Final Response Letter Enclosed Correspondence 1/9/13

Atkins, Preston Jr
From: Sent: To: Subject: Attachments: Vawter, Linda [Linda.Vawter@hq.doe.gov] Monday, May 17, 2010 9:57 AM Atkins, Preston Jr FW: OMB AGENDA OMB AGENDA 5.17.10.pdf
LindaD.Vawter SeniorAdministrativeAssistant U.S.DepartmentofEnergy LoanGuaranteeProgramOffice 1000IndependenceAvenue Washington,DC20585 TEL:(202)5860093 FAX:(202)5864052 OriginalMessage From:Vawter,Linda Sent:Monday,May17,20109:25AM To:Aldy;Carroll,Kevin;Colyar;Ericsson;Frantz,David;Hanson,Christopher;Heijmans; Krauss,Lori;Liebman;Lyberg;McCrea,Jim;Mertens;Poneman,Daniel;Richardson,Susan; Saad;Seward,Lachlan;Silver,Jonathan;Stein;Varadarajan,Uday;Vawter,Linda;Zichal Subject:OMBAGENDA LindaD.Vawter SeniorAdministrativeAssistant U.S.DepartmentofEnergy LoanGuaranteeProgramOffice 1000IndependenceAvenue Washington,DC20585 TEL:(202)5860093 FAX:(202)5864052
Treasury Consult 1
May 17, 2010 Agenda 1:00pm ATVM
b5 b5
Solicitations
This Weeks Priorities
Vogtle: Draft credit subsidy clarification letter waiting for OMB input.
b5
b5
Treasury Consult 2
b5
Project Updates
b5
Nuclear Power Facilities: b5
b5 b5 b5 b5 b5
For the Vogtle project, DOE awaiting specific language clearance from OMB on clarification concerning the floor in the subsidy ranges.
b5 b5 b5 b5 b5 b5 b5 b5
b5
b5
b5
DGF 5/17/10
Treasury Consult 3
Atkins, Preston Jr
From: Sent: To: Vawter, Linda [Linda.Vawter@hq.doe.gov] Monday, May 24, 2010 9:35 AM 'Colyar, Kelly T.'; Saad, Fouad P.; Frantz, David; Hanson, Christopher; Farrell, Paula; Atkins, Preston Jr; Seward, Lachlan; Carroll, Kevin; Heather Zichal; Joseph Aldy; Krauss, Lori; Liebman; McCrea, Jim; Nora Stein; Pamela Heijmans; Poneman, Daniel; Richard_A. _Mertens@omb.eop.gov; Richardson, Susan; Sarah_A._Lyberg@omb.eop.gov; SEricsson@omb.eop.gov; Silver, Jonathan; Varadarajan, Uday RE: AGENDA FOR MONDAY, MAY 24, 2010
Subject:
CONFIRMEDFOR2:30PMTODAY.THANKS,LINDA LindaD.Vawter SeniorAdministrativeAssistant U.S.DepartmentofEnergy LoanGuaranteeProgramOffice 1000IndependenceAvenue Washington,DC20585 TEL:(202)5860093 FAX:(202)5864052 OriginalMessage From:Colyar,KellyT.[mailto:Kelly T. Colyar@omb.eop.gov] Sent:Monday,May24,20109:25AM To:Vawter,Linda;Saad,FouadP.;Frantz,David;Hanson,Christopher; Paula.Farrell@do.treas.gov;Preston.Atkins@do.treas.gov;Seward,Lachlan Subject:Re:AGENDAFORMONDAY,MAY24,2010 Linda, Thanksfortheemail.Itlookslikewehaveaconflictthough.Canwestartat2:30? Thanks. OriginalMessage From:Vawter,Linda<Linda.Vawter@hq.doe.gov> To:Colyar,KellyT.;Carroll,J.Kevin;Saad,FouadP.;Frantz,David <David.Frantz@hq.doe.gov>;Hanson,Christopher<Christopher.Hanson@hq.doe.gov>;Zichal, HeatherR.;Aldy,JosephE.;Krauss,LoriA.;Liebman,JeffreyB.;McCrea,Jim <Jim.McCrea@Hq.Doe.Gov>;Stein,Nora;Heijmans,PamelaL.;paulafarrell <Paula.Farrell@do.treas.gov>;Poneman,Daniel<Daniel.Poneman@hq.doe.gov>;PrestonAtkins <Preston.Atkins@do.treas.gov>;Mertens,RichardA.;Richardson,Susan <Susan.Richardson@hq.doe.gov>;Lyberg,SarahA.;Ericsson,SallyC.;Seward,Lachlan <Lachlan.Seward@hq.doe.gov>;Silver,Jonathan<Jonathan.Silver@hq.doe.gov>;Varadarajan,Uday Sent:MonMay2409:02:092010 Subject:RE:AGENDAFORMONDAY,MAY24,2010 Pleasenotethatthecalltodaywillbeat3pm,not1pm. Thanks, Linda LindaD.Vawter
Treasury Consult 4
1
SeniorAdministrativeAssistant U.S.DepartmentofEnergy LoanGuaranteeProgramOffice 1000IndependenceAvenue Washington,DC20585 TEL:(202)5860093 FAX:(202)5864052 OriginalMessage From:Colyar,KellyT.[mailto:Kelly T. Colyar@omb.eop.gov] Sent:Friday,May21,20105:45PM To:Vawter,Linda;Carroll,Kevin;Saad,FouadP.;Frantz,David;Hanson,Christopher; Zichal,HeatherR.;Aldy,JosephE.;Krauss,Lori;Liebman,JeffreyB.;McCrea,Jim;Stein, Nora;Heijmans,PamelaL.;paulafarrell;Poneman,Daniel;PrestonAtkins;Mertens,Richard A.;Richardson,Susan;Lyberg,SarahA.;Ericsson,SallyC.;Seward,Lachlan;Silver, Jonathan;Varadarajan,Uday Subject:RE:AGENDAFORMONDAY,MAY24,2010 ThanksLinda. FromOMB,pleaseadd:
b5
OriginalMessage From:Vawter,Linda[mailto:Linda.Vawter@hq.doe.gov] Sent:Friday,May21,20103:32PM To:Carroll,J.Kevin;Saad,FouadP.;Frantz,David;Hanson,Christopher;Zichal,Heather R.;Aldy,JosephE.;Colyar,KellyT.;Krauss,LoriA.;Liebman,JeffreyB.;McCrea,Jim; Stein,Nora;Heijmans,PamelaL.;'paulafarrell';Poneman,Daniel;'PrestonAtkins'; Mertens,RichardA.;Richardson,Susan;Lyberg,SarahA.;Ericsson,SallyC.;Seward, Lachlan;Silver,Jonathan;Varadarajan,Uday Subject:AGENDAFORMONDAY,MAY24,2010 Sorryforsendingagain,butIthinkIleftoffsomepeople.Thanks,Linda LindaD.Vawter SeniorAdministrativeAssistant U.S.DepartmentofEnergy LoanGuaranteeProgramOffice 1000IndependenceAvenue Washington,DC20585 TEL:(202)5860093 FAX:(202)5864052
2
Treasury Consult 5
Atkins, Preston Jr
From: Sent: To: Saad, Fouad P. [Fouad_P._Saad@omb.eop.gov] Friday, May 07, 2010 7:39 PM Vawter, Linda; Aldy, Joseph E.; Carroll, J. Kevin; Colyar, Kelly T.; Ericsson, Sally C.; Frantz, David; Hanson, Christopher; Heijmans, Pamela L.; Krauss, Lori A.; Liebman, Jeffrey B.; Lyberg, Sarah A.; McCrea, Jim; Mertens, Richard A.; Poneman, Daniel; Richardson, Susan; Seward, Lachlan; Silver, Jonathan; Stein, Nora; Varadarajan, Uday; Zichal, Heather R. Farrell, Paula; Atkins, Preston Jr; Samuels, Ian; Jaffe, Judson RE: AGENDA FOR MAY 10TH, 2010 LOAN GUARANTEE CALL OMB AGENDA 5.10.10.pdf
Cc: Subject: Attachments:
Thankyou.FromOMB'send,pleaseadd:
b5
Also,itmaymakesensetorevisitthedistributionlistfortheseemails.We'vecopiedsome ofourTreasurycolleagueswhohavebeenjoiningthecallsrecently.Atthesametime, perhapswedon'tneedtobothereveryoneonthedistributionlisteachweek.Everyoneisof coursewelcometojoin,butincaseyou'dprefernottoreceivetheseweeklyemails,please letmeandLindaVawter/DaveFrantzknowandwe'lltakeyouoffthedistribution. Regards, Fouad OriginalMessage From:Vawter,Linda[mailto:Linda.Vawter@hq.doe.gov] Sent:Friday,May07,20101:23PM To:Aldy,JosephE.;Carroll,J.Kevin;Colyar,KellyT.;Ericsson,SallyC.;Frantz,David; Hanson,Christopher;Heijmans,PamelaL.;Krauss,LoriA.;Liebman,JeffreyB.;Lyberg,Sarah A.;McCrea,Jim;Mertens,RichardA.;Poneman,Daniel;Richardson,Susan;Saad,FouadP.; Seward,Lachlan;Silver,Jonathan;Stein,Nora;Varadarajan,Uday;Vawter,Linda;Zichal, HeatherR. Subject:AGENDAFORMAY10TH,2010 LindaD.Vawter SeniorAdministrativeAssistant U.S.DepartmentofEnergy LoanGuaranteeProgramOffice 1000IndependenceAvenue Washington,DC20585 TEL:(202)5860093 FAX:(202)5864052
Treasury Consult 6
1
May 10, 2010 Agenda 1:00pm ATVM
b5
b5
Vogtle: Draft credit subsidy clarification letter waiting for OMB input.
b5 b5
Solicitations
Treasury Consult 7
b5
Project Updates
b5
. b5 b5 For the Vogtle project, b5 b5 b5 b5 b5 DOE awaiting specific language clearance from OMB on clarification concerning the floor in the subsidy ranges.
b5 b5 b5 b5 b5 b5 b5 b5
Nuclear Power Facilities: b5
DGF 5/7/10
Treasury Consult 8
From: To:
cc: Subject: Date:
Saad, Fouad P. Vawter, Linda; Mcloughlin, Colleen; Garnett III, Edward; Frantz, David; Burner, Gary; Hanson, Christopher; Samuels, Ian; Culbertson, Joseph; Jaffe, Judson; Romano, Loren; McCrea, Jim; Stein, Nora; Heijmans, Pamela L.; Farrell, Paula; Buenvenida, Pearl; Atkins, Preston Jr; Richardson, Susan; Lyberg, Sarah A.; Seward, Lachlan; Varadarajan, Uday; Cosby, Wilma; Carroll, J. Kevin; Colyar, Kelly T.; Krauss, Lori A.; Mertens, Richard A.; RE: MONDAY"S AGENDA Friday, June 18, 2010 6:54:10 PM
Thank you. From OMB's end, please add: - GPC term sheet acceptance re: Vogtle
b5
Thank you. Fouad -----Original Message----From: Vawter, Linda [mailto:Linda.Vawter@hq.doe.gov] Sent: Friday, June 18, 2010 4:12 PM To: Beth Mlynarczyk; Carroll, J. Kevin; Colleen McLoughlin; Edward Garnett; Saad, Fouad P.; Frantz, David; Gary Burner; Hanson, Christopher; Zichal, Heather R.; Ian Samuels; Jeff Foster; Aldy, Joseph E.; Joseph Culbertson; Judson Jaffe; Colyar, Kelly T.; Krauss, Lori A.; Liebman, Jeffrey B.; Loren Romano; McCrea, Jim; Stein, Nora; Heijmans, Pamela L.; paula farrell; Pearl Buenvenida; Poneman, Daniel; Preston Atkins; Mertens, Richard A.; Richardson, Susan; Lyberg, Sarah A.; Ericsson, Sally C.; Seward, Lachlan; Silver, Jonathan; Varadarajan, Uday; Wilma Cosby Subject: MONDAY'S AGENDA
Linda D. Vawter Senior Administrative Assistant U.S. Department of Energy

Treasury Consult 9
Loan Guarantee Program Office 1000 Independence Avenue Washington, DC 20585 TEL: (202)586-0093 FAX: (202)586-4052
Treasury Consult 10
From: To:
Subject: Date:
Colyar, Kelly T. Vawter, Linda; Mlynarczyk, Beth; Carroll, J. Kevin; Mcloughlin, Colleen; Garnett III, Edward; Saad, Fouad P.; Frantz, David; Burner, Gary; Hanson, Christopher; Samuels, Ian; Foster, Jeff; Culbertson, Joseph; Jaffe, Judson; Krauss, Lori A.; Romano, Loren; McCrea, Jim; Stein, Nora; Heijmans, Pamela L.; Farrell, Paula; Buenvenida, Pearl; Atkins, Preston Jr; Mertens, Richard A.; Richardson, Susan; Lyberg, Sarah A.; Seward, Lachlan; Varadarajan, Uday; Cosby, Wilma; RE: OMB AGENDA FOR MONDAY, JUNE 14, 2010 Friday, June 11, 2010 4:28:58 PM
Thanks Linda. From OMB please add:
GPC term sheet acceptance re: Vogtle
b5
-----Original Message----From: Vawter, Linda [mailto:Linda.Vawter@hq.doe.gov] Sent: Friday, June 11, 2010 2:31 PM To: 'Beth Mlynarczyk'; Carroll, J. Kevin; 'Colleen McLoughlin'; 'Edward Garnett'; Saad, Fouad P.; Frantz, David; 'Gary Burner'; Hanson, Christopher; Zichal, Heather R.; 'Ian Samuels'; 'Jeff Foster'; Aldy, Joseph E.; 'Joseph Culbertson'; 'Judson Jaffe'; Colyar, Kelly T.; Krauss, Lori A.; Liebman, Jeffrey B.; 'Loren Romano'; McCrea, Jim; Stein, Nora; Heijmans, Pamela L.; 'paula farrell'; 'Pearl Buenvenida'; Poneman, Daniel; 'Preston Atkins'; Mertens, Richard A.; Richardson,
Treasury Consult 11
Susan; Lyberg, Sarah A.; Ericsson, Sally C.; Seward, Lachlan; Silver, Jonathan; Varadarajan, Uday; 'Wilma Cosby' Subject: OMB AGENDA FOR MONDAY, JUNE 14, 2010
Linda D. Vawter Senior Administrative Assistant U.S. Department of Energy Loan Guarantee Program Office 1000 Independence Avenue Washington, DC 20585 TEL: (202)586-0093 FAX: (202)586-4052
Treasury Consult 12
Atkins, Preston Jr
From: Sent: To: Vawter, Linda [Linda.Vawter@hq.doe.gov] Friday, June 04, 2010 3:19 PM Mlynarczyk, Beth; Carroll, Kevin; Mcloughlin, Colleen; Garnett III, Edward; Fouad Saad; Frantz, David; Burner, Gary; Hanson, Christopher; Heather Zichal; Samuels, Ian; Foster, Jeff; Joseph Aldy; Culbertson, Joseph; Jaffe, Judson; Kelly Colyar; Krauss, Lori; Liebman; Romano, Loren; McCrea, Jim; Nora Stein; Pamela Heijmans; Farrell, Paula; Buenvenida, Pearl; Poneman, Daniel; Atkins, Preston Jr; Richard_A._Mertens@omb.eop.gov; Richardson, Susan; Sarah_A._Lyberg@omb.eop.gov; SEricsson@omb.eop.gov; Seward, Lachlan; Silver, Jonathan; Varadarajan, Uday; Cosby, Wilma AGENDA FOR MONDAY, JUNE 7, 2010 OMB AGENDA 6.7.10.xps
Subject: Attachments:
LindaD.Vawter SeniorAdministrativeAssistant U.S.DepartmentofEnergy LoanGuaranteeProgramOffice 1000IndependenceAvenue Washington,DC20585 TEL:(202)5860093 FAX:(202)5864052
Treasury Consult 13
June7,2010 Agenda 1:00pm ATVM
b5
ThisWeeksPriorities
b5
Vogtle:DraftcreditsubsidyclarificationletterwaitingforOMBinput.
b5
Solicitations
b5
Treasury Consult 14
b5
ProjectUpdates
b5
NuclearPowerFacilities:b5 b5 b5 b5 b5 DGF6/4/10
b5
b5 b5 b5 b5 b5 b5 b5 b5 b5 b5
Treasury Consult 15
-----Original Message----From: Frantz, David [mailto:David.Frantz@hq.doe.gov] Sent: Thursday, October 14, 2010 8:31 AM To: Colyar, Kelly T.; Saad, Fouad P.; 'Gary.Burner@do.treas.gov'; Pearl. Buenvenida@do.treas.gov; Preston.Atkins@do.treas.gov; 'Judson.Jaffe@do.treas. gov' Subject: FW: LGPO Portfolio Report 10-13-10 FYI David G. Frantz US Department of Energy Director, Loan Guarantee Office, CF-1.3 Office: (202) 586-8361 Fax: (202) 586-7366 David.Frantz@hq.doe.gov
Treasury Consult 16
TABLE 1
LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

October 13th, 2010 /a
------------------------------- Project -----------------------------Loan Gty. Request NEPA Review /c ---------- Expected Dates ---------Cond. Commitment Solicitation /d Candidate 1705
Officer
Project
Rank
/b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
FIPP
(b)(5)
Treasury Consult 17 Preparer: LGeorge File: LGP_Portfolio_Tracker (10-13-10)
Date: 3/24/2011 Time: 3 59 PM Page: 1 of 6
TABLE 1

Officer
Project
Rank
/b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
FIPP
(b)(5)
Treasury Consult 18 Preparer: LGeorge File: LGP_Portfolio_Tracker (10-13-10)
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
Loan Guarantee Request ($ Mil.)
CRB
Policy Issues
(b)(5)
Preparer: LGeorge Treasury Consult 19 File: LGP_Portfolio_Tracker (10-13-10) Date: 3/24/2011 Time: 3:59 PM Page: 3 of 6
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
Preparer: LGeorge Treasury Consult 20 File: LGP_Portfolio_Tracker (10-13-10) Date: 3/24/2011 Time: 3:59 PM Page: 4 of 6
TABLE 3
LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY SECTOR

------------------------------- Project -----------------------------Processing Issue(s) Cost ($ Mil.) Loan Gty. Request NEPA Review /c ---------- Expected Dates ---------Cond. Credit CommitComm. CRB ment Solicitation /d Candidate 1705
Officer
Project
Rank
/b
Sector
Technology
$ Mil.
FIPP
(b)(5)
Preparer LGeorge Treasury Consult 21 File: LGP_Portfolio_Tracker (10-13-10) Date: 3/24/2011 Time: 3:59 PM Page: 5 of 6
(b)(5)
Preparer LGeorge Treasury Consult 22 File: LGP_Portfolio_Tracker (10-13-10)
Date: 3/24/2011 Time: 3:59 PM
Page: 6 of 6
From: To: Subject: Date: Attachments:
Frantz, David "Kelly T. Colyar@omb.eop.gov"; "Saad, Fouad P."; Burner, Gary; Buenvenida, Pearl; Atkins, Preston Jr; Jaffe, Judson; Samuels, Ian; FW: LGPO Portfolio Report 10-27-10 Thursday, October 28, 2010 8:01:14 AM LGP Portfolio Tables 102710.xlsx Weekly Sector Team Tables 10 27 10.docx
FYI David G. Frantz US Department of Energy Director, Loan Guarantee Office, CF-1.3 Office: (202) 586-8361 Fax: (202) 586-7366 David.Frantz@hq.doe.gov
Treasury Consult 23
TABLE 1

|------------------------------- Project ------------------------------| Loan Gty. Request NEPA Review /c |---------- Expected Dates ----------| Cond. Commitment Candidate 1705
Officer
Project
Rank
/b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
Solicitation /d
FIPP
(b)(5)
Treasury Preparer: LGeorge Consult 24 File: LGP_Portfolio_Tables_102710
TABLE 1

Officer
Project
Rank
/b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
Solicitation /d
FIPP
(b)(5)
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
Preparer LGeorge Treasury Consult 26 File: LGP_Portfolio_Tables_102710 Date: 3/24/2011 Time: 6:00 PM Page: 3 of 6
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
Preparer LGeorge Treasury Consult 27 File: LGP_Portfolio_Tables_102710 Date: 3/24/2011 Time: 6:00 PM Page: 4 of 6
TABLE 3

------------------------------- Project -----------------------------Cost ($ Mil.) Loan Gty. Request NEPA Review /c ---------- Expected Dates ---------Cond. Credit CommitComm. CRB ment
Officer
Project
Rank /b
Processing Issue(s)
Sector
Technology
$ Mil.
Solicitation /d
Candidate 1705
FIPP
(b)(5)
Treasury Consult 28 Preparer: LGeorge File: LGP_Portfolio_Tables_102710
Date: 3/24/2011 Time: 6:00 PM Page: 5 of 6
b5 b5 b5
Frantz, David Colyar, Kelly T.; "Saad, Fouad P."; Atkins, Preston Jr; Jaffe, Judson; Burner, Gary; Buenvenida, Pearl; FW: LGPO Portfolio Report 10-05-10 Tuesday, October 05, 2010 5:08:04 PM Weekly Sector Team Tables 10 05 10.docx LGP Portfolio Tables 100510.xlsx
FYI David G. Frantz US Department of Energy Director, Loan Guarantee Office, CF-1.3 Office: (202) 586-8361 Fax: (202) 586-7366 David.Frantz@hq.doe.gov -----Original Message----From: George, Liju Sent: Tuesday, October 05, 2010 2:16 PM To: Duong, Hai; Robertson, Lew; Silver, Jonathan; Frantz, David; Kim, Dong; Schmitzer, David; Fraser, Michael; Marhamati, Joseph; Otness, Chris; Rios, Edward; Wright, Morgan; McCrea, Jim; Chandran, Keddy; Richardson, Susan; 'DSiefken@TerranearPMC.com'; Mcmillen, Matthew C; Taylor, Sonia; Frame, Craig; Miller, Ryan; Lindner, Katharine; Kittell, Matthew; Repetti, Ted; Stamos, John; Pegues, William; Schultz, Douglas; Westerheim, Ove; Whitcombe, Nicholas; Fridell, Monique; Hulihan, Terrence; Miller, Bill; Ghersi, Emilio; Tobin, Daniel; Fox, Lucian; Gross, Myrtle; Winters, Matthew; 'Sandra Claghorn'; Toenniessen, Annika; Offner, Julie; Grodin, Susan; 'Roger McDaniel'; Spinner, Steve; Nwachuku, Frances; Cho, Martin; Sprow, John; Salmons, Brett; Peterson, Brent; Park, Michael; Tanvir, Shafia Subject: LGPO Portfolio Report 10-05-10 Attached are the latest portfolio reports. Changes to the previous report are highlighted in yellow. Please send any changes to the reports to me. Thanks, Liju George 6-5868
Treasury Consult 31
TABLE 1

------------------------------- Project -----------------------------Loan Gty. Request NEPA Review /c ---------- Expected Dates ---------Cond. Commitment Candidate 1705
Officer
Project
Rank
/b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
Solicitation /d
FIPP
(b)(5)
Treasury Consult 33 Preparer HDuong File: Copy of LGP_Portfolio_Tables_100510
TABLE 1

------------------------------- Project -----------------------------Loan Gty. Request NEPA Review /c ---------- Expected Dates ---------Cond. Commitment Candidate 1705
Officer
Project
Rank
/b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
Solicitation /d
FIPP
(b)(5)
Treasury Consult 34 Preparer HDuong File: Copy of LGP_Portfolio_Tables_100510
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
Preparer: HDuong Treasury Consult 35 File: Copy of LGP_Portfolio_Tables_100510 Date: 3/24/2011 Time: 3:52 PM Page: 3 of 6
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
Preparer: HDuong Treasury Consult 36 File: Copy of LGP_Portfolio_Tables_100510 Date: 3/24/2011 Time: 3:52 PM Page: 4 of 6
TABLE 3

Officer
Project
Rank
/b
Sector
Technology
$ Mil.
FIPP
(b)(5)
Preparer HDuong Treasury Consult 37 File: Copy of LGP_Portfolio_Tables_100510 Date: 3/24/2011 Time: 3:52 PM Page: 5 of 6
b5 b5
Preparer HDuong Treasury Consult 38 File: Copy of LGP_Portfolio_Tables_100510 Date: 3/24/2011 Time: 3:52 PM Page: 6 of 6
Frantz, David "Colyar, Kelly T."; "Fouad P. Saad@omb.eop.gov"; Carroll, Kevin; Jaffe, Judson; Burner, Gary; Buenvenida, Pearl; Atkins, Preston Jr; FW: LGPO Portfolio Report 11/22/10 Tuesday, November 23, 2010 11:11:17 AM LGP Portfolio Tables 112310.xlsx
Updated schedule. David G. Frantz US Department of Energy Director, Loan Guarantee Office, CF-1.3 Office: (202) 586-8361 Fax: (202) 586-7366 David.Frantz@hq.doe.gov
Treasury Consult 39
TABLE 1

November 23rd, 2010 /a
Officer
Project
Rank
/b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
Solicitation /d
FIPP
(b)(5)
TABLE 1

Officer
Project
Rank
/b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
Solicitation /d
FIPP
(b)(5)
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
Preparer: George Treasury Consult 42 File: LGP_Portfolio_Tables_112310 Date: 3/24/2011 Time: 6:09 PM Page: 3 of 6
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
TABLE 3

Officer
Project
Rank /b
Processing Issue(s)
Sector
Technology
$ Mil.
Solicitation /d
Candidate 1705
FIPP
(b)(5)
b5 b5 b5
From: To:
Subject: Date: Attachments:
Vawter, Linda Mlynarczyk, Beth; Carroll, Kevin; Mcloughlin, Colleen; Garnett III, Edward; "Fouad Saad"; Frantz, David; Burner, Gary; Hanson, Christopher; Samuels, Ian; Foster, Jeff; "Joseph Aldy"; Culbertson, Joseph; Jaffe, Judson; "Kelly Colyar"; Krauss, Lori; Romano, Loren; McCrea, Jim; "Nora Stein"; Farrell, Paula; Buenvenida, Pearl; Poneman, Daniel; Atkins, Preston Jr; "Richard A. Mertens@omb.eop.gov"; Richardson, Susan; "Sarah A. Lyberg@omb.eop.gov"; "SEricsson@omb.eop.gov"; Seward, Lachlan; Silver, Jonathan; Varadarajan, Uday; Cosby, Wilma; Zichal, Heather; FW: LGPO Portfolio Report 12/15/10 Thursday, December 16, 2010 2:37:56 PM LGP Portfolio Tables 121510.xlsx Weekly Sector Team Tables 12 15 10.docx
-----Original Message----From: Frantz, David Sent: Thursday, December 16, 2010 2:32 PM To: Vawter, Linda Subject: FW: LGPO Portfolio Report 12/15/10 Linda, Pls forward to OMB and Treasury. David G. Frantz US Department of Energy Director, Loan Guarantee Office, CF-1.3 Office: (202) 586-8361 Fax: (202) 586-7366 David.Frantz@hq.doe.gov -----Original Message----From: George, Liju Sent: Wednesday, December 15, 2010 4:54 PM To: George, Liju; Abedin, Khalid; Barwell, Owen; Chandran, Keddy; Chaudhary, Nida; Cho, Martin; Cortes, Hernan; 'DSiefken@TerranearPMC.com'; Duong, Hai; Fox, Lucian; Frame, Craig; Frantz, David; Fraser, Michael; Freund, Andrew; Fridell, Monique; Ghersi, Emilio; Grodin, Susan; Gross, Myrtle; Hanson, Christopher; Heimert, Kimberly; Hulihan, Terrence; Kim, Dong; Kittell, Matthew; Lindner, Katharine; Marhamati, Joseph; McCrea, Jim; McDaniel, Roger; Mcmillen, Matthew C; Miller, Bill; Miller, Ryan; Nesic, Mladen; Nwachuku, Frances; Offner, Julie; Otness, Chris; Park, Michael; Pegues, William; Peterson, Brent; Repetti, Ted; Richardson, Susan; Rios, Edward; Robertson, Lew; Salmons, Brett; 'Sandra Claghorn'; Schmitzer, David; Schultz, Douglas; Silver, Jonathan; Sprow, John;
Treasury Consult 46
Stamos, John; Tanvir, Shafia; Taylor, Sonia; Tobin, Daniel; Toenniessen, Annika; Westerheim, Ove; Wheeler, Emily; Whitcombe, Nicholas; Winters, Matthew; Wright, Morgan; Doughtie, Britt Subject: RE: LGPO Portfolio Report 12/15/10 Attached are the latest portfolio reports. Changes to the previous report are highlighted in yellow. Please send any changes to the reports to me. Thanks, Liju George 6-5868
Treasury Consult 47
TABLE 1

December 15th, 2010 /a
Officer
Project
Rank
/b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
Solicitation /d
FIPP
(b)(5)
TABLE 1

Officer
Project
Rank
/b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
Solicitation /d
FIPP
(b)(5)
Date: 3/24/2011 Time: 6:15 PM
Page: 2 of 7
TABLE 1

Officer
Project
Rank
/b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
Solicitation /d
FIPP
(b)(5)
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
TABLE 3

Officer
Project
Rank /b
Processing Issue(s)
Sector
Technology
$ Mil.
Solicitation /d
Candidate 1705
FIPP
(b)(5)
b5 b5 b5
Atkins, Preston Jr
From: Sent: To: Subject: Attachments: Frantz, David [David.Frantz@hq.doe.gov] Thursday, May 13, 2010 11:03 AM Atkins, Preston Jr FW: LGP Portfolio Tables 051110.xlsx LGP_Portfolio_Tables_051110.xlsx
Latestschedule. DavidG.Frantz USDepartmentofEnergy Director,LoanGuaranteeOffice,CF1.3 Office:(202)5868361Fax:(202)5867366David.Frantz@hq.doe.gov OriginalMessage From:Duong,Hai Sent:Thursday,May13,201010:26AM To:Frantz,David Subject:LGP_Portfolio_Tables_051110.xlsx
b5
Treasury Consult 56
TABLE 4

May 11, 2010
/a
Loan Gty. Request
Project
Location
Sector
Technology
Cost ($ Mil.)
$ Mil.
CRB
Policy Issues
(b)(5)
Preparer: HDuong Treasury Consult 57 File: LGP_Portfolio_Tables_051110 Date: 3/24/2011 Time: 3:34 PM Page: 1 of 8
TABLE 4

May 11, 2010
/a
Loan Gty. Request
Project
Location
Sector
Technology
Cost ($ Mil.)
$ Mil.
CRB
Policy Issues
(b)(5)
TABLE 2

May 11, 2010 /a
Officer
Project
Rank /b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
FIPP
(b)(5)
Preparer HDuong Treasury Consult 59 File: LGP_Portfolio_Tables_051110 Date: 3/24/2011 Time: 3:34 PM Page: 3 of 8
TABLE 2

May 11, 2010 /a
------------------------------- Project -----------------------------Loan Gty. Request NEPA Review ---------- Expected Dates ---------Cond. CommitSolicitation Candidate
Processing
/b
Cost
($
Credit
(b)(5)
Treasury Consult 60 Preparer HDuong File: LGP_Portfolio_Tables_051110
TABLE 1

May11, 2010 /a
Officer
Project
Rank
/b
Sector
Technology
$ Mil.
FIPP
(b)(5)
b5 b5
TABLE 3
LOAN GUARANTEE PROGRAM -- PROCESSING SCHEDULE OF UNCOMMITTED PROJECTS

May11, 2010 /a
Expected Credit Committee Meeting Last Week This Week Change
/b
|----------- Advisor Engaged /c ------------| Expected Expected CommitActual Commit-
|--------- Draft Report Received ---------|
(b)(5)
File: LGP_Portfolio_Tables_051110 Treasury Consult 63 Sheet: Table 2 Page: 7 of 8
TABLE 3
LOAN GUARANTEE PROGRAM -- PROCESSING SCHEDULE OF UNCOMMITTED PROJECTS

May11, 2010 /a
Expected Credit Committee Meeting Last Week This Week Change
/b
|----------- Advisor Engaged /c ------------| Expected Expected CommitActual Commit-
|--------- Draft Report Received ---------|
(b)(5)
Preparer:HDuong File: LGP_Portfolio_Tables_051110 Treasury Consult 64 Sheet: Table 2 Page: 8 of 8
From: To: Date: Attachments:
Vawter, Linda Samuels, Ian; Jaffe, Judson; Atkins, Preston Jr; Friday, August 27, 2010 12:47:33 PM LGP Portfolio Tables 082710.xlsx
Linda D. Vawter Senior Administrative Assistant U.S. Department of Energy Loan Guarantee Program Office 1000 Independence Avenue Washington, DC 20585 TEL: (202)586-0093 FAX: (202)586-7809
Treasury Consult 65
TABLE 1

August 27, 2010 /a
Officer
Project
Rank /b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
FIPP
(b)(5)
Preparer HDuong Treasury Consult 66 File: LGP_Portfolio_Tables_082710 Date: 3/24/2011 Time: 3:44 PM Page: 1 of 6
TABLE 1

August 27, 2010 /a
Officer
Project
Rank /b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
FIPP
(b)(5)
Treasury Consult 67 Preparer HDuong File: LGP_Portfolio_Tables_082710
TABLE 2

August 27, 2010 /a
Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
TABLE 2

August 27, 2010 /a
Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
TABLE 3

August 27, 2010 /a
Officer
Project
Rank
/b
Sector
Technology
$ Mil.
FIPP
(b)(5)
b5 b5
From: To:
Vawter, Linda Barwell, Owen; Mlynarczyk, Beth; Carroll, Kevin; Mcloughlin, Colleen; Garnett III, Edward; Fouad Saad; Frantz, David; Burner, Gary; Hanson, Christopher; Samuels, Ian; Foster, Jeff; JJ Singh; Joseph Aldy; Culbertson, Joseph; Jaffe, Judson; Kelly Colyar; Krauss, Lori; Romano, Loren; McCrea, Jim; Nora Stein; Farrell, Paula; Buenvenida, Pearl; Poneman, Daniel; Atkins, Preston Jr; Richard A. Mertens@omb.eop.gov; Richardson, Susan; Sarah A. Lyberg@omb.eop.gov; SEricsson@omb.eop. gov; Seward, Lachlan; Silver, Jonathan; Varadarajan, Uday; Cosby, Wilma; Zichal, Heather; Portfolio Table for January 24, 2011 attached. Thanks, Linda Monday, January 24, 2011 9:38:44 AM LGP Portfolio Tables 1 24 11.xlsx
Linda D. Vawter Loan Guarantee Program Office US Department of Energy 1000 Independence Avenue Washington, DC 20585 Telephone: 202-586-0093
Treasury Consult 72
TABLE 1

January 24th, 2011 /a
------------------------------- Project -----------------------------Processing Issue(s) Cost ($ Mil.) Loan Gty. Request NEPA Revie w /c ---------- Expected Dates ---------Credit Comm. Cond. Commitment Solicitation /d Candi-date 1705
Officer
Project
Rank
/b
Sector
Technology
$ Mil.
CRB
FIPP
(b)(5)
Preparer: LGeorge File: LGP_Portfolio_Tables_1 24 11 Date: 3/24/2011 Time: 6:26 PM Page: 1 of 6
TABLE 1

Officer
Project
Rank
/b
Sector
Technology
$ Mil.
CRB
FIPP
(b)(5)
Treasury Consult 74
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
Treasury Consult 75 Preparer: LGeorge File: LGP_Portfolio_Tables_1 24 11
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
TABLE 3

Officer
Project
Rank /b
Processing Issue(s)
Sector
Technology
$ Mil.
Solicitation /d
Candidate 1705
FIPP
(b)(5)
(b)(5)
Date: 3/24/2011 Time: 6:26 PM
Page: 6 of 6
From: To:
Vawter, Linda Barwell, Owen; Mlynarczyk, Beth; Carroll, Kevin; Mcloughlin, Colleen; Garnett III, Edward; Fouad Saad; Frantz, David; Burner, Gary; Hanson, Christopher; Samuels, Ian; Foster, Jeff; JJ Singh; Joseph Aldy; Culbertson, Joseph; Jaffe, Judson; Kelly Colyar; Krauss, Lori; Romano, Loren; McCrea, Jim; Nora Stein; Farrell, Paula; Buenvenida, Pearl; Poneman, Daniel; Atkins, Preston Jr; Richard A. Mertens@omb.eop.gov; Richardson, Susan; Sarah A. Lyberg@omb.eop.gov; SEricsson@omb.eop. gov; Seward, Lachlan; Silver, Jonathan; Varadarajan, Uday; Cosby, Wilma; Zichal, Heather; Agenda, Sector Team Tables and Portfolio Tables for 2pm Call today Monday, January 31, 2011 8:37:12 AM OMB AGENDA 1.31.11.doc Weekly Sector Team Tables 1 28 11.docx LGP Portfolio Tables 1 28 11.xlsx
Call in number is 301-903-0620 (Resv. #313614)
Many thanks,
Linda Linda D. Vawter Loan Guarantee Program Office US Department of Energy 1000 Independence Avenue Washington, DC 20585 Telephone: 202-586-0093
Treasury Consult 79
January 31, 2011 Agenda 2:00pm Call in number 01/31/2011 = 301-903-0620 (Resv. #313614) ATVM
b5
b5
b5 b5
Solicitations Project Updates
b5
Treasury Consult 80
TABLE 1

Officer
Project
Rank
/b
Sector
Technology
$ Mil.
CRB
FIPP
(b)(5)
TABLE 1

Officer
Project
Rank
/b
Sector
Technology
$ Mil.
CRB
FIPP
(b)(5)
Treasury Consult 83
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
TABLE 3

Officer
Project
Rank /b
Processing Issue(s)
Sector
Technology
$ Mil.
Solicitation /d
Candidate 1705
FIPP
(b)(5)
b5 b5 b5
From: To:
Vawter, Linda Barwell, Owen; Mlynarczyk, Beth; Carroll, Kevin; Mcloughlin, Colleen; Garnett III, Edward; Fouad Saad; Frantz, David; Burner, Gary; Hanson, Christopher; Samuels, Ian; Foster, Jeff; JJ Singh; Joseph Aldy; Culbertson, Joseph; Jaffe, Judson; Kelly Colyar; Krauss, Lori; Romano, Loren; McCrea, Jim; Nora Stein; Farrell, Paula; Buenvenida, Pearl; Poneman, Daniel; Atkins, Preston Jr; Richard A. Mertens@omb.eop.gov; Richardson, Susan; Sarah A. Lyberg@omb.eop.gov; SEricsson@omb.eop. gov; Seward, Lachlan; Silver, Jonathan; Varadarajan, Uday; Cosby, Wilma; Zichal, Heather; Abedin, Khalid; Cho, Martin; Cortes, Hernan; Doughtie, Britt; Fox, Lucian; Fridell, Monique; Ghersi, Emilio; Hulihan, Terrence; Hyman, Kelly; Kelly, Matt; Kim, Dong; Kittell, Matthew; Lee, Daniel; Maceyras, Jorge; Miller, Bill; Nesic, Mladen; Parekh, Swaroop; Park, Michael; Pegues, William; Potasinski, Andrzej; Qayyum, Hassan; Repetti, Ted; Rios, Edward; Schmitzer, David; Schultz, Douglas; Sexton, Robert; Shybut, Christopher; Stamos, John; Tobin, Daniel; Tsai, Christopher; Westerheim, Ove; Whitcombe, Nicholas; Works, John; LGPO Portfolio Tables Friday, January 07, 2011 2:23:26 PM LGP Portfolio Tables 1.10.11.xlsx
Thanks, Linda Linda D. Vawter Loan Guarantee Program Office US Department of Energy 1000 Independence Avenue Washington, DC 20585 Telephone: 202-586-0093
Treasury Consult 88
TABLE 1

| Project | Loan Gty. Request NEPA Review /c | Expected Dates | Cond. Commit ment Solici tation /d Candi date 1705
Officer
Project
Rank /b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
FIPP
(b)(5)
Preparer: LGeorge File: LGP_Portfolio_Tables_1.10.11
Treasury Consult 89
Date: 3/24/2011 Time: 6:21 PM
Page: 1 of 6
TABLE 1

| Project | Loan Gty. Request NEPA Review /c | Expected Dates | Cond. Commit ment Solici tation /d Candi date 1705
Officer
Project
Rank /b
Processing Issue(s)
Sector
Technology
Cost ($ Mil.)
$ Mil.
Credit Comm.
CRB
FIPP
(b)(5)
Preparer: LGeorge File: LGP_Portfolio_Tables_1.10.11
Treasury Consult 90
Date: 3/24/2011 Time: 6:21 PM
Page: 2 of 6
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
Preparer: LGeorge Treasury Consult 91 File: LGP_Portfolio_Tables_1.10.11 Date: 3/24/2011 Time: 6:21 PM Page: 3 of 6
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
Preparer: LGeorge Treasury Consult 92 File: LGP_Portfolio_Tables_1.10.11 Date: 3/24/2011 Time: 6:21 PM Page: 4 of 6
TABLE 3

Officer
Project
Rank /b
Processing Issue(s)
Sector
Technology
$ Mil.
Solicitation /d
Candidate 1705
FIPP
(b)(5)
Treasury Consult 93 Preparer: LGeorge File: LGP_Portfolio_Tables_1.10.11
b5 b5 b5
Treasury Consult 94 Preparer: LGeorge File: LGP_Portfolio_Tables_1.10.11
From: To:
Vawter, Linda Barwell, Owen; Mlynarczyk, Beth; Carroll, Kevin; Mcloughlin, Colleen; Garnett III, Edward; Fouad Saad; Frantz, David; Burner, Gary; Hanson, Christopher; Samuels, Ian; Foster, Jeff; JJ Singh; Joseph Aldy; Culbertson, Joseph; Jaffe, Judson; Kelly Colyar; Krauss, Lori; Romano, Loren; McCrea, Jim; Nora Stein; Farrell, Paula; Buenvenida, Pearl; Poneman, Daniel; Atkins, Preston Jr; Richard A. Mertens@omb.eop.gov; Richardson, Susan; Sarah Lyberg; SarahA.[Sarah A. Lyberg@omb.eop. gov]; Sarah A. Lyberg@omb.eop.gov; SEricsson@omb.eop.gov; Seward, Lachlan; Silver, Jonathan; Varadarajan, Uday; Cosby, Wilma; Zichal, Heather; LGP Portfolio Tables/Weekly Sector Team Tables Thursday, February 10, 2011 1:23:20 PM LGP Portfolio Tables 2 10 11.xlsx Weekly Sector Team Tables 2 10 11.docx
Treasury Consult 95
TABLE 1

February 10th, 2011 /a
Officer
Project
Rank
/b
Sector
Technology
$ Mil.
CRB
FIPP
(b)(5)
TABLE 1

Officer
Project
Rank
/b
Sector
Technology
$ Mil.
CRB
FIPP
(b)(5)
Treasury Consult 97
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
Treasury Preparer: LGeorgeConsult 98 File: LGP_Portfolio_Tables_2 10 11
Date: 3/24/2011 Time: 6 36 PM
Page: 3 of 9
TABLE 2

Project
Location
Sector
Technology
Cost ($ Mil.)
CRB
Policy Issues
(b)(5)
Treasury Preparer: LGeorgeConsult 99 File: LGP_Portfolio_Tables_2 10 11
Date: 3/24/2011 Time: 6 36 PM
Page: 4 of 9
TABLE 3

Officer
Project
Rank /b
Processing Issue(s)
Sector
Technology
$ Mil.
Solicitation /d
Candidate 1705
FIPP
(b)(5)
b5 b5 b5
Date: 3/24/2011 Time: 6:36 PM
Page: 7 of 9
Sector
Officer
Project
(b)(5)
Treasury Consult 103
From: To:
Vawter, Linda Barwell, Owen; McCrea, Jim (CONTR); Abedin, Khalid; Cho, Martin; Cortes, Hernan; Doughtie, Britt; Fox, Lucian; Frantz, David; Fridell, Monique; Ghersi, Emilio; Hulihan, Terrence; Kelly, Matt; Kittell, Matthew; Lee, Daniel; Maceyras, Jorge; Mcdonald, Jack (CONTR); Nesic, Mladen; Parekh, Swaroop; Park, Michael; Pegues, William; Potasinski, Andrzej; Qayyum, Hassan; Repetti, Ted; Rios, Edward; Schmitzer, David; Schultz, Douglas; Sexton, Robert; Shybut, Christopher; Stamos, John; Tobin, Daniel; Whitcombe, Nicholas; Works, John; Arigbede, Kimberley; Binitie, Chinwe; Cestari, Kenneth; Donovan, Nancy; Heimert, Kimberly; Hodges, Sven; Ku, Ruth; Leong, Alvin; O"Brien, Meghan; Richardson, Susan; Tanvir, Shafia; Weinstein, Steven; Mlynarczyk, Beth; Carroll, Kevin; Colleen McLoughlin; Garnett III, Edward; Fouad Saad; Burner, Gary; Gonzales Harsha, Marcos; Hanson, Christopher; Samuels, Ian; Foster, Jeff; JJ Singh; Joseph Aldy; Culbertson, Joseph; Jaffe, Judson; Weber, Karen; Kelly Colyar; Krauss, Lori; Romano, Loren; Farrell, Paula; Buenvenida, Pearl; Poneman, Daniel; Atkins, Preston Jr; Richard A. Mertens@omb.eop.gov; Sarah Engle; Sarah A. Lyberg@omb.eop.gov; SEricsson@omb.eop.gov; Seward, Lachlan; Silver, Jonathan; Varadarajan, Uday; Cosby, Wilma; Zichal, Heather; LP Portfolio Tables/Weekly Sector Team Table Friday, March 11, 2011 3:58:06 PM LGP Portfolio Tables 3 11 11.xlsx Weekly Sector Team Tables 3 11 11.docx
TABLE 1

March 11th, 2011
|------------------------------- Project ------------------------------| Cost ($ Mil.)
a
Loan Gty. Request NEPA Revie w /c
|---------- Expected Dates ----------| Credit Comm. Cond. Commitment Solicitation /d Candi-date 1705
Officer
Project
Rank /b
Timeline
Sector
Technology
$ Mil.
CRB
FIPP
(b)(5)
Preparer LGeorge File LGP_Portfolio_Tables_3 11 11 Date 3/24/2011 Time 6 42 PM Page 1 of 5
TABLE 1

March 11th, 2011
|------------------------------- Project ------------------------------| Cost ($ Mil.)
a
Loan Gty. Request NEPA Revie w /c
|---------- Expected Dates ----------| Credit Comm. Cond. Commitment Solicitation /d Candi-date 1705
Officer
Project
Rank /b
Timeline
Sector
Technology
$ Mil.
CRB
FIPP
(b)(5)
Preparer LGeorge File LGP_Portfolio_Tables_3 11 11 Date 3/24/2011 Time 6 42 PM Page 2 of 5
TABLE 3

March 11th, 2011 /a
------------------------------- Project -----------------------------Cost ($ Mil.) Loan Gty. Request NEPA Review /c ---------- Expected Dates ---------Credit Comm. Cond. Commitment Solicitation /d Candidate 1705
Officer
Project
Rank
/b
Timeline
Sector
Technology
$ Mil.
CRB
FIPP
(b)(5)
b5 b5 b5
b5
Date: 3/24/2011 Time: 6:42 PM
Page: 5 of 5
From: To: Subject: Date:
Whitcombe, Nicholas Atkins, Preston Jr; Georgia Power Monday, November 16, 2009 8:34:08 PM
Preston, Received your call and will touch base with first thing in the morning. Nick
Atkins, Preston Jr
From: Sent: To: Cc: Subject: Attachments: Whitcombe, Nicholas [Nicholas.Whitcombe@hq.doe.gov] Monday, November 16, 2009 10:21 AM Atkins, Preston Jr Farrell, Paula Georgia Power Corporation DOE Loan Guarantee GPC_CreditPaper_09-11-13 Final.pdf; GPC Term Sheet 11.13.09.DOC
Preston, AttachedisourcreditcommitteeapplicationthattheLGPOwillpresenton11/18.Iam availabletodiscussatyourconvenience(202)2875406. Regards,NickWhitcombe
ANNEX A TO DOE LOAN GUARANTEE LETTER SUMMARY OF TERMS AND CONDITIONS This term sheet (Term Sheet) is a summary of the proposed principal terms and conditions for a U.S. Department of Energy (DOE) guarantee of a loan to Georgia Power Company (the Borrower) made by the Federal Financing Bank (FFB), pursuant to Title XVII of the Energy Policy Act of 2005, as amended (Title XVII). The complete and final terms and conditions will be set forth in appropriate documentation (the Definitive Agreements), which will be negotiated by DOE, FFB and the Borrower (collectively, the Parties). Capitalized terms used but not defined in this Term Sheet have the meanings given to such terms in the final regulations located at 10 C.F.R. Part 609 promulgated by DOE to implement Title XVII (the Regulations). All provisions of this Term Sheet are subject to the following: (i) the provisions of Title XVII and the Regulations, and (ii) all DOE or FFB legal and financial requirements, policies, and procedures applicable to the Title XVII program from time to time (the Program Requirements, except that from and after the date that the Definitive Agreements are entered into, the term Program Requirements shall not include DOE requirements, policies and procedures referenced at subsection (ii) of the definition not having the force of law). 1. Parties Borrower: Georgia Power Company, a corporation organized and existing under the laws of Georgia. Eligible Lender: FFB, an instrumentality of the United States government created by the Federal Financing Bank Act of 1973 that is under the general supervision of the Secretary of Treasury. Loan Servicer: FFB, DOE, or such other financial institution selected by DOE in its sole discretion. Collateral Agent: a financial institution selected by DOE in its sole discretion. 2. Project The construction of an approximately 2,214 MW nuclear generating facility in accordance with the Project Plans (as defined below), utilizing the Westinghouse AP1000 technology, and located approximately 30 miles south of Augusta, Georgia, including associated transmission facilities and fuel (the Project). The Project will be comprised of two units (the Units). The AP1000 is a pressurized water reactor with passive safety systems, designed to achieve and maintain safe shutdown in case of design-basis accidents without operator action, AC power or pumps. The Borrower owns a 45.7% undivided interest in the Project (the Undivided
Interest), and Oglethorpe Power Corporation (OPC) owns a 30% undivided interest, Municipal Electric Authority of Georgia or various subsidiaries of Municipal Electric Authority of Georgia (MEAG) owns a 22.7% undivided interest, and the City of Dalton (Dalton) owns a 1.6% undivided interest (collectively, the Borrower, OPC, MEAG and Dalton are referred to as the Owners). The Borrower will provide detailed project plans that have been approved by United States Nuclear Regulatory Commission (the NRC) and other appropriate regulatory authorities for the design, construction, equipping, operation and maintenance of the Project (the Project Plans), including without limitation engineering and construction plans, operating and maintenance plans and/or management plans. Such Project Plans may be revised from time to time by the Borrower or the Operator (as defined below) subject to receipt of any required approvals of the NRC and other appropriate regulatory authorities. Southern Nuclear Operating Company, a wholly-owned subsidiary of The Southern Company, the parent of the Borrower (the Operator), will oversee construction of and operate the Project on behalf of the Owners. The Operator will be the holder of the combined construction permit and operating license (the COL) issued by the NRC. The Operator currently operates the Vogtle Electric Generating Plants Units 1 and 2, as well as four other nuclear units. The Borrower will provide detailed plans for financing all of the estimated costs attributable to the Borrowers Undivided Interest in the Project. The Borrower estimates as of the date of this Term Sheet that such costs equal $[__________], as set forth on Schedule I 1 attached hereto (GPC Base Project Costs). As used herein, GPC Overrun Project Costs shall mean the portion of costs attributable to the Borrowers Undivided Interest in the Project, if any, in excess of GPC Base Project Costs.
Schedule I detailing GPC Base Project Costs to be provided by the Borrower in consultation with the DOE Engineer.
3.
FFB Credit Facility
A loan from FFB (the Guaranteed Loan) available to the Borrower in the principal amount (the Guaranteed Loan Amount) of up to the lesser of (i) $[3,459,906,967] and (ii) 70% of Eligible Project Costs, as set forth on Schedule II attached hereto. As used herein, Eligible Project Costs shall mean those portions of GPC Base Project Costs that are eligible for funding as Project Costs as defined in the Regulations. Amounts borrowed and repaid may not be reborrowed. All portions of GPC Base Project Costs that are not Eligible Project Costs, plus those portions of Eligible Project Costs for which the Guaranteed Loan Amount is not available (Ineligible Project Costs) shall be paid by the Borrower. The Borrower shall (i) fund its Undivided Interest in the Project (Base Funding) in an amount not less than 100% of all Ineligible Project Costs (the Base Funding Commitment), and (ii) fund 100% of GPC Overrun Project Costs (the Overrun Funding Commitment) from sources other than the Guaranteed Loan; provided, that the Borrowers obligation to fund the Base Funding Commitment and the Overrun Funding Commitment shall be subject to Section 14(c) (Mandatory Prepayments) of this Term Sheet. An unconditional guarantee by DOE (the DOE Guarantee) of up to 100% of the principal of and interest on the Guaranteed Loan (the Guaranteed Obligations) in accordance with the Program Requirements and on terms and conditions as agreed with FFB. The DOE Guarantee will be irrevocable and unconditional and will pledge the full faith and credit of the United States of America to the payment of the Guaranteed Obligations. Subject to the terms of the Definitive Agreements, advances of the Guaranteed Loan (each an Advance) may be requested from time to time during the period from (x) the date of satisfaction of the conditions to the initial Advance through (y) a date to be agreed in the Definitive Agreements (the Availability Period). The proceeds of Advances will be used to pay Eligible Project Costs in accordance with a financial plan and construction budget to be submitted by the Borrower. The Borrower will provide updated financial plans and construction budgets to the DOE each quarter, unless there have been no changes to the previously delivered plans and budgets, in which case the
4.
Funding Commitments
5.
DOE Guarantee
6.
Full Faith and Credit
7.
Availability of Funds
8.
Use of Proceeds
Borrower will notify DOE that no changes have been made. The Borrower shall request an Advance by submitting an Advance request to DOE. The Borrower will certify in each Advance request that the amounts are to be borrowed to: (i) to pay Eligible Project Costs then due and payable, or (ii) to reimburse the Borrower for Eligible Project Costs that have been previously paid and have not been the subject of a prior Advance, in each case in accordance with the financial plan and construction budget submitted by the Borrower. Each Advance request will provide sufficient detail of the subject Eligible Project Costs and include wire transfer instructions and copies of invoices. Each Advance request will be reviewed and certified by MPR Associates, Inc., or such other engineering firm selected by DOE in its sole discretion (the DOE Engineer). The DOE Engineer will be permitted to conduct reasonable periodic inspections of the Project during construction. Amounts requested in any Advance request will be funded by FFB within five business days following receipt by FFB of (i) an Advance request from the Borrower, and (ii) an Advance approval notice from DOE. DOE shall promptly review each Advance request and, after such review and receipt of all necessary certifications, shall promptly issue an Advance approval notice. The Borrower may request Advances no more frequently than once per calendar quarter. 9. Amortization; Term The outstanding principal amount of the Guaranteed Loan will be payable in accordance with Schedule III, with installments of principal commencing on a date to be agreed in the Definitive Agreements, which date shall not be earlier than the projected commercial operation date for the Project (each such payment date, a Principal Payment Date). The final maturity of the Guaranteed Loan will be the last Principal Payment Date to occur prior to the date that is 360 months after the date of the initial Advance. The interest rate on each Advance may be a fixed rate or a floating rate as selected by the Borrower at the time of such Advance. The interest rate on each Advance (each such interest rate, an Advance Interest Rate) will be a rate per annum equal to the sum of (x) the single equivalent rate of the Advance repayment stream determined from Treasurys Constant Maturity Treasury curve, taking into consideration the shortest maturity Treasury bill being then currently auctioned, up through the Constant Maturity Treasury rate corresponding to the period from the date of such Advance to the final maturity of the Guaranteed Loan, plus (y) a spread to be calculated prior to closing, to be determined in accordance
10.
Interest Rate; Late Charge Rate
with FFB policy guidelines. The Borrower may select multiple interest rate calculation periods for each Advance in accordance with FFB policies and procedures, whereby the interest rate calculation method and interest rate period may be reset periodically for any particular Advance; provided, that each Advance shall have only one Advance Interest Rate at any given time. The Borrower may request multiple Advances on the same Advance request date, each Advance with a separate interest rate calculation period. Any such interest rate resets shall not be considered amounts repaid and reborrowed for purposes of Section 3 (FFB Credit Facility) of this Term Sheet. All overdue amounts on the Guaranteed Loan will accrue interest at a late charge rate (the Late Charge Rate) equal to one and one-half times the rate to be determined by the Secretary of the Treasury taking into consideration the prevailing market yield on the remaining maturity of the most recently auctioned 13-week United States Treasury bills. The initial Late Charge Rate shall be in effect until the earlier to occur of either (A) the date on which payment of the overdue amount and the amount of the accrued late charge is made, or (B) the first Principal Payment Date to occur after the scheduled date of payment for such overdue amount. In the event that the overdue amount and the amount of the accrued late charge are not paid on or before such Principal Payment Date, then the amount payable shall be the sum of the overdue amount and the amount of the accrued late charge, plus a late charge on such sum accruing at a new Late Charge Rate to be then determined in accordance with the preceding sentence. For so long as any overdue amount remains unpaid, the Late Charge Rate shall again be redetermined on each Principal Payment Date, and shall be applied to the overdue amount and all amounts of the accrued late charge to the date on which payment of the overdue amount and all amounts of the accrued late charge is made. 11. Interest Payments Interest will accrue from the first Advance and be payable in cash in arrears on each date interest is due under the FFB Promissory Note (each such payment date, an Interest Payment Date). Interest on each Advance shall be computed on the basis of (a) actual days elapsed from (but not including) the date on which the respective Advance is made (for the first Interest
Payment Date for the respective Advance) or the last Interest Payment Date (for all other payments of interest due under the FFB Promissory Note for the respective Advance), to (and including) the next Interest Payment Date, and (b) a year of 365 days. 12. DOE Fees The Borrower has paid or will pay the following fees to DOE (collectively, the DOE Fees): Application Fee: An application fee of $800,000 (which DOE acknowledges that it has received in two payments, the first on August 6, 2008 in the amount of $200,000 and the second on December 23, 2008 in the amount of $600,000); DOE Loan Facility Fee: A facility fee equal to 0.5% of the Guaranteed Loan Amount, 20% of which is payable upon the execution of this Term Sheet and 80% of which is payable not later than the execution of the Loan Guarantee Agreement (the Financial Closing Date). DOE Maintenance Fee: A maintenance fee payable to DOE for DOEs administrative expenses in servicing and monitoring the Project and the Guaranteed Loan during the construction, startup, commissioning and operation of the Project in the amount of $200,000 for the first year, subject to escalation each year as determined in the following sentence, until completion of the second refueling outage for the Project, at which time the maintenance fee shall be reset at $100,000, subject to escalation each year as determined in the following sentence for each remaining year over the scheduled term of the Guaranteed Loan. The maintenance fee shall be payable each year in advance, commencing on the Financial Closing Date. Escalation of the maintenance fee shall be in an amount equal to the percentage determined by the sum of (i) the percentage (rounded to the nearest one-tenth of one percent) by which the ECI for the Base Quarter of the year before the preceding calendar year exceeds the ECI for the Base Quarter of the second year before the preceding calendar year (if at all), plus (ii) the amount of the comparability payment for federal government employees in the Washington Metropolitan Area (as defined by the United States Office of Management and Budget) recommended annually by the Presidents Pay Agent (if any). Base Quarter means the quarter ending September 30 in the given calendar year and ECI means the Employment Cost Index, as published by the Bureau of Labor Statistics for the relevant period.
DOE Modification Fee: A modification fee payable to DOE in the event that the Project experiences technical, financial, legal or other events which require DOE to incur time or expenses (including third-party expenses) beyond standard monitoring of the Definitive Agreements, reimbursing DOE in full for such amounts as DOE reasonably determines are its additional internal administrative costs, and related expenses of its independent consultants and outside legal counsel, to the extent that such third parties are not paid directly by the Borrower. 13. Credit Subsidy The credit subsidy cost for the DOE Guarantee is the cost of a loan guarantee, as set forth in section 502(5)(C) of the Federal Credit Reform Act of 1990 (the Credit Subsidy Cost). The final Credit Subsidy Cost amount shall be determined by DOE in its sole discretion, taking into consideration, among other things, the spread to Treasury as applied by FFB, subject to review and approval by the Office of Management and Budget prior to the Financial Closing Date. The Definitive Agreements shall provide that upon the occurrence of any Mandatory Prepayment Event (as defined below) and the failure by the Borrower to remedy such event within a period of 90 days after receipt of notice from DOE or FFB, DOE or FFB may (1) terminate the commitment to make any further Advances to the Borrower and (2) deliver a notice (a Mandatory Prepayment Notice), in which case the Borrower shall be required to repay all Advances under a level principal amortization schedule over a period of five years from the date of receipt of the Mandatory Prepayment Notice. Each of the following events shall be a Mandatory Prepayment Event: (a) revocation of the COL or any other permit, license, approval or consent necessary for the construction or completion or operation of the Project (following the exhaustion of all regulatory and judicial rights of appeal by the Operator and the Borrower); issuance by the Georgia Public Service Commission (the Georgia PSC) of an order directing the Borrower to cancel the Project, or authorizing the Borrower to cancel the Project and the Borrower electing to cancel the Project;
14.
Mandatory Prepayments
(b)
(c)
the Georgia PSC does not permit the Borrower to recover any amount of the GPC Base Project Costs or GPC Overrun Project Costs through electricity rates regulated by the Georgia PSC, or the Georgia PSC ceases to regulate the conduct of the Borrowers business, unless (i) the Borrowers inability to recover such amounts through such electricity rates could not reasonably be expected to have a material adverse effect on the ability of the Borrower to (x) repay the Advances when due and (y) complete the Project, and (ii) the Borrower is continuing to fund the GPC Base Project Costs or GPC Overrun Project Costs notwithstanding such inability to recover such amounts through such electricity rates; and an event of total loss with respect to the Project occurs and the Borrower fails to rebuild the Project.
(d)
Mandatory prepayments may include a premium or a discount in accordance with FFB requirements. 15. Voluntary Prepayments The Borrower may prepay all of the principal amount of any Advance of the Guaranteed Loan upon prior written notice to FFB, DOE and the Loan Servicer and subject to the following conditions: (i) minimum amount requirements, (ii) payment of (x) all accrued and unpaid interest on such principal amount, and (y) any fees and expenses then payable, including any prepayment premiums or other amounts as may be required under the Definitive Agreements, and (iii) such other conditions as may be required by FFB. Upon execution of this Term Sheet by DOE and the Borrower, the parties agree to work to negotiate and execute mutually acceptable Definitive Agreements for the Guaranteed Loan and DOE Guarantee. The Definitive Agreements shall set forth the final terms for the Guaranteed Loan and the DOE Guarantee. The Definitive Agreements shall include without limitation (i) a Common Terms Agreement, a Loan Guarantee Agreement, an FFB Note Purchase Agreement and an FFB Promissory Note, (ii) the security documents, such as the Collateral Agency Agreement and all security agreements necessary to create and perfect security interests in the Collateral (as set forth in Section 24 (Collateral) of this Term Sheet), and (iii) other definitive agreements reasonably required by the DOE or FFB as a result of matters specifically identified in their due diligence investigation.
16.
Definitive Agreements
17.
Conditions Precedent to Initial Advance
The funding of the initial Advance will be subject to the satisfaction of the following conditions, each of which must be to the satisfaction of DOE or FFB, as applicable, in their respective sole discretion: With respect to the Borrower: (a) DOE shall have completed its due diligence review with respect to the Borrower, and all matters related thereto; execution of the Definitive Agreements; all representations and warranties shall be true and correct in all material respects; delivery of all necessary consents and waivers from the Borrowers current creditors; delivery of organizational documents for the Borrower; delivery of secretarys certificates, resolutions and good standing certificates for the Borrower; delivery of legal opinions, bring down certificates, reliance letters and similar documents as DOE or FFB may request; delivery of any financial statements then required to be delivered; not later than 30 days prior to the Financial Closing Date, delivery of an updated credit rating from a nationally recognized rating agency reflecting the Conditional Commitment without the DOE Guarantee; no event or condition shall have occurred since the date of the most recent financial statements provided to DOE prior to the Financial Closing Date (the Closing Date Financial Statements) that has had or could reasonably be expected to have a material adverse effect on the business, properties or financial condition of the Borrower; payment in full of the Credit Subsidy Cost in accordance with Program Requirements; and
(b) (c) (d) (e) (f) (g)
(h) (i)
(j)
(k)
(l)
payment of all DOE Fees due as of the Financial Closing Date.
With respect to the Project: (a) DOE shall have completed its due diligence review of the Project, and all matters related thereto, including that no material issues exist with respect to the Project or the Operator under the laws of the United States or any subdivision thereof; delivery of organizational documents for the Operator; all representations and warranties shall be true and correct in all material respects; the Director of the Office and Management and Budget has certified in advance in writing that the Loan Guarantee and the Project comply with the provisions of the Omnibus Appropriations Act, 2009, P.L. No. 111-8, Division C, Title III, as amended by Section 408 of the Supplemental Appropriations Act, 2009, P.L. No. 111-32; acquisition of all real estate rights and other property interests required for the development of the Project; evidence that the Owners have rights to all intellectual property, technical data and software necessary for the design, construction, completion, equipping, operation and maintenance of the Project; delivery of environmental site assessments and associated reliance letters and satisfaction of any additional environmental requirements in accordance with DOE policy set forth in the Definitive Agreements; the Operator shall have received the COL and the relevant parties shall have received all environmental, regulatory and other permits and approvals then required for the current stage of development of the Project, including the final environmental impact statement, the final safety evaluation report and the publication of a record of decision by DOE; delivery of a report and associated closing certificate
(b) (c) (d)
(e) (f)
(g)
(h)
(i)
from the DOEs Engineer; (j) execution of the Project Documents, which shall include (1) 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 Agency Agreement), among the Owners, (2) that certain Plant Alvin W. Vogtle Nuclear Units Amended and Restated Operating Agreement dated as of April 21, 2006, as amended (the Operating Agreement), among the Owners, (3) that certain Plant Alvin W. Vogtle Additional Units Ownership Participation Agreement dated as of April 21, 2006, as amended (the Development Agreement), among the Owners, (4) that certain Second Amended and Restated Nuclear Managing Board Agreement dated as of April 21, 2006 (the Nuclear Managing Board Agreement), among the Owners, (5) the ownership agreement and operating agreement with the Operator with respect to the Project, (6) the Engineering, Procurement and Construction Agreement between the Borrower, acting for itself and as agent for the other Owners, and a consortium consisting of Westinghouse Electric Company LLC and Stone & Webster, Inc. (the EPC Agreement), (7) all agreements for the use, operation or maintenance of the common facilities, and (8) any other material project agreements identified in DOEs due diligence investigation of the Project (the Definitive Agreements, together with the Project Documents, collectively, the Transaction Documents); receipt of the Advance Schedule, the Financial Plan, the Base Case Projections, the Construction Plan, and the Construction Budget; not less than 30 days prior to the Financial Closing Date, updated financing information if the terms and conditions of the financing arrangements changed between the date of execution of this Term Sheet and the Financial Closing Date, and the Parties shall amend the Definitive Agreements to reflect the revised terms and conditions in the event such revisions occur; delivery of a certification from the Borrower, certificates from insurers, and such other evidence as
(k)
(l)
(m)
DOE may request (i) that the Borrower has in effect insurance coverage for the Project that is in accordance with prudent nuclear industry practices, and (ii) that the applicable insurance policies are in full force and effect without default; (n) evidence of the filing of all documents and taking of all actions required to ensure perfection of all requisite security interests in the Collateral; and evidence that notice to proceed has been issued under the EPC Agreement.
(o) 18. Conditions Precedent to Each Advance
Each Advance of the Guaranteed Loan and DOE Guarantee, including the initial Advance, will be subject to the satisfaction of the following conditions, each of which must be to the satisfaction of DOE or FFB, as applicable, in their respective sole discretion: With respect to the Borrower: (a) all representations and warranties (other than representations and warranties of the Borrower in Section 19(p) (Representations and Warranties) and of the Project in Section 19(a) (Representations and Warranties) of this Term Sheet) shall be true and correct in all material respects, and no default shall have occurred and be continuing; provided, however, that if the relevant default is one of the defaults referenced in the proviso at the end of Section 22 (Events of Default) of this Term Sheet, and subsection (i) or (ii) of such proviso shall apply to such default, such default shall be deemed not to be continuing for purposes of this Section 18(a); the Borrower is in compliance in all material respects with its obligations under the Definitive Agreements; receipt of an Advance request from the Borrower; payment of all DOE Fees and other fees and expenses payable to DOE, its counsel and its advisors that are then due; receipt of officers certificate of the Borrower with respect to the satisfaction of all of the conditions precedent identified in this Section 18 (Conditions
(b) (c) (d)
(e)
Precedent to Each Advance) of this Term Sheet; (f) the Borrower shall have funded an amount equal to 100% of the Ineligible Project Costs then required for the timely completion of the Project; and receipt of written certification from the Borrower that the Borrower has complied with the reporting requirements of the Program Requirements.
(g)
With respect to the Project: (a) all representations and warranties shall be true and correct in all material respects, and no default shall have occurred and be continuing; provided, however, that if the relevant default is one of the defaults referenced in the proviso at the end of Section 22 (Events of Default) of this Term Sheet, and subsection (i) or (ii) of such proviso shall apply to such default, such default shall be deemed not to be continuing for purposes of this Section 18(a) evidence that the Advances to be made will pay for Eligible Project Costs that have been incurred, together with sufficient description thereof, as certified by DOEs Engineer; certification by the Borrower that the proceeds of all prior Advances have been applied for Eligible Project Costs; and copies of all governmental approvals, permits or consents not previously delivered, as time to time required for the construction or operation of the Project or as otherwise required under the Transaction Documents.
(b)
(c)
(d)
19.
Representations and Warranties
The Definitive Agreements will contain representations and warranties (with customary qualifications and exceptions, including materiality) with respect to the following matters: With respect to the Borrower: (a) (b) due organization and valid existence; good standing;
(c) (d)
corporate power and authority; accuracy of disclosures in reports filed with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (Exchange Act); solvency; legality, validity and enforceability of the Transaction Documents, subject to general enforceability exceptions; no conflicts with the Borrowers charter or bylaws; no conflicts with contracts or applicable laws, except such conflicts as could not reasonably be expected to have a material adverse effect on the Borrower; compliance in all respects with (i) all requirements of Title XVII and the Regulations, (ii) all other statutory and regulatory requirements of general applicability to Title XVII applicants and (iii) all other governmental requirements of general applicability to Title XVII applicants set forth in the Definitive Agreements; compliance in all material respects with (i) all other requirements of law and (ii) all other Program Requirements (other than subsection (i) of the definition of Program Requirements) (it being understood that the Borrower shall be deemed in compliance with law for this purpose if (x) with respect to any assertion by any governmental agency (other than DOE) of non-compliance, the Borrower is contesting in good faith by appropriate legal proceedings such assertion that the Borrower is not in compliance, has a reasonable prospect of success on the merits of the alleged non-compliance, and has made provision for prudent and appropriate reserves in respect of (A) any damages reasonably likely to result from such non-compliance, and/or (B) compliance with any and all orders reasonably likely to be issued by any person adjudicating such non-compliance, and/or (C) compliance with any settlement agreement reasonably likely to be entered into prior to the final adjudication of such non-compliance, and (y) with respect to any violation of law being cured pursuant to
(e) (f)
(g) (h)
(i)
(j)
a Remediation Plan (as defined in Section 22 (Events of Default) of this Term Sheet), the Borrower is diligently working to cure such non-compliance according to such Remediation Plan); (k) creditor consents and government permits and approvals, except for failure to obtain such consents or permits as could not reasonably be expected to have a material adverse effect on the Borrower; the financial statements included in the Borrowers most recent Exchange Act filings present fairly, in all material respects, the financial position, results of operations and cash flows of the Borrower as of and from the dates indicated, and such financial statements have been prepared in conformity with U.S. GAAP; Employee Retirement Income Security Act of 1974, as amended (ERISA), matters; no default under the Definitive Agreements has occurred and is continuing; no corrupt or prohibited practices by the Borrower or the Operator; no event having a material adverse effect on the business, properties or financial condition of the Borrower since the Closing Date Financial Statements; not required to register as an investment company under the Investment Company Act of 1940, as amended; based on conditions existing as of the date of such representation, the Borrower reasonably expects that total funding available to the Borrower will be sufficient to fund (i) the GPC Base Project Costs and (ii) the GPC Overrun Project Costs that are reasonably expected to be incurred; no violation of Foreign Asset Control Regulations; and the Guaranteed Loan will not finance, directly or indirectly, tax-exempt debt obligations.
(l)
(m) (n) (o) (p)
(q)
(r)
(s) (t)
With respect to the Project:
(a)
no judgments or orders relating to the Project that could reasonably be expected to have a material adverse effect on the Project; compliance in all respects with (i) all requirements of Title XVII and the Regulations, (ii) all other statutory and regulatory requirements of general applicability to Title XVII applicants and (iii) all other governmental requirements of general applicability to Title XVII applicants set forth in the Definitive Agreements; compliance in all material respects with (i) all other requirements of law and (ii) all other Program Requirements (other than subsection (i) of the definition of Program Requirements) (it being understood that the Borrower shall be deemed in compliance with law for this purpose if (x) with respect to any assertion by any governmental agency (other than DOE) of non-compliance, the Borrower is contesting in good faith by appropriate legal proceedings such assertion that the Borrower is not in compliance, has a reasonable prospect of success on the merits of the alleged non-compliance, and made provision for prudent and appropriate reserves in respect of (A) any damages reasonably likely to result from such non-compliance, and/or (B) compliance with any and all orders reasonably likely to be issued by any person adjudicating such non-compliance, and/or (C) compliance with any settlement agreement reasonably likely to be entered into prior to the final adjudication of such non-compliance, and (y) with respect to any violation of law being cured pursuant to a Remediation Plan (as defined in Section 22 (Events of Default) of this Term Sheet), the Borrower is diligently working to cure such non-compliance according to such Remediation Plan); no funds, personnel or property (tangible or intangible) of any Federal agency, instrumentality, personnel or affiliated entity are expected to be used (directly or indirectly) through acquisitions, contracts, demonstrations, exchanges, grants, incentives, leases, procurements, sales, other transaction authority, or
(b)
(c)
(d)
other arrangements, to support the Project or to obtain goods or services from the Project 2 , except that the Project benefits from [__________]; 3 (e) (f) title to the Collateral; no liens against the Collateral (other than DOEs firstpriority perfected security interest and Permitted Liens (as defined in Section 24 (Collateral) of this Term Sheet)), unless such liens are subordinate to DOEs first-priority perfected security interest and subject to an intercreditor agreement agreed to by DOE (in accordance with Section 21(a) (Negative Covenants) of this Term Sheet); availability and adequacy of utility and technology rights and other services with respect to the Borrowers Undivided Interest; the Borrower has delivered to DOE a current and complete copy of the construction plan and budget; government permits and approvals; and legality, validity and enforceability against the Borrower of the Transaction Documents.
(g)
(h) (i) (j) 20. Affirmative Covenants
The Definitive Agreements shall contain the following affirmative covenants (with customary qualifications and exceptions, including materiality): With respect to the Borrower: (a) maintenance of corporate existence, subject to permitted mergers and sales of substantially all assets in accordance with the requirements as provided in Section 21 (Negative Covenants) of this Term Sheet;
This is a requirement pursuant to the Omnibus Appropriations Act, 2009, P.L. No. 111-8, Division C, Title III, as amended by Section 408 of the Supplemental Appropriations Act, 2009, P.L. No. 111-32. The Borrower to insert list of exemptions to the foregoing prohibition. Such exemptions are specified in the Omnibus Appropriations Act, 2009, P.L. No. 111-8, Division C, Title III, as amended by Section 408 of the Supplemental Appropriations Act, 2009, P.L. No. 111-32.
(b)
(i) compliance with the provisions of Title XVII and the Regulations, and (ii) compliance in all material respects with (x) all other requirements of law, (y) all other Program Requirements (other than subsection (i) of the definition of Program Requirements), and (z) all requirements of any material permits, licenses, approvals or consents relating or applicable to the Project; provision of default notices and notices of other material events and information (upon senior management of the Borrower obtaining knowledge of the default or other material event); maintenance of first priority security interests in the Collateral; provision of financial statements and other information as provided in Section 26 (Reporting Requirements) of this Term Sheet; and in the event the Borrower is no longer subject to the periodic reporting requirements of the Exchange Act, the Borrower shall maintain a nationally recognized accounting firm as the Borrowers auditors.
(c)
(d) (e)
(f)
With respect to the Project: (a) provision to DOE of construction budgets, monthly construction progress reports for the Project, periodic operating budgets and progress reports for the Project and disclosure of cost overruns consistent with the Borrowers requirement to provide such reports to the other Owners pursuant to the Project ownership agreements; (i) compliance with the provisions of Title XVII and the Regulations, and (ii) compliance in all material respects with (x) all other requirements of law, (y) all other Program Requirements (other than subsection (i) of the definition of Program Requirements), and (z) all requirements of any material permits, licenses, approvals or consents relating or applicable to the Project; construction of the Project substantially in accordance with the Project Plans as directed or permitted by the
(b)
(c)
NRC; and (d) provision to DOE and its representatives and advisors, including DOEs Engineer, of access to the Project site and ancillary facilities at all reasonable times in order to monitor the performance of the Project.
21.
Negative Covenants
The Definitive Agreements shall contain the following negative covenants (with customary qualifications and exceptions, including materiality): (a) the Borrower will not incur any liens against the Collateral (other than DOEs first-priority perfected security interest and Permitted Liens), unless such liens are subordinate to DOEs first-priority perfected security interest and subject to an intercreditor agreement agreed to by DOE (the Definitive Agreements will provide terms for such an intercreditor agreement, it being understood that if any additional or different terms are agreed to by the Borrower, the intercreditor agreement will require DOEs prior written consent); there shall be no restrictions on the ability of the Borrower to incur liens on any other property of the Borrower; the Borrower will not cease to maintain insurance coverage for the Project that is in accordance with prudent nuclear industry practices; no transactions with affiliates that are not conducted on an arms length basis (provided, that at cost services may be provided or received from affiliates in accordance with FERC requirements); and no material modifications of the Project Plans without the approval of the NRC and other appropriate regulatory authorities, if such approval is required.
(b)
(c)
(d)
22.
Events of Default
The Definitive Agreements shall contain the following events of default: With respect to the Borrower: (a) failure to make payments on any installment of principal and interest on any Advances when due (after giving effect to any grace period provided for in the FFB Note);
(b) (c)
failure by the Borrower to comply with the provisions of Title XVII; failure by the Borrower to comply with the provisions of the Regulations, unless such breach is capable of being cured, in which case failure to cure such breach within a period of 90 days, so long as the Borrower is diligently pursuing such cure; failure by the Borrower to comply in all material respects with (i) all other requirements of law, (ii) all other Program Requirements (other than subsection (i) of the definition of Program Requirements), and (iii) all requirements of any material permits, licenses, approvals or consents relating or applicable to the Project and the continuance of any such breach for a period of 90 days; (i) prior to the commercial operations date for both Units of the Project, default under any other indebtedness of the Borrower in excess of $100,000,000 (other than the Guaranteed Loan) providing a right to the acceleration of such indebtedness by the holders thereof, and (ii) after the commercial operations date for both Units of the Project, default under any other indebtedness of the Borrower in excess of $500,000,000 (other than the Guaranteed Loan) providing a right to the acceleration of such indebtedness by the holders thereof, and in each case failure to cure such default within a period of 10 business days following such default and right to accelerate; any change in ownership or control of the Borrower or the Operator, or any change of Operator, not approved by the NRC; no merger, consolidation, dissolution, transfer or lease of substantially all the Borrowers assets or other similar actions, unless the successor company shall expressly assume the obligations of the Borrower under the Definitive Agreements; material breach of representations and warranties under any Definitive Agreement (with respect to the Borrower or the Project), unless such breach is capable of being cured, in which case failure to cure such
(d)
(e)
(f)
(g)
(h)
breach within a period of 90 days, following the earlier of (i) delivery by DOE of notice of such breach, or (ii) the date that senior management of the Borrower obtains or should have obtained knowledge of such breach; (i) (i) breach of affirmative covenants under any Definitive Agreement (with respect to the Borrower or the Project) or the negative covenant of the Borrower in Section 21(c) (Negative Covenants) and the continuance of any such breach for a period of 90 days, following the earlier of (A) delivery by DOE of notice of such breach, or (B) the date that senior management of the Borrower obtains or should have obtained knowledge of such breach, and (ii) breach of negative covenants under any Definitive Agreement (with respect to the Borrower or the Project) (other than the negative covenant of the Borrower in Section 21(c) (Negative Covenants)); bankruptcy, Borrower; insolvency and dissolution of the
(j) (k)
(i) prior to the commercial operations date for both Units of the Project, final, non-appealable judgments in excess of $100,000,000 against the Borrower, and (ii) after the commercial operations date for both Units of the Project, final, non-appealable judgments in excess of $500,000,000 against the Borrower, and in each case such judgments shall go unsatisfied, undischarged or unstayed for a period of 10 business days; (i) prior to the commercial operations date for both Units of the Project, the Borrower shall fail to pay when due amounts in excess of $100,000,000 for which the Borrower is liable under ERISA, or certain events of termination with respect to any ERISA plan of the Borrower with unfunded liabilities in excess of $100,000,000, and (ii) after the commercial operations date for both Units of the Project, the Borrower shall fail to pay when due amounts in excess of $500,000,000 for which the Borrower is liable under ERISA, or certain events of termination with respect to any ERISA plan of the Borrower with unfunded liabilities in excess of $500,000,000, and in each case such failure to pay shall continue for a period of 10
(l)
business days; and (m) invalidity or unenforceability against the Borrower of any material provision of any Definitive Agreement, other than the DOE Guarantee, unless such invalidity or unenforceability is remedied within 30 days.
With respect to the Project: (a) failure by the Borrower to use the proceeds of the Guaranteed Loan for Eligible Project Costs and the continuance of any such breach for a period of 90 days; failure by the Operator or the Project to comply with the provisions of Title XVII; failure by the Operator or the Project to comply with the provisions of the Regulations, unless such breach is capable of being cured, in which case failure to cure such breach within a period of 45 days, so long as the Borrower is diligently pursuing such cure; failure by the Operator or the Project to comply in all material respects with (i) all other requirements of law, (ii) all other Program Requirements (other than subsection (i) of the definition of Program Requirements), and (iii) all requirements of any material permits, licenses, approvals or consents relating or applicable to the Project and the continuance of any such breach for a period of 90 days; failure by the Borrower, the Operator or the Project to comply in all material respects with environmental and safety matters with respect to the Project, including without limitation with respect to compliance with the Natural Environmental Policy Act of 1969 (NEPA) and all other Environmental Laws applicable to the Project and the continuance of any such breach for a period of 90 days; transfer of the Collateral and/or all or substantially all of the assets comprising the Project without DOEs consent; abandonment of the Project (other than as provided in Section 14(b) (Mandatory Prepayments) of this Term
(b) (c)
(d)
(e)
(f)
(g)
Sheet) and the failure to cure such breach within a period of 90 days; and (h) failure by the Borrower to comply with debarment regulations and the failure to cure such breach within a period of 90 days;
provided, that for the Borrower event of default in subsections (d) and (i) (but for purposes of subsection (i), solely with respect to covenants of the Borrower and the Project in Sections 20(b)(ii) and 20(b)(ii) (Affirmative Covenants), respectively, of this Term Sheet) and the Project events of default in subsections (d) and (e), the following shall apply: (i) the Borrower shall not be in default at any time it is contesting in good faith by appropriate legal proceedings any assertion by any governmental agency (other than DOE) that the Borrower is not in compliance with law, has a reasonable prospect of success on the merits of the alleged noncompliance, and has made provision for prudent and appropriate reserves in respect of (A) any damages reasonably likely to result from such non-compliance, and/or (B) compliance with any and all orders reasonably likely to be issued by any person adjudicating such non-compliance, and/or (C) compliance with any settlement agreement reasonably likely to be entered into prior to the final adjudication of such non-compliance, and (ii) in the case that the default cannot reasonably be cured within a 90-day period, the Borrower will not be in default if the Borrower is diligently working to cure such default according to an applicable Remediation Plan. For purposes of this Term Sheet a Remediation Plan means a plan of correction with a timetable for curing such default that has been approved by a court of competent jurisdiction, or the lead regulatory authority with enforcement responsibility with respect to such matter of law, or DOE, as the case may be. 23. DOE Control; Remedies Assignment of Rights: As of the Financial Closing Date, FFB will delegate its rights, powers, privileges and remedies under the Definitive Agreements to DOE. The Borrower agrees to take post-closing direction solely from DOE. Subrogation: On and as of any business day that the DOE pays any amount under the DOE Guarantee, DOE shall become subrogated to, and FFB shall be deemed to have assigned to DOE, without recourse and without need of any further action by any party, all of FFBs right, title and interest in and to (i) the principal of and interest on such guaranteed
obligation and (ii) the Definitive Agreements to the extent of FFBs interest in such agreements, including, without limitation, any fees, costs, expenses and other amounts (such amounts, collectively, the Additional Amounts); provided, however, if acceleration of such guaranteed obligation has occurred, then such subrogation and assignment shall include the entire guaranteed amount of the guaranteed obligations, plus the Additional Amounts, notwithstanding that the Secretary shall be obligated to make payment hereunder only in installments on each subsequent Principal Payment Date and only as to the guaranteed amounts. DOEs subrogation rights shall be in addition to the rights assigned to it by FFB, and shall not be the exclusive source of rights, powers, privileges and remedies against the Borrower. Remedies: Upon the occurrence of an event of default, the Definitive Agreements will include usual and customary remedies as well as such additional subrogation or other rights as may be required under the Program Requirements to allow DOE to complete, maintain, operate, lease or otherwise dispose of the Project or any Collateral or otherwise protect the interests of the United States or the public interest. 24. Collateral The Borrowers obligations under the Guaranteed Loan and the DOE Guarantee will be secured by (i) a first-priority perfected security interest in the Borrowers Undivided Interest in the Project, including all ownership interests of the Borrower in the Project and (ii) a collateral assignment of the Borrowers interest in the Project Documents (collectively, the Collateral), subject to limitations for permitted liens to be agreed (collectively, Permitted Liens). The security interests in the Collateral will be granted in favor of the Collateral Agent or other agents designated by DOE. The Guaranteed Loan will not be subordinate to any loan or other debt obligation. DOE will consider, subject to due diligence with respect to the impact on DOEs rights and remedies and impact on the value of the Collateral, (i) structuring the Permitted Liens to be generally consistent with the permitted liens authorized in modern utility first mortgage bond indentures, in particular the First Mortgage Indenture, dated August 16, 2006, by and between West Penn Power Company and Union Bank of California, N.A. (the Indenture), and (ii) excluding from the Collateral certain property generally excluded from the collateral in the Indenture, to permit certain securitizations by
the Borrower of specific charges collected from its customers for certain specific purposes; provided, that notwithstanding the foregoing agreement of DOE to consider such structure, Permitted Liens and excluded property will only be as agreed and set forth in the Definitive Agreements. DOE will consider, subject to due diligence with respect to the impact on DOEs rights and remedies and consultation with DOEs Engineer, permitting the Borrower to cause the Collateral Agent to release certain property from DOEs security interests, subject to delivery of a certificate from an engineer acceptable to DOE that (i) release of such property will not materially impair the value of the Collateral that will remain subject to DOEs security interests for its intended purpose and (ii) such property is not necessary for the prudent operation or maintenance of the Project. 25. Expenses The Borrower will bear all of the following amounts from time to time due under or in connection with the Definitive Agreements: (i) all recordation and other costs, fees and charges in connection with the execution, delivery, filing, registration, or performance of the Transaction Documents or the perfection of the security interests in the Collateral, (ii) all fees, charges, and expenses of any independent consultants, legal counsel, accountants, and other advisors to DOE and (iii) all other fees, charges, expenses and other amounts from time to time due under or in connection with the Definitive Agreements. The Borrower shall provide FFB, DOE and the Loan Servicer with the following reports: (a) monthly construction reports consistent with the Borrowers requirement to provide such reports to (i) the other Owners pursuant to the Project ownership agreements, (ii) the Georgia PSC and (iii) the NRC; quarterly financial statements of the Borrower within 50 days after the end of each fiscal quarter, with such financial statements to be prepared in accordance with U.S. GAAP, subject to changes resulting from audit and normal year-end adjustments; annual financial statements of the Borrower on or prior to 105 days after end of each fiscal year, with such financial statements to be prepared in accordance with U.S. GAAP (except for changes with which the
26.
Reporting Requirements
(b)
(c)
independent auditor shall concur); and (d) other necessary financial information of the Borrower as reasonably requested by DOE, FFB or the Loan Servicer.
27.
Reimbursement Agreement
If the Borrower defaults in any payment due to FFB under the Guaranteed Loan or under any other Definitive Agreement, and as a result of such payment default by the Borrower, DOE becomes obligated to make any payments to FFB pursuant to the DOE Guarantee, the Borrower shall become immediately obligated to reimburse DOE in an amount equal to the sum of (i) all DOE Guarantee payments paid by DOE to FFB, (ii) all costs or expenses incurred by DOE in connection therewith, whether by payment to FFB or otherwise, and (iii) interest on the DOE Guarantee payments from the date such payment was made or incurred by DOE under the DOE Guarantee until payment in full thereof by the Borrower to DOE, at the applicable rate of interest provided in the Definitive Agreements. Such Borrower Reimbursement Obligations are absolute, irrevocable and unconditional. Each Party waives any rights it may have to a trial by jury in respect of any litigation arising out of the Definitive Agreements. The Borrower (a) submits to the non-exclusive general jurisdiction of (i) the courts of the United States of America located in the District of Columbia and (ii) any other federal court of competent jurisdiction in any other jurisdiction where it or any of its property may be found, and (iii) appellate courts from any of the foregoing, and (b) waives any right to claim inconvenience of the forum. The choice of law provision in the Definitive Agreements and any other Transaction Document to which DOE is a party (other than (i) documents to which FFB is a party, as to which the governing law shall be in the form required by FFB, and (ii) the security documents, as to which the governing law shall be the appropriate local law) shall be as follows: THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE FEDERAL LAW OF THE UNITED STATES OF AMERICA. TO THE EXTENT THAT FEDERAL LAW DOES NOT SPECIFY THE APPROPRIATE RULE OF DECISION FOR A PARTICULAR MATTER AT ISSUE, IT IS THE INTENTION AND AGREEMENT OF THE PARTIES HERETO THAT THE LAW OF THE STATE OF
28.
Waiver of Jury Trial; Consent to Jurisdiction; Governing Law
NEW YORK SHALL BE ADOPTED AS THE GOVERNING FEDERAL RULE OF DECISION. 29. Freedom of Information Act (FOIA) The parties acknowledge and agree that all correspondence, books, documents, papers and records relating to the structuring, negotiation and execution of this Term Sheet, the Definitive Agreements, and all supporting documentation, financial statements, audit reports of independent accounting firms, permits and regulatory approvals furnished or otherwise made available to DOE, will be handled in accordance with all applicable federal laws, rules, or regulations, including but not limited to the Trade Secrets Act, 18 U.S.C. 1905, and the Freedom of Information Act (FOIA), 5 U.S.C. 552, and DOEs implementing regulations at 10 C.F.R. 1004.
The closing of any financial transaction relating to the Guaranteed Loan is subject to Definitive Agreements acceptable to the Borrower, DOE and FFB.
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NY3 - 498303 02 Treasury Consult 141
Atkins, Preston Jr
From: Sent: To: Cc: Subject: Attachments: Whitcombe, Nicholas [Nicholas.Whitcombe@hq.doe.gov] Monday, November 16, 2009 11:26 AM Atkins, Preston Jr Farrell, Paula Georgia Power Corporation DOE Loan Guarantee - Suppliment GPC_CreditPaper_Attchmts_09-11-13_Combined.pdf
Atkins, Preston Jr
From: Sent: To: Subject: Attachments: Whitcombe, Nicholas [Nicholas.Whitcombe@hq.doe.gov] Friday, November 20, 2009 11:49 AM Atkins, Preston Jr Georgia Power Final Term Sheet GPC Final Term Sheet 11_19.DOC; GPC Term Sheet BLACKLINE (2) Comparison to 11.13.11 Term Sheet Submitted with Credit Committee Memo.doc
Preston, PleaseseetheattachedfinaltermsheetnegotiatedwithGeorgiaPowerCompanymarkedagainst termsprovidedtoyouon11.13.09. Regards,Nick NicholasP.Whitcombe DepartmentofEnergy 202.287.5406
Atkins, Preston Jr
From: Sent: To: Cc: Subject: Attachments: Importance: Whitcombe, Nicholas [Nicholas.Whitcombe@hq.doe.gov] Thursday, December 10, 2009 2:25 PM Atkins, Preston Jr; Farrell, Paula; Struemph, Nathan; Buenvenida, Pearl Burner, Gary; Frantz, David MEAG Term Sheet #282632 v15 - DOE_Vogtle_ MEAG Term Sheet-#282632 v16 - DOE_Vogtle_ MEAG Term Sheet.pdf; DC1-282632-v16-DOE Vogtle MEAG Term Sheet.DOC High
All, Pleaseseeattached.Weareinthefinalstagesofthenegotiationanddraftingandam providingthistoyouaccordingly. NotethattheindividualSPVborrowersareaddressedinthecontextofonetermsheet. Nick. OriginalMessage From:Alcala,Marissa[mailto:malcala@chadbourne.com] Sent:Thursday,December10,20091:00PM To:Drefke,Kyle;jfuller@meagpower.org;Lyon,Carl;pdegnan@alston.com;MichaelMace;Neil T.Wolk Cc:Fitzgerald,Peter;Cestari,Kenneth;Whitcombe,Nicholas;pameer@greengatellc.com; tdunbar@greengatellc.com;Sigrist,Mark Subject:DOE/MEAGelectronicversionofTermSheet Asrequestedonourcall,attachedisawordversionoftheTermSheetfromyesterday afternoon,aswellasanelectroniccopyofthechangedpagesdistributedinpapercopyat ourmeeting.Thisdoesnotreflectthefewcleanupchangesdiscussedonthecallwejust had. BestRegards, marissa MarissaLeighAlcala Chadbourne&ParkeLLP 1200NewHampshireAve,NW Washington,DC20036 Phone2029745609 Fax2029746709
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Atkins, Preston Jr
From: Sent: To: Subject: Attachments: Whitcombe, Nicholas [Nicholas.Whitcombe@hq.doe.gov] Friday, December 11, 2009 4:44 PM Buenvenida, Pearl; Farrell, Paula; Atkins, Preston Jr; Struemph, Nathan Fw: DOE/MEAG - revised Final Term Sheet DOE-MEAG Term Sheet - changed pages in version 20.pdf; DC1-282632-v20-DOE Vogtle MEAG Term Sheet.DOC
Pleaseseetheattachedfinaltermsheet. OriginalMessage From:Sigrist,Mark<MSigrist@chadbourne.com> To:Alcala,Marissa<malcala@chadbourne.com>;Wolk,Neil<nwolk@orrick.com>;Fuller,Jim <jfuller@MEAGPOWER.ORG>;Drefke,Kyle<kdrefke@orrick.com>;Lyon,Carl<cflyon@orrick.com>; Degnan,Pete<pete.degnan@alston.com>;MichaelMace<MACEM@publicfm.com> Cc:Fitzgerald,Peter<PFitzgerald@chadbourne.com>;Cestari,Kenneth;Whitcombe,Nicholas; pameer@greengatellc.com<pameer@greengatellc.com>;tdunbar@greengatellc.com <tdunbar@greengatellc.com> Sent:FriDec1116:21:052009 Subject:DOE/MEAGrevisedFinalTermSheet DearAll, AttachedpleasefindarevisedversionoftheagreedfinalformoftheTermSheet,together withapdfshowingthepagesthathavechangedsincetheversionMarissacirculatedthis morning. Bestregards, Mark MarkSigrist Chadbourne&ParkeLLP 1200NewHampshireAveN.W.,Washington,DC20036tel2029745792|fax2029746992 msigrist@chadbourne.com|http://www.chadbourne.com<http://www.chadbourne.com/> vCard:http://www.chadbourne.com/vcard/msigrist.vcf Pleaseconsidertheenvironmentbeforeprintingthisemail.
Atkins, Preston Jr
From: Sent: To: Subject: Attachments: Whitcombe, Nicholas [Nicholas.Whitcombe@hq.doe.gov] Friday, December 11, 2009 4:49 PM Buenvenida, Pearl; Farrell, Paula; Atkins, Preston Jr; Struemph, Nathan Fw: DOE/Vogtle - blackline of revised MEAG Term Sheet against version 12 DC1-284892-v1-Blackline of MEAG Term Sheet - version 20 against version 12.DOC
ThisisblacklineversionofthetermsheetIsentearlierintheweekasPearlsuggested. OriginalMessage From:Sigrist,Mark<MSigrist@chadbourne.com> To:Whitcombe,Nicholas Cc:Alcala,Marissa<malcala@chadbourne.com>;Fitzgerald,Peter<PFitzgerald@chadbourne.com> Sent:FriDec1116:11:322009 Subject:DOE/VogtleblacklineofrevisedMEAGTermSheetagainstversion12 Nick, Peryourrequest,attachedpleasefindablacklineoftherevisedMEAGTermSheetagainst version12.ShortlyIwillbecirculatingtoallpartiestherevisedversionwitha blacklineagainsttheversionMarissacirculatedthismorning. Bestregards, Mark MarkSigrist Chadbourne&ParkeLLP 1200NewHampshireAveN.W.,Washington,DC20036tel2029745792|fax2029746992 msigrist@chadbourne.com|http://www.chadbourne.com<http://www.chadbourne.com/> vCard:http://www.chadbourne.com/vcard/msigrist.vcf Pleaseconsidertheenvironmentbeforeprintingthisemail.
Colyar, Kelly Carroll, Kevin; Saad, Fouad P.; Krauss, Lori; Lyberg, Sarah A.; Stein, Nora; Atkins, Preston Jr; b5 Vogtle b5 Friday, December 11, 2009 11:39:52 AM
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DOE is seeking consultation with OMB and Treasury prior to that so that the conditional commitments can move forward.
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Atkins, Preston Jr
From: Sent: To: Cc: Subject: Attachments: Importance: Whitcombe, Nicholas [Nicholas.Whitcombe@hq.doe.gov] Friday, December 11, 2009 1:15 AM Farrell, Paula; Struemph, Nathan; Buenvenida, Pearl; Atkins, Preston Jr Frantz, David MEAG Term Sheet for Vogtle DC1-282632-v19-DOE Vogtle MEAG Term Sheet.doc High
PleaseseetheattachedtermsheetwhichrepresentsthefinalnegotiationswithMEAG. Pleasecallshouldyouhaveanyquestions. Nick NicholasP.Whitcombe DepartmentofEnergy 202.287.5406
From: To: cc: Subject: Date:
Whitcombe, Nicholas Buenvenida, Pearl; Farrell, Paula; Struemph, Nathan; Atkins, Preston Jr; Frantz, David; RE: MEAG Term Sheet for Vogtle Friday, December 11, 2009 9:24:35 AM
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it is inevitable that there will be drafting changes (that dont change the nature of the credit), and you will get a final this morning including tracking.
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-----Original Message----From: Pearl.Buenvenida@do.treas.gov [mailto:Pearl.Buenvenida@do.treas.gov] Sent: Friday, December 11, 2009 8:22 AM To: Whitcombe, Nicholas; Paula.Farrell@do.treas.gov; Nathan.Struemph@do. treas.gov; Preston.Atkins@do.treas.gov Cc: Frantz, David Subject: Re: MEAG Term Sheet for Vogtle Nick, Is it possible for us to get a blacklined version of this so that we can see changes from the previous draft? ----- Original Message ----From: Whitcombe, Nicholas <Nicholas.Whitcombe@hq.doe.gov> To: Farrell, Paula; Struemph, Nathan; Buenvenida, Pearl; Atkins, Preston Jr Cc: Frantz, David <David.Frantz@hq.doe.gov> Sent: Fri Dec 11 01:15:23 2009 Subject: MEAG Term Sheet for Vogtle Please see the attached term sheet which represents the final negotiations with MEAG. Please call should you have any questions. Nick Nicholas P. Whitcombe Department of Energy 202.287.5406
Atkins, Preston Jr
From: Sent: To: Cc: Subject: Attachments: Whitcombe, Nicholas [Nicholas.Whitcombe@hq.doe.gov] Sunday, December 13, 2009 5:51 PM Atkins, Preston Jr Buenvenida, Pearl; Struemph, Nathan RE: Proposed meeting for DOE consultation with Treasury on Vogtle MEAG_CreditPaper_Prelim_09-12-12.doc
Thisisthecurrentdrafttobefinalizedtonight/tomarrowmorning. OriginalMessage From:Preston.Atkins@do.treas.gov[mailto:Preston.Atkins@do.treas.gov] Sent:Sunday,December13,20095:34PM To:Whitcombe,Nicholas Cc:Pearl.Buenvenida@do.treas.gov;Nathan.Struemph@do.treas.gov Subject:Re:ProposedmeetingforDOEconsultationwithTreasuryonVogtle IstheMEAGcreditpaperdoneyet?IfsothenpleasesendittoNathan,Pearlandmyselfas soonaspossible. Thanks, Preston OriginalMessage From:Whitcombe,Nicholas<Nicholas.Whitcombe@hq.doe.gov> To:Atkins,PrestonJr Cc:Farrell,Paula;Buenvenida,Pearl;Struemph,Nathan Sent:FriDec1119:43:342009 Subject:Re:ProposedmeetingforDOEconsultationwithTreasuryonVogtle 2pmisfine.KenCestariofourlegaldepartmenthopefullycanattend,andI'vecopiedhim. OriginalMessage From:Preston.Atkins@do.treas.gov<Preston.Atkins@do.treas.gov> To:Whitcombe,Nicholas Cc:Paula.Farrell@do.treas.gov<Paula.Farrell@do.treas.gov>;Pearl.Buenvenida@do.treas.gov <Pearl.Buenvenida@do.treas.gov>;Nathan.Struemph@do.treas.gov<Nathan.Struemph@do.treas.gov> Sent:FriDec1119:04:322009 Subject:ProposedmeetingforDOEconsultationwithTreasuryonVogtle Nick, WespokeabouthavingafacetofacemeetingonMondayat1:00. However,duetoscheduleconflicts,canwebeginat2:00attheFFBconferenceroomatthe NationalPressBuilding,52914thStreetN.W.,Suite228? CouldyoupleaseletmeknowwhofromDOEwillbecoming?WewillhaveatleastPearl, Nathanandmyself,eitherinpersonoronthephone,andothersfromTreasurymayalsojoin in. Thanks, Preston
Whitcombe, Nicholas Atkins, Preston Jr; FFB / DOE Consult Monday, December 14, 2009 4:21:59 PM
Preston, This email serves to confirm 2:30PM meeting on Tuesday at the National Press Building. Nick Nicholas P. Whitcombe Department of Energy 202.287.5406
Whitcombe, Nicholas Atkins, Preston Jr; Cestari, Kenneth;
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Monday, December 14, 2009 6:42:28 PM
Preston,
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Nick
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Nicholas P. Whitcombe Department of Energy 202.287.5406
Atkins, Preston Jr
From: Sent: To: Cc: Subject: Atkins, Preston Jr Monday, December 14, 2009 11:11 AM 'Whitcombe, Nicholas'; Buenvenida, Pearl; Struemph, Nathan; Farrell, Paula Cestari, Kenneth RE: Confirming 2PM meeting with You
Yes,we'restillonfor2:00.IstheMEAGcreditpaperdifferentfromwhatyousent yesterday.Isitfinal? Preston OriginalMessage From:Whitcombe,Nicholas[mailto:Nicholas.Whitcombe@hq.doe.gov] Sent:Monday,December14,200910:55AM To:Atkins,PrestonJr;Buenvenida,Pearl;Struemph,Nathan;Farrell,Paula Cc:Cestari,Kenneth Subject:Confirming2PMmeetingwithYou Importance:High Preston, Justcheckingthatwearestillonfor2PM. Fortheavoidanceofdoubt,IamsendingtoyouGeorgiaPower,OglethorpeandMEAGcredit applicationsandtermsheets. Nick NicholasP.Whitcombe DepartmentofEnergy 202.287.5406
Whitcombe, Nicholas Atkins, Preston Jr; Cestari, Kenneth; Farrell, Paula; Burner, Gary; Buenvenida, Pearl; Struemph, Nathan; Garnett III, Edward; RE: Follow up questions from today"s call Tuesday, December 15, 2009 10:17:05 PM
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-----Original Message----From: Preston.Atkins@do.treas.gov [mailto:Preston.Atkins@do.treas.gov] Sent: Tuesday, December 15, 2009 10:15 PM To: Whitcombe, Nicholas; Cestari, Kenneth Cc: Paula.Farrell@do.treas.gov; Gary.Burner@do.treas.gov; Pearl.Buenvenida@do.treas.gov; Nathan.Struemph@do.treas.gov; Edward.Garnett@do.treas.gov Subject: RE: Follow up questions from today's call Nick, Thanks for your several emails. With respect to question 1, I believe that your response, as I understand it, doesn't adequately address the question, and this is an important point to us.
(b) (5)
Thanks, Preston -----Original Message----From: Whitcombe, Nicholas [mailto:Nicholas.Whitcombe@hq.doe.gov] Sent: Tuesday, December 15, 2009 9:46 PM To: Atkins, Preston Jr; Cestari, Kenneth Cc: Farrell, Paula; Burner, Gary; Buenvenida, Pearl; Struemph, Nathan;
Garnett III, Edward Subject: RE: Follow up questions from today's call Preston, In response to each question: 1. MEAG has represented that is seeking a total of $2.5 billion in bond financings for the project in 1Q2010. Additional bond financings are subject to future market conditions should MEAG seek to finance the remaining project funding commitment without the loan guarantees. 2. Please see the attached bond resolutions that were adopted October 16, 2008 (sent in a series of emails to follow due to size), which will be amended to include the loan guarantees. Any bonds issued to finance the project will be subject to the provisions in our term sheet, including our security interest and the waterfall of payments. Please understand that as issuer of the guarantee, we will closely involved with the bond structuring such that all of our rights are preserved. To that end, it is anticipated that the bonds will be 40 years in tenor and will be mortgage style repayment, will prefund interest on the bonds during construction, will prefund applicable debt service reserve, O&M reserve, and other accounts. 3. Ken Cestari has passed the draft (b)(4) letter to you.
Atkins, Preston Jr
From: Sent: To: Cc: Subject: Attachments: Cestari, Kenneth [Kenneth.Cestari@hq.doe.gov] Tuesday, December 15, 2009 7:52 PM Atkins, Preston Jr Farrell, Paula; Burner, Gary; Buenvenida, Pearl; Struemph, Nathan; Garnett III, Edward; Whitcombe, Nicholas; Colyar, Kelly; Cestari, Kenneth RE: Follow up questions from today's call Title XVII MEAG (b)(4) Letter #160632408v3_US_EAST_ - meag letter.kcc..DOC
PrestonAttachedisdraft(b)(4) letterfromMEAG.The(b)(4) letterisin substantiallyfinalformandIwillsendyouablacklineifthereareanyfurtherrevisions. Ken KennethC.Cestari AttorneyAdvisor LoanGuaranteeProgram U.S.DepartmentofEnergy Room4B122 1000IndependenceAvenueSW Washington,DC20585 Tel202.287.5523 Mobile202.306.7889 Kenneth.Cestari@hq.doe.gov
Commercial and Financing Structure Each Borrower will sell its electricity supply to MEAG Power under a hell-orhigh water power purchase agreement (each, a Borrower PPA) pursuant to which MEAG Power will be obligated to make monthly payments in an amount equal to the debt service on the Guaranteed Loan and the Borrowers share of operating costs for the Vogtle Project. MEAG Power will resell such electricity to JEA and PowerSouth Energy Cooperative, each of which maintains ratings above investment grade, and 41 MEAG Power Participants (each, an Offtaker) pursuant to back-to-back hell-or-high water power purchase agreements (each, a MEAG Power PPA). Under each MEAG Power PPA, the applicable Offtaker will be obligated to make monthly payments in an amount equal to the corresponding payment from MEAG Power to the Borrower pursuant to the applicable Borrower PPA plus debt service on the applicable MEAG Equity Bonds. The MEAG Power Participants obligations under the MEAG Power PPAs are supported by their general obligation taxing authority. The MEAG Power PPA payments must be made regardless of the amount of electricity delivered to the Offtakers and even if the Vogtle Project is never completed. With respect to each Borrower and the corresponding Guaranteed Loan, Borrower PPA, MEAG Power PPAs, MEAG Equity Bonds and Offtakers, the payments by these Offtakers under the corresponding MEAG Power PPAs will be pledged under a separate MEAG Power Bond Resolution and applied thereunder (a) in respect of the payments from MEAG Power to the Borrower pursuant to the Borrower PPA and (b) in respect of the payments by MEAG Power to the holders of the MEAG Equity Bonds. The amount payable under the applicable MEAG Power PPAs will be shared by DOE and the holders of the corresponding MEAG Equity Bonds on a parity basis except in a default situation, in which case DOE has a priority over the holders of the MEAG Equity Bonds with respect to cash generated by market sales of power. As a result of the foregoing, the applicable Offtakers will indirectly guarantee repayment of the applicable Guaranteed Loan and the related MEAG Equity Bonds. In addition to the Borrowers recourse to amounts that MEAG Power receives under the applicable MEAG Power PPAs as described above, each Guaranteed Loan will also be secured with a lien over all of the related Borrowers assets and a pledge of all of the equity interests in such Borrower. At closing of the Guaranteed Loans, MEAG Power will have contributed to the Borrowers approximately (b)(4) of eligible project costs attributable to their undivided interests in the Vogtle Project. No Borrower will have the right to reimbursement of such costs from its Guaranteed Loan. Equity Characteristics
OHS East:160632408 3
MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA
By:_________________________________ Name: Title:
OHS East:160632408 3
Exhibit A Term Sheet To Be Attached
OHS East:160632408 3
Atkins, Preston Jr
From: Sent: To: Cc: Subject: Attachments: Cestari, Kenneth [Kenneth.Cestari@hq.doe.gov] Tuesday, December 15, 2009 9:30 PM Atkins, Preston Jr Farrell, Paula; Whitcombe, Nicholas; Colyar, Kelly; Cestari, Kenneth RE: Follow up questions from today's call OPC Compliance .doc
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. Ken OriginalMessage From:Preston.Atkins@do.treas.gov[mailto:Preston.Atkins@do.treas.gov] Sent:Tuesday,December15,20098:45PM To:Cestari,Kenneth Cc:Paula.Farrell@do.treas.gov;Whitcombe,Nicholas Subject:RE:Followupquestionsfromtoday'scall b5 b5 b5 b5 b5 b5 b5 b5 b5 b5 b5 Thanks.b5 Preston OriginalMessage From:Cestari,Kenneth[mailto:Kenneth.Cestari@hq.doe.gov] Sent:Tuesday,December15,20097:52PM To:Atkins,PrestonJr Cc:Farrell,Paula;Burner,Gary;Buenvenida,Pearl;Struemph,Nathan;GarnettIII,Edward; Whitcombe,Nicholas;Colyar,Kelly;Cestari,Kenneth Subject:RE:Followupquestionsfromtoday'scall PrestonAttachedisdraft(b)(4) letterfromMEAG.The(b)(4) letterisin substantiallyfinalformandIwillsendyouablacklineifthereareanyfurtherrevisions. Ken KennethC.Cestari AttorneyAdvisor LoanGuaranteeProgram U.S.DepartmentofEnergy Room4B122 1000IndependenceAvenueSW Washington,DC20585 Tel202.287.5523 Mobile202.306.7889 Kenneth.Cestari@hq.doe.gov
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Atkins, Preston Jr "Lyberg, Sarah A."; Farrell, Paula; RE: MEAG Tuesday, December 15, 2009 9:46:00 PM
Yes, we received a draft this evening, but I will still ask for a final tomorrow. -----Original Message----From: Lyberg, Sarah A. [mailto:Sarah A. Lyberg@omb.eop.gov] Sent: Tuesday, December 15, 2009 9:44 PM To: Atkins, Preston Jr Cc: Farrell, Paula Subject: Fw: MEAG FYI ----- Original Message ----From: Colyar, Kelly <Kelly.Colyar@hq.doe.gov> To: Lyberg, Sarah A.; Carroll, J. Kevin; Saad, Fouad P.; Krauss, Lori A.; Stein, Nora; Falkenheim, Michael C. Sent: Tue Dec 15 21:41:50 2009 Subject: RE: MEAG It has gone to Treasury. thanks. -----Original Message----From: Lyberg, Sarah A. [mailto:Sarah_A._Lyberg@omb.eop.gov] Sent: Tuesday, December 15, 2009 9:41 PM To: Colyar, Kelly; Carroll, Kevin; Saad, Fouad P.; Krauss, Lori; Stein, Nora; Falkenheim, Michael C. Subject: Re: MEAG Has this also been sent to treasury, or were you looking for us to send (at a staff level)? ----- Original Message ----From: Colyar, Kelly <Kelly.Colyar@hq.doe.gov> To: Carroll, J. Kevin; Saad, Fouad P.; Krauss, Lori A.; Lyberg, Sarah A.; Stein, Nora; Falkenheim, Michael C. Sent: Tue Dec 15 20:50:19 2009 Subject: MEAG
Attached are the current draft of the (b)(4) for MEAG as well as a summary of the MEAG bonds to the DOE guaranteed debt. The (b)(4) letter is substantially final. DOE will provide the final, but does not expect any significant changes. Thanks.
Atkins, Preston Jr
From: Sent: To: Cc: Subject: Attachments: Whitcombe, Nicholas [Nicholas.Whitcombe@hq.doe.gov] Tuesday, December 15, 2009 9:48 PM Farrell, Paula; Burner, Gary; Buenvenida, Pearl; Struemph, Nathan; Garnett III, Edward; Atkins, Preston Jr Cestari, Kenneth Bond Resolutions Part I Non-PPA Bond Resolution_1.pdf
Seeattached. NicholasP.Whitcombe DepartmentofEnergy 202.287.5406
Treasu y Consult 210
Treasury Co sult 213
Atkins, Preston Jr
From: Sent: To: Cc: Subject: Attachments: Whitcombe, Nicholas [Nicholas.Whitcombe@hq.doe.gov] Tuesday, December 15, 2009 9:50 PM Farrell, Paula; Burner, Gary; Buenvenida, Pearl; Struemph, Nathan; Garnett III, Edward; Atkins, Preston Jr Cestari, Kenneth Bond Resolutions Part II PPA Bond Resolution_1.pdf
T easu y Consult 257
T easu y Consult 309
Atkins, Preston Jr
From: Sent: To: Cc: Subject: Attachments: Whitcombe, Nicholas [Nicholas.Whitcombe@hq.doe.gov] Tuesday, December 15, 2009 9:51 PM Farrell, Paula; Burner, Gary; Struemph, Nathan; Garnett III, Edward; Atkins, Preston Jr Cestari, Kenneth Bond Resolutions Part II PPA-2 Bond Resolution_1.pdf
(b) (4) Wedonotbelievethe AmericaBondsisbeing(b)(4) fromtheproject". The(b)(4) the(b)(4) bonds. The (b) (4) BuildAmericaBonds(b)(4) into(b)(4) AmericaBonds.The(b)(4)
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A furtherexplanationoftheseandrelatedmattersandadescriptionofBuildAmericaBondsis providedbelow. BuildAmericaBonds PriortotheenactmentoftheAmericanRecoveryandReinvestmentAct(the"Stimulus Act")earlierthisyear,generally,Stateandlocalgovernmentsusedthetaxexemptbond markettofinancetheircapitalneeds.TheInternalRevenueCodepermitsStateandlocal governments,includingpublicpowersystemslikeMEAG,toissuebondstheinterestonwhich isexcludedfromgrossincomeforfederalincometaxpurposes("TaxExemptBonds"). InvestorswhopurchaseTaxExemptBondsarewillingtoacceptalowerinterestrateonthese bondsthanonacomparabletaxablesecuritybecausetheFederalincometaxrulesexemptthe interestfromtaxontheownersofthosebonds.Thetaxexemptionfortheinterestonthese bondsisprovidedunderSection103oftheInternalRevenueCode.Thus,itseemsclearthat (b)(4) Inordertoaddressproblemsinthetaxexemptbondmarketthatoccurredasaresultof theeconomicsituationearlierthisyearandtoprovideagreaterleveloftaxassistanceto Stateandlocalgovernments,aspartoftheStimulusAct,Congresscreated"BuildAmerica Bonds"asanalternativetotaxexemptbonds.TherearetwotypesofBuildAmericaBonds(or "BABs")thatcanbeissuedbyStateandlocalgovernments."TaxcreditBABs"arebondsthat paytheinvestorinterestthatissubjecttofederalincometaxbutalsoprovidetheinvestor withafederaltaxcreditinanamountequalto35percentoftheinterestpaid.Asaresult ofthetaxcredit,investorsshouldbewillingtoacceptalowerrateoftaxableinterest thanonatraditionaltaxablebond.Thus,throughthisnewprovisiontheInternalRevenue Codeprovidesan"allowablefederalincometaxbenefit"throughtaxcreditBABsthatenables Stateandlocalgovernmentstoborrowatareducedinterestratecomparedtoothertaxable securities.
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TheStimulusActalsoauthorizedtheissuanceof"directpaymentBABs."Directpayment BABs,liketaxcreditBABs,aretaxablebondsissuedbyStateandlocalgovernments.Inlieu ofprovidingtheinvestorswithataxcredit,directpaymentBABsprovidetheissuerofthese bondswithdirectpaymentsfromtheIRSinanamountequalto35percentoftheinterestpaid ontheBABs.Toobtainthesepayments,inconnectionwitheachpaymentofinterestona directpaymentBABtheissuermustfileIRSForm8038CP.Thebenefittotheissuerofa directpaymentBABisthat,afterreceiptofthepaymentsbytheIRSpursuanttotheInternal RevenueCode,theissuerisonlypaying65percentoftheinterestonitsdebt.Direct paymentBABsare,insubstance,aBABwitharefundabletaxcreditpaidtotheissuer.In fact,theauthorityoftheIRStomakethesepaymentsisprovidedunderthesameInternal RevenueCodeprovisionthatauthorizestheIRStopayothertaxrefunds.Accordingly,direct paymentBABsprovidetheissuerwithadirectbenefitintheformofcashpaymentsthatare providedforundertheInternalRevenueCode.Asaresult,directpayBABsprovidean "allowablefederalincometaxbenefit"intheformofthepaymentsbytheIRSunderSection 54AA(g)oftheInternalRevenueCode.AttachedarethefollowingIRSdocumentsrelatedto directpaymentBABs:Form8038CPandtheinstructionsthereto,IRSNotice200926,andthe portionoftheConferenceCommitteeReportfortheStimulusActrelatedtoBABs. ProductionTaxCredits TheInternalRevenueCodeprovidesforanumberoftaxcredits,includingthe productiontaxcredit("PTC")forrenewableenergyprojects.ThePTCprovidestheownerofa qualifyingrenewableenergyprojectwithataxcreditinaspecifiedamountforeachkilowatt hourproduced.AspartoftheStimulusAct,Congressauthorizedtheownersofqualifying renewableenergyprojectstoconvertthePTCintoa30percentfederalgrant;thatis,in lieuofreceivingongoingfederaltaxcreditsaselectricityisproduced,theprojectowner canelecttoreceiveacashpaymentequalto30percentoftheprojectcost. WeunderstandthattheDepartmentofEnergyhas(b)(4) WebelievethatunderProviso(b)(4) Ifanything,(b)(4) undertheInternal RevenueCode,are (b)(4) oftheInternalRevenueCodefor
(b)(4)
Congresshaschosento(b)(4) theseprogramsprovidesa(b)(4) totheowneroftherelatedproject. (b) (4) Inparagraph(a)ofProviso (b) (4) CongressmadeclearthatProviso
ofPTCsprovide. Wehopeyoufindthisinformationhelpful.Wewouldbehappytoansweranyadditional questionsthatarise. MitchRapaport

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ToensurecompliancewithIRSrequirements,weinformyouthatanyfederaltaxadvice containedinthiscommunication(includingany attachment)isnotintendedorwrittentobeused,andcannotbeused,forthepurposeof(i) avoidingpenaltiesundertheInternalRevenueCodeor(ii)promoting,marketingor recommendingtoanotherpartyanytransactionormatteraddressedinthiscommunication (includinganyattachment). Thisemailmessageandanyattachmentsareconfidential.Ifyouarenottheintended recipient,pleaseimmediatelyreplytothesenderanddeletethemessagefromyouremail system.Thankyou.
Colyar, Kelly Saad, Fouad P.; Atkins, Preston Jr; Carroll, Kevin; Krauss, Lori; Lyberg, Sarah A.; Stein, Nora; RE: Vogtle meeting Monday Friday, December 11, 2009 12:35:28 PM
2-4 works. I'm hoping we can get the ball rolling on the tax exempt and (b)(4) questions today. -----Original Message----From: Saad, Fouad P. [mailto:Fouad P. Saad@omb.eop.gov] Sent: Friday, December 11, 2009 12:33 PM To: Colyar, Kelly; Preston.Atkins@do.treas.gov; Carroll, Kevin; Krauss, Lori; Lyberg, Sarah A.; Stein, Nora Subject: Vogtle meeting Monday Kelly, shall we put a time in our calendars for Monday? Most on the OMB side should be free in the afternoon (1PM onwards). We could displace the weekly LGP call, and plan for 2-4 to discuss MEAG terms, including the tax-exemption topic. Or please propose alternative times. Preston, please let me know your availability too so we can ensure you can make it. Fouad -----Original Message----From: Colyar, Kelly [mailto:Kelly.Colyar@hq.doe.gov] Sent: Friday, December 11, 2009 11:44 AM To: Preston.Atkins@do.treas.gov; Saad, Fouad P.; Carroll, J. Kevin; Krauss, Lori A.; Lyberg, Sarah A.; Stein, Nora Cc: Paula.Farrell@do.treas.gov Subject: RE: tax exempt bonds (Vogtle) Thanks. That topic will likely be discussed Monday. We have an almost complete term sheet which I just received at 6:30 this morning. I'll be prepared to discuss Monday.
Frantz, David Farrell, Paula; Atkins, Preston Jr; Whitcombe, Nicholas; Cestari, Kenneth; Burner, Gary; "Consultation" Requirement for the Vogtle Project Wednesday, December 16, 2009 1:48:33 PM
Paula, We are taking the Vogtle Project to the Credit Review Board tomorrow morning. With apologies for the quick turnaround could we please request your clearance by COB today. I understand you have the last requested information concerning the (b)(4) language for MEAG. As always, so many thanks for all your help aon these issues, Dave David G. Frantz US Department of Energy Director, Loan Guarantee Office, CF-1.3 Office: (202) 586-8361 Fax: (202) 586-7366 David.Frantz@hq.doe.gov
Cestari, Kenneth Atkins, Preston Jr; Whitcombe, Nicholas; Richardson, Susan; Silver, Jonathan; Farrell, Paula; Frantz, David; Struemph, Nathan; Buenvenida, Pearl; RE: DOE - Vogtle Wednesday, December 16, 2009 4:25:15 PM
CRB is at 10:00 AM tomorrow. Vogtle is on the agenda, b5

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Kenneth C. Cestari Attorney Advisor Loan Guarantee Program U.S. Department of Energy Room 4B-122 1000 Independence Avenue SW Washington, DC 20585 Tel - 202.287.5523 Mobile - 202.306.7889 Kenneth.Cestari@hq.doe.gov -----Original Message----From: Preston.Atkins@do.treas.gov [mailto:Preston.Atkins@do.treas.gov] Sent: Wednesday, December 16, 2009 3:50 PM To: Cestari, Kenneth Cc: Whitcombe, Nicholas; Richardson, Susan; Silver, Jonathan; Paula.Farrell@do.treas.gov; Frantz, David; Nathan.Struemph@do.treas.gov; Pearl.Buenvenida@do.treas.gov Subject: RE: DOE - Vogtle The matter is currently at the political level within Treasury. We intend to respond later today. When will the Credit Review Board meet tomorrow? Will it discuss both Vogtle andb5 ? Preston -----Original Message----From: Cestari, Kenneth [mailto:Kenneth.Cestari@hq.doe.gov] Sent: Wednesday, December 16, 2009 3:46 PM To: Atkins, Preston Jr Cc: Cestari, Kenneth; Whitcombe, Nicholas; Richardson, Susan; Silver,
Jonathan; Farrell, Paula; Frantz, David Subject: DOE - Vogtle Preston - Please call me so that we can close out the consultation with Treasury. Ken Kenneth C. Cestari Attorney Advisor Loan Guarantee Program U.S. Department of Energy Room 4B-122 1000 Independence Avenue SW Washington, DC 20585 Tel - 202.287.5523 Mobile - 202.306.7889 Kenneth.Cestari@hq.doe.gov
Cestari, Kenneth Atkins, Preston Jr; Farrell, Paula; Struemph, Nathan; Buenvenida, Pearl; Cestari, Kenneth; Edwards, Jr. Robert H; Richardson, Susan; RE: DOE - Vogtle Wednesday, December 16, 2009 4:31:21 PM
Preston - The (b)(4) letter I sent you last night is final, there have been no further revisions. DOE GC has completed its review and has approved the (b)(4) letter. Ken Kenneth C. Cestari Attorney Advisor Loan Guarantee Program U.S. Department of Energy Room 4B-122 1000 Independence Avenue SW Washington, DC 20585 Tel - 202.287.5523 Mobile - 202.306.7889 Kenneth.Cestari@hq.doe.gov -----Original Message----From: Preston.Atkins@do.treas.gov [mailto:Preston.Atkins@do.treas.gov] Sent: Wednesday, December 16, 2009 4:13 PM To: Cestari, Kenneth Cc: Paula.Farrell@do.treas.gov; Nathan.Struemph@do.treas.gov; Pearl.Buenvenida@do.treas.gov Subject: RE: DOE - Vogtle Ken, We are reviewing the a (b)(4) request marked draft. Could you please send the final, and indicate whether DOE GC has completed its review? I am working to include the required (b)(4) consultation. If that doesn't work then the (b)(4) disapproval) will come separately. Thanks, Preston -----Original Message----From: Cestari, Kenneth [mailto:Kenneth.Cestari@hq.doe.gov]
into the (or
Sent: Wednesday, December 16, 2009 3:46 PM To: Atkins, Preston Jr Cc: Cestari, Kenneth; Whitcombe, Nicholas; Richardson, Susan; Silver, Jonathan; Farrell, Paula; Frantz, David Subject: DOE - Vogtle Preston - Please call me so that we can close out the consultation with Treasury. Ken Kenneth C. Cestari Attorney Advisor Loan Guarantee Program U.S. Department of Energy Room 4B-122 1000 Independence Avenue SW Washington, DC 20585 Tel - 202.287.5523 Mobile - 202.306.7889 Kenneth.Cestari@hq.doe.gov
Krauss, Lori A. Atkins, Preston Jr; Per my vmail Vogtle, further info from DOE Monday, December 07, 2009 6:06:43 PM
To answer your question from earlier today: I understand MEAG will issue taxable bonds. I understand the debt issued to fund the equity contribution for OPC will be first mortgage bonds (which are taxable).
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Atkins, Preston Jr
From: Sent: To: Cc: Subject: Attachments: Whitcombe, Nicholas [Nicholas.Whitcombe@hq.doe.gov] Tuesday, December 08, 2009 12:35 PM Atkins, Preston Jr; Burner, Gary; Farrell, Paula Cestari, Kenneth MEAG Power - updated Term Sheet DC1-282632-v12-DOE Vogtle MEAG Term Sheet.DOC; Blackline DC1-282632-vRTF-DOE Vogtle MEAG Term Sheet.RTF
Preston, PleaseseetheattacheddrafttermsheetfortheMEAGspecialpurposevehicles.Weare negotiatingthisinrealtime.Iamnotinapositiontoprovideacreditpaperatthis time,butwithintheGeorgiaPowerandOglethorpepapers,thereisadiscussiononMEAG.We arerequestingyourinputonanylanguageinordertoexpeditiouslymovethistoourcredit committeemeetingscheduledfornextTuesday. Regards,Nick OriginalMessage From:Alcala,Marissa<malcala@chadbourne.com> To:Drefke,Kyle<kdrefke@orrick.com>;Fuller,Jim<jfuller@MEAGPOWER.ORG>;Degnan,Pete <pdegnan@alston.com>;Lyon,Carl<cflyon@orrick.com>;Whitcombe,Nicholas;Cestari,Kenneth; pameer@greengatellc.com<pameer@greengatellc.com>;TravisDunbar<tdunbar@greengatellc.com> Cc:Fitzgerald,Peter<PFitzgerald@chadbourne.com>;Sigrist,Mark<MSigrist@chadbourne.com> Sent:TueDec0809:14:222009 Subject:RE:DOE/MEAGPowerupdatedTermSheet AttachedisanupdateddraftoftheTermSheet,withablacklinetotheversionthatwehad distributedlastweek.Asdiscussedyesterday,thisisbeingsenttoallparties simultaneouslywhileissuesremainunderactivediscussion,soitissubjecttoreviewand commentbyDOEinallrespects.Foreaseofreference,wehaveflaggedafewspecificnotes onitemsthatwereleftopenyesterday. Thecoverletterremainsunchanged,andwewillprovideanupdateddraftofthatseparately. Copiesareintheprocessofbeingprintedandwillbedeliveredtoourconferenceroom2a/b. BestRegards, marissa MarissaLeighAlcala Chadbourne&ParkeLLP 1200NewHampshireAve,NW Washington,DC20036 Phone2029745609 Fax2029746709
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________________________________ From:Alcala,Marissa Sent:Friday,December04,200912:13AM To:'Drefke,Kyle';Fuller,Jim;Degnan,Pete;Lyon,Carl;Whitcombe,Nicholas;Cestari, Kenneth;pameer@greengatellc.com;TravisDunbar Cc:Fitzgerald,Peter;Sigrist,Mark Subject:DOE/MEAGPowerupdatedTermSheet AttachedisanupdateddraftoftheTermSheet,withablacklinetothe versionKylehadcirculatedreflectingMEAGPower'scomments.The attachedisbeingsenttoallpartiessimultaneouslyandissubjectto reviewandcommentbyDOEinallrespects. InadditiontorespondingtotheMEAGPowercommentsandthediscussions wehavehadrecentlyontheTermSheetandstructureissues,the attacheddraftalsoreflectschangesmadetoconformtocertain ProjectrelatedtermsoftheotherVogtletermsheets. Welookforwardtodiscussingtheattachedwithyouatourmeetingon Monday.Pleasealsofeelfreetocontactuswithanyquestionsinthe interim. BestRegards, marissa MarissaLeighAlcala Chadbourne&ParkeLLP 1200NewHampshireAveN.W.,Washington,DC20036 tel2029745609|fax2029746709 malcala@chadbourne.com|http://www.chadbourne.com <http://www.chadbourne.com/> vCard:http://www.chadbourne.com/vcard/malcala.vcf Pleaseconsidertheenvironmentbeforeprintingthisemail.
C&P DRAFT 12/8/09 THIS WORKING DRAFT IS FOR DISCUSSION PURPOSES ONLY AND HAS NOT BEEN APPROVED BY THE UNITED STATES DEPARTMENT OF ENERGY, THE FEDERAL FINANCING BANK OR MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA. THIS WORKING DRAFT DOES NOT CONSTITUTE AN AGREEMENT BY THE UNITED STATES DEPARTMENT OF ENERGY, THE FEDERAL FINANCING BANK OR MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA TO ENTER INTO AN AGREEMENT OR A COMMITMENT BY THE UNITED STATES DEPARTMENT OF ENERGY, AND IS SUBJECT TO REVIEW AND CHANGE IN ALL RESPECTS. [DOE LETTERHEAD] December ___, 2009 Municipal Electric Authority of Georgia [] [] Attention: _____________________ Re: United States Department of Energy ("DOE") Loan Guarantee
Ladies and Gentlemen:1 This letter (the "Letter") and the summary of the proposed principal terms and conditions (the "Term Sheet"), attached hereto as Annex A (this Letter, together with the Term Sheet, the "Conditional Commitment"), sets forth the terms and conditions of DOE's conditional commitment to provide to three special purpose limited liability companies (the "Borrowers") to be formed as wholly-owned subsidiaries of Municipal Electric Authority of Georgia (the "Company"), pursuant to Title XVII of the Energy Policy Act of 2005 (Pub. L. No. 109-58), as amended, including by Title IV of the American Recovery and Reinvestment Act of 2009 ("Title XVII"), separate loan guarantees in the aggregate principal amount of up to US$[2,117,000,000] (the "Loan Guarantee") on the terms and conditions set forth in this Letter and the attached Term Sheet. By signing this Conditional Commitment, the Company (i) confirms that it desires to obtain for the Borrowers the Loan Guarantee, on the terms and conditions set forth herein, with respect to a loan or loans (the "Guaranteed Obligations") to be provided by the Federal Financing Bank ("FFB") and (ii) acknowledges and agrees to its obligations hereunder. The definitive agreements between and among DOE, FFB, the Borrowers and the Company setting forth the terms and conditions of the Loan Guarantee and the Guaranteed Obligations are referred to in this Letter as the "Definitive Documents."
Note to MEAG: MEAG comments to cover letter remain under review by DOE.
[DOE LETTERHEAD] The Company represents and warrants to DOE as follows: (a) the execution and delivery of this Conditional Commitment has been duly authorized by the Company and this Conditional Commitment constitutes a valid, legal, and binding obligation of the Company; and (b) all of the information, data, representations, or other materials that have been or will be made available to DOE by the Company or its representatives is, or will be at the time such information is made available, complete and correct in all material respects and does not, or will not at the time such information is made available, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements are made. The Company covenants and agrees for so long as this Conditional Commitment is in effect, to comply with all applicable laws and to maintain internal management and accounting practices and controls adequate to ensure compliance with all applicable laws. The Company shall pay or, at DOE's discretion, reimburse DOE or such persons as DOE may direct, for all costs and expenses (including fees and expenses for outside legal counsel and consultants) incurred by DOE in connection with the negotiation and preparation of this Conditional Commitment, the Definitive Documents and the documents, instruments, and approvals required to be delivered thereunder, and for all other reasonable out of pocket costs and expenses incurred by DOE, as well as any costs and expenses of collecting any amount due under this letter. Costs and expenses incurred by DOE both prior to and subsequent to the date of execution of the Conditional Commitment shall be due and payable promptly upon demand as notified by DOE from time to time. Neither the Company, nor any Borrower, nor any of their affiliates, on the one hand, nor DOE, on the other hand, shall issue any press release concerning DOE's commitment hereunder without the prior consent of the other, which consent shall not be unreasonably withheld or delayed. Any description of DOE, this Conditional Commitment or any other circumstances concerning DOE's support for the Company or the Borrowers shall be subject to DOE's prior written consent. The Company shall at all times indemnify and hold harmless, DOE and its officials, employees, advisors, agents, and servants (each, an "Indemnified Person") from and against, and reimburse such Indemnified Persons for: (i) any and all losses, claims, damages, liabilities, penalties, costs and expenses of any kind or nature whatsoever in any way relating to or arising out of or in connection with this Conditional Commitment to which an Indemnified Person may become subject (each, a "Loss"); and (ii) any and all claims, litigation, investigations, or proceedings relating to any Loss regardless of whether any Indemnified Person is a party thereto, and any and all costs and expenses incurred by an Indemnified Person in defending, analyzing, settling, or resolving a Loss (the "Costs of Defense"). The foregoing indemnity shall not apply to the extent that a court or arbitral tribunal of competent jurisdiction renders a final nonappealable determination that a Loss or a Cost of Defense resulted from: (i) the gross negligence or willful misconduct of an Indemnified Person, or (ii) DOE's failure to perform any act required of it under this Conditional Commitment. The foregoing indemnity is independent of and in addition to any other rights of any Indemnified Person in connection with any Loss or -2DC1 - 282632 12 Treasury Consult 426
[DOE LETTERHEAD] Costs of Defense hereunder, under any other agreement, or at law. DOE and each other Indemnified Person shall have the right to control its, his, or her defense; provided, however, that each Indemnified Person shall: (i) notify the Company in writing as soon as practicable of any Loss or Cost of Defense; and (ii) keep the Company reasonably informed of material developments with respect thereto. The obligations in this paragraph shall survive execution and delivery of the Definitive Documents. If for any reason the Definitive Documents are not executed and delivered on or before the earlier of three months after issuance of the COL (as defined in the Term Sheet) or [December 31, 2012], DOE's obligations under this Conditional Commitment shall terminate. In addition, by written notice to the Company, DOE may, at any time, terminate its obligations hereunder and pursue any rights and remedies then available to DOE upon the occurrence of any of the following: (a) the Company fails or refuses to comply, or cause the Borrowers to comply, in a timely manner with any of the terms, provisions, or conditions of this Conditional Commitment; (b) DOE, in its reasonable judgment, determines that a material adverse change has occurred or is reasonably likely to occur in the (i) business, operations, property, condition (financial or otherwise) or prospects of the Company, any Borrower or the Project (as defined in the Term Sheet); (ii) ability of the Company or the Borrowers to carry out the Project or to perform its respective obligations hereunder or under the Definitive Documents or (iii) condition or value of any material collateral security; (c) any of the information, data, representations, or other materials submitted to DOE by or on behalf of the Company or any Borrower contains any inaccuracy, omission, or misrepresentation that is material to DOE's decision to provide the Loan Guarantee on the terms set forth herein; (d) it becomes unlawful for DOE or FFB to make or maintain any commitment to extend credit or allocate funds for the Project due to the adoption of, change in, change in the interpretation of, or change in the effectiveness of, any applicable law after the date of this Conditional Commitment; or (e) DOE, in its sole judgment, is not satisfied with the results of its due diligence investigation. Upon any such termination (except pursuant to clause (d) above), the Company shall pay to DOE on demand any fees, costs, expenses, or other amounts then due hereunder. The Company will comply, and will cause the Borrowers to comply, at all times with the "Program Requirements" (as defined in the Term Sheet). The Company will promptly provide to DOE on an ongoing basis all information relating to the Company and its principals, the Borrowers, the Project and the financing thereof as may be reasonably requested by DOE. The representations and warranties, and the payment, reimbursement, and indemnification provisions contained herein shall survive the execution of the Definitive Documents and any modification, cancellation, termination, or expiration of this Conditional Commitment except as expressly provided in or superceded by the Definitive Documents.
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[DOE LETTERHEAD] All payments due hereunder to DOE shall be paid in U.S. dollars by wire transfer in immediately available funds as follows: U.S. Treasury Department _____________________ _____________________ _____________________ _____________________2 The Company may not assign this Conditional Commitment or any rights hereunder to any person or entity. This Conditional Commitment is for the sole benefit of the Company and DOE, and no other person (other than the Indemnified Persons) shall be a direct or indirect beneficiary of, be entitled to rely on, or have any direct or indirect cause of action or claim in connection with, this Conditional Commitment. This Conditional Commitment embodies the entire agreement and understanding among the parties hereto and supersedes any prior agreements or understandings, written or oral, relating to the subject matter hereof. It may not be amended or waived except by an instrument in writing signed by each of the parties hereto. THIS LETTER, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE FEDERAL LAW OF THE UNITED STATES. TO THE EXTENT THAT FEDERAL LAW DOES NOT SPECIFY THE APPROPRIATE RULE OF DECISION FOR A PARTICULAR MATTER AT ISSUE, IT IS THE INTENTION OF THE PARTIES HERETO THAT THE LAW OF THE STATE OF NEW YORK SHALL BE ADOPTED AS THE GOVERNING FEDERAL RULE OF DECISION.3 Any legal action or proceeding with respect to this Conditional Commitment or any document related hereto may be brought in the courts of the District of Columbia, the State of New York, or the United States of America for the Southern District of New York, and, by execution and delivery of this Conditional Commitment, the Company and each Borrower accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. The Company and each Borrower hereby accepts venue in each such court. EACH OF DOE AND THE COMPANY AND EACH BORROWER WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO, THIS CONDITIONAL COMMITMENT OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
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DOE to provide wire transfer information for U.S. Treasury Department. Governing law subject to DOE review.
[DOE LETTERHEAD] This Conditional Commitment may be executed in separate counterparts, each of which shall be an original, and all of which taken together shall constitute one and the same agreement. If this Conditional Commitment correctly sets forth our agreement please indicate your acceptance of the terms hereof by signing and returning to DOE an executed original counterpart of this Conditional Commitment no later than [December 30, 2009]. Upon timely receipt of such signed counterpart (by facsimile with the original to follow by overnight or local courier) by DOE, this Conditional Commitment shall constitute an effective and legally binding agreement between the parties as of the date hereof. Very truly yours, UNITED STATES DEPARTMENT OF ENERGY By: Name: Title: _______________________________
ACKNOWLEDGED AND AGREED TO, as of the date of this Letter: MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA By: Name: Title: _______________________________
ANNEX A TO DOE LOAN GUARANTEE LETTER SUMMARY OF TERMS AND CONDITIONS This term sheet ("Term Sheet") is a summary of the proposed principal terms and conditions for a U.S. Department of Energy ("DOE") guarantee of loans to three special purpose limited liability companies (each a "Borrower" and collectively, the "Borrowers"), each wholly-owned by Municipal Electric Authority of Georgia ("MEAG Power") made by the Federal Financing Bank ("FFB"), pursuant to Title XVII of the Energy Policy Act of 2005, as amended ("Title XVII"). The complete and final terms and conditions will be set forth in appropriate documentation (the "Definitive Agreements"), which will be negotiated by DOE, FFB, MEAG Power and the Borrowers (collectively, the "Parties"). Capitalized terms used but not defined in this Term Sheet have the meanings given to such terms (as of the date hereof) in the final regulations located at 10 C.F.R. Part 609 promulgated by DOE to implement Title XVII (the "Regulations"). All provisions of this Term Sheet are subject to the following: (i) the provisions of Title XVII and the Regulations, and (ii) all DOE or FFB legal and financial requirements, policies, and procedures applicable to the Title XVII program from time to time (the "Program Requirements," except that from and after the date that the Definitive Agreements are entered into, the term "Program Requirements" shall not include DOE or FFB requirements, policies and procedures referenced at subsection (ii) of this definition not having the force of law).
1.
Parties
Borrowers: SPV1, SPV2 and SPV3, individually and not jointly nor severally. SPV1: a special purpose limited liability company, to be formed as a wholly owned subsidiary of MEAG Power, owning a 9.3466% undivided interest in the Project (which corresponds to 206.934 MW). SPV2: a special purpose limited liability company, to be formed as a wholly owned subsidiary of MEAG Power, owning a 5.6647% undivided interest in the Project (which corresponds to 125.416 MW). SPV3: a special purpose limited liability company, to be formed as a wholly owned subsidiary of MEAG Power, owning a 7.6887% undivided interest in the Project (which corresponds to 170.228 MW). MEAG Power: Municipal Electric Authority of Georgia. Eligible Lender: FFB, an instrumentality of the United States government created by the Federal Financing Bank Act of 1973 that is under the general supervision of the Secretary of Treasury. Loan Servicer: FFB, DOE, or such other financial institution selected by DOE in its sole discretion. Collateral Agent: a financial institution selected by DOE in its sole discretion.
2.
Project
The construction of an approximately 2,214 MW nuclear generating facility in accordance with the Project Plans (as defined below), utilizing the Westinghouse AP1000 technology, and located approximately 30 miles south of Augusta, Georgia, including associated transmission facilities and fuel (the "Project"). The Project will be comprised of two units (the "Units"). The AP1000 is a pressurized water reactor with passive safety systems, designed to achieve and maintain safe shutdown in case of design-basis accidents without operator action, AC power or pumps. It is contemplated that SPV1 will own a 9.3466% undivided interest in the Project (the "SPV1 Undivided Interest"), SPV2 will own a 5.6647% undivided interest in the Project (the "SPV2 Undivided Interest"), and SPV3 will own a 7.6887% undivided interest in the Project (the "SPV3 Undivided Interest" and, each of the SPV1 Undivided Interest, the SPV2 Undivided Interest and the SPV3 Undivided Interest, an "Undivided Interest," and -2-
collectively, the "Undivided Interests"), with Oglethorpe Power Corporation ("OPC") owning a 30% undivided interest in the Project, Georgia Power Corporation ("GPC") owning a 45.7% undivided interest in the Project, and the City of Dalton ("Dalton") owning a 1.6% undivided interest in the Project (collectively, the Borrowers, OPC, GPC and Dalton are referred to as the "Owners"). MEAG Power will provide, or cause to be provided, detailed project plans that have been approved by the United States Nuclear Regulatory Commission (the "NRC") and any other regulatory authority the approval of which is required by law for the design, construction, equipping, operation and maintenance of the Project (the "Project Plans"), including without limitation engineering and construction plans, operating and maintenance plans and/or management plans. Such Project Plans may be revised from time to time by MEAG Power, the Borrowers or the Operator (as defined below) subject to receipt of any required approvals of the NRC and any other regulatory authority the approval of which is required by law. Southern Nuclear Operating Company, a wholly-owned subsidiary of Southern Company (the "Operator"), will oversee construction of and operate the Project on behalf of the Owners. The Operator will be the holder of the combined construction permit and operating license (the "COL") issued by the NRC. The Operator currently operates the Vogtle Electric Generating Plants Units 1 and 2, as well as four other nuclear units. MEAG Power will provide, or cause to be provided, detailed plans for financing all estimated costs of construction and start-up of the Project attributable to the Undivided Interests ("MEAG Base Project Costs"). MEAG Power estimates as of the date of this Term Sheet that MEAG Base Project Costs equal $[__________], as set forth on Schedule I4 attached hereto, and are attributable to each Borrower's Undivided Interest as follows: SPV1: $[ ], SPV2: $[ ] and SPV3: $[ ]. As used herein, "MEAG Overrun Project Costs" shall mean
Schedule detailing Base Project Costs to be provided by the Borrowers in consultation with the DOE Engineer. Question to MEAG - when will you provide a draft?
the dollar amount of the portion of costs of construction and start-up of the Project attributable to the Undivided Interests, if any, in excess of MEAG Base Project Costs. 3. FFB Credit Facility A loan from FFB (each, a "Guaranteed Loan") available to each Borrower in the principal amount (the "Guaranteed Loan Amount") of up to the lesser of (i) in the case of SPV1, million], in the case of SPV2, [$ million], and in the [$ case of SPV3, [$ million], and (ii) in each such case, such Borrower's Maximum Loan Percentage of its Eligible Project Costs which percentage, when taken together with each other Borrower's Maximum Loan Percentage of its Eligible Project Costs, shall not exceed 50% of Eligible Project Costs attributable to the Undivided Interests in the aggregate, as set forth on Schedule II5 attached hereto. As used herein, "Maximum Loan Percentage" means, as of the date hereof (and based on the current base case financial model), (x) for SPV1, 40%, (y) for SPV2, 80% and (z) for SPV3, 40%. To take account of possible changes in market conditions, each Borrower's Maximum Loan Percentage may be increased or decreased in the Definitive Agreements, with DOE's consent; provided, however, that no Borrower's Maximum Loan Percentage of its respective Eligible Project Costs may exceed 80%, and the aggregate of all three Borrowers' Maximum Loan Percentages shall not exceed 50% of the Borrowers' aggregate Eligible Project Costs. As used herein, "Eligible Project Costs" shall mean those portions of MEAG Base Project Costs that are eligible for funding as "Project Costs" as defined in the Regulations. Amounts borrowed and repaid may not be reborrowed. 4. Equity Commitments and Contributions All portions of MEAG Base Project Costs attributable to each Borrower's Undivided Interest that are not Eligible Project Costs ("Ineligible Project Costs"), and each Borrower's Balance Percentage of Eligible Project Costs, shall be paid from equity provided by MEAG Power. MEAG Power shall commit to provide such equity to each Borrower ("Base Equity"), on terms and conditions satisfactory to DOE, in an
Schedule detailing Eligible Project Costs to be provided by the Borrowers in consultation with the DOE Engineer. Question to MEAG - when will you provide a draft?
amount (the "Base Equity Commitment") not less than 100% of all Ineligible Project Costs attributable to such Borrower's Undivided Interest, plus such Borrower's Balance Percentage of its Eligible Project Costs. As used herein, "Balance Percentage" means, with respect to a Borrower, the difference between 100% minus such Borrower's Maximum Loan Percentage. MEAG Power shall commit to fund 100% of MEAG Overrun Project Costs attributable to each Borrower's Undivided Interest from sources other than the Guaranteed Loans (the "Overrun Equity Commitment"). Amounts previously funded by MEAG Power and applied to pay MEAG Base Project Costs attributable to a Borrower's Undivided Interest that are in excess of MEAG Power's Base Equity Commitment for such Borrower (and are not reimbursed to MEAG Power as permitted under Section 8 below) will be credited towards MEAG Power's Overrun Equity Commitment for such Borrower. MEAG Power will issue bonds (the "Bond Facilities") to fund its equity commitments and contributions with respect to the Borrowers. The Bond Facilities corresponding to each Borrower will be secured by the revenue stream under the applicable MEAG Power PPAs (as defined below) and certain accounts into which such revenues are deposited, all as described in greater detail in [Schedule 1] hereto, (together, the "Shared Collateral"). Rights in the applicable Shared Collateral that are for the benefit of DOE may be granted to a trustee for the benefit of the applicable Borrower (as a creditor of MEAG Power under the applicable Borrower PPA) and pledged to DOE pursuant to such Borrower's security documents. The Bond Facilities will be on terms and conditions satisfactory to DOE. 5. DOE Guarantee An unconditional guarantee by DOE (each, a "DOE Guarantee") of 100% of the principal of and interest on the applicable Guaranteed Loan (the "Guaranteed Obligations") in accordance with the Program Requirements and on terms and conditions as agreed with FFB. The DOE Guarantee will be irrevocable and unconditional and will pledge the full faith and credit of the United States of America to the payment of the Guaranteed Obligations. Subject to the terms of the Definitive Agreements, advances of each Guaranteed Loan (each an "Advance") may be requested -5DC1 - 282632 12 Treasury Consult 434
6.
7.
from time to time during the period from (x) the Financial Closing Date through (y) a date to be agreed in the Definitive Agreements (the "Availability Period"). 8. Use of Proceeds The proceeds of Advances will be used to pay Eligible Project Costs in accordance with a financial plan and construction budget to be submitted to DOE by the applicable Borrower. The applicable Borrower will provide updated financial plans and construction budgets to DOE each quarter, unless there have been no material changes to the previously delivered plans and budgets, in which case the applicable Borrower will certify to DOE that no material changes have been made. Each Borrower shall request an Advance by submitting an Advance request to DOE. Each Borrower will certify in each Advance request that the amounts are to be borrowed: (i) to pay Eligible Project Costs then due and payable by such Borrower, or (ii) to reimburse such Borrower for Eligible Project Costs that have been previously paid by such Borrower after the Financial Closing Date and have not been the subject of a prior Advance, in each case in accordance with the thencurrent financial plan and construction budget submitted by such Borrower; provided, that amounts may also be borrowed to reimburse MEAG Power to the extent Base Equity contributed by MEAG Power towards such Borrower's Eligible Project Costs (but not towards such Borrower's Overrun Equity Commitment or MEAG Overrun Project Costs) exceeds such Borrower's Balance Percentage of its Eligible Project Costs and provided further that the DOE Engineer has confirmed that no MEAG Overrun Project Costs for such Borrower are anticipated (or, if the DOE Engineer advises that any MEAG Overrun Project Costs are anticipated for such Borrower, after giving effect to any such reimbursement, MEAG Power's contributions made towards its applicable Overrun Equity Commitment will continue to be equal to or greater than such MEAG Overrun Project Costs projected by the DOE Engineer). Each Advance request will provide sufficient detail of the subject Eligible Project Costs and include wire transfer instructions and copies of invoices. Each Advance request will be reviewed and certified by MPR Associates, Inc., or such other engineering firm selected by DOE in its sole discretion (the "DOE Engineer"). The DOE Engineer will be permitted to conduct reasonable periodic inspections of the Project during construction. Amounts requested in any Advance request will be funded by FFB within five business days following receipt by FFB of -6DC1 - 282632 12 Treasury Consult 435
(i) an Advance request from the applicable Borrower, and (ii) an Advance approval notice from DOE. DOE shall promptly review each Advance request and, after such review and receipt of all necessary certifications, shall promptly issue an Advance approval notice. Each Borrower may request Advances no more frequently than once per calendar quarter, or, in the case of Advances to pay interest-related expenses constituting Eligible Project Costs, once per calendar month. 9. Amortization; Term The outstanding principal amount of each Guaranteed Loan will be payable in quarterly installments commencing on a date to be agreed in the Definitive Agreements; provided that the applicable Borrower shall not be required to commence repayment of the principal amount of its Guaranteed Loan earlier than the projected commercial operation date for the Project (each such payment date, a "Principal Payment Date"). Amortization of each Guaranteed Loan will be computed on the basis of level mortgage-style debt amortization over a period of 40 years commencing from the projected commercial operation date for the Project (to be identified prior to the Financial Closing Date and specified in the Definitive Agreements), with the outstanding principal amount payable on the final maturity date of such Guaranteed Loan. The final maturity of each Guaranteed Loan will be the last Principal Payment Date to occur prior to the date that is 360 months after the [date of the initial Advance] [Financial Closing Date]. The interest rate on each Advance may be a fixed rate or a floating rate as selected by the applicable Borrower at the time of such Advance. The interest rate on each Advance (each such interest rate, an "Advance Interest Rate") will be a rate per annum equal to the sum of (x) the single equivalent rate of the Advance repayment stream determined from Treasury's "Constant Maturity Treasury" curve, taking into consideration the shortest maturity Treasury bill being then currently auctioned, up through the Constant Maturity Treasury rate corresponding to the period from the date of such Advance to [the end of the interest rate calculation period selected by the Borrower for such Advance]6, plus (y) a spread to be calculated prior to closing, to be determined in accordance
10.
Subject to confirmation by FFB.
with FFB policy guidelines. The applicable Borrower may select multiple interest rate calculation periods for each Advance in accordance with FFB policies and procedures, whereby the interest rate calculation method and interest rate period may be reset periodically for any particular Advance; provided, that each Advance shall have only one Advance Interest Rate at any given time. The applicable Borrower may request multiple Advances on the same Advance request date, each Advance with a separate interest rate calculation period. Any such interest rate resets shall not be considered amounts repaid and reborrowed for purposes of Section 3 (FFB Credit Facility) of this Term Sheet. All overdue amounts on each Guaranteed Loan will accrue interest at a late charge rate (the "Late Charge Rate") equal to one and one-half times the rate to be determined by the Secretary of the Treasury taking into consideration the prevailing market yield on the remaining maturity of the most recently auctioned 13-week United States Treasury bills. The initial Late Charge Rate shall be in effect until the earlier to occur of either (A) the date on which payment of the overdue amount and the amount of the accrued late charge is made, or (B) the first Principal Payment Date to occur after the scheduled date of payment for such overdue amount. In the event that the overdue amount and the amount of the accrued late charge are not paid on or before such Principal Payment Date, then the amount payable shall be the sum of the overdue amount and the amount of the accrued late charge, plus a late charge on such sum accruing at a new Late Charge Rate to be then determined in accordance with the preceding paragraph. For so long as any overdue amount remains unpaid, the Late Charge Rate shall again be redetermined on each Principal Payment Date, and shall be applied to the overdue amount and all amounts of the accrued late charge to the date on which payment of the overdue amount and all amounts of the accrued late charge is made. 11. Interest Payments Interest will accrue from the first Advance and be payable in cash in arrears on each date interest is due under the applicable FFB Promissory Note (each such payment date, an "Interest Payment Date"). On any Interest Payment Date to occur during the Availability Period, the applicable Borrower shall be permitted to borrow all or a portion of the amount of its accrued interest due and payable on such Interest Payment -8DC1 - 282632 12 Treasury Consult 437
Date by making a request for an Advance (and, subject to the satisfaction of all applicable conditions precedent, FFB will make an Advance by an internal transfer of funds on the books of the U.S. Department of the Treasury in the specified amount and shall apply such amount to the payment of such accrued interest). Interest on each Advance shall be computed on the basis of (a) actual days elapsed from (but not including) the date on which the respective Advance is made (for the first Interest Payment Date for the respective Advance) or the last Interest Payment Date (for all other payments of interest due under the applicable FFB Promissory Note for the respective Advance), to (and including) the next Interest Payment Date, and (b) a year of 365 days. 12. DOE Fees The Borrowers (or MEAG Power on their behalf) have paid or will pay the following fees to DOE (collectively, the "DOE Fees"): Application Fee: A single application fee (on behalf of all Borrowers) of $800,000 (which DOE acknowledges that it has received in two payments, the first on September 23, 2008 in the amount of $200,000 and the second on December 19, 2008 in the amount of $600,000). DOE Loan Facility Fee: A facility fee equal to 0.5% of each Guaranteed Loan Amount, 20% of which is payable upon the execution of this Term Sheet and 80% of which is payable not later than the Financial Closing Date (as defined below in Section 16 (Definitive Agreements) of this Term Sheet) for such Guaranteed Loan. DOE Maintenance Fee: A maintenance fee payable to DOE by each Borrower for DOE's administrative expenses in servicing and monitoring the Project and the applicable Guaranteed Loan during the construction, startup, commissioning and operation of the Project in the amount of $66,667 for the first year, subject to escalation each year as determined in the following sentence, until completion of the second refueling outage for the Project, at which time the maintenance fee for each Borrower shall be reset at $33,334, subject to escalation each year as determined in the following sentence for each remaining year over the scheduled term of the applicable Guaranteed Loan. The maintenance fee shall be payable each year in advance, commencing on the Financial Closing Date. [Escalation of the maintenance fee shall be in -9DC1 - 282632 12 Treasury Consult 438
an amount equal to the percentage determined by the sum of (i) the percentage (rounded to the nearest one-tenth of one percent) by which the ECI for the Base Quarter of the year before the preceding calendar year exceeds the ECI for the Base Quarter of the second year before the preceding calendar year (if at all), plus (ii) the amount of the comparability payment for federal government employees in the Washington Metropolitan Area (as defined by the United States Office of Management and Budget) recommended annually by the President's Pay Agent (if any).]7 "Base Quarter" means the quarter ending September 30 in the given calendar year and "ECI" means the Employment Cost Index, as published by the Bureau of Labor Statistics for the relevant period. DOE Modification Fee: A modification fee payable to DOE in the event that the Project experiences technical, financial, legal or other events which require the DOE to incur time or expenses (including third-party expenses) beyond standard monitoring of the applicable Definitive Agreements, reimbursing DOE in full for such amounts as DOE reasonably determines are its additional internal administrative costs and related expenses of its independent consultants and outside legal counsel, to the extent that such third parties are not paid directly by the applicable Borrower. 13. Credit Subsidy The credit subsidy cost for each DOE Guarantee is the "cost of a loan guarantee," as set forth in Section 502(5)(C) of the Federal Credit Reform Act of 1990 (each, a "Credit Subsidy Cost"). The final Credit Subsidy Cost amount for each Guaranteed Loan shall be determined by DOE in its sole discretion, taking into consideration, among other things, the spread to Treasury as applied by FFB, subject to review and approval by the Office of Management and Budget prior to the Financial Closing Date. Changes to the terms of the transaction requested by any Borrower that constitute "modifications" as set forth in Federal Credit Reform Act of 1990 and OMB Circular A-11 may result in an increase of the applicable Credit Subsidy Cost that such Borrower may be required to pay. Except if explicitly authorized by an act of Congress, none of the Borrowers shall
7
Calculation, and request to include de-escalation, under review.
- 10 DC1 - 282632 12 Treasury Consult 439
use any funds obtained from the United States government, or from a loan or other instrument guaranteed by the United States government, to pay for any Credit Subsidy Cost, administrative fees, or other fees charged by or paid to DOE pursuant to the Program Requirements.8 14. Mandatory Prepayments The Definitive Agreements shall require each Borrower to make mandatory prepayments of its Guaranteed Loan upon the occurrence of any of the following events (with customary qualifications and exceptions): (a) With the proceeds of insurance or condemnation to the extent such proceeds are not used to rebuild or restore the Project or upon a total loss to either of the Project's nuclear Units; the receipt of liquidated damages under the engineering, procurement and construction contracts, other than (i) amounts used to pay to construct, rebuild or restore the Project and (ii) the amounts of any delay liquidated damages needed to pay financing and operating costs payable during the period of the delay; sales of any assets no longer used or useful in the operation of the Project facilities, or any other assets of the applicable Borrower, in excess of an amount to be agreed in the Definitive Agreements in a single transaction or a series of related transactions, in an amount equal to the proceeds of such unless applied or to be applied to the acquisition of replacement assets; and at DOE's request, in the event of (and pro-rata to) any prepayment of the applicable Bond Facility, other than (i) a refunding or refinancing of any such Bond Facility or (ii) a redemption of any such Bond Facility with proceeds disbursed under such Bond Facility that were not applied to, and are not needed for, the payment of Project costs.
(b)
(c)
(d)
Mandatory prepayments may include a premium or a discount
Required pursuant to 609.10(c) of the Regulations.
in accordance with FFB requirements. 15. Voluntary Prepayments Each Borrower may prepay all of the principal amount of any Advance of its Guaranteed Loan upon prior written notice to FFB, DOE and the Loan Servicer and subject to certain conditions, including without limitation: (i) minimum amount requirements and (ii) payment of (x) all accrued and unpaid interest on such principal amount, and (y) any fees and expenses then payable, including any prepayment premiums or other amounts as may be required under the Definitive Agreements. All voluntary prepayments will be applied to the remaining scheduled principal payments on the applicable Guaranteed Loan at MEAG Power's sole discretion. Mandatory prepayments may include a premium or a discount in accordance with FFB requirements. 16. Definitive Agreements Upon execution of this Term Sheet by DOE and MEAG Power, the parties agree to work to negotiate and execute mutually acceptable Definitive Agreements for the Guaranteed Loans to each Borrower and the DOE Guarantees. The Definitive Agreements shall set forth the final terms for the Guaranteed Loans and the DOE Guarantees. The Definitive Agreements for the Guaranteed Loan to each Borrower shall include without limitation (i) a Common Terms Agreement, a Loan Guarantee Agreement, an FFB Note Purchase Agreement, an FFB Promissory Note, a Consent and Acknowledgment from the other Owners and an FFB Program Financing Agreement, (ii) the security documents, such as the Collateral Agency Agreement and all security agreements necessary or desirable to create and perfect security interests in the Collateral and the Shared Collateral, (iii) with respect to each Guaranteed Loan, an Equity Contribution and Undertaking Agreement (each, an "Equity Contribution and Undertaking Agreement") among MEAG Power, the applicable Borrower, DOE and FFB, pursuant to which MEAG Power will commit to provide the applicable Base Equity Commitment and Overrun Equity Commitment and to make certain undertakings, for the duration of the applicable Guaranteed Loan, including with respect to the applicable MEAG Power PPA(s) (such as enforcement of rights, limitations on amendments, waivers and liens, and application of revenues) and the applicable Bond Facility resolutions (such as limitations on amendments), and the threshold for applicability of the limitations to be included in such undertakings will be agreed in the Definitive Agreements, (iv) other definitive agreements, such as the Environmental - 12 DC1 - 282632 12 Treasury Consult 441
Indemnity Agreements and others reasonably required by DOE or FFB as a result of matters specifically identified in their due diligence investigation. The execution of each Loan Guarantee Agreement and FFB Promissory Note and the issuance of the DOE Guarantee (the date of such execution and issuance, the "Financial Closing Date") will be subject to the satisfaction of all of the conditions set forth in Section 17 (Conditions Precedent to Financial Closing Date) and Section 18 (Conditions Precedent to Each Advance) of this Term Sheet. The initial Advance under each Guaranteed Loan may not be made prior to the occurrence of the Financial Closing Date for such Guaranteed Loan. 17. Conditions Precedent to Financial Closing Date The occurrence of the Financial Closing Date for each Guaranteed Loan is subject to closing conditions as are usual and customary for financings of this type or as are otherwise deemed necessary or appropriate for this transaction in particular, including without limitation to the satisfaction of the following conditions, each of which must be to the satisfaction of DOE or FFB, as applicable: (a) DOE shall have completed its due diligence review of the applicable Borrower, MEAG Power, the Project, the Operator, and all matters related thereto, and the results thereof shall be satisfactory to DOE, including that no material adverse issues exist with respect to the applicable Borrower, MEAG Power, the Project, the Operator, or any Material Offtaker under the laws of the United States, the State of Georgia, or any subdivision thereof. As used herein, "Material Offtakers" means (i) with respect to SPV1, JEA and certain other material Offtakers (or group of Offtakers) for SPV1's Undivided Interest that are participants in MEAG Power, (ii) with respect to SPV2, PowerSouth and certain other material Offtakers (or group of Offtakers) for SPV2's Undivided Interest that are participants in MEAG Power, and (ii) with respect to SPV3, certain material Offtakers (or group of Offtakers) for SPV3's Undivided Interest; MEAG Power will have assigned to the applicable Borrower its Undivided Interest, pursuant to documentation satisfactory to DOE;
(b)
(c) (d)
execution of the Definitive Agreements for each Guaranteed Loan;
(b)(4)
MEAG Power will have entered into (b)(4)
(e)
(b)(4)
9
Orrick to provide language. Note to DOE: Is this description adequate for credit review? Or should the term sheet include more detail on how these PPAs work during the first 20 years and the final 30 years?
10
Documents, Documents"); (g) (h)
collectively,
the
"Transaction
all representations and warranties shall be true and correct; delivery of all necessary consents, approvals and waivers from third parties; including consents to assignment; delivery of organizational documents in form and substance satisfactory to DOE for the applicable Borrower, MEAG Power and the Material Offtakers; delivery of secretary's certificates, resolutions, incumbencies and (to the extent applicable) good standing certificates for the applicable Borrower, MEAG Power and the Material Offtakers in form and substance acceptable to DOE; delivery of such legal opinions, bring-down certificates, reliance letters and similar documents as DOE or FFB may request, including legal opinions under the laws of New York, Georgia, Florida and Alabama, and covering, among other matters, the enforceability of the MEAG Power PPAs with the MEAG Participants, JEA and PowerSouth (and, in particular, the enforceability of the hell-or-high-water provisions thereof), the Bond Facility resolutions and validation orders; delivery of most recent (i) financial statements for the applicable Borrower, MEAG Power, JEA (in the case of SPV1) and PowerSouth (in the case of SPV2) and (ii) to the extent available, "shadow ratings" from Standard & Poors, Moody's or Fitch for the MEAG Power participants that are Offtakers for the applicable Borrower; not later than 30 days prior to the Financial Closing Date, delivery of an updated credit rating from a nationally recognized rating agency reflecting the Conditional Commitment without the DOE Guarantee; payment in full of the applicable Credit Subsidy Cost in accordance with Program Requirements;
(i)
(j)
(k)
(l)
(m)
(n)
(o) (p)
payment of all DOE Fees due as of the Financial Closing Date; the Director of the Office and Management and Budget has certified in advance in writing that the applicable DOE Guarantee and the Project comply with the provisions of the Omnibus Appropriations Act, 2009, P.L. No. 111-8, Division C, Title III, as amended by Section 408 of the Supplemental Appropriations Act, 2009, P.L. No. 111-32; acquisition of all real estate rights and other property interests required for the development of the Project; evidence that the Owners have available all the patents and technology necessary to complete and operate the Project; delivery of environmental site assessments and associated reliance letters and satisfaction of any additional environmental requirements in accordance with DOE policy set forth in the Definitive Agreements; the Operator shall have received the COL and the relevant parties shall have received all environmental, regulatory and other permits and approvals then required for the current stage of development of the Project, including the final environmental impact statement, the final safety evaluation report and the publication of a record of decision by DOE; delivery of a report and associated closing certificate from the DOE's Engineer; evidence that (i) MEAG Power has authority to issue bonds for the full amount of the Base Equity Commitment and for at least $[] that could be utilized to cover the aggregate Overrun Equity Commitment for all Borrowers, and (ii) Bond Facilities have been raised in an amount of at least12 (A) $[] for SPV 1 (to
(q) (r)
(s)
(t)
(u) (v)
12
Note to MEAG: please propose amounts.
satisfy its Base Equity Commitment and to provide availability for its Overrun Equity Commitments), (B) $[] for SPV 2 (to satisfy its Base Equity Commitment and to provide availability for its Overrun Equity Commitments), and (C) $[] for SPV 3 (to satisfy its Base Equity Commitment and to provide availability for its Overrun Equity Commitments); (w) receipt of the Advance Schedule, the Financial Plan, the Base Case Projections, the Construction Plan, and the Construction Budget; not less than 30 days prior to the Financial Closing Date, updated financing information if the terms and conditions of the financing arrangements changed between the date of execution of this Term Sheet and the Financial Closing Date, and the Parties shall amend the Definitive Agreements to reflect the revised terms and conditions in the event such revisions occur; evidence of the filing of all documents and taking of all actions required or desirable to ensure perfection of a first-priority perfected security interests in the Collateral and the Shared Collateral (which shall be free and clear of all liens other than Permitted Liens); delivery of a certification from the applicable Borrower, certificates from insurers, and such other evidence as DOE may request (i) that such Borrower has in effect insurance coverage for the Project that is in accordance with normal nuclear industry practices, and (ii) that the applicable insurance policies are in full force and effect without default and that all premiums have been paid; delivery of evidence that notice to proceed has been issued under the EPC Agreement; evidence that the Project Accounts have been established, and that satisfactory arrangements have been put in place with respect to the Shared Collateral; receipt of satisfactory lien and judgment searches; all DOE requirements as set forth in the Regulations have been satisfied; and
(x)
(y)
(z)
(aa) (bb)
(cc) (dd)
(ee)
receipt by DOE of satisfactory evidence that each Borrower has complied with all Davis Bacon Requirements (as defined below in Section 20(aa) (Affirmative Covenants) of this Term Sheet).
18.
Conditions Precedent to Each Advance
Each Advance of each Guaranteed Loan and DOE Guarantee, including the initial Advance and the occurrence of the Financial Closing Date, will be subject to conditions as are usual and customary for financings of this type, or as are otherwise deemed necessary or appropriate for this transaction in particular (with customary qualifications and exceptions, including materiality and material adverse effect qualifiers), including the satisfaction of the following conditions, each of which must be to the satisfaction of DOE or FFB, as applicable: (a) (i) all representations and warranties shall be true and correct in all material respects, provided that any representation and warranty relating to an earlier date shall be true and correct in all material respects as of such earlier date, and (ii) no Event of Default or potential Event of Default shall have occurred and be continuing; provided, however, that if the relevant default is one of the defaults referenced in the proviso at the end of Section 22 (Events of Default) of this Term Sheet, and subsection (i) or (ii) of such proviso shall apply to such default, such default shall be deemed not to be continuing for purposes of this Section 18(a); the applicable Borrower is in compliance with its Definitive Agreements and MEAG Power is in compliance with the applicable Equity Contribution and Undertaking Agreement; receipt of an Advance request from the applicable Borrower, together with a certification as to the satisfaction of conditions precedent; (not applicable for Financial Closing Date if no Advance is to be made) payment of all DOE Fees and other fees and expenses payable to DOE, its counsel and its advisors that are then due; receipt of all necessary certifications and delivery of officer's certificates and other customary certificates;
(b)
(c)
(d)
(e)
(f)
immediately following the Advance, the aggregate amount of all Base Equity for such Borrower shall equal or exceed such Borrower's Balance Percentage of its Eligible Project Costs previously paid by or on behalf of the Borrower or previously funded with Advances, plus all Ineligible Project Costs then required for the timely completion of the Project; (not applicable for Financial Closing Date if no Advance is to be made) receipt of written certification from the applicable Borrower that it has complied with the reporting requirements of the Program Requirements; evidence that the proceeds of all Advances to be made will pay for Eligible Project Costs that have been incurred, together with sufficient description thereof, as certified by DOE's Engineer; (not applicable for Financial Closing Date if no Advance is to be made) certification by the applicable Borrower that the proceeds of all prior Advances have been applied for Eligible Project Costs; (not applicable for Financial Closing Date or initial Advance) copies of all governmental approvals, permits or consents not previously delivered, as required from time to time for the construction or operation of the Project or as otherwise required under the Transaction Documents; such other documents, certifications or consents relating to the Project or the matters contemplated by the Transaction Documents as DOE may reasonably request; and receipt by DOE of satisfactory evidence that the applicable Borrower has complied with all Davis Bacon Requirements.
(g)
(h)
(i)
(j)
(k)
(l)
19.
The Definitive Agreements will contain such customary and appropriate representations and warranties as are usual and customary for financings of this kind or are otherwise deemed appropriate by DOE and FFB for this transaction in particular (with customary qualifications and exceptions, including materiality, material adverse effect and knowledge qualifiers), including without limitation: - 20 -
(a) (b) (c) (d) (e) (f)
due organization and valid existence; good standing of the applicable Borrower; power and authority; capitalization, ownership and organization; solvency; legality, validity and enforceability of the applicable Transaction Documents and the applicable Bond Facility resolutions; no conflicts with charter, bylaws, contracts and applicable laws; no litigation; indebtedness; no judgments or orders; no defaults; no judgments or orders against the applicable Borrower or MEAG Power that could reasonably be expected to have a material adverse effect on its financial condition; compliance by the applicable Borrower and the Project in all respects with Title XVII and the Regulations; compliance by the applicable Borrower and the Project in all material respects with (i) all other requirements of law and (ii) all other Program Requirements (other than subsection (i) of the definition of "Program Requirements") (it being understood that the Borrower shall be deemed in compliance with the foregoing for this purpose if (x) with respect to any assertion by any governmental agency of non-compliance, the applicable Borrower or the Operator is contesting in good faith by appropriate legal proceedings such assertion that the applicable Borrower or the Operator is not in compliance, and (y) with respect to any violation being cured pursuant to a Remediation Plan (as defined in Section 22 (Events of Default) of this Term Sheet), the applicable Borrower or the Operator - 21 -
(g) (h) (i) (j) (k) (l)
(m) (n)
is diligently working to cure such non-compliance according to such Remediation Plan); (o) (p) (q) (r) disclosure (including completeness and accuracy) and projections (including good faith and reasonableness); Project Plans; title to properties; no liens (except for the lien created by the security documents and agreed upon permitted liens) against the applicable Borrower's or Project's assets or the equity ownership of the applicable Borrower or the applicable MEAG PPAs or Shared Collateral; taxes; third party consents and government permits and approvals; validity, perfection and priority of security interests with respect to the Collateral and the Shared Collateral; financial statements present fairly, in all material respects, the financial position, results of operations and cash flows of the applicable Borrower and MEAG Power, as of and from the dates indicated, and such financial statements have been prepared in conformity with U.S. GAAP; Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and other labor and employment matters; no default under the Definitive Agreements has occurred and is continuing; [no corrupt or prohibited practices by the applicable Borrower;]13
(s) (t) (u)
(v)
(w)
(x) (y)
13
Language under consideration.
(z)
[no "Material Adverse Effect" (defined as (a) a material adverse change in, or a material adverse effect upon, the operations, business, assets, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the applicable Borrower [or MEAG Power]; (b) a material impairment of (i) the rights or remedies of FFB or DOE under the applicable Definitive Agreements or (ii) the ability of the applicable Borrower or MEAG Power to perform its obligations under the Definitive Agreements to which it is a party or (iii) the liens on the applicable Collateral or Shared Collateral; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability (i) against the applicable Borrower, MEAG Power or any Material Offtaker of any applicable Definitive Agreement or Project Document to which it is a party or (ii) of any Bond resolution]; [Under consideration] not required to register as an investment company under the Investment Company Act of 1940, as amended; based on conditions existing as of the date of such representation, the applicable Borrower reasonably expects that total funding available to the applicable Borrower will be sufficient to fund such Borrower's share of (i) the MEAG Base Project Costs and (ii) the MEAG Overrun Project Costs that are reasonably expected to be incurred; no violation of Foreign Asset Control Regulations; the Guaranteed Loan will not finance, directly or indirectly, tax-exempt debt obligations;14 insurance; possession of franchises, certificates, licenses, permits and other authorizations necessary for operation;
(aa)
(bb)
(cc) (dd) (ee) (ff)
14
Note: DOE to consider if allowing bonds used to fund excess equity to be repaid with proceeds of the Guaranteed Loan would conform with this covenant.
(gg)
no funds, personnel or property (tangible or intangible) of any federal agency, instrumentality, personnel or affiliated entity are expected to be used (directly or indirectly) through acquisitions, contracts, demonstrations, exchanges, grants, incentives, leases, procurements, sales, other transaction authority, or other arrangements, to support the Project or to obtain goods or services from the Project, except to the extent that the Project benefits from any exemption set forth in Omnibus Appropriations Act, 2009, P.L. No. 111-8, Division C, Title III, as amended by Section 408 of the Supplemental Appropriations Act, 2009, P.L. No. 11132;15 availability and adequacy of all patents and technology necessary to complete and operate the Project; government permits and approvals; environmental and safety matters; applicable Project Documents; the applicable Borrower has delivered to DOE a current and complete copy of the construction plan and budget;
(hh) (ii) (jj) (kk) (ll)
(mm) single-purpose nature of the applicable Borrower, no prior business activity other than related to its Undivided Interest in the Project; (nn) (oo) (pp) (qq) (rr) no subsidiaries of the applicable Borrower; existing and other material agreements; operation of business; ownership and sufficiency of Project assets, Project Documents and necessary assignments; rights to intellectual property;
15
Note: DOE to consider if "Build America Bonds" would conform to this covenant.
(ss) (tt) (uu) (vv)
third party consents; no transactions with Affiliates, other than pursuant to the Transaction Documents on arm's length basis; not subject to the Public Utility Company Holding Act; no judgment liens; and
(ww) compliance with all Davis Bacon Requirements. Unless otherwise noted, the representations and warranties in (a) - (e) above will include representations and warranties related to MEAG Power and the Borrowers only. 20. Affirmative Covenants The Definitive Agreements shall contain such affirmative covenants as are usual and customary for financings of this kind or as are otherwise deemed appropriate by DOE and FFB for this transaction in particular (with customary qualifications and exceptions, including materiality), including, without limitation, regarding: (a) (b) (c) (d) use of proceeds; maintenance of company existence, rights, franchises and authority; separateness; maintenance of first priority security interests in the Collateral and (b)(4) interests in the Shared Collateral; performance of Transaction Documents to which it is a party and other material agreements to which it is a party; provision of financial statements and other information as provided in Section 28 (Reporting Requirements) of this Term Sheet; provision of default notices and notices of other material events and information, including material events involving any applicable Borrower PPA or MEAG Power PPA; maintenance of required insurance and application of
(e)
(f)
(g)
(h)
proceeds thereof; (i) (j) (k) payment of taxes, fees, etc.; maintenance of nationally recognized independent auditors; maintenance of books and records and inspection thereof, including such records as are necessary to facilitate an effective and accurate audit and performance evaluation of the Project as required by Program Requirements; maintenance of properties in good working order and title thereto; compliance with debarment regulations; maintenance of audit provisions complying with 10 C.F.R. 609.10(f); compliance with lobbying requirements under 31 U.S.C. 1352; provision to DOE of construction budgets, monthly construction progress reports for the Project, period operating budgets and progress reports for the Project and disclosure of cost overruns; maintenance of and compliance with permits, licenses, approvals and consents for the applicable Borrower and the Project; construction of the Project substantially in accordance with the Project Plans as directed or permitted by the NRC; provision to DOE and its representatives and advisors, including DOE's Engineer, of access to the Project site and ancillary facilities at all reasonable times in order to monitor the performance of the Project, subject to the rules and regulations of the NRC; maintenance of all patents and technology necessary to complete and operate the Project; provision of a description of any material changes to any existing, and copies of any new, material - 26 DC1 - 282632 12 Treasury Consult 455
(l) (m) (n) (o) (p)
(q)
(r)
(s)
(t) (u)
agreements; (v) (w) (x) (y) (z) maintenance of adequate accounting, management information and cost control systems; maintenance of Project Accounts and the cash flow arrangements forming part of the Shared Collateral; ERISA covenants; further assurances; compliance with the requirement that all laborers and mechanics employed by contractors and subcontractors in the performance of construction work related to the Project shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with the Davis Bacon Act, and all regulations related thereto, including but not limited to those set forth in 29 C.F.R. 5.5(a)(1) to (10), and all notice, reporting and other obligations related thereto as required by DOE (collectively, the "Davis Bacon Requirements"); at the request of DOE, exercise its right to conduct management audits of GPC's performance as agent for the Owners in respect of the Project, pursuant to the terms of the Project operating agreement; and maintenance of insurance coverage for the Project that is in accordance with normal nuclear industry practices, provided that such insurance coverage is available on commercially reasonable terms, conditions and price.
(aa)
(bb)
21.
Negative Covenants
The Definitive Agreements shall contain such negative covenants as are usual and customary for financings of this kind or as are otherwise deemed appropriate by DOE and FFB for this transaction in particular (with customary qualifications and exceptions, including materiality), including without limitation: (a) no transactions with affiliates that are not conducted pursuant to the Transaction Documents or otherwise (i) on an arm's length basis or (ii) at cost;
(b) (c)
no merger, consolidation, dissolution, or other similar actions; the applicable Borrower shall not incur or permit to exist any lien with respect to any of its Undivided Interest or other assets except for certain permitted exceptions; no transfer of any of such Borrower's Undivided Interest or other assets, transfer or release of the Collateral or the Shared Collateral, or other similar actions; no material modifications of the Project Plans, except as approved by the NRC and any other regulatory authority the approval of which is required by law; no material change to the Project or engaging in other lines of business; no incurrence of additional debt or guarantees (other than indebtedness in respect of amounts to trade creditors and accrued expenses arising in the ordinary course of business); no acquisitions and dispositions of assets or capital expenditures; no lease (or sale-leaseback) transactions; no investments (other than permitted investments to be defined); no formation of subsidiaries partnerships or joint ventures; or entering into
(d)
(e)
(f) (g)
(h) (i) (j) (k) (l)
no changes to organizational documents, legal form, fiscal year or capital structure (including the issuance of any options, warrants, or other rights with respect thereto); no issuance of equity (subject to exceptions to be agreed, including without limitation issuance of equity to MEAG Power); no termination, amendment or waiver of any provision of any applicable Borrower PPA, MEAG Power PPA,
(m)
(n)
[or any of the JV Agreements]; (o) (p) (q) no material amendment or waiver of any provision of the applicable Bond Facility resolutions; no hedging or speculative transactions, other than as specifically permitted or required by DOE; no compromise or settlement of any material dispute under any Borrower PPA or MEAG Power PPA without the prior written consent of DOE; no vote to replace or remove the Operator or GPC as agent for the Owners without the prior written consent of DOE; no abandonment of the Project; no use of the proceeds of any Advance for the purchase of margin stock; limitations on prepayments, redemptions and repurchases of debt (other than the applicable Guaranteed Loan) except as permitted under Section 14(d) (Mandatory Prepayments) of this Term Sheet; limitations on capital expenditures outside of approved operating budget; and no dividends.
(r)
(s) (t) (u)
(v) (w)
Except for matters to be addressed in the applicable Equity Contributions and Undertaking Agreement, the affirmative and negative covenants shall be obligations of the applicable Borrower and not of MEAG. 22. Events of Default The Definitive Agreements shall contain events of default as are usual and customary for financings of this kind or as are otherwise deemed appropriate by DOE and FFB for this transaction in particular (with customary qualifications, exceptions and grace periods, including materiality), including without limitation: (a) (b) failure to make payments when due; default under any other indebtedness of the applicable Borrower (other than the Guaranteed Loan);
(c)
failure by the applicable Borrower, or the Operator (with respect to the Project), or the Project to comply with the provisions of Title XVII and the continuance of such failure for a period of 30 days; provided, however, that the failure to comply with Section 1702(k) of Title XVII shall be an event of default only if such failure continues for a period of 90 days; failure by the applicable Borrower, or the Operator (with respect to the Project), or the Project to comply with the provisions of the Regulations, unless such breach is capable of being cured, in which case failure to cure such breach within a period of 90 days, so long as the Borrower or Operator is diligently pursuing such cure; failure by the applicable Borrower, or the Operator (with respect to the Project), or the Project to comply in all material respects with (i) all other requirements of law and (ii) all other Program Requirements (other than subsection (i) of the definition of "Program Requirements"), and the continuance of any such failure for a period of 90 days; breach of representations and warranties under any Definitive Agreement; breach of covenants under any Definitive Agreement; failure to fund when required the Base Equity Commitment or the Overrun Equity Commitment; bankruptcy, insolvency or dissolution of MEAG Power, any Material Offtaker or the applicable Borrower; judgments in excess of an amount to be agreed against the applicable Borrower; certain ERISA events; impairment of security interests in Collateral or the Shared Collateral; invalidity or unenforceability of any of the Definitive Agreements (other than the DOE Guarantee), the applicable Borrower PPA or MEAG PPAs or the applicable Bond Facility resolution(s) and related - 30 -
(d)
(e)
(f) (g) (h) (i)
(j) (k) (l) (m)
validation orders; (n) (o) breach or termination of any applicable Borrower PPA or MEAG PPA; revocation of the COL or any other permit or license necessary for the construction or completion or operation of the Project (following the exhaustion of all regulatory and judicial rights of appeal by the Operator and the Borrowers); cessation of construction or operations for a period of time to be set forth in the Definitive Agreements, or abandonment of the Project; physical destruction of any of the Project facilities that could reasonably be expected to have a material adverse effect on the Project or the business of the applicable Borrower and that has not been repaired with the proceeds of insurance within a specified number of days; acceleration of indebtedness of MEAG Power in excess of a specified threshold; without the prior written consent of DOE, a Change of Control occurs, it being agreed that as used herein, "Change of Control" means a failure of MEAG Power to own 100% of the equity interests in the applicable Borrower; failure by the applicable Borrower to use the proceeds of the Guaranteed Loan for Eligible Project Costs; failure by the applicable Borrower to fund its share of operation and maintenance expenses attributable to its Undivided Interest; failure by the applicable Borrower, the Operator or the Project to comply in all material respects with environmental and safety matters with respect to the Project, including without limitation with respect to compliance with the National Environmental Policy Act of 1969 (NEPA) and all other Environmental Laws applicable to the Project and the continuance of any such breach for a period of 90 days; and failure by the applicable Borrower to comply with - 31 DC1 - 282632 12 Treasury Consult 460
(p)
(q)
(r) (s)
(t) (u)
(v)
(w)
debarment regulations; provided, that for the events of default in subsections (e) and (v) the following shall apply: (i) the applicable Borrower shall not be in default at any time it or the Operator is contesting in good faith by appropriate legal proceedings any assertion by any governmental agency that the applicable Borrower or the Operator is not in compliance with the matters identified in such subsections, and (ii) in the event that such default cannot reasonably be cured within a 90-day period, the applicable Borrower will not be in default if the applicable Borrower or the Operator is diligently working to cure such default according to an applicable Remediation Plan. For purposes of this Term Sheet a "Remediation Plan" means a plan of correction with a timetable for curing such default that has been approved by a court of competent jurisdiction, or the lead regulatory authority with enforcement responsibility with respect to such matter, or DOE, as the case may be. 23. DOE Control; Remedies Assignment of Rights: As of the Financial Closing Date, FFB will delegate its rights, powers, privileges and remedies under the Definitive Agreements to DOE. Each Borrower agrees to the extent delegated by FFB to take post-closing direction solely from DOE. Subrogation: On and as of any business day that DOE pays any amount under the DOE Guarantee, DOE shall become subrogated to, and FFB shall be deemed to have assigned to DOE, without recourse and without need of any further action by any party, all of FFB's right, title and interest in and to (i) the principal of and interest on such guaranteed obligation and (ii) the Definitive Agreements to the extent of FFB's interest in such agreements, including, without limitation, any fees, costs, expenses and other amounts (such amounts, collectively, the "Additional Amounts"); provided, however, if acceleration of such guaranteed obligation has occurred, then such subrogation and assignment shall include the entire guaranteed amount of the guaranteed obligations, plus the Additional Amounts, notwithstanding that the Secretary shall be obligated to make payment hereunder only in installments on each subsequent Principal Payment Date and only as to the guaranteed amounts. DOE's subrogation rights shall be in addition to the rights assigned to it by FFB, and shall not be the exclusive source of rights, powers, privileges and remedies against each Borrower.
Remedies: Upon the occurrence and continuation of an Event of Default, DOE (and not FFB) will have the right, among others, without consultation, to do any or all of the following, without limitation: (a) suspend or terminate further Advances of the applicable Guaranteed Loan including any undrawn commitments, (b) accelerate the maturity of the applicable Guaranteed Loan, (c) take those actions necessary to perfect and maintain any or all of the security interests granted by the applicable Borrower, (d) set off and apply amounts to the satisfaction of the Guaranteed Obligations under all of the applicable Definitive Agreements, (e) cure defaults, (f) protect and enforce its rights and remedies by appropriate proceedings, including the filing of proofs of claim in any bankruptcy, insolvency, or other judicial proceeding, (g) exercise any and all rights and remedies available to it under any of the applicable Transaction Documents, and (h) in accordance with Section 609.10(e)(4) of the Regulations, take such other actions as DOE may reasonably require to provide for the care, preservation, protection, and maintenance of all Collateral so as to enable the United States to achieve maximum recovery upon default by a Borrower on its Guaranteed Loan; provided that during the Standstill Period DOE will not foreclose on and cause a transfer of ownership of the applicable Undivided Interest unless the Standstill Foreclosure Conditions are satisfied. In addition, upon the bankruptcy or insolvency of the applicable Borrower (including during the Standstill Period), the applicable Guaranteed Loan, together with interest accrued thereon and all other amounts due under the applicable Definitive Agreements, shall immediately mature and become due and payable. As used herein, "Standstill Period" means, (a) with respect to SPV1, during the term of the MEAG Power PPA with JEA, an Event of Default has occurred as a result of JEA's failure to satisfy its payment obligations under its MEAG Power PPA (and no Event of Default, other than a payment default on the Guaranteed Loan or any other Event of Default resulting from such failure, has occurred and is continuing) and (b) with respect to SPV2, during the term of the MEAG Power PPA with PowerSouth, an Event of Default has occurred as a result of PowerSouth's failure to satisfy its payment obligations under its MEAG Power PPA (and no Event of Default, other than a payment default on the Guaranteed Loan or any other Event of Default resulting from such failure, has occurred and is continuing); provided that (i) MEAG Power at all times during such Event of Default uses its best efforts to sell the - 33 DC1 - 282632 12 Treasury Consult 462
applicable Borrower's power generation into the market at the highest price available, (ii) DOE's lien on all revenues from the sales described in clause (i) immediately above will be first priority liens and senior to any lien securing the Bond Facilities, and (iii) the proceeds of any such sale shall be deposited directly into the applicable Borrower's Revenue Account. [Note: trap of cash during Standstill Period under discussion.] As used herein "Standstill Foreclosure Conditions" means, (a) with respect to SPV1, the purchaser of SPV1's Undivided Interest also acquires MEAG Power's obligations under the MEAG Power PPA with MEAG Power participants with respect to the period commencing after the 20 year term of the MEAG Power PPA with JEA has expired and (b) with respect to SPV2, the purchaser of SPV2's Undivided Interest also acquires MEAG Power's obligations under the MEAG Power PPA with MEAG Power participants with respect to the period commencing after the 20 year term of the MEAG Power PPA with PowerSouth has expired. 24. Collateral Each Borrower's obligations under its Guaranteed Loan and DOE Guarantee will be secured by a first-priority perfected security interest in certain of the assets of the Borrower, including without limitation (collectively, the "Collateral"): (a) (b) all equity interests in such Borrower; such Borrower's Undivided Interest in the Project, including all ownership interests of such Borrower in the Project and Project property (including fixtures, personal property and real property); such Borrower's interest in all intellectual property and licenses used in connection with the Project; such Borrower's interest in all governmental approvals and permits for the Project and the business of such Borrower; all revenues, accounts receivable, investment property, equity contributions, equity commitments and bank accounts of or payable to such Borrower, including without limitation the Project Accounts and all amounts therein; such Borrower's rights and interest under all Project Documents and all other contracts and agreements - 34 DC1 - 282632 12 Treasury Consult 463
(c) (d)
(e)
(f)
relating to the Project or to which the Borrower is a party; (g) (h) (i) (j) such Borrower's interest in all nuclear fuel purchased for the Project; such Borrower's rights to, or interests in, the Shared Collateral; such Borrower's interest in all insurance policies and proceeds and related rights with respect to the Project; the nuclear decommissioning trust agreement for such Borrower's interest in the Project, provided that the lien on that agreement will be subject to the requirements of the NRC and funds in such nuclear commissioning trust may not be used other than for the purposes required by the NRC; such Borrower's interest in all other agreements and rights required for the continued operation of the Project, including arrangements for the storage and disposition of spent nuclear fuel; any other assets and other collateral as required under the Program Requirements; and such other collateral as may be required by DOE or FFB based on their due diligence review of such Borrower, the Project, and all matters related thereto.
(k)
(l) (m)
The security interests in the Collateral will be granted in favor of the Collateral Agent or other agents designated by DOE. The Guaranteed Loan will not be subordinate to any loan or other debt obligation and the DOE will have a first-priority perfected security interest in the Collateral, subject only to customary permitted liens (see "Remedies" above for a discussion of DOE remedies). 25. Project Accounts Each Borrower will establish and maintain customary Project Accounts as required by its Definitive Agreements including the following: [Note: Orrick to provide updated draft of accounts/cash flow schedule discussed on Monday.] (a) Construction Proceeds Account (into which proceeds of the applicable Guaranteed Loan, the Base Equity Commitment, and the Overrun Equity Commitment, may be deposited, to be disbursed in accordance with - 35 DC1 - 282632 12 Treasury Consult 464
the approved construction budget upon receipt of an Independent Engineer certificate as to construction progress); (b) Revenue Account (into which all of such Borrower's revenues, including proceeds from the sale of power, (other than certain customary exceptions) will be deposited); Operating Account (for payment of such Borrower's share of operation and maintenance expenses for the Project and such Borrower's own costs of operating); Reserve and Contingency Account (for such Borrower's portion of responsibility for major maintenance, working capital, and other Project needs and, subject to confirmation by the Independent Engineer, to be sized in a manner similar to the Reserve and Contingency Fund for the Bond Facilities); Debt Service Accrual Account (reserving monthly for the upcoming debt service payment on the applicable Guaranteed Loan); Decommissioning Reserve Account (reserving for decommissioning and waste management expenses in compliance with applicable law); [Note: to be discussed as not reflected in the accounts/cash flow summary provided by Orrick.] Debt Service Reserve Account (to include the equivalent of 12 months scheduled debt service on such Borrower's Guaranteed Loan); and Insurance Proceeds Account (segregating proceeds of casualty and certain other insurance and condemnation proceeds pending allocation thereof). [Note: to be discussed as not reflected in the accounts/cash flow summary provided by Orrick.]
(c)
(d)
(e)
(f)
(g)
(h)
All Project Accounts will be established with, and subject to the control of, the Collateral Agent or other agents designated by DOE. The applicable Borrower will pay all related fees associated with the establishment and maintenance of the Project Accounts, including those related to the compensation of any account management agents as may be required by - 36 DC1 - 282632 12 Treasury Consult 465
DOE in its sole discretion. Payments under the MEAG Power PPAs will be required to be deposited into designated accounts acceptable to DOE, and the pro rata portion of such payments corresponding to the applicable Guaranteed Loan will be promptly deposited into the applicable Revenue Account (or, if agreed, certain other Project Accounts of the applicable Borrower) pursuant to a cash flow control mechanism to be agreed by DOE. 26. Revenue Account Waterfall All amounts on deposit in the Revenue Account shall be applied, from time to time, in the following order of priority: (i) Monthly, to fund such Borrower's Operating Account in an amount equal to such Borrower's budgeted operation and maintenance expenses (subject to permitted budget deviations to be agreed) for the following month (as an alternative, the Operating Account may be funded directly with that portion of MEAG Power's payments under the applicable Borrower PPA that is allocated to operation and maintenance expenses); When due and payable, to pay fees and expenses on the applicable Guaranteed Loan; Monthly, to fund such Borrower's Debt Service Accrual Account to the required level (as an alternative, the Debt Service Accrual Account may be funded directly with that portion of MEAG's payments under the applicable Borrower PPA that is allocated to debt service accrual for the applicable Guaranteed Loan); Monthly, to fund such Borrower's required Project reserves (i.e., the Reserve and Contingency Account and Decommissioning Reserve Account) to the required level (as an alternative, such Project reserves may be funded directly with that portion of MEAG's payments under the applicable Borrower PPA that is allocated to such Project reserves); Monthly, to fund such Borrower's Debt Service Reserve Account to the required level; and Annually, to fund any required year-end reconciliation payments payable by the applicable Borrower under its - 37 DC1 - 282632 12 Treasury Consult 466
(ii) (iii)
(iv)
(v) (vi)
Borrower PPA. 27. Expenses Each Borrower will bear all of the following amounts from time to time due under or in connection with its Definitive Agreements: (i) all recordation and other costs, fees and charges in connection with the execution, delivery, filing, registration, or performance of its Transaction Documents or the perfection of the security interests in its Collateral and the Shared Collateral, (ii) all fees, charges, and expenses of any independent consultants, legal counsel, accountants, and other advisors to DOE and (iii) all other fees, charges, expenses and other amounts from time to time due under or in connection with its Definitive Agreements. Each Borrower shall provide FFB, DOE and the Loan Servicer with the following reports, all in accordance with U.S. GAAP: (a) monthly construction reports consistent with such Borrower's requirement of GPC (as such Borrower's agent) to provide such reports to (i) the other Owners pursuant to the Project ownership agreements, (ii) the Georgia Public Service Commission and (iii) the NRC; monthly statement reports on its Project Accounts and on the accounts forming part of the Shared Collateral; quarterly financial statements and reports of the applicable Borrower and MEAG Power within 90 days after the end of each fiscal quarter, with such financial statements to be prepared in accordance with U.S. GAAP, subject to changes resulting from audit and normal year-end adjustments; annual financial statements and reports of the applicable Borrower and MEAG Power on or prior to 150 days after the end of each fiscal year, with such financial statements to be prepared in accordance with U.S. GAAP (except for changes with which the independent auditor shall concur); and other financial information of the applicable Borrower, MEAG Power or applicable Material Offtakers as reasonably requested by DOE, FFB or the Loan Servicer.
28.
Reporting Requirements
(b) (c)
(d)
(e)
29.
If any Borrower defaults in any payment due to FFB under its Guaranteed Loan or otherwise under any of its Definitive Agreements, and as a result of such payment default by such - 38 -
Borrower, DOE becomes obligated to make any payments to FFB pursuant to the DOE Guarantee, such Borrower shall become immediately obligated to reimburse DOE in an amount equal to the sum of (i) all applicable DOE Guarantee payments paid by DOE to FFB, (ii) all costs or expenses incurred by DOE in connection therewith, whether by payment to FFB or otherwise, and (iii) interest on each applicable DOE Guarantee payment from the date such payment was paid or incurred by DOE under the applicable DOE Guarantee until payment in full thereof by such Borrower to DOE at the applicable rate of interest provided in the applicable Definitive Agreement. Such Borrower Reimbursement Obligations are absolute, irrevocable and unconditional and will be evidenced by the DOE Reimbursement Note. 30. Waiver of Jury Trial; Consent to Jurisdiction; Governing Law Each Party waives any rights it may have to a trial by jury in respect of any litigation arising out of the Definitive Agreements. Each of the Borrowers and MEAG Power (a) submits to the non-exclusive general jurisdiction of (i) the courts of the United States of America located in the District of Columbia, (ii) any other federal court of competent jurisdiction in any other jurisdiction where it or any of its property may be found, and (iii) appellate courts from any of the foregoing, and (b) waives any right to claim inconvenience of the forum. The choice of law provision in the Definitive Agreements and any other transaction document to which DOE is a party, or under which it may have or come to have any rights or obligations, whether by subrogation or otherwise (other than mortgages and other similar agreements appropriately the subject of local law, which may substitute reference to such law for that of New York in the following clause), shall be as follows: THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE FEDERAL LAW OF THE UNITED STATES OF AMERICA. TO THE EXTENT THAT FEDERAL LAW DOES NOT SPECIFY THE APPROPRIATE RULE OF DECISION FOR A PARTICULAR MATTER AT ISSUE, IT IS THE INTENTION AND AGREEMENT OF THE PARTIES HERETO THAT THE LAW OF THE STATE OF NEW YORK SHALL BE ADOPTED AS THE GOVERNING FEDERAL RULE OF DECISION. - 39 DC1 - 282632 12 Treasury Consult 468
31.
Freedom of Information Act (FOIA)
The parties acknowledge and agree that all correspondence, books, documents, papers and records relating to the structuring, negotiation and execution of this Term Sheet, the Definitive Agreements, and all supporting documentation, financial statements, audit reports of independent accounting firms, permits and regulatory approvals furnished or otherwise made available to DOE, will be handled in accordance with all applicable federal laws, rules, or regulations, including but not limited to the Trade Secrets Act, 18 U.S.C. 1905, and the Freedom of Information Act (FOIA), 5 U.S.C. 552, and DOE's implementing regulations at 10 C.F.R. 1004.
The closing of any financial transaction relating to the Guaranteed Loans is subject to Definitive Agreements acceptable to the applicable Borrower, DOE and FFB.
Whitcombe, Nicholas Atkins, Preston Jr; Re: DOE Loan Guarantee for Oglethorpe Power Corp (Vogtle) Thursday, December 10, 2009 8:35:15 AM
Preston, when are you available to talk today? ----- Original Message ----From: Whitcombe, Nicholas To: 'Preston.Atkins@do.treas.gov' <Preston.Atkins@do.treas.gov> Sent: Wed Dec 09 11:32:45 2009 Subject: Re: DOE Loan Guarantee for Oglethorpe Power Corp (Vogtle) Preston, We have a senoir lien on assets under the first mortgage indenture, so I am not sure what the question is. I'll give you a call to clarify. Nick ----- Original Message ----From: Preston.Atkins@do.treas.gov <Preston.Atkins@do.treas.gov> To: Whitcombe, Nicholas; Gary.Burner@do.treas.gov <Gary.Burner@do.treas. gov>; Paula.Farrell@do.treas.gov <Paula.Farrell@do.treas.gov> Cc: Pearl.Buenvenida@do.treas.gov <Pearl.Buenvenida@do.treas.gov>; Mike. Dai@do.treas.gov <Mike.Dai@do.treas.gov>; Karen.Weber@do.treas.gov <Karen.Weber@do.treas.gov>; Colleen.Mcloughlin@do.treas.gov <Colleen. Mcloughlin@do.treas.gov>; Edward.Garnett@do.treas.gov <Edward.Garnett@do. treas.gov>; Krauss, Lori Sent: Wed Dec 09 11:13:51 2009 Subject: RE: DOE Loan Guarantee for Oglethorpe Power Corp (Vogtle) Nick, I attended a meeting at OMB yesterday afternoon that was, in part, about the b5 b5 Oglethorpe piece of the Vogtle nuclear project. b5
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consult with Kelly about this. The purpose of this email is to request that you send to Treasury the same document(s) that you send to OMB. Please send it or them to myself and Paula Farrell.
Thanks, Preston -----Original Message----From: Whitcombe, Nicholas [mailto:Nicholas.Whitcombe@hq.doe.gov] Sent: Tuesday, December 08, 2009 8:57 AM To: Atkins, Preston Jr; Burner, Gary; Farrell, Paula Cc: Frantz, David Subject: DOE Loan Guarantee for Oglethorpe Power Corp (Vogtle) Importance: High Preston, Please see attached Oglethorpe term sheet for FFB review and credit paper for reference. LGPO plans credit committee meeting on Tuesday, December 15, with a credit review board scheduled for Thursday, December 17. Please call / email with any questions. Regards, Nick Nicholas P. Whitcombe Department of Energy 202.287.5406
ANNEX A TO DOE LOAN GUARANTEE LETTER SUMMARY OF TERMS AND CONDITIONS This term sheet (Term Sheet) is a summary of the proposed principal terms and conditions for a U.S. Department of Energy (DOE) guarantee of a loan to Oglethorpe Power Corporation (An Electric Membership Corporation) (the Borrower) made by the Federal Financing Bank (FFB), pursuant to Title XVII of the Energy Policy Act of 2005, as amended (Title XVII). The complete and final terms and conditions will be set forth in appropriate documentation (the Definitive Agreements), which will be negotiated by DOE, FFB and the Borrower (collectively, the Parties). Capitalized terms used but not defined in this Term Sheet have the meanings given to such terms (as of the date hereof) in the final regulations located at 10 C.F.R. Part 609 promulgated by DOE to implement Title XVII (the Regulations). All provisions of this Term Sheet are subject to the following: (i) the provisions of Title XVII and the Regulations, and (ii) all DOE or FFB legal and financial requirements, policies, and procedures applicable to the Title XVII program from time to time (the Program Requirements, except that from and after the date that the Definitive Agreements are entered into, the term Program Requirements shall not include DOE or FFB requirements, policies and procedures referenced at subsection (ii) of the definition not having the force of law). 1. Parties Borrower: Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation organized and existing under the laws of Georgia. Eligible Lender: FFB, an instrumentality of the United States government created by the Federal Financing Bank Act of 1973 that is under the general supervision of the Secretary of Treasury. Loan Servicer: FFB, DOE, or such other financial institution selected by DOE in its sole discretion. 2. Project The construction of an approximately 2,214 MW nuclear generating facility in accordance with the Project Plans (as defined below), utilizing the Westinghouse AP1000 technology, and located approximately 30 miles south of Augusta, Georgia, including associated transmission facilities and fuel (the Project). The Project will be comprised of two units (the Units). The AP1000 is a pressurized water reactor with passive safety systems, designed to achieve and maintain safe shutdown in case of design-basis accidents without operator action, AC power or pumps. The Borrower owns a 30% undivided interest in the Project (the Undivided Interest), and Georgia Power Company (GPC) owns a
45.7% undivided interest, Municipal Electric Authority of Georgia or various subsidiaries of Municipal Electric Authority of Georgia (MEAG) owns a 22.7% undivided interest, and the City of Dalton (Dalton) owns a 1.6% undivided interest (collectively, the Borrower, GPC, MEAG and Dalton are referred to as the Owners). The Borrower will provide, or cause to be provided, detailed project plans that have been approved by the United States Nuclear Regulatory Commission (the NRC) and any other regulatory authority the approval of which is required by law for the design, construction, equipping, operation and maintenance of the Project (the Project Plans), including without limitation engineering and construction plans, operating and maintenance plans and/or management plans. Such Project Plans may be revised from time to time by the Borrower or the Operator (as defined below) subject to receipt of any required approvals of the NRC and any other regulatory authority the approval of which is required by law. Southern Nuclear Operating Company, a wholly-owned subsidiary of The Southern Company (the Operator), will oversee construction of and operate the Project on behalf of the Owners. The Operator will be the holder of the combined construction permit and operating license (the COL) issued by the NRC. The Operator currently operates the Vogtle Electric Generating Plants Units 1 and 2, as well as four other nuclear units. The Borrower will provide detailed plans for financing all of the estimated costs attributable to the Borrowers Undivided Interest in the Project (OPC Base Project Costs). The Borrower estimates as of the date of this Term Sheet that such costs equal $[__________], as set forth on Schedule I 1 attached hereto. As used herein, OPC Overrun Project Costs shall mean the portion of costs attributable to the Borrowers Undivided Interest in the Project, if any, in excess of OPC Base Project Costs. 3. FFB Credit Facility A loan from FFB (the Guaranteed Loan) available to the Borrower in the principal amount (the Guaranteed Loan
Schedule I detailing OPC Base Project Costs to be provided by the Borrower in consultation with the DOE Engineer.
Amount) of up to the lesser of (i) $[2,915,000,000] and (ii) 70% of Eligible Project Costs, as set forth on Schedule II attached hereto. As used herein, Eligible Project Costs shall mean those portions of OPC Base Project Costs that are eligible for funding as Project Costs as defined in the Regulations. Amounts borrowed and repaid may not be reborrowed. 4. Funding Commitments All portions of OPC Base Project Costs that are not Eligible Project Costs, plus those portions of Eligible Project Costs for which the Guaranteed Loan Amount is not available (Ineligible Project Costs) shall be paid by the Borrower. The Borrower shall (i) fund its Undivided Interest in the Project (Base Funding) in an amount not less than 100% of all Ineligible Project Costs (the Base Funding Commitment), and (ii) fund 100% of OPC Overrun Project Costs (the Overrun Funding Commitment) from sources other than the Guaranteed Loan; provided that following the occurrence of a Mandatory Prepayment Event as provided in Section 14(e) (Mandatory Prepayments) of this Term Sheet, the Borrower shall not be obligated to fund the Overrun Funding Commitment. An unconditional guarantee by DOE (the DOE Guarantee) of 100% of the principal of and interest on the Guaranteed Loan (the Guaranteed Obligations) in accordance with the Program Requirements and on terms and conditions as agreed with FFB. The DOE Guarantee will be irrevocable and unconditional and will pledge the full faith and credit of the United States of America to the payment of the Guaranteed Obligations. Subject to the terms of the Definitive Agreements, advances of the Guaranteed Loan (each an Advance) may be requested from time to time during the period from (x) the date of the satisfaction of the conditions to the initial Advance through (y) a date to be agreed in the Definitive Agreements (the Availability Period). The proceeds of Advances will be used to pay Eligible Project Costs in accordance with a financial plan and construction budget to be submitted by the Borrower. The Borrower will provide updated financial plans and construction budgets to DOE each quarter, unless there have been no changes to the previously delivered plans and budgets, in which case the Borrower will notify DOE that no changes have been made.
5.
DOE Guarantee
6.
7.
8.
Use of Proceeds
The Borrower shall request an Advance by submitting an Advance request to DOE. The Borrower will certify in each Advance request that the amounts are to be borrowed: (i) to pay Eligible Project Costs then due and payable, or (ii) to reimburse the Borrower for Eligible Project Costs that have been previously paid and have not been the subject of a prior Advance, in each case in accordance with the financial plan and construction budget submitted by the Borrower. Each Advance request will provide sufficient detail of the subject Eligible Project Costs and include wire transfer instructions and copies of invoices or other supporting documentation satisfactory to DOE. Each Advance request will be reviewed and certified by MPR Associates, Inc., or such other engineering firm selected by DOE in its sole discretion (the DOE Engineer). The DOE Engineer will be permitted to conduct reasonable periodic inspections of the Project during construction. Amounts requested in any Advance request will be funded by FFB within five business days following receipt by FFB of (i) an Advance request from the Borrower, and (ii) an Advance approval notice from DOE. DOE shall promptly review each Advance request and, after such review and receipt of all necessary certifications, shall promptly issue an Advance approval notice. The Borrower may request Advances no more frequently than once per calendar quarter. 9. Amortization; Term The outstanding principal amount of the Guaranteed Loan will be payable in accordance with Schedule III, with installments of principal commencing on a date to be agreed in the Definitive Agreements; provided that the Borrower shall not be required to commence repayment of the principal amount of the Guaranteed Loan earlier than the projected commercial operation date for the Project (each such payment date, a Principal Payment Date). The final maturity of the Guaranteed Loan will be the last Principal Payment Date to occur prior to the date that is 360 months after the date of the initial Advance. The interest rate on each Advance may be a fixed rate or a floating rate as selected by the Borrower at the time of such Advance. The interest rate on each Advance (each such interest rate, an Advance Interest Rate) will be a rate per annum equal to the sum of (x) the single equivalent rate of the Advance repayment stream determined from Treasurys Constant Maturity Treasury curve, taking into consideration the shortest maturity Treasury bill being then currently auctioned, up through the Constant Maturity Treasury rate corresponding to the period from the date of such Advance to
10.
the final maturity of the Guaranteed Loan, plus (y) a spread to be calculated prior to closing, to be determined in accordance with FFB policy guidelines. The Borrower may select multiple interest rate calculation periods for each Advance in accordance with FFB policies and procedures, whereby the interest rate calculation method and interest rate period may be reset periodically for any particular Advance; provided, that each Advance shall have only one Advance Interest Rate at any given time. The Borrower may request multiple Advances on the same Advance request date, each Advance with a separate interest rate calculation period. Any such interest rate resets shall not be considered amounts repaid and reborrowed for purposes of Section 3 (FFB Credit Facility) of this Term Sheet. All overdue amounts on the Guaranteed Loan will accrue interest at a late charge rate (the Late Charge Rate) equal to one and one-half times the rate to be determined by the Secretary of the Treasury taking into consideration the prevailing market yield on the remaining maturity of the most recently auctioned 13-week United States Treasury bills. The initial Late Charge Rate shall be in effect until the earlier to occur of either (A) the date on which payment of the overdue amount and the amount of the accrued late charge is made, or (B) the first Principal Payment Date to occur after the scheduled date of payment for such overdue amount. In the event that the overdue amount and the amount of the accrued late charge are not paid on or before such Principal Payment Date, then the amount payable shall be the sum of the overdue amount and the amount of the accrued late charge, plus a late charge on such sum accruing at a new Late Charge Rate to be then determined in accordance with the preceding sentence. For so long as any overdue amount remains unpaid, the Late Charge Rate shall again be redetermined on each Principal Payment Date, and shall be applied to the overdue amount and all amounts of the accrued late charge to the date on which payment of the overdue amount and all amounts of the accrued late charge is made. 11. Interest Payments Interest will accrue from the first Advance and be payable in cash in arrears on each date interest is due under the FFB Promissory Note (each such payment date, an Interest Payment Date).
Interest on each Advance shall be computed on the basis of (a) actual days elapsed from (but not including) the date on which the respective Advance is made (for the first Interest Payment Date for the respective Advance) or the last Interest Payment Date (for all other payments of interest due under the FFB Promissory Note for the respective Advance), to (and including) the next Interest Payment Date, and (b) a year of 365 days. 12. DOE Fees The Borrower has paid or will pay the following fees to DOE (collectively, the DOE Fees): Application Fee: An application fee of $800,000 (which DOE acknowledges that it has received in two payments, the first on July 21, 2008 in the amount of $200,000 and the second on December 19, 2008 in the amount of $600,000); DOE Loan Facility Fee: A facility fee equal to 0.5% of the Guaranteed Loan Amount, 20% of which is payable upon the execution of this Term Sheet and 80% of which is payable not later than the Financial Closing Date (as defined below in Section 16 (Definitive Agreements) of this Term Sheet). DOE Maintenance Fee: A maintenance fee payable to DOE for DOEs administrative expenses in servicing and monitoring the Project and the Guaranteed Loan during the construction, startup, commissioning and operation of the Project in the amount of $200,000 for the first year, subject to escalation each year as determined in the following sentence, until completion of the second refueling outage for the Project, at which time the maintenance fee shall be reset at $100,000, subject to escalation each year as determined in the following sentence for each remaining year over the scheduled term of the Guaranteed Loan. The maintenance fee shall be payable each year in advance, commencing on the Financial Closing Date. Escalation of the maintenance fee shall be in an amount equal to the percentage determined by the sum of (i) the percentage (rounded to the nearest one-tenth of one percent) by which the ECI for the Base Quarter of the year before the preceding calendar year exceeds the ECI for the Base Quarter of the second year before the preceding calendar year (if at all), plus (ii) the amount of the comparability payment for federal government employees in the Washington Metropolitan Area (as defined by the United States Office of Management and Budget) recommended annually by the Presidents Pay Agent (if any). Base Quarter means the quarter ending September 30 in the given calendar year and
ECI means the Employment Cost Index, as published by the Bureau of Labor Statistics for the relevant period. DOE Modification Fee: A modification fee payable to DOE in the event that the Project experiences technical, financial, legal or other events which require DOE to incur time or expenses (including third-party expenses) beyond standard monitoring of the Definitive Agreements, reimbursing DOE in full for such amounts as DOE reasonably determines are its additional internal administrative costs, and related expenses of its independent consultants and outside legal counsel, to the extent that such third parties are not paid directly by the Borrower. 13. Credit Subsidy The credit subsidy cost for the DOE Guarantee is the cost of a loan guarantee, as set forth in Section 502(5)(C) of the Federal Credit Reform Act of 1990 (the Credit Subsidy Cost). The final Credit Subsidy Cost amount shall be determined by DOE in its sole discretion, taking into consideration, among other things, the spread to Treasury as applied by FFB, subject to review and approval by the Office of Management and Budget prior to the Financial Closing Date. Changes to the terms of the transaction requested by the Borrower that constitute modifications as set forth in Federal Credit Reform Act of 1990 and OMB Circular A-11 may result in an increase of the Credit Subsidy Cost that the Borrower may be required to pay. Except if explicitly authorized by an act of Congress, the Borrower shall not use any funds obtained from the United States government, or from a loan or other instrument guaranteed by the United States government, to pay for the Credit Subsidy Cost, administrative fees, or other fees charged by or paid to DOE pursuant to the Program Requirements. 2
Required pursuant to 609.10(c) of the Regulations.
14.
Mandatory Prepayments
The Definitive Agreements shall provide that upon the occurrence of any Mandatory Prepayment Event (as defined below) and the failure by the Borrower to remedy such event within a period of 90 days after receipt of notice from DOE or FFB, DOE or FFB may (1) terminate the commitment to make any further Advances to the Borrower and (2) deliver a notice (a Mandatory Prepayment Notice), in which case, (i) for the events described in clauses (a), (b), (d) and (e) of this Section 14, the Borrower shall be required to repay all Advances under a level principal amortization schedule over a period of five years from the date of receipt of the Mandatory Prepayment Notice and (ii) for the event described in clause (c) of this Section 14, the Borrower shall be required to repay an amount equal to the amount of such proceeds not applied to Eligible Project Costs within 90 days from the date of receipt of the Mandatory Prepayment Notice.. Each of the following events shall be a Mandatory Prepayment Event: (a) cessation of construction or operation of the Project, abandonment of the Project, or failure of the Borrower to fund its share of operation and maintenance expenses attributable to its Undivided Interest in the Project, in each case, for a period of time to be set forth in the Definitive Agreements; an event of total loss with respect to either Unit occurs and the Borrower fails to rebuild the applicable Unit, it being understood that if such event affects only one Unit, then the revised principal amortization schedule will only apply with respect to an amount equal to onehalf of the Advances (less the amount of Advances allocable to shared facilities); failure by the Borrower to use the proceeds of the Guaranteed Loan for Eligible Project Costs; the merger of the Borrower, or the sale of (x) all or substantially all of the Borrower, (y) all or substantially all of the Borrowers assets, or (z) all or a material portion of the Project, in any case, without DOEs prior consent; provided that (i) with respect to clause (x) above at all times, and (ii) with respect to clauses (y) and (z) above after the Project commences commercial operations, DOEs consent shall be deemed to have been granted if the NRC gives its prior
(b)
(c) (d)
written consent to such transaction; and (e) either (i) issuance by the Georgia Public Service Commission (the Georgia PSC) of an order directing GPC to cancel the Project, or authorizing GPC to cancel the Project and GPC electing to cancel the Project or (ii) the Georgia PSC does not permit GPC to recover any amount of its Project Costs through electricity rates regulated by the Georgia PSC, and in either case, the Borrower either fails to fund the Overrun Funding Commitment or notifies DOE that it will no longer fund the Overrun Funding Commitment.
Mandatory prepayments may include a premium or a discount in accordance with FFB requirement, it being understood that DOEs right to exercise, or exercise of, such remedy does not in any way limit any other rights or remedies DOE may have as set forth in Section 23 (DOE Control; Remedies) of this Term Sheet or under applicable law. 15. Voluntary Prepayments The Borrower may prepay all of the principal amount of any Advance of the Guaranteed Loan upon prior written notice to FFB, DOE and the Loan Servicer and subject to the following conditions: (i) minimum amount requirements, and (ii) payment of (x) all accrued and unpaid interest on such principal amount, and (y) any fees and expenses then payable, including any prepayment premiums, discounts, or other amounts as may be required under the Definitive Agreements. Upon execution of this Term Sheet by DOE and the Borrower, the parties agree to work to negotiate and execute mutually acceptable Definitive Agreements for the Guaranteed Loan and DOE Guarantee. The Definitive Agreements shall set forth the final terms for the Guaranteed Loan and the DOE Guarantee. The Definitive Agreements shall include without limitation (i) a Common Terms Agreement, a Loan Guarantee Agreement, an FFB Note Purchase Agreement, an FFB Promissory Note a DOE Reimbursement Note and a Consent and Acknowledgment from the other Owners (which Consent and Acknowledgment shall consist of a consent to and acknowledgment of DOEs authority upon notice to such Owners of an Event of Default under the Definitive Documents, to exercise the Borrowers voting and consent rights under the Project Documents), and (ii) other definitive agreements reasonably required by the DOE or FFB as a result of matters specifically identified in their due diligence investigation. The FFB Promissory Note and the DOE
16.
Definitive Agreements
Reimbursement Note will be issued under and pursuant to the Borrowers Indenture dated as of March 1, 1997, with U.S. Bank National Association, as trustee (the Indenture Trustee), as amended and supplemented (the Mortgage Indenture), such that the obligations of the Borrower under the FFB Promissory Note and the DOE Reimbursement Note will be secured by the Trust Estate (as defined in the Mortgage Indenture) on a pari passu basis with all other indebtedness then or thereafter secured under the Mortgage Indenture. The execution of the Loan Guarantee Agreement and the FFB Promissory Note and the issuance of the DOE Guarantee and the DOE Reimbursement Note (the date of such execution and issuance, the Financial Closing Date) will be subject to all of the conditions to the funding of the initial Advance set forth in Section 17 (Conditions Precedent to Initial Advance) of this Term Sheet. 17. Conditions Precedent to Initial Advance The funding of the initial Advance will be subject to the satisfaction of the following conditions, each of which must be to the satisfaction of DOE or FFB, as applicable: With respect to the Borrower: (a) DOE shall have completed its due diligence review with respect to the Borrower, and all matters related thereto; execution of the Definitive Agreements; all representations and warranties shall be true and correct in all material respects; delivery of all necessary consents and waivers from the Borrowers current creditors and to the extent applicable, credit enhancers of the Mortgage Indenture obligations and the Rural Utilities Services (such service or any agency or other governmental body succeeding to the functions thereof, RUS); delivery of organizational documents for the Borrower; delivery of secretarys certificates, resolutions and good standing certificates for the Borrower; delivery of legal opinions, bring down certificates, reliance letters and similar documents as DOE or FFB
(b) (c) (d)
(e) (f) (g)
may request; (h) delivery of (i) audited financial statements of the Borrower for the then most recently completed fiscal year of the Borrower; (ii) unaudited financial statements of the Borrower for the then most recently completed fiscal quarter of the Borrower; and (iii) a certificate of an officer of the Borrower that no event of default or event or circumstance that with the passage of time or giving of notice, or both, would constitute an event of default under the Definitive Agreements exists; not later than 30 days prior to the Financial Closing Date, delivery of an updated credit rating from a nationally recognized rating agency reflecting the Conditional Commitment without the DOE Guarantee; no event or condition shall have occurred since the date of the most recent financial statements provided to DOE prior to the Financial Closing Date (the Closing Date Financial Statements) that has had or could reasonably be expected to have a material adverse effect on the business, properties, or financial condition of the Borrower; payment in full of the Credit Subsidy Cost in accordance with Program Requirements; payment of all DOE Fees due as of the Financial Closing Date; and all conditions precedent under the Mortgage Indenture for (i) the FFB Promissory Note to constitute an Additional Obligation under the Mortgage Indenture, (ii) the DOE Reimbursement Note to constitute a Credit Obligation under the Mortgage Indenture, and (iii) all Project assets attributable to the Borrowers Undivided Interest, including without limitation, all intellectual property and such other Project assets attributable to the Borrowers Undivided Interest as DOE may require, to constitute part of the Trust Estate (including the entering into or obtainment of any amendments or consents as may be required under the Mortgage Indenture), in each case, shall have been satisfied in accordance with the Mortgage Indenture.
(i)
(j)
(k) (l) (m)
With respect to the Project: (a) DOE shall have completed its due diligence review of the Project and all matters related thereto, including that no material issues exist with respect to the Project or the Operator under the laws of the United States or any subdivision thereof; delivery of organizational documents for the Operator; all representations and warranties shall be true and correct; the Director of the Office and Management and Budget has certified in advance in writing that the DOE Guarantee and the Project comply with the provisions of the Omnibus Appropriations Act, 2009, P.L. No. 111-8, Division C, Title III, as amended by Section 408 of the Supplemental Appropriations Act, 2009, P.L. No. 111-32; acquisition of all real estate rights and other property interests required for the development of the Project; evidence that the Owners have available all the patents and technology necessary to complete and operate the Project; delivery of environmental site assessments and associated reliance letters and satisfaction of any additional environmental requirements in accordance with DOE policy set forth in the Definitive Agreements; the Operator shall have received the COL and the relevant parties shall have received all environmental, regulatory and other permits and approvals then required for the current stage of development of the Project, including the final environmental impact statement, the final safety evaluation report and the publication of a record of decision by DOE; delivery of a report and associated closing certificate from the DOEs Engineer; execution of the Project Documents, which shall include (1) that certain Plant Vogtle Owners Agreement Authorizing Development, Construction,
(b) (c) (d)
(e) (f)
(g)
(h)
(i) (j)
Licensing and Operation of Additional Generating Units dated as of May 13, 2005, as amended (the Agency Agreement), among the Owners, (2) that certain Plant Alvin W. Vogtle Nuclear Units Amended and Restated Operating Agreement dated as of April 21, 2006, as amended (the Operating Agreement), among the Owners, (3) that certain Plant Alvin W. Vogtle Additional Units Ownership Participation Agreement dated as of April 21, 2006, as amended (the Development Agreement), among the Owners, (4) that certain Second Amended and Restated Nuclear Managing Board Agreement dated as of April 21, 2006 (the Nuclear Managing Board Agreement), among the Owners, (5) the ownership agreement and operating agreement with the Operator with respect to the Project, (6) the Engineering, Procurement and Construction Agreement between GPC, acting for itself and as agent for the other Owners, and a consortium consisting of Westinghouse Electric Company LLC and Stone & Webster, Inc. (the EPC Agreement), (7) all agreements for the use, operation or maintenance of the common facilities, including any software licensing agreements, and (8) any other material project agreements identified in DOEs due diligence investigation of the Project (the Definitive Agreements, together with the Project Documents, collectively, the Transaction Documents); (k) receipt of the Advance Schedule, the Financial Plan, the Base Case Projections, the Construction Plan, and the Construction Budget; not less than 30 days prior to the Financial Closing Date, updated financing information if the terms and conditions of the financing arrangements changed between the date of execution of this Term Sheet and the Financial Closing Date, and the Parties shall amend the Definitive Agreements to reflect the revised terms and conditions in the event such revisions occur; delivery of a certification from the Borrower, certificates from insurers, and such other evidence as DOE may request (i) that the Borrower has in effect insurance coverage for the Project that is available on commercially reasonable terms, conditions and price and is in accordance with normal nuclear industry practices, and (ii) that the applicable insurance policies
(l)
(m)
(n)
evidence of the filing of all documents and taking of all actions required to ensure perfection of all requisite security interests in the Trust Estate; evidence that notice to proceed has been issued under the EPC Agreement; and receipt by DOE of satisfactory evidence that the Borrower has complied with all Davis Bacon Requirements (as defined below in Section 20(e) (Affirmative Covenants) of this Term Sheet).
(o) (p)
18.
Conditions Precedent to Each Advance
Each Advance of the Guaranteed Loan and DOE Guarantee, including the initial Advance, will be subject to the satisfaction of the following conditions, each of which must be to the satisfaction of DOE or FFB, as applicable: With respect to the Borrower: (a) all representations and warranties shall be true and correct, and no default shall have occurred and be continuing; provided, however, that if the relevant default is one of the defaults referenced in the proviso at the end of Section 22 (Events of Default) of this Term Sheet, and subsection (i) or (ii) of such proviso shall apply to such default, such default shall be deemed not to be continuing for purposes of this Section 18(a); the Borrower is in compliance with the Definitive Agreements; receipt of an Advance request from the Borrower; payment of all DOE Fees and other fees and expenses payable to DOE, its counsel and its advisors that are then due; receipt of officers certificate of the Borrower with respect to the satisfaction of all of the conditions precedent identified in this Section 18 (Conditions Precedent to Each Advance) of this Term Sheet; immediately following the Advance, the aggregate amount of Base Funding applied to Eligible Project Costs shall equal or exceed 30% of total Eligible
(b) (c) (d)
(e)
(f)
Project Costs funded with Advances; (g) receipt of written certification from the Borrower that (i) the Borrower has complied with the reporting requirements of the Program Requirements and (ii) the Borrower has taken all actions and delivered all documents and certificates (including to the Indenture Trustee) such that immediately following such Advance, the obligations of the Borrower with respect to such Advance and all prior Advances under the FFB Promissory Note are secured under the Mortgage Indenture; and
With respect to the Project: (a) all representations and warranties shall be true and correct, and no default shall have occurred and be continuing; provided, however, that if the relevant default is one of the defaults referenced in the proviso at the end of Section 22 (Events of Default) of this Term Sheet, and subsection (i) or (ii) of such proviso shall apply to such default, such default shall be deemed not to be continuing for purposes of this Section 18(a); evidence that the Advances to be made will pay for Eligible Project Costs that have been incurred, together with sufficient description thereof, as certified by DOEs Engineer; certification by the Borrower that the proceeds of all prior Advances have been applied for Eligible Project Costs; copies of all governmental approvals, permits or consents not previously delivered, as time to time required for the construction or operation of the Project or as otherwise required under the Transaction Documents; and receipt by DOE of satisfactory evidence that the Borrower has complied with all Davis Bacon Requirements.
(b)
(c)
(d)
(e)
19.
The Definitive Agreements (but not the FFB Promissory Note) will contain representations and warranties (with customary qualifications and exceptions, including materiality) with
respect to the following matters: With respect to the Borrower: (a) (b) (c) (d) due organization and valid existence; good standing; corporate power and authority; accuracy of disclosures in reports filed with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (Exchange Act) or with DOE if the Borrower is not an Exchange Act filer; as of the Financial Closing Date, capitalization, ownership and organization; solvency; legality, validity and enforceability of the Transaction Documents, subject to general enforceability exceptions; no conflicts with charter, bylaws, contracts and applicable laws; no litigation; indebtedness as of the Financial Closing Date; no judgments or orders against the Borrower that could reasonably be expected to have a material adverse effect on the Borrowers financial condition; compliance in all respects with Title XVII and the Regulations; compliance in all material respects with (i) all other requirements of law and (ii) all other Program Requirements (other than subsection (i) of the definition of Program Requirements) (it being understood that the Borrower shall be deemed in compliance with the foregoing for this purpose if (x) with respect to any assertion by any governmental agency of non-compliance, the Borrower is contesting in good faith by appropriate legal proceedings such
(e) (f) (g)
(h) (i) (j) (k)
(l) (m)
assertion that the Borrower is not in compliance, and (y) with respect to any violation being cured pursuant to a Remediation Plan (as defined in Section 22 (Events of Default) of this Term Sheet), the Borrower is diligently working to cure such non-compliance according to such Remediation Plan); (n) (o) (p) disclosure and projections; title to Trust Estate; no lien against the Trust Estate (other than the Borrowers Undivided Interest in the Project) exists which ranks prior to, or pari passu with, the lien securing the Guaranteed Loans, except Permitted Exceptions (as defined in the Mortgage Indenture) and other liens permitted by the Mortgage Indenture; taxes; creditor and, if applicable, credit enhancers of the Mortgage Indenture and RUS consents and government permits and approvals; perfection and priority of security interests with respect to the Trust Estate, including that the FFB Promissory Note and the DOE Reimbursement Note are secured under the Mortgage Indenture; the financial statements included in the Borrowers most recent Exchange Act filings (or most recently submitted to DOE if the Borrower is not an Exchange Act filer) present fairly, in all material respects, the financial position, results of operations and cash flows of the Borrower as of and from the dates indicated, and such financial statements have been prepared in conformity with U.S. GAAP; Employee Retirement Income Security Act of 1974, as amended (ERISA), matters; no default under the Definitive Agreements has occurred and is continuing; no corrupt or prohibited practices by the Borrower; no event having a material adverse effect on the business, properties, or financial condition of the
(q) (r)
(s)
(t)
(u) (v) (w) (x)
Borrower since the Closing Date Financial Statements; (y) not required to register as an investment company under the Investment Company Act of 1940, as amended; based on conditions existing as of the date of such representation, the Borrower reasonably expects that total funding available to the Borrower will be sufficient to fund (i) the OPC Base Project Costs and (ii) the OPC Overrun Project Costs that are reasonably expected to be incurred; no violation of Foreign Asset Control Regulations; the Guaranteed Loan will not finance, directly or indirectly, tax-exempt debt obligations; environmental matters; insurance; and possession of franchises, certificates, licenses, permits and other authorizations necessary for operation.
(z)
(aa) (bb) (cc) (dd) (ee)
With respect to the Project: (a) (b) no litigation; no judgments or orders relating to the Project that could reasonably be expected to have a material adverse effect on the Project; compliance in all respects with Title XVII and the Regulations; compliance in all material respects with (i) all other requirements of law and (ii) all other Program Requirements (other than subsection (i) of the definition of Program Requirements) (it being understood that the Borrower shall be deemed in compliance with the foregoing for this purpose if (x) with respect to any assertion by any governmental agency of non-compliance, the Borrower, GPC or the Operator is contesting in good faith by appropriate legal proceedings such assertion that the Borrower, GPC or the Operator is not in compliance, and (y) with respect to any violation being cured pursuant to a
(c) (d)
Remediation Plan (as defined in Section 22 (Events of Default) of this Term Sheet), the Borrower, GPC or the Operator is diligently working to cure such noncompliance according to such Remediation Plan); (e) no funds, personnel or property (tangible or intangible) of any federal agency, instrumentality, personnel or affiliated entity are expected to be used (directly or indirectly) through acquisitions, contracts, demonstrations, exchanges, grants, incentives, leases, procurements, sales, other transaction authority, or other arrangements, to support the Project or to obtain goods or services from the Project, except to the extent that the Project benefits from any exemption set forth in Omnibus Appropriations Act, 2009, P.L. No. 111-8, Division C, Title III, as amended by Section 408 of the Supplemental Appropriations Act, 2009, P.L. No. 11132. no lien against the Borrowers Undivided Interest in the Project exists which (i) ranks senior to, or pari passu with, the lien securing the Guaranteed Loans, except Permitted Exceptions (as defined in the Mortgage Indenture) and other liens permitted by the Mortgage Indenture, or (ii) ranks junior to the lien securing the Guaranteed Loans, except Permitted Exceptions (as defined in the Mortgage Indenture) and silent second liens which are the subject of an intercreditor agreement in form and substance satisfactory to DOE; availability and adequacy of all patents and technology necessary to complete and operate the Project; environmental and safety matters; Project Documents; the Borrower has delivered to DOE a current and complete copy of the construction plan and budget; disclosure of all government permits and approvals then obtained; legality, validity and enforceability against the Borrower of the Transaction Documents; and
(f)
(g) (h) (i) (j) (k) (l)
(m) 20. Affirmative Covenants
compliance with all Davis Bacon Requirements.
The Definitive Agreements shall contain the following affirmative covenants (with customary qualifications and exceptions, including materiality): With respect to the Borrower: (a) (b) (c) (d) (e) use of proceeds; maintenance of corporate existence, rights, franchises and authority; maintenance of first priority lien in respect of the Trust Estate; performance of Transaction Documents to which it is a party and material agreements to which it is a party; provision of financial statements and other information as provided in Section 26 (Reporting Requirements) of this Term Sheet; provision of default notices and notices of other material events and information, including material events involving any wholesale power contract; maintenance of required insurance; payment of taxes, fees, etc.; maintenance of nationally recognized independent auditors or other independent auditors acceptable to DOE; maintenance of books and records and inspection thereof, including such records as are necessary to facilitate an effective and accurate audit; maintenance of properties and title thereto; establishment and collection of rates, rents, charges, fees and other compensation for the use or sale of output, capacity or service that, together with other moneys available to the Borrower, (i) produce moneys sufficient to comply with its obligations in respect of the Guaranteed Loan and (ii) subject to regulatory approval (including the approval of RUS, if required),
(f)
(g) (h) (i)
(j)
(k) (l)
yield margins for interest for each fiscal year equal to at least 1.10 times interest charges for such period; (m) (n) maintenance of audit provisions complying with 10 C.F.R. 609.10(f); and compliance with lobbying requirements under 31 U.S.C. 1352.
With respect to the Project: (a) provision to DOE of construction budgets, monthly construction progress reports for the Project, periodic operating budgets and progress reports for the Project and disclosure of cost overruns; construction of the Project substantially in accordance with the Project Plans as directed or permitted by the NRC; provision to DOE and its representatives and advisors, including DOEs Engineer, of access to the Project site and ancillary facilities at all reasonable times in order to monitor the performance of the Project, subject to the rules and regulations of the NRC and to the direction of senior plant management; maintenance of all patents and technology necessary to complete and operate the Project; compliance with the requirement that all laborers and mechanics employed by contractors and subcontractors in the performance of construction work related to the Project shall be paid wages at rates not less than those prevailing on projects of a character similar in the locality as determined by the Secretary of Labor in accordance with the Davis Bacon Act, and all regulations related thereto, including but not limited to those set forth in 29 C.F.R. 5.5(a)(1) to (10), and all notice, reporting and other obligations related thereto as required by DOE (collectively, the Davis Bacon Requirements); at the request of DOE, exercise its right to conduct management audits of GPCs performance as agent for the Owners in respect of the Project, pursuant to the terms of the Project operating agreement; and
(b)
(c)
(d) (e)
(f)
(g)
the Borrower will maintain insurance coverage for the Project that is in accordance with normal nuclear industry practices, provided that such insurance coverage is available on commercially reasonable terms, conditions and price.
21.
Negative Covenants
The Definitive Agreements shall contain the following negative covenants (with customary qualifications and exceptions, including materiality, it also being understood that DOE will consider conforming the notice and approval process with respect to the subject matter of certain negative covenants with the notice and approval process contained in Section 9.1 of the RUS Loan Agreement): With respect to the Borrower: (a) (b) no transactions with affiliates that are not conducted on either (i) an arms length basis or (ii) at cost; no merger, consolidation, dissolution, transfer or lease of more than an agreed percentage of the Borrowers assets or other similar actions; restriction on distributions to the members of the Borrower (the Members) as set forth in the Mortgage Indenture; limitation on certain cash investments as set forth in the Mortgage Indenture; no alteration of character of business from that of an electric utility company; and limitation on the following: (i) amendments to wholesale power contracts; and (ii) release and termination of payment obligations of Members under wholesale power contracts, in each case, substantially similar to the limitations contained in Section 6.4 of that certain Fifth Amended and Restated Loan Contract dated as of December 22, 2009 (the RUS Loan Agreement) between the Borrower and the United States of America, acting by and through the Administrator of RUS.
(c)
(d) (e) (f)
With respect to the Project: (a) the Borrower shall not (i) incur or permit to exist any lien with respect to the Trust Estate which ranks prior
to, or pari passu with, the lien securing the Guaranteed Loans, except Permitted Exceptions (as defined in the Mortgage Indenture) and other liens permitted by the Mortgage Indenture, and (ii) incur or permit to exist any lien with respect to the Borrowers Undivided Interest in the Project which ranks junior to the lien securing the Guaranteed Loans, except Permitted Exceptions (as defined in the Mortgage Indenture) and silent second liens which are the subject of an intercreditor agreement in form and substance satisfactory to DOE; (b) no material modifications of the Project Plans, except as approved by the NRC and any other regulatory authority the approval of which is required by law; no transfer of the Projects assets in any material respect; provided that after the Project commences commercial operations, DOEs consent shall be deemed to have been granted if the NRC gives its prior written consent to such transaction; and the Borrower shall not vote to replace or remove the Operator or GPC as agent for the Owners, in any case, without the prior written consent of DOE, which consent shall not be unreasonably withheld.
(c)
(d)
22.
Events of Default
The Definitive Agreements shall contain the following events of default (with customary qualifications, exceptions and grace periods, including materiality): With respect to the Borrower: (a) (b) failure to make payments when due; default under any other indebtedness of the Borrower in excess of an amount to be agreed (other than the Guaranteed Loan); failure by the Borrower to comply with the provisions of Title XVII and the continuance of such failure for a period of 30 days; provided, however, that the failure to comply with Section 1702(k) of Title XVII shall be an event of default only if such failure continues for a period of 90 days; failure by the Borrower to comply with the provisions of the Regulations, unless such breach is capable of
(c)
(d)
being cured, in which case failure to cure such breach within a period of 90 days, so long as the Borrower is diligently pursuing such cure; (e) failure by the Borrower to comply in all material respects with (i) all other requirements of law and (ii) all other Program Requirements (other than subsection (i) of the definition of Program Requirements), and the continuance of any such failure for a period of 90 days; breach of representations and warranties under any Definitive Agreement; breach of covenants under any Definitive Agreement; failure to fund when required or other default with respect to the Base Funding Commitment or the Overrun Funding Commitment; bankruptcy, Borrower; insolvency and dissolution of the
(f) (g) (h)
(i) (j) (k) (l) (m) (n)
judgments in excess of $10 million against the Borrower; certain ERISA events; impairment of security interests in the Trust Estate; invalidity or unenforceability of the Definitive Agreements, other than the DOE Guarantee; any change in ownership (other than immaterial changes in ownership that do not require NRC approval) or any change in control of the Borrower not approved by the NRC; and an Event of Default under the Mortgage Indenture has occurred and is continuing.
(o)
With respect to the Project: (a) (b) failure by the Borrower to use the proceeds of the Guaranteed Loan for Eligible Project Costs; failure by the Operator (with respect to the Project) or the Project to comply with the provisions of Title
XVII; provided, however, that the failure to comply with Section 1702(k) of Title XVII shall be an event of default only if such failure continues for a period of 90 days; (c) failure by the Operator (with respect to the Project) or the Project to comply with the provisions of the Regulations, unless such breach is capable of being cured, in which case failure to cure such breach within a period of 90 days, so long as the Operator or the Borrower is diligently pursuing such cure; failure by the Operator (with respect to the Project) or the Project to comply in all material respects with (i) all other requirements of law and (ii) all other Program Requirements (other than subsection (i) of the definition of Program Requirements), and the continuance of any such failure for a period of 90 days; failure by the Borrower, the Operator or the Project to comply in all material respects with environmental and safety matters with respect to the Project, including without limitation with respect to compliance with the Natural Environmental Policy Act of 1969 (NEPA) and all other Environmental Laws applicable to the Project and the continuance of any such breach for a period of 90 days; transfer of the Trust Estate and/or any portion of the assets comprising the Project without DOEs consent; abandonment of the Project; and failure by the Borrower to comply with debarment regulations.
(d)
(e)
(f) (g) (h)
provided, that for the Borrower event of default in subsection (e) and the Project events of default in subsections (d) and (e), the following shall apply: (i) the Borrower shall not be in default at any time it or the Operator is contesting in good faith by appropriate legal proceedings any assertion by any governmental agency that the Borrower or the Operator is not in compliance with the matters identified in such subsections, and (ii) in the case that the default cannot reasonably be cured within a 90-day period, the Borrower will not be in default if the Borrower or the Operator is diligently working to cure such default according to an applicable Remediation Plan. For
purposes of this Term Sheet a Remediation Plan means a plan of correction with a timetable for curing such default that has been approved by a court of competent jurisdiction, or the lead regulatory authority with enforcement responsibility with respect to such matter, or DOE, as the case may be. 23. DOE Control; Remedies Assignment of Rights: As of the Financial Closing Date, FFB will delegate its rights, powers, privileges and remedies under the Definitive Agreements to DOE. The Borrower agrees to the extent delegated by FFB to take post-closing direction solely from DOE. Subrogation: On and as of any business day that the DOE pays any amount under the DOE Guarantee, DOE shall become subrogated to, and FFB shall be deemed to have assigned to DOE, without recourse and without need of any further action by any party, all of FFBs right, title and interest in and to (i) the principal of and interest on such guaranteed obligation and (ii) the Definitive Agreements to the extent of FFBs interest in such agreements, including, without limitation, any fees, costs, expenses and other amounts (such amounts, collectively, the Additional Amounts); provided, however, if acceleration of such guaranteed obligation has occurred under the Mortgage Indenture, then such subrogation and assignment shall include the entire guaranteed amount of the guaranteed obligations, plus the Additional Amounts, notwithstanding that the Secretary shall be obligated to make payment hereunder only in installments on each subsequent Principal Payment Date and only as to the guaranteed amounts. DOEs subrogation rights shall be in addition to the rights assigned to it by FFB, and shall not be the exclusive source of rights, powers, privileges and remedies against the Borrower. Remedies: Upon the occurrence and continuation of an Event of Default which also constitutes an event of default under the Mortgage Indenture, DOE (and not FFB) will have the right, among others, without consultation, to do any or all of the following, without limitation: (a) suspend or terminate further Advances, including any undrawn commitments and (b) subject to the terms of the Mortgage Indenture, (i) deliver a notice of default under the Guaranteed Loan and/or vote to accelerate (or cause the Indenture Trustee to accelerate) the maturity of the Guaranteed Loan, (ii) vote to cause the Indenture Trustee to take those actions necessary to perfect and maintain any or all of the security interests granted by the Borrower, (iii) set off and apply amounts to the satisfaction of
the Guaranteed Obligations under all of the Definitive Agreements, (iv) cure defaults, (v) protect and enforce (or cause the Indenture Trustee to protect and enforce) its rights and remedies by appropriate proceedings, including the filing of proofs of claim in any bankruptcy, insolvency, or other judicial proceeding, (vi) exercise (or cause the Indenture Trustee to exercise) any and all rights and remedies available to it under any of the Transaction Documents, and (vii) in accordance with Section 609.10(e)(4) of the Regulations, take such other actions (or cause the Indenture Trustee to take such other actions) as DOE may reasonably require to provide for the care, preservation, protection, and maintenance of all collateral so as to enable the United States to achieve maximum recovery upon default by the Borrower on the Guaranteed Loan. Upon the occurrence and continuation of an Event of Default under any Guaranteed Loan Document (which does not also constitute an event of default under the Mortgage Indenture), DOE (and not FFB) will have the right, among others, without consultation, to do any or all of the following, without limitation: (a) suspend or terminate further Advances, including any undrawn commitments, and (b) exercise any and all rights and remedies (other than acceleration) available to it under the Guaranteed Loan Documents (other than Mortgage Indenture), it being understood that DOE will not be entitled to pursue rights or remedies in respect of the Trust Estate. In addition, upon the bankruptcy or insolvency of the Borrower, the DOE shall have the right to terminate its commitment to make Advances. 24. Collateral The Borrowers obligations under the FFB Promissory Note and the DOE Reimbursement Note will be secured by a firstpriority perfected security title, lien and security interest in all existing and after-acquired property and assets constituting the Trust Estate, including without limitation, the Borrowers Undivided Interest in the Project and all other Project assets attributable to the Borrowers Undivided Interest, including without limitation, intellectual property. The Guaranteed Loan will not be subordinate to any loan or other debt obligation. 25. Expenses The Borrower will bear all of the following amounts from time to time due under or in connection with the Definitive Agreements: (i) all recordation and other costs, fees and charges in connection with the execution, delivery, filing, registration, or performance of the Transaction Documents or the perfection of the security interests in the Trust Estate,
(ii) all fees, charges, and expenses of any independent consultants, legal counsel, accountants, and other advisors to DOE and (iii) all other fees, charges, expenses and other amounts from time to time due under or in connection with the Definitive Agreements. 26. Reporting Requirements The Borrower shall provide FFB, DOE and the Loan Servicer with the following reports: (a) monthly construction reports consistent with the Borrowers requirement of GPC (as the Borrowers agent) to provide such reports to (i) the other Owners pursuant to the Project ownership agreements, (ii) the Georgia Public Service Commission and (iii) the NRC; quarterly financial statements and reports of the Borrower within 50 days after the end of each fiscal quarter, with such financial statements to be prepared in accordance with U.S. GAAP, subject to changes resulting from audit and normal year-end adjustments; annual financial statements and reports on or prior to 105 days after end of each fiscal year, with such financial statements to be prepared in accordance with U.S. GAAP (except for changes with which the independent auditor shall concur); and other necessary financial information of the Borrower as reasonably requested by DOE, FFB or the Loan Servicer.
(b)
(c)
(d)
27.
If the Borrower defaults in any payment due to FFB under the Guaranteed Loan or under any other Definitive Agreement, and as a result of such payment default by the Borrower, DOE becomes obligated to make any payments to FFB pursuant to the DOE Guarantee, the Borrower shall become immediately obligated to reimburse DOE in an amount equal to the sum of (i) all DOE Guarantee payments paid by DOE to FFB, (ii) all costs or expenses incurred by DOE in connection therewith, whether by payment to FFB or otherwise, and (iii) interest on the DOE Guarantee payments from the date such payment was made or incurred by DOE under the DOE Guarantee until payment in full thereof by the Borrower to DOE, at the applicable rate of interest provided in the Definitive Agreements. Such Borrower Reimbursement Obligations are absolute, irrevocable and unconditional and will be evidenced
by the DOE Reimbursement Note. 28. Waiver of Jury Trial; Consent to Jurisdiction; Governing Law Each Party waives any rights it may have to a trial by jury in respect of any litigation arising out of the Definitive Agreements. The Borrower (a) submits to the non-exclusive general jurisdiction of (i) the courts of the United States of America located in the District of Columbia, (ii) any other federal court of competent jurisdiction in any other jurisdiction where it or any of its property may be found, and (iii) appellate courts from any of the foregoing, and (b) waives any right to claim inconvenience of the forum. The choice of law provision in the Definitive Agreements and any other Transaction Document to which DOE is a party (other than (i) documents to which FFB is a party, as to which the governing law shall be in the form required by FFB, and (ii) the Mortgage Indenture, as to which the governing law shall be the law of the State of Georgia) shall be as follows: THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE FEDERAL LAW OF THE UNITED STATES OF AMERICA. TO THE EXTENT THAT FEDERAL LAW DOES NOT SPECIFY THE APPROPRIATE RULE OF DECISION FOR A PARTICULAR MATTER AT ISSUE, IT IS THE INTENTION AND AGREEMENT OF THE PARTIES HERETO THAT THE LAW OF THE STATE OF NEW YORK SHALL BE ADOPTED AS THE GOVERNING FEDERAL RULE OF DECISION. 29. Freedom of Information Act (FOIA) The parties acknowledge and agree that all correspondence, books, documents, papers and records relating to the structuring, negotiation and execution of this Term Sheet, the Definitive Agreements, and all supporting documentation, financial statements, audit reports of independent accounting firms, permits and regulatory approvals furnished or otherwise made available to DOE, will be handled in accordance with all applicable federal laws, rules, or regulations, including but not limited to the Trade Secrets Act, 18 U.S.C. 1905, and the Freedom of Information Act (FOIA), 5 U.S.C. 552, and DOEs implementing regulations at 10 C.F.R. 1004.
The closing of any financial transaction relating to the Guaranteed Loan is subject to Definitive Agreements acceptable to the Borrower, DOE and FFB.
NY3 - 499119 05 Treasury Consult 500
29
Whitcombe, Nicholas Atkins, Preston Jr; Your question Wednesday, December 09, 2009 2:03:12 PM
I don't have your tel number, can you call me at b6

Final Response Letter Enclosed Correspondence 1/9/13

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Atkins, Preston Jr

May 17, 2010 Agenda 1:00pm ATVM

This Weeks Priorities

Cc: Subject: Attachments:

May 10, 2010 Agenda 1:00pm ATVM

Nuclear Power Facilities: b5

cc: Subject: Date:

Linda D. Vawter Senior Administrative Assistant U.S. Department of Energy

Thanks Linda. From OMB please add:

GPC term sheet acceptance re: Vogtle

LindaD.Vawter SeniorAdministrativeAssistant U.S.DepartmentofEnergy LoanGuaranteeProgramOffice 1000IndependenceAvenue Washington,DC20585 TEL:(202)5860093 FAX:(202)5864052

June7,2010 Agenda 1:00pm ATVM

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

Loan Guarantee Request ($ Mil.)

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

Loan Guarantee Request ($ Mil.)

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY SECTOR

Preparer LGeorge Treasury Consult 22 File: LGP_Portfolio_Tracker (10-13-10)

Date: 3/24/2011 Time: 3:59 PM

From: To: Subject: Date: Attachments:

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

Loan Guarantee Request ($ Mil.)

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

Loan Guarantee Request ($ Mil.)

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY SECTOR

From: To: Subject: Date: Attachments:

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

Loan Guarantee Request ($ Mil.)

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

Loan Guarantee Request ($ Mil.)

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY SECTOR

From: To: Subject: Date: Attachments:

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

Loan Guarantee Request ($ Mil.)

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

Loan Guarantee Request ($ Mil.)

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY SECTOR

Subject: Date: Attachments:

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

Treasury Preparer: LGeorge Consult 49 File: LGP_Portfolio_Tables_121510

Date: 3/24/2011 Time: 6:15 PM

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

Loan Guarantee Request ($ Mil.)

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

Loan Guarantee Request ($ Mil.)

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY SECTOR

LOAN GUARANTEE PROGRAM PORTFOLIO -- ORIGINATION PORTFOLIO BY RANK

Loan Gty. Request