EXHIBIT 4.7.1(c)
PURSUANT TO SECTION 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
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OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION),
GRANTOR,
to
SUNTRUST BANK, ATLANTA,
TRUSTEE
SECOND SUPPLEMENTAL
INDENTURE
Relating to the
Series 1997C (Burke) Note
Dated as of January 1, 1998
FIRST MORTGAGE OBLIGATIONS
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THIS SECOND SUPPLEMENTAL INDENTURE, dated as of January 1, 1998, is
between OGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP 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, 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 $2,265,000 in principal amount is subject to
mandatory sinking fund redemption on January 1, 1998 (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, Atlanta, 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 $6,490,000 in aggregate principal amount
matures on January 1, 1998 (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, Atlanta, 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 $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, and the Series 1994B Bonds, collectively, the
"Outstanding Bonds"), of which $550,000 in aggregate principal amount matures
on January 1, 1998 (the "1994B Maturities"; the 1993A Sinking Fund
Maturities, the 1993B Maturities and the 1994B Maturities, collectively, the
"1998 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 and the Series 1994B
Note, collectively, the "Outstanding Notes"), from the Company to SunTrust
Bank, Atlanta, 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 December 10, 1997, the Burke Authority issued $9,305,000 in
aggregate principal amount of Development Authority of Burke County Pollution
Control Revenue Bonds (Oglethorpe Power Corporation Vogtle Project), Series
1997C (the "Series 1997C (Burke) Bonds"), the proceeds from the sale of which
were loaned to the Company pursuant to that certain Loan Agreement, dated as
of December 1, 1997 (the "Series 1997C (Burke) Loan Agreement"), between the
Burke Authority and the Company to refund the 1998 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 1997C (Burke) Bonds is evidenced by that certain Series 1997C
(Burke) Note, dated as of December 1, 1997 (the "Unsecured Note"), from the
Company to SunTrust Bank, Atlanta, as trustee (in such capacity, the "Series
1997C (Burke) Trustee"), as assignee and pledgee of the Burke Authority
pursuant to the Indenture of Trust, dated as of December 1, 1997 (the "Series
1997C (Burke) Indenture"), between the Burke Authority and the Series 1997C
(Burke) Trustee;
WHEREAS, as permitted by Section 4.9 of the Series 1997C (Burke) Loan
Agreement, the Company desires to deliver to the Series 1997C (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 Second
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 1997C (Burke) Note, dated the date of its authentication
(the "Series 1997C (Burke) Note"), from the Company to the Series 1997C
(Burke) Trustee, as assignee and pledgee of the Burke Authority pursuant to
the Series 1997C (Burke) Indenture, as an Additional Obligation and
specifying the form and provisions of the Series 1997C (Burke) Note (the
Original Indenture, as heretofore and hereby supplemented and modified, being
herein sometimes called the "Indenture");
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WHEREAS, pursuant to Section 4.9 of the Series 1997C (Burke) Loan
Agreement, upon the authentication of the Series 1997C (Burke) Note by the
Trustee, the Series 1997C (Burke) Note will be delivered to the Series 1997C
(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 at the time Outstanding,
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 the payment of
the principal of (and premium, if any) and interest on the Series 1997C
(Burke) Note, to make the Series 1997C (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 1997C (Burke) Note, in accordance with its terms, have been done and
taken; and the execution and delivery of this Second Supplemental Indenture
has been in all respects duly authorized;
NOW, THEREFORE, THIS 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 issued, the Series 1997C
(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 1997C (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 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 therein referred to, 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
under the Original Indenture, 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,
3
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
Original 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 Original
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 (as defined in Section 1.1
of the Original Indenture) 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
4
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 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 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 herein contained in a timely manner, then the
Indenture shall be canceled and surrendered.
AND IT IS HEREBY COVENANTED AND DECLARED that the Series 1997C (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 Original 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 1997C (BURKE) NOTE AND
CERTAIN PROVISIONS RELATING THERETO
Section 1.1 Authorization and Terms of the Series 1997C (Burke) Note.
There shall be created and established an Additional Obligation in the
form of a promissory note known as and entitled the "Series 1997C (Burke)
Note" (hereinafter referred to as the "Series 1997C (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
1997C (Burke) Note which shall be authenticated and delivered and Outstanding
at any one time is limited to $9,305,000.
The Series 1997C (Burke) Note shall be dated the date of its
authentication. The Series 1997C (Burke) Note shall mature on January 1,
2018 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 1997C (Burke) Note shall be
authenticated and delivered to, and made payable to, SunTrust Bank, Atlanta,
as trustee (in such capacity, the "Series 1997C (Burke) Trustee"), as
assignee and pledgee of the Development Authority of Burke County (the "Burke
Authority") pursuant to the Series 1997C (Burke) Indenture.
5
All payments made on the Series 1997C (Burke) Note shall be made to the
Series 1997C (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 1997C (Burke) Note.
The Series 1997C (Burke) Note and the Series 1997C (Burke) Trustee's
authentication certificate to be executed on the Series 1997C (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 1997C (Burke) Note for
the Unsecured Note.
Upon its authentication, the Series 1997C (Burke) Note shall be
delivered to the Series 1997C (Burke) Trustee in substitution for the
Unsecured Note in accordance with Section 4.9 of the Series 1997C (Burke)
Loan Agreement. Thereafter, the Series 1997C (Burke) Note shall evidence the
loan theretofore evidenced by the Unsecured Note.
ARTICLE II
MISCELLANEOUS
Section 2.1 This Second 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 Original Indenture shall
be applicable to the Series 1997C (Burke) Note to the same extent as if
specifically set forth herein. All capitalized terms used in this Second
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 Second 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.
Section 2.3 Whenever in this Second 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 Second 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.
6
Section 2.4 Nothing in this Second 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 Second Supplemental Indenture or any covenant,
condition, stipulation, promise or agreement hereof, and all the covenants,
conditions, stipulations, promises and agreements in this Second 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 Second 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 Second
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 Trustees, as secured party is:
SunTrust Bank, Atlanta
58 Edgewood Avenue, Room 400A
Atlanta, Georgia 30303
[Signatures on Next Page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed under seal as of the day and year first above
written.
Company: OGLETHORPE POWER
CORPORATION (AN ELECTRIC
MEMBERSHIP CORPORATION), an electric
membership corporation organized under the
laws of the State of Georgia
2100 East Exchange Place
P. O. Box 1349
Tucker, Georgia 30085-1349
By: /s/ T. D. Kilgore
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T. D. Kilgore
President and Chief Executive Officer
Signed, sealed and Attest: /s/ Patricia N. Nash
delivered by the Company -------------------------
in the presence of: Patricia N. Nash
Secretary
/s/ Kathy C. Joiner
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Witness
/s/ Thomas J. Brendiar
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Notary Public [CORPORATE SEAL]
(Notarial Seal)
My commission expires: November 14, 2000
---------------------------
[Signatures Continued on Next Page.]
[Signatures Continued from Previous Page.]
Trustee: SUNTRUST BANK, ATLANTA
a banking corporation organized and existing
under the laws of the State of Georgia
By: /s/ Phillip D. DeMouey
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Signed, sealed and delivered Name: Phillip D. DeMouey
by the Trustee in the Title: Assistant Vice President
presence of:
By: /s/ Ronald C. Painter
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/s/ Brian Womble Name: Ronald C. Painter
- ------------------------- Title: Vice President
Witness
/s/ Teresa R. Turner
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Notary Public [BANK SEAL]
(Notarial Seal)
My commission expires: April 3, 2001
-------------------
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, including, without limitation, the properties more
specifically described below:
No additional properties to be specifically described.
A-1
Exhibit B
[Form of Series 1997C (Burke) Note]
THIS NOTE IS NON-TRANSFERABLE EXCEPT AS MAY BE REQUIRED TO EFFECT ANY
TRANSFER TO ANY SUCCESSOR TRUSTEE UNDER THE INDENTURE OF TRUST, DATED AS OF
DECEMBER 1, 1997, AS SUPPLEMENTED, BETWEEN THE DEVELOPMENT AUTHORITY OF BURKE
COUNTY AND SUNTRUST BANK, ATLANTA, AS TRUSTEE.
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
SERIES 1997C (BURKE) NOTE DATE: January 14, 1998
(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 $9,305,000 in aggregate principal amount of
Development Authority of Burke County Pollution Control Revenue Bonds
(Oglethorpe Power Corporation Vogtle Project), Series 1997C (the "Series
1997C (Burke) Bonds"), hereby promises to pay to SunTrust Bank, Atlanta (the
"Series 1997C (Burke) Trustee"), as assignee and pledgee of the Burke
Authority, acting pursuant to the Indenture of Trust, dated as of December 1,
1997, from the Burke Authority to the Series 1997C Trustee (the "Series 1997C
Indenture"), or its successor in trust, the principal sum of $9,305,000,
together with interest and prepayment premium (if any) thereon as follows:
(1) on or before each Interest Payment Date (as defined in the
Indenture), a sum which will equal the interest on the Series 1997C (Burke)
Bonds which will become due on such Interest Payment Date on the Series 1997C
(Burke) Bonds; and
(2) on or before each January 1, commencing January 1, 1998, a sum
which will equal the principal amount of the Series 1997C (Burke) Bonds which
will become due (whether at maturity or otherwise) on the next succeeding
annual principal payment date on the Series 1997C (Burke) Bonds; and
(3) on or before any redemption date for the Series 1997C (Burke)
Bonds, a sum equal to the principal of, redemption premium (if any) and
interest on, the Series 1997C (Burke) Bonds which are to be redeemed on such
date; and
B-1
(4) on or before each date on which the Series 1997C (Burke) Bonds
are required to be purchased pursuant to Section 4.01, 4.02 or 4.04 of the
Indenture, a sum equal to the purchase price of all Series 1997C (Burke)
Bonds required to be purchased on such date.
This Note is issued in substitution for and supersedes and replaces that
certain Series 1997C (Burke) Note, dated as of December 1, 1997, by
Oglethorpe to the Series 1997C (Burke) Trustee which was executed and
delivered contemporaneously with the initial issuance of the Series 1997C
(Burke) Bonds. This 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 as of December 1, 1997 (the "Agreement"), between the Burke Authority
and Oglethorpe, pursuant to which the Burke Authority has agreed to loan to
Oglethorpe the proceeds from the sale of the Series 1997C (Burke) Bonds.
This 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 Mortgage Indenture"), between Oglethorpe, as grantor, and SunTrust
Bank, Atlanta, as trustee (in such capacity, the "Mortgage Indenture
Trustee"), as supplemented by the First Supplemental Indenture, dated as of
October 1, 1997 (the "First Supplemental Indenture"), the Second Supplemental
Indenture, dated as of January 1, 1998 (the "Second Supplemental Indenture")
and the Third Supplemental Indenture, dated as of January 1, 1998 (the "Third
Supplemental Indenture"), between Oglethorpe and the Mortgage Indenture
Trustee (the Original Indenture, as supplemented, the "Mortgage Indenture").
Reference is hereby made to the Mortgage 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 Mortgage
Indenture Trustee and the holder of this Note and of the terms upon which
this Note is authenticated and delivered. This Note is created by the Second
Supplemental Indenture and designated as the "Series 1997C (Burke) Note".
All payments hereon are to be made to the Series 1997C 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 Note may be prepaid upon the terms and conditions set forth in
Article V of the Agreement.
If the Series 1997C Trustee shall accelerate payment of the Series 1997C
(Burke) Bonds, all payments on this Note shall be declared due and payable in
the manner and with the effect provided
B-2
in the Agreement. The Agreement provides that, under certain conditions,
such declaration shall be rescinded by the Series 1997C Trustee.
No recourse shall be had for the payments required hereby or for any
claim based herein or in the Agreement or in the Mortgage Indenture against
any officer, director or member, past, present or future, of Oglethorpe as
such, either directly or through Oglethorpe, or under any constitution
provision, statute or rule of law or by the enforcement of any assessment or
by any legal or equitable proceedings or otherwise.
This Note shall not be entitled to any benefit under the Mortgage
Indenture and shall not become valid or obligatory for any purposes until the
Mortgage Indenture Trustee shall have signed the form of authentication
certificate endorsed hereon.
This Note shall be governed by and construed in accordance with the laws
of the State of Georgia.
IN WITNESS WHEREOF, Oglethorpe has caused this 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:
--------------------------
T. D. Kilgore
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, ATLANTA, as Trustee
By:
--------------------------
Authorized Signatory