EXHIBIT 10.16.1(a)


 


AMENDMENT NO. 1


 


Dated as of June 1, 2003 to


 


PARTICIPATION AGREEMENT


 


(P1)


 


Dated as of December 30, 1996


 


among


 


OGLETHORPE POWER CORPORATION


(AN ELECTRIC MEMBERSHIP CORPORATION),


(formerly Oglethorpe Power Corporation


(An Electric Membership Generation &
Transmission Corporation))


 


ROCKY MOUNTAIN LEASING CORPORATION,


 


U.S. BANK NATIONAL ASSOCIATION


(successor to State Street Bank and Trust Company
and


Fleet National Bank),


not in its individual capacity, except


as expressly provided herein, but solely


as Owner Trustee,


 


SUNTRUST BANK (formerly Suntrust Bank, Atlanta)


not in its individual capacity, except


as expressly provided herein, but solely


as Co-Trustee,


 


PHILIP MORRIS CAPITAL CORPORATION


 


and


 


UTRECHT-AMERICA FINANCE CO.


 


ROCKY MOUNTAIN


PUMPED STORAGE
HYDROELECTRIC PROJECT


 

















 


AMENTMENT
NO. 1


TO


PARTICIPATION
AGREEMENT


(P1)


 


This
AMENDMENT NO. 1, dated as of June 1, 2003 (this “Amendment”) to
PARTICIPATION AGREEMENT (P1), dated as of December 30, 1996, among (i) OGLETHORPE
POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION), (formerly Oglethorpe
Power Corporation (An Electric Membership Generation & Transmission
Corporation)) an electric membership corporation organized under the laws of
the State of Georgia (herein, together with its successors and permitted
assigns, called “Oglethorpe”), (ii) ROCKY MOUNTAIN LEASING CORPORATION, a
corporation organized under the laws of the State of Delaware (herein, together
with its successors and permitted assigns, called “RMLC”), (iii) PHILIP
MORRIS CAPITAL CORPORATION, a corporation organized under the laws of the State
of Delaware, as Owner Participant (herein, in such capacity, together with its
successors and permitted assigns, called the “Owner Participant”), (iv) U.S.
BANK NATIONAL ASSOCIATION (successor to State Street Bank and Trust Company and
Fleet National Bank), a national banking association organized and existing
under the laws of the United States, not in its individual capacity, except as
specifically provided herein, but solely as a trustee under the Trust Agreement
(herein in its capacity as a trustee under the Trust Agreement, together with
its successors and permitted assigns, called the “Owner Trustee” and herein in
its individual capacity, together with its successors and permitted assigns,
called the “Non-Georgia Trust Company”), (v) SUNTRUST BANK (formerly known
as Suntrust Bank, Atlanta), a state banking corporation organized and existing
under the laws of the State of Georgia, not in its individual capacity, except
as specifically provided herein, but solely as trustee under the Trust
Agreement (herein in its capacity as a trustee under the Trust Agreement,
together with its successors and permitted assigns, called the “Co-Trustee” and
herein in its individual capacity, together with its successors and permitted
assigns, called the “Georgia Trust Company”), and (vi) UTRECHT-AMERICA
FINANCE CO., a corporation organized under the laws of the State of Delaware,
as the Lender (herein together with its successors and permitted assigns, the “Lender”).


 


WITNESSETH:


 


WHEREAS,
Oglethorpe, RMLC, the Owner Participant, the Non-Georgia Trust Company, the
Georgia Trust Company and the Lender have heretofore executed and delivered the
Participation Agreement in connection with the Overall Transaction;


 


WHEREAS,
Section 8.8 of the Participation Agreement sets forth the terms and
conditions under which Oglethorpe may be required to provide Qualifying
Additional Security for its obligations under the Head Lease and the Facility
Sublease;


 


WHEREAS,
the parties to the Participation Agreement agree that the provisions of Section 8.8
of the Participation Agreement, as in existence prior to this Amendment, did
not accurately reflect the intent of such parties at the time of the execution
and delivery of the Participation Agreement with respect to the amount to be
payable or drawable in accordance with such Qualifying Additional Security; and


 

















 


WHERAS,
the parties to the Participation Agreement have agreed to amend the provisions
of Section 8.8 of the Participation Agreement to reflect their intent by
the execution and delivery of this Amendment.


 


NOW,
THEREFORE, in consideration of the mutual agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:


 


SECTION 1.           DEFINITIONS;
INTERPRETATION OF THIS AMENDMENT


 


The
capitalized terms used in this Amendment (including the foregoing recitals) and
not otherwise defined herein shall have the respective meanings specified in
Appendix A to the Participation Agreement. 
The general provisions of Appendix A shall apply to terms used in this
Amendment and specifically defined herein.


 


SECTION 2.           AMENDMENT OF SECTION 8.8


 


The
third and fourth sentences of Section 8.8 of the Participation Agreement
are hereby amended in their entirely to read as follows:


 


“Qualifying Additional Security shall consist of
surety bonds issued by a Qualifying Surety Bond Provider or a Qualifying Letter
of Credit in favor of the Co-Trustee and the Owner Participant (in the case of
Qualifying Additional Security securing Oglethorpe’s obligations under the Head
Lease and the Special Equity Head Lease Remedy) and in favor of RMLC or the
Owner Participant (in the case of Qualifying Additional Security securing
Oglethorpe’s obligations under the Facility Sublease), in each case payable or
drawable in an amount equal to $21,099,693 and payable or drawable for such
purposes as the Qualifying Head Lease Surety Bond and Qualifying Sublease
Surety Bond then in effect are payable or drawable.  Oglethorpe’s obligation in this Section 8.8
may be satisfied by increasing the maximum amounts payable under the existing
Qualifying Head Lease Surety Bond and Qualifying Sublease Surety Bond by $21,099,693
each.”


 


SECTION 3.           ALL PROVISIONS OF
PARTICIPATION AGREEMENT TO REMAIN IN EFFECT


 


Except as expressly amended pursuant to Section 2
of this Amendment, all provisions of the Participation Agreement remain in full
force and effect.


 


SECTION 4.           MISCELLANEOUS


 


Section 4.1            Counterparts.  This Amendment may be executed in any number
of counterparts, each executed counterpart constituting an original but all
together only one Amendment.


 


Section 4.2            Effectiveness.  This Amendment has been dated as of the date
first above written for convenience only. 
This Amendment shall be effective on the date of execution and delivery
by each of the parties hereto.


 


2

















 


	
   

  	
  OGLETHORPE POWER CORPORATION

  
	
   

  	
  (AN ELECTRIC MEMBERSHIP
  CORPORATION)

  
	
   

  	
  (formerly Oglethorpe Power
  Corporation (An Electric

  
	
   

  	
  Membership
  Generation & Transmission Corporation))

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas A. Smith

  
	
   

  	
  Name:

  	
  Thomas A. Smith

  
	
   

  	
  Title:

  	
  President and Chief
  Executive Officer

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (CORPORATE SEAL)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ROCKY MOUNTAIN LEASING
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas J. Brendiar

  
	
   

  	
  Name:

  	
  Thomas J. Brendiar

  
	
   

  	
  Title:

  	
  Vice President and
  Treasurer

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION
  (as successor to State Street Bank and Trust Company and Fleet National Bank)

  
	
   

  	
  not in its individual
  capacity, except to the extent provided herein, but solely as Owner Trustee
  under the Trust Agreement

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Mark A. Forgetta

  
	
   

  	
  Name:

  	
  Mark A. Forgetta

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Signatures continued
  on next page)

  



 


3

















 


	
   

  	
  SUNTRUST BANK (formerly known
  as SunTrust Bank, Atlanta)

  
	
   

  	
  in its individual
  capacity, to the extent provided herein, and as Co-Trustee under the Trust
  Agreement

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ B.A. Donaldson

  
	
   

  	
  Name:

  	
  B.A. Donaldson

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PHILIP MORRIS CAPITAL
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ James C. McCrea

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UTRECHT-AMERICA FINANCE CO.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Nancy J. McIver

  
	
   

  	
  Name:

  	
  Nancy J. McIver

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David I. Dietz

  
	
   

  	
  Name:

  	
  David I Dietz

  
	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
  Date:

  	
   

  



 


4

















 


SCHEDULE TO EXHIBIT 10.16.1(a)


 


AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT
(P1)


 


The following table indicates for each transaction the name of the
corresponding Owner Participant:


 


	
  Amendment

  to Agreement

  	
   

  	
  Date

  	
   

  	
  Owner Participant

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  P1

  	
   

  	
  June 1, 2003

  	
   

  	
  Philip Morris Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  P2

  	
   

  	
  June 1, 2003

  	
   

  	
  Philip Morris Capital Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F3

  	
   

  	
  June 1, 2003

  	
   

  	
  First Chicago Leasing Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F4

  	
   

  	
  June 1, 2003

  	
   

  	
  First Chicago Leasing Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  N5

  	
   

  	
  June 1, 2003

  	
   

  	
  NationsBanc Leasing & R.E. Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  N6

  	
   

  	
  June 1, 2003

  	
   

  	
  Philip Morris Capital Corporation

  (transferee from NationsBanc Leasing & R.E. Corporation)