EXHIBIT 10.6
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 661
Floyd County, Georgia
AMENDMENT NO. 1 TO FACILITY
SUBLEASE AGREEMENT (P1)
THIS AMENDMENT NO. 1 TO FACILITY
SUBLEASE 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) 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
but not defined herein shall have the meaning ascribed to them in
the Facility Sublease (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 RMLC entered into the Facility Sublease Agreement
(P1), filed for record on August 7, 1997 in Book 1408
Page 661 of the Floyd County, Georgia land records (the
“ Facility Sublease ”) pursuant to which RMLC
leased to Oglethorpe the Undivided Interest (leased to RMLC by the
Co-Trustee pursuant to the Facility Lease) upon the terms and
conditions set forth therein;
WHEREAS, pursuant to
Section 8.6 of the Participation Agreement, Oglethorpe has
caused Berkshire Hathaway Assurance Corporation (“
Berkshire ”) to issue a surety bond in favor of the
Facility Sublessor and the Facility Lessor, with respect to
certain obligations of Oglethorpe under the Facility Sublease and
the obligations of Ambac Assurance Corporation, formerly known as
AMBAC Indemnity Corporation, under the Surety Bond (Facility
Sublease-P1) No. SF0004BE, 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 Facility Sublease to include an
additional Sublease 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 to
the Facility Sublease
Appendix A to the Facility Sublease
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 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.
“Equity Portion of Sublease
Basic Rent” shall
mean for any Rent Payment Date the difference between
(i) Sublease Basic Rent scheduled to be paid under the
Facility Sublease on such Rent Payment Date and (ii) the
principal and interest scheduled to be paid on the Loan Certificate
on such Rent Payment Date.
Section 2.
Other Amendments to the
Facility Sublease
(a)
Section 16 of the Facility
Sublease is hereby amended by adding a new clause (t) after
the end thereof to read in its entirety as follows:
“(t)
Berkshire has delivered to the
Facility Lessor or the Facility Sublessor a notice of termination
for the non-payment of premiums in substantially the same form as
Attachment III to the Berkshire Sublease 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 Facility Sublease Event of
Default shall occur under this paragraph (t) if the Owner
Participant notifies the Facility Lessor, the Facility Sublessor
and the Lender in writing that the receipt of such notice of
termination shall not constitute a Facility Sublease Event of
Default.”
2
(b)
Section 17.1(e) of the
Facility Sublease is hereby amended by inserting the following
parenthetical immediately after the words “by written notice
to the Facility Sublessee”:
“(a copy of which notice may
be delivered by the Facility Lessor to Berkshire in accordance with
Section 1(c)(i) of the Berkshire Sublease Surety Bond and
shall constitute the “Oglethorpe Payment Demand”
referred to therein)”.
(c)
Section 17.1(f) of the
Facility Sublease is hereby replaced, in its entirety, with the
following language:
“if the Facility Sublessor
shall have sold the Facility Sublessor’s Rocky Mountain
Interest pursuant to paragraph (c) above, the Facility
Sublessor may, if it shall so elect, demand that the Facility
Sublessee pay to the Facility Sublessor, and the Facility Sublessee
shall pay to the Facility Sublessor, as liquidated damages for loss
of a bargain and not as a penalty (in
