b) Availability of Rule 144 Not Excuse for Obligations under Section 2.  The fact that  holders of Registrable Securities may become eligible to sell such Registrable Securities  pursuant to Rule 144 shall not (1) cause such Securities to cease to be Registrable Securities  or (2) excuse the Company’s obligations set forth in Section 2 of this Agreement, including  without limitation the obligations in respect of an Exchange Offer, Alternative Registration, and  Special Interest.  9. Miscellaneous.  (a) No Inconsistent Agreements.  The Company represents, warrants, covenants and  agrees that it has not granted, and shall not grant, registration rights with respect to  Registrable Securities, Exchange Securities or Securities, as applicable, or any other  securities which would be inconsistent with the terms contained in this Agreement.  (b) Specific Performance.  Except as set forth in Section 2(f), the parties hereto  acknowledge that there would be no adequate remedy at law if the Company fails to perform  any of its obligations hereunder and that the Purchasers and the holders from time to time of  the Registrable Securities may be irreparably harmed by any such failure, and accordingly  agree that the Purchasers and such holders, in addition to any other remedy to which they  may be entitled at law or in equity, shall be entitled to compel specific performance of the  obligations of the Company under this Agreement in accordance with the terms and conditions  of this Agreement, in any court of the United States or any State thereof having jurisdiction.   Time shall be of the essence in this Agreement.  (c) Notices.  All notices, requests, claims, demands, waivers and other communications  hereunder shall be in writing and shall be deemed to have been duly given when delivered by  hand, if delivered personally, by facsimile or by courier, or three days after being deposited in  the mail (registered or certified mail, postage prepaid, return receipt requested) as follows:  If  to the Company, initially to it at the Company’s address set forth in the Purchase Agreement  and thereafter at such other address, notice of which is given in accordance with the  provisions of this Section 9(c), and if to a holder, to the address of such holder set forth in the  security register or other records of the Company, or to such other address as the Company  or any such holder may have furnished to the other in writing in accordance herewith, except  that notices of change of address shall be effective only upon receipt.  (d) Parties in Interest.  All the terms and provisions of this Agreement shall be binding  upon, shall inure to the benefit of and shall be enforceable by the parties hereto, the holders  from time to time of the Registrable Securities and the respective successors and assigns of  the foregoing.  In the event that any transferee of any holder of Registrable Securities shall  acquire Registrable Securities, in any manner, whether by gift, bequest, purchase, operation  of law or otherwise, such transferee shall, without any further writing or action of any kind, be  deemed a beneficiary hereof for all purposes and such Registrable Securities shall be held  subject to all of the terms of this Agreement, and by taking and holding such Registrable  Securities such transferee shall be entitled to receive the benefits of, and be conclusively  deemed to have agreed to be bound by all of the applicable terms and provisions of this  Agreement.  If the Company shall so request, any such successor, assign or transferee shall  agree in writing to acquire and hold the Registrable Securities subject to all of the applicable  terms hereof.  (e) Survival.  The respective indemnities, agreements, representations, warranties and  each other provision set forth in this Agreement or made pursuant hereto shall remain in full  





 






   20   force and effect regardless of any investigation (or statement as to the results thereof) made  by or on behalf of any holder of Registrable Securities, any director, officer or partner of such  holder, or any controlling person of any of the foregoing, and shall survive delivery of and  payment for the Registrable Securities pursuant to the Purchase Agreement, the transfer and  registration of Registrable Securities by such holder and the consummation of an Exchange  Offer.  (f) Governing Law.  This Agreement shall be governed by and construed in accordance  with the laws of the State of New York.  (g) Headings.  The descriptive headings of the several Sections and paragraphs of this  Agreement are inserted for convenience only, do not constitute a part of this Agreement and  shall not affect in any way the meaning or interpretation of this Agreement.  (h) Entire Agreement; Amendments.  This Agreement and the other writings referred to  herein (including the Indenture and the form of Securities) or delivered pursuant hereto which  form a part hereof contain the entire understanding of the parties with respect to its subject  matter.  This Agreement supersedes all prior agreements and understandings between the  parties with respect to its subject matter.  This Agreement may be amended and the  observance of any term of this Agreement may be waived (either generally or in a particular  instance and either retroactively or prospectively) only by a written instrument duly executed  by the Company and the holders of at least a majority in aggregate principal amount of the  Registrable Securities at the time outstanding.  Each holder of any Registrable Securities at  the time or thereafter outstanding shall be bound by any amendment or waiver effected  pursuant to this Section 9(h), whether or not any notice, writing or marking indicating such  amendment or waiver appears on such Registrable Securities or is delivered to such holder.  (i) Counterparts.  This Agreement may be executed by the parties in counterparts, each  of which shall be deemed to be an original, but all such respective counterparts shall together  constitute one and the same instrument.  (j) Severability.  If any provision of this Agreement, or the application thereof in any  circumstance, is held to be invalid, illegal or unenforceable in any respect for any reason, the  validity, legality and enforceability of such provision in every other respect and of the  remaining provisions contained in this Agreement shall not be affected or impaired thereby.    (Remainder of Page Intentionally Left Blank)    





 






  [Signature Page to Exchange and Registration Rights Agreement]  If the foregoing is in accordance with your understanding, please sign and return to us four  counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Purchasers,  this letter and such acceptance hereof shall constitute a binding agreement between each of the  Purchasers and the Company.  It is understood that your acceptance of this letter on behalf of  each of the Purchasers is pursuant to the authority set forth in a form of Agreement among  Purchasers, the form of which shall be submitted to the Company for examination upon request,  but without warranty on your part as to the authority of the signers thereof.   Very truly yours,      OGLETHORPE POWER CORPORATION  (An Electric Membership Corporation)          By:  /s/ Elizabeth B. Higgins       Name: Elizabeth B. Higgins   Title:    Executive Vice President and  Chief Financial Officer          





 






  [Signature Page to Exchange and Registration Rights Agreement]  Accepted as of the date hereof:      MUFG Securities Americas Inc.           By:  /s/ Richard Testa   Richard Testa  Managing Director   MUFG Securities Americas Inc.       On behalf of each of the Purchasers         





 






Exchange and Registration of Rights Agreement   A-1     4157-7695-7733.5    Exhibit A  Oglethorpe Power Corporation  (An Electric Membership Corporation)    INSTRUCTION TO DTC PARTICIPANTS  (Date of Mailing)  URGENT - IMMEDIATE ATTENTION REQUESTED  DEADLINE FOR RESPONSE: [DATE] *  The Depository Trust Company (“DTC”) has identified you as a DTC Participant through which  beneficial interests in the Oglethorpe Power Corporation (An Electric Membership Corporation)  (the “Company”) 3.75% First Mortgage Bonds, Series 2020A due 2050 (the “Securities”) are held.  The Company is in the process of registering the Securities under the Securities Act of 1933 for  resale by the beneficial owners thereof.  In order to have their Securities included in the  registration statement, beneficial owners must complete and return the enclosed Notice of  Registration Statement and Selling Securityholder Questionnaire.  It is important that beneficial owners of the Securities receive a copy of the enclosed materials as  soon as possible as their rights to have the Securities included in the registration statement  depend upon their returning the Notice and Questionnaire by [Deadline For Response].  Please  forward a copy of the enclosed documents to each beneficial owner that holds interests in the  Securities through you.  If you require more copies of the enclosed materials or have any  questions pertaining to this matter, please contact Oglethorpe Power Corporation (An Electric  Membership Corporation), 2100 East Exchange Place, Tucker, GA 30084, [Attn: ________ at  telephone number: ________].                                                        * Not less than 28 calendar days from date of mailing.  





 






Exchange and Registration of Rights Agreement   A-2     4157-7695-7733.5    Oglethorpe Power Corporation (An Electric Membership Corporation)  Notice of Registration Statement  and  Selling Securityholder Questionnaire  (Date)  Reference is hereby made to the Exchange and Registration Rights Agreement (the “Exchange  and Registration Rights Agreement”) between Oglethorpe Power Corporation (An Electric  Membership Corporation) (the “Company”) and the Purchasers named therein.  Pursuant to the  Exchange and Registration Rights Agreement, the Company has filed or will file with the United  States Securities and Exchange Commission (the “Commission”) a registration statement on  Form [__] (the “Alternative Registration Statement”) for the registration and resale under Rule 415  of the Securities Act of 1933, as amended (the “Securities Act”), of the Company’s 3.75% First  Mortgage Bonds, Series 2020A due 2050 (the “Securities”).  A copy of the Exchange and  Registration Rights Agreement has been filed as an exhibit to the Alternative Registration  Statement and can be obtained from the Commission’s website at www.sec.gov.  All capitalized  terms not otherwise defined herein shall have the meanings ascribed thereto in the Exchange  and Registration Rights Agreement.  Each beneficial owner of Registrable Securities (as defined below) is entitled to have the  Registrable Securities beneficially owned by it included in the Alternative Registration Statement.   In order to have Registrable Securities included in the Alternative Registration Statement, this  Notice of Registration Statement and Selling Securityholder Questionnaire (“Notice and  Questionnaire”) must be completed, executed and delivered to the Company’s counsel at the  address set forth herein for receipt ON OR BEFORE [Deadline for Response].  Beneficial  owners of Registrable Securities who do not properly complete, execute and return this Notice  and Questionnaire by such date (i) will not be named as selling securityholders in the Alternative  Registration Statement and (ii) may not use the Prospectus forming a part thereof for resales of  Registrable Securities.  Certain legal consequences arise from being named as a selling securityholder in the Alternative  Registration Statement and related Prospectus.  Accordingly, holders and beneficial owners of  Registrable Securities are advised to consult their own securities law counsel regarding the  consequences of being named or not being named as a selling securityholder in the Alternative  Registration Statement and related Prospectus.  The term “Registrable Securities” is defined in the Exchange and Registration Rights Agreement.  





 






Exchange and Registration of Rights Agreement   A-3     4157-7695-7733.5    ELECTION  The undersigned holder (the “Selling Securityholder”) of Registrable Securities hereby elects to  include in the Alternative Registration Statement the Registrable Securities beneficially owned by  it and listed below in Item (3).  The undersigned, by signing and returning this Notice and  Questionnaire, agrees to be bound with respect to such Registrable Securities by the terms and  conditions of this Notice and Questionnaire and the Exchange and Registration Rights  Agreement, including, without limitation, Section 6 of the Exchange and Registration Rights  Agreement, as if the undersigned Selling Securityholder were an original party thereto.  Pursuant to the Exchange and Registration Rights Agreement, the undersigned has agreed to  indemnify and hold harmless the Company, its officers who sign any Alternative Registration  Statement, and each person, if any, who controls the Company within the meaning of either  Section 15 of the Securities Act or Section 20 of the Exchange Act of 1934, as amended (the  “Exchange Act”), against certain loses arising out of an untrue statement, or the alleged untrue  statement, of a material fact in the Alternative Registration Statement or the related prospectus  or the omission, or alleged omission, to state a material fact required to be stated in such  Alternative Registration Statement or the related prospectus, but only to the extent such untrue  statement or omission, or alleged untrue statement or omission, was made in reliance on and in  conformity with the information provided in this Notice and Questionnaire.  Upon any sale of Registrable Securities pursuant to the Alternative Registration Statement, the  Selling Securityholder will be required to deliver to the Company and Trustee the Notice of  Transfer set forth in Appendix A to the Prospectus and as Exhibit B to the Exchange and  Registration Rights Agreement.  The Selling Securityholder hereby provides the following information to the Company and  represents and warrants that such information is accurate and complete:  





 






Exchange and Registration of Rights Agreement   A-4     4157-7695-7733.5    QUESTIONNAIRE  (1)  (a) Full legal name of Selling Securityholder:     (b) Full legal name of registered holder (if not the same as in (a) above) of Registrable  Securities listed in Item (3) below:     (c) Full legal name of DTC Participant (if applicable and if not the same as (b) above) through  which Registrable Securities listed in Item (3) below are held:     (2) Address for notices to Selling Securityholder:           Telephone:     Fax:     Contact Person:     E-mail for Contact Person:     (3) Beneficial Ownership of Securities:  Except as set forth below in this Item (3), the undersigned does not beneficially own any  Securities.  (a) Principal amount of Registrable Securities beneficially owned:     CUSIP No(s). of such Registrable Securities:     (b) Principal amount of Securities other than Registrable Securities beneficially owned:         CUSIP No(s). of such other Securities:     (c) Principal amount of Registrable Securities that the undersigned wishes to be included in  the Alternative Registration Statement:     CUSIP No(s). of such Registrable Securities to be included in the Alternative Registration  Statement:  





 






Exchange and Registration of Rights Agreement   A-5     4157-7695-7733.5       (4) Beneficial Ownership of Other Securities of the Company:  Except as set forth below in this Item (4), the undersigned Selling Securityholder is not the  beneficial or registered owner of any other securities of the Company, other than the  Securities listed above in Item (3).  State any exceptions here:           (5) Individuals who exercise dispositive powers with respect to the Securities:  If the Selling Securityholder is not an entity that is required to file reports with the  Commission pursuant to Section 13 or 15(d) of the Exchange Act (a “Reporting  Company”), then the Selling Securityholder must disclose the name of the natural  person(s) who exercise sole or shared dispositive powers with respect to the Securities.   Selling Securityholders should disclose the beneficial holders, not nominee holders or  other such others of record.  In addition, the Commission has provided guidance that  Rule 13d-3 of the Securities Exchange Act of 1934 should be used by analogy when  determining the person or persons sharing voting and/or dispositive powers with respect  to the Securities.  (a) Is the holder a Reporting Company?  Yes   No    If “No”, please answer Item (5)(b).  (b) List below the individual or individuals who exercise dispositive powers with respect to the  Securities:           Please note that the names of the persons listed in (b) above will be included in the  Alternative Registration Statement and related Prospectus.  (6) Relationships with the Company:  Except as set forth below, neither the Selling Securityholder nor any of its affiliates,  officers, directors or principal equity holders (5% or more) has held any position or office  or has had any other material relationship with the Company (or its predecessors or  affiliates) during the past three years.  





 






Exchange and Registration of Rights Agreement   A-6     4157-7695-7733.5    State any exceptions here:           (7) Plan of Distribution:  Except as set forth below, the undersigned Selling Securityholder intends to distribute the  Registrable Securities listed above in Item (3) only as follows (if at all):  Such Registrable  Securities may be sold from time to time directly by the undersigned Selling  Securityholder.  Such Registrable Securities may be sold in one or more transactions at  fixed prices, at prevailing market prices at the time of sale, at varying prices determined  at the time of sale, or at negotiated prices.  Such sales may be effected in transactions  (which may involve crosses or block transactions) (i) on any national securities exchange  or quotation service on which the Registrable Securities may be listed or quoted at the  time of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise than on such  exchanges or services or in the over-the-counter market, or (iv) through the writing of  options.  In connection with sales of the Registrable Securities or otherwise, the Selling  Securityholder may enter into hedging transactions with broker-dealers, which may in turn  engage in short sales of the Registrable Securities in the course of hedging the positions  they assume.  The Selling Securityholder may also sell Registrable Securities short and  deliver Registrable Securities to close out such short positions, or loan or pledge  Registrable Securities to broker-dealers that in turn may sell such securities.  State any exceptions here:           Note:  In no event may such method(s) of distribution take the form of an underwritten  offering of Registrable Securities without the prior written agreement of the Company.  (8) Broker-Dealers:  The Commission requires that all Selling Securityholders that are registered broker- dealers or affiliates of registered broker-dealers be so identified in the Alternative  Registration Statement.  In addition, the Commission requires that all Selling  Securityholders that are registered broker-dealers be named as underwriters in the  Alternative Registration Statement and related Prospectus, even if they did not receive the  Registrable Securities as compensation for underwriting activities.  (a) State whether the undersigned Selling Securityholder is a registered broker-dealer:  Yes   No    





 






Exchange and Registration of Rights Agreement   A-7     4157-7695-7733.5    (b) If the answer to (a) is “Yes”, you must answer (i) and (ii) below, and (iii) below if applicable.   Your answers to (i) and (ii) below, and (iii) below if applicable, will be included in the  Alternative Registration Statement and related Prospectus.  (i) Were the Securities acquired as compensation for underwriting activities?  Yes   No    If you answered “Yes”, please provide a brief description of the transaction(s) in which the  Securities were acquired as compensation:           (ii) Were the Securities acquired for investment purposes?  Yes   No    (iii) If you answered “No” to both (i) and (ii), please explain the Selling  Securityholder’s reason for acquiring the Securities:           (c) State whether the undersigned Selling Securityholder is an affiliate of a registered broker- dealer and, if so, list the name(s) of the broker-dealer affiliate(s):  Yes   No             (d) If you answered “Yes” to question (c) above:  (i) Did the undersigned Selling Securityholder purchase Registrable Securities in  the ordinary course of business?  Yes   No    If the answer is “No” to question (d)(i), provide a brief explanation of the circumstances in  which the Selling Securityholder acquired the Registrable Securities:     





 






Exchange and Registration of Rights Agreement   A-8     4157-7695-7733.5          (ii) At the time of the purchase of the Registrable Securities, did the undersigned  Selling Securityholder have any agreements, understandings or arrangements,  directly or indirectly, with any person to dispose of or distribute the Registrable  Securities?  Yes   No    If the answer is “Yes” to question (d)(ii), provide a brief explanation of such agreements,  understandings or arrangements:           If the answer is “No” to Item (8)(d)(i) or “Yes” to Item (8)(d)(ii), you will be named as  an underwriter in the Alternative Registration Statement and the related Prospectus.  (9) Hedging and short sales:  (a) State whether the undersigned Selling Securityholder has or will enter into “hedging  transactions” with respect to the Registrable Securities:  Yes   No    If “Yes”, provide below a complete description of the hedging transactions into which the  undersigned Selling Securityholder has entered or will enter and the purpose of such  hedging transactions, including the extent to which such hedging transactions remain in  place:           (b) Set forth below is Interpretation A.65 of the Commission’s July 1997 Manual of Publicly  Available Interpretations regarding short selling:  “An issuer filed a Form S-3 registration statement for a secondary offering of common  stock which is not yet effective.  One of the selling shareholders wanted to do a short sale  of common stock “against the box” and cover the short sale with registered shares after  the effective date.  The issuer was advised that the short sale could not be made before  the registration statement becomes effective, because the shares underlying the short  sale are deemed to be sold at the time such sale is made.  There would, therefore, be a  violation of Section 5 if the shares were effectively sold prior to the effective date.”  





 






Exchange and Registration of Rights Agreement   A-9     4157-7695-7733.5    By returning this Notice and Questionnaire, the undersigned Selling Securityholder will be  deemed to be aware of the foregoing interpretation.  * * * * *  By signing below, the Selling Securityholder acknowledges that it understands its obligation to  comply, and agrees that it will comply, with the provisions of the Exchange Act, particularly  Regulation M (or any successor rule or regulation).  The Selling Securityholder hereby acknowledges its obligations under the Exchange and  Registration Rights Agreement to indemnify and hold harmless the Company and certain other  persons as set forth in the Exchange and Registration Rights Agreement.  In the event that the Selling Securityholder transfers all or any portion of the Registrable Securities  listed in Item (3) above after the date on which such information is provided to the Company, the  Selling Securityholder agrees to notify the transferee(s) at the time of the transfer of its rights and  obligations under this Notice and Questionnaire and the Exchange and Registration Rights  Agreement.  By signing below, the Selling Securityholder consents to the disclosure of the information  contained herein in its answers to Items (1) through (9) above and the inclusion of such  information in the Alternative Registration Statement and related Prospectus.  The Selling  Securityholder understands that such information will be relied upon by the Company in  connection with the preparation of the Alternative Registration Statement and related Prospectus.  In accordance with the Selling Securityholder’s obligation under Section 3(c) of the Exchange and  Registration Rights Agreement to provide such information as may be required by law for inclusion  in the Alternative Registration Statement, the Selling Securityholder agrees to promptly notify the  Company of any inaccuracies or changes in the information provided herein which may occur  subsequent to the date hereof at any time while the Alternative Registration Statement remains  in effect and to provide such additional information that the Company may reasonably request  regarding such Selling Securityholder and the intended method of distribution of Registrable  Securities in order to comply with the Securities Act.  Except as otherwise provided in the  Exchange and Registration Rights Agreement, all notices hereunder and pursuant to the  Exchange and Registration Rights Agreement shall be made in writing, by hand-delivery, first- class mail, or air courier guaranteeing overnight delivery as follows:  (i) To the Company:  Oglethorpe Power Corporation__________  2100 East Exchange Place_____________  Tucker, GA 30084____________________  Attn: [________]______________________  Telephone No: [__________]____________  (ii) With a copy to:  





 






Exchange and Registration of Rights Agreement   A-10     4157-7695-7733.5    ___________________________________  ___________________________________  ___________________________________  ___________________________________  ___________________________________  Once this Notice and Questionnaire is executed by the Selling Securityholder and received by the  Company’s counsel, the terms of this Notice and Questionnaire, and the representations and  warranties contained herein, shall be binding on, shall inure to the benefit of and shall be  enforceable by the respective successors, heirs, personal representatives, and assigns of the  Company and the Selling Securityholder (with respect to the Registrable Securities beneficially  owned by such Selling Securityholder and listed in Item (3) above).  This Notice and Questionnaire  shall be governed in all respects by the laws of the State of New York.  





 






Exchange and Registration of Rights Agreement   A-11     4157-7695-7733.5    IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and  Questionnaire to be executed and delivered either in person or by its duly authorized agent.  Dated:        Selling Securityholder  (Print/type full legal name of beneficial owner of Registrable Securities)  By:     Name:  Title:  PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR  RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY’S COUNSEL  AT:  Eversheds Sutherland (US) LLP_____  999 Peachtree St. NE, Suite 2300____  Atlanta, Georgia 30309-3996________  Attn:___________________________  Telephone No:___________________    





 






Exchange and Registration of Rights Agreement   B-1    4157-7695-7733.5    Exhibit B  NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT  U.S. Bank National Association, as Trustee  Oglethorpe Power Corporation (An Electric Membership Corporation)  c/o U.S. Bank National Association  Attn: Corporate Trust Services  1349 West Peachtree Street, NW  Suite 1050, Two Midtown Plaza  Atlanta, Georgia 30309    Attention:  Trust Officer  Re: Oglethorpe Power Corporation (An Electric Membership Corporation) (the  “Company”)  3.75% First Mortgage Bonds, Series 2020A due 2050  Dear Sirs:  Please be advised that ________________________ has transferred  $________________________ aggregate principal amount of the above-referenced Notes  pursuant to an effective Registration Statement on Form [__] (File No. 333-____) filed by the  Company.  We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933,  as amended, have been satisfied and that the above-named beneficial owner of the Notes is  named as a “Selling Holder” in the Prospectus dated [date] or in supplements thereto, and that  the aggregate principal amount of the Notes transferred are the Notes listed in such Prospectus  opposite such owner’s name.  Dated:   Very truly yours,                  _____________________________________       (Name)      By: ______________________________________      (Authorized Signature)