Exhibit 4.7.1(gg)
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-SECOND SUPPLEMENTAL
INDENTURE
Relating to the
Series 2005 (Monroe) Note
Dated as of November 1, 2005
FIRST MORTGAGE OBLIGATIONS
THIS THIRTY-SECOND 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- one Supplemental Indentures, and the
Original Indenture and the thirty-one Supplemental Indentures have
been recorded as set forth on Schedule 1 ;
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
$8,465,000 in aggregate principal amount matures on January 1,
2006 (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 $8,465,000
in aggregate principal amount of Development Authority of Monroe
County Pollution Control Revenue Bonds (Oglethorpe Power
Corporation Scherer Project), Series 2005 (the
"Series 2005 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 November 1, 2005 (the "Series 2005
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 2005 Monroe Bonds is evidenced by that
certain Series 2005 (Monroe) Note, dated the date of its
authentication, from the Company to SunTrust Bank, as trustee (in
such capacity, the "Series 2005 Monroe Trustee"), as assignee
and pledgee of the Monroe Authority pursuant to the Trust
Indenture, dated as of November 1, 2005 (the "Series 2005
Monroe Indenture"), between the Monroe Authority and the
Series 2005 Monroe Trustee;
WHEREAS, the Company desires to execute and deliver this
Thirty-Second 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 A , and
(ii) providing for the creation and designation of that
certain Series 2005 (Monroe) Note, dated the date of its
authentication (the "Series 2005 (Monroe) Note"), from the
Company to the Series 2005 Monroe Trustee, as assignee and
pledgee of the Monroe Authority pursuant to the Series 2005
Monroe Indenture, as an Additional Obligation and specifying the
form and provisions thereof (the Original
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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 better assure, convey and confirm
unto the Trustee any property subjected to the lien of the
Indenture and 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 (Monroe)
Note, to make the Series 2005 (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 2005
(Monroe) Note, in accordance with its terms, have been done and
taken; and the execution and delivery of this Thirty-Second
Supplemental Indenture has been in all respects duly authorized by
the Company;
NOW, THEREFORE, THIS THIRTY-SECOND 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 (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 2005 (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
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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.
THE INDENTURE, INCLUDING THIS THIRTY-SECOND 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
Series 2005 (Monroe) Note is 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
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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 SERIES 2005 (MONROE) NOTE AND
CERTAIN PROVISIONS RELATING THERETO
Section 1.1 Authorization
and Terms of the Series 2005 (Monroe) Note.
There
shall be created and established an Additional Obligation in the
form of a promissory note known as and entitled the
"Series 2005 (Monroe) Note" (hereinafter referred to as the
"Series 2005 (Monroe) 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 2005 (Monroe) Note which shall
be authenticated and delivered and Outstanding at any one time is
limited to $8,465,000.
The
Series 2005 (Monroe) Note shall be dated the date of its
authentication. The Series 2005 (Monroe) Note shall mature on
January 1, 2040 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 2005 (Monroe) Note shall
be authenticated and delivered to, and made payable to, SunTrust
Bank, as trustee, in its capacity as the Series 2005 Monroe
Trustee.
All
payments made on the Series 2005 (Monroe) Note shall be made
to the Series 2005 Monroe Trustee at its principal 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 Series 2005 (Monroe) Note.
The
Series 2005 (Monroe) Note and the Trustee's certificate of
authentication for the Series 2005 (Monroe) Note shall be
substantially in the form of Exhibit B attached hereto,
with such appropriate insertions, omissions, substitutions and
other v
