This Lease Agreement involves
Title: AMENDMENT NO. 1 TO FACILITY LEASE AGREEMENT (P1)
Governing Law: New York Date: 5/28/2009
Law Firm: Orrick Herrington
This instrument, when recorded,
should be returned to:
Christopher J. Moore
Orrick, Herrington & Sutcliffe LLP
666 Fifth Avenue
New York, NY 10103-0001
Floyd County, Georgia
AMENDMENT NO. 1 TO FACILITY LEASE AGREEMENT (P1)
THIS AMENDMENT NO. 1 TO FACILITY LEASE AGREEMENT (P1) (this “ Amendment ”) is made as of May 22, 2009, by and between (i) 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 ”), and (ii) 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 ”). Capitalized terms used herein and not otherwise defined being used herein as defined in the Facility Lease (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 , on December 30, 1996, the Co-Trustee and RMLC entered into the Facility Lease Agreement (P1), filed for record on August 7, 1997 in Book 1408 Page 496 of the Floyd County, Georgia land records (the “ Facility Lease ”), pursuant to which the Co-Trustee leased to RMLC the Undivided Interest (leased to the Co-Trustee by Oglethorpe pursuant to the Head Lease) upon the terms and conditions set forth therein;
WHEREAS , pursuant to Section 8.5 and Section 8.6 of the Participation Agreement, Oglethorpe has caused Berkshire Hathaway Assurance Corporation (“ Berkshire ”) to issue and deliver (a) to the Head Lessee and the Owner Participant, a Qualifying Head Lease Surety Bond (the “ Berkshire Head Lease Surety Bond ”), and (b) to the Facility Sublessor and the Facility Lessor, a Qualifying Sublease Surety Bond (the “ Berkshire Sublease Surety Bond ” and, together with the Berkshire Head Lease Surety Bond, the “ Berkshire Surety Bonds ”); and
WHEREAS , in connection with the issuance by Berkshire of the Berkshire Surety Bonds, each of the parties hereto wishes to amend the Facility Lease.
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 Lease
Appendix A to the Facility Lease 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.
“ Berkshire Surety Bond Date ” shall mean May 22, 2009.
“ Implementation Agreement ” shall mean the Surety Bond Implementation Agreement (P1) dated as of the Berkshire Surety Bond Date among Oglethorpe, RMLC, the Co-Trustee, the Owner Trustee, the Owner Participant, AMBAC and Berkshire.
Section 2. Other Amendments to the Facility Lease
(a) The second sentence of Section 3.4(c) of the Facility Lease is hereby amended by replacing the words “and AMBAC” with “, Berkshire and AMBAC”.
(b) The first sentence of Section 5.3 of the Facility Lease is hereby amended by replacing the words “and AMBAC” with “, Berkshire and AMBAC”.
(c) The first sentence of Section 10.1 of the Facility Lease is hereby amended by replacing the words “and AMBAC” with “, Berkshire and AMBAC”.
(d) (i) Section 10.3(f)(4) of the Facility Lease is hereby amended by replacing the words “or AMBAC” with “, Berkshire or AMBAC”, (ii) Section 10.3(f)(5) is hereby amended by replacing the words “and AMBAC” with “, Berkshire and AMBAC” and (iii) the last paragraph of Section 10.3 of the Facility Lease is hereby amended by replacing the words “and AMBAC” with “, Berkshire and AMBAC”.
(e) Section 17.1(f) of the Facility Lease is hereby replaced, in its entirety, with the following language:
“if the Facility Lessor shall have sold the Facility Lessor’s Rocky Mountain Interest pursuant to paragraph (c) above, the Facility Lessor may, if it shall so elect, demand that the Facility Lessee pay to the Facility Lessor, and the Facility Lessee shall pay to the Facility Lessor, as liquidated damages for loss of a bargain and not as a penalty (in lieu of the Basic Rent due for any periods subsequent to the date of such sale), an amount equal to (A) any unpaid Basic Rent due before the date of such sale and, (B)(i) if that date is a Rent Payment Date, the Basic Rent due on that date (to the extent payable in arrears), or, (ii) if that date is not a Rent Payment Date or a Termination Date, the daily equivalent (for the period from the previous Termination Date to the date of such sale) of Basic Rent due on the next Rent Payment Date (as if all such Basic Rent is payable and accruing in arrears with respect to the 6-month period preceding such Rent Payment Date, whether Basic Rent on such Rent Payment Date is payable in advance or in arrears), plus (C) the amount, if any, by which the Termination Value computed as of the Termination Date next preceding the date of such sale (or, if such sale occurs on a Rent Payment Date or a Termination Date, the Termination Value computed as of such date (provided that if such Termination Date is also a Rent Payment Date on which Basic Rent is payable in advance, such Termination Value shall be reduced by the amount of Basic Rent shown as advance Basic Rent opposite such date on Schedule 1 to the Facility Lease)), exceeds the net proceeds of such sale, and, upon payment of such amount, this Facility Lease and the Facility Lessee’s obligation to pay Basic Rent for any periods subsequent to the date of such payment shall terminate; or”
(f) Section 17.1(g) of the Facility Lease is hereby replaced, in its entirety, with the following language:
(a) The Facility Lessor may foreclose on, or to the extent permitted by the terms of the Qualifying Equity Funding Agreement, draw upon, the Qualifying Equity Funding Agreement. Any proceeds of the Qualifying Equity Funding Agreement shall be applied (as determined by the Owner Participant to the extent consistent with Applicable Law) to unpaid Rent and shall reduce the Facility Lessee’s obligations to pay Rent to the extent any such proceeds are received by the Facility Lessor.
(b) To the extent permitted by Applicable Law (including Part 6 of Article 9 of the applicable Uniform Commercial Code), the Facility Sublease, the Facility Sublease Assignment Agreement, and the terms, as applicable, of any Qualifying Additional Security that secures the Facility Sublessee’s obligations under the Facility Sublease, any Qualifying Letter of Credit that enhances the Facility Sublessee’s obligations under the Facility Sublease, any Qualifying Sublease Surety Bond, the AMBAC Sublease Surety Bond and the Berkshire Sublease Surety Bond (in each case, whether any of the foregoing such agreements, arrangements, security or letters of cre