EXHIBIT 10.3.3(b)

 

EXECUTION VERSION

 

Please Record and Return to:

 

	
S, Marcus Calloway, Esq.
   Calloway Title and Escrow, LLC
   Suite 285
   4170 Ashford Dunwoody Road
   Atlanta, GA. 30319
    	
 
    	
PLEASE CROSS REFERENCE TO:
   Deed Book 598, Page 240, Burke County, Georgia records,
   Deed Book 714, Page 278, Burke County, Georgia records,
   Deed Book 905, Page 225, Burke County, Georgia records, and
   Deed Book 906, Page 1, Burke County, Georgia records
    


 

AGREEMENT AND AMENDMENT NO. 2 TO

PLANT ALVIN W. VOGTLE NUCLEAR UNITS

AMENDED AND RESTATED OPERATING AGREEMENT

 

THIS AGREEMENT AND AMENDMENT NO. 2 TO PLANT ALVIN W. VOGTLE NUCLEAR UNITS AMENDED AND RESTATED OPERATING AGREEMENT, dated as of February 20, 2014 (this “Agreement”), is an agreement with respect to, and upon satisfaction of certain conditions set forth herein will amend, that certain Plant Alvin W. Vogtle Nuclear Units Amended and Restated Operating Agreement (as amended by Amendment No. 1 defined below, the “Operating Agreement”), dated as of April 21, 2006, by and among Georgia Power Company, a corporation organized and existing under the laws of the State of Georgia (“GPC”), Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation formed under the laws of the State of Georgia (“OPC”), Municipal Electric Authority of Georgia, a public body corporate and politic and an instrumentality of the State of Georgia (“MEAG”) and City of Dalton, Georgia, an incorporated municipality of the State of Georgia acting by and through its Board of Water, Light and Sinking Fund Commissioners d/b/a Dalton Utilities (“Dalton”), as amended by Amendment No. 1 to Plant Alvin W. Vogtle Nuclear Units Operating Agreement by and among GPC, OPC, MEAG and Dalton (“Amendment No. 1”), dated as of April 8, 2008, and is entered into by and among GPC, OPC, MEAG, Dalton, MEAG Power SPVJ LLC, a limited liability 

 











 

company duly organized and validly existing under the laws of the State of Georgia (“SPVJ”), MEAG Power SPVP LLC, a limited liability company duly organized and validly existing under the laws of the State of Georgia (“SPVP”), and MEAG Power SPVM LLC, a limited liability company duly organized and validly existing under the laws of the State of Georgia (“SPVM” and, collectively with SPVJ and SPVP, the “MEAG SPVs”).

 

WITNESSETH

 

WHEREAS, GPC, OPC, MEAG, and Dalton have entered into that certain Plant Vogtle Owners Agreement Authorizing Development, Construction, Licensing and Operation of Additional Generating Units, dated as of May 13, 2005, as amended (the “Development Agreement”), whereby GPC, OPC, MEAG, and Dalton authorized the Agent to undertake certain development activities on their behalf and made certain other agreements with regard to the development, licensing, construction, operation and maintenance of the Additional Units, among other things;

 

WHEREAS, pursuant to the Development Agreement, GPC, OPC, MEAG, and Dalton entered into certain Definitive Agreements, including the Operating Agreement;

 

WHEREAS, pursuant to the Additional Units Ownership Agreement, as of the date of this Agreement, MEAG’s Ownership Interest in the Additional Unit Properties (as defined in the Additional Units Ownership Agreement) is 22.7%, and MEAG’s Ownership Interest in the Related Facilities (as defined in the Additional Units Ownership Agreement) is 22.7%;

 

WHEREAS, to facilitate the financing of its share of the development, licensing and construction costs of the Additional Unit Properties and the Related Facilities through loans guaranteed by the United States Department of Energy (“DOE”), MEAG may convey its fee simple title in and to all or a portion of its Ownership Interest in the Additional Unit Properties and the Related Facilities and to assign its other right, title and interest in and to all or a portion of its Ownership Interest in the Additional Unit Properties and the Related Facilities to SPVJ, SPVP and/or SPVM, and upon such conveyance and assignment, SPVJ, SPVP and/or SPVM, as applicable, will assume a corresponding percentage of MEAG’s obligations in respect thereof, in each case pursuant to an assignment agreement in the form attached as Exhibit A to the Agreement and Amendment No. 2, dated as of February 20, 2014 (the “Ownership Amendment”) to the Additional Units Ownership Agreement (each, a “MEAG Assignment”);

 

WHEREAS, MEAG has requested amendments to the Additional Units Ownership Agreement, the Operating Agreement, the Nuclear Managing Board Agreement and the Development Agreement in connection with the execution and delivery of the MEAG Assignments to, among other things, provide for one or more of the MEAG SPVs to become a party to such agreements and set forth their relative rights and obligations thereunder; and

 

WHEREAS, each of the other parties to this Agreement agrees to amend the Operating Agreement as set forth below, subject to the terms and conditions of this Agreement.

 

NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the mutual promises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, the parties hereto hereby agree as follows:

 

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SECTION 1.0                  Defined Terms and Rules of Interpretation.

 

Unless otherwise defined herein, capitalized terms used herein have the meanings given to such terms in the Operating Agreement. The rules of interpretation set forth in Section 1.2 of the Ownership Agreement apply to this Agreement as if fully set forth herein (and for such purpose, the term “Agreement” as used therein shall be deemed to be a reference to this Agreement).

 

SECTION 2.0                  MEAG Guaranty and Recording of MEAG Assignment.

 

Section 2.01.         MEAG Guaranty.  Simultaneously with the execution and delivery of a MEAG Assignment by and between MEAG and a MEAG SPV, MEAG shall execute and deliver to GPC, OPC and Dalton a guaranty of the obligations of such MEAG SPV under the Operating Agreement and the other Definitive Agreements in the form attached as Exhibit A to the Agreement and Amendment No. 3, dated as of February 20, 2014, to the Development Agreement (each, a “MEAG Guaranty”).

 

Section 2.02.         Recording of MEAG Assignment.  Within three business days following the execution and delivery of a MEAG Assignment by and between MEAG and a MEAG SPV, MEAG or such MEAG SPV shall cause such MEAG Assignment to be recorded in the Burke County, Georgia Records.

 

SECTION 3.0                  Amendments to Operating Agreement.

 

The amendments to the Operating Agreement contained in Sections 3.02 through 3.04 shall automatically become effective with respect to GPC, OPC, MEAG, Dalton and the initial MEAG SPV to receive a conveyance and assignment pursuant to Section 2.01(a) of the Ownership Amendment, and shall amend the Operating Agreement with respect to such SPV upon (a) execution and delivery of the MEAG Assignment and the MEAG Guaranty with respect to the applicable MEAG SPV and (b) satisfaction of the Transfer Conditions (as defined in the Ownership Amendment) with respect to such MEAG SPV. The amendments to the Operating Agreement contained in Sections 3.02 through 3.04 shall automatically become effective with respect to any subsequent MEAG SPV to receive a conveyance and assignment pursuant to Section 2.01(a) of the Ownership Amendment, and shall amend the Operating Agreement with respect to such subsequent MEAG SPV upon (a) execution and delivery of the MEAG Assignment and the MEAG Guaranty with respect to such MEAG SPV and (b) satisfaction of the Transfer Conditions (as defined in the Ownership Amendment) with respect to such MEAG SPV.

 

Section 3.01.         Addition of New Parties.  In accordance with Section 8.1 of the Operating Agreement and upon (a) execution and delivery of the MEAG Assignment and the MEAG Guaranty with respect to such MEAG SPV and (b) satisfaction of the Transfer Conditions (as defined in the Ownership Amendment) with respect to such MEAG SPV, SPVJ, SPVP and SPVM, as applicable, shall be added as a party to, and shall be bound by the provisions of, the Operating Agreement, as the same shall be amended hereby, to the extent such obligations are applicable to the Additional Units in which such MEAG SPV (as defined below) has an Ownership Interest.  Any of SPVJ, SPVP and SPVM that are added as parties to the Operating 

 

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Agreement shall constitute “MEAG SPVs” for purposes of this Agreement and the Operating Agreement.

 

Section 3.02.         Amendments to Recitals.

 

(a)           Each reference to “Parties” in the first and second recitals shall be deleted and replaced with “GPC, OPC, MEAG and Dalton”;

 

(b)           The recital beginning “Now, Therefore” shall be amended by deleting “GPC, OPC, MEAG and Dalton” and replacing it with “the Parties”.

 

Section 3.03.         Amendment to Add Article XI.  The following Article XI shall be added to and become a part of the Operating Agreement; provided, that, each of clause (a), (b) and (c) in Section 11.1 shall be included only to the extent MEAG has executed and delivered a MEAG Assignment with respect to SPVJ (in the case of clause (a)), SPVP (in the case of clause (b)), and SPVM (in the case of clause (c)):

 

“ARTICLE XI: THE MEAG SPVs

 

Section 11.1   Assignment to MEAG SPVs.  MEAG has conveyed and assigned a portion of its Ownership Interest in respect of each Additional Unit to each of the MEAG SPVs as follows: (a) 41.174636%, constituting a 9.3466423% undivided Ownership Interest in the Additional Units, to SPVJ, (b) 24.954628%, constituting a 5.6647006% undivided Ownership Interest in the Additional Units, to SPVP, and (c) 33.870736%, constituting a 7.6886571% undivided Ownership Interest in the Additional Units, to SPVM.  Each MEAG SPV is a separate Party for purposes of this Agreement and has, except as provided in Section 11.4 and 11.5 below, the rights of a Party independent of the other MEAG SPVs.

 

Section 11.2   Several Obligations of MEAG SPVs.  Each MEAG SPV hereby assumes the obligations of MEAG as a Party under this Agreement but only to the extent of that portion of MEAG’s Ownership Interest conveyed and assigned to such MEAG SPV in respect of each Additional Unit.  Notwithstanding that the MEAG SPVs are successors in interest of MEAG or that MEAG is providing the MEAG Guaranties, (a) the payment and other obligations of each MEAG SPV under this Agreement are several and not joint obligations, and (b) the non-payment by one MEAG SPV shall not limit the entitlement of the other MEAG SPVs to output of energy and capacity of the Additional Units or any other rights of the other MEAG SPVs under this Agreement.  For avoidance of doubt and without limiting the foregoing, each MEAG SPV is and shall be treated as a separate Party for purposes of Section 5.4, 9.12 and 9.15 of this Agreement.

 

Section 11.3          Confirmation of Appointment of GPC as Agent.  Each of the MEAG SPVs acknowledges, agrees and confirms the appointment of GPC as Agent for the Parties pursuant to Article II of this Agreement with all rights and obligations as Agent provided in this Agreement.

 

Section 11.4          Chief Executive Officer.  Each reference in this Agreement to a chief executive officer (“CEO”) as it relates to a MEAG SPV shall be deemed to refer to 

 

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the CEO of MEAG. In the event any remedies are exercised by the U.S. Department of Energy (“DOE”) or its designee under any loan guarantee agreement and related financing documents entered into by such MEAG SPV and DOE (“DOE Financing Documents”), DOE or its designee shall have the right to direct that each such reference to a CEO shall be deemed to refer to an officer of such MEAG SPV acceptable to DOE or its designee, which officer may be different from those of any other MEAG SPV.

 

Section 11.5          Notice to the MEAG SPVs.  Each notice, request, consent or other communication to a MEAG SPV permitted or required by this Agreement shall be delivered to such MEAG SPV by delivering such communication to MEAG in accordance with Section 9.5 of this Agreement or to MEAG at such other address as the MEAG SPVs shall jointly advise pursuant to such Section 9.5.  Delivery of one original of any communication to MEAG in accordance with this Section 11.5 shall constitute delivery of such communication to all the MEAG SPVs. In the event any remedies are exercised by DOE or its designee under any DOE Financing Documents, DOE or its designee shall have the right to direct that each notice, request, consent or other communication shall be directed to such MEAG SPV to an address acceptable to DOE or its designee, which address may be different from that of any other MEAG SPV.

 

Section 11.6   Confidentiality.  Notwithstanding any provision of Section 9.14 of this Agreement to the contrary, the Parties acknowledge and agree that MEAG and the MEAG SPVs may disclose Confidential Information to one another and to any officer, director, employee or attorney of any thereof in connection with the exercise of the rights and obligations of the MEAG SPVs under this Agreement, so long as such disclosures are otherwise in accordance with the restrictions of Section 9.14(c). In the event any remedies are exercised by DOE or its designee under any DOE Financing Documents, DOE or its designee shall have the right to direct that Confidential Information with respect to such MEAG SPV shall not be disclosed to another MEAG SPV or and officer, director, employee, advisor or attorney of any other MEAG SPV unless (i) in conformity with Section 9.14 or (ii) with the advance written consent of DOE or its designee.

 

Section 3.04.         Amendments to Appendix A, Schedule of Definitions.

 

(a)           The terms “MEAG Assignment”, “MEAG Guaranty”, “MEAG SPVs”, “SPVJ”, “SPVP” and “SPVM” shall be added to and become part of Appendix A, the Schedule of Definitions, to the Operating Agreement (“Appendix A”), with the meanings stated in this Agreement; provided, that each of SPVJ, SPVP and SPVM shall be added to and become part of Appendix A only to the extent MEAG has executed and delivered the MEAG Assignment with respect to such entity.  The term “Amendment No. 2” shall be added to and become part of Appendix A, and shall mean this “Agreement” as defined herein.

 

(b)           Each of the terms “Agreement”, “Additional Units Ownership Agreement”, “Declaration of Covenants”, “Development Agreement”, and “Nuclear Managing Board Agreement” shall be a reference to such agreement or instrument as heretofore or hereafter amended.

 

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(c)           The definition of “Party” or “Parties” shall be revised to add “, the MEAG SPVs” after each reference to “MEAG”.

 

(d)           The definition of “Ownership Interest” shall be amended by the addition of the words “if applicable” after each use of the term “Existing Units”.  For the avoidance of doubt, no MEAG SPV has as of the date hereof any undivided interest or any Pro Rata Interest in any Existing Unit.

 

SECTION 4.0                  Representations and Warranties.

 

Section 4.01.         Representations of OPC.  OPC hereby represents and warrants to each other party to this Agreement as of the date of this Agreement that OPC has satisfied all conditions required to be satisfied by it under the loan contract currently in effect between OPC and the Rural Utilities Service in connection with the execution and delivery of, and performance of its obligations under, this Agreement; such execution, delivery and performance do not and will not violate the terms and conditions of such loan contract; and there are no approvals or consents required to be obtained from, or filings, notices or other reports to be made with or given to, the Rural Utilities Service, under such loan contract or otherwise, in connection with such execution, delivery and performance that have not already been obtained, made or given.

 

SECTION 5.0                  Miscellaneous.

 

Section 5.01.         Effect of Agreement.  By executing this Agreement, the parties agree to be bound by the terms of this Agreement effective as of the date first set forth above.

 

Section 5.02.         Reference to Operating Agreement.  Upon satisfaction of the conditions set forth in Section 3.0 herein, each reference in the Operating Agreement to “the Operating Agreement”, “this Agreement”, “the Agreement”, “hereunder”, “thereunder”, “hereto” or “thereto” or words of like import referring to the Operating Agreement, shall mean and be a reference to the Operating Agreement, as the same shall be amended by this Agreement.

 

Section 5.03.         Continuing Effect.  The Operating Agreement, as the same may be amended by this Agreement, is and shall continue to be in full force and effect and is hereby in all respects ratified and confirmed.

 

Section 5.04.         Governing Law.  This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Georgia.

 

Section 5.05.         Counterparts.  This Agreement may be executed by the parties hereto in any number of separate counterparts, each of which when so executed shall be an original and all of which taken together shall be deemed to constitute but one and the same instrument.  Transmission by facsimile or email of the signature page hereof signed by an authorized representative of a party will be conclusive evidence of the due execution by such party of this Agreement.  The parties agree, however, to provide originally executed documents promptly following any facsimile or email transmission pursuant to this provision.

 

Section 5.06.         Termination.  In the event that MEAG has not executed, delivered and recorded in the Burke County, Georgia Records, a MEAG Assignment to at least one MEAG 

 

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SPV by January 1, 2017, this Agreement shall automatically terminate and be of no further force and effect.

 

[signature pages follow]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized representatives as of the date first written above.

 

	
Signed,   sealed and delivered in the presence of:
    	
 
    	
GEORGIA   POWER COMPANY 
    
	
 
    	
 
    	
 
    
	
/s/   Jessica N. Achel 
    	
 
    	
By:
    	
/s/   W. Ron Hinson
    
	
Witness   
    	
 
    	
 
    	
Name:
    	
W.   Ron Hinson 
    
	
 
    	
 
    	
 
    	
Its:
    	
Executive   Vice President, Chief 
    
	
/s/   Angel R. Robinson
    	
 
    	
 
    	
Financial   Officer and Treasurer
    
	
Notary   Public
    	
 
    	
 
    
	
My   Commission expires: September 30, 2014
    	
 
    	
Attest:
    	
/s/   Laura I. Patterson 
    
	
Notarial   Seal
    	
 
    	
Its:
    	
Comptroller   and Assistant Secretary
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
         (CORPORATE   SEAL)
    
						


 

	
Signed,   sealed and delivered in the presence of: 
    	
 
    	
OGLETHORPE   POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION) 
    
	
/s/   Shalewa Smith 
    	
 
    	
 
    
	
Witness   
    	
 
    	
By:
    	
/s/   Michael L. Smith 
    
	
 
    	
 
    	
 
    	
Name:
    	
Michael   L. Smith 
    
	
/s/   Sharon H. Wright 
    	
 
    	
 
    	
Its:   
    	
President   and Chief Executive Officer
    
	
Notary   Public 
    	
 
    	
 
    
	
My   Commission expires: October 14, 2015 
    	
 
    	
Attest:
    	
/s/   Jo Ann Smith 
    
	
Notarial   Seal
    	
 
    	
Its:
    	
Assistant   Secretary
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
        (CORPORATE   SEAL)
    
							


 

	
Signed,   sealed and delivered in the presence of:
    	
 
    	
CITY   OF DALTON, GEORGIA
   BY: BOARD OF WATER, LIGHT AND 
   SINKING FUND COMMISSIONERS d/b/a 
   DALTON UTILITIES
    
	
 
    	
 
    
	
/s/   Witness
    	
 
    
	
Witness   
    	
 
    
	
 
    	
 
    	
 
    
	
/s/   Pam Witherow 
    	
 
    	
By:
    	
/s/   Don Cope
    
	
Notary   Public 
    	
 
    	
 
    	
Name:   
    	
Don   Cope
    
	
My   Commission expires: June 13, 2015 
    	
 
    	
 
    	
Title:   
    	
President   and Chief Executive Officer
    
	
Notarial   Seal
    	
 
    	
 
    
	
 
    	
 
    	
Attest:
    	
/s/   Tom Bundros
    
	
 
    	
 
    	
Its:
    	
Chief   Operating Officer
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
                      (SEAL)
    
						


 











 

	
Signed,   sealed and delivered in the presence of: 
    	
 
    	
MUNICIPAL   ELECTRIC AUTHORITY OF GEORGIA
    
	
 
    	
 
    	
 
    
	
/s/   Peter M. Degnan 
    	
 
    	
 
    
	
Witness   
    	
 
    	
By:
    	
/s/   Robert P. Johnston
    
	
 
    	
 
    	
 
    	
Name:
    	
Robert   P. Johnston 
    
	
/s/   Dale Dyer
    	
 
    	
 
    	
Its:
    	
President   and Chief Executive Office
    
	
Notary   Public
    	
 
    	
 
    
	
My   Commission expires: August 22, 2014 
    	
 
    	
Attest:
    	
/s/   Dale Dyer 
    
	
Notarial   Seal
    	
 
    	
Its:
    	
Asst.   to President and Chief Executive Officer
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
          (CORPORATE   SEAL)
    
						


 

	
Signed,   sealed and delivered in the presence of: 
    	
 
    	
MEAG   POWER SPVJ LLC 
    
	
 
    	
 
    	
 
    
	
/s/   Peter M. Degnan 
    	
 
    	
By:   MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA, its sole member  
    
	
Witness   
    	
 
    
	
 
    	
 
    	
 
    
	
/s/   Dale Dyer 
    	
 
    	
By:
    	
/s/   Robert P. Johnston 
    
	
Notary   Public
    	
 
    	
 
    	
Name:   
    	
Robert   P. Johnston 
    
	
My   Commission expires: August 22, 2014
    	
 
    	
 
    	
Its:   
    	
President   and Chief Executive Officer 
    
	
Notarial   Seal
    	
 
    	
 
    
	
 
    	
 
    	
Attest:
    	
/s/   Dale Dyer 
    
	
 
    	
 
    	
Its:
    	
Asst.   to President and Chief Executive Officer
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
                       (SEAL)
    
						


 

	
Signed,   sealed and delivered in the presence of: 
    	
 
    	
MEAG   POWER SPVP LLC  
    
	
 
    	
 
    	
 
    
	
/s/   Peter M. Degnan
    	
 
    	
By:   MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA, its sole member 
    
	
Witness
    	
 
    
	
 
    	
 
    	
 
    
	
/s/   Dale Dyer 
    	
 
    	
By:
    	
/s/   Robert P. Johnston
    
	
Notary   Public
    	
 
    	
 
    	
Name:   
    	
Robert   P. Johnston
    
	
My   Commission expires: August 22, 2014
    	
 
    	
 
    	
Its:
    	
President   and Chief Executive Officer
    
	
Notarial   Seal
    	
 
    	
 
    
	
 
    	
 
    	
Attest:
    	
/s/   Dale Dyer 
    
	
 
    	
 
    	
Its:   
    	
Asst.   to President and Chief Executive Officer
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
                        (SEAL)
    
							


 

	
Signed,   sealed and delivered in the presence of:
    	
 
    	
MEAG   POWER SPVM LLC
    
	
 
    	
 
    	
 
    
	
/s/   Peter M. Degnan 
    	
 
    	
By:   MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA, its sole member 
    
	
Witness
    	
 
    
	
 
    	
 
    	
 
    
	
/s/   Dale Dyer
    	
 
    	
By:
    	
/s/   Robert P. Johnston
    
	
Notary   Public
    	
 
    	
 
    	
Name:
    	
Robert   P. Johnston
    
	
My   Commission expires: August 22, 2014
    	
 
    	
 
    	
Its:
    	
President   and Chief Executive Officer
    
	
Notarial   Seal
    	
 
    	
 
    
	
 
    	
 
    	
Attest:
    	
/s/   Dale Dyer 
    
	
 
    	
 
    	
Its:
    	
Asst.   to President and Chief Executive Officer
    
	
 
    	
 
    	
 
    	
                       (SEAL)