Exhibit 4.7.1(ff)
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
THIRTY-FIRST SUPPLEMENTAL
INDENTURE
Relating to the
Series 2005 (Burke) Note
Dated as of November 1, 2005
FIRST MORTGAGE OBLIGATIONS
THIS THIRTY-FIRST SUPPLEMENTAL
INDENTURE , dated as of
November 1, 2005, 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 Company has heretofore executed and delivered
to the Trustee thirty Supplemental Indentures to the Original
Indenture, and the Original Indenture and the thirty Supplemental
Indentures have been recorded as set forth on
Schedule 1 attached hereto;
WHEREAS , the Development Authority of Burke County (the
"Burke Authority") issued $199,690,000 in aggregate principal
amount of Development Authority of Burke County Pollution Control
Revenue Bonds (Oglethorpe Power Corporation Vogtle Project),
Series 1993A (the "Series 1993A Bonds"), of which
$3,810,000 in aggregate principal amount is subject to mandatory
sinking fund redemption on January 1, 2006 (the
"Series 1993A Maturities");
WHEREAS , the Burke Authority loaned the proceeds from the
sale of the Series 1993A Bonds to the Company, with such loan
being evidenced by that certain Series 1993A Note, dated as of
December 1, 1992 (the "Series 1993A Note"), from the
Company to SunTrust Bank, formerly known as Trust Company Bank, as
trustee (in such capacity, the "Series 1993A Trustee"), as
assignee and pledgee of the Burke Authority pursuant to the Trust
Indenture, dated as of December 1, 1992 (the
"Series 1993A Indenture"), between the Burke Authority and the
Series 1993A Trustee;
WHEREAS , the Burke Authority issued $122,740,000 in
aggregate principal amount of Development Authority of Burke County
Adjustable Tender Pollution Control Revenue Bonds (Oglethorpe Power
Corporation Vogtle Project), Series 1994A (the
"Series 1994A Bonds"; the Series 1993A Bonds and the
Series 1994A Bonds, together, the "Outstanding Bonds"), of
which $3,590,000 in aggregate principal amount is subject to
mandatory sinking fund redemption on January 1, 2006 (the
"Series 1994A Maturities"; the Series 1993A Maturities
and the Series 1994A Maturities, together, the "2005
Maturities");
WHEREAS , the Burke Authority loaned the proceeds from the
sale of the Series 1994A Bonds to the Company, with such loan
being evidenced by that certain Series 1994A Note, dated as of
December 1, 1992 (the "Series 1994A Note"; the
Series 1993A Note and the Series 1994A Note, together,
the "Outstanding Notes"), from the Company to SunTrust Bank,
formerly known as Trust Company Bank, as trustee (in such capacity,
the "Series 1994A Trustee"), as assignee and pledgee of the
Burke Authority pursuant to the Trust Indenture, dated as of
December 1, 1992 (the "Series 1994A Indenture"), between
the Burke Authority and the Series 1994A Trustee;
WHEREAS, the Burke Authority has agreed to issue $7,400,000
in aggregate principal amount of Development Authority of Burke
County Pollution Control Revenue Bonds (Oglethorpe Power
Corporation Vogtle Project), Series 2005 (the
"Series 2005 Burke Bonds"), the proceeds from the sale of
which are to be loaned to the Company pursuant to that certain Loan
Agreement, dated as of November 1, 2005 (the "Series 2005
Burke Loan Agreement"), between the Burke Authority and the Company
to refund the 2005 Maturities and to make the related payments due
on the Outstanding Notes;
2
WHEREAS, the Company's obligation to repay the loan of the
proceeds of the Series 2005 Burke Bonds is evidenced by that
certain Series 2005 (Burke) Note, dated the date of its
authentication, from the Company to SunTrust Bank, as trustee (in
such capacity, the "Series 2005 Burke Trustee"), as assignee
and pledgee of the Burke Authority pursuant to the Trust Indenture,
dated as of November 1, 2005 (the "Series 2005 Burke
Indenture"), between the Burke Authority and the Series 2005
Burke Trustee;
WHEREAS, the Company desires to execute and deliver this
Thirty-First 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 2005
(Burke) Note, dated the date of its authentication (the
"Series 2005 (Burke) Note"), from the Company to the
Series 2005 Burke Trustee, as assignee and pledgee of the
Burke Authority pursuant to the Series 2005 Burke 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 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 2005 (Burke) Note,
to make the Series 2005 (Burke) 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 2005 (Burke) Note, in
accordance with its terms, have been done and taken; and the
execution and delivery of this Thirty-First Supplemental Indenture
has been in all respects duly authorized by the Company;
NOW, THEREFORE, THIS THIRTY-FIRST 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 2005 (Burke) 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 2005 (Burke) 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.
3
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.
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
