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 Participant to the extent consistent with
Applicable Law) to unpaid Rent and shall reduce the Facility Lessee’s
obligations to pay Rent to the extent any such proceeds are received by the
Facility Lessor.


 


(b)  To the extent
permitted by Applicable Law (including Part 6 of Article 9 of the
applicable Uniform Commercial Code), the Facility Sublease, the Facility
Sublease Assignment Agreement, and the terms, as applicable, of any Qualifying
Additional Security that secures the Facility Sublessee’s obligations under the
Facility Sublease, any Qualifying Letter of Credit that enhances the Facility
Sublessee’s obligations under the Facility Sublease, any Qualifying Sublease
Surety Bond, the AMBAC Sublease Surety Bond and the Berkshire Sublease Surety
Bond (in each case, whether any of the foregoing such agreements, arrangements,
security or letters of credit was “qualifying” as of or after the Berkshire
Surety Bond Date under the definitions herein or not), the Facility 


 


3

















 


Lessor may draw upon,
foreclose upon, or realize upon any Qualifying Additional Security that secures
the Facility Sublessee’s obligations under the Facility Sublease, any
Qualifying Letter of Credit that enhances the Facility Sublessee’s obligations
under the Facility Sublease, any Qualifying Sublease Surety Bond, the AMBAC
Sublease Surety Bond, or the Berkshire Sublease Surety Bond (in each case, whether
any of the foregoing such agreements, arrangements, security or letters of
credit was “qualifying” as of or after the Berkshire Surety Bond Date under the
definitions herein or not).  Any proceeds
of any Qualifying Additional Security that secures the Facility Sublessee’s
obligations under the Facility Sublease, any Qualifying Letter of Credit that
enhances the Facility Sublessee’s obligations under the Facility Sublease, any
Qualifying Sublease Surety Bond, the AMBAC Sublease Surety Bond, or the Berkshire
Sublease Surety Bond (in each case, whether any of the foregoing such
agreements, arrangements, security or letters of credit was “qualifying” as of
or after the Berkshire Surety Bond Date under the definitions herein or not)
that are received by the Facility Lessor, as assignee of the Facility Lessee,
shall be applied to Sublease Rent as provided therein and in the Facility
Sublease, and as required by Applicable Law (including Part 6 of Article 9
of the applicable Uniform Commercial Code).


 


(c)  If, as a result of
the application of the amounts described in clause (2) in accordance with
the provisions of clause (2), any such amounts are received as payments of
Sublease Rent under the Facility Sublease by the Facility Lessor as assignee of
the Facility Sublessor, such amounts shall be applied as determined by the
Owner Participant to the extent consistent with the requirements of the
Facility Sublease Assignment Agreement and Applicable Law (including Part 6
of Article 9 of the applicable Uniform Commercial Code) to unpaid Rent and
shall reduce the Facility Lessee’s obligations to pay Rent to the extent any
such amounts are so received by the Facility Lessor.


 


(g)                                 The Facility
Lease is hereby amended by adding a new Section 25-12:


 


“Section 25-12.  Certain Agreements
Regarding Operative Documents. 
RMLC agrees and acknowledges that the agreements made by RMLC under Section 4(b) of
the Implementation Agreement are hereby incorporated herein by reference.”


 


Section 3.                                          Reference
to Facility Lease


 


Except as herein amended, the Facility Lease shall remain in full force
and effect.  As amended hereby, the
Facility Lease is hereby ratified, approved and confirmed in all respects.  On and after the date hereof, each reference
to the Facility Lease in any agreement, document or instrument executed and
delivered pursuant to the Facility Lease by the parties hereto, shall mean and
be a reference to the Facility Lease, as amended hereby and by the Amendment,
Release and Consent Agreement, dated as of July 30, 1999.


 


4

















 


Section 4.                                          Amendments
and Waivers


 


No term, covenant, agreement or condition of this Amendment may be
terminated, amended or compliance therewith waived (either generally or in a
particular instance, retroactively or prospectively) except by an instrument or
instruments in writing executed by each party hereto.


 


Section 5.                                          Successors
and Assigns


 


(a)                                  This Amendment
shall be binding upon and shall inure to the benefit of, and shall be
enforceable by, the parties hereto and their respective successors and assigns
as permitted by and in accordance with the terms hereof.


 


(b)                                 Except as
expressly provided herein or in the other Operative Documents, neither party
hereto may assign its interests or transfer its obligations herein without the
consent of the other party hereto.


 


Section 6.                                          Governing
Law


 


This Amendment shall be in all respects governed by and construed in
accordance with the laws of the State of New York including all matters of
construction, validity and performance except to the extent the law of the
State of Georgia is mandatorily applicable.


 


Section 7.                                          Severability


 


If any provision hereof shall be invalid, illegal or unenforceable
under Applicable Law, the validity, legality and enforceability of the
remaining provisions hereof shall not be affected or impaired thereby.


 


Section 8.                                          Counterparts


 


This Amendment may be executed by the parties hereto in separate
counterparts, each of which, subject to Section 24 of the Facility Lease,
when so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.


 


Section 9.                                          Limitation
of Liability


 


It is expressly understood and agreed by the parties hereto that (a) this
Amendment is executed and delivered by U.S. Bank National Association, not
individually or personally but solely as Co-Trustee under the Trust Agreement,
in the exercise of the powers and authority conferred and vested in it, (b) each
of the representations, undertakings and agreements herein made on the part of
the Co-Trustee is made and intended not as personal representations,
undertakings and agreements by U.S. Bank National Association but is made and
intended for the purpose of binding only the Co-Trustee, (c) nothing herein
contained shall be construed as creating any liability on U.S. Bank National
Association, individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto or by any Person claiming by, through or
under the parties hereto and (d) under no circumstances shall U.S. Bank
National Association be personally liable 


 


5

















 


for the payment of any indebtedness or expenses of the
Co-Trustee or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Co-Trustee under
this Amendment.  In addition, each of the
parties hereto acknowledges and agrees that the Co-Trustee has been appointed
by the Owner Participant and Owner Trustee for the purpose of exercising those
trust powers in the State of Georgia which may not be exercised by the Owner
Trustee under Applicable Law, and that, except as otherwise required by Applicable
Law, the Co-Trustee shall not be obligated to take any action hereunder unless
expressly directed in writing by the Owner Trustee or the Owner Participant in
accordance with the terms of the Trust Agreement.


 


(Signature pages follow)


 


6





















 


IN WITNESS WHEREOF, the parties have each caused this Amendment to be
duly executed as of the day and year first written above.


 


 


	
   

  	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, not in its individual capacity, but solely as Co-Trustee
  under the Trust Agreement

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jack Ellerin

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jack Ellerin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Muriel Shaw

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Sonia S. Henry

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My commission expires:

  	
  July 21, 2012

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  
						



 


7

















 


	
   

  	
   

  	
  ROCKY
  MOUNTAIN LEASING CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Elizabeth B. Higgins

  
	
   

  	
   

  	
   

  	
  Name: Elizabeth B. Higgins

  
	
   

  	
   

  	
   

  	
  Title:   President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attest:

  	
  /s/ Patricia N. Nash

  
	
   

  	
   

  	
   

  	
  Name: Patricia N. Nash

  
	
   

  	
   

  	
   

  	
  Title:   Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Thomas J. Brendiar

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Sharon H. Wright

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My commission expires:

  	
  October 14, 2011

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  
					



 


8

















 


Acknowledged
and consented to by:


 


 


	
   

  	
   

  	
  UTRECHT-AMERICA FINANCE CO.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Brett Delfino

  
	
   

  	
   

  	
   

  	
  Name: Brett Delfino

  
	
   

  	
   

  	
   

  	
  Title:   Assistant
  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Margaret Schaubeck

  
	
   

  	
   

  	
   

  	
  Name: Margaret
  Schaubeck

  
	
   

  	
   

  	
   

  	
  Title:   Assistant
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Geert C. Kortlandt

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Shannon Smith

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My commission expires:

  	
  November 5, 2011

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  
					



 


9

















 


SCHEDULE
TO EXHIBIT 10.5


 


AMENDMENT
NO. 1 TO FACILITY LEASE AGREEMENT (P1)


 


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


 


	
  Amendment

  to Agreement

  	
   

  	
  Date

  	
   

  	
  Owner Participant

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  P2

  	
   

  	
  May 22,
  2009

  	
   

  	
  Philip Morris Capital
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F3

  	
   

  	
  May 22,
  2009

  	
   

  	
  First Chicago Leasing
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  F4

  	
   

  	
  May 22,
  2009

  	
   

  	
  First Chicago Leasing
  Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  N6

  	
   

  	
  May 22,
  2009

  	
   

  	
  Philip Morris Capital
  Corporation

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