EXHIBIT 4.7.1(g)
---------------------------
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
SIXTH SUPPLEMENTAL
INDENTURE
Relating to the
Series 1998C (Burke) Note
Dated as of January 1, 1999
FIRST MORTGAGE OBLIGATIONS
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THIS SIXTH SUPPLEMENTAL INDENTURE, dated as of January 1, 1999, 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 $2,410,000 in principal amount is subject to mandatory sinking
fund redemption on January 1, 1999 (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 $6,695,000 in aggregate principal amount matures on January 1,
1999 (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 $1,465,000 in aggregate principal amount
matures on January 1, 1999 (the "1994B Maturities"; the 1993A Sinking Fund
Maturities, the 1993B Maturities and the 1994B Maturities, collectively, the
"1999 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 October 6, 1998, the Burke Authority issued $10,570,000 in
aggregate principal amount of Development Authority of Burke County Pollution
Control Revenue Bonds (Oglethorpe Power Corporation Vogtle Project), Series
1998C (the "Series 1998C (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, 1998 (the "Series 1998C (Burke) Loan Agreement"), between the Burke
Authority and the Company to refund the 1999 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 1998C (Burke) Bonds is evidenced by that certain Series 1998C (Burke)
Note, dated October 6, 1998 (the "Unsecured Note"), from the Company to SunTrust
Bank, Atlanta, as trustee (in such capacity, the "Series 1998C (Burke)
Trustee"), as assignee and pledgee of the Burke Authority pursuant to the
Indenture of Trust, dated as of October 1, 1998 (the "Series 1998C (Burke)
Indenture"), between the Burke Authority and the Series 1998C (Burke) Trustee;
WHEREAS, as permitted by Section 4.9 of the Series 1998C (Burke) Loan
Agreement, the Company desires to deliver to the Series 1998C (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 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 1998C (Burke) Note, dated the date of its authentication (the
"Series 1998C (Burke) Note"), from the Company to the Series 1998C (Burke)
Trustee, as assignee and pledgee of the Burke Authority pursuant to the Series
1998C (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");
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WHEREAS, pursuant to Section 4.9 of the Series 1998C (Burke) Loan
Agreement, upon the authentication of the Series 1998C (Burke) Note by the
Trustee, the Series 1998C (Burke) Note will be delivered to the Series 1998C
(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 1998C (Burke) Note, to make the Series 1998C (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 1998C (Burke) Note, in accordance with its terms, have
been done and taken; and the execution and delivery of this Sixth Supplemental
Indenture has been in all respects duly authorized by the Company;
NOW, THEREFORE, THIS 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 issued, the
Series 1998C (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 1998C (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 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
3
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.
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 SIXTH 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 1998C (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 1998C (BURKE) NOTE AND
CERTAIN PROVISIONS RELATING THERETO
SECTION 1.1 AUTHORIZATION AND TERMS OF THE SERIES 1998C (BURKE) NOTE.
There shall be created and established an Additional Obligation in the
form of a promissory note known as and entitled the "Series 1998C (Burke) Note"
(hereinafter referred to as the "Series 1998C (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 1998C (Burke)
Note which shall be authenticated and delivered and Outstanding at any one time
is limited to $10,570,000.
The Series 1998C (Burke) Note shall be dated the date of its
authentication. The Series 1998C (Burke) Note shall mature on January 1, 2019
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 1998C (Burke) Note shall be authenticated and delivered
to, and made payable to, SunTrust Bank, Atlanta, as trustee, in its capacity as
the Series 1998C (Burke) Trustee.
5
All payments made on the Series 1998C (Burke) Note shall be made to the
Series 1998C (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 1998C (BURKE) NOTE.
The Series 1998C (Burke) Note, including the Trustee's authentication
certificate to be executed on such Series 1998C (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 1998C (BURKE) NOTE FOR THE
UNSECURED NOTE.
Upon its authentication, the Series 1998C (Burke) Note shall be
delivered to the Series 1998C (Burke) Trustee in substitution for the Unsecured
Note in accordance with Section 4.9 of the Series 1998C (Burke) Loan Agreement.
Thereafter, the Series 1998C (Burke) Note shall evidence the loan theretofore
evidenced by the Unsecured Note.
ARTICLE II
MISCELLANEOUS
SECTION 2.1 This Sixth 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
1998C (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 Sixth 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 Sixth 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 Sixth 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 Sixth Supplemental Indenture contained by or on behalf of the Company, or
by
6
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 Sixth 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 Sixth Supplemental Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all the covenants, conditions,
stipulations, promises and agreements in this Sixth 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 Sixth 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 Sixth
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, Atlanta
3495 Piedmont Road
Building 10, Suite 810
Atlanta, Georgia 30305
[Signatures on Next Page.]
7
IN WITNESS WHEREOF, the parties hereto have caused this Sixth
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
2100 East Exchange Place
P. O. Box 1349
Tucker, Georgia 30085-1349
By: /s/ JACK. L. KING
--------------------------------------
Jack L. King
President and Chief Executive Officer
Signed, sealed and delivered Attest: /s/ PATRICIA N. NASH
by the Company in the presence of: --------------------------------
Patricia N. Nash
/s/ LYNDA CLARK Secretary
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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.]
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[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/ PHILIP D. DEMOUEY
Signed, sealed and delivered ----------------------------------------
by the Trustee in the Name: Philip D. Demouey
presence of: Title: Vice President
By: /s/ BRIAN W. WOMBLE
----------------------------------------
/s/ GEANETTE COX Name: Brian W. Womble
- -------------------------- Title: Trust Officer
Witness
/s/ ADA LANE
- --------------------------
Notary Public [BANK SEAL]
(Notarial Seal)
My commission expires: JULY 24, 2001
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9
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:
The following description is a corrected legal property description of
the "Combustion Turbine Property," No. 16 on EXHIBIT A of the Original
Indenture.
That certain tract or parcel of land known as the "Combustion Turbine Property",
containing 1800 acres, more or less, in Land Lot 83, 84, 85, 86, 87, 118 and 119
of the 13th District and Land Lots 96 and 65 of the 5th District of Monroe
County, Georgia, being those tracts conveyed to Oglethorpe Power Corporation (An
Electric Membership Generation & Transmission Corporation) by Deed of Conveyance
from Gabriel P. Rumble dated April 18, 1989, ["Tract 1" (311.4656 acres) only;
less and except "Tract 2" (20.6530) and "Tract 4" (3.1247)] which is recorded in
Deed Book 286, Page 128, in the Office of the Clerk of Superior Court of Monroe
County, Georgia [see plat by American Energy Services entitled "Oglethorpe Power
Corporation Combustion Turbine Project", dated August 3, 1988]; and by Deed from
Mead Coated Board, Inc., dated May 19, 1989, which is recorded in Deed Book 288,
Page 248, in the Office of the Clerk of Superior Court of Monroe County, Georgia
[see plats by American Energy Services entitled "Oglethorpe Power Corporation
Combustion Turbine Project," dated January 31, 1989, January 27, 1989 and
January 25, 1989]; and by Warranty Deed from Myrtice Jo Rumble Glade, et al.,
dated November 14, 1989, which is recorded in Deed Book 301, Page 241, in the
Office of the Clerk of Superior Court of Monroe County, Georgia [see plats by
American Energy Services entitled "Oglethorpe Power Corporation Combustion
Turbine Project," dated February 2, 1989, September 18, 1989 and August 3, 1988,
updated September 27, 1989]; and by Limited Warranty Deed from The Proctor &
Gamble Cellulose Company, dated December 7, 1990, which is recorded in Deed Book
328, Page 292, in the Office of the Clerk of Superior Court of Monroe County,
Georgia [see plats by American Energy Services entitled "Oglethorpe Power
Corporation Combustion Turbine Project," dated September 26, 1989; and by
Warranty Deed from Jeffrey L. Rader and Luanne K. Rader, dated May 17, 1991,
which is recorded in Deed Book 339, Page 47, in the Office of the Clerk of
Superior Court of Monroe County, Georgia [see plat by American Energy Services
entitled "Oglethorpe Power Corporation Combustion Turbine Project," dated
September 28, 1990]; and by Warranty Deed from The Corporation of Mercer
University, dated April 30, 1992, which is recorded in Deed Book 373, Page 97,
in the Office of the Clerk of Superior Court of Monroe County, Georgia; LESS AND
EXCEPT therefrom the following two tracts: TRACT 1 Commence at that point where
the centerline of Little Deer Creek intersects the Southwesterly right-of-way
margin of Interstate Highway 75, thence North 64 degrees 23 minutes 14 seconds
East 5 feet; then go South 25 degrees 36 minutes 46 seconds East 50 feet; thence
South 64 degrees 23 minutes 14 seconds West 20 feet; thence South 25 degrees 36
minutes 46 seconds East 394.65 feet to the Northeasterly corner of the Georgia
D.O.T. Safety Rest Area property [This corner lies 94.960 feet left of and
opposite STA. 468+02.140 on the construction centerline of I-75 SBL.]; thence
South 64 degrees 37 minutes 16 seconds West 154.06 feet along the Northerly
boundary of the Safety Rest Area to a concrete monument found; thence South 36
degrees
A-1
35 minutes 10 seconds West 429.38 feet continuing along the Northerly boundary
of the Safety Rest Area to a concrete monument found; thence South 41 degrees 23
minutes 04 seconds East 375.6 feet along the Westerly boundary of the Safety
Rest Area to a point which is the POINT OF BEGINNING; thence South 41 degrees 22
minutes 26 seconds East 516.75 feet continuing along the Westerly boundary of
the Safety Rest Area to a concrete monument found; thence South 57 degrees 23
minutes 58 seconds East 404.294 feet continuing along the Westerly boundary of
the Safety Rest Area to a concrete monument found; thence South 88 degrees 12
minutes 44 seconds East 189.141 feet to the Southerly boundary of the Safety
Rest Area to a boundary corner common to the property of Oglethorpe Power, to
the West, and the property of Burke L. Slocumb, III, to the East [This corner
lies 157.950 feet left of and opposite STA. 453+42.420 on the construction
centerline of I-75 SBL.]; thence South 63 degrees 39 minutes 16 seconds West
417.983 feet to a point; thence North 56 degrees 17 minutes 11 seconds West
657.900 feet to a point; thence North 25 degrees 03 minutes 54 seconds West
175.904 feet to a point; thence North 24 degrees 40 minutes 07 seconds East
299.863 feet to the POINT OF BEGINNING; said tract comprising 5.940 ACRES and
TRACT 2: Commence at that point where the centerline of Little Deer Creek
intersects the Southwesterly right-of-way margin of Interstate Highway 75;
thence North 64 degrees 23 minutes 14 seconds East 5 feet; then go South 25
degrees 36 minutes 46 seconds East 50 feet; thence South 64 degrees 23 minutes
14 seconds West 20 feet; thence South 25 degrees 36 minutes 46 seconds East
394.65 feet to the Northeasterly corner of the Georgia D.O.T. Safety Rest Area
property [This corner lies 94.960 feet left of and opposite STA. 468+02.140 on
the construction centerline of I-75 SBL.], which is POINT OF BEGINNING; thence
South 64 degrees 35 minutes 45 seconds West 20.040 feet along the Northerly
boundary of the Safety Rest Area to a point; thence North 23 degrees 09 minutes
51 seconds West 352.404 feet to a point on the Southwesterly right-of-way of
I-75; thence South 26 degrees 25 minutes 28 seconds East 352.187 feet along the
Southwesterly right-of-way of I-75 to the POINT OF BEGINNING; said tract
comprising 0.081 ACRES, the descriptions of TRACT 1 and TRACT 2 being according
to (a) plans on file at the Georgia D.O.T. offices, No. 2 Capitol Square,
Atlanta, Georgia, for Project No. IM-75-2(197), Monroe County, P.I. No. 311617,
dated May 12, 1995, and according to (b) that certain plat of survey by Sam H.
Thompson, Georgia Registered Land Surveyor No. 1961, dated September 26, 1989,
revised October 23, 1990, which is recorded in the offices of the Clerk of the
Superior Court of Monroe County, Georgia, at Plat Book 17, Page 71, which plans
and plat are by this reference incorporated into and made a part of this
description.
A-2
EXHIBIT B
---------
[Form of Series 1998C (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 OCTOBER 1,
1998, BETWEEN THE DEVELOPMENT AUTHORITY OF BURKE COUNTY AND SUNTRUST BANK,
ATLANTA, AS TRUSTEE.
OGLETHORPE POWER CORPORATION
(AN ELECTRIC MEMBERSHIP CORPORATION)
SERIES 1998C (BURKE) NOTE DATE: January __, 1999
(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 $10,570,000 in aggregate principal amount of
Development Authority of Burke County Pollution Control Revenue Bonds
(Oglethorpe Power Corporation Vogtle Project), Series 1998C (the "Series 1998C
(Burke) Bonds"), hereby promises to pay to SunTrust Bank, Atlanta (the "Series
1998C (Burke) Trustee"), as assignee and pledgee of the Burke Authority, acting
pursuant to the Indenture of Trust, dated as of October 1, 1998, from the Burke
Authority to the Series 1998C (Burke) Trustee (the "Series 1998C Indenture"), or
its successor in trust, the principal sum of $10,570,000, together with interest
and prepayment premium (if any) thereon as follows:
(1) on or before each Interest Payment Date (as defined in the
Series 1998C Indenture), a sum which will equal the interest on the Series 1998C
(Burke) Bonds which will become due on such Interest Payment Date on the Series
1998C (Burke) Bonds; and
(2) on or before each January 1, commencing January 1, 1999, a
sum which will equal the principal amount of the Series 1998C (Burke) Bonds
which will become due (whether at maturity or otherwise) on the next succeeding
annual principal payment date on the Series 1998C (Burke) Bonds; and
(3) on or before any redemption date for the Series 1998C
(Burke) Bonds, a sum equal to the principal of, redemption premium (if any) and
interest on, the Series 1998C (Burke) Bonds which are to be redeemed on such
date; and
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(4) on or before each date on which the Series 1998C (Burke)
Bonds are required to be purchased pursuant to Section 4.01, 4.02 or 4.04 of the
Series 1998C Indenture, a sum equal to the purchase price of all Series 1998C
(Burke) Bonds required to be purchased on such date.
This Series 1998C (Burke) Note is issued in substitution for and
supersedes and replaces that certain Series 1998C (Burke) Note, dated October 6,
1998, by Oglethorpe to the Series 1998C (Burke) Trustee which was executed and
delivered contemporaneously with the initial issuance of the Series 1998C
(Burke) Bonds. This Series 1998C (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 as of October 1, 1998 (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 1998C (Burke) Bonds.
This Series 1998C (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 Sixth Supplemental Indenture, dated as of January 1, 1999
(the "Sixth Supplemental Indenture"), and the Seventh Supplemental Indenture,
dated as of January 1, 1999 (the "Seventh Supplemental Indenture"), between
Oglethorpe, as grantor, and 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 1998C (Burke) Note and of the terms upon which
this Series 1998C (Burke) Note is authenticated and delivered. This Series 1998C
(Burke) Note is created by the Sixth Supplemental Indenture and designated as
the "Series 1998C (Burke) Note."
All payments hereon are to be made to the Series 1998C (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 1998C (Burke) Note may be prepaid upon the terms and
conditions set forth in Article V of the Agreement.
If the Series 1998C (Burke) Trustee shall accelerate payment of the
Series 1998C (Burke) Bonds, all payments on this Series 1998C (Burke) Note shall
be declared due and payable in the
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manner and with the effect provided in the Agreement. The Agreement provides
that, under certain conditions, such declaration shall be rescinded by the
Series 1998C (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 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 1998C (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.
This Series 1998C (Burke) Note shall be governed by and construed in
accordance with the laws of the State of Georgia.
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IN WITNESS WHEREOF, Oglethorpe has caused this Series 1998C (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:
-------------------------------------
Jack L. King
President and Chief Executive Officer
(SEAL)
Attest:
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Patricia N. Nash
Secretary
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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
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