EXHIBIT 10.3
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 386
Floyd County, Georgia
AMENDMENT NO. 1 TO
SUBORDINATED DEED
TO SECURE DEBT AND SECURITY AGREEMENT (P1)
THIS AMENDMENT NO. 1 TO
SUBORDINATED DEED TO SECURE DEBT AND SECURITY AGREEMENT
(P1) (this “
Amendment ”) is made as of May 22, 2009, by and
among (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 ”), (ii) AMBAC ASSURANCE
CORPORATION (formerly known as AMBAC Indemnity Corporation), a
Wisconsin-domiciled stock insurance corporation (together with its
successors and assigns, called “AMBAC”) and (iii)
U.S. BANK NATIONAL ASSOCIATION , a national banking
association organized under the laws of the United States, as
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
“ Facility Lessor ”, and together with AMBAC,
the “ Beneficiaries ”). Capitalized terms
used but not defined herein shall have the meaning ascribed to them
in the Subordinated Deed (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,
Oglethorpe secured the payment, performance and observance of
certain of its obligations under the Operative Documents and the
AMBAC Guaranty to AMBAC and the Facility Lessor under the
Subordinated Deed to Secure Debt and Security Agreement (P1), dated
as of December 30, 1996 and filed for record on August 7,
1997 in Book 1409 Page 386 of the Floyd County, Georgia land
records (the “ Subordinated Deed ”);
WHEREAS, the Secured Obligations are
obligations such as reimbursement and indemnification obligations
and not indebtedness evidenced by a note or for the payment of
borrowed money and are therefore exempt from the payment of
intangible recording tax under the laws of the State of
Georgia;
WHEREAS, pursuant to
Section 8.5 and Section 8.6 of the Participation
Agreement, Oglethorpe has caused Berkshire to deliver (a) to
the Head Lessee and the Owner Participant, the Surety Bond (Head
Lease-P1) No. 98SRD102494 issued by Berkshire (as amended from
time to time, the “ Berkshire Head Lease Surety Bond
”), and (b) to the Facility Sublessor and the Facility
Lessor, Surety Bond (Facility Sublease-P1) No. 98SRD102495
issued by Berkshire (as amended from time to time, the “
Berkshire Sublease Surety Bond ” and, together with
the Berkshire Head Lease Surety Bond, the “ Berkshire
Surety Bonds ”);
WHEREAS, pursuant to the Berkshire
Guaranty Agreement, dated as of May 22, 2009, Oglethorpe has
agreed to reimburse Berkshire for any payments made under the
Berkshire Surety Bonds; and
WHEREAS, in connection with the
issuance by Berkshire of the Berkshire Surety Bonds, Oglethorpe has
agreed to grant Berkshire a security interest in the same
collateral as the Beneficiaries, and Oglethorpe and the
Beneficiaries have agreed to amend the Subordinated Deed to make
Berkshire a secured party thereunder.
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 Subordinated Deed
Appendix A to the Subordinated Deed
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:
“ Berkshire
” shall mean Berkshire Hathaway Assurance
Corporation.
“ Berkshire Guaranty
Agreement ” shall mean the Berkshire Guaranty Agreement
(P1), dated as of May 22, 2009, by and between Oglethorpe and
Berkshire.
“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.
“Berkshire Sublease Surety
Bond” shall mean
the Surety Bond (Facility Sublease-P1) No. 98SRD102495 issued
by Berkshire in favor of the Facility Sublessor and the Facility
Lessor.
2
“Berkshire Surety
Bonds” shall mean,
collectively, the Berkshire Head Lease Surety Bond and the
Berkshire Sublease Surety Bond.
Section 2.
Other Amendments to the
Subordinated Deed
(a)
The seventh “WHEREAS”
clause of the Subordinated Deed is hereby amended by replacing the
words “Qualifying Surety Bonds” with “Surety
Bonds (as defined in the AMBAC Guaranty”.
(b)
The Subordinated Deed is hereby
amended by adding the following “WHEREAS” clause after
the seventh “WHEREAS” clause thereof:
“WHEREAS, pursuant to the
Berkshire Guaranty Agreement, Oglethorpe has agreed to reimburse
Berkshire for payments made under the Berkshire Surety Bonds and to
secure such reimbursement obligation by providing a lien, security
title and security interest identified in the fifth
“WHEREAS” above.”
(c)
The opening paragraph of the
Granting Clause of the Subordinated Deed is hereby amended and
replaced in its entirety with the following paragraph:
“To secure all of the due and
punctual payment, performance and observance by Oglethorpe of all
of (a) Oglethorpe’s obligations to the Facility Lessor
and the Owner Participant under the Operative Documents,
(b) Oglethorpe’s obligations to AMBAC under the AMBAC
Guaranty, and (c) Oglethorpe’s obligations to Berkshire
under the Berkshire Guaranty Agreement (items (a), (b) and
(c) collectively referred to hereinafter as the “Secured
Obligations”; it being acknowledged and agreed that the
Secured Obligations are obligations such as re
