EXHIBIT 4.6


 


 


FIFTH
AMENDED AND RESTATED LOAN CONTRACT


 


 


Dated as
of December 22, 2008


 


 


between


 


 


OGLETHORPE
POWER CORPORATION


 


(AN
ELECTRIC MEMBERSHIP CORPORATION)


 


 


and


 


 


UNITED
STATES OF AMERICA


 


 


RUS Project Designation:


Georgia 109 “S8” OPC


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I - DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  ARTICLE II - REPRESENTATIONS
  AND WARRANTIES

  	
  6

  
	
   

  	
   

  
	
  ARTICLE III - THE LOANS

  	
  8

  
	
  Section 3.1

  	
  The Loans

  	
  8

  
	
  Section 3.2

  	
  No Further Advances

  	
  8

  
	
  Section 3.3

  	
  Advances under any Partially Unadvanced
  Note and the S-8 FFB Note

  	
  8

  
	
  Section 3.4

  	
  Interest Rates and Payment

  	
  9

  
	
  Section 3.5

  	
  Prepayment

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV - CONDITIONS OF
  LENDING

  	
  9

  
	
  Section 4.1

  	
  General Conditions

  	
  9

  
	
  Section 4.2

  	
  Conditions to Advances Under any Partially
  Unadvanced Note and the S-8 FFB Note

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE V - AFFIRMATIVE
  COVENANTS

  	
  11

  
	
  Section 5.1

  	
  Generally

  	
  11

  
	
  Section 5.2

  	
  Performance under Indenture

  	
  11

  
	
  Section 5.3

  	
  Annual Compliance Certificate

  	
  11

  
	
  Section 5.4

  	
  Simultaneous Prepayment of Contemporaneous
  Loans

  	
  11

  
	
  Section 5.5

  	
  Rates and Coverage Ratios

  	
  12

  
	
  Section 5.6

  	
  Financial Books

  	
  12

  
	
  Section 5.7

  	
  Rights of Inspection

  	
  12

  
	
  Section 5.8

  	
  Real Property Acquisition

  	
  12

  
	
  Section 5.9

  	
  Financial Reports

  	
  13

  
	
  Section 5.10

  	
  Miscellaneous Reports and Notices

  	
  13

  
	
  Section 5.11

  	
  Variable Rate Indebtedness

  	
  13

  
	
  Section 5.12

  	
  Special Construction Account

  	
  14

  
	
  Section 5.13

  	
  Compliance with Laws

  	
  14

  
	
  Section 5.14

  	
  Plant Agreements

  	
  14

  
	
  Section 5.15

  	
  Lockbox Agreement

  	
  14

  
	
  Section 5.16

  	
  Nuclear Fuel

  	
  15

  
	
  Section 5.17

  	
  Power Requirements Studies

  	
  15

  
	
  Section 5.18

  	
  Long Range Engineering Plans and
  Construction Work Plans

  	
  15

  
	
  Section 5.19

  	
  Design Standards, Construction Standards
  and List of Materials

  	
  15

  
	
  Section 5.20

  	
  Plans and Specifications

  	
  15

  



 


i

















 


	
  Section 5.21

  	
  Standard Forms of Construction Contracts,
  and Engineering and Architectural Services Contracts

  	
  16

  
	
  Section 5.22

  	
  Contract Bidding Requirements

  	
  16

  
	
  Section 5.23

  	
  Nondiscrimination

  	
  16

  
	
  Section 5.24

  	
  “Buy American” Requirements

  	
  17

  
	
  Section 5.25

  	
  Maintenance of Credit Ratings

  	
  17

  
	
  Section 5.26

  	
  Application of Advances

  	
  17

  
	
  Section 5.27

  	
  Excepted Property

  	
  17

  
	
  Section 5.28

  	
  Additional Affirmative Covenants

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI - NEGATIVE
  COVENANTS

  	
  18

  
	
  Section 6.1

  	
  General

  	
  18

  
	
  Section 6.2

  	
  Limitations on System Extensions, Additions
  and Dispositions

  	
  18

  
	
  Section 6.3

  	
  Limitations on Employment and Retention of
  General Manager

  	
  18

  
	
  Section 6.4

  	
  Limitations on Certain Types of Contracts

  	
  19

  
	
  Section 6.5

  	
  Limitations on Loans, Investments and Other
  Obligations

  	
  20

  
	
  Section 6.6

  	
  Depreciation Rates

  	
  21

  
	
  Section 6.7

  	
  Rate Reductions

  	
  21

  
	
  Section 6.8

  	
  Indenture Restrictions

  	
  21

  
	
  Section 6.9

  	
  Negative Pledge

  	
  23

  
	
  Section 6.10

  	
  Emissions Allowances

  	
  24

  
	
  Section 6.11

  	
  Changes to Plant Agreements

  	
  24

  
	
  Section 6.12

  	
  Fiscal Year

  	
  24

  
	
  Section 6.13

  	
  Limits on Variable Rate Indebtedness

  	
  24

  
	
  Section 6.14

  	
  Limitations on Changing Principal Place of
  Business

  	
  25

  
	
  Section 6.15

  	
  Limitations on RUS Financed Extensions and
  Additions

  	
  25

  
	
  Section 6.16

  	
  Historic Preservation

  	
  25

  
	
  Section 6.17

  	
  Impairment of Wholesale Power Contracts

  	
  25

  
	
  Section 6.18

  	
  State Regulation

  	
  25

  
	
  Section 6.19

  	
  Limits on Short-Term Indebtedness

  	
  25

  
	
  Section 6.20

  	
  Additional Negative Covenants

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII - EVENTS OF
  DEFAULT

  	
  26

  
	
   

  	
   

  
	
  ARTICLE VIII - REMEDIES

  	
  27

  
	
  Section 8.1

  	
  Remedies

  	
  27

  
	
  Section 8.2

  	
  Suspension of Advances

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX - MISCELLANEOUS

  	
  28

  
	
  Section 9.1

  	
  Notice to RUS; Objection of RUS

  	
  28

  
	
  Section 9.2

  	
  Notices

  	
  28

  
	
  Section 9.3

  	
  Expenses

  	
  29

  



 


ii

















 


	
  Section 9.4

  	
  Late Payments

  	
  29

  
	
  Section 9.5

  	
  Filing Fees

  	
  30

  
	
  Section 9.6

  	
  No Waiver

  	
  30

  
	
  Section 9.7

  	
  Governing Law

  	
  30

  
	
  Section 9.8

  	
  Holiday Payments

  	
  30

  
	
  Section 9.9

  	
  Successors and Assigns

  	
  30

  
	
  Section 9.10

  	
  Complete Agreement; Amendments

  	
  30

  
	
  Section 9.11

  	
  Headings

  	
  31

  
	
  Section 9.12

  	
  Severability

  	
  31

  
	
  Section 9.13

  	
  Right of Set Off

  	
  31

  
	
  Section 9.14

  	
  Schedules and Exhibits

  	
  31

  
	
  Section 9.15

  	
  Sole Benefit

  	
  31

  
	
  Section 9.16

  	
  Existing Loan Contract

  	
  31

  
	
  Section 9.17

  	
  Authority of RUS Representatives

  	
  32

  
	
  Section 9.18

  	
  Relation to RUS Regulations

  	
  32

  
	
  Section 9.19

  	
  Term

  	
  33

  
	
  Section 9.20

  	
  Relation to Indenture

  	
  33

  



 


iii

















 


SCHEDULES
AND EXHIBITS


 


	
  Schedule 1

  	
  Contemporaneous
  Loans and Outstanding Notes

  
	
   

  	
   

  
	
  Schedule 2

  	
  Plant
  Agreements

  
	
   

  	
   

  
	
  Schedule 3

  	
  Subsidiaries

  
	
   

  	
   

  
	
  Schedule 4

  	
  Additional
  Affirmative and Negative Covenants

  
	
   

  	
   

  
	
  Schedule 5

  	
  Litigation

  
	
   

  	
   

  
	
  Exhibit A

  	
  Equal
  Opportunity Contract Provisions

  
	
   

  	
   

  
	
  Exhibit B

  	
  Description
  of Rating Agency Services

  
	
   

  	
   

  
	
  Exhibit C

  	
  Form of
  Amendatory Supplemental Indenture

  



 


iv

















 


FIFTH AMENDED AND RESTATED LOAN CONTRACT


 


THIS FIFTH AMENDED AND RESTATED LOAN CONTRACT,
dated as of December 22, 2008, is between OGLETHORPE
POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION), formerly
known as Oglethorpe Power Corporation (An Electric Membership Generation &
Transmission Corporation) (together with any successors and assigns, the “Borrower”),
a corporation organized and existing under the laws of the State of Georgia
(the “State”), and the UNITED STATES OF AMERICA
(the “Government”), acting by and through the Administrator (together with any
person succeeding to the powers and rights of the Administrator with respect to
this Agreement, the “Administrator”) of the Rural Utilities Service (together
with any agency succeeding to the powers and rights of the Rural Utilities
Service with respect to this Agreement, the “RUS”), and amends and restates
that certain Fourth Amended and Restated Loan Contract, dated as of September 5,
2008, between the Borrower and the Government, acting by and through the
Administrator of the RUS (the “Existing Loan Contract”).


 


RECITALS


 


WHEREAS, the Borrower has incurred, pursuant
to the Act (as defined in Article I) and under the Existing Loan Contract,
certain indebtedness and other obligations to, or guaranteed by, the
Government, acting by and through the Administrator of the RUS, which
indebtedness and other obligations are evidenced by the Outstanding Notes (as
defined in Article I); and


 


WHEREAS, the Borrower has entered into that
certain Indenture (as defined in Article I), pursuant to which the
Borrower has granted security title to and a security interest in substantially
all of its real and personal property to secure the indebtedness and other
obligations evidenced by the Outstanding Notes and to secure certain other
indebtedness; and


 


WHEREAS, in order to provide for the Borrower incurring, pursuant to
the Act, certain additional indebtedness and other obligations to, or
guaranteed by, the Government, acting by and through the Administrator of the
RUS, which additional indebtedness and other obligations will be evidenced by
the S-8 Notes (as defined in Article I), the Borrower and RUS desire to
amend and restate the Existing Loan Contract as hereinafter set forth.


 


NOW, THEREFORE, for and in consideration of
the premises and the mutual covenants hereinafter contained, the parties hereto
amend and restate the Existing Loan Contract to read in its entirety, and agree
and bind themselves, as follows:


 


ARTICLE I 
- DEFINITIONS


 


Capitalized terms that are not defined herein
shall have the meanings set forth in the Indenture and in the Amendatory
Supplemental Indenture (as defined below). 
The terms defined herein include both the plural and the singular.  Unless otherwise specifically provided, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them, and all determinations and computations herein provided for shall be
made, in accordance with Accounting Requirements.


 


1

















 


“Accounting Requirements” shall have the
meaning given such term in the Indenture.


 


“Act” shall mean the Rural Electrification
Act of 1936, as amended.


 


“Advance” or “Advances” shall mean an advance or advances made or
approved by the RUS under any Partially Unadvanced Note payable to FFB or under
the S-8 FFB Note.


 


“Agreement” shall mean this Fifth Amended and
Restated Loan Contract, as it may be amended or supplemented from time to time,
together with all schedules and exhibits hereto.


 


“Amendatory Supplemental Indenture” shall
mean a Supplemental Indenture in the form set forth as Exhibit C
attached hereto.


 


“Business Day” shall mean any day that the
RUS and FFB are both open for business.


 


“Contemporaneous Loans” shall mean those
loans identified as such on Schedule 1 hereto.  Any loan used to refinance or refund a
Contemporaneous Loan is also considered to be a Contemporaneous Loan.


 


“Credit Rating” shall mean a rating assigned
by a Rating Agency (i) to any long-term indebtedness (that is not subject
to Credit Enhancement) (including, without limitation, indebtedness issued by
any governmental authority with respect to which the Borrower is an obligor)
secured directly or indirectly under the Indenture or (ii) if a Rating
Agency has not assigned a rating to indebtedness of the type described in
clause (i) hereof, a “shadow rating” of the Borrower’s senior,
secured long-term indebtedness (that is not subject to Credit Enhancement).


 


“Current Refunding” shall mean any
refinancing or refunding of indebtedness that occurs not more than ninety (90)
days following the Stated Maturity of such indebtedness.


 


“Equity” shall mean the Borrower’s total
margins and equities computed in accordance with Accounting Requirements.


 


“Events of Default” shall have the meaning as
defined in Article VII.


 


“FERC” shall mean the Federal Energy
Regulatory Commission, or any agency or other governmental body succeeding to
the functions thereof.


 


“FFB” shall mean the Federal Financing Bank,
an instrumentality and wholly-owned corporation of the Government, and any
successor to the powers and rights thereof with respect to the Notes.


 


“Fitch” shall mean Fitch, Inc., and any
successor thereto.


 


“General Manager” shall mean the President
and Chief Executive Officer of the Borrower or the person performing the duties
of a chief executive officer if no person holds such title and, in the event of
any dispute between the Borrower and the Government as to who is the 


 


2

















 


General Manager, the
Administrator may designate a person or position that shall be the General
Manager for purposes of this Agreement.


 


“Highest Oversight Period” shall mean (x) as
to an event described in clause (i) or (iv), any period commencing on the
date that such event has occurred and ending on the date that such event has
ended, and (y) as to an event described in clause (ii) or (iii), any
period commencing on the date that the Borrower receives written notice from
the Administrator that such event has occurred (which notice shall set forth
the basis for concluding that such event has occurred) and ending on the date
that the Borrower receives written notice from the Administrator that such
period has ended:


 


(i)            the Borrower has been
assigned a Credit Rating of less than “Ba3” (or its then current equivalent) in
the case of Moody’s, “BB-” (or its then current equivalent) in the case of
S&P, “BB-” (or its then current equivalent) in the case of Fitch, or the
then current equivalent by any other Rating Agency then assigning a Credit
Rating;


 


(ii)           the Administrator
determines that the System is incapable of providing reliable service to the
members of the Borrower pursuant to the terms of the Wholesale Power Contracts;


 


(iii)          the Administrator
determines that, as a consequence of any change in the condition, financial or
otherwise, operations, properties or business of the Borrower, the Borrower
will be unable to perform its material obligations under (a) this
Agreement, (b) the Wholesale Power Contracts, (c) the Notes, or (d) the
Indenture; or


 


(iv)          the occurrence of an
Event of Default under the Indenture, or any event which with the passage of
time or giving of notice, or both, would constitute an Event of Default under
the Indenture.


 


“Increased Oversight Period” shall mean any
period (other than a Highest Oversight Period) during which the Borrower has
been assigned a Credit Rating below investment grade by at least two (2) Rating
Agencies. For purposes of this definition, an investment grade rating shall
mean, in the case of Moody’s, a rating of “Baa3” (or its then current
equivalent) or higher, in the case of S&P, a rating of “BBB-” (or its then
current equivalent) or higher, in the case of Fitch, a rating of “BBB-” (or its
then current equivalent) or higher, and in the case of any other Rating Agency,
the then current equivalent thereof.


 


“Indenture” shall mean the Indenture, dated
as of March 1, 1997, entered into by the Borrower and U.S. Bank National
Association, as successor to SunTrust Bank, formerly known as SunTrust Bank,
Atlanta, as trustee, and all amendments and supplements thereto.


 


“Investment” shall mean any loan or advance
to, or any investment in, or purchase or commitment to purchase any stock,
bonds, notes or other securities of, or guaranty, assumption or other
obligation or liability with respect to the obligations of, any other person,
firm or corporation, except investments in securities or deposits issued,
guaranteed or fully insured as to payment by the Government or any agency
thereof.


 


3

















 


“Laws” shall have the meaning as defined in
Paragraph (e) of Article II.


 


“Loans” shall mean the loans and other
obligations described in Article III.


 


“Loan Documents” shall mean, collectively,
this Agreement, the Indenture and the related documents delivered thereunder,
the Notes and the Lockbox Agreement.


 


“Lockbox Agreement” shall mean that certain
Lockbox Agreement, dated as of March 1, 1997, among the Borrower,
U.S. Bank National Association, as successor to SunTrust Bank, formerly known
as SunTrust Bank, Atlanta, and the Trustee.


 


“Material Adverse Effect” shall mean a
material adverse effect on the Borrower’s overall condition, financial or
otherwise, operations, properties, margins or business or on the ability of the
Borrower to perform its obligations under the Loan Documents.


 


“Moody’s” shall mean Moody’s Investors
Service, Inc., and any successor thereto.


 


“Notes” shall mean, collectively, the
Outstanding Notes and the S-8 Notes.


 


“Outstanding Notes” shall mean those notes,
other than the S-8 Notes, of the Borrower outstanding on the date hereof
payable to the order of FFB, the payment of which is guaranteed by the
Government, acting by and through the Administrator of the RUS, pursuant to the
Act, and those notes, other than the S-8 Notes, of the Borrower outstanding on
the date hereof payable to the order of the Government evidencing loans made by
the Government, acting by and through the Administrator of the RUS, pursuant to
the Act, or evidencing reimbursement obligations of the Borrower to the  Government with respect to the Government’s
guarantee of the payment of certain notes payable to the order of FFB, all as
specifically identified on Schedule 1 hereto, and all amendments,
supplements, extensions and replacements to, of or for such notes.


 


“Partially Unadvanced Notes” shall mean those
Outstanding Notes identified as Partially Unadvanced Notes on Schedule 1
hereto, as to which portions of the available principal amount thereunder
remain unadvanced.


 


“Plant Agreements” shall mean those agreements
relating to the ownership and operation of generating facilities described on Schedule
2 hereto.


 


“Prudent Utility Practice” shall mean any of
the practices, methods and acts engaged in or approved by a significant portion
of the electric utility industry in the region during the relevant time period,
or any of the practices, methods and acts that, in the exercise of reasonable
judgment in light of the facts known at the time the decision was made, could
have been expected to accomplish the desired result at lowest reasonable cost
consistent with good business practices, reliability, safety and
expedition.  “Prudent Utility Practice”
is not intended to be limited to the optimum practice, method or act, to the
exclusion of all others, but rather to include a spectrum of possible
practices, methods or acts generally in acceptance in the region in light of
the circumstances.


 


“Rates” shall have the meaning given such
term in the Indenture.


 


4

















 


“Rating Agency” shall mean S&P, Moody’s,
Fitch or, provided that it is acceptable to the RUS, any other nationally
recognized statistical rating organization (within the meaning of the rules of
the United States Securities and Exchange Commission).


 


“RUS Form 12” shall mean the version of
RUS Form 12 (including subdivisions thereof including, but not limited to,
RUS Form 12a) submitted by the Borrower and dated as of December 31,
2007 or corresponding information in future versions of such form or any form
required by RUS in substitution therefor containing corresponding information.


 


“RUS Regulations” shall mean the rules,
regulations and bulletins of general applicability published by the RUS from
time to time as such rules, regulations and bulletins exist at the date of applicability
thereof, and, unless the context clearly demonstrates a contrary intent, shall
also include any rules and regulations of other Federal entities which the
RUS is required by law to implement.


 


“S-8 Loan” shall have the meaning as defined
in Section 3.1(b).


 


“S-8 Loan Documents” shall mean,
collectively, this Agreement, the S-8 Notes and the supplement to the Indenture
and the related documents delivered thereunder pursuant to which the S-8 Notes
are issued.


 


“S-8 FFB Note” shall mean the note of the
Borrower, dated as of September 5, 2008, payable to the order of FFB in
the face principal amount of $441,522,000, the payment of which is guaranteed
by the Government, acting by and through the Administrator of the RUS, pursuant
to the Act, and all amendments, supplements, extensions and replacements to, of
or for such note.


 


“S-8 Notes” shall mean, collectively, the S-8
FFB Note and the S-8 Reimbursement Note.


 


“S-8 Reimbursement Note” shall mean the note
of the Borrower, dated as of September 5, 2008, evidencing the
reimbursement obligations of the Borrower to the Government, acting by and
through the Administrator of the RUS, with respect to the Government’s
guarantee of the S-8 FFB Note, and all amendments, supplements, extensions and
replacements to, of or for such note.


 


“S&P” shall mean Standard & Poor’s
Ratings Services, a division of The McGraw-Hill Companies, Inc., and any
successor thereto.


 


“Short-Term Indebtedness” shall have the
meaning as defined in Section 6.19.


 


“Special Construction Account” shall have the
meaning as defined in Section 5.12.


 


“Subsidiary” shall mean a corporation or
other entity that is a subsidiary of the Borrower and subject to the Borrower’s
control, as defined by Accounting Requirements.


 


“System” shall mean all electric properties
and interest in electric properties of the Borrower, it being the intent that “System”
be broadly construed to encompass and include the Borrower’s interests in all
electric production, transmission, distribution, conservation, load 


 


5

















 


management, general plant and
other related facilities, equipment or property and in any mine, well,
pipeline, plant, structure or other facility for the development, production,
manufacture, storage, fabrication or processing of fossil, nuclear or other
fuel of any kind or in any facility or rights with respect to the supply of
water, in each case for use, in whole or in major part, in any of the Borrower’s
generating plants, now existing or hereafter acquired by lease, contract,
purchase or otherwise or constructed by the Borrower, including any interest or
participation of the Borrower in any such facilities or any rights to the
output or capacity thereof, together with all additions, betterments, extensions
and improvements to said System or any part thereof hereafter made and together
with all lands, easements and rights-of-way of the Borrower and all other
works, property or structures of the Borrower and contract rights and other
tangible and intangible assets of the Borrower used or useful in connection
with or related to said System, including, without limitation, a contract right
or other contractual arrangement for the long-term or short-term
interconnection, interchange, exchange, pooling, wheeling, transmission,
purchase or sale of electric power and energy and other similar arrangements
with entities having generation or transmission capabilities; provided, however,
that “System” shall not include any property constituting Excepted Property or
Excludable Property.


 


“Total Utility Plant” shall mean the amount
constituting the total utility plant (gross) of the Borrower computed in
accordance with Accounting Requirements.


 


“Wholesale Power Contracts” shall mean the
Amended and Restated Wholesale Power Contracts, each dated as of January 1,  2003, by and between the Borrower and
its members, as amended by the First Amendments to Amended and Restated
Wholesale Power Contracts, each dated as of June 1, 2005, and all
amendments, supplements or replacements thereto or thereof.


 


ARTICLE II 
- REPRESENTATIONS
AND WARRANTIES


 


Recognizing that the RUS is relying hereon,
the Borrower represents and warrants, as of the date of this Agreement, as
follows:


 


(a)           Organization; Power, Etc.  The Borrower: (i) is duly organized,
validly existing, and in good standing under the laws of the State; (ii) is
duly qualified to do business and is in good standing in each jurisdiction in
which the transaction of its business makes such qualification necessary; (iii) has
all requisite corporate and legal power to own and operate its assets and to
carry on its business and to enter into and perform its obligations under the
Loan Documents; (iv) has duly and lawfully obtained and maintained all
material licenses, certificates, permits, authorizations and approvals which
are necessary to the conduct of its business or required by applicable Laws;
and (v) is eligible to obtain the financial assistance from the RUS
contemplated by this Agreement.


 


(b)           Authority. 
The execution, delivery and performance by the Borrower of this
Agreement and the other Loan
Documents and the performance of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate action and do not
violate any provision of law or of the Articles of Incorporation or By-Laws of
the Borrower or result in a breach of, or constitute a default under, any
agreement, indenture or other instrument to which the Borrower is a party or by
which it or its properties may be bound.


 


6


















 


(c)           Consents. 
No consent, permission, authorization, order or license of any
governmental authority is necessary in connection with the execution, delivery
or performance of the Loan Documents, except such as have been obtained and are
in full force and effect.


 


(d)           Binding Agreement.  Each of the Loan Documents is, or when
executed and delivered will be, the legal, valid, and binding obligation of the
Borrower, enforceable in accordance with its terms, subject only to limitations
on enforceability imposed in equity or by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights
generally.


 


(e)           Compliance With Laws.  The Borrower is in compliance in all material
respects with all federal, state and local laws, rules, regulations,
ordinances, codes and orders (collectively, “Laws”), the failure to comply with
which could reasonably be expected to have a Material Adverse Effect.


 


(f)            Litigation.  Attached as Schedule 5 hereto is a
list of all pending or, to our knowledge, threatened legal, arbitration or
governmental actions or proceedings to which, as of the date of this Agreement,
the Borrower is a party or to which any of its property is subject.  There are no pending legal, arbitration or
governmental actions or proceedings to which the Borrower is a party or to
which any of its property is subject which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect, and to the best of
the Borrower’s knowledge, no such actions or proceedings are threatened or
contemplated, except as the Borrower has disclosed to the RUS in writing.


 


(g)           Financial Statements; No Material Adverse Change;
Etc.  The financial statements
of the Borrower dated as of December 31, 2007, and for the period then
ended, present fairly, in all material respects, the financial position of the
Borrower and the results of its operations in conformity with Accounting
Requirements.  Since the date thereof,
there has been no material adverse change in the financial condition or
operations of the Borrower.


 


(h)           Budgets; Projections; Etc.  All budgets, projections, appraisals,
feasibility studies and other documentation submitted by the Borrower to the
RUS and any Rating Agency assigning a Credit Rating were based on assumptions
that were reasonable at the time submitted; and, as of the date hereof,
Oglethorpe has updated such budgets, projections, appraisals, feasibility
studies and other documentation as required by RUS and any Rating Agency and in
connection with customary updates provided to Rating Agencies assigning a
Credit Rating.


 


(i)            Location of Properties.  All real property and interests therein of
the Borrower is located in the states and counties identified in the Indenture.


 


(j)            Principal Place of Business; Records.  The principal place of business and chief
executive office of the Borrower are at the address of the Borrower specified
in Section 9.2.


 


(k)           Subsidiaries.  The Borrower’s Subsidiaries are identified on
Schedule 3 hereto, and the Borrower has no other Subsidiaries.


 


7





















 


(l)            Defaults Under Other Agreements. No
default by the Borrower has occurred under any agreement or instrument to which
the Borrower is a party or to which any of its property is subject that could
reasonably be expected to have a Material Adverse Effect.


 


(m)          Title to Property.  As to the property which is included in the
description of the Trust Estate, the Borrower holds good and marketable title
to all of its fee and leasehold interests in real property and owns all of its
personal property, free and clear of any lien or encumbrance other than the
lien of the Indenture, Permitted Exceptions and liens permitted by Section 13.6
of the Indenture.


 


(n)           Survival. 
All representations and warranties made by the Borrower herein or made
in any certificate delivered pursuant hereto shall survive the making of the
Advances.


 


ARTICLE
III  -
THE LOANS


 


Section 3.1            The Loans


 


(a)           Existing
Loans Evidenced by the Outstanding Notes. 
To finance, pursuant to the provisions of the Act, the
construction of the System for the purpose of furnishing electric energy to
persons in rural areas not receiving central station electric service, (i) the
Borrower has borrowed funds from the Government, acting by and through the
Administrator of the RUS, evidenced by the Outstanding Notes payable to the
Government, (ii) the Borrower has borrowed funds from FFB, evidenced by
the Outstanding Notes payable to FFB, and the Government, acting by and through
the Administrator of the RUS, has guaranteed the repayment of such funds, and (iii) the
Borrower has agreed to reimburse the Government, acting by and through the
Administrator of the RUS, for amounts paid by the Government on account of its
guarantee of funds borrowed by the Borrower from FFB, which reimbursement
obligations are evidenced by the Outstanding Notes payable to the Government in
respect of such reimbursement obligations.


 


(b)           S-8 Loan.  To finance, pursuant to the provisions of the
Act, certain improvements to the System (including, without limitation, the
installation of certain environmental improvements at Plant Robert W. Scherer),
the RUS agrees to guarantee the payment of a loan in the amount of $441,522,000
to be made by FFB to the Borrower (the “S-8 Loan”).


 


Section 3.2            No Further Advances


 


Except with
respect to any Partially Unadvanced Note, the Borrower acknowledges and agrees
that all amounts to be advanced to the Borrower under the Outstanding Notes
have been advanced and neither FFB nor the Government, acting by and through
the Administrator of the RUS, is under any obligation to make any further
advances to the Borrower under such Outstanding Notes (other than with respect
to payments by the Government on account of its guarantees of certain Outstanding
Notes payable to FFB).


 


Section 3.3            Advances under any
Partially Unadvanced Note and the S-8 FFB Note


 


With respect
to Advances to be made under any Partially Unadvanced Note or the S-8 FFB Note,
the RUS agrees to make or approve and the Borrower agrees to request such 


 


8

















 


Advances on
the terms and conditions of this Agreement. 
The Borrower shall give the RUS written notice of the date on which each
Advance is requested to be made in accordance with RUS policies and procedures.


 


Section 3.4            Interest Rates and
Payment


 


(a)           Interest Rates.  The Notes shall be payable and bear interest
as therein provided.


 


(b)           Electronic Funds Transfer.  Except as otherwise prescribed by the RUS,
the Borrower shall make all payments on the Notes utilizing electronic funds
transfer procedures as specified by the RUS.


 


Section 3.5            Prepayment


 


The Borrower has no right to prepay any Note in whole or in part except
such rights, if any, as are expressly provided for in each Note or as may be
provided by Law.  However, prepayment of
any Outstanding Note (and any penalties) relating to a Contemporaneous Loan
shall be mandatory under Section 5.4.


 


ARTICLE
IV  -
CONDITIONS OF LENDING


 


Section 4.1            General Conditions


 


In connection with the execution and delivery of this Agreement, each
of the following conditions shall be satisfied (all documents, certificates and
other evidence of such conditions are to be satisfactory to the RUS in its
discretion; such satisfaction (or waiver thereof) to be evidenced by the
execution by the RUS of this Agreement):


 


(a)           Legal Matters.  All legal matters incident to the
consummation of the transactions hereby contemplated shall be satisfactory to
counsel for the RUS;


 


(b)           Loan Documents.  The RUS shall receive duly executed originals
of this Agreement;


 


(c)           Authorization.  The RUS shall receive evidence satisfactory
to it that all corporate documents and proceedings of the Borrower necessary
for duly authorizing the execution, delivery and performance of this Agreement
have been obtained and are in full force and effect; and


 


(d)           Opinion of Counsel.  The RUS shall receive an opinion of counsel
for the Borrower (who shall be acceptable to the RUS) with respect to this
Agreement, in form and content acceptable to the RUS.


 


9





















 


Section 4.2            Conditions to
Advances Under any Partially Unadvanced Note and the S-8 FFB Note


 


The obligation of the RUS to approve any Advance under
any Partially Unadvanced Note or the S-8 FFB Note is subject to the
satisfaction of each of the following conditions precedent on or before the
date of such Advance (all documents, certificates and other evidence of such
conditions precedent are to be satisfactory to the RUS in its reasonable discretion;
such satisfaction (or waiver thereof) to be evidenced by the approval or making
of the requested Advance):


 


(a)           Continuing Representations and Warranties.  That the representations and warranties of
the Borrower contained in this Agreement be true and correct on and as of the
date of such Advance as though made on and as of such date (except for any
representation or warranty limited by its terms to a specific date; provided that the representations
contained in Paragraph (g) of Article II shall be deemed made as
of and since the date of the last audited financials of the Borrower);


 


(b)           Wholesale Power Contract.  That the Borrower shall not be in default
under the terms of, or contesting the validity of, any Wholesale Power
Contract;


 


(c)           Material Adverse Effect.  That no event shall have occurred since the
date hereof that has had or is likely to have a Material Adverse Effect;


 


(d)           Event of Default.  That no Event of Default, and no event which
with the passage of time or giving of notice or both would constitute an Event
of Default, shall have occurred and be continuing, or shall have occurred after
giving effect to such Advance on the books of the Borrower;


 


(e)           Requisitions.  That the Borrower shall have requisitioned
such Advance by submitting a requisition to the RUS in form and substance
satisfactory to the RUS;


 


(f)            Flood Insurance.  That for any such Advance used in whole or in
part to finance the construction or acquisition of any building in any area
identified by the Secretary of Housing and Urban Development pursuant to the
Flood Disaster Protection Act of 1973 (the “Flood Insurance Act”) or any rules,
regulations or orders issued to implement the Flood Insurance Act as any area
having special flood hazards, or to finance any facilities or materials to be
located in any such building, or in any building owned or occupied by the
Borrower and located in such a flood hazard area, the Borrower shall have
submitted evidence, in form and substance satisfactory to the RUS or the RUS
has otherwise determined, that (i) the community in which such area is
located is then participating in the national flood insurance program, as
required by the Flood Insurance Act and any related regulations, and (ii) the
Borrower has obtained flood insurance coverage with respect to such building
and contents as may then be required pursuant to the Flood Insurance Act and
any related regulation;


 


(g)           Compliance With this Agreement and Indenture.  That the Borrower is in material compliance
with this Agreement and the Indenture;


 


10





















 


(h)           Oversight Period.  That an Increased Oversight Period or Highest
Oversight Period shall not exist;


 


(i)            Application
of Advances.  That the
Borrower agrees to apply the proceeds of the Advances under any Partially
Unadvanced Note or S-8 FFB Note to pay the costs, or reimburse the costs paid,
by or on behalf of the Borrower to make the improvements to the System that
have been approved by the RUS;


 


(j)            Additional Documents.  That the Borrower agrees to provide or cause
to be provided to RUS such additional documents as RUS may reasonably request
from the Trustee; and


 


(k)           Conditions Precedent to Advance.  That all conditions
precedent under the Indenture and this Agreement to such Advance have been
satisfied or waived, that the RUS has received copies of all certificates and
opinions delivered to the Trustee in connection therewith, and that the Trustee
has consented to each Advance pursuant to Section 4.8 of the Indenture and
the RUS has received a copy of such consent.


 


ARTICLE V  -
AFFIRMATIVE COVENANTS


 


Section 5.1            Generally


 


Unless otherwise agreed to in writing by the
RUS, while this Agreement is in effect, the Borrower shall duly observe each of
the affirmative covenants contained in this Article V.


 


Section 5.2            Performance under
Indenture


 


The Borrower shall duly observe and perform all of its obligations
under the Indenture including, without limitation, the obligation to establish
and collect rates in accordance with Section 13.14 of the Indenture.


 


Section 5.3            Annual Compliance
Certificate


 


Within one hundred twenty (120) days after
the close of each fiscal year, the Borrower shall deliver to the RUS a written
statement signed by its General Manager, stating that, to the knowledge of the
General Manager, during such year the Borrower has fulfilled its obligations
under the Loan Documents throughout such year in all material respects or, if
there has been a material default in the fulfillment of such obligations,
specifying each such default known to the General Manager and the nature and
status thereof.


 


Section 5.4            Simultaneous
Prepayment of Contemporaneous Loans


 


If the Borrower shall at any time prepay in
whole or in part any Contemporaneous Loan, the Borrower shall prepay the
related Outstanding Note to the Government in the ratio that the unpaid
principal balance of such Outstanding Note to the Government bears to the
aggregate unpaid principal amount of both such Outstanding Note and the note
evidencing the Contemporaneous Loan.  If
either such Outstanding Note or such other note calls for a 


 


11














 


prepayment
penalty or premium, such amount shall be paid but shall not be used in
computing the amount needed to be paid to the Government under this Section 5.4
to maintain such ratio.  Prepayments
associated with refinancing or refunding a Contemporaneous Loan are not
considered to be prepayments for purposes of this Agreement if (i) the
principal amount of such refinancing or refunding loan is not less than the
amount of loan principal being refinanced and (ii) the weighted average
life of the refinancing or refunding loan is not less than the weighted average
remaining life of the loan being refinanced.


 


Section 5.5            Rates and Coverage
Ratios


 


(a)           Prospective Notice of Change in Rates.  The Borrower shall give the RUS sixty (60)
days’ prior written notice of any proposed change in the Borrower’s general
rate structure.


 


(b)           Routine Reporting of Coverage Ratios. In
connection with the furnishing of its annual report to the RUS pursuant to Section 5.9,
the Borrower shall report to the RUS, in such written format as RUS may
require, the Margins for Interest level which was achieved during such fiscal
year.


 


(c)           Corrective Plans.  Within thirty (30) days of (i) sending a
notice to the RUS under Subsection (b) above that shows the Margins
for Interest level specified by Section 13.14 of the Indenture was not
achieved for any fiscal year, or (ii) being notified by the RUS that the
Margins for Interest level specified by Section 13.14 of the Indenture was
not achieved for any fiscal year, whichever is earlier, the Borrower in
consultation with the RUS shall provide a written plan reasonably satisfactory
to the RUS setting forth the actions that shall be taken to achieve the
specified Margins for Interest level on a timely basis.


 


Section 5.6            Financial Books


 


The Borrower shall at all times keep, and
safely preserve, proper books, records and accounts in which full and true
entries shall be made of all of the dealings, business and affairs of the
Borrower and its Subsidiaries, in accordance with any applicable Accounting
Requirements.


 


Section 5.7            Rights of
Inspection


 


The Borrower shall afford the RUS, through
its representatives, reasonable opportunity, at all times during business hours
and upon prior notice, to have access to and the right to inspect the System, any
other property encumbered by the Indenture, and any or all books, records,
accounts, invoices, contracts, leases, payrolls, canceled checks, statements
and other documents and papers of every kind belonging to or in the possession
of the Borrower or in any way pertaining to its property or business, including
its Subsidiaries, if any, and to make copies or extracts therefrom.


 


Section 5.8            Real Property
Acquisition


 


In acquiring real property, the Borrower
shall comply in all material respects with the provisions of the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970, as
amended by the Uniform Relocation Act Amendments of 1987, and 49 C.F.R. part
24, referenced by 7 C.F.R. part 21, to the extent applicable to such acquisition.


 


12

















 


Section 5.9            Financial Reports


 


The Borrower shall cause to be prepared and furnished to the RUS,
within one hundred twenty (120) days after the end of each fiscal year of the
Borrower, a full and complete annual report of its financial condition and of
its operations in form and substance satisfactory to the RUS, audited and
certified by an independent certified public accountant satisfactory to the RUS
and accompanied by a report of such audit in form and substance reasonably
satisfactory to the RUS. If requested by the RUS, the Borrower shall also
furnish to the RUS from time to time such other reports concerning the
financial condition or operations of the Borrower, including its Subsidiaries,
as the RUS may reasonably request or RUS Regulations require.


 


Section 5.10         Miscellaneous Reports
and Notices


 


The Borrower shall furnish to the RUS:


 


(a)           Notice of Default.  Promptly after becoming aware thereof, notice
of: (i) the occurrence of any Event of Default or event which with the
giving of notice or the passage of time, or both, would become an Event of
Default; and (ii) the receipt of any notice given pursuant to the
Indenture with respect to the occurrence of any event which with the giving of
notice or the passage of time, or both, could become an “Event of Default”
under the Indenture;


 


(b)           Notice of Litigation.  Promptly after the commencement thereof,
notice of the commencement of all actions, suits or proceedings before any
court, arbitrator, or governmental department, commission, board, bureau,
agency or instrumentality affecting the Borrower which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect;


 


(c)           Notice of Change of Place of Business.  Promptly in writing, notice of any change in
location of its principal place of business or the office where its records
concerning accounts and contract rights are kept;


 


(d)           Regulatory and Other Notices.  Promptly after receipt thereof, copies of any
notices or other communications received from any governmental authority with
respect to any matter or proceeding which could reasonably be expected to have
a Material Adverse Effect;


 


(e)           Ratings. 
Promptly after receipt thereof, copies of Credit Ratings and copies of
any reports with respect to the Borrower or its Credit Rating issued by any
Rating Agency;


 


(f)            Material Adverse Effect.  Promptly after becoming aware thereof, notice
of any matter that would reasonably be expected to have a Material Adverse
Effect; and


 


(g)           Other Information.  Such other information regarding the
condition, financial or otherwise, operations, properties or business of the
Borrower as the RUS may, from time to time, reasonably request.


 


Section 5.11         Variable Rate
Indebtedness


 


In connection with the furnishing of its
annual report to the RUS pursuant to Section 5.9, if requested by the RUS,
the Borrower shall report to the RUS, in such written format as may be 


 


13

















 


acceptable to
the RUS, the specific maturities of all of the Borrower’s outstanding
indebtedness and the interest rates applicable thereto, including, without
limitation, with respect to any indebtedness not bearing a fixed rate through
the maturity of such indebtedness the method and timing for adjustment and
readjustment of the applicable interest rate.


 


Section 5.12         Special Construction
Account


 


The Borrower shall continue to maintain the “Special
Construction Account” maintained under the Existing Loan Contract and continue
to hold therein all moneys currently held therein, as provided in this Section 5.12.  The Special Construction Account shall be
insured to the extent insurable by the Federal Deposit Insurance Corporation or
other federal agency acceptable to the RUS and shall be designated by the
corporate name of the Borrower followed by the words “Special Construction
Account.”  The Borrower shall promptly
deposit proceeds from all Advances, including previously advanced funds whose
original expenditure has been disallowed by a RUS loan fund audit, into the
Special Construction Account.  Moneys in
the Special Construction Account shall be used solely for the purposes for
which the Advance was made or for such other purposes as may be approved by the
RUS.


 


Section 5.13         Compliance with Laws


 


The Borrower shall operate and maintain the
System and its properties in compliance in all material respects with all
applicable Laws the failure to comply with which could reasonably be expected
to have a Material Adverse Effect.


 


Section 5.14         Plant Agreements


 


(a)           Enforcement.  If the RUS, in its absolute discretion, shall
determine it appropriate or necessary to preserve the security for the Loans,
subject to the provisions of the Indenture, the RUS may require in writing the
Borrower to authorize and empower the Government to enforce any Plant
Agreement, with the form of such written authorization to be prescribed by the
RUS.


 


(b)           Appointment of Agent.  If the appointment of Georgia Power Company
as agent under any Plant Agreement is terminated in whole or in part, and if
the Borrower is not qualified to serve as agent, then the RUS may require the
Borrower to take all action that the Borrower is entitled to take to cause the
appointment of the Government or such agency of the Government as the RUS shall
designate in writing, as agent under any such Plant Agreement, to the extent
and with such duties, rights, power and authority as the RUS shall prescribe in
writing, not inconsistent with the provisions of such Plant Agreement.


 


Section 5.15         Lockbox Agreement


 


The Borrower shall not, without first
complying with the requirements of Section 9.1, amend, supplement, or
otherwise modify the Lockbox Agreement. 
During a Highest Oversight Period, the Borrower shall, if so directed in
writing by the Administrator of the RUS, (a) deposit, pursuant to such
Lockbox Agreement, all cash proceeds of the Trust Estate, including, without
limitation, checks, money and the like (other than cash proceeds deposited or
required to be deposited with the Trustee pursuant to the Indenture), which
cash proceeds shall include, without limitation, all payments by members of the
Borrower on account of the Wholesale Power 


 


14

















 


Contracts, in
separate deposit or other accounts, segregated from all other monies, revenues
and investments of the Borrower, and (b) take all such other actions as
the RUS shall request to continue perfection of the lien of the Indenture in
such proceeds for the benefit of all Holders of the Outstanding Secured
Obligations.


 


Section 5.16         Nuclear Fuel


 


Upon the written request of the RUS, to the
extent the Borrower owns nuclear fuel located outside the State of Georgia as
to which a security interest can be created under the Uniform Commercial Code
and perfected solely by the filing of a financing statement under the Uniform
Commercial Code, the Borrower shall cause such nuclear fuel to be subjected to
the lien of the Indenture.


 


Section 5.17         Power Requirements
Studies


 


The Borrower shall prepare and use power
requirements studies of its electric loads and future energy and capacity
requirements in conformance with Prudent Utility Practice and an RUS approved
plan for preparation of such power requirements studies, taking into account
the limited obligation of the Borrower under the Wholesale Power Contracts; provided,
however, that during a Highest Oversight Period, or in connection with
acquisition or construction financed in whole or in part by RUS, the Borrower
shall prepare and use such studies in conformance with RUS Regulations.  The Borrower shall provide the RUS with
copies of such studies.


 


Section 5.18         Long Range Engineering
Plans and Construction Work Plans


 


The Borrower shall develop, maintain and use
up-to-date long-range engineering plans and construction work plans in
conformance with Prudent Utility Practice; provided, however,
that during a Highest Oversight Period, or in connection with acquisition or
construction financed in whole or in part by RUS, the Borrower shall develop,
maintain and use such plans in conformance with RUS Regulations.


 


Section 5.19         Design Standards,
Construction Standards and List of Materials


 


The Borrower shall use design standards,
construction standards and lists of acceptable materials in conformance with
Prudent Utility Practice; provided, however, that during a
Highest Oversight Period, or in connection with construction financed in whole
or in part by RUS, the Borrower shall use such standards and lists in
conformance with RUS Regulations.


 


Section 5.20         Plans and
Specifications


 


The Borrower shall submit
plans and specifications for construction to the RUS for review and approval,
as directed in writing by the RUS, for construction financed in whole or in
part by the RUS.


 


15

















 


Section 5.21         Standard Forms of
Construction Contracts, and Engineering and Architectural Services Contracts


 


The Borrower shall use
the standard forms of contracts promulgated by the RUS for construction,
procurement, engineering services and architectural services, if directed in
writing by the RUS, for construction, procurement, or services financed in
whole or in part by the RUS.


 


Section 5.22         Contract Bidding
Requirements


 


The Borrower shall follow
the RUS contract bidding procedures in conformance with RUS Regulations when
contracting for construction or procurement financed in whole or in part by the
RUS.


 


Section 5.23         Nondiscrimination


 


(a)           Equal Opportunity Provisions in Construction
Contracts.  The Borrower shall incorporate or
cause to be incorporated into any construction contract, as defined in
Executive Order 11246 of September 24, 1965 and implementing
regulations, which is paid for in whole or in part with funds obtained from the
RUS or borrowed on the credit of the United States pursuant to a grant,
contract, loan, insurance or guarantee, or undertaken pursuant to any RUS
program involving such grant, contract, loan, insurance or guarantee, the equal
opportunity provisions set forth in Exhibit A attached hereto
entitled Equal Opportunity Contract Provisions.


 


(b)           Equal Opportunity Contract Provisions Also Bind the
Borrower.  The Borrower further agrees that
it shall be bound by such equal opportunity clause in any federally assisted
construction work which it performs itself other than through the permanent
work force directly employed by an agency of government.


 


(c)           Sanctions and Penalties.  The Borrower agrees
that it shall cooperate actively with the RUS and the Secretary of Labor in
obtaining the compliance of contractors and subcontractors with the equal
opportunity clause and the rules, regulations and relevant orders of the
Secretary of Labor, that it shall furnish the RUS and the Secretary of Labor
such information as they may require for the supervision of such compliance,
and that it shall otherwise assist the administering agency in the discharge of
the RUS’s primary responsibility for securing compliance.  The Borrower further agrees that it shall
refrain from entering into any contract or contract modification subject to
Executive Order 11246 with a contractor debarred from, or who has not
demonstrated eligibility for, Government contracts and federally assisted
construction contracts pursuant to Part II, Subpart D of Executive
Order 11246 and shall carry out such sanctions and penalties for violation
of the equal opportunity clause as may be imposed upon contractors and
subcontractors by the RUS or the Secretary of Labor pursuant to Part II,
Subpart D of Executive Order 11246. In addition, the Borrower agrees
that if it fails or refuses to comply with these undertakings the RUS may
cancel, terminate or suspend in whole or in part this contract, may refrain
from extending any further assistance under any of its programs subject to
Executive Order 11246 until satisfactory assurance of future compliance
has been received from the Borrower, or may refer the case to the Department of
Justice for appropriate legal proceedings.


 


16





















 


Section 5.24         “Buy American”
Requirements


 


The Borrower shall use or
cause to be used in connection with the expenditures of funds if such funds
were obtained in whole or in part by a loan being made or guaranteed by the RUS
only such unmanufactured articles, materials, and supplies as have been mined
or produced in the United States or any eligible country, and only such
manufactured articles, materials, and supplies as have been manufactured in the
United States or any eligible country substantially all from articles,
materials, and supplies mined, produced or manufactured, as the case may be, in
the United States or any eligible country, except to the extent the RUS shall
determine that such use shall be impracticable or that the cost thereof shall
be unreasonable.  For purposes of this
section, an “eligible country” is any country that has with respect to the
United States an agreement ensuring reciprocal access for United States
products and services and United States suppliers to the markets of that
country, as determined by the United States Trade Representative.


 


Section 5.25         Maintenance of Credit
Ratings


 


As long as any Note
remains outstanding, the Borrower shall (a) maintain a Credit Rating from
at least two (2) Rating Agencies and (b) continuously subscribe with
a Rating Agency for the services described in Exhibit B attached
hereto.


 


Section 5.26         Application of
Advances


 


The Borrower shall apply
the proceeds of Advances as provided in Section 4.2(i) above, with
only such modifications as may be mutually agreed upon.


 


Section 5.27         Excepted Property


 


During a Highest
Oversight Period, the Borrower shall take all actions necessary to include in
the Trust Estate, subject to the first lien of the Indenture, the Excepted
Property designated in writing by the Government; provided, however, the
Borrower shall not be required to subject to the lien of the Indenture cash
and/or securities held for working capital purposes in an amount up to the
greater of (i) twenty five percent (25%) of the Borrower’s aggregate cost
of operation and maintenance for the preceding twelve (12) calendar month
period or (ii) the Borrower’s aggregate cost of operation and maintenance
for three (3) consecutive calendar months designated by the Borrower
during such preceding twelve (12) calendar month period as  shown on RUS Form 12(a), lines 14 and
19.


 


Section 5.28         Additional Affirmative
Covenants


 


The Borrower also shall
comply with the additional covenants identified in Schedule 4 hereto.


 


17

















 


ARTICLE
VI  -
NEGATIVE COVENANTS


 


Section 6.1            General


 


Unless otherwise agreed to in writing by the
RUS, while this Agreement is in effect, the Borrower shall duly observe each of
the negative covenants set forth in this Article VI.


 


Section 6.2            Limitations on
System Extensions, Additions and Dispositions


 


(a)           Additions to Capacity.  The Borrower shall not, without first
complying with the requirements of Section 9.1, purchase, construct, lease
or otherwise acquire Special Assets (as defined below) if the aggregate amount
expended for purchase, construction, lease or other acquisition of all Special
Assets (i) in the current fiscal year of the Borrower is greater than 5%
of the Borrower’s Total Utility Plant or (ii) in the current and two
immediately preceding fiscal years of the Borrower is greater than 10% of the
Borrower’s Total Utility Plant.  For the
purposes of this Subsection (a), “Special Assets” means capital assets that
constitute utility or non-utility plant and that:  (1) taking into account any
substantially contemporaneous or otherwise related sale, transfer, lease or
other disposition, increase the generating capacity of the System or any
generating plant of the Borrower by more than 5%; (2) are not subject to
the lien of the Indenture and are not nuclear fuel; or (3) are not used or
useful as a part of the System.


 


(b)           Dispositions of System Assets.  The Borrower shall not, without first
complying with the requirements of Section 9.1, request the release of
capital assets that constitute utility plant from the lien of the Indenture pursuant
to Section 5.2 of the Indenture if (taking into account any substantially
contemporaneous or otherwise related purchase, construction, lease or other
acquisition of similar property that is subject to the lien of the Indenture)
there will result a decrease in the generating capacity of the System or any
generating plant by more than 5% if the aggregate net book value of all such
assets released from the lien of the Indenture (i) in the current fiscal
year of the Borrower is greater than 5% of the Borrower’s Total Utility Plant
or (ii) in the current and two immediately preceding fiscal years of the
Borrower is greater than 10% of the Borrower’s Total Utility Plant.


 


(c)           Legal Requirements.  The requirements of this Section 6.2
shall not apply to any purchase, construction, lease or other acquisition, or
any sale, transfer, lease or other disposition, of capital assets to the extent
that any of the foregoing is required to comply with “Legal Requirements” (as
defined in the Wholesale Power Contract). 
No such purchase, construction, lease or other acquisition and no such
sale, transfer, lease or other disposition shall be considered in calculating
the aggregate limitations specified in Subsections (a) or (b) hereof.


 


(d)           Highest Oversight Period.  During a Highest Oversight Period, the
Borrower shall not, without the prior written approval of the RUS, purchase,
construct, lease or otherwise acquire, or sell, transfer, lease or otherwise
dispose of, any capital asset, or enter into any agreement therefor.


 


Section 6.3            Limitations on
Employment and Retention of General Manager


 


At any time an Event of Default, or an event
which with the passage of time or the giving of notice, or both, would become
an Event of Default, occurs and is continuing, the Borrower 


 


18

















 


shall not,
without the prior written approval of the RUS, enter into an employment
relationship with any person to serve as General Manager unless such employment
shall first have been approved by the RUS. 
If an Event of Default, or an event which with the passage of time or
the giving of notice, or both, would become an Event of Default, occurs and is
continuing and the RUS requests the Borrower to terminate the employment of its
General Manager, the Borrower shall do so within thirty (30) days after the
date of such request.  All contracts in
respect of the employment of the General Manager hereafter entered into shall
contain provisions to permit compliance with this Section 6.3.


 


Section 6.4            Limitations on
Certain Types of Contracts


 


(a)           Approval of Certain Contracts.  The Borrower shall not, without first
complying with the requirements of Section 9.1, enter into any of the
following:


 


(i)            any
contract for the management or operation of all or substantially all of the
System;


 


(ii)           any
contract for the purchase, exchange or sale of electric power and energy that
has a term exceeding three (3) years and under which committed purchases,
exchanges or sales exceed ten percent (10%) of the peak demand of the System
for the most recently completed fiscal year;


 


(iii)          any
pooling or similar power supply agreement that has a term exceeding three (3) years;


 


(iv)          any
amendment or modification to any of the Wholesale Power Contracts, including
the Schedules thereto and the form of Withdrawal Agreement incorporated
therein, except that the Borrower may amend or modify any of (A) Exhibit 1
to “Rate Schedule A” thereto; (B) the Exhibits to Appendix 1 to “Rate
Schedule A” thereto in the manner expressly provided in the Wholesale Power
Contracts; (C) Sections I and II of Appendix 2 (Control Area Services) to “Rate
Schedule A” thereto; (D) Appendix 3 (General Terms and Conditions) to “Rate
Schedule A” thereto; (E) Schedule B — Form of Subscription
Agreement in the manner expressly provided in Section 13.3.1 of the
Wholesale Power Contracts; and (F) the Wholesale Power Contracts in the
manner expressly provided in any “Withdrawal Agreement” (as defined in the
Wholesale Power Contracts) entered into in connection with such Wholesale Power
Contracts; or


 


(v)           any
contract for construction or procurement or for architectural and engineering
services in connection with a new generating facility if the project will be
financed in whole or in part by the RUS.


 


(b)           Terminations.  The Borrower shall not, without first
complying with the requirements of Section 9.1, exercise any option to
terminate any contract, including, without limitation, any Wholesale Power
Contract, if such contract, based upon its nature, remaining term (not taking
into account any option of the Borrower to terminate) and size, would be 


 


19





















 


required to be
approved by the RUS pursuant to Subsection (a) above if the Borrower were
to have entered into such contract on the proposed termination date.  The Borrower further agrees at the written
direction of the RUS to exercise any option to terminate a contract if the
exercise by the Borrower of that option would require compliance with the
requirements of Section 9.1 pursuant to the immediately preceding
sentence; provided, however, the Borrower shall not be required
to exercise any such option to terminate if such exercise could reasonably be
expected to have a Material Adverse Effect. 
For the purpose of illustration only, and not by way of limitation, the
Borrower shall be required to comply with the requirements of Section 9.1
before terminating, and the RUS can require the Borrower to terminate, in any
year before year seven (7) thereof, a ten (10) year contract for the
sale of electric power and energy that exceeds ten percent (10%) of the
Borrower’s peak demand because the portion of the contract to be terminated
meets the standards of Subsection (a)(ii) above (i.e., a term greater than
three (3) years for the committed sale of electric power and energy that
exceeds ten percent (10%) of the Borrower’s peak demand).  The Borrower can terminate without first
complying with the requirements of Section 9.1, and the RUS cannot require
the Borrower to terminate, that same contract after year seven (7) thereof.


 


(c)           Highest Oversight Period.  During a Highest Oversight Period, the
Borrower shall not, without the prior written approval of the RUS, enter into
or amend or modify any of the contracts of the type described in this Section 6.4,
regardless of duration or size.


 


(d)           Determination of Term.  For purposes of this Section 6.4, the
term of any contract shall be determined in accordance with this
Subsection.  The term of any contract
shall be the period during which performance (other than payment) is to occur
and not the period commencing when such contract is executed.  The term of any contract shall be based upon
the period prior to the first date upon which the Borrower could, at its
option, terminate the contract (taking into account any notice period required
for termination), unless the exercise of such termination right could
reasonably be expected to have a Material Adverse Effect.


 


(e)           Amendments; Extensions.  Any amendment or modification to an existing
contract (including an extension thereof) shall be governed by this Section 6.4
only to the extent such specific amendment or modification (and not the
contract as a whole), judged as if it were a separate contract, would be
required to be approved by the RUS pursuant to Subsection (a) above.


 


Section 6.5            Limitations on
Loans, Investments and Other Obligations


 


The Borrower shall not, without first
complying with the requirements of Section 9.1, make any Investment,
except (i) Investments made for the purpose of funds management that are
made pursuant to an investment policy approved by the Borrower’s Board of
Directors, a copy of which has been provided to the RUS, (ii) Investments
specifically approved by the RUS in writing under this clause (ii), (iii) retained
earnings or patronage of Subsidiaries, (iv) patronage allocated to the
Borrower as a result of transactions in the ordinary course of business with
cooperatives, such as, National Rural Utilities Cooperative Finance Corporation
and CoBank, ACB, (v) investments set forth in RUS Regulations
(7 C.F.R. § 1717.655, as such RUS Regulations exist on the date hereof) as
excluded from computations of the amounts and type of Investments for which RUS
approval is required, and (vi) other Investments (valued at the initial 


 


20

















 


cost thereof)
that do not in the aggregate with all other Investments other than Investments
described in clauses (i) through (v) above exceed fifteen percent
(15%) of the Borrower’s Total Utility Plant; provided, however,
that during an Increased Oversight Period, or Highest Oversight Period, the
Borrower shall not, without the prior written approval of the RUS, make any
additional Investments of the type described in clause (vi) above.


 


Section 6.6            Depreciation Rates


 


The Borrower shall not, without first
complying with the requirements of Section 9.1, adopt any depreciation
rate not previously approved for the Borrower by the RUS.


 


Section 6.7            Rate Reductions


 


The Borrower shall not, without first complying
with the requirements of Section 9.1, decrease its Rates if it has failed
to comply with the provisions of Section 13.14 of the Indenture for the
fiscal year prior to such reduction.


 


Section 6.8            Indenture
Restrictions


 


Notwithstanding the provisions of the
Indenture, the Borrower shall not, without first complying with the
requirements of Section 9.1:


 


(a)           issue Additional
Obligations under the Indenture on the basis of the $200,000,000 carry forward
amount described in Section 4.2B(1) of the Indenture, unless the
proceeds of such Additional Obligations are used (i) to pay premiums and
other penalties and charges in respect of any Existing Obligation held by FFB
or the RUS, (ii) to fund the acquisition or construction of additions or
extensions to the System that are subject to the lien of the Indenture, or (iii) to
pay premiums and other penalties, charges and other costs of issuance incurred
in connection with a Current Refunding in an aggregate amount not to exceed
five percent (5%) of the principal amount of the Obligations subject to the
Current Refunding;


 


(b)           issue Additional
Obligations under the Indenture while any amounts are outstanding under any RUS
Reimbursement Obligation or during an Increased Oversight Period or a Highest
Oversight Period;


 


(c)           consolidate or merge
with any other corporation or convey or transfer the Trust Estate under the
Indenture substantially as an entirety unless the aggregate amount of the
Borrower’s Equity is not reduced as a result of such transaction and the Borrower
provides the RUS with evidence reasonably satisfactory to the RUS that the
consummation of such transaction will not result in the commencement of an
Increased Oversight Period; provided, however, that during an
Increased Oversight Period or a Highest Oversight Period, the Borrower shall
not consolidate or merge with any corporation or convey or transfer the Trust
Estate substantially as an entirety;


 


(d)           elect pursuant to Section 1.1D
of the Indenture to apply Accounting Requirements in effect as of the date of
execution and delivery of the Indenture;


 


21





















 


(e)           include as Property
Additions, under any provision of the Indenture, any property that would not
qualify as Property Additions but for paragraph C of the definition of Property
Additions, or sell, lease or sublease any portion of the Trust Estate pursuant
to paragraph H of Section 5.1 of the Indenture;


 


(f)            submit an Available
Margins Certificate under Article IV of the Indenture for the purpose of
issuing Additional Obligations unless such Certificate is accompanied by an
Independent Accountant’s Certificate stating in substance that nothing came to
the attention of such Accountant in connection with its unaudited review of the
applicable period that would lead such Accountant to believe that there was any
incorrect or inaccurate statement in such Certificate;


 


(g)           enter into a
Supplemental Indenture pursuant to Section 12.1H of the Indenture;


 


(h)           enter into a
Supplemental Indenture pursuant to Section 12.1B or 12.1C of the Indenture
if (i) the Holders of the Obligations issued under such Supplemental
Indenture are granted greater security rights in and to the Trust Estate than
those security rights enjoyed by the Government in its capacity as a Holder of
Obligations under the Indenture, provided, however, that neither (A) the
existence of Credit Enhancement nor (B) the creation and maintenance of
debt service or similar funds for the payment of the principal and interest on
Obligations issued under such Supplemental Indenture (to the extent such debt
service or other similar funds are funded from the proceeds of the issuance of
such Obligations or funded in connection with the refinancing of other debt by
such Obligations), shall constitute greater security rights in and to the Trust
Estate requiring the Borrower to comply with the requirements of Section 9.1;
(ii) the Supplemental Indenture provides for covenants, restrictions,
limitations, conditions, events of defaults or remedies not applicable to all
Obligations then Outstanding or not equally available to all Holders of
Obligations then Outstanding, provided, however, that provisions
for covenants and events of default that relate solely to assuring that the
interest on such Obligations (or other indebtedness secured by such
Obligations) is excludable from the gross income of the holder thereof pursuant
to the Internal Revenue Code, as amended, shall not constitute the providing of
covenants or events of default requiring the Borrower to comply with the
requirements of Section 9.1; or (iii) the Obligations issued under
such Supplemental Indenture, or the indebtedness secured by such Obligations,
can be accelerated, or effectively accelerated through a mandatory purchase or
similar mechanism, in either case, as a consequence of a breach or default by
the Borrower under the related loan agreement or similar agreement entered into
in connection with such Obligation or indebtedness, provided, however,
that acceleration and similar rights may be granted to development authorities
and trustees without first complying with the requirements of Section 9.1
in connection with the issuance of Obligations (or other indebtedness secured
by such Obligations) the interest on which is excludable from the gross income
of the holder thereof pursuant to the Internal Revenue Code, as amended, if
such acceleration and similar rights are substantially similar to those
currently granted to development authorities and trustees in connection with
the Existing Obligations;


 


(i)            create or incur or
suffer or permit to be created or incurred or to exist any pledge of current
assets secured under the Indenture to secure current liabilities;


 


22





















 


(j)            provide any
Certificate of an Appraiser under the Indenture, unless such Appraiser is
Independent, if the amount of the property or securities as to which the
Appraiser’s Certificate applies is greater than two million dollars
($2,000,000); provide any Certificate of an Engineer under the Indenture,
unless such Engineer is a licensed professional, if the amount of the property
as to which the Engineer’s Certificate applies is greater than one hundred
thousand dollars ($100,000); or provide any Certificate of an Engineer under
the Indenture, unless such Engineer is Independent, if the amount of the
property as to which the Engineer’s Certificate applies is greater than ten
million dollars ($10,000,000);


 


(k)           issue any Additional
Obligations upon the basis of Designated Qualifying Securities unless the
Borrower has a one hundred percent (100%) ownership or membership interest in
the Subsidiary entering into a Qualifying Securities Indenture in connection
with such Designated Qualifying Securities;


 


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


 


(m)          following the execution
of the Amendatory Supplemental Indenture by the Trustee, issue any Additional
Obligations upon the basis of Certified Progress Payments.


 


Section 6.9            Negative Pledge


 


The Borrower shall not, without first
complying with the requirements of Section 9.1, directly or indirectly
create, incur, assume or permit to exist any lien, mortgage, pledge, security
interest, charge or encumbrance of any kind, whether voluntary or involuntary
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, and any other agreement to give any security interest)
on or with respect to any of the Excepted Property (other than the Excepted
Property described in paragraph P of the definition of Excepted Property, which
property shall not be subject to this Section 6.9) except for:


 


(a)           Permitted Exceptions
(other than the Permitted Exception described in paragraph Y of the definition
of Permitted Exceptions);


 


(b)           as to the Excepted
Property described in paragraphs B through E, inclusive, and paragraph K of the
definition of Excepted Property, liens, mortgages, pledges, security interests,
charges and encumbrances in connection with purchase money, construction or
acquisition indebtedness (or renewals or extensions thereof) that encumber only
the asset or assets so purchased, constructed or acquired or property improved
through such purchase, construction or acquisition, and the proceeds upon a
sale, transfer or exchange thereof;


 


(c)           liens, mortgages,
pledges, security interests, charges and encumbrances (i) for the benefit
of all Holders of the Obligations issued under the Indenture, (ii) in
connection with any bond or similar fund established by the Borrower with
respect to any debt securities, the interest on which is excludable from gross
income of the holder thereof pursuant to the Internal Revenue Code, as amended,
to the extent of amounts deposited in such funds in the ordinary course to make
regularly scheduled payments on such debt securities, or (iii) in
connection with any debt service or similar fund established by the Borrower
for the payment of principal or interest on 


 


23





















 


debt
securities, the interest on which is excludable from gross income of the holder
thereof pursuant to the Internal Revenue Code, as amended, if such fund is
funded solely from the proceeds of the issuance of such debt securities (or
funded in connection with the refinancing of other debt by such debt
securities);


 


(d)           liens, pledges,
security interests, charges and encumbrances with respect to any interest, debt
or equity, of the Borrower in the National Rural Utilities Cooperative Finance
Corporation or CoBank, ACB purchased or otherwise acquired by the Borrower in
connection with membership in any such entity or any borrowing from any such
entity;


 


(e)           liens, pledges,
security interests, charges and encumbrances arising in connection with any
legal or economic defeasance of indebtedness, unless the funding of the
defeasance is during an Increased Oversight Period or a Highest Oversight
Period and more than twenty percent (20%) of the defeasance is funded other
than with the proceeds of the issuance of new indebtedness (in which case the
Borrower shall first comply with the requirements of Section 9.1 before
permitting or creating any such lien, pledge, security interest, charge or
encumbrance); or


 


(f)            liens, pledges,
security interests, charges and encumbrances with respect to deposit,
brokerage, commodity and other similar accounts to the extent such liens,
pledges, security interests, charges and encumbrances do not secure
indebtedness for borrowed money other than indebtedness incurred in connection
with acquiring securities or other investments deposited in any such account.


 


Section 6.10         Emissions Allowances


 


The Borrower shall not, without first
complying with the requirements of Section 9.1, sell, assign or otherwise
dispose of (or enter into any agreement therefor) any allowances for emissions
or similar rights granted by any governmental authority, except allowances or
similar rights that exceed those necessary in any particular fiscal year for
the Borrower to operate its generating facilities during such year, as
evidenced by a written certification by the Borrower and provided to the RUS at
the time of such sale, assignment or other disposition.


 


Section 6.11         Changes to Plant
Agreements


 


The Borrower shall not, without first
complying with the requirements of Section 9.1, amend, supplement, waive,
extend, terminate or assign the Plant Agreements or agree to do so.


 


Section 6.12         Fiscal Year


 


The Borrower shall not, without first
complying with the requirements of Section 9.1, change its fiscal year.


 


Section 6.13         Limits on Variable
Rate Indebtedness


 


During an Increased Oversight Period or Highest Oversight Period, the
Borrower shall not, if so directed in writing by the RUS, increase the
outstanding principal amount of indebtedness of the Borrower, the interest rate
with respect to which is adjusted or readjusted at intervals of less than two (2) years,
including, without limitation, Additional Obligations issued 


 


24

















 


as a Periodic Offering, the interest rate on which is subject to such
adjustment or readjustment, to an amount exceeding the amount thereof
outstanding on the date of such notice from the RUS.


 


Section 6.14         Limitations on
Changing Principal Place of Business


 


Without prior written notification to the
RUS, the Borrower shall not change its principal place of business.


 


Section 6.15         Limitations on RUS
Financed Extensions and Additions


 


The Borrower
shall not extend or add to its System either by construction or acquisition
without the prior written approval of the RUS if the construction or
acquisition is financed or will be financed in whole or in part by the RUS.


 


Section 6.16         Historic Preservation


 


The Borrower
shall not, without approval in writing by the RUS, use any Advance to construct
any facility which shall involve any district, site, building, structure or
object which is included in, or eligible for inclusion in, the National
Register of Historic Places maintained by the Secretary of the Interior
pursuant to the Historic Sites Act of 1935 and the National Historic
Preservation Act of 1966.


 


Section 6.17         Impairment of
Wholesale Power Contracts


 


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


 


Section 6.18         State Regulation


 


The Borrower
shall not voluntarily allow or permit itself to be regulated by any state
governmental agency or authority.


 


Section 6.19         Limits on Short-Term
Indebtedness


 


Following the execution of the Amendatory
Supplemental Indenture by the Trustee, the Borrower shall not, without
first complying with the requirements of Section 9.1, on any date permit
Short-Term Indebtedness to exceed fifteen percent (15%) of the Borrower’s total
capitalization (determined in accordance with Accounting Requirements, except
that such determination and calculations shall not be made on a consolidated
basis and shall not, therefore, take into account the Short-Term Indebtedness,
total capitalization  of the
Borrower’s Affiliates and Subsidiaries) as of the end of the fiscal quarter
immediately preceding such date; provided, however, that
notwithstanding and in lieu of the foregoing, (i) for the period from the
date of execution of the Amendatory Supplemental Indenture by the
Trustee through December 31,
2014, the Borrower shall not on any date permit Short-Term Indebtedness to
exceed thirty percent (30%) of the Borrower’s Total Utility Plant and (ii) for
any subsequent period or periods as to which RUS provides its prior written
consent, the Borrower shall not on any date permit Short-Term Indebtedness to
exceed thirty percent (30%) of the Borrower’s Total Utility Plant or 


 


25

















 


such other threshold as the RUS shall specify in such prior written
consent.  As used in this Section 6.19,
“Short-Term Indebtedness” means all indebtedness of, or guaranteed or in effect
guaranteed (whether directly or indirectly, contingent or otherwise) against
loss in respect thereof to the holder thereof by, the Borrower (other than
trade payables) which on the date of original issuance is classified as
short-term debt under Accounting Requirements.


 


Section 6.20         Additional Negative
Covenants


 


The Borrower also shall comply with the
additional negative covenants identified in Schedule 4 attached hereto.


 


ARTICLE
VII  -
EVENTS OF DEFAULT


 


The following shall be “Events of Default”
under this Agreement:


 


(a)           Representations and Warranties.  Any representation or warranty made by the
Borrower in Article II hereof, in any certificate furnished to the RUS
hereunder or in the Indenture shall be incorrect in any material respect at the
time made;


 


(b)           Payment. 
Default shall be made in the payment of or on account of interest on or
principal of any Note when and as the same shall be due and payable, whether by
acceleration or otherwise, which shall remain unsatisfied for five (5) Business
Days;


 


(c)           Borrowing Under the Indenture in Violation of the
Loan Contract.  Default by the
Borrower in the observance or performance of any covenant or agreement
contained in Subsection (a) or (b) of Section 6.8;


 


(d)           Other Covenants.  Default by the Borrower in the observance or
performance of any other covenant or agreement contained in any of the Loan
Documents, which shall remain unremedied for thirty (30) calendar days after
written notice thereof shall have been given to the Borrower by the RUS, unless
such default cannot be reasonably cured within such thirty (30) day period,
then in such event and so long as a cure is being diligently pursued, the
Borrower shall have a reasonable period of time beyond such thirty (30) days to
complete such cure;


 


(e)           Corporate Existence.  The Borrower shall forfeit or otherwise be
deprived of its corporate charter or any franchises, permits, easements,
consents or licenses required to carry on any material portion of its business;


 


(f)            Other Obligations.  Default by the Borrower in the payment of any
obligation, whether direct or contingent, for borrowed money in excess of ten
million dollars ($10,000,000) or in the performance or observance of the terms
of any instrument pursuant to which such obligation was created or securing
such obligation which default shall have resulted in such obligation becoming
or being declared due and payable prior to the date on which it would otherwise
be due and payable;


 


(g)           Bankruptcy.  A court having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Borrower in an
involuntary case under any applicable 


 


26





















 


bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official, or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of ninety (90)
consecutive days or the Borrower shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or under any such law, or consent to the appointment or taking
possession by a receiver, liquidator, assignee, custodian or trustee, of a
substantial part of its property, or make any general assignment for the
benefit of creditors;


 


(h)           Dissolution or Liquidation.  Other than as provided in Subsection (g) above,
the dissolution or liquidation of the Borrower, or failure by the Borrower
promptly to forestall or remove any execution, garnishment or attachment of
such consequence as shall impair its ability to continue its business or
fulfill its obligations and such execution, garnishment or attachment shall not
be vacated within thirty (30) days.  The
term “dissolution or liquidation of the Borrower,” as used in this Subsection
(h), shall not be construed to include the cessation of the corporate existence
of the Borrower resulting either from a merger or consolidation of the Borrower
into or with another corporation following a transfer of all or substantially
all its assets as an entirety, under the conditions permitting such actions;
and


 


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


 


ARTICLE
VIII  -
REMEDIES


 


Section 8.1            Remedies


 


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


 


Section 8.2            Suspension of
Advances


 


In addition to the rights, powers and
remedies referred to in Section 8.1, the RUS may, in its absolute
discretion, suspend or terminate the obligation to make or approve Advances


 


27














 


hereunder if (i) any Event of Default, or any occurrence which
with the passage of time or giving of notice would be an Event of Default,
occurs and is continuing; or (ii) an event shall have occurred that has
had or is likely to have a Material Adverse Effect.


 


ARTICLE
IX  -
MISCELLANEOUS


 


Section 9.1            Notice to RUS;
Objection of RUS


 


Before undertaking any transaction described
in Article VI that requires compliance with the requirements of this Section 9.1,
the Borrower shall give to the RUS (i) notice in writing describing in
reasonable detail the proposed transaction and expressly stating that the
transaction is covered by this Section 9.1 and (ii) drafts of all
material documents to effect such transaction. 
If the RUS delivers to the Borrower written notice that it objects to
the proposed transaction within (I) 60 days (or such shorter period as the
parties shall agree to in writing) in the case of any transaction of the nature
described in paragraph (a) below, or (II) 30 days (or such shorter
period as the parties shall agree to in writing) in the case of any transaction
of the nature described in paragraph (b) below, the Borrower shall not
complete the transaction without RUS approval.


 


(a)           Transactions requiring
compliance with the requirements of this Section 9.1 pursuant to Sections
5.15, 6.2, 6.4, 6.6, 6.8 (a), 6.8 (b), 6.8 (c), 6.8 (e), 6.8 (g), 6.8 (h),
6.8(m), 6.9, 6.11, 6.12 and 6.19  shall be
subject to a 60-day review and objection period (or such shorter period as the
parties shall agree to in writing); and


 


(b)           Transactions requiring
compliance with the requirements of this Section 9.1 pursuant to Sections
6.5, 6.7, 6.8 (d), 6.8 (f), 6.8 (i), 6.8 (j), 6.8(k), 6.8(l) and 6.10  shall be subject to a 30-day review and objection period
(or such shorter period as the parties shall agree to in writing).


 


Section 9.2            Notices


 


All notices, requests and other
communications provided for herein, including, without limitation, any
modifications of, or waivers, requests or consents under, this Agreement, shall
be given or made in writing (including, without limitation, by telecopy) and
delivered to the intended recipient at the “Address for Notices” specified
below; or, as to any party, at such other address as shall be designated by
such party in a notice to the other party. 
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when transmitted by telecopier or
personally delivered or, in the case of a mailed notice, upon receipt, in each
case given or addressed as provided for herein. 
The Address for Notices of the respective parties are as follows:


 


The Government:


 


Rural
Utilities Service


United States
Department of Agriculture


Room No. 5135
South


1400
Independence Avenue, S.W.


 


28

















 


STOP:  1510


Washington,
DC  20250-1510


Fax:  (202) 720-1725


Attention:  Administrator


 


With a copy to:


 


Rural
Utilities Service


United States
Department of Agriculture


Room No. 0270
South


1400
Independence Avenue, S.W.


STOP:  1568


Washington,
DC  20250-1568


Fax:  (202) 720-1401


Attention:  Power Supply Division


 


The Borrower:


 


Oglethorpe
Power Corporation


2100 East
Exchange Place


Tucker,
Georgia 30084-5336


Fax:  (770) 270-7872


Attention:  President and Chief Executive Officer


With a copy
to:  Vice President, Treasurer


 


Section 9.3            Expenses


 


To the extent permitted by Law, the Borrower
shall pay all costs and expenses of the RUS, including reasonable fees of
counsel, incurred in connection with the enforcement of the Loan Documents or
with the preparation for such enforcement if the RUS has reasonable grounds to
believe that such enforcement may be necessary.


 


Section 9.4            Late Payments


 


If payment of any amount due hereunder is not
received at the United States Treasury in Washington, DC, or such other
location as the RUS may designate to the Borrower, within five (5) Business
Days after the due date thereof or such other longer time period as the RUS may
prescribe from time to time in its policies of general application in
connection with any late payment charge (such unpaid amount being herein called
the “delinquent amount,” and the period beginning after such due date until
payment of the delinquent amount being herein called the “late-payment period”),
the Borrower shall pay to the RUS, in addition to all other amounts due under
the terms of the Notes and this Agreement, any late-payment charge as may be
fixed by RUS Regulations from time to time on the delinquent amount for the
late-payment period.


 


29

















 


Section 9.5            Filing Fees


 


To the extent permitted by Law, the Borrower
agrees to pay all expenses of the RUS (including the fees and expenses of its
counsel) in connection with the filing or recordation of all financing statements
and instruments as may be required by the RUS in connection with this
Agreement, including, without limitation, all documentary stamps, recordation
and transfer taxes and other costs and taxes incident to recordation of any
document or instrument in connection herewith. 
The Borrower agrees to save harmless and indemnify the RUS from and
against any liability resulting from the failure to pay any required
documentary stamps, recordation and transfer taxes, recording costs, or any
other expenses incurred by the RUS in connection with this Agreement.  The provisions of this Section 9.5 shall
survive the execution and delivery of this Agreement and the payment of all
other amounts due hereunder or due on the Notes.


 


Section 9.6            No Waiver


 


No failure on the part of the RUS to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by the RUS of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right.


 


Section 9.7            Governing Law


 


EXCEPT TO THE EXTENT GOVERNED BY APPLICABLE
FEDERAL LAW, THE LOAN DOCUMENTS SHALL BE DEEMED TO BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.


 


Section 9.8            Holiday Payments


 


If any payment to be made by the Borrower
hereunder shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and such extension of time
shall be included in computing any interest in respect of such payment.


 


Section 9.9            Successors and
Assigns


 


This Agreement shall be binding upon and
inure to the benefit of the Borrower and the RUS and their respective
successors and assigns, except that the Borrower may not assign or transfer its
rights or obligations hereunder without the prior written consent of the RUS.


 


Section 9.10         Complete Agreement;
Amendments


 


This Agreement and the other Loan Documents
are intended by the parties to be a complete and final expression of their
agreement.  However, the RUS reserves the
right to waive its rights to compliance with any provision of this Agreement,
the RUS Regulations and the other Loan Documents.  No amendment, modification, or waiver of any
provision hereof or thereof, and no consent to any departure of the Borrower
herefrom or therefrom, shall be effective unless approved in writing by the RUS
in the form of either RUS Regulations or other writing signed by or on behalf
of the RUS, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. Any Schedule to
this Agreement may be 


 


30

















 


amended and
replaced by attaching a revised Schedule hereto, which revised Schedule shall
have been signed by both parties hereto.


 


Section 9.11         Headings


 


The headings and sub-headings contained in
the titling of this Agreement are intended to be used for convenience only and
do not constitute part of this Agreement.


 


Section 9.12         Severability


 


If any term, provision or condition, or any
part thereof, of this Agreement shall for any reason be found or held invalid
or unenforceable by any governmental agency or court of competent jurisdiction,
such invalidity or unenforceability shall not affect the remainder of such term,
provision or condition nor any other term, provision or condition, and this
Agreement, the Notes, and the Indenture shall survive and be construed as if
such invalid or unenforceable term, provision or condition had not been
contained herein.


 


Section 9.13         Right of Set Off


 


Upon the occurrence and during the
continuance of any Event of Default, the RUS is hereby authorized at any time
and from time to time, without prior notice to the Borrower, to exercise rights
of set off or recoupment and apply any and all amounts held or hereafter held,
by the RUS or owed to the Borrower or for the credit or account of the Borrower
against any and all of the obligations of the Borrower now or hereafter
existing hereunder or under the Notes. 
The RUS agrees to notify the Borrower promptly after any such set off or
recoupment and the application thereof, provided that the failure to give such
notice shall not affect the validity of such set off, recoupment or
application.  The rights of the RUS under
this Section 9.13 are in addition to any other rights and remedies
(including other rights of set off or recoupment) which the RUS may have.  The Borrower waives all rights of set off,
deduction, recoupment or counterclaim.


 


Section 9.14         Schedules and Exhibits


 


Each Schedule and Exhibit attached
hereto and referred to herein is an integral part of this Agreement.


 


Section 9.15         Sole Benefit


 


The rights and benefits set forth in this
Agreement are for the sole benefit of the parties hereto and may be relied upon
only by them.


 


Section 9.16         Existing Loan Contract


 


This Agreement amends the Existing Loan
Contract so that, as of the date of this Agreement, it reads in its entirety as
herein provided.  As of the date hereof,
this Agreement replaces and supersedes the Existing Loan Contract.


 


31

















 


Section 9.17         Authority of RUS
Representatives


 


In the case of any consent, approval or
waiver from the RUS that is required under this Agreement or any other Loan
Document, such consent, approval or waiver must be in writing and signed by an
authorized RUS representative to be effective. 
As used in this Section 9.17, “authorized RUS representative” means
the Administrator, and also means a person to whom the Administrator has
officially delegated specific or general authority to take the action in
question.  If not publicly available, the
RUS will provide evidence of the authority of such authorized RUS
representative upon the request of the Borrower.


 


Section 9.18         Relation to RUS
Regulations


 


(a)           In case of any conflict
between the terms of this Agreement or the Indenture and the provisions of the
RUS Regulations, the terms of this Agreement and the Indenture shall control.


 


(b)           The RUS Regulations
shall apply to the Borrower to the extent and under the conditions expressly
set forth in this Agreement (other than in Section 5.13).


 


(c)           The Borrower recognizes
that some RUS Regulations implement Federal statutes or regulatory policies
that are not limited to rural electrification but apply to many types of
Federal assistance.  Nothing herein is
intended to, or shall be deemed to, waive the requirements of any Federal
statute or regulation that is applicable to the Borrower independently of any
requirement made applicable solely by the RUS Regulations.


 


(d)           Subject to Subsections (b) and
(c) above, if on the date of this Agreement, any RUS Regulation conflicts
with the terms of this Agreement or the Indenture or imposes additional or
different requirements, pursuant to 7 C.F.R. § 1710.113(c)(2), the provisions
of this Agreement or the Indenture shall control and the RUS hereby waives
compliance by the Borrower with such RUS Regulations.


 


32





















 


Section 9.19         Term


 


This Agreement shall remain in effect until
one of the following two events has occurred:


 


(a)           The Borrower and the
RUS replace this Agreement with another written agreement; or


 


(b)           All of the Borrower’s
obligations under this Agreement and the Notes have been discharged and paid.


 


Section 9.20         Relation to Indenture


 


The RUS is a party to this Agreement and a
Holder of Outstanding Secured Obligations under the Indenture.  Both this Agreement and the Indenture govern
the relationship between the Borrower and the RUS, and the parties intend that
the Indenture and this Agreement independently govern such relationship.  Each provision of this Agreement is intended
to and shall be fully operative and enforceable as written whether or not the
subject matter of any such provision is or is not addressed by the Indenture,
or, if so addressed, is addressed in a different way from that set forth in
this Agreement.


 


(Signatures
begin on next page.)


 


33

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed, and the Borrower’s execution to be
attested under seal, as of the day and year first above written.


 


 


OGLETHORPE
POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)


 


 


	
   

  	
  By:

  	
  /s/ Thomas
  A. Smith

  
	
   

  	
   

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attest:

  	
  /s/ Patricia
  N. Nash

  
	
   

  	
   

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [CORPORATE
  SEAL]

  
				



 


 


(Signatures
continued on next page.)


 


34

















 


(Signatures
continued from previous page.)


 


 


	
   

  	
  UNITED
  STATES OF AMERICA,

  
	
   

  	
  acting by
  and through the Administrator of the Rural Utilities Service

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Curtis
  M. Anderson

  
	
   

  	
   

  	
  Administrator

  



 


35

















 


SCHEDULE 1


 


to
the Fifth Amended and Restated Loan Contract,


dated
as of December 22, 2008, between Oglethorpe Power Corporation


(An
Electric Membership Corporation)


and the
United States of America


 


CONTEMPORANEOUS
LOANS AND OUTSTANDING NOTES


 


1.             “Contemporaneous
Loans” shall mean the loans evidenced by the following:


 


(a)           Promissory
Note, dated March 1, 1997, made by the Borrower to the order of CoBank,
ACB, in the original face principal amount of $1,856,475.12; and


 


(b)           Promissory
Note, dated March 1, 1997, made by the Borrower to the order of CoBank,
ACB, in the original face principal amount of $7,102,740.26.


 


2.             “Outstanding
Notes” shall mean the following notes:


 


(a)           Retained
Indebtedness Note, dated as of March 1, 1997, from the Borrower to FFB, in
the original face principal amount of $2,637,782,327.56, as amended by each of
the six Agreements Amending Note, made as of May 22, 2007, among the
Borrower, FFB and the Government, acting through the Administrator of the RUS;


 


(b)           Reimbursement
Note, dated as of March 1, 1997, from the Borrower to the Government,
acting through the Administrator of the RUS;


 


(c)           Mortgage
Note, dated as of March 1, 1997, from the Borrower to the Government,
acting through the Administrator of the RUS, in the original face principal
amount of $3,820,352.89;


 


(d)           Mortgage
Note, dated as of March 1, 1997, from the Borrower to the Government,
acting through the Administrator of the RUS, in the original face principal
amount of $14,786,985.70;


 


(e)           Note
(M-8), dated as of March 31, 2003, from the Borrower, to FFB, in the
original face principal amount of $275,000,000;


 


(f)            Reimbursement
Note (M-8), dated as of March 31, 2003, from the Borrower to the
Government, acting through the Administrator of the RUS;


 


(g)           Note
(N-8), dated as of March 31, 2003, from the Borrower to FFB, in the
original face principal amount of $313,665,000;


 

















 


(h)           Reimbursement
Note (N-8), dated as of March 31, 2003, from the Borrower to the
Government, acting through the Administrator of the RUS;


 


(i)            Note
(P-8), dated as of May 31, 2006, from the Borrower to FFB, in the original
face principal amount of $92,000,000;


 


(j)            Reimbursement
Note (P-8), dated as of May 31, 2006, from the Borrower to the Government,
acting through the Administrator of the RUS;


 


(k)           Note
(R-8), dated as of July 25, 2007, from the Borrower to FFB, in the
original face principal amount of $78,418,600; and


 


(l)            Reimbursement
Note (R-8), dated as of July 25, 2007, from the Borrower to the
Government, acting through the Administrator of the RUS.


 


3.             “Partially
Unadvanced Notes” shall mean the following notes:


 


(a)           Note
(P-8), dated as of May 31, 2006, from the Borrower to FFB, in the original
face principal amount of $92,000,000;


 


(b)           Reimbursement
Note (P-8), dated as of May 31, 2006, from the Borrower to the Government,
acting through the Administrator of the RUS;


 


(c)           Note
(R-8), dated as of July 25, 2007, from the Borrower to FFB, in the
original face principal amount of $78,418,600; and


 


(d)           Reimbursement
Note (R-8), dated as of July 25, 2007, from the Borrower to the
Government, acting through the Administrator of the RUS.


 














 


SCHEDULE
2


 


to the Fifth Amended and Restated Loan Contract,


dated as of December 22, 2008, between Oglethorpe Power Corporation


(An
Electric Membership Corporation)


and the United States of America


 


PLANT
AGREEMENTS


 


“Plant
Agreements” shall mean, collectively, the following agreements relating to the
ownership and operation of generating facilities:


 


1.             Plant Robert W. Scherer
Units Numbers One and Two Purchase and Ownership Participation Agreement among
Georgia Power Company, the Borrower, Municipal Electric Authority of Georgia
and City of Dalton, Georgia (the “Co-Owners”), dated as of May 15, 1980,
as amended by that certain Amendment, among the Co-Owners, dated as of December 30,
1985; and as amended by that certain Amendment Number Two, among the Co-Owners,
dated as of July 1, 1986; and as amended by that certain Amendment Number
Three, among the Co-Owners, dated as of August 1, 1988; and as amended by
that certain Amendment Number Four, among the Co-Owners, dated as of December 31,
1990;


 


2.             Plant Robert W. Scherer
Units Numbers One and Two Operating Agreement among the Co-Owners, dated as of May 15,
1980, as amended by that certain Amendment, among the Co-Owners, dated as of December 30,
1985; and as amended by that certain Amendment Number Two, among the Co-Owners,
dated as of December 31, 1990;


 


3.             Plant Scherer Managing Board
Agreement, among the Co-Owners, Gulf Power Company, Florida Power &
Light Company and Jacksonville Electric Authority, dated as of December 31,
1990;


 


4.             Alvin W. Vogtle Nuclear
Units Numbers One and Two Purchase and Ownership Participation Agreement, among
the Co-Owners, dated as of August 27, 1976, as amended by that certain
Amendment Number One, among the Co-Owners dated as of January 18, 1977;
and as amended by that certain Amendment Number Two, among the Co-Owners, dated
as of February 24, 1977;


 


5.             Plant Alvin W. Vogtle
Additional Units Ownership Participation Agreement, among the Co-Owners, dated
as of April 21, 2006 (the “Vogtle Additional Units Ownership Agreement”);


 


6.             Plant Alvin W. Vogtle
Nuclear Units Amended and Restated Operating Agreement, among the Co-Owners,
dated as of April 21, 2006;


 

















 


7.             Plant Hal Wansley Purchase
and Ownership Participation Agreement, between Georgia Power Company and the
Borrower, dated as of March 26, 1976, as amended by that certain
Amendment, dated as of January 15, 1995;


 


8.             Plant Hal Wansley Operating
Agreement, between Georgia Power Company and Borrower, dated as of March 26,
1976;


 


9.             Plant Hal Wansley Combustion
Turbine Agreement, between Georgia Power Company and the Borrower, dated as of August 2,
1982, and Amendment No. 1, dated as of October 20, 1982;


 


10.           Edwin I. Hatch Nuclear Plant
Purchase and Ownership Participation Agreement, between Georgia Power Company
and the Borrower, dated as of January 6, 1975;


 


11.           Edwin I. Hatch Nuclear Plant
Operating Agreement, between Georgia Power Company and the Borrower, dated as
of January 6, 1975;


 


12.           The Rocky Mountain Pumped
Storage Hydroelectric Project Operating Agreement, dated as of November 18,
1988, between the Borrower and Georgia Power Company;


 


13.           The Rocky Mountain Pumped
Storage Hydroelectric Project Option Agreement, dated as of November 18,
1988, between the Borrower and Georgia Power Company;


 


14.           Plant Wansley CC Projects
Operating Agreement, dated as of June 1, 2002, among Georgia Power Company
(GPC), Chattahoochee, Municipal Electric Authority of Georgia (MEAG) and
Southern Power Company (SPC);


 


15.           Wansley CC Projects
Agreement Regarding Allocation of Costs, Administration of the Allocation of
Natural Resources and Other Matters, dated as of June 1, 2002 among
Chattahoochee, GPC, the Borrower, MEAG, the City of Dalton and SPC;


 


16.           Plant Wansley CC Projects
Ownership Participation Agreement, dated as of November 15, 2001, among
GPC, Borrower and MEAG; and


 


17.           Agreement For Operation and
Maintenance of the Hal B. Wansley Combined Cycle Plant, dated as of July 11,
2001, between the Borrower and Siemens Westinghouse Operating Services Company,
as amended by amendment or change order.


 

















 


SCHEDULE
3


 


to the Fifth Amended and Restated Loan Contract,


dated as of December 22, 2008, between Oglethorpe Power Corporation


(An
Electric Membership Corporation)


and the United States of America


 


SUBSIDIARIES


 


1.             Black
Diamond Energy, Inc.


 


2.             Rocky Mountain Leasing
Corporation


 

















 


SCHEDULE
4


 


to the Fifth Amended and Restated Loan Contract,


dated as of December 22, 2008, between Oglethorpe Power Corporation


(An Electric Membership Corporation)


and the United States of America


 


ADDITIONAL AFFIRMATIVE AND NEGATIVE COVENANTS


 


Section 1               Definitions


 


Capitalized terms that are
not defined in this Schedule 4 shall have the meanings set forth in the
Agreement.  The terms defined herein
include both the plural and the singular.


 


“Affiliates” shall have the
meaning given such term in the Purchase Agreement.


 


 “Base Capacity Price” shall have the meaning
given such term in the Purchase Agreement.


 


“Chattahoochee Project”
shall mean an intermediate generation facility located in Heard and Carroll Counties,
Georgia, with a nominal capacity of approximately 520 MW, consisting of two
Siemens Westinghouse V84.3A Combustion Turbines and auxiliaries, heat recovery
steam generators (HRSG), and steam turbines operating in combined cycle service
in a “2 on 1” configuration.


 


“Contract” shall mean any
one of the NMBA and the Umbrella Agreement, including any schedules or exhibits
thereto other than Appendix A to the NMBA, and including any executed Nuclear
Operating Agreement or other contract described at Section 2.3.2 of the
NMBA.


 


“Equity Transfer Interest”
shall have the meaning given such term in the Purchase Agreement.


 


“Facility” shall have the
meaning given such term in the Purchase Agreement.


 


“General Partner” shall have
the meaning given such term in the Purchase Agreement.


 


“General Partner Holding
Company” shall have the meaning given such term in the Purchase Agreement.


 


“Intercreditor Agreement”
shall have the meaning given such term in the Rocky Mountain Participation
Agreements.


 


 “Monthly Energy Payment” shall have the
meaning given such term in the Purchase Agreement.


 

















 


“NMBA” shall mean the Second
Amended and Restated Nuclear Managing Board Agreement, among the Co-Owners,
dated as of April 21, 2006.


 


“Operating Agent” shall have
the meaning given such term in the Purchase Agreement.


 


“PCB Documents” shall mean
the indentures, loan agreements, notes, letters of representation, insurance
policies, tender agent agreements, remarketing agreements and liquidity and
standby bond purchase agreements entered into in connection with the Pollution
Control Bonds.


 


“Pollution Control Bonds”
shall mean those pollution control revenue bonds issued for the benefit of the
Borrower between January 1, 1992 and March 11, 1997, for which
security was provided, on the date of their respective issuances, under the RUS
Mortgage.


 


“Projects” shall mean,
collectively, the Chattahoochee Project and the Talbot Project.


 


“Purchase Agreement” shall
mean the Power Purchase Agreement, dated as of June 12, 1992, between the
Borrower and Seller, as amended from time to time.


 


“Rocky Mountain Lease
Transaction” shall mean the lease and leaseback arrangements of the Borrower’s
undivided interest in the Rocky Mountain Pumped Storage Hydroelectric Project,
as contemplated by the Rocky Mountain Participation Agreements.


 


“Rocky Mountain
Participation Agreements” shall mean those certain four (4) Participation
Agreements, dated as of December 30, 1996 and those certain two (2) Participation
Agreements, dated as of January 3, 1997, between the Borrower, Rocky
Mountain Leasing Corporation and certain other parties identified therein,
including Philip Morris Capital Corporation, NationsBanc Leasing and R. E.
Corporation and First Chicago Leasing Corporation, as Owner Participants, as
such agreements may hereafter be amended or supplemented from time to time.


 


“Rocky Mountain Transaction
Documents” shall be as defined in the Rocky Mountain Participation Agreements.


 


“Scherer Participation
Agreements” shall mean the Participation Agreements, dated as of December 30,
1985, between the Borrower and each of IBM Credit Finance Corporation, HEI
Investment Corp., Ford Motor Credit Corporation and Chrysler Capital
Corporation, as such agreements have been or may hereafter be amended or
supplemented from time to time.


 


“Scherer Transaction” shall
mean the sale and leaseback arrangements of the Borrower’s 60% undivided
interest in Unit No. 2 of Plant Robert W. Scherer, as contemplated by the
Scherer Participation Agreements.


 


“Scherer Transaction Documents”
shall be as defined in the Scherer Participation Agreements.


 

















 


“Seller” shall mean the
Hartwell Energy Limited Partnership.


 


“Senior Creditors” shall
have the meaning given such term in the Intercreditor Agreement.


 


“Senior Financing Agreements”
shall have the meaning given such term in the Intercreditor Agreement.


 


“Senior Secured Parties”
shall have the meaning given such term in the Intercreditor Agreement.


 


“Settlement Price” shall
have the meaning given such term in the Purchase Agreement.


 


“Talbot Project” shall mean
a peaking generation facility located in Talbot County, Georgia, with a nominal
aggregate capacity of approximately 648 MWs, consisting of six Siemens
Westinghouse V84.2 combustion turbines and auxiliaries operating in simple
cycle service;


 


 “Transco Energy” shall have the meaning given
such term in the Purchase Agreement.


 


“Umbrella Agreement” shall
mean the ITSA, Power Sale and Coordination Umbrella Agreement, dated as of November 12,
1990.


 


Section 2               Notices


 


The Borrower shall promptly
furnish to the RUS, or notify the RUS of, any of the following as soon as
practical after receipt thereof or after it has obtained actual knowledge
thereof:


 


(i)            Copies of:


 


(a)           All notices,
certificates and opinions which the Borrower receives in connection with the
transaction under the terms of the Scherer Transaction Documents;


 


(b)           Any executed “Nuclear
Operating Agreement” (as defined by the NMBA);


 


(c)           Any and all “Strategic
Plans” (as defined in the NMBA) approved under the NMBA;


 


(d)           Any amendment
to Appendix A of the NMBA;


 


(e)           Any agreement
entered into between the Seller and the Operating Agent; or


 

















 


(f)            All notices or
other communications given to or received by the Borrower with respect to any “Event
of Default,” “Loan Event of Default” or “Subordinated Deed to Secure Debt and
Security Agreement Event of Default” under any “Operative Document” (all as
defined in the Rocky Mountain Participation Agreements).


 


(ii)           Any attempt to
remove the Borrower as agent under Article IV of the Rocky Mountain Pumped
Storage Hydroelectric Project Operating Agreement, dated as of November 18,
1988, between the Borrower and Georgia Power Company (the “Ownership Agreement”),
or Article VIII of the Ownership Agreement;  or the occurrence of any default under the Ownership
Agreement or the Rocky Mountain Pumped Storage Hydroelectric Project Ownership
Agreement, dated as of November 18, 1988, between the Borrower and Georgia
Power Company, which is material and is continuing; or


 


(iii)          Any of the
following and, if the RUS so requests in writing, the Borrower shall provide
information concerning any of the following in form and substance satisfactory
to the RUS:


 


(a)           That a default or event of
default has occurred under any of the PCB Documents;


 


(b)           That a default or event of
default under any of the PCB Documents has been cured;


 


(c)           That the Borrower has been
called upon to protect, indemnify or otherwise hold harmless any person or
entity pursuant to any of the PCB Documents;


 


(d)           That any trustee under any
PCB Document has resigned, been removed or has become incapable of acting;


 


(e)           That any of the PCB
Documents have been terminated or partially terminated;


 


(f)            That any of the Contracts
have expired or have been terminated, extended or assigned either by any of the
parties thereto or by a “Governmental Authority” (as defined in the applicable
Contract) or that the parties to such Contract have executed an amendment to
such Contract or any Governmental Authority has amended such Contract;


 


(g)           That a party to the NMBA,
including the Borrower, has referred a dispute to arbitration pursuant to Section 9.14
of the NMBA, and thereafter, the results of such arbitration;


 


(h)           That a party to any
Contract, including the Borrower, has commenced a legal proceeding either
before a court or governmental agency with 


 

















 


respect to such Contract
(including, but not limited to, applications to FERC);


 


(i)            The President and Chief
Executive Officer of the Borrower has concluded, or any other party to a
Contract has given the Borrower written notice alleging, that a party to such
Contract has failed to act in accordance with Prudent Utility Practices (as
defined in the applicable Contract) or has engaged in willful misconduct; provided,
however, that Borrower shall not be obligated to notify the RUS of any
action which could not reasonably be expected to have a Material Adverse
Effect;


 


(j)            That a person or entity has
made a claim against any party to a Contract (including the Borrower); provided,
however, that the Borrower need not provide notice of any claim the
payment of which could not reasonably be expected to have a Material Adverse
Effect;


 


(k)           That any member of the
Borrower has sought service from Georgia Power Company pursuant to the “Antitrust
Conditions” (as defined in the Umbrella Agreement);


 


(l)            That any representation or
warranty of Georgia Power Company under Section 7.2 of the Umbrella
Agreement or any matter in the legal opinion furnished to Borrower under Section 7.4
of the Umbrella Agreement is incorrect or in dispute;


 


(m)          That as the result of any
audit conducted pursuant to a party’s rights under any Contract, such party has
made a claim or reserved the right to make a claim for an adjustment in an
amount in excess of $10,000,000 for any charge made by Georgia Power Company
under such contract; provided however, that the dollar amount stated in this
condition is in January 1, 1991 dollars and shall be escalated annually
for inflation using the Handy-Whitman Index of Public Utility Construction
Costs (South Atlantic Region);


 


(n)           That a Governmental
Authority (as defined in the NMBA) has assessed against the Operating Agent (as
defined in the NMBA) a criminal penalty of any kind or a civil penalty of more
than $110,000 or, when added to any other civil penalty assessed within the
previous 12 months, is in the aggregate in excess of $440,000;


 


(o)           That a management audit is
being conducted pursuant to Section 5.4 of the NMBA and, when applicable,
that such audit has been concluded;


 


(p)           That the Borrower has received
notice pursuant to Section 5.1.2 of the Nuclear Operating Agreement (as
defined by the NMBA) that a 


 

















 


proceeding has been
initiated in which the “Operating Agent” (as defined in the NMBA) is a party;


 


(q)           That the Purchase Agreement
has expired or has been terminated or amended, or that the Seller has assigned
or otherwise transferred the Facility or its rights and obligations under the
Purchase Agreement to any other entity;


 


(r)            That a notice of termination
of the Purchase Agreement has been either delivered or received by the
Borrower;


 


(s)           That, pursuant to Section 5.5
of the Purchase Agreement, the Seller has obtained an increase in the Base
Capacity Price or the Monthly Energy Payment and the amount of such increase;


 


(t)            That a filing has been made
with the FERC for approval, or that FERC on its own motion has proposed a
change to any charge, rate or tariff under the Purchase Agreement, and,
thereafter, the action taken by FERC;


 


(u)           That (i) the Borrower
has provided written notice to the Seller that the Seller has defaulted under
the Purchase Agreement and whether the Borrower is considering terminating the
Purchase Agreement and exercising its option to purchase the Facility if the
default is not cured, or (ii) the Seller has defaulted under the Purchase
Agreement, even though the Borrower has not yet provided written notice to the
Seller to that effect, except that the Borrower shall not be obligated to
provide notice of defaults if the Borrower reasonably believes that the default
will be satisfactorily cured within two (2) days following the default;
provided, however, that the Borrower shall provide notice to the RUS after such
two day period if the default has not been cured;


 


(v)           That the Borrower has
received notice that it is in default under the Purchase Agreement;


 


(w)          That a default under the
Purchase Agreement has not been cured within the period provided in the
Purchase Agreement;


 


(x)            That Transco Energy or any
of its Affiliates has transferred an Equity Transfer Interest;


 


(y)           That Transco Energy or any
of its Affiliates has sold more than fifty percent of the outstanding stock of
a General Partner Holding Company;


 


(z)            That as a result of an audit
conducted by the Borrower pursuant to Section 14.3 of the Purchase
Agreement, the Borrower has requested 


 

















 


an adjustment to the
payments made by the Borrower in an amount in excess of $5.0 million, or has
requested to reserve the right to request such an adjustment; provided,
however, that the dollar amount stated in this subsection is in January 1,
1992 dollars and shall be escalated annually for inflation using the
Handy-Whitman Index of Public Utility Construction Costs (South Atlantic
Region); or


 


(aa)         That any insurance coverage
required under the Purchase Agreement has lapsed, been canceled or, for any
other reason, is not in effect.


 


Section 3               Amendments


 


The Borrower shall not,
without first complying with the requirements of Section 9.1 of the
Agreement, amend, supplement, waive, terminate, extend or assign any of the
agreements set forth below or agree to do so (except to the extent specifically
governed by Sections 5 or 6 of this Schedule 4):


 


(a)           The PCB Documents;


 


(b)           The Scherer
Transaction Documents;


 


(c)           The Contracts;


 


(d)           The Purchase Agreement; or


 


(e)           The Rocky Mountain
Transaction Documents.


 


Each of the foregoing
actions shall be considered described in paragraph (a) of Section 9.1
of the Agreement and shall be subject to the review and objection period set
forth in such paragraph.


 


Section 4               1985 — Plant Scherer Leveraged Lease


 


4.1          Direction
of the RUS.  Whenever
requested in writing to do so by the RUS, such requests to be made for good
cause as determined solely in the absolute discretion of the RUS, the Borrower
shall exercise such rights and powers as may be vested in the Borrower and make
such elections and requests as may be available to the Borrower, under the
terms of the Scherer Transaction Documents in such manner and at such times as
the RUS may so specify.


 


4.2          Options to
Purchase; Assignment; Etc.  The Borrower shall not, without the prior
written approval of the RUS, exercise any of its options to purchase or renew
its lease of an “Undivided Interest” as defined in the Scherer Participation
Agreements; or assign, sublease, transfer or encumber its leasehold interest in
the Undivided Interest.


 














 


Section 5               GPC Agreements


 


5.1          Actions
Requiring Consent of the RUS.  The Borrower shall not, without the prior
written consent of the RUS, execute any conforming amendment to the “Joint
Committee Agreement” (as defined in the NMBA).


 


5.2          Notice of
Approval or Rejection of Certain Contracts.  The Borrower shall not, without the prior
written approval of the RUS, vote as a member of the “Nuclear Managing Board”
(as defined in the NMBA) to approve or reject any Contract as described in Section 2.3.2
of the NMBA that would have been subject to the prior approval of the
Securities and Exchange Commission pursuant to the Public Utility Holding
Company Act of 1935 and the regulations thereunder, in each case as in effect
on August 1, 2005, including, without limitation, 17 C.F.R. §§ 250.80 —
250.95, unless and until the Borrower shall have first given the RUS written
notice of the proposed vote not less than 60 days prior to such vote.  If, upon receipt of such notice, the RUS
shall notify the Borrower within the 60-day period preceding the vote of an
objection to the proposed vote, then the Borrower shall not vote until it has
obtained RUS approval of such vote.


 


5.3          Audits.  Upon the request of the RUS, the Borrower
shall conduct, to the satisfaction of the RUS, either a management audit or a
cost audit, as provided in Sections 5.4 and 5.5, respectively, of the
NMBA.  If the RUS requests in writing,
the Borrower shall appoint the United States Department of Agriculture and the
employees and representatives thereof as its duly authorized representative for
the purpose of conducting any such management audit or cost audit, whether or
not such audit is initiated at the direction of the RUS.


 


Section 6               Hartwell Power Purchase Agreement


 


6.1          Actions
Requiring Consent of RUS.  The Borrower shall not, without the prior
written consent of RUS, take any of the following actions:


 


(a)           Pursuant to Section 3.3
of the Purchase Agreement, exercise its option to take title to the Facility by
paying Seller the Settlement Price; or


 


(b)           Pursuant to Article XIII
of the Purchase Agreement, exercise its option to purchase all or any part of
the Facility.


 


6.2          Termination
Provisions.  The
following provisions shall apply to a termination of the Purchase Agreement by
the Borrower:


 


(a)           The Borrower
shall not give notice of termination to the Seller unless the RUS has received
written notice from the Borrower of its intent to terminate (a “Default
Termination Notice”) not less than 30 days prior to the date that the
termination notice is delivered to the Seller. 
The Borrower may deliver the termination notice to the Seller so long as
the RUS has not notified the Borrower within the later of 29 days of receipt of
the Default Termination Notice or one business day prior to the Borrower’s
delivery of a notice of termination to Seller that the RUS objects to the
Borrower terminating the Purchase Agreement. 
The Borrower shall provide to its Board of Directors 


 

















 


any written comments which the RUS provides to the Borrower with
respect to the termination; and


 


(b)           If the
termination is pursuant to any other provision of the Purchase Agreement,
including Section 3.4 thereof, the Borrower shall not, without the prior
written consent of the RUS, exercise its right to terminate the Purchase
Agreement.


 


6.3          Option to
Purchase Equity of Transco or Affiliates.  The Borrower shall not exercise its option,
pursuant to Section 13.2.2 of the Purchase Agreement, to purchase equity
held by Transco Energy or any Affiliate in any General Partner (i) unless
the Borrower has promptly provided the RUS with a copy of the written notice
received from Seller and (ii) until the RUS has received from the Borrower
written notice of its intent to exercise such option not less than 30 days
prior to the date the Borrower is to exercise its option or be deemed to have
waived said option.  The Borrower shall
provide the RUS with such information available to the Borrower with respect to
its option as the RUS may request.  The
Borrower shall also provide the RUS with a report analyzing the economic and
business feasibility of the proposed acquisition no less than 60 days prior to
the date the Borrower is to exercise its option.  The Borrower shall promptly provide the RUS
with any information which affects the information or report it has previously
provided to the RUS pursuant to this Section 6.3.  The Borrower shall provide to its Board of
Directors any written comments which the RUS provides to the Borrower with
respect to the exercise of its option under Section 13.2.2 of the Purchase
Agreement.  The Borrower may exercise its
option under said Section 13.2.2 so long as the RUS has not notified the
Borrower within 29 days of receipt by the RUS of notice from the Borrower that
the RUS objects to the Borrower’s exercising such option.


 


6.4          Option to
Purchase Equity Transfer Interest.  The Borrower shall not exercise its option,
pursuant to Section 13.3 of the Purchase Agreement, to purchase any Equity
Transfer Interest (i) unless the Borrower has promptly provided the RUS
with a copy of the written notice received from Seller and (ii) until the
RUS has received from the Borrower written notice of its intent to exercise
such option not less than 60 days prior to the date the Borrower is to exercise
its option or be deemed to have waived said option.  The Borrower shall provide the RUS with such
information available to the Borrower with respect to its option as the RUS may
request.  The Borrower shall provide the
RUS with a report analyzing the economic and business feasibility of the proposed
acquisition no less than 90 days prior to the date the Borrower is to exercise
its option.  The Borrower shall promptly
provide the RUS with any information which affects any information or report it
has previously provided to the RUS pursuant to this Section.  The Borrower shall provide to its Board of
Directors any written comments which the RUS provides to the Borrower with
respect to the exercise of its option under Section 13.3 of the Purchase
Agreement.  The Borrower may exercise its
option under said Section 13.3 so long as the RUS has not notified the
Borrower within 59 days of receipt by the RUS of notice from the Borrower that
the RUS objects to the Borrower’s exercising such option.


 


6.5          Consent
Provision.  The Borrower
shall not give its written consent to any agreement between the Seller and the
Operating Agent until 14 days after the Borrower has 


 

















 


provided
the RUS with a copy of the proposed agreement substantially in the form it is
to be executed.


 


6.6          Audit.  Upon the written request of the RUS, the
Borrower shall take any of the following actions:


 


(a)           Conduct, to the
satisfaction of the RUS, an audit pursuant to Section 14.3 of the Purchase
Agreement;


 


(b)           Appoint the
United States Department of Agriculture and the employees and representatives
thereof as its duly authorized agent for the purpose of conducting an audit
pursuant to Section 14.3 of the Purchase Agreement; or


 


(c)           Promptly take
such actions as may be required to terminate the Purchase Agreement pursuant to
its terms if the RUS determines that the failure of the Borrower to do so would
have a Material Adverse Effect.


 


Section 7               Rocky Mountain Lease Transaction


 


The Borrower will not enter
into or consent to any amendments or modifications of, or accept any waivers
with respect to, any of the “Operative Documents” (as defined in the Rocky
Mountain Participation Agreements) which would adversely affect the rights or
remedies of the Senior Secured Parties and Senior Creditors with respect to the
“Undivided Interest,” the “Ground Interest” or the “Rocky Mountain Agreements”
(as such terms are defined in the Rocky Mountain Participation Agreements)
under the Intercreditor Agreement or under the Senior Financing Agreements
without the consent of the Government (which consent may be given or withheld
in the sole and absolute discretion of the Government).


 


Section 8               Talbot Project and Chattahoochee Project


 


8.1          Insurance on Projects


 


The Borrower will maintain
insurance against acts of terrorism on the Projects, naming the Trustee as an
additional insured and loss payee; provided, however, at least thirty
(30) days prior to the initial date of such policy of insurance or any renewal
date thereof, the Borrower will provide RUS a quote for such insurance against
acts of terrorism, and RUS may waive the requirement for such insurance if RUS
determines the cost of such insurance is unreasonable.


 


8.2          Fuel Supply Plan


 


Upon reasonable written
request of RUS, the Borrower will provide to RUS its then current fuel supply
plan for the Projects.


 

















 


8.3          Maintenance of Warranties


 


The Borrower shall undertake
all maintenance and other activities with respect to the Projects as necessary
to keep in full force and effect all manufacturer’s warranties applicable to
the Projects.


 


8.4          Engineer’s Certification


 


The Borrower agrees that
upon reasonable written request of RUS, which request shall be made no more
frequently than once every two years, the Borrower will supply promptly to RUS
a certification (the “Engineer’s Certification”), in form satisfactory to RUS,
prepared by a professional engineer, who shall be satisfactory to RUS, as to
the condition of the Projects.  In the
event such Engineer’s Certification identifies any defects with respect to the
Projects, the Borrower will undertake such remedial action to correct such
defects as RUS may reasonably request.


 


8.5          Tax
Abatement Arrangements


 


In
the event the Borrower enters into a lease pursuant to Section 5.1 H of
the Indenture with respect to either of the Projects for purposes of ad valorem
tax abatement, the Borrower agrees:


 


(a)           That it will
duly observe and perform in all material respects its obligations under any
such lease;


 


(b)           That it will
not transfer or convey to any third party any bond or other evidence of
indebtedness it may purchase in connection with any such lease; and


 


(c)           That it will
terminate, upon written request of RUS, any such lease if the ad valorem tax
abatement benefits achieved as a consequence of such lease are no longer being
realized in any material part.


 


Section 9               Waiver


 


Any of the requirements
contained in this Schedule 4 may be waived by the RUS upon written notice
provided to the Borrower; provided, however, that such waiver may
be rescinded by the RUS, in the sole discretion of the RUS, upon written notice
of such rescission provided to the Borrower. 
In the event written notice is provided to the Borrower that a waiver
has been rescinded, then the requirements to which the notice relates shall be
fully binding upon and enforceable against the Borrower 30 days after such
notice is received by the Borrower, and such rescission shall not affect any
action taken pursuant to any such waiver during the period of its
effectiveness.


 

















 


SCHEDULE
5


 


to the Fifth Amended and Restated Loan
Contract,


dated as of December 22, 2008, between
Oglethorpe Power Corporation


(An Electric Membership Corporation)


and the United States of America


 


Environmental Matters


 


Sierra
Club and Coosa River Basin Initiative v. Johnson (April 6, 2007)


 


In
April, 2007, the Sierra Club and the Coosa River Basin Initiative appealed two
unsuccessful permit challenges involving operating permit renewals for Plants
Scherer (co-owned by Oglethorpe Power), Bowen, Hammond and Branch to the U. S.
Court of Appeals for the Eleventh Circuit. The permits were all challenged on
the bases of not including compliance schedules to bring the sources into
compliance with opacity standards, not including an adequate statement of
basis, and, in the cases of Scherer and Bowen, not including compliance
schedules to bring the sources into compliance with Prevention of Significant
Deterioration requirements. Oglethorpe intervened in the case on behalf of EPA.
A decision in favor of EPA was issued by the Court on September 2,
2008.  Sierra Club sought a rehearing by
the 11th Circuit Court of Appeals which was denied. It
is not known whether the Sierra Club and the Coosa River Basin Initiative will
seek a writ of certiorari from the Supreme Court.


 


Atomic
Safety and Licensing Board Proceedings regarding Vogtle Units 3 & 4


 


Oglethorpe is one of the
applicants for an Early Site Permit (“ESP”) with respect to two proposed
additional nuclear electric generating units at the Vogtle Electric Generating
Plant site, of which Oglethorpe is a part owner.  Southern Nuclear Operating Company, on behalf
of all of the owners of the proposed additional Plant Vogtle units, filed the
ESP application.  A petition for
intervention in the Vogtle ESP process was filed in December, 2006 by five
entities (Center for a Sustainable Coast, Savannah Riverkeeper, Southern
Alliance for Clean Energy, Atlanta Women’s Action for New Directions, and Blue
Ridge Environmental Defense League) which included seven contentions.  The Nuclear Regulatory Commission (“NRC”)
appointed an Atomic Safety and Licensing Board (“ASLB”) panel consisting of
three administrative law judges to review the contentions and determine
admissibility.  The ASLB panel held a
pre-hearing in February 2007 to review the contentions and rejected all
but two of the proposed contentions.  The
contentions that were admitted alleged 1) that the analysis of impacts on
aquatic life in the Savannah River, including impingement, entrainment,
chemical and thermal impacts of the proposed cooling system intake and
discharge structures was not adequate, including the baseline description of
aquatic life in the vicinity of the proposed units to the extent it is related
to impacts, and 2) that the Environmental Report (“ER”) fails to fully address
alternative cooling technologies, in particular, dry cooling.  On September 22, 2008, the above named
intervenors filed an additional contention, which was  admitted for
hearing  by  the  ASLB  panel on October 24,
2008 .  The contention alleges that
the analysis of impacts of potential dredging in the Savannah
River  in the Environmental Impact Statement was not adequate.


 

















 


The ASLB panel hearing is
scheduled to be held in March 2009, at which time testimony will be heard
and the ASLB panel will question Southern Nuclear Operating Company (on behalf
of the applicants), the intervenors, and the NRC staff, after which the ASLB
panel will provide a final ruling on the contentions.


 


On May 31, 2008, the
NRC docketed an application for a Combined Construction Permit and
Operating License (“COL”) submitted by Southern Nuclear Operating Company on
behalf of the owners of the proposed Vogtle Units 3 and 4, including
Oglethorpe. On September 16, 2008 the NRC issued a Notice of Hearing
and of Opportunity to Intervene in the COL application proceeding. On November 17,
2008 an ASLB panel was appointed to preside over the mandatory hearing and
any contested hearing that may be ordered in the proceeding. On November 17,
2008 the same intervenors in the Vogtle ESP proceeding filed a joint
petition to intervene and three proposed contentions. On December 12, 2008
Southern Nuclear and NRC Staff responded to the contentions
in separate Answers opposing the admission of each of the
contentions.


 


Tax
Matters


 


Monroe County Tax Appeal (November 21,
2008)


 


On November 13, 2008,
the Monroe County Board of Assessors issued its assessment of Oglethorpe’s
interest in Plant Scherer for the 2008 tax year. While the state used an
equalization ratio of 34.55%, Monroe County used an equalization ratio of 40%.
On November 21, 2008, Oglethorpe appealed Monroe County’s assessment by
filing a notice of appeal with the Monroe County Board of Tax Assessors.


 


Property
Lawsuit


 


Sewell Creek Noise
Lawsuits (February 5, 2007)


 


On February 5, 2007,
twelve lawsuits were filed against Oglethorpe and Smarr EMC in the Superior
Court of Polk County, Georgia (Cedartown) by plaintiffs owning property near
the Sewell Creek Energy Facility, which is owned by Smarr EMC and operated by
Oglethorpe.  The plaintiffs allege that
noise and vibration from the plant have interfered with the plaintiffs’ right
of quiet enjoyment of their property and diminished their property values.  Plaintiffs seek unspecified damages based on
various claims, including trespass, nuisance, inverse condemnation and
negligence.


 


Pursuant to the indemnification
provision contained in the management agreement between Oglethorpe and Smarr
EMC, Smarr EMC would be responsible for indemnifying Oglethorpe for any
liability it may incur in this litigation. Smarr EMC has insurance that is
expected to cover any liability resulting from these claims.


 

















 


EXHIBIT
A


 


to the Fifth Amended and Restated Loan Contract,


dated as of December 22, 2008, between Oglethorpe Power Corporation


(An Electric Membership Corporation)


and the United States of
America


 


EQUAL OPPORTUNITY CONTRACT PROVISIONS


 


During
the performance of this contract, the contractor agrees as follows:


 


(a)           The contractor shall not
discriminate against any employee or applicant for employment because of race,
color, religion, sex or national origin.  The contractor shall take affirmative action
to ensure that applicants are employed, and that employees are treated during
employment without regard to their race, color, religion, sex or national
origin.  Such action shall include, but
not be limited to the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selection for training, including
apprenticeship.  The contractor agrees to
post in conspicuous places, available to employees and applicants for
employment, notices to be provided setting forth the provisions of this
nondiscrimination clause.


 


(b)           The contractor shall, in all
solicitations or advertisements for employees placed by or on behalf of the
contractor, state that all qualified applicants shall receive consideration for
employment without regard to race, color, religion, sex or national origin.


 


(c)           The contractor shall send to
each labor union or representative of workers with which he has a collective
bargaining agreement or other contract or understanding, a notice to be
provided advising the said labor union or workers’ representative of the
contractor’s commitments under this section, and shall post copies of the
notice in conspicuous places available to employees and applicants for
employment.


 


(d)           The contractor shall comply
with all provisions of Executive Order 11246 of September 24, 1965,
and of the rules, regulations and relevant orders of the Secretary of Labor.


 


(e)           The contractor shall furnish
all information and reports required by Executive Order 11246 of September 24,
1965, and by the rules, regulations and orders of the Secretary of Labor, or
pursuant thereto, and shall permit access to his books, records and accounts by
the administering agency and the Secretary of Labor for purposes of
investigation to ascertain compliance with such rules, regulations and orders.


 


(f)            In the event of the
contractor’s noncompliance with the non-discrimination clauses of this contract
or with any of the said rules, regulations or orders, this contract may be
canceled, terminated or suspended in whole or in part and the contractor may be
declared ineligible for further Government contracts or federally assisted
construction contracts in accordance with procedures authorized in Executive
Order 11246 of September 24, 1965, and 


 

















 


such
other sanctions may be imposed and remedies invoked as provided in said
Executive Order or by rule, regulation or order of the Secretary of Labor, or
as otherwise provided by law.


 


(g)           The contractor shall include
the provisions of paragraphs (a) through (g) in every subcontract or
purchase order unless exempted by rules, regulations or orders of the Secretary
of Labor issued pursuant to section 204 of Executive Order 11246, dated September 24,
1965, so that such provisions shall be binding upon each subcontractor or
vendor.  The contractor shall take such
action with respect to any subcontract or purchase order as the administering
agency may direct as a means of enforcing such provisions, including sanctions
for noncompliance.  Provided, however,
that in the event a contractor becomes involved in, or is threatened with,
litigation with a subcontractor or vendor as a result of such direction by the
agency, the contractor may request the United States to enter into such
litigation to protect the interests of the United States.


 

















 


EXHIBIT
B


 


to the Fifth Amended and Restated Loan Contract,


dated as of December 22, 2008, between Oglethorpe Power Corporation


(An Electric Membership Corporation)


and United States of America


 


DESCRIPTION OF RATING AGENCY
SERVICES


 


(a)           Credit evaluation and
assignment of long term credit rating;


 


(b)           Ongoing evaluation of
Borrower’s rating, including a credit report published annually;


 


(c)           Annual presentation by
senior Rating Agency analysts on Borrower’s credit rating to the RUS, if
requested by the RUS; and


 


(d)           Furnish to the RUS copies of
any written reports to Borrower.


 

















 


EXHIBIT
C


 


to the Fifth Amended and Restated Loan Contract,


dated as of December 22, 2008, between Oglethorpe Power Corporation


(An Electric Membership Corporation)


and United States of America


 


AMENDATORY SUPPLEMENTAL
INDENTURE


 














 


Upon
recording, return to:


Ms. Shawne
M. Keenan


Sutherland
Asbill & Brennan LLP


999
Peachtree Street, N.E.


Atlanta, Georgia 30309-3996


 


PURSUANT TO
§44-14-35.1 OF OFFICIAL CODE OF GEORGIA ANNOTATED, THIS INSTRUMENT EMBRACES,


COVERS AND
CONVEYS SECURITY TITLE TO AFTER-ACQUIRED PROPERTY OF THE GRANTOR


 




 





 


OGLETHORPE POWER CORPORATION


(AN ELECTRIC MEMBERSHIP
CORPORATION),


GRANTOR,


to


U.S. BANK NATIONAL
ASSOCIATION,


TRUSTEE


 


FORTY-              
SUPPLEMENTAL


INDENTURE


 


Providing for
the


Amendment of
the Original Indenture


 


Dated as of February 3,
2009


 




 





 


NOTE TO THE CLERK OF SUPERIOR COURT AND TAX
COMMISSIONER:  THIS INSTRUMENT IS A
MODIFICATION OF THE ORIGINAL INDENTURE (AS IT HAS BEEN HERETOFORE SUPPLEMENTED,
THE “EXISTING INDENTURE”).  THIS
INSTRUMENT DOES NOT INCREASE THE PRINCIPAL BALANCE OF ANY OBLIGATION UNDER THE
EXISTING INDENTURE, NOR DOES IT EXTEND THE MATURITY DATE OF ANY OBLIGATION
UNDER THE EXISTING INDENTURE.  PURSUANT
TO O.C.G.A. § 48-6-65(A), NO ADDITIONAL INTANGIBLE RECORDING TAX IS DUE UPON
THE RECORDING OF THIS INSTRUMENT.  ALL
INTANGIBLE RECORDING TAXES DUE IN CONNECTION WITH ALL OBLIGATIONS SECURED BY
THE EXISTING  INDENTURE HAVE BEEN PAID.


 

















 


THIS
FORTY-                  
SUPPLEMENTAL INDENTURE, dated as of February 3,
2009, is between OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION), formerly known as Oglethorpe
Power Corporation (An Electric Membership Generation & Transmission
Corporation), an electric membership corporation organized and existing under
the laws of the State of Georgia, as Grantor (hereinafter called the “Company”),
and U.S. BANK NATIONAL ASSOCIATION,
a national banking association, as successor to SunTrust Bank, formerly
SunTrust Bank, Atlanta, as Trustee (in such capacity, the “Trustee”).


 


WHEREAS, the Company
has heretofore executed and delivered to the Trustee an Indenture, dated as of March 1,
1997 (hereinafter called the “Original Indenture”), for the purpose of securing
its Existing Obligations and providing for the authentication and delivery of
Additional Obligations by the Trustee from time to time under the Original
Indenture (capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them in the Original Indenture);


 


WHEREAS,
the Original Indenture has heretofore been amended and supplemented by
forty-           Supplemental
Indentures (the Original Indenture, as heretofore, hereby and hereafter
supplemented and modified, hereinafter sometimes called the “Indenture”), and
the Original Indenture and the forty-          
Supplemental Indentures have been recorded as set forth on Schedule 1
attached hereto;


 


WHEREAS, by
executing and delivering this
Forty-                  Supplemental Indenture, in accordance with the provisions
of the Original Indenture, the Company desires to amend Sections 1.1, 4.1, 4.2,
4.3, 4.7, 4.8 and 4.9 of the Indenture and to add new Sections 4.11 and 4.12 to
the Indenture so as to give the Company the ability (i) to use certain
certified progress payments under certain engineering, procurement or
construction contracts as a basis for the issuance of Additional Obligations
and (ii) to convert Obligations originally issued on the basis of such
certified progress payments to Obligations deemed to have been delivered on the
basis of Bondable Additions;


 


WHEREAS, the
Indenture currently includes Section 13.16, which places a restriction on
the Company’s Short-Term Indebtedness, such that the Company may not permit on
any date Short-Term Indebtedness to exceed 15% of the Company’s long-term debt
and equities as of the end of the fiscal quarter immediately preceding such
date;


 


WHEREAS, by
executing and delivering this
Forty-                  
Supplemental Indenture, in accordance with the provisions of the Original
Indenture, the Company also desires to delete and reserve Section 13.16 of
the Indenture so as to remove such restriction on the Company’s Short-Term
Indebtedness;


 


WHEREAS, Section 12.2
of the Original Indenture provides that, with the consent of the Holders of not
less than a majority in principal amount of the Obligations of all series then
Outstanding affected thereby (which consent is evidenced by one or more Acts of
the Holder pursuant to Section 1.2 of the Original Indenture), the Company
and the Trustee may enter into a Supplemental Indenture for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of modifying in any manner the rights of the
Holders under the Indenture, subject to the conditions set forth in Section 12.2;


 


1

















 


WHEREAS, the Holders
of a majority in principal amount of all Obligations Outstanding under the
Indenture have executed and delivered Acts of the Holder to the Company and the
Trustee in accordance with Sections 1.2 and 12.2 of the Original Indenture; and


 


WHEREAS, the
execution and delivery of this
Forty-              
Supplemental Indenture has been in all respects duly authorized by the Company;


 


NOW, THEREFORE, THIS
FORTY-                  
SUPPLEMENTAL INDENTURE WITNESSETH, that, to amend
Sections 1.1, 4.1, 4.2, 4.3, 4.7, 4.8 and 4.9 of the Original Indenture, to add
new Sections 4.11 and 4.12 to the Original Indenture and to delete and reserve Section 13.16
of the Original Indenture, all pursuant to Section 12.2 of the Original
Indenture, the Company does hereby covenant and agree to and with the Trustee
as follows:


 


ARTICLE I


 


AMENDMENT OF
ORIGINAL INDENTURE


 


Section 1.1            Amendment of
Granting Clause First of the Original Indenture; Grant of Qualified EPC
Contracts.  Paragraph C of
Granting Clause First of the Original Indenture is hereby amended so as to add
the following as C(ii):  “(ii) that
constitute Qualified EPC Contracts,” and the numbering in Paragraph C of
Granting Clause First is hereby renumbered accordingly.  To secure the payment of the principal of
(and premium, if any) and interest on the Outstanding Secured Obligations, to
confirm the lien of the Indenture upon any Qualified EPC Contracts, now or
hereafter entered into by the Company, to secure performance of the covenants
herein contained and contained in the Indenture, and in consideration of the
premises thereof and hereof, the Company by these presents does grant, bargain,
sell, alienate, remise, release, convey, assign, transfer, mortgage,
hypothecate, pledge, set over and confirm to the Trustee, and its successors
and assigns in the trust created thereby and hereby, in trust, all Qualified
EPC Contracts, whether now or hereafter entered into, subject to all
exceptions, reservations and matters of the character referred to in the
Indenture, and does grant a security interest therein for the purposes
expressed herein and in the Original Indenture subject in all cases to Section 11.2B
of the Original Indenture and to the rights of the Company under the Original
Indenture, including the rights set forth in Article V thereof.


 


Section 1.2            Amendment of Section 1.1
of the Original Indenture.  Section 1.1
of the Original Indenture is hereby amended so as to add the following
definitions:


 


“Certified
Progress Payments” means payments, made by the Company
under or in connection with a Qualified EPC Contract, for generation and
related facilities (including electric transmission and fuel supply facilities)
that will constitute Property Additions upon the performance of such Qualified
EPC Contract, that are certified by the Company to the Trustee as the basis for
(i) loans or advances under Conditional Obligations under Section 4.8
or (ii) the authentication and delivery of Additional Obligations under Section 4.11.


 


“Qualified
EPC Contract” means any contract providing for the
engineering, procurement or construction of generation or related facilities
(including electric transmission and fuel supply facilities) intended to be
owned 


 


2

















 


by the
Company, payments made under or in connection with which are used as the basis
for (i) loans or advances under Conditional Obligations under Section 4.8
or (ii) the authentication and delivery of Additional Obligations under Section 4.11.


 


Section 1.3            Amendment of Section 4.1
of the Original Indenture.  The
introductory paragraph in Section 4.1 of the Original Indenture is hereby
amended in its entirety, such that the introductory paragraph in Section 4.1,
as amended, will read in its entirety as follows:


 


“Additional
Obligations of any one or more series, or within a series, may from time to
time be executed by the Company and delivered to the Trustee for authentication
and thereupon the same shall be authenticated and delivered by the Trustee upon
Company Request, upon the basis permitted by, and upon compliance with the
conditions of, Section 4.2 (upon the basis of Bondable Additions), Section 4.3
(upon the basis of retirement or defeasance of, or payments on, Obligations
previously Outstanding), Section 4.4 (upon the basis of Designated
Qualifying Securities), Section 4.5 (upon the basis of Deposited Cash), Section 4.7
(in connection with Credit Enhancement), Section 4.9 (in connection with
RUS Reimbursement Obligations), Section 4.10 (in connection with certain
indebtedness issued to refinance indebtedness previously secured under the
Existing Mortgage) and Section 4.11 (upon the basis of Certified Progress
Payments) upon receipt in each case by the Trustee of the following (as
modified by such Sections) upon or prior to the date of the initial issuance of
Additional Obligations of such series:”


 


Section 1.4            Amendment of Section 4.2
of the Original Indenture.


 


(a)           The second paragraph of
Section 4.2 is hereby amended in its entirety, such that the second
paragraph of Section 4.2, as amended, will read in its entirety as
follows:


 


“Whenever
requesting (i) the authentication and delivery of Additional Obligations
under this Section, (ii) the withdrawal of Deposited Cash under Section 4.6
upon the basis of Bondable Additions, (iii) loans and advances under
Conditional Obligations under Section 4.8 upon the basis of Bondable
Additions; (iv) the withdrawal of Trust Moneys under Section 6.2, (v) the
use of Bondable Additions as a basis, in whole or in part, for the release of
any part of the Trust Estate under Section 5.2, (vi) the use of
Bondable Additions as a basis, in whole or in part, for the redesignation or
surrender of Designated Qualifying Securities under Section 16.3 or (vii) the
conversion of outstanding principal amounts under Section 4.12 upon the
basis of Bondable Additions, the Company shall deliver to the Trustee the
relevant instruments (comprising the related Application) specified in the
following paragraphs A through H:”


 


(b)           Section 4.2 A of
the Original Indenture is hereby amended in its entirety, such that Section 4.2
A, as amended, will read in its entirety as follows:


 


“A.          (i) In the case of
a request for the authentication and delivery of Additional Obligations, the
documents and any cash deposit required by Section 


 


3

















 


4.1 and an
Available Margins Certificate; (ii) in the case of a request for the
withdrawal of Deposited Cash under Section 4.6 upon the basis of Bondable
Additions, the Company Request, Board Resolution and Officers’ Certificate
required by Section 4.6; (iii) in the case of a request for a loan or
advance under a Conditional Obligation under Section 4.8 upon the basis of
Bondable Additions, the Available Margins Certificate, Officers’ Certificate
and Opinion of Counsel required by Section 4.8; (iv) in the case of a
request for the withdrawal of Trust Moneys under Section 6.2, the Company
Request, Board Resolution and Officers’ Certificate required by Section 6.2;
(v) in the case of a request for the use of Bondable Additions as a basis
for the release of any part of the Trust Estate under Section 5.2, the
relevant documents required by Section 5.2 in addition to those specified
in the following paragraphs B through H below, which documents may be modified
under certain circumstances as stated in the proviso to Section 5.2D(2); (vi) in
the case of a request for the use of Bondable Additions as a basis for the
redesignation or surrender of Designated Qualifying Securities under Section 16.3,
the relevant documents required by Section 16.3; and (vii) in the
case of a request for the conversion of outstanding principal amounts under Section 4.12
upon the basis of Bondable Additions, the documents required by Section 4.12.”


 


(c)           Section 4.2 B(7) of
the Original Indenture is hereby amended in its entirety, such that Section 4.2
B(7), as amended, will read in its entirety as follows:


 


“(7)         The total amount (item 8
in Summary) of Bondable Additions which are then being used, which shall equal
(in any combination) (i) 110% of the aggregate principal amount of any
Additional Obligations whose authentication and delivery are then being applied
for under this Section, (ii) 110% of the aggregate principal amount of the
advances or issuances under Conditional Obligations which are then being
applied for under Section 4.8, (iii) 110% of the amount of any
Deposited Cash which is then being withdrawn under Section 4.6, (iv) 100%
of any Trust Moneys which are then being withdrawn under Section 6.2, (v) 100%
of any Bondable Additions which are then being used as a basis for a release
under Section 5.2, (vi) 110% of the aggregate principal amount of
Designated Qualifying Securities then being redesignated or surrendered under Section 16.3
and (vii) 110% of the outstanding principal amount then being converted
under Section 4.12.”


 


(d)           Section 4.2 B of
the Original Indenture is hereby amended so as to add the following new
subsections (13) and (14):


 


“(13)       Except when converting
outstanding principal amounts under Section 4.12, that if any of the
Property Additions described in the Certificate were acquired with Certified
Progress Payments:


 


(a)           the
amount of such Property Additions acquired with Certified Progress Payments;
and


 


(b)           the
aggregate principal amount of the Additional 


 


4

















 


Obligations authenticated and delivered upon
the basis of the Certified Progress Payments used to acquire the Property
Additions certified pursuant to paragraph (a) above that has been paid,
redeemed or otherwise retired or defeased under Article VII, which shall
equal at least 80% of the amount of Property Additions certified pursuant to
paragraph (a) above.


 


(14)         That the Property
Additions described in the Certificate have not previously been certified for
use as the basis for converting outstanding principal amounts under Section 4.12.”


 


(e)           Section 4.2 F(3) of
the Original Indenture is hereby amended in its entirety, so that Section 4.2
F(3), as amended, will read in its entirety as follows:


 


“(3)         the documents which have
been or are therewith delivered to the Trustee conform to the requirements of
this Indenture for an Application for the action applied for and, upon the
basis of such Application, all conditions precedent herein provided for
relating to the authentication and delivery of the Obligations therein applied
for, the loan or advance under Conditional Obligations, the release of any part
of the Trust Estate then requested, the withdrawal of the Deposited Cash or
Trust Moneys then requested or the conversion of outstanding principal amounts
under Section 4.12 of Bondable Additions then requested have been complied
with.”


 


Section 1.5            Amendment of Section 4.3
D of the Original Indenture.


 


(a)           Section 4.3 D(6) is
hereby amended so as to remove the period at the end of such subsection and to
add the following in its place: “; or”.


 


(b)           Section 4.3 D of
the Original Indenture is hereby amended so as to add the following new subsection
(7):


 


“(7)         any
Obligation authenticated and delivered on the basis of Certified Progress
Payments or any principal payment of amounts outstanding under an Obligation
authenticated and delivered on the basis of Certified Progress Payments unless
such Obligation or principal payment has been paid, redeemed, or otherwise
retired or defeased under Article VII using the proceeds of the Additional
Obligations whose authentication and delivery are then being applied for (and
each such Additional Obligation, or principal amount loaned or advanced
thereunder, shall be deemed to have been authenticated and delivered or, in the
case of a loan or advance, made on the basis of Certified Progress Payments).”


 


Section 1.6            Amendment of Section 4.7
of the Original Indenture.  Section 4.7
of the Original Indenture is hereby amended so as to include a cross-reference
to Section 4.11, such that the first cross-reference in Section 4.7
will read as follows:  “pursuant to the
provisions of Section 4.2, 4.3, 4.4, 4.5, 4.8, 4.10 or 4.11”.


 


5

















 


Section 1.7            Amendment of Section 4.8
of the Original Indenture.  Section 4.8
of the Original Indenture is hereby amended in its entirety, such that Section 4.8,
as amended, will read in its entirety as follows:


 


“Section 4.8         Conditional Obligations


 


Additional
Obligations (“Conditional Obligations”)
of one or more series, or within a series, may from time to time be executed by
the Company and delivered to the Trustee for authentication, and the same shall
be authenticated and delivered by the Trustee upon Company Request, upon
receipt by the Trustee of the documents and cash deposit, if any, specified in
paragraphs A, B, C and D of Section 4.1 (except that the
certification and Opinion of Counsel with respect to the compliance with
conditions precedent shall apply only to the conditions precedent set forth in Section 4.1)
on or prior to the date of such authentication and delivery; PROVIDED, HOWEVER, no advance under or
issuance of such Conditional Obligations shall be permitted or made without the
consent of the Trustee, which consent shall be given by the Trustee only upon
the Company’s delivery of (a) (i) the relevant documents specified in
paragraphs B through H, inclusive, of Section 4.2, (ii) the relevant
documents and Obligations specified in paragraphs B, C, D(1) and E of Section 4.3,
(iii) the relevant documents and Designated Qualifying Securities
specified in paragraphs C through G, inclusive, of Section 4.4 or (iv) the
relevant documents specified in paragraphs A through D, inclusive, of Section 4.11
(in each case with such omissions and variations as are appropriate in view of
the fact that such Sections are being used as the basis for advances under or
issuances of Conditional Obligations rather than the authentication and
delivery of Additional Obligations), which documents would permit the
authentication and delivery of Additional Obligations in an aggregate principal
amount equal to such requested advance or issuance, (b) an Available
Margins Certificate and (c) an Officers’ Certificate and an Opinion of
Counsel each stating that all conditions precedent provided for in this Section relating
to such advance or issuance have been complied with.  For the purposes of (i) receiving payment
of Conditional Obligations, whether at maturity, upon redemption or if the
principal of Obligations is declared immediately due and payable following an
Event of Default, as provided in Section 8.1 of this Indenture, or (ii) computing
the principal amount of such Conditional Obligations held by the Holder thereof
in giving any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders, the principal amount of such Conditional Obligations shall be deemed
to be the actual principal amount that the Company shall owe thereon, which
shall equal the aggregate of the amounts advanced to, or on behalf of, the
Company in connection therewith, less any prior repayments thereof.”


 


Section 1.8            Amendment of Section 4.9
of the Original Indenture.  Section 4.9
of the Original Indenture is hereby amended so as to include a cross-reference
to Section 4.11, such that the first cross-reference in Section 4.9
will read as follows:  “pursuant to the
provisions of Section 4.2, 4.3, 4.4, 4.5, 4.8, 4.10 or 4.11”.


 


6

















 


Section 1.9            Addition of New Section 4.11
to the Original Indenture.  The
following new Section 4.11 is hereby added to the Original Indenture:


 


“Section 4.11  Authentication and Delivery of Additional
Obligations Upon Basis of Certified Progress Payments.


 


Additional
Obligations of one or more new series, or Additional Obligations of an existing
series, may from time to time be executed by the Company and delivered to the
Trustee for authentication, and thereupon such Additional Obligations shall be
authenticated and delivered by the Trustee upon Company Request, in an
aggregate principal amount up to but not exceeding 80% of the Certified
Progress Payments made the basis for such authentication and delivery, upon
receipt by the Trustee of the following:


 


A.            The
documents and any cash deposit required by Section 4.1.


 


B.            An
Available Margins Certificate.


 


C.            An
Officers’ Certificate, dated within five (5) days of the relevant
Application for the authentication and delivery of Additional Obligations,
stating:


 


(1)           the total amount of
Certified Progress Payments which are then being made the basis for the
authentication and delivery of Additional Obligations, which shall equal 125%
of the aggregate principal amount of Additional Obligations whose
authentication and delivery are then being applied for under this Section;


 


(2)           that the sum of (i) the
aggregate principal amount of all Additional Obligations then Outstanding that
were originally authenticated and delivered on the basis of Certified Progress
Payments to the extent such principal amount has not been converted under Section 4.12
plus (ii) the aggregate principal amount of the Additional
Obligations whose authentication and delivery are then being applied for under
this Section does not exceed 40% of the sum of (a) the aggregate
principal amount of all Obligations then Outstanding plus (b) the
aggregate principal amount of the Additional Obligations whose authentication
and delivery are then being applied for under this Section; and


 


(3)           that the Certified
Progress Payments then being made the basis for the authentication and delivery
of Additional Obligations do not include any Certified Progress Payments which
shall have theretofore been made, or are otherwise currently being made, the
basis for the authentication and delivery of Additional Obligations (or any
advance or issuance thereunder).


 


7

















 


D.            An
Opinion of Counsel stating that the applicable Qualified EPC Contract is part
of the Trust Estate and that the actions taken by the Company under this Section with
respect to the delivery of documents to the Trustee conforms to the requirements
of this Indenture and that, upon the basis of the Application, the conditions
precedent provided for in this Indenture relating to the authentication and
delivery of the Additional Obligations therein applied for have been complied
with.”


 


Section 1.10         Addition of New Section 4.12
to the Original Indenture.  The
following new Section 4.12 is hereby added to the Original Indenture:


 


“Section 4.12  Conversion of
Additional Obligations.


 


From time to
time, upon Company Request, all or a portion of the principal amount
outstanding under Additional Obligations originally authenticated and delivered
upon the basis of Certified Progress Payments under Section 4.11 or under
Additional Obligations, under which loans or advances were made upon the basis
of Certified Progress Payments under Section 4.11, shall be converted to
principal amounts outstanding under Additional Obligations deemed to have been
authenticated and delivered upon the basis of Bondable Additions under Section 4.2,
in an aggregate principal amount up to but not exceeding 90.91% of Bondable
Additions acquired with the proceeds of Certified Progress Payments and made
the basis for such conversion as shown in item 8 of the Summary of Certificate
as to Bondable Additions delivered to the Trustee under this Section, upon
receipt by the Trustee of the following:


 


A.            The relevant documents
specified in paragraphs B through H, inclusive, of Section 4.2 for
delivery to the Trustee whenever requesting the use of Bondable Additions as
the basis for converting principal amounts outstanding under Additional
Obligations under this Section.


 


B.            An Officers’
Certificate, dated within five (5) days of the relevant Application
requesting the conversion of principal amounts outstanding under Additional
Obligations under this Section, stating that:


 


(1)           no Event of Default
exists;


 


(2)           the conditions
precedent provided for in this Indenture relating to such conversion have been
complied with; and


 


(3)           identifying the
Additional Obligations all or a portion of the principal amount of which is to
be converted under this Section and specifying the principal amount to be
converted.


 


C.            An Opinion of Counsel
stating that the documents which have been or are therewith delivered to the
Trustee conform to the requirements of this Indenture, and that, upon the basis
of the Application, the conditions precedent provided for in this Indenture
relating to the conversion of principal amounts 


 


8

















 


outstanding
under Additional Obligations under this Section have been complied with.


 


Upon
compliance with the foregoing provisions of this Section, the principal amount
outstanding under Additional Obligations specified in the Officers’ Certificate
delivered to the Trustee pursuant to paragraph B above shall be converted.  By virtue of such conversion, and
notwithstanding any other provision of this Indenture, (i) such specified
principal amount shall be deemed always to have been outstanding under
Additional Obligations authenticated and delivered under Section 4.2 and
never to have been outstanding under Additional Obligations upon the basis of
Certified Progress Payments and (ii) Property Additions acquired with
Certified Progress Payments made the basis for the authentication and delivery
of such specified principal amount so converted shall be deemed never to have
been acquired with Certified Progress Payments.”


 


Section 1.11         Amendment of Section 13.16
of the Original Indenture.  Section 13.16
of the Original Indenture is hereby deleted in its entirety and will now be
reserved, such that Section 13.16 will now read in its entirety as
follows: “Section 13.16   [Reserved]”.


 


ARTICLE II


 


MISCELLANEOUS


 


Section 2.1            Supplemental
Indenture.  This
Forty-                  
Supplemental Indenture is executed and shall be construed as an indenture
supplemental to the Original Indenture, and shall form a part thereof, and the
Original Indenture, as heretofore supplemented and as hereby supplemented and
amended, is hereby confirmed.  All
references herein to Sections, definitions or other provisions of the Original
Indenture shall be to such Sections, definitions and other provisions as they
may be amended or modified from time to time pursuant to the Indenture.  All capitalized terms used in this
Forty-                  
Supplemental Indenture shall have the same meanings ascribed to them in the
Original Indenture, except in cases where the context clearly indicates
otherwise.


 


Section 2.2            Recitals.  All recitals in this
Forty-                  
Supplemental Indenture are made by the Company only and not by the Trustee; and
all of the provisions contained in the Original Indenture, in respect of the
rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect hereof as fully and with like effect as if set forth
herein in full.


 


Section 2.3            Counterparts.  This
Forty-                  
Supplemental Indenture may be executed in several counterparts, each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts, or as many of them as the Company and the Trustee shall preserve
undestroyed, shall together constitute but one and the same instrument.


 


Section 2.4            Security
Agreement and Financing Statement. 
To the extent permitted by applicable law, this
Forty-                  
Supplemental Indenture shall be deemed to be a Security Agreement and Financing
Statement whereby the Company grants to the Trustee a security interest in all
of the Trust Estate that is personal property or fixtures under the Uniform


 


9














 


Commercial Code, as adopted or
hereafter adopted in one or more of the states in which any part of the
properties of the Company are situated. 
The mailing address of the Company, as debtor is:


 


2100 East
Exchange Place


Tucker,
Georgia 30084-5336,


 


and the mailing address of the Trustee, as
secured party, is:


 


U.S. Bank
National Association


Attention:
Corporate Trust Services


1349 West
Peachtree Street, NW


Suite 1050,
Two Midtown Plaza


Atlanta,
Georgia 30309


 


 


[Signatures on
Next Page.]


 


10

















 


IN
WITNESS WHEREOF, the parties hereto have caused this
Forty-                  
Supplemental Indenture to be duly executed under seal as of the day and year
first written above.


 


 


	
  Company:

  	
   

  	
  OGLETHORPE POWER CORPORATION

  (AN ELECTRIC MEMBERSHIP CORPORATION), an electric
  membership corporation organized under the laws of the State of Georgia

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Thomas A.
  Smith

  
	
   

  	
   

  	
   

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signed,
  sealed and delivered

  	
   

  	
  Attest:

  	
   

  
	
  by the
  Company in the presence of:

  	
   

  	
   

  	
  Patricia N.
  Nash

  
	
   

  	
   

  	
   

  	
  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [CORPORATE
  SEAL]

  
	
   

  	
   

  	
   

  	
   

  
	
  Witness

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Notary
  Public

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (Notarial
  Seal)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


	
  My
  commission expires: _______________________

  



 


 


[Signatures
Continued on Next Page.]


 


11

















 


[Signatures
Continued from Previous Page]


 


	
  Trustee:

  	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, 

  a national banking association

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signed and
  delivered

  	
   

  	
   

  	
  Authorized
  Agent

  
	
  by the
  Trustee in the

  	
   

  	
   

  	
   

  
	
  presence of:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Witness

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Notary
  Public

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (Notarial
  Seal)

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 


	
  My
  commission expires: ________________________

  



 


12

















 


Schedule
1


 


RECORDING
INFORMATION


FOR


                       COUNTY,
GEORGIA


 


	
  DOCUMENT

  	
   

  	
  RECORDING 

  INFORMATION

  	
   

  	
  DATE OF 

  RECORDING

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  First
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Second
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Third
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fourth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fifth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sixth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Seventh
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Eighth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ninth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Tenth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Eleventh
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Twelfth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Thirteenth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fourteenth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fifteenth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sixteenth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Seventeenth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Eighteenth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Nineteenth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Twentieth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Twenty-First
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Twenty-Second
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Twenty-Third
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  



 

















 


	
  DOCUMENT

  	
   

  	
  RECORDING 

  INFORMATION

  	
   

  	
  DATE OF 

  RECORDING

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Twenty-Fourth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Twenty-Fifth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Twenty-Sixth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Twenty-Seventh
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Twenty-Eighth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Twenty-Ninth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Thirtieth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Thirty-First
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Thirty-Second
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Thirty-Third
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Thirty-Fourth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Thirty-Fifth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Thirty-Sixth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Thirty-Seventh
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Thirty-Eighth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Thirty-Ninth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fortieth
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Forty-First
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Forty-Second
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Forty-Third
  Supplemental Indenture

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Forty-Fourth
  Supplemental Indenture