THIS FORTY-THIRD SUPPLEMENTAL INDENTURE , dated as of August 1, 2008, is between OGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION) , formerly known as Oglethorpe Power Corporation (An Electric Membership Generation & Transmission Corporation), an electric membership corporation organized and existing under the laws of the State of Georgia, as Grantor (hereinafter called the “Company”), and U.S. BANK NATIONAL ASSOCIATION , a national banking association, as successor to SunTrust Bank, formerly known as SunTrust Bank, Atlanta, as Trustee (in such capacity, the “Trustee”).

 

WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of March 1, 1997 (the “Original Indenture”), a conformed counterpart of which is attached hereto as Exhibit A to this instrument that will be recorded in Washington County, Georgia and such Original Indenture is incorporated herein by reference, for the purpose of securing its Existing Obligations and providing for the authentication and delivery of Additional Obligations by the Trustee from time to time under the Original Indenture (capitalized terms used herein and not otherwise defined shall have the meanings assigned to them in the Original Indenture);

 

WHEREAS, the Company has heretofore executed and delivered to the Trustee forty-two Supplemental Indentures (the Original Indenture, as heretofore, hereby and hereafter supplemented and modified, being herein sometimes called the “Indenture”), and the Original Indenture and the forty-two Supplemental Indentures have been recorded as set forth on Schedule 1 , and copies of the prior forty-two Supplemental Indentures are attached hereto as Exhibit B to this instrument and will be recorded in Washington County, Georgia, and such Supplemental Indentures are incorporated herein by reference;

 

Series 2008A Burke Bonds

 

WHEREAS, the Burke Authority has agreed to issue $25,000,000 in aggregate principal amount of Development Authority of Burke County Pollution Control Revenue Bonds (Oglethorpe Power Corporation Vogtle Project), Series 2008A (the “Series 2008A Burke Bonds”), and to loan the proceeds from the sale thereof to the Company pursuant to that certain Loan Agreement, dated as of August 1, 2008, relating thereto (the “Series 2008A Burke Loan Agreement”);

 

WHEREAS, the Company’s obligation to repay the loan of the proceeds of the Series 2008A Burke Bonds is evidenced by that certain Series 2008A (Burke) Note, dated the date of its authentication (the “Series 2008A (Burke) Note”), from the Company to U.S. Bank National Association, as trustee (in such capacity, the “Series 2008A Burke Trustee”), as assignee and pledgee of the Burke Authority pursuant to the Trust Indenture, dated as of August 1, 2008 (the “Series 2008A Burke Indenture”), between the Burke Authority and the Series 2008A Burke Trustee;

 

Series 2008B Burke Bonds

 

WHEREAS, the Burke Authority has agreed to issue $75,000,000 in aggregate principal amount of Development Authority of Burke County Pollution Control Revenue Bonds

 

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(Oglethorpe Power Corporation Vogtle Project), Series 2008B (the “Series 2008B Burke Bonds”), and to loan the proceeds from the sale thereof to the Company pursuant to that certain Loan Agreement, dated as of August 1, 2008, relating thereto (the “Series 2008B Burke Loan Agreement”);

 

WHEREAS, the Company’s obligation to repay the loan of the proceeds of the Series 2008B Burke Bonds is evidenced by that certain Series 2008B (Burke) Note, dated the date of its authentication (the “Series 2008B (Burke) Note”), from the Company to U.S. Bank National Association, as trustee (in such capacity, the “Series 2008B Burke Trustee”), as assignee and pledgee of the Burke Authority pursuant to the Trust Indenture, dated as of August 1, 2008 (the “Series 2008B Burke Indenture”), between the Burke Authority and the Series 2008B Burke Trustee;

 

Series 2008C Burke Bonds

 

WHEREAS, the Burke Authority has agreed to issue $155,035,000 in aggregate principal amount of Development Authority of Burke County Pollution Control Revenue Bonds (Oglethorpe Power Corporation Vogtle Project), Series 2008C (the “Series 2008C Burke Bonds”), and to loan the proceeds from the sale thereof to the Company pursuant to that certain Loan Agreement, dated as of August 1, 2008, relating thereto (the “Series 2008C Burke Loan Agreement”);

 

WHEREAS, the Company’s obligation to repay the loan of the proceeds of the Series 2008C Burke Bonds is evidenced by that certain Series 2008C (Burke) Note, dated the date of its authentication (the “Series 2008C (Burke) Note”), from the Company to U.S. Bank National Association, as trustee (in such capacity, the “Series 2008C Burke Trustee”), as assignee and pledgee of the Burke Authority pursuant to the Trust Indenture, dated as of August 1, 2008 (the “Series 2008C Burke Indenture”), between the Burke Authority and the Series 2008C Burke Trustee;

 

WHEREAS, the Company will use the proceeds from the sale of the Burke Bonds to refinance (i) $156,515,000 in original aggregate principal amount outstanding of the Authority’s Adjustable Tender Pollution Control Revenue Bonds (Oglethorpe Power Corporation Vogtle Project), Series 1993A and (ii) $98,520,000 in original aggregate principal amount outstanding of the Authority’s Adjustable Tender Pollution Control Revenue Bonds (Oglethorpe Power Corporation Vogtle Project), Series 1994A;

 

WHEREAS, the Company has acquired certain real property located in Washington County, Georgia, more particularly described on Exhibit C attached hereto (the “Washington County Property”);

 

WHEREAS, at the time the Company executed and delivered the Original Indenture, the Company did not have a property interest in any real property located in Washington County, Georgia;

 

WHEREAS, the Company desires to execute and deliver this Forty-Third Supplemental Indenture, in accordance with the provisions of the Original Indenture, for the purpose of (i) conveying and confirming unto the Trustee the property more particularly described on Exhibit  

 

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C and Exhibit D hereto and (ii) providing for the creation and designation of the Series 2008A (Burke) Note, the Series 2008B (Burke) Note, and the Series 2008C (Burke) Note (collectively, the “Notes”) as Additional Obligations and specifying the form and provisions thereof;

 

WHEREAS, Section 12.1 of the Original Indenture provides that, without the consent of the Holders of any of the Obligations, the Company, when authorized by a Board Resolution, and the Trustee, may enter into Supplemental Indentures for the purposes and subject to the conditions set forth in said Section 12.1, including to create additional series of Obligations under the Indenture and to make provisions for such additional series of Obligations; and

 

WHEREAS, all acts and proceedings required by law and by the Articles of Incorporation and Bylaws of the Company necessary to secure under the Indenture the payment of the principal of (and premium, if any) and interest on the Notes, to make the Notes to be issued hereunder, when executed by the Company, authenticated and delivered by the Trustee and duly issued, the valid, binding and legal obligation of the Company, and to constitute the Indenture a valid and binding lien for the security of the Notes, in accordance with its terms, have been done and taken; and the execution and delivery of this Forty-Third Supplemental Indenture has been in all respects duly authorized by the Company.

 

NOW, THEREFORE, THIS FORTY-THIRD SUPPLEMENTAL INDENTURE WITNESSES , that, to secure the payment of the principal of (and premium, if any) and interest on the Outstanding Secured Obligations, including, when authenticated and delivered, the Notes, to confirm the lien of the Indenture upon the Trust Estate, including property purchased, constructed or otherwise acquired by the Company since the date of execution of the Original Indenture and including the Washington County Property, to secure performance of the covenants therein and herein contained, to declare the terms and conditions on which the Notes are secured, and in consideration of the premises thereof and hereof, the Company by these presents does grant, bargain, sell, alienate, remise, release, convey, assign, transfer, mortgage, hypothecate, pledge, set over and confirm to the Trustee, and its successors and assigns in the trust created thereby and hereby, in trust, all property, rights, privileges and franchises (other than Excepted Property or Excludable Property) of the Company, whether now owned or hereafter acquired, of the character described in the Granting Clauses of the Original Indenture, wherever located, including all such property, rights, privileges and franchises acquired since the date of execution of the Original Indenture, including, without limitation, all property described on Exhibit C and Exhibit D attached hereto, subject to all exceptions, reservations and matters of the character referred to in the Indenture, and does grant a security interest therein for the purposes expressed herein and in the Original Indenture subject in all cases to Sections 5.2 and 11.2 B of the Original Indenture and to the rights of the Company under the Original Indenture, including the rights set forth in Article V thereof; but expressly excepting and excluding from the lien and operation of the Indenture all properties of the character specifically excepted as “Excepted Property” or “Excludable Property” in the Original Indenture to the extent contemplated thereby.

 

PROVIDED, HOWEVER , that if, upon the occurrence of an Event of Default, the Trustee, or any separate trustee or co-trustee appointed under Section 9.14 of the Original Indenture or any receiver appointed pursuant to statutory provision or order of court, shall have entered into possession of all or substantially all of the Trust Estate, all the Excepted Property

 

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described or referred to in Paragraphs A through H, inclusive, of “Excepted Property” in the Original Indenture then owned or thereafter acquired by the Company, shall immediately, and, in the case of any Excepted Property described or referred to in Paragraphs I, J, L, N and P of “Excepted Property” in the Original Indenture (excluding the property described in Section 2 of Exhibit B in the Original Indenture), upon demand of the Trustee or such other trustee or receiver, become subject to the lien of the Indenture to the extent permitted by law, and the Trustee or such other trustee or receiver may, to the extent permitted by law, at the same time likewise take possession thereof, and whenever all Events of Default shall have been cured and the possession of all or substantially all of the Trust Estate shall have been restored to the Company, such Excepted Property shall again be excepted and excluded from the lien of the Indenture to the extent and otherwise as hereinabove set forth and as set forth in the Indenture.

 

The Company may, however, pursuant to the Granting Clause Third of the Original Indenture, subject to the lien of the Indenture any Excepted Property or Excludable Property, whereupon the same shall cease to be Excepted Property or Excludable Property.

 

TO HAVE AND TO HOLD all such property, rights, privileges and franchises hereby and hereafter (by a Supplemental Indenture or otherwise) granted, bargained, sold, alienated, remised, released, conveyed, assigned, transferred, mortgaged, hypothecated, pledged, set over or confirmed as aforesaid, or intended, agreed or covenanted so to be, together with all the tenements, hereditaments and appurtenances thereto appertaining (said properties, rights, privileges and franchises, including any cash and securities hereafter deposited or required to be deposited with the Trustee (other than any such cash which is specifically stated in the Indenture not to be deemed part of the Trust Estate) being part of the Trust Estate), unto the Trustee, and its successors and assigns in the trust herein created by the Indenture, forever.

 

SUBJECT, HOWEVER , to (i) Permitted Exceptions and (ii) to the extent permitted by Section 13.6 of the Original Indenture as to property hereafter acquired (a) any duly recorded or perfected prior mortgage or other lien that may exist thereon at the date of the acquisition thereof by the Company and (b) purchase money mortgages, other purchase money liens, chattel mortgages, conditional sales agreements or other title retention agreements created by the Company at the time of acquisition thereof.

 

BUT IN TRUST, NEVERTHELESS , with power of sale, for the equal and proportionate benefit and security of the Holders from time to time of all the Outstanding Secured Obligations without any priority of any such Obligation over any other such Obligation and for the enforcement of the payment of such Obligations in accordance with their terms.

 

UPON CONDITION that, until the happening of an Event of  Default and subject to the provisions of Article V of the Original Indenture, and not in limitation of the rights elsewhere provided in the Original Indenture, including the rights set forth in Article V of the Original Indenture, the Company shall be permitted to (i) possess and use the Trust Estate, except cash, securities, Designated Qualifying Securities and other personal property deposited, or required to be deposited, with the Trustee, (ii) explore for, mine, extract, separate and dispose of coal, ore, gas, oil and other minerals, and harvest standing timber, and (iii) receive and use the rents, issues, profits, revenues and other income, products and proceeds of the Trust Estate.

 

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THE INDENTURE, INCLUDING THIS FORTY-THIRD SUPPLEMENTAL INDENTURE, is intended to operate and is to be construed as a deed passing title to the Trust Estate and is made under the provisions of the laws of the State of Georgia relating to deeds to secure debt, and not as a mortgage or deed of trust, and is given to secure the Outstanding Secured Obligations.  Should the indebtedness secured by the Indenture be paid according to the tenor and effect thereof when the same shall become due and payable and should the Company perform all covenants contained in the Indenture in a timely manner, then the Indenture shall be canceled and surrendered.

 

AND IT IS HEREBY COVENANTED AND DECLARED that the Notes are to be authenticated and delivered and the Trust Estate is to be held and applied by the Trustee, subject to the covenants, conditions and trusts set forth herein and in the Indenture, and the Company does hereby covenant and agree to and with the Trustee, for the equal and proportionate benefit of all Holders of the Outstanding Secured Obligations, as follows:

 

ARTICLE I

 

THE NOTES AND CERTAIN PROVISIONS RELATING THERETO

 

Section 1.1             Authorization and Terms of the Notes.

 

A.     The Series 2008A (Burke) Note

 

There shall be created and established an Additional Obligation in the form of a promissory note known as and entitled the “Series 2008A (Burke) Note” (hereinafter referred to as the “Series 2008A (Burke) Note”), the form, terms and conditions of which shall be substantially as set forth in or prescribed pursuant to this Section and Section 1.2 hereof.  The aggregate principal amount of the Series 2008A (Burke) Note which shall be authenticated and delivered and Outstanding at any one time is limited to $25,000,000.

 

The Series 2008A (Burke) Note shall be dated the date of its authentication.  The Series 2008A (Burke) Note shall mature on January 1, 2033 and shall bear interest from the date of its authentication to the date of its maturity at rates calculated as provided for in the form of note prescribed pursuant to Section 1.2 hereof.  The Series 2008A (Burke) Note shall be authenticated and delivered to, and made payable to, U.S. Bank National Association, as the Series 2008A Burke Trustee.

 

All payments made on the Series 2008A (Burke) Note shall be made to the Series 2008A Burke Trustee at its corporate office in Atlanta, Georgia, in lawful money of the United States of America which will be immediately available on the date payment is due.

 

B.    The Series 2008B (Burke) Note

 

There shall be created and established an Additional Obligation in the form of a promissory note known as and entitled the “Series 2008B (Burke) Note” (hereinafter referred to as the “Series 2008B (Burke) Note”), the form, terms and conditions of which shall be substantially as set forth in or prescribed pursuant to this Section and Section 1.2 hereof.  The

 

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aggregate principal amount of the Series 2008B (Burke) Note which shall be authenticated and delivered and Outstanding at any one time is limited to $75,000,000.

 

The Series 2008B (Burke) Note shall be dated the date of its authentication.  The Series 2008B (Burke) Note shall mature on January 1, 2033 and shall bear interest from the date of its authentication to the date of its maturity at rates calculated as provided for in the form of note prescribed pursuant to Section 1.2 hereof.  The Series 2008B (Burke) Note shall be authenticated and delivered to, and made payable to, U.S. Bank National Association, as the Series 2008B Burke Trustee.

 

All payments made on the Series 2008B (Burke) Note shall be made to the Series 2008B Burke Trustee at its corporate office in Atlanta, Georgia, in lawful money of the United States of America which will be immediately available on the date payment is due.

 

C.    The Series 2008C (Burke) Note

 

There shall be created and established an Additional Obligation in the form of a promissory note known as and entitled the “Series 2008C (Burke) Note” (hereinafter referred to as the “Series 2008C (Burke) Note”), the form, terms and conditions of which shall be substantially as set forth in or prescribed pursuant to this Section and Section 1.2 hereof.  The aggregate principal amount of the Series 2008C (Burke) Note which shall be authenticated and delivered and Outstanding at any one time is limited to $155,035,000.

 

The Series 2008C (Burke) Note shall be dated the date of its authentication.  The Series 2008C (Burke) Note shall mature on January 1, 2043 and shall bear interest from the date of its authentication to the date of its maturity at rates calculated as provided for in the form of note prescribed pursuant to Section 1.2 hereof.  The Series 2008C (Burke) Note shall be authenticated and delivered to, and made payable to, U.S. Bank National Association, as the Series 2008C Burke Trustee.

 

All payments made on the Series 2008C (Burke) Note shall be made to the Series 2008C Burke Trustee at its corporate office in Atlanta, Georgia, in lawful money of the United States of America which will be immediately available on the date payment is due.

 

Section 1.2             Form of the Notes.

 

A.    The Series 2008A (Burke) Note

 

The Series 2008A (Burke) Note and the Trustee’s certificate of authentication for the Series 2008A (Burke) Note shall be substantially in the form of Exhibit E attached hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted in the Original Indenture.

 

B.    The Series 2008B (Burke) Note

 

The Series 2008B (Burke) Note and the Trustee’s certificate of authentication for the Series 2008B (Burke) Note shall be substantially in the form of Exhibit F attached hereto, with

 

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such appropriate insertions, omissions, substitutions and other variations as are required or permitted in the Original Indenture.

 

C.    The Series 2008C (Burke) Note

 

The Series 2008C (Burke) Note and the Trustee’s certificate of authentication for the Series 2008C (Burke) Note shall be substantially in the form of Exhibit G attached hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted in the Original Indenture.

 

ARTICLE II

 

MISCELLANEOUS

 

Section 2.1             This Forty-Third Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture, and shall form a part thereof, and the Original Indenture, as heretofore supplemented and as hereby supplemented and modified, is hereby confirmed.  Except to the extent inconsistent with the express terms hereof, all of the provisions, terms, covenants and conditions of the Indenture shall be applicable to the Notes to the same extent as if specifically set forth herein.  All references herein to Sections, definitions or other provisions of the Original Indenture shall be to such Sections, definitions and other provisions as they may be amended or modified from time to time pursuant to the Indenture.  All capitalized terms used in this Forty-Third Supplemental Indenture shall have the same meanings assigned to them in the Original Indenture, except in cases where the context clearly indicates otherwise.

 

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

 

Section 2.3             Whenever in this Forty-Third Supplemental Indenture any of the parties hereto is named or referred to, this shall, subject to the provisions of Articles IX and XI of the Original Indenture, be deemed to include the successors and assigns of such party, and all the covenants and agreements in this Forty-Third Supplemental Indenture contained by or on behalf of the Company, or by or on behalf of the Trustee shall, subject as aforesaid, bind and inure to the respective benefits of the respective successors and assigns of such parties, whether so expressed or not.

 

Section 2.4             Nothing in this Forty-Third Supplemental Indenture, expressed or implied, is intended, or shall be construed, to confer upon, or to give to, any person, firm or corporation, other than the parties hereto and the Holders of the Outstanding Secured Obligations, any right, remedy or claim under or by reason of this Forty-Third Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all the covenants, conditions, stipulations, promises and agreements in this Forty-Third Supplemental Indenture contained by or on behalf of the Company shall be for the sole and exclusive benefit of the parties hereto, and of the Holders of Outstanding Secured Obligations.

 

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Section 2.5             This Forty-Third Supplemental Indenture may be executed in several counterparts, each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts, or as many of them as the Company and the Trustee shall preserve undestroyed, shall together constitute but one and the same instrument.

 

Section 2.6             To the extent permitted by applicable law, this Forty-Third Supplemental Indenture shall be deemed to be a Security Agreement and Financing Statement whereby the Company grants to the Trustee a security interest in all of the Trust Estate that is personal property or fixtures under the Uniform Commercial Code, as adopted or hereafter adopted in one or more of the states in which any part of the properties of the Company are situated.  The mailing address of the Company, as debtor is:

 

2100 East Exchange Place

Tucker, Georgia 30084-5336,

 

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

 

U.S. Bank National Association

Attention: Corporate Trust Services

1349 West Peachtree Street, NW

Suite 1050, Two Midtown Plaza

Atlanta, Georgia 30309

 

 

[Signatures on Next Page]

 

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

 

Company :		OGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION) , an electric membership corporation organized under the laws of the State of Georgia
		By:	/s/ Elizabeth B. Higgins
			Elizabeth B. Higgins
			Chief Financial Officer
Signed, sealed and delivered		Attest:		/s/ Patricia N. Nash
by the Company in the presence of:				Patricia N. Nash
				Secretary
/s/ Paulette Hurteau				[CORPORATE SEAL]
Witness
/s/ Thomas J. Brendiar
Notary Public
(Notarial Seal)

 

My commission expires:

1/27/09

 

 

[Signatures Continued on Next Page]

 

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[Signatures Continued from Previous Page]

 

 

Trustee:		U.S. BANK NATIONAL ASSOCIATION , a national banking association
		By:	/s/  Jack Ellerin
Signed and delivered			Authorized Agent
by the Trustee in the
Presence of:
/s/  Felicia Powell
Witness
/s/  Marcia Williams
Notary Public
(Notarial Seal)

 

My commission expires:

5/7/12

 

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Exhibit B

 

[COPIES OF THE PRIOR FORTY-TWO SUPPLEMENTAL INDENTURES]

 

Filed only in Washington County, Georgia.

 

B-1

 

Exhibit C

 

LEGAL DESCRIPTION OF WASHINGTON COUNTY PROPERTY

 

FEE PARCEL — TRACT 1

 

All that tract or parcel of land lying and being in the 96 th  G.M. District and the 1350 th  G.M. District of Washington County, Georgia, containing approximately 504.05 acres more or less, and being more particularly described as follows:

 

Commencing at the intersection of the Western Right Of Way of Hamburg State Park Road (90 foot ROW) and the Northern Right Of Way of Sparta-Davisboro Road (100 foot ROW), thence following the Northern Right Of Way Line of Sparta-Davisboro Road 5,734 feet +/- to an ½ inch iron pipe found, having Georgia East Zone Grid Coordinates N=1141168.393 feet, E=457732.477 feet, said point being the POINT OF BEGINNING.

 

Thence continuing along the Northern Right Of Way Line of Sparta-Davisboro Road a curve to the left having a radius of 2,915.10 feet and an arc length of 6.71 feet with a chord bearing of N56°48’12”W and a chord distance of 6.71 feet to a point; thence N56°52’10”W, a distance of 1,49