EXHIBIT 10.4
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 369
Floyd County, Georgia
AMENDMENT NO. 1 TO HEAD
LEASE AGREEMENT (P1)
THIS AMENDMENT NO. 1 TO HEAD
LEASE AGREEMENT (P1) (this “ Amendment ”) is made
as of May 22, 2009, by and between (i) OGLETHORPE
POWER CORPORATION, (AN ELECTRIC MEMBERSHIP CORPORATION ), an
electric membership corporation organized under the laws of the
State of Georgia (herein, together with its successors and
permitted assigned, called “ Oglethorpe ”), 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 ”).
Capitalized terms used herein and not otherwise defined being used
herein as defined in the Head 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,
Oglethorpe and the Co-Trustee entered into the Rocky Mountain
Head Lease Agreement (P1), filed for record August 7, 1997 in
Book 1408 Page 369 of the Floyd County, Georgia land records
(the “ Head Lease ”) pursuant to which
Oglethorpe leased to the Co-Trustee the Undivided Interest upon the
terms and conditions set forth therein;
WHEREAS, pursuant to
Section 8.5 of the Participation Agreement, Oglethorpe has
caused Berkshire Hathaway Assurance Corporation (“
Berkshire ”) to issue a surety bond in favor of the
Head Lessee and the Owner Participant with respect to certain of
the Head Lessor’s obligations under the Head Lease and under
the Participation Agreement and the obligations of Ambac Assurance
Corporation, formerly known as AMBAC Indemnity Corporation, under
the Surety Bond (Head Lease-P1) No. SF0003BE, as may be
amended, or amended and restated, from time to time; and
WHEREAS, in connection with the
issuance by Berkshire of such surety bond, each of the parties
hereto wishes to amend the Head Lease to include an additional Head
Lessor Event of Default.
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 Head
Lease
Appendix A to the Head 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 Head Lease Surety
Bond ” shall mean the Amended and Restated Surety Bond
(Head Lease-P1) No. SF0003BE issued on May 22, 2009 by
AMBAC in favor of the Head Lessee and the Owner
Participant.
“ Berkshire ”
shall mean Berkshire Hathaway Assurance Corporation.
“ Berkshire Head Lease
Surety Bond ” shall mean the Surety Bond (Head Lease-P1)
No. 98SRD102494 issued by Berkshire in favor of the Head
Lessee and the Owner Participant.
“Implementation
Agreement” shall
mean the Surety Bond Implementation Agreement (P1), dated as of the
date hereof, among Oglethorpe, RMLC, the Co-Trustee, the Owner
Trustee, the Owner Participant, AMBAC and Berkshire.
Section 2.
Other Amendments to Head Lease
(a)
Section 11.1 of the Head Lease is hereby amended by adding a
new clause (m) after the end thereof to read in its
entirety as follows:
“(m)
Berkshire has delivered to Head Lessee or the Owner Participant a
notice of termination for the non-payment of premiums in
substantially the same form as Attachment III to the Berkshire Head
Lease Surety Bond and Berkshire has not received payment in full of
the unpaid portion of the premium within 14 days from the date of
such notice of termination; provided, however , that no Head
Lessor Event of Default shall occur under this paragraph
(m) if the Owner Participant notifies the Head Lessee and the
Lender in writing that the receipt of such notice of termination
shall not constitute a Head Lessor Event of
Default.”
2
(b)
The first sentence of Section 11.2(a) of the Head Lease
is hereby amended by inserting the following parenthetical
immediately after the words “Head Lessee may demand by
written notice to Head Lessor” in the first line
therein:
“(a copy of which notice may
be delivered by the Head Lessee to Berkshire in accordance with
Section 1(c)(i) of the Berkshire Head Lease
Suret
