EXHIBIT 4.7.1(cc)
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
TWENTY-EIGHTH SUPPLEMENTAL
INDENTURE
Relating to the
Series 2003A (Monroe)
Note
Dated as of December 1, 2003
FIRST MORTGAGE OBLIGATIONS
THIS TWENTY-EIGHTH SUPPLEMENTAL INDENTURE , dated as of
December 1, 2003, 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 $7,475,000 in aggregate principal amount
matures on January 1, 2004 (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 $7,105,000
in aggregate principal amount of Development Authority of Monroe
County Pollution Control Revenue Bonds (Oglethorpe Power
Corporation Scherer Project), Series 2003A (the “Series 2003A
Monroe Bonds”), the proceeds from the sale are to be loaned
to the Company pursuant to that certain Loan Agreement, dated as of
December 1, 2003 (the “Series 2003A 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 2003A Monroe Bonds is evidenced by that
certain Series 2003A (Monroe) Note, dated the date of its
authentication, from the Company to SunTrust Bank, as trustee (in
such capacity, the “Series 2003A Monroe Trustee”), as
assignee and pledgee of the Monroe Authority pursuant to the Trust
Indenture, dated as of December 1, 2003 (the “Series 2003A
Monroe Indenture”), between the Monroe Authority and the
Series 2003A Monroe Trustee;
2
WHEREAS, the Company desires to execute and deliver this
Twenty-Eighth 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 2003A
(Monroe) Note, dated the date of its authentication (the
“Series 2003A (Monroe) Note”), from the Company to the
Series 2003A Monroe Trustee, as assignee and pledgee of the Monroe
Authority pursuant to the Series 2003A 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 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 2003A (Monroe) Note, to
make the Series 2003A (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 2003A (Monroe) Note, in accordance
with its terms, have been done and taken; and the execution and
delivery of this Twenty-Eighth Supplemental Indenture has been in
all respects duly authorized by the Company;
NOW, THEREFORE, THIS TWENTY-EIGHTH 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 2003A (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 2003A (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.
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 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
Obligatio
