EXHIBIT 10.2
This instrument, when recorded,
should be returned to:
Christopher J. Moore
Orrick, Herrington & Sutcliffe
LLP
666 Fifth Avenue
New York, NY 10103-0001
Cross Reference:
Book 1409
Page 545
Floyd County, Georgia
AMENDMENT NO. 1 TO DEED TO
SECURE DEBT,
ASSIGNMENT OF SURETY BOND AND
SECURITY AGREEMENT (P1)
THIS AMENDMENT NO. 1 TO DEED TO
SECURE DEBT, ASSIGNMENT OF SURETY BOND AND SECURITY AGREEMENT
(P1) (this “
Amendment ”) is made as of May 22, 2009, by and
between (i) ROCKY MOUNTAIN LEASING CORPORATION , a
corporation organized under the laws of the State of Delaware
(herein, together with its successors and permitted assigned,
called “ RMLC ”), and (ii) U.S. BANK
NATIONAL ASSOCIATION , a national banking association organized
under the laws of the United States, successor in interest to
SunTrust Bank, Atlanta, not in its individual capacity but solely
as Co-Trustee under the Trust Agreement (herein, together with its
successors and permitted assigns, called the “
Co-Trustee ” or the “ Secured Party
”). Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Facility Sublease
Assignment Agreement (as defined below) or in Appendix A thereto,
as heretofore amended.
W
I T
N E S S
E T H
T H A
T
WHEREAS , in connection with the transactions
contemplated by the Participation Agreement, RMLC secured the
payment, performance and observance of certain of its obligations
under the Participation Agreement and the other Operative
Documents, granting a lien, security interest and security title in
favor of the Secured Party in and to the Sublease Collateral
pursuant to the Deed to Secure Debt, Assignment of Surety Bond and
Security Agreement (P1), dated as of December 30, 1996 and
filed for record on August 7, 1997 in Book 1409 Page 545
of the Floyd County, Georgia land records (the “ Facility
Sublease Assignment Agreement ”);
WHEREAS , pursuant to Section 8.6 of the
Participation Agreement, Oglethorpe has caused Berkshire Hathaway
Assurance Corporation (“ Berkshire ”) to issue
and deliver to the Facility Sublessor and the Facility Lessor, a
Qualifying Sublease Surety Bond (the “ Berkshire Sublease
Surety Bond ”) without releasing Surety Bond (Facility
Sublease-P1) No. SF0004BE, issued on December 31, 1996 by
Ambac Assurance Corporation, formerly known as AMBAC Indemnity
Corporation; and
WHEREAS , in connection with the issuance by Berkshire
of the Berkshire Sublease Surety Bond, each of the parties hereto
wishes to amend the Facility Sublease Assignment Agreement in
accordance with the terms set forth herein.
NOW THEREFORE
, in consideration of the premises
and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1.
Amendments to Appendix A (Definitions) to the Facility Sublease
Assignment Agreement
Appendix A to the Facility Sublease
Assignment Agreement is hereby amended as follows:
(i)
by deleting the defined term “AMBAC Indemnity” and
replacing the definition of “AMBAC”, in its entirety,
with the following language:
“AMBAC”
shall mean Ambac Assurance
Corporation (formerly named AMBAC Indemnity Corporation), a
Wisconsin-domiciled stock-insurance corporation. Any
reference herein to “AMBAC Indemnity” shall be a
reference to “AMBAC.”
(ii)
by adding the following definitions thereto:
“ AMBAC Sublease
Surety Bond ” shall mean the Amended and Restated Surety
Bond (Facility Sublease-P1) No. SF0004BE issued on
May 22, 2009 by AMBAC in favor of the Facility Sublessor and
the Facility Lessor.
“ Berkshire ”
shall mean Berkshire Hathaway Assurance Corporation.
Section 2.
Other Amendments to the Facility Sublease Assignment
Agreement
(a)
The numbered paragraph 3 of the Granting Clause of the Facility
Sublease Assignment Agreement is hereby amended by inserting the
words “the AMBAC Sublease Surety Bond,” prior to the
words “the Qualifying Sublease Surety Bond”.
(b)
Section 4.1(A)(i) of the Facility Sublease Assignment
Agreement is hereby amended by inserting the words “the AMBAC
Sublease Surety Bond,” prior to the words “the
Qualifying Sublease Surety Bond”.
(c)
Clause (b) of Section 6 of the Facility Sublease
Assignment Agreement is hereby amended by inserting the words
“the AMBAC Sublease Surety Bond,” prior to the words
“the Qualifying Sublease Surety Bond”.
(d)
Clause (c) of Section 7 of the Facility Sublease
Assignment Agreement is hereby amended and replaced in its entirety
with the following:
“(c) terminate, amend or
modify, or waive compliance with any term, covenant, agreement or
condition of the Sublease Documents, the AMBAC Sublease
Surety
2
Bond, the Be
