EXHIBIT 4.7.1(ee)
Upon recording, return to:
Ms. Shawne M. Keenan
Sutherland Asbill & Brennan LLP
999 Peachtree Street, N.E.
Atlanta, Georgia 30309-3996
PURSUANT TO §44-14-35.1 OF OFFICIAL CODE OF
GEORGIA ANNOTATED, THIS INSTRUMENT EMBRACES, COVERS AND CONVEYS
SECURITY TITLE TO AFTER-ACQUIRED PROPERTY OF THE
GRANTOR
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION),
GRANTOR,
to
SUNTRUST BANK,
TRUSTEE
THIRTIETH SUPPLEMENTAL
INDENTURE
Relating to the
Series 2004 (Monroe) Note
Dated as of December 1, 2004
FIRST MORTGAGE OBLIGATIONS
THIS THIRTIETH SUPPLEMENTAL INDENTURE , dated as of
December 1, 2004, 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 SUNTRUST BANK , formerly known as SunTrust Bank,
Atlanta, a banking corporation organized and existing under the
laws of the State of Georgia, as Trustee (in such capacity, the
"Trustee").
WHEREAS, the Company has heretofore executed and delivered
to the Trustee an Indenture, dated as of March 1, 1997
(hereinafter called the "Original Indenture") for the purpose of
securing its Existing Obligations and providing for the
authentication and delivery of Additional Obligations by the
Trustee from time to time under the Original Indenture (capitalized
terms used herein and not otherwise defined shall have the meanings
assigned to them in the Original Indenture);
WHEREAS , the Development Authority of Monroe County (the
"Monroe Authority") issued $143,710,000 in aggregate principal
amount of Development Authority of Monroe County Pollution Control
Revenue Bonds (Oglethorpe Power Corporation Scherer Project),
Series 1992A (the "Series 1992A Bonds"), of which
$7,950,000 in aggregate principal amount matures on January 1,
2005 (the "Series 1992A Maturities");
WHEREAS , the Monroe Authority loaned the proceeds from the
sale of the Series 1992A Bonds to the Company, with such loan
being evidenced by that certain Series 1992A Note, dated as of
October 1, 1992 (the "Series 1992A Note"), from the
Company to SunTrust Bank, formerly known as Trust Company Bank, as
trustee (in such capacity, the "Series 1992A Trustee"), as
assignee and pledgee of the Monroe Authority pursuant to the Trust
Indenture, dated as of October 1, 1992 (the "Series 1992A
Indenture"), between the Monroe Authority and the Series 1992A
Trustee;
WHEREAS, the Monroe Authority has agreed to issue $7,950,000
in aggregate principal amount of Development Authority of Monroe
County Pollution Control Revenue Bonds (Oglethorpe Power
Corporation Scherer Project), Series 2004 (the
"Series 2004 Monroe Bonds"), the proceeds from the sale of
which are to be loaned to the Company pursuant to that certain Loan
Agreement, dated as of December 1, 2004 (the "Series 2004
Monroe Loan Agreement"), between the Monroe Authority and the
Company to refund the Series 1992A Maturities and to make the
related payments due on the Series 1992A Note;
WHEREAS, the Company's obligation to repay the loan of the
proceeds of the Series 2004 Monroe Bonds is evidenced by that
certain Series 2004 (Monroe) Note, dated the date of its
authentication, from the Company to SunTrust Bank, as trustee (in
such capacity, the "Series 2004 Monroe Trustee"), as assignee
and pledgee of the Monroe Authority pursuant to the Trust
Indenture, dated as of December 1, 2004 (the "Series 2004
Monroe Indenture"), between the Monroe Authority and the
Series 2004 Monroe Trustee;
WHEREAS, the Company desires to execute and deliver this
Thirtieth Supplemental Indenture, in accordance with the provisions
of the Original Indenture, for the purpose of providing for the
creation and designation of that certain Series 2004 (Monroe)
Note, dated the date of its authentication (the "Series 2004
(Monroe) Note"), from the Company to the Series 2004 Monroe
Trustee, as assignee and pledgee of the Monroe Authority pursuant
to the Series 2004 Monroe Indenture, as an Additional
Obligation and specifying the form and provisions thereof (the
Original Indenture, as heretofore, hereby and hereafter
supplemented and modified, being herein sometimes called the
"Indenture");
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
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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 Series 2004 (Monroe)
Note, to make the Series 2004 (Monroe) Note 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 Series 2004
(Monroe) Note, in accordance with its terms, have been done and
taken; and the execution and delivery of this Thirtieth
Supplemental Indenture has been in all respects duly authorized by
the Company;
NOW, THEREFORE, THIS THIRTIETH 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
Series 2004 (Monroe) Note, 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, to secure performance of the
covenants therein and herein contained, to declare the terms and
conditions on which the Series 2004 (Monroe) Note is 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 in Exhibit A
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 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.
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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 cr
