EXHIBIT 4.7.1(p)
Upon recording, return to:
Ms. Shawne M. Keenan
Sutherland Asbill & Brennan LLP
999 Peachtree Street, N.E.
Atlanta, Georgia 30309-3996
PURSUANT TO ss.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
FIFTEENTH SUPPLEMENTAL
INDENTURE
Relating to the
Series 2001 (Burke) Note
Dated as of January 1, 2002
FIRST MORTGAGE OBLIGATIONS
================================================================================
THIS FIFTEENTH SUPPLEMENTAL INDENTURE, dated as of January 1, 2002, 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
shall have the meanings ascribed to them in the Original Indenture as provided
in Section 2.1 hereof);
WHEREAS, the Development Authority of Burke County (the "Burke Authority")
issued $199,690,000 in aggregate principal amount of Development Authority of
Burke County Adjustable Tender Pollution Control Revenue Bonds (Oglethorpe Power
Corporation Vogtle Project), Series 1993A (the "Series 1993A Bonds"), of which
$2,950,000 in principal amount is subject to mandatory sinking fund redemption
on January 1, 2002 (the "1993A Sinking Fund 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 $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 $10,375,000 in aggregate principal amount matures on January
1, 2002 (the "1993B Maturities");
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 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"), of which $2,560,000 in aggregate principal
amount is subject to mandatory sinking fund redemption on January 1, 2002 (the
"1994A Sinking Fund 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 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"; the Series 1993A Bonds, the Series 1993B Bonds, the Series 1994A Bonds
and the Series 1994B Bonds, collectively, the "Outstanding Bonds"), of which
$300,000 in aggregate principal amount matures on January 1, 2002 (the "1994B
Maturities"; the 1993A Sinking Fund Maturities, the 1993B Maturities, the 1994A
Sinking Fund Maturities and the 1994B Maturities, collectively, the "2002
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 Series 1994B Note, dated as of September 1, 1994 (the "Series 1994B
Note"; the Series 1993A Note, the Series 1993B Note, the Series 1994A Note and
the Series 1994B Note, collectively, 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, on October 4, 2001, the Burke Authority issued $16,185,000 in
aggregate principal amount of Development Authority of Burke County Pollution
Control Revenue Bonds (Oglethorpe Power Corporation Vogtle Project), Series 2001
(the "Series 2001 (Burke) Bonds"), the proceeds from the sale of which were
loaned to the Company pursuant to that certain Loan Agreement, dated as of
October 1, 2001 (the "Series 2001 (Burke) Loan Agreement"), between the Burke
Authority and the Company to refund the 2002 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 2001 (Burke) Bonds is evidenced by that certain Series 2001 (Burke) Note,
dated October 4, 2001 (the "Unsecured Note"), from the Company to SunTrust Bank,
as trustee (in such capacity, the "Series 2001 (Burke) Trustee"), as assignee
and pledgee of the Burke Authority pursuant to the Trust Indenture, dated as of
October 1, 2001 (the "Series 2001 (Burke) Indenture"), between the Burke
Authority and the Series 2001 (Burke) Trustee;
2
WHEREAS, as required by Section 4.9 of the Series 2001 (Burke) Loan
Agreement, the Company desires to deliver to the Series 2001 (Burke) Trustee a
promissory note secured under the Indenture (as hereinafter defined) in
substitution for the Unsecured Note;
WHEREAS, the Company desires to execute and deliver this Fifteenth
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 2001 (Burke) Note, dated the date of its authentication (the
"Series 2001 (Burke) Note"), from the Company to the Series 2001 (Burke)
Trustee, as assignee and pledgee of the Burke Authority pursuant to the Series
2001 (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, pursuant to Section 4.9 of the Series 2001 (Burke) Loan Agreement,
upon the authentication of the Series 2001 (Burke) Note by the Trustee, the
Series 2001 (Burke) Note will be delivered to the Series 2001 (Burke) Trustee in
substitution for the Unsecured Note;
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;
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
2001 (Burke) Note, to make the Series 2001 (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
2001 (Burke) Note, in accordance with its terms, have been done and taken; and
the execution and delivery of this Fifteenth Supplemental Indenture has been in
all respects duly authorized by the Company;
NOW, THEREFORE, THIS FIFTEENTH 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 issued, the Series 2001 (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 2001 (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 of the character described in the Granting Clauses of the
3
Original Indenture, 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.
TO HAVE AND TO HOLD all such property, rights, privileges and franchises
hereby and hereafter (by 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, 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.
4
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 FIFTEENTH 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 existing 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 therein contained in a timely manner, then the Indenture shall be
canceled and surrendered.
AND IT IS HEREBY COVENANTED AND DECLARED that the Series 2001 (Burke) 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 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 2001 (BURKE) NOTE AND
CERTAIN PROVISIONS RELATING THERETO
Section 1.1 Authorization and Terms of the Series 2001 (Burke) Note.
There shall be created and established an Additional Obligation in the form
of a promissory note known as and entitled the "Series 2001 (Burke) Note"
(hereinafter referred to as the "Series 2001 (Burke) Note"), the form, terms and
conditions of which shall be substantially as set forth in this Section and
Section 1.2. The aggregate principal face amount of the Series 2001 (Burke) Note
which shall be authenticated and delivered and Outstanding at any one time is
limited to $16,185,000.
5
The Series 2001 (Burke) Note shall be dated the date of its authentication.
The Series 2001 (Burke) Note shall mature on January 1, 2022 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 by Section 1.2.
The Series 2001 (Burke) Note shall be authenticated and delivered to, and made
payable to, SunTrust Bank, as trustee, in its capacity as the Series 2001
(Burke) Trustee.
All payments made on the Series 2001 (Burke) Note shall be made to the
Series 2001 (Burke) 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 2001 (Burke) Note.
The Series 2001 (Burke) Note, including the Trustee's authentication
certificate to be executed on such Series 2001 (Burke) Note shall be
substantially in the form of Exhibit B attached hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted in the Original Indenture.
Section 1.3 Substitution of the Series 2001 (Burke) Note for the Unsecured
Note.
Upon its authentication, the Series 2001 (Burke) Note shall be delivered to
the Series 2001 (Burke) Trustee in substitution for the Unsecured Note in
accordance with Section 4.9 of the Series 2001 (Burke) Loan Agreement.
Thereafter, the Series 2001 (Burke) Note shall evidence the loan theretofore
evidenced by the Unsecured Note.
ARTICLE II
MISCELLANEOUS
Section 2.1 This Fifteenth Supplemental Indenture is executed and shall be
construed as an indenture supplemental to the Original Indenture, and shall form
a part thereof, and the Original Indenture, as heretofore supplemented and as
hereby supplemented and modified, is hereby confirmed. Except to the extent
inconsistent with the express terms hereof, all of the provisions, terms,
covenants and conditions of the Indenture shall be applicable to the Series 2001
(Burke) Note to the same extent as if specifically set forth herein. All
references herein to Sections, definitions or other provisions of the Original
Indenture shall be to such Sections, definitions and other provisions as they
may be amended or modified from time to time pursuant to the Indenture. All
capitalized terms used in this Fifteenth Supplemental Indenture shall have the
same meanings ascribed to them in the Original Indenture, except in cases where
the context clearly indicates otherwise.
Section 2.2 All recitals in this Fifteenth Supplemental Indenture are made
by the Company only and not by the Trustee; and all of the provisions contained
in the Original Indenture, in respect of the rights, privileges, immunities,
powers and duties of the Trustee shall be applicable in respect hereof as fully
and with like effect as if set forth herein in full.
6
Section 2.3 Whenever in this Fifteenth Supplemental Indenture any of the
parties hereto is named or referred to, this shall, subject to the provisions of
Articles IX and XI of the Original Indenture, be deemed to include the
successors and assigns of such party, and all the covenants and agreements in
this Fifteenth Supplemental Indenture contained by or on behalf of the Company,
or by or on behalf of the Trustee shall, subject as aforesaid, bind and inure to
the respective benefits of the respective successors and assigns of such
parties, whether so expressed or not.
Section 2.4 Nothing in this Fifteenth Supplemental Indenture, expressed or
implied, is intended, or shall be construed, to confer upon, or to give to, any
person, firm or corporation, other than the parties hereto and the Holders of
the Outstanding Secured Obligations, any right, remedy or claim under or by
reason of this Fifteenth Supplemental Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Fifteenth Supplemental Indenture
contained by or on behalf of the Company shall be for the sole and exclusive
benefit of the parties hereto, and of the Holders of Outstanding Secured
Obligations.
Section 2.5 This Fifteenth Supplemental Indenture may be executed in
several counterparts, each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts, or as many of them as the Company
and the Trustee shall preserve undestroyed, shall together constitute but one
and the same instrument.
Section 2.6 To the extent permitted by applicable law, this Fifteenth
Supplemental Indenture shall be deemed to be a Security Agreement and Financing
Statement whereby the Company grants to the Trustee a security interest in all
of the Trust Estate that is personal property or fixtures under the Uniform
Commercial Code, as adopted or hereafter adopted in one or more of the states in
which any part of the properties of the Company are situated. The mailing
address of the Company,
as debtor, is: 2100 East Exchange Place
P. O. Box 1349
Tucker, Georgia 30085-1349,
and the mailing address of the Trustee, as secured party, is:
SunTrust Bank
25 Park Place
Atlanta, Georgia 30303-2900.
[Signatures on Next Page.]
7
IN WITNESS WHEREOF, the parties hereto have caused this Fifteenth
Supplemental Indenture to be duly executed under seal as of the day and year
first written above.
Company: OGLETHORPE POWER
CORPORATION (AN ELECTRIC
MEMBERSHIP CORPORATION), an
electric membership corporation organized
under the laws of the State of Georgia
By: /s/ Thomas A. Smith
-----------------------------------------
Thomas A. Smith
President and Chief Executive Officer
Signed, sealed and delivered
by the Company in the presence of:
Attest: /s/ Patricia N. Nash
-----------------------------------------
/s/ Lynn H. Lester Patricia N. Nash
- ------------------------------- Secretary
Witness
/s/ Thomas J. Brendiar [CORPORATE SEAL]
- -------------------------------
Notary Public
(Notarial Seal)
My commission expires: 10/22/04
-------------
[Signatures Continued on Next Page.]
8
[Signatures Continued from Previous Page.]
Trustee: SUNTRUST BANK, a banking corporation
organized and existing under the laws of the
State of Georgia
By: /s/ B. A. Donaldson
-----------------------------------------
B. A. Donaldson
Vice President
Signed, sealed and delivered
by the Trustee in the
presence of: By: /s/ Leigh S. Mullis
-----------------------------------------
/s/ Tim Speakman Leigh S. Mullis
- ------------------------------- Vice President
Witness
/s/ Kelly A. Lennon
- -------------------------------
Notary Public [BANK SEAL]
(Notarial Seal)
My commission expires: July 12, 2003
------------------------
Exhibit A
---------
All property of the Company in the Counties of Appling, Ben Hill, Burke,
Carroll, Clarke, Cobb, DeKalb, Floyd, Fulton, Heard, Jackson, Monroe, and
Toombs, State of Georgia.
A-1
Exhibit B
---------
[Form of Series 2001 (Burke) Note]
THIS NOTE IS NON-TRANSFERABLE EXCEPT AS MAY BE REQUIRED TO EFFECT ANY TRANSFER
TO ANY SUCCESSOR TRUSTEE UNDER THE TRUST INDENTURE, DATED AS OF OCTOBER 1, 2001,
BETWEEN THE DEVELOPMENT AUTHORITY OF BURKE COUNTY AND SUNTRUST BANK, AS TRUSTEE.
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
SERIES 2001 (BURKE) NOTE DATE: February __, 2002
(VOGTLE PROJECT)
OGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)
("Oglethorpe"), an electric membership corporation organized and existing under
the laws of the State of Georgia, for value received and in consideration of the
agreement of the Development Authority of Burke County (the "Burke Authority")
to issue $16,185,000 in aggregate principal amount of Development Authority of
Burke County Pollution Control Revenue Bonds (Oglethorpe Power Corporation
Vogtle Project), Series 2001 (the "Series 2001 (Burke) Bonds"), hereby promises
to pay to SunTrust Bank (the "Series 2001 (Burke) Trustee"), as assignee and
pledgee of the Burke Authority, acting pursuant to the Trust Indenture, dated as
of October 1, 2001, from the Burke Authority to the Series 2001 (Burke) Trustee
(the "Series 2001 Indenture"), or its successor in trust, the principal sum of
$16,185,000, together with interest and prepayment premium (if any) thereon as
follows:
(a) on or before each Interest Payment Date (as defined in the
Series 2001 Indenture), a sum which will equal the interest on the Series 2001
(Burke) Bonds which will become due on such Interest Payment Date on the Series
2001 (Burke) Bonds; and
(b) on or before January 1, 2022, a sum which will equal the
principal amount of the Series 2001 (Burke) Bonds which will become due on
January 1, 2022; and
(c) on or before any redemption date for the Series 2001
(Burke) Bonds, a sum equal to the principal of, redemption premium (if any) and
interest on, the Series 2001 (Burke) Bonds which are to be redeemed on such
date.
This Series 2001 (Burke) Note is issued in substitution for and supersedes
and replaces that certain Series 2001 (Burke) Note, dated October 4, 2001, by
Oglethorpe to the Series 2001 (Burke) Trustee which was executed and delivered
contemporaneously with the initial issuance of the Series 2001 (Burke) Bonds.
This Series 2001 (Burke) Note evidences the Loan (as defined in the Agreement
hereinafter referred to) of the Burke Authority to Oglethorpe and the obligation
to repay the same and shall be governed by and shall be payable in accordance
with the terms, conditions and provisions of the Loan Agreement, dated October
1, 2001 (the "Agreement"), between the Burke Authority and Oglethorpe, pursuant
B-1
to which the Burke Authority has agreed to loan to Oglethorpe the proceeds from
the sale of the Series 2001 (Burke) Bonds.
This Series 2001 (Burke) Note is a duly authorized obligation of Oglethorpe
issued under and equally and ratably secured by the Indenture, dated as of March
1, 1997 (the "Original Indenture"), as heretofore supplemented and as
supplemented by the Fifteenth Supplemental Indenture, dated as of January 1,
2002 (the "Fifteenth Supplemental Indenture"), and the Sixteenth Supplemental
Indenture, dated as of January 1, 2002 (the "Sixteenth Supplemental Indenture"),
between Oglethorpe, as grantor, and SunTrust Bank, formerly known as SunTrust
Bank, Atlanta, as trustee (in such capacity, the "Indenture Trustee"), (the
Original Indenture, as supplemented, the "Indenture"). Reference is hereby made
to the Indenture for a statement of the description of the properties thereby
mortgaged, pledged and assigned, the nature and extent of the security and the
respective rights, limitations of rights, duties and immunities thereunder of
Oglethorpe, the Indenture Trustee and the holder of this Series 2001 (Burke)
Note and of the terms upon which this Series 2001 (Burke) Note is authenticated
and delivered. This Series 2001 (Burke) Note is created by the Fifteenth
Supplemental Indenture and designated as the "Series 2001 (Burke) Note."
All payments hereon are to be made to the Series 2001 (Burke) Trustee at
its principal office in Atlanta, Georgia, in lawful money of the United States
of America which will be immediately available on the day payment is due. As set
forth in Section 4.6 of the Agreement, the obligation of Oglethorpe to make the
payments required hereunder shall be absolute and unconditional.
Oglethorpe shall be entitled to certain credits against payments required
to be made hereunder as provided in Section 4.3 of the Agreement.
This Series 2001 (Burke) Note may be prepaid upon the terms and conditions
set forth in Article VIII of the Agreement.
If the Series 2001 (Burke) Trustee shall accelerate payment of the Series
2001 (Burke) Bonds, all payments on this Series 2001 (Burke) Note shall be
declared due and payable in the manner and with the effect provided in the
Agreement. The Agreement provides that, under certain conditions, such
declaration shall be rescinded by the Series 2001 (Burke) Trustee.
No recourse shall be had for the payments required hereby or for any claim
based herein or in the Agreement or in the Indenture against any officer,
director or member, past, present or future, of Oglethorpe as such, either
directly or through Oglethorpe, or under any constitutional provision, statute
or rule of law or by the enforcement of any assessment or by any legal or
equitable proceedings or otherwise.
This Series 2001 (Burke) Note shall not be entitled to any benefit under
the Indenture and shall not become valid or obligatory for any purposes until
the Indenture Trustee shall have signed the form of authentication certificate
endorsed hereon.
B-2
This Series 2001 (Burke) Note shall be governed by and construed in
accordance with the laws of the State of Georgia.
IN WITNESS WHEREOF, Oglethorpe has caused this Series 2001 (Burke) Note to
be executed in its corporate name by its President and Chief Executive Officer
and attested by its Secretary and its corporate seal to be hereunto affixed.
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
By:________________________________
Thomas A. Smith
President and Chief Executive Officer
(SEAL)
Attest:
- -------------------------------
Patricia N. Nash
Secretary
B-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Obligations of the series designated therein referred to
in the within mentioned Indenture.
SUNTRUST BANK, as Trustee
By:____________________________________
Authorized Signatory