EXHIBIT 10.5
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 1408
Page 496
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”.
2
(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
Participa
