EXHIBIT 10.2


 


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 545


Floyd
County, Georgia


 


AMENDMENT NO. 1 TO
DEED TO SECURE DEBT,


ASSIGNMENT OF
SURETY BOND AND SECURITY AGREEMENT (P1)


 


THIS AMENDMENT NO. 1 TO DEED TO SECURE DEBT,
ASSIGNMENT OF SURETY BOND AND SECURITY AGREEMENT  (P1) (this “Amendment”) is made as of May 22, 2009, by
and between (i) 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”), 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” or the “Secured Party”).  Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Facility Sublease Assignment
Agreement (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, RMLC secured the payment, performance and
observance of certain of its obligations under the Participation Agreement and
the other Operative Documents, granting a lien, security interest and security
title in favor of the Secured Party in and to the Sublease Collateral pursuant
to the Deed to Secure Debt, Assignment of Surety Bond and Security Agreement
(P1), dated as of December 30, 1996 and filed for record on August 7,
1997 in Book 1409 Page 545 of the Floyd County, Georgia land records (the “Facility
Sublease Assignment Agreement”);


 


WHEREAS, pursuant to Section 8.6 of the Participation
Agreement, Oglethorpe has caused Berkshire Hathaway Assurance Corporation (“Berkshire”)
to issue and deliver to the Facility Sublessor and the Facility Lessor, a
Qualifying Sublease Surety Bond (the “Berkshire Sublease Surety Bond”)
without releasing Surety Bond (Facility Sublease-P1) No. SF0004BE, issued
on December 31, 1996 by Ambac Assurance Corporation, formerly known as
AMBAC Indemnity Corporation; and


 

















 


WHEREAS, in connection with the issuance by Berkshire of the
Berkshire Sublease Surety Bond, each of the parties hereto wishes to amend the
Facility Sublease Assignment Agreement in accordance with the terms set forth
herein.


 


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 Sublease Assignment Agreement


 


Appendix
A to the Facility Sublease Assignment Agreement 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.


 


Section 2.              Other Amendments to the
Facility Sublease Assignment Agreement


 


(a)           The numbered
paragraph 3 of the Granting Clause of the Facility Sublease Assignment
Agreement is hereby amended by inserting the words “the AMBAC Sublease Surety
Bond,” prior to the words “the Qualifying Sublease Surety Bond”.


 


(b)           Section 4.1(A)(i) of
the Facility Sublease Assignment Agreement is hereby amended by inserting the
words “the AMBAC Sublease Surety Bond,” prior to the words “the Qualifying
Sublease Surety Bond”.


 


(c)           Clause (b) of Section 6
of the Facility Sublease Assignment Agreement is hereby amended by inserting
the words “the AMBAC Sublease Surety Bond,” prior to the words “the Qualifying
Sublease Surety Bond”.


 


(d)           Clause (c) of Section 7
of the Facility Sublease Assignment Agreement is hereby amended and replaced in
its entirety with the following:


 


“(c) terminate, amend
or modify, or waive compliance with any term, covenant, agreement or condition
of the Sublease Documents, the AMBAC Sublease Surety 


 


2

















 


Bond, the Berkshire Sublease
Surety Bond (or any Qualifying Sublease Surety Bond or Qualifying Letter of
Credit issued in replacement of the Berkshire Sublease Surety Bond, whether
such surety bond or letter of credit was “qualifying” as of or after the
Berkshire Surety Bond Date under the definitions herein or not) or Qualifying
Additional Security or”.


 


Section 3.              Reference to Facility Sublease
Assignment Agreement


 


Except as herein amended, the Facility Sublease
Assignment Agreement shall remain in full force and effect.  As amended hereby, the Facility Sublease
Assignment Agreement is hereby ratified, approved and confirmed in all respects.  On and after the date hereof, each reference
to the Facility Sublease Assignment Agreement made in the Facility Sublease
Assignment Agreement or in any agreement, document or instrument executed and
delivered by the parties hereto in connection therewith, shall mean and be a
reference to the Facility Sublease Assignment Agreement, 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 the party against whom
enforcement of such change is sought.


 


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 any other Operative Documents, RMLC may not assign its
interests herein without the consent of the Secured Party.  Except as expressly provided in the Operative
Documents, the Secured Party may not assign its interests herein during the
Facility Sublease Term without the consent of RMLC.


 


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.


 


3

















 


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.


 


	
   

  	
  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]


 


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 10.2


 


AMENDMENT NO. 1 TO DEED TO SECURE DEBT, ASSIGNMENT OF SURETY BOND AND
SECURITY 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)