EXHIBIT 4.7.1(f)
UPON RECORDING, RETURN TO:
MS. SHAWNE M. KEENAN
SUTHERLAND, ASBILL & BRENNAN LLP
999 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309-3996
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
FIFTH SUPPLEMENTAL
INDENTURE
Relating to the
Series 1998 CFC Note
Dated as of April 1, 1998
FIRST MORTGAGE OBLIGATIONS
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THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of April 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 $92,130,000 in aggregate principal amount of Development
Authority of Burke County Pollution Control Revenue Refunding Bonds (Oglethorpe
Power Corporation Vogtle Project), Series 1992 (the "Series 1992 Bonds") on
November 12, 1992;
WHEREAS, to facilitate the adoption of the Original Indenture in
connection with the restructuring of the Company, the Company defeased the
Series 1992 Bonds by issuing commercial paper on March 7, 1997;
WHEREAS, the Company intends to refund and retire the commercial paper
used to defease the Series 1992 Bonds with the proceeds of medium term loan
facilities;
WHEREAS, the Company intends to borrow $46,065,000 in aggregate
principal amount from National Rural Utilities Cooperative Finance Corporation
("CFC") to refund in part the commercial paper used to defease the Series 1992
Bonds;
WHEREAS, the Company's obligation to repay the loan from CFC will be
evidenced by that certain Series 1998 CFC Note, dated the date of its
authentication (the "Series 1998 CFC Note"), from the Company to CFC, delivered
pursuant to that certain Loan Agreement, dated as of April 1, 1998 (the "1998
CFC Loan Agreement"), between the Company and CFC;
WHEREAS, the Company desires to execute and deliver this Fifth
Supplemental Indenture, in accordance with the provisions of the Original
Indenture, for the purpose of providing for the creation and designation of the
Series 1998 CFC Note as an Additional Obligation and specifying the form and
provisions of the Series 1998 CFC Note (the Original Indenture, as hereby
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 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 1998 CFC Note,
to make the Series 1998 CFC Notes 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 1998 CFC Note, in
accordance with its terms, have been done and taken; and the execution and
delivery of this Fifth Supplemental Indenture has been in all respects duly
authorized;
NOW, THEREFORE, THIS FIFTH 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 1998 CFC 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 1998 CFC 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 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, 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 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 FIFTH 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 1998 CFC 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 1998 CFC NOTE AND
CERTAIN PROVISIONS RELATING THERETO
SECTION 1.1 AUTHORIZATION AND TERMS OF THE SERIES 1998 CFC NOTE.
There shall be created and established an Additional Obligation in the
form of a promissory note known as and entitled the "Series 1998 CFC Note"
(hereinafter referred to as the "Series 1998 CFC 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 1998 CFC Note
which shall be authenticated and delivered and Outstanding at any one time is
limited to $46,065,000.
The Series 1998 CFC Note, when duly executed and issued by the Company,
authenticated and delivered by the Trustee and purchased by the Holder thereof,
will be equally and proportionately secured under the Indenture with all other
Outstanding Secured Obligations.
The Series 1998 CFC Note shall be dated the date of its authentication.
The Series 1998 CFC Note shall mature on March 31, 2003 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 1998 CFC Note shall be authenticated and delivered to, and made payable
to, CFC.
All payments made on the Series 1998 CFC Note shall be made to CFC at
its principal office in Herndon, Virginia 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 1998 CFC NOTE.
The Series 1998 CFC Note and the Trustee's authentication certificate
to be executed on the Series 1998 CFC Note, shall be substantially in the form
of EXHIBIT A attached hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted in the Original
Indenture.
SECTION 1.3 USE OF PROCEEDS.
The Company shall use the proceeds of the loan evidenced by the Series
1998 CFC Note to refund and retire $46,065,000 in aggregate principal amount of
the commercial paper used to defease the Series 1992 Bonds.
ARTICLE II
MISCELLANEOUS
SECTION 2.1 The Fifth 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 1998 CFC Note to the same extent as if specifically set forth herein. All
capitalized terms used in this Fifth 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 Fifth 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 Fifth 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 Fifth 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 Fifth 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 Fifth Supplemental Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Fifth 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 Fifth 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 Fifth
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
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed under seal as of the day and year
first above written.
COMPANY: OGLETHORPE POWER
CORPORATION (AN ELECTRIC
2100 East Exchange Place MEMBERSHIP CORPORATION), an electric
P. O. Box 1349 membership corporation organized under the
Tucker, Georgia 30085-1349 laws of the State of Georgia
By: /S/ T. D. KILGORE
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T. D. Kilgore
President and Chief Executive Officer
Signed, sealed and delivered Attest: /S/ PATRICIA N. NASH
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by the Company in the presence of: Patricia N. Nash
Secretary
/S/ JO ANN SMITH
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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
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TRUSTEE: SUNTRUST BANK, ATLANTA
a banking corporation organized and existing
under the laws of the State of Georgia
SunTrust Bank, Atlanta
58 Edgewood Avenue, Room 400A
Atlanta, Georgia 30303
By: /S/ PHILIP D. DEMOUEY
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Signed, sealed and delivered Name: Philip D. Demouey
by the Trustee in the Title: Assistant Vice President
presence of:
By: /S/ ANTONIO I. PORTUONDO
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/S/ BRIAN WOMBLE Name: Antonio I. Portuondo
- ---------------------- Title: Vice President
Witness
/S/ ADA LANE
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Notary Public [BANK SEAL]
(Notarial Seal)
My commission expires: JULY 24, 2001
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EXHIBIT A
FORM OF SERIES 1998 CFC NOTE
$46,065,000.00 April __, 1998
OGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP
CORPORATION), a Georgia electric membership corporation (herein called the
"Borrower"), for value received promises to pay without deduction, set-off or
counterclaim to the order of NATIONAL RURAL UTILITIES COOPERATIVE FINANCE
CORPORATION (herein called the "Payee") at the Payee's office Herndon, Virginia,
in lawful money of the United States, the principal sum of Forty-Six Million,
Sixty-Five Thousand and No/100 Dollars ($46,065,000.00) pursuant to the Loan
Agreement dated as of April 1, 1998 between the Borrower and the Payee (herein
called the "Loan Agreement"). Advances (as defined in the Loan Agreement) under
this Series 1998 CFC Note shall be made in accordance with the Loan Agreement.
Borrower shall pay interest only on all Advances for a period of five (5) years
from the date hereof, at the interest rate set forth in the Loan Agreement. If
not sooner paid, all outstanding Advances under this Series 1998 CFC Note shall
be due and payable on March 31, 2003 (the "Maturity Date"), with interest
thereon in like money, at the rate or rates and payable at the times provided in
the Loan Agreement.
This Series 1998 CFC Note is a duly authorized obligation of the
Borrower issued under and equally and proportionately secured by the Indenture,
dated as of March 1, 1997 (the "Original Indenture"), between the Borrower, as
grantor, and SunTrust Bank, Atlanta, as trustee (in such capacity, the
"Indenture Trustee"), as heretofore supplemented and as further supplemented by
the Fifth Supplemental Indenture, dated as of April 1, 1998 (the "Fifth
Supplemental Indenture"), between the Borrower and 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
the Borrower, the Indenture Trustee and the holder of this Series 1998 CFC Note
and of the terms upon which this Series 1998 CFC Note is authenticated and
delivered. This Series 1998 CFC Note is created by the Fifth Supplemental
Indenture and designated as the "Series 1998 CFC Note."
The Borrower may, at its option, make prepayments of the principal
hereof, in the manner and to the extent provided in the Loan Agreement.
Upon the occurrence of an Event of Default under the Indenture, the
principal hereof and interest accrued thereon may be declared to be forthwith
due and payable in the manner, upon the conditions, and with the effect provided
in the Indenture. All remedies shall be enforced pursuant to the terms of the
Indenture.
No recourse shall be had for the payments required hereby or for any
claim based herein or in the Loan Agreement or in the Indenture against any
officer, director or member, past, present or future, of the Borrower as such,
either directly or through the Borrower, 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 Series 1998 CFC Note shall 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.
This Series 1998 CFC Note shall be governed by and construed in
accordance with the laws of the State of Georgia.
IN WITNESS WHEREOF the Borrower has caused this Series 1998 CFC Note to
be signed in its corporate name and its corporate seal to be hereunto affixed
and to be attested by its duly authorized officers.
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
(SEAL)
By:
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Title:
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Attest:
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Title:
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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:
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Authorized Signatory
Loan No.: GA 109-1-9001 Date: