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 Surety
Bond as the “Oglethorpe Payment Demand” referred to therein)”.


 


(c)           Section 11.2(a) of the Head Lease is hereby
further amended by inserting the words “or the AMBAC Head Lease Surety Bond”
immediately after the words “Qualifying Head Lease Surety Bond” in clause (ii) therein.


 


(d)           The Head Lease is hereby amended by adding a new Section 17.14:


 


“Section 17.14.  Certain Agreements
Regarding Operative Documents. 
Oglethorpe agrees and acknowledges that the agreements made by
Oglethorpe under Section 4(b) of the Implementation Agreement
relating to the Head Lease or any Qualifying Head Lease Surety Bond or
Qualifying Letter of Credit or other credit enhancement issued in replacement
therefor are hereby incorporated herein by reference.”


 


Section 3.              Reference to Head Lease


 


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


 


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.


 


3

















 


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 in any number of
counterparts, each executed counterpart constituting an original but all
together only one agreement.


 


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 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)


 


4

















 


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


 


	
   

  	
  OGLETHORPE POWER CORPORATION
  (AN ELECTRIC MEMBERSHIP CORPORATION)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Thomas A. Smith

  
	
   

  	
   

  	
  Name:

  	
  Thomas A. Smith

  
	
   

  	
   

  	
  Title:

  	
  President and
  Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (CORPORATE SEAL)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attest:

  	
  /s/ 
  Patricia N. Nash

  
	
   

  	
   

  	
  Name:

  	
  Patricia N. Nash

  
	
   

  	
   

  	
  Title:

  	
  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]


 


5

















 


	
   

  	
  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]


 


6

















 


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]


 


7

















 


SCHEDULE TO EXHIBIT 10.4


 


AMENDMENT NO. 1 TO HEAD 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)