EXHIBIT 4.7.1(aa)
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-SIXTH SUPPLEMENTAL
INDENTURE
Relating to the
Series 2003B (Burke) Note
Dated as of December 1, 2003
FIRST MORTGAGE OBLIGATIONS
THIS TWENTY-SIXTH 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 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 $3,350,000 in aggregate principal amount is subject to
mandatory sinking fund redemption on January 1, 2004 (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 Development Authority of Burke County (the
“Burke Authority”) issued $122,740,000 in aggregate
principal amount of Development Authority of Burke County Pollution
Control Revenue Bonds (Oglethorpe Power Corporation Vogtle
Project), Series 1994A (the “Series 1994A Bonds”), of
which $2,930,000 in aggregate principal amount is subject to
mandatory sinking fund redemption on January 1, 2004 (the
“Series 1994A 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”), 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 Development Authority of Burke County (the
“Burke Authority”) issued $155,610,000 in aggregate
principal amount of Development Authority of Burke County Pollution
Control Revenue Bonds (Oglethorpe Power Corporation Vogtle
Project), Series 1993B (the “Series 1993B Bonds”), of
which $73,570,000 in aggregate principal amount matures on or is
subject to optional redemption beginning on January 1, 2004 (the
“Series 1993B Maturities”);
2
WHEREAS , the Burke Authority loaned the proceeds from the
sale of the Series 1993B Bonds to the Company, with such loan being
evidenced by that certain Series 1993B Note, dated as of September
1, 1993 (the “Series 1993B Note”), from the Company to
SunTrust Bank, formerly known as Trust Company Bank, as trustee (in
such capacity, the “Series 1993B Trustee”), as assignee
and pledgee of the Burke Authority pursuant to the Trust Indenture,
dated as of September 1, 1993 (the “Series 1993B
Indenture”), between the Burke Authority and the Series 1993B
Trustee;
WHEREAS , the Development Authority of Burke County (the
“Burke Authority”) issued $13,720,000 in aggregate
principal amount of Development Authority of Burke County Pollution
Control Revenue Bonds (Oglethorpe Power Corporation Vogtle
Project), Series 1994B (the “Series 1994B Bonds,” and
together with the Series 1993A Bonds, the Series 1994A Bonds, and
the Series 1993B Bonds, the “Outstanding Bonds”), of
which $3,880,000 in aggregate principal amount matures on or is
subject to optional redemption beginning on January 1, 2004 (the
“Series 1994B Maturities,” and together with the Series
1993A Maturities, the Series 1994A Maturities, and the Series 1993B
Maturities, the “2004 Maturities”);
WHEREAS , the Burke Authority loaned the proceeds from the
sale of the Series 1994B Bonds to the Company, with such loan being
evidenced by that certain 1994B Note, dated as of September 1, 1994
(the “1994B Note,” and together with the Series 1993A
Note, the Series 1994A Note, and the Series 1993B Note, the
“Outstanding Notes”), from the Company to SunTrust
Bank, formerly known as Trust Company Bank, as trustee (in such
capacity, the “Series 1994B Trustee”), as assignee and
pledgee of the Burke Authority pursuant to the Trust Indenture,
dated as of September 1, 1994 (the “Series 1994B
Indenture”), between the Burke Authority and the Series 1994B
Trustee;
WHEREAS, the Burke Authority has agreed to issue $20,000,000
in aggregate principal amount of Development Authority of Burke
County Pollution Control Revenue Bonds (Oglethorpe Power
Corporation Vogtle Project), Series 2003B (the “Series 2003B
Burke 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 2003B Burke Loan
Agreement”), between the Burke Authority and the Company to
refund a portion of the 2004 Maturities and to make the related
payments due on the Outstanding Notes;
WHEREAS, the Company’s obligation to repay the loan of
the proceeds of the Series 2003B Burke Bonds is evidenced by that
certain Series 2003B (Burke) Note, dated the date of its
authentication, from the Company to SunTrust Bank, as trustee (in
such capacity, the “Series 2003B Burke Trustee”), as
assignee and pledgee of the Burke Authority pursuant to the Trust
Indenture, dated as of December 1, 2003 (the “Series 2003B
Burke Indenture”), between the Burke Authority and the Series
2003B Burke Trustee;
3
WHEREAS, the Company desires to execute and deliver this
Twenty-Sixth 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 2003B
(Burke) Note, dated the date of its authentication (the
“Series 2003B (Burke) Note”), from the Company to the
Series 2003B Burke Trustee, as assignee and pledgee of the Burke
Authority pursuant to the Series 2003B 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 2003B (Burke) Note, to
make the Series 2003B (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 2003B (Burke) Note, in accordance
with its terms, have been done and taken; and the execution and
delivery of this Twenty-Sixth Supplemental Indenture has been in
all respects duly authorized by the Company;
NOW, THEREFORE, THIS TWENTY-SIXTH 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 2003B (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 2003B (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.
4
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 o
