EXHIBIT 10.1


 


EXECUTION COPY


 


AMENDMENT NO. 2 TO
PARTICIPATION AGREEMENT (P1)


 


THIS AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT
(P1) (this “Amendment”) is made as of May 22, 2009, by
and among (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 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, a national banking association organized under the laws of the United
States, successor in interest to Fleet National Bank, not in its individual
capacity, except as expressly provided herein, but solely as Owner 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 “Non-Georgia Trust Company”); (v) 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, except as specifically provided herein, but solely as Co-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 “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, called the “Lender”). 
Capitalized terms used but not defined herein shall have the meaning
ascribed to them in the Participation 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, Oglethorpe,
RMLC, the Owner Participant, the Owner Trustee, the Co-Trustee and the Lender
are parties to the Participation Agreement (P1), dated as of December 30,
1996 (the “Participation Agreement”);


 


WHEREAS, on December 31, 1996, in connection with
the transactions contemplated by the Participation Agreement, Ambac Assurance
Corporation, formerly known as AMBAC Indemnity Corporation (“AMBAC”),
then constituting a Qualifying Surety Bond Provider, issued (a) Surety
Bond (Head Lease-P1) No. SF0003BE in favor of the Head Lessee and the
Owner Participant (the “AMBAC Head Lease Surety Bond”) and (b) Surety
Bond (Facility Sublease-P1) No. SF0004BE in favor of the Facility
Sublessor and the Facility Lessor (the 


 

















 


“AMBAC Sublease Surety
Bond” and, together with the AMBAC Head Lease Surety Bond, the “AMBAC
Surety Bonds”);


 


WHEREAS, subsequent to the date of issuance of the
AMBAC Surety Bonds, AMBAC ceased to be a Qualifying Surety Bond Provider as a
result of a downgrade in AMBAC’s long term unsecured debt rating, and,
consequently, Oglethorpe was required to either replace the AMBAC Surety Bonds
or find other acceptable credit enhancement as required pursuant to Section 8.5
and Section 8.6 of the Participation Agreement;


 


WHEREAS, in order to satisfy its obligations under Section 8.5
and Section 8.6 of the Participation Agreement, Oglethorpe has caused
Berkshire Hathaway Assurance Corporation (“Berkshire”) to deliver (a) to
the Head Lessee and the Owner Participant, a Qualifying Head Lease Surety Bond
(as amended from time to time, the “Berkshire Head Lease Surety Bond”),
and (b) to the Facility Sublessor and the Facility Lessor, a Qualifying
Sublease Surety Bond (as amended from time to time, the “Berkshire Sublease
Surety Bond” and, together with the Berkshire Head Lease Surety Bond, the “Berkshire
Surety Bonds”);


 


WHEREAS, each of the AMBAC Head Lease Surety Bond and
the AMBAC Sublease Surety Bond, as each may be amended, or amended and
restated, from time to time, will remain in place and the Berkshire Head Lease
Surety Bond and the Berkshire Sublease Surety Bond will be issued in addition;
and


 


WHEREAS, in connection with the issuance by Berkshire
of the Berkshire Surety Bonds, each of the parties hereto wishes to amend the
Participation Agreement upon 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 Participation Agreement.  Appendix A to the Participation Agreement is
hereby amended as follows:


 


(a)                                  The defined term “AMBAC
Indemnity” is hereby deleted in its entirety, and the definition of “AMBAC” is
hereby replaced, 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.”


 


(b)                                 The definition of “Excepted
Payments” is hereby replaced, in its entirety, with the following language:


 


“Excepted
Payments” shall mean and include (i)(A) any
indemnity (whether or not constituting Supplemental Rent or Sublease
Supplemental Rent and whether or not an Event of Default exists) payable to
either Trust Company, either Trustee or the Owner Participant or to their
respective Indemnitees or RMLC Indemnitees and successors and permitted assigns
(other than the Lender) pursuant to Section 2.3, 


 


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11.1, 11.2, 12.1 or 12.2 of the Participation Agreement, Section 7.01
of the Trust Agreement, and any payments under the Tax Indemnity Agreement or (B) any
amount payable by the Facility Lessee or the Facility Sublessee to either
Trustee or the Owner Participant to reimburse any such Person for its costs and
expenses in exercising its rights under the Operative Documents, (ii)(A) insurance
proceeds, if any, payable to either Trustee or the Owner Participant under
insurance separately maintained by either Trustee or the Owner Participant with
respect to the Facility as permitted by Section 11 of the Facility Lease
or (B) proceeds of personal injury or property damage liability insurance
maintained under any Operative Document for the benefit of either Trustee or
the Owner Participant, (iii) any amount payable to the Owner Participant
as the purchase price of the Owner Participant’s right and interest in the
Beneficial Interest, (iv) the Equity Portion of Termination Value, the
Equity Portion of Basic Rent, the Equity Portion of the Sublease Basic Rent and
the Equity Portion of Purchase Option Price payable (A) by the Facility
Lessee under the Facility Lease to the extent of amounts payable under the
Qualifying Equity Funding Agreement (in each case, whether the foregoing
agreement was “qualifying” as of or after the Berkshire Surety Bond Date under
the definitions herein or not) or through assignment of the Surety Bonds or any
Qualifying Additional Security and/or (B) by the Head Lessor under the
Head Lease or the Facility Sublessee under the Facility Sublease, in each case,
to the extent of amounts payable under the Surety Bonds and any Qualifying
Additional Security (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), (v) any
payments or distributions to either Trustee or the Owner Participant
attributable to any Qualifying Equity Funding Agreement, Qualifying Additional
Security, the AMBAC Head Lease Surety Bond, the AMBAC Sublease Surety Bond, the
AMBAC Assignment Agreement, the Berkshire Head Lease Surety Bond, the Berkshire
Sublease Surety Bond, the Berkshire Assignment Agreement, any Qualifying Surety
Bond or any Qualifying Letter of Credit (in each case, whether any of the
foregoing agreements, arrangements, security or letters of credit was “qualifying”
as of or after the Berkshire Surety Bond Date under the definitions herein or
not), (vi) any amounts payable to the Owner Participant upon exercise by
it of the Special Equity Facility Lease Remedy pursuant to Section 16.1 of
the Participation Agreement or the Special Equity Head Lease Remedy pursuant to
Section 16.2 of the Participation Agreement and (vii) any payments in
respect of interest, or any payments made on an After-Tax Basis, to the extent
attributable to payments referred to in clause (i) through (vi) above
that constitute Excepted Payments.


 


(c)                                  The definition of “Operative
Documents” is hereby amended by:


 


(i)                                     adding
the phrase “the Consent, dated as of May 22, 2009, made by the Lender, the
Implementation Agreement, the Berkshire Head Lease Surety Bond, the Berkshire
Sublease Surety Bond, the Berkshire Assignment Agreement and the AMBAC Guaranty”
after the phrase “the Subordinated Deed to Secure Debt and Security Agreement”
in the fourteenth line therein; and


 


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(ii)                                  adding
at the end of such definition the following sentence:


 


“The Agreement Regarding Surety Bonds and the Berkshire Guaranty
Agreement shall constitute Operative Documents if and only if Berkshire or a
designee of Berkshire shall, by subrogation, assignment, purchase or otherwise,
acquire the Owner Participant’s Beneficial Interest or the Berkshire
Subrogation Interest or the rights of the Owner Participant or the Head Lessee
under the Operative Documents and, at the time of such acquisition or at the
time that Berkshire or any designee of Berkshire shall be committed to make
such acquisition or at any time thereafter, either (A) an Event of Default
or a Head Lessor Event of Default shall exist or (B) Berkshire shall have
received a demand for payment under either of the Berkshire Surety Bonds.”


 


(d)                                 The definition of “Qualifying
Head Lease Surety Bond” is hereby amended by adding the following sentence
after the end thereof:


 


“On the Berkshire Surety Bond Date, the Berkshire Head
Lease Surety Bond delivered on the Berkshire Surety Bond Date constitutes a
Qualifying Head Lease Surety Bond.”


 


(e)                                  The definition of “Qualifying
Sublease Surety Bond” is hereby amended by adding the following sentence after
the end thereof:


 


“On the Berkshire Surety Bond Date, the Berkshire
Sublease Surety Bond delivered on the Berkshire Surety Bond Date constitutes a
Qualifying Sublease Surety Bond.”


 


(f)                                    The definition of “Subordinated
Secured Parties” is hereby amended by adding the term “Berkshire,” after “AMBAC,”
in the first line therein.


 


(g)                                 The following new
definitions are added:


 


“Agreement
Regarding Surety Bonds” shall mean the Agreement
Regarding Surety Bonds (P1), dated as of the Berkshire Surety Bond Date, among
Oglethorpe, RMLC and Berkshire.


 


“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.


 


“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.


 


“AMBAC
Subrogation Interest” shall mean (i) AMBAC’s
right to be subrogated or to an assignment, as provided in Sections 6 and 11(f) of
each of the AMBAC Surety Bonds, to the right, title and interest of the Head
Lessee, the Facility Lessor, the Ground Lessee, the Ground Sublessor and the
Owner Participant (as the 


 


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case may be) in, to and under the Head Lease, the Facility Lease, the
Ground Lease, the Ground Sublease, the Rocky Mountain Agreements Assignment,
the Rocky Mountain Agreements Re-Assignment or relating to or arising under the
Operative Documents.


 


“AMBAC
Surety Bonds” shall mean, collectively, the AMBAC Head
Lease Surety Bond and the AMBAC Sublease Surety Bond.


 


“Amendment
Agreements” shall mean the Amendment No. 2 to the
Participation Agreement, the Amendment to the Facility Lease, the Amendment to
the Head Lease, the Amendment to the Facility Sublease, the Amendment to the
Facility Sublease Assignment Agreement, the Amendment to the Subordinated Deed
to Secure Debt and Security Agreement and the Amendment to the Loan and Security
Agreement.


 


“Amendment
to the Facility Lease” shall mean the Amendment No. 1
to Facility Lease (P1), dated as of the Berkshire Surety Bond Date, between the
Facility Lessor and the Facility Lessee, in substantially the form of Exhibit X
to the Participation Agreement.


 


“Amendment
to the Facility Sublease” shall mean the Amendment No. 1
to Facility Sublease (P1), dated as of the Berkshire Surety Bond Date, between
the Facility Sublessor and the Facility Sublessee, in substantially the form of
Exhibit Y to the Participation Agreement.


 


“Amendment
to the Facility Sublease Assignment Agreement” shall
mean the Amendment No. 1 to Deed to Secure Debt, Assignment of Surety Bond
and Security Agreement (P1), dated as of the Berkshire Surety Bond Date,
between RMLC, as grantor, and the Co-Trustee, as secured party, in
substantially the form of Exhibit Z to the Participation Agreement.


 


“Amendment
to the Head Lease” shall mean the Amendment No. 1
to Head Lease (P1), dated as of the Berkshire Surety Bond Date, between the
Head Lessor and the Head Lessee, in substantially the form of Exhibit AA
to the Participation Agreement.


 


“Amendment
to the Loan and Security Agreement” shall mean the
Amendment No. 1 to Loan and Security Agreement (P1), dated as of the
Berkshire Surety Bond Date, between the Co-Trustee, the Owner Trustee and the
Lender, in substantially the form of Exhibit BB to the Participation
Agreement.


 


“Amendment
No. 2 to the Participation Agreement” shall mean
the Amendment No. 2 to Participation Agreement (P1), dated as of the
Berkshire Surety Bond Date, among Oglethorpe, RMLC, the Georgia Trust Company
in its individual capacity and as Co-Trustee, the Non-Georgia Trust Company in
its individual capacity and as Owner Trustee, the Owner Participant and the
Lender.


 


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“Amendment
to the Subordinated Deed to Secure Debt and Security Agreement”
shall mean the Amendment No. 1 to Subordinated Deed to Secure Debt and
Security Agreement (P1), dated as of the Berkshire Surety Bond Date, among
Oglethorpe, as grantor, and Berkshire, AMBAC and the Co-Trustee, as
subordinated secured parties, in substantially the form of Exhibit CC to
the Participation Agreement.


 


“Berkshire”
shall mean Berkshire Hathaway Assurance Corporation.


 


“Berkshire
Additional Subrogation Interest” Berkshire’s right to
be subrogated, (x) as provided in paragraphs 11(a) and 11(f) of
the Berkshire Head Lease Surety Bond, to the right, title and interest of the
Head Lessee and the Owner Participant in, to and under the AMBAC Head Lease
Surety Bond and (y) as provided in paragraphs 11(a) and 11(f) of
the Berkshire Sublease Surety Bond, to the right, title and interest of the
Facility Sublessor and the Facility Lessor in, to and under the AMBAC Sublease
Surety Bond.


 


 “Berkshire Assignment Agreement”
shall mean the Berkshire Agreement for Assignment on Default (P1), dated as of
the Berkshire Surety Bond Date, among the Owner Participant, the Co-Trustee,
the Owner Trustee and Berkshire.


 


“Berkshire
Guaranty Agreement” shall mean the Berkshire Guaranty
Agreement (P1), dated as of the Berkshire Surety Bond Date, between Oglethorpe
and Berkshire.


 


“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.


 


“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.


 


“Berkshire
Subrogation Interest” shall mean Berkshire’s right to
be subrogated or to an assignment, as provided in paragraphs 6 and 11(f) of
each of the Berkshire Surety Bonds, to the right, title and interest of the
Head Lessee, the Facility Lessor, the Ground Lessee, the Ground Sublessor and
the Owner Participant (as the case may be) in, to and under the Head Lease, the
Facility Lease, the Ground Lease, the Ground Sublease, the Rocky Mountain
Agreements Assignment and the Rocky Mountain Agreements Re-Assignment or
relating to or arising under the Operative Documents.


 


“Berkshire
Surety Bonds” shall mean, collectively, the Berkshire
Head Lease Surety Bond and the Berkshire Sublease Surety Bond.


 


“Berkshire
Surety Bond Date” shall mean May 22, 2009.


 


“Berkshire
Surety Bond Documents” shall mean the Amendment
Agreements, the Agreement Regarding Surety Bonds, the Berkshire Head Lease
Surety Bond, the 


 


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Berkshire Sublease Surety Bond, the Berkshire Assignment Agreement, the
Berkshire Guaranty Agreement and the Implementation Agreement.


 


“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.


 


“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.


 


“Surety
Bonds” shall mean, collectively, the AMBAC Head Lease
Surety Bond, the AMBAC Sublease Surety Bond and the Berkshire Surety Bonds (in
each case, whether any of the foregoing surety bonds was “qualifying” as of or
after the Berkshire Surety Bond Date under the definitions herein or not).


 


“Surety
Bond Provider” shall mean a Person who issued any
Surety Bond or a Qualifying Surety Bond whether or not such Person is still a
Qualifying Surety Bond Provider.


 


“Surety
Bond Provider Assignment Agreement” shall mean an
Agreement for Assignment on Default entered into among any Person who, at the
time such agreement is executed, is a Surety Bond Provider, the Owner
Participant, the Co-Trustee and the Owner Trustee, and, if applicable,
acknowledged and consented to by Oglethorpe and RMLC.


 


(h)                                 The new and amended
definitions in this Section 1 shall be effective for all purposes of each
Operative Document, including each Operative Document to which Appendix A as
the definitional appendix is attached.


 


Section 2.                                          Other
Amendments to the Participation Agreement


 


(a)                                  Section 5.1(a) of
the Participation Agreement is hereby amended by replacing the last two
sentences thereof with the following:


 


“The parties hereto hereby acknowledge the right of
AMBAC, Berkshire or any other Surety Bond Provider to purchase the Beneficial
Interest in accordance with the provisions of the applicable Surety Bond
Provider Assignment Agreement. 
Notwithstanding such acknowledgment, any Surety Bond Provider shall
assume the duties and obligations of the Owner Participant under the Operative
Documents with respect to the interest being transferred pursuant to an
Assumption Agreement substantially in the form of Exhibit T hereto and
meet the requirements of a permitted Transferee set forth in clauses (A) (only
if the Loan has not been repaid), (B) and (C) of this Section 5.1(a) in
order to exercise such rights.  In
addition, the parties hereto hereby acknowledge (1) Berkshire’s rights to
acquire, as contemplated by the Berkshire Surety Bond Documents and subject 


 


7

















 


to the terms and conditions set forth therein, the
Berkshire Subrogation Interest, including, for the avoidance of doubt, with
respect to the Owner Participant’s rights under Section 16.2 hereof, or
the Berkshire Additional Subrogation Interest and (2) Berkshire’s rights
under Section 4(c) of the Implementation Agreement.  For the avoidance of doubt, the transfer to
Oglethorpe of the Beneficial Interest or the Berkshire Subrogation Interest
pursuant to Section 4(c) of the Implementation Agreement, any
acquisition by Berkshire of the Berkshire Subrogation Interest or the Berkshire
Additional Subrogation Interest, any acquisition by AMBAC of the AMBAC
Subrogation Interest, and any assignment pursuant to Section 6 of the
AMBAC Surety Bonds or assignment substantially in the form of Exhibit A to
a Demand for Avoided Payment pursuant to the Berkshire Surety Bonds or confirmation
of transfer in the form of Attachment 2 to the AMBAC Surety Bonds or Attachment
V of the Berkshire Surety Bonds, as applicable, are not subject to the
restrictions of this Section 5.1.”


 


(b)                                 Section 8.5
of the Participation Agreement is hereby amended as follows:


 


(i)                                     by
replacing clause (c) thereof in its entirety with the following language:


 


“(c) Berkshire or any Surety Bond Provider that
issues a Qualifying Head Lease Surety Bond in replacement of the Berkshire Head
Lease Surety Bond (whether such surety bond continues to be “qualifying” after
the date of such replacement under the definitions herein or not) (i) delivers
to the Owner Participant and the Co-Trustee a notice exercising its purchase
option under its Surety Bond Provider Assignment Agreement and (ii) is
thereafter released by the Owner Participant and the Co-Trustee pursuant
thereto from all of its obligations under the Berkshire Head Lease Surety Bond
or such replacement Qualifying Head Lease Surety Bond, as applicable (whether the
surety bond was “qualifying” on or after the Berkshire Surety Bond Date under
the definitions herein or not);”


 


(ii)                                  by
adding a new sentence after the end thereof to read in its entirety as follows:


 


“Unless and until the Owner Participant and the Co-Trustee
shall have issued a full and final release to Berkshire pursuant to Section 8.5-1(a)(i),
the AMBAC Head Lease Surety Bond shall not be deemed to be a Qualifying Head
Lease Surety Bond and Oglethorpe shall have no obligation to replace the AMBAC
Head Lease Surety Bond under this Section 8.5.  Simultaneously with the provision of a
replacement Qualifying Head Lease Surety Bond (other than the Berkshire Head
Lease Surety Bond), Qualifying Letter of Credit, other acceptable credit
enhancement or any combination thereof pursuant to and in accordance with this Section 8.5,
the Owner Participant and the Co-Trustee shall at the request of Oglethorpe,
deliver (A) to issuer of the surety bond being replaced, a full and final
release of all of its obligations thereunder and (B) to AMBAC a full and
final release of its obligations under the AMBAC Head Lease Surety Bond. ”


 


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(c)                                  The Participation
Agreement is hereby further amended by adding a new Section 8.5-1
immediately after the completion of Section 8.5:


 


“Section 8.5-1:  Optional
Replacement/Termination of Berkshire Head Lease Surety Bond.


 


(a)                                  Without
limiting Oglethorpe’s obligation under Section 8.5 to provide a
replacement Qualifying Head Lease Surety Bond, Oglethorpe shall have the right
to request that the Owner Participant and the Co-Trustee, and upon such
request, the Owner Participant and the Co-Trustee shall, subject to the terms
and conditions set forth in Section 8.5-1(b), deliver to Berkshire a full
and final release of its obligations under the Berkshire Head Lease Surety
Bond, if:


 


(i)                                     The
claims paying ability of AMBAC is rated “AAA” by S&P and “Aaa” by Moody’s,
AMBAC is not on negative credit watch with either rating agency and the Owner
Participant shall have consented thereto (such consent not to be unreasonably
withheld or delayed); provided, that
the AMBAC Head Lease Surety Bond shall not have been terminated; or


 


(ii)                                  Oglethorpe
provides (A) a replacement Qualifying Head Lease Surety Bond, (B) a
Qualifying Letter of Credit supporting Oglethorpe’s obligations under Section 16
of the Head Lease and the Special Equity Head Lease Remedy having a maximum
drawing amount from time to time equal to the Equity Exposure Amount, (C) other
credit enhancement acceptable to the Owner Participant in its sole discretion
or (D) a combination of the credit enhancements set forth in clauses (A), (B) and
(C); provided, that no termination shall be permitted under this Section 8.5-1(a)(ii) prior
to the fourth anniversary of the issuance of the Berkshire Head Lease Surety
Bond without the consent of the Owner Participant; or


 


(iii)                               The
Head Lease is terminated in accordance with its terms or otherwise and the
Owner Participant and the Co-Trustee shall have been paid in full all amounts
then due and payable by Oglethorpe thereunder and under the other Operative
Documents, including, to the extent applicable, any termination or similar
agreement to which the Owner Participant and Oglethorpe may enter into in
connect therewith.


 


(b)                                 The
Owner Participant and the Co-Trustee shall have no obligation to deliver a
release to Berkshire under this Section 8.5-1 unless:


 


(i)                                     Berkshire
is not in default in the payment of any claim that has been made under the
Berkshire Head Lease Surety Bond;


 


(ii)                                  Oglethorpe
is not in default in the payment of any amounts owed to the Owner Participant
or the Co-Trustee under the Head Lease or the other Operative Documents;


 


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(iii)                               in
the case of Section 8.5-1(a)(i), Oglethorpe shall deliver a favorable
opinion of counsel (which may be from in-house counsel to AMBAC) confirming
that the AMBAC Head Lease Surety Bond is valid and enforceable;


 


(iv)                              in
the case of Section 8.5-1(a)(ii), Oglethorpe shall deliver a favorable
opinion of counsel (such counsel and the form and substance of such opinion to
be reasonably satisfactory to the Owner Participant) covering, without
limitation, (i) in the case of a Qualifying Head Lease Surety Bond, the
matters set forth in the opinion of counsel to AMBAC rendered on the Closing
Date in connection with the AMBAC Head Lease Surety Bond, in respect of such
Qualifying Head Lease Surety Bond or (ii) in the case of a Qualifying
Letter of Credit, the opinion required under Section 8.7; and


 


(v)                                 the
Owner Participant shall be satisfied that the foregoing conditions have been
satisfied by Oglethorpe or waived by the Owner Participant.


 


(c)                                  Upon
issuance of the full and final release to Berkshire pursuant to Section 8.5-1(a),
the AMBAC Head Lease Surety Bond (in the case of subsection (a)(i)) or any
replacement Qualifying Head Lease Surety Bond or Qualifying Letter of Credit
(in the case of subsection (a)(ii)) shall, as of such date, constitute a
Qualifying Head Lease Surety Bond or Qualifying Letter of Credit and shall
thereafter be subject to replacement under Section 8.5 or 8.7, as
applicable.


 


(d)                                 Section 8.6
of the Participation Agreement is hereby amended as follows:


 


(i)                                     by
replacing clause (c) thereof in its entirety with the following language:


 


“(c) Berkshire or any Surety Bond Provider that
issues a Qualifying Sublease Surety Bond in replacement of the Berkshire
Sublease Surety Bond (whether such surety bond continues to be “qualifying”
after the date of such replacement under the definitions herein or not) (i) delivers
to the Co-Trustee (as secured party under the Facility Sublease Assignment
Agreement) and RMLC a notice exercising its purchase option under its Surety
Bond Provider Assignment Agreement and (ii) is thereafter released by the
Co-Trustee and RMLC pursuant thereto from all of its obligations under the
Berkshire Sublease Surety Bond or such replacement Qualifying Sublease Surety
Bond, as applicable (whether the surety bond was “qualifying” on or after the
Berkshire Surety Bond Date under the definitions herein or not);”


 


(ii)                                  by
adding a new sentence after the end thereof to read in its entirety as follows:


 


“Unless and until the Co-Trustee and RMLC shall have
issued a full and final release to Berkshire pursuant to Section 8.6-1(a)(i),
the AMBAC Sublease Surety Bond shall not be deemed to be a Qualifying Sublease
Surety Bond and Oglethorpe shall have no obligation to replace the AMBAC
Sublease Surety Bond under this Section 8.6.  Simultaneously with the provision of a
replacement Qualifying Sublease Surety Bond (other than the Berkshire Sublease
Surety 


 


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Bond), Qualifying Letter of Credit, other acceptable
credit enhancement or any combination thereof pursuant to and in accordance
with this Section 8.6, the Co-Trustee and RMLC shall, at the request of
Oglethorpe, deliver (A) to the issuer of the surety bond being replaced, a
full and complete release of all of its obligations thereunder and (B) to
AMBAC a full and final release of its obligations under the AMBAC Sublease
Surety Bond.”


 


(e)                                  Section 8.6
of the Participation Agreement is hereby further amended by adding the
following paragraph, immediately after the completion of Section 8.6:


 


“Section 8.6-1:  Optional
Replacement/Termination of Berkshire Sublease Surety Bond.


 


(a)                                  Without
limiting Oglethorpe’s obligation under Section 8.6 to provide a
replacement Qualifying Sublease Surety Bond, Oglethorpe shall have the right to
request the Co-Trustee and RMLC, and upon such request, the Co-Trustee and RMLC
shall, subject to the terms and conditions set forth in Section 8.6-1(b),
deliver to Berkshire a full and final release of its obligations under the
Berkshire Sublease Surety Bond, if:


 


(i)                                     The
claims paying ability of AMBAC is rated “AAA” by S&P and “Aaa” by Moody’s,
AMBAC is not on negative credit watch with either rating agency and the Owner
Participant shall have consented thereto (such consent not to be unreasonably
withheld or delayed); provided, that
the AMBAC Sublease Surety Bond shall not have been terminated; or


 


(ii)                                  Oglethorpe
provides (A) a replacement Qualifying Sublease Surety Bond, (B) a
Qualifying Letter of Credit supporting Oglethorpe’s obligations under the
Facility Sublease and the Special Equity Facility Lease Remedy having a maximum
drawing amount from time to time equal to the Equity Exposure Amount, (C) other
credit enhancement acceptable to the Owner Participant and RMLC in their sole
discretion or (D) a combination of the credit enhancements set forth in
clauses (A), (B) and (C); provided, that no termination shall be permitted
under this Section 8.6-1(a)(ii) prior to the fourth anniversary of
the issuance of the Berkshire Sublease Surety Bond without the consent of the
Owner Participant; or


 


(iii)                               The
Facility Sublease is terminated in accordance with its terms or otherwise and
the Co-Trustee and RMLC shall have been paid in full all amounts then due and
payable by Oglethorpe thereunder and under the other Operative Documents,
including, to the extent applicable, any termination or similar agreement to
which the Owner Participant and Oglethorpe may enter into in connect therewith.


 


(b)                                 The
Co-Trustee and RMLC shall have no obligation to deliver a release to Berkshire
under this Section 8.6-1 unless:


 


11

















 


(i)                                     Berkshire
is not in default in the payment of any claim that has been made under the
Berkshire Sublease Surety Bond;


 


(ii)                                  Oglethorpe
is not in default in the payment of any amounts owed to the Co-Trustee or RMLC
under the Facility Sublease or the other Operative Documents;


 


(iii)                               in
the case of Section 8.6-1(a)(i), Oglethorpe shall deliver a favorable
opinion of counsel (which may be from in-house counsel to AMBAC) confirming
that the AMBAC Sublease Surety Bond is valid and enforceable;


 


(iv)                              in
the case of Section 8.6-1(a)(ii), Oglethorpe shall deliver a favorable
opinion of counsel (such counsel and the form and substance of such opinion to
be reasonably satisfactory to RMLC and the Owner Participant) covering, without
limitation, (i) in the case of a Qualifying Sublease Surety Bond, the
matters set forth in the opinion of counsel to AMBAC rendered on the Closing
Date in connection with the AMBAC Sublease Surety Bond, in respect of such
Qualifying Sublease Surety Bond or (ii) in the case of a Qualifying Letter
of Credit, the opinion required under Section 8.7; and


 


(v)                                 the
Owner Participant shall be satisfied that the foregoing conditions have been
satisfied by Oglethorpe or waived by the Owner Participant.


 


(c)                                  Upon
issuance of the full and final release to Berkshire pursuant to Section 8.6-1(a),
the AMBAC Sublease Surety Bond (in the case of subsection (a)(i)) or any
replacement Sublease Surety Bond or Qualifying Letter of Credit (in the case of
subsection (a)(ii)) shall, as of such date, constitute a Qualifying Sublease
Surety Bond or Qualifying Letter of Credit and shall thereafter be subject to
replacement under Section 8.6 or 8.7, as applicable.


 


(e)                                  The
first sentence of Section 16.1 of the Participation Agreement is hereby
amended by inserting the following parenthetical immediately after the words “written
notice to RMLC, Oglethorpe and the Lender”:


 


“(a copy of which notice may be delivered by the Owner Participant to
Berkshire in accordance with Section 1(c) of the Berkshire Sublease
Surety Bond as the “Oglethorpe Payment Demand” referred to therein)”.


 


(f)                                    The
first sentence of Section 16.2 of the Participation Agreement is hereby
amended by inserting the following parenthetical immediately after the words “written
notice to RMLC, Oglethorpe and the Lender”:


 


“(a copy of which notice may be delivered by the Owner Participant to
Berkshire in accordance with Section 1(c) of the Berkshire Head Lease
Surety Bond as the “Oglethorpe Payment Demand” referred to therein)”.


 


12

















 


Section 3.                                          Reference
to Participation Agreement


 


Except as herein amended, the Participation Agreement
shall remain in full force and effect. 
As amended hereby, the Participation Agreement is hereby ratified,
approved and confirmed in all respects. 
On and after the date hereof, each reference to the Participation
Agreement made in the Participation Agreement or in any agreement, document or
instrument executed and delivered in connection therewith by the parties
hereto, shall mean and be a reference to the Participation Agreement, as
amended hereby and by Amendment No. 1 to the Participation Agreement,
dated as of June 1, 2003.


 


Section 4.                                          Consents
to Amendment Agreements.  Each party to this Amendment hereby consents
to the execution of this Amendment and the other Amendment Agreements by each
other party hereto or thereto and to the performance by such other parties of
their respective obligations hereunder and thereunder.


 


Section 5.                                          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 6.                                          Successors
and Assigns


 


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.  Except as expressly
provided herein or in the other Operative Documents, no party hereto may assign
its interests herein without the consent of the other parties hereto.


 


Section 7.                                          Governing
Law


 


This Amendment has been delivered in the State of
New York and 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.


 


Section 8.                                          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 9.                                          Counterparts


 


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


 


13

















 


Section 10.                                   Limitation
of Liability


 


(a)                                  None of the Georgia
Trust Company, the Co-Trustee, the Owner Trustee, the Non-Georgia Trust Company
or the Owner Participant shall have any obligation or duty to Oglethorpe or to
others with respect to the transactions contemplated hereby, except those obligations
or duties expressly set forth in this Amendment and the other Operative
Documents, and neither the Co-Trustee, the Georgia Trust Company, the Owner
Trustee, the Non-Georgia Trust Company, nor the Owner Participant shall be
liable for performance by any other party hereto of such other party’s
obligations or duties hereunder.  Without
limitation of the generality of the foregoing, under no circumstances
whatsoever shall the Owner Participant be liable to Oglethorpe for any action
or inaction on the part of the Co-Trustee or the Owner Trustee in connection
with the transactions contemplated herein, whether or not such action or
inaction is caused by willful misconduct or gross negligence of the Co-Trustee,
unless such action or inaction is at the direction of the Owner
Participant.  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 limited 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.


 


(b)                                 Each Trust Company had
entered or is entering into this Amendment and the other Operative Documents to
which it is a party solely as trustee under the Trust Agreement and not in its
individual capacity, except as expressly provided herein or therein, and in no
case whatsoever shall either Trust Company be personally liable for, or for any
loss in respect of, any of the statements, representations, warranties,
agreements or obligations of Facility Lessor hereunder or under any other
Operative Document, as to all of which the other parties hereto agree to look
solely to the Trust Estate; provided, however, that each Trust Company shall be liable hereunder
for its own gross negligence or willful misconduct.


 


(Signature pages follow)


 


14

















 


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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION, not in its
  individual capacity, except as expressly provided herein, but solely as Owner
  Trustee under the Trust Agreement

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Mark A. Forgetta

  
	
   

  	
   

  	
  Name:

  	
  Mark A. Forgetta

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Jack Ellerin

  
	
   

  	
   

  	
  Name:

  	
  Jack Ellerin

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
						



 


15

















 


	
   

  	
  PHILIP MORRIS CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Alex T. Russo

  
	
   

  	
   

  	
  Name:

  	
  Alex T. Russo

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UTRECHT-AMERICA FINANCE CO.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Brett Delfino

  
	
   

  	
   

  	
  Name:

  	
  Brett Delfino

  
	
   

  	
   

  	
  Title:

  	
  Assistant Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Margaret Schaubeck

  
	
   

  	
   

  	
  Name:

  	
  Margaret Schaubeck

  
	
   

  	
   

  	
  Title:

  	
  Assistant Treasurer

  



 


16














 


EXHIBIT X


to


Participation


Agreement


 


Form of Amendment to the Facility Lease


 


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”.


 


(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
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.


 

















 


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 


 

















 


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)


 

















 


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:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  
					



 

















 


	
   

  	
   

  	
  ROCKY
  MOUNTAIN LEASING CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  
					



 

















 


Acknowledged
and consented to by:


 


	
   

  	
   

  	
  UTRECHT-AMERICA
  FINANCE CO.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  
					



 














 


   EXHIBIT Y


to


Participation


Agreement


 


Form of
Amendment to the Facility Sublease


 


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.”


 


(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 lieu of the Sublease Basic Rent due for any periods subsequent
to the date of such sale), an amount equal to (A) any unpaid Sublease
Basic Rent due before the date of such sale and, (B)(i) if that date is a
Rent Payment Date, the Sublease 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 Sublease Basic Rent due on the
next Rent Payment Date (as if all such Sublease Basic Rent is payable and
accruing in arrears with respect to the 6-month period preceding such Rent
Payment Date, whether Sublease Basic Rent on such Rent Payment Date is
payable in advance or in arrears), plus (C) the amount, if any, by which
the Sublease 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, then Sublease Termination Value computed as of such
date (provided that if such Termination Date is also a Rent Payment Date on
which Sublease Basic Rent is payable in advance, such Sublease Termination
Value shall be reduced by the amount of Sublease Basic Rent shown as advance
Sublease Basic Rent opposite such date on Schedule 2 to the Facility
Sublease)), exceeds the net proceeds of such sale, and, upon payment of such
amount, this Facility Sublease and the Facility Sublessee’s obligation to pay
Sublease Basic Rent for any periods subsequent to the date of such payment
shall terminate; or”


 


(d)                                 Section 17.1(g) of
the Facility Sublease is hereby replaced, in its entirety, with the following
language:


 


“the
Facility Sublessor or upon an Event of Default, the Facility Lessor, as
security assignee, may draw upon any Qualifying Sublease Surety Bond, the AMBAC
Sublease Surety Bond and/or the Berkshire Sublease Surety Bond (in each 


 

















 


case, whether any of the
foregoing was “qualifying” as of or after the Berkshire Surety Bond Date under
the definitions herein or not) and all proceeds thereof shall be applied (as
determined by the Facility Sublessor, or upon an Event of Default, the Owner
Participant) to the Facility Sublessee’s obligations to pay Sublease Rent and,
to the extent any such proceeds received are so applied by the Facility
Sublessor or the Facility Lessor, as security assignee, such proceeds shall
reduce the Facility Sublessee’s obligations to pay such Sublease Rent (provided
that Sublease Termination Value shall not be reduced below the unpaid balance
of principal and stated accrued interest under the Loan Agreement).”


 


(e)                                  The Facility
Sublease is hereby amended by adding a new Section 25-11:


 


“Section 25-11.  Certain Agreements
Regarding Operative Documents. 
Oglethorpe agrees and acknowledges that the agreements made by
Oglethorpe under Section 4(b) of the Implementation Agreement (other
than its agreements with respect to the Head Lease or any Qualifying Head Lease
Surety Bond or Qualifying Letter of Credit issued in replacement therefor) are
hereby incorporated herein by reference.”


 


Section 3.                                          Reference
to Facility Sublease


 


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


 


Section 4.                                          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 5.                                          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 6.                                          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 7.                                          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 8.                                          Counterparts


 


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


 


(Signature pages follow)


 

















 


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:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  
					



 

















 


	
   

  	
   

  	
  OGLETHORPE
  POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  
					



 

















 


	
  Acknowledged and consented to
  by:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UTRECHT-AMERICA FINANCE CO.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 














 


   EXHIBIT Z


to


Participation


Agreement


 


Form of
Amendment to the Facility Sublease Assignment Agreement


 


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 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.


 


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)


 

















 


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:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  
					



 

















 


	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  
					



 

















 


Acknowledged
and consented to by:


 


 


	
   

  	
   

  	
  UTRECHT-AMERICA FINANCE CO.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  My commission expires:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  	
   

  
					



 














 


EXHIBIT
AA


to


Participation


Agreement


 


Form of
Amendment to the Head Lease


 


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.”


 


(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.


 


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)


 

















 


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:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (CORPORATE SEAL)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attest:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  
					



 

















 


	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  
					



 

















 


Acknowledged
and consented to by:


 


 


	
   

  	
   

  	
  UTRECHT-AMERICA FINANCE CO.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed, sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary Seal]

  	
   

  	
   

  
					



 














EXHIBIT BB


to


Participation


Agreement


 


Form of Amendment to the Loan and Security Agreement


 


AMENDMENT NO. 1 TO LOAN
AND SECURITY AGREEMENT (P1)


 


THIS AMENDMENT NO. 1 TO LOAN AND SECURITY
AGREEMENT (P1) (this “Amendment”) is made as of May 22, 2009, by
and among (i) U.S. BANK NATIONAL
ASSOCIATION, a national banking
association organized under the laws of the United States, successor in
interest to Fleet National Bank, not in its individual capacity, but solely as
the Owner Trustee (the “Owner Trustee”) under the Trust Agreement, (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 (the “Co-Trustee”
and, collectively with the Owner Trustee, the “Trustees”), and (iii) UTRECHT-AMERICA FINANCE CO., a corporation organized under
the laws of the State of Delaware, as the lender (together with its successors
and permitted assigns, the “Lender”). 
Capitalized terms used but not defined herein shall have the meaning
ascribed to them in the Participation Agreement (P1), dated as of December 30,
1996, by and among Oglethorpe Power Corporation (An Electric Membership
Corporation), Rocky Mountain Leasing Corporation, Philip Morris Capital
Corporation, a corporation organized under the laws of the State of Delaware
(the “Owner Participant”), the Owner Trustee, the Co-Trustee and the
Lender, or in Appendix A thereto, as amended by Amendment No. 1 to the
Participation Agreement, dated as of June 1, 2003, and as further amended
by Amendment No. 2 to the Participation Agreement, dated as of the date
hereof (the “Participation Agreement”).


 


W I T N E S S E T H T H A T


 


WHEREAS, the Owner Trustee,
the Co-Trustee and the Lender are parties to that certain Loan and Security
Agreement (P1), dated as of December 30, 1996 (the “Loan and Security
Agreement”); and


 


WHEREAS, pursuant to Section 6.01
of the Loan and Security Agreement, the Owner Trustee, the Co-Trustee and the
Lender desire to amend the Loan and Security Agreement, as more fully described
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 Loan and Security Agreement


 


Appendix
A to the Loan and Security 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 replacing
the definition of “Excepted Payments”, in its entirety, with the following
language:


 


“Excepted Payments” shall mean and
include (i)(A) any indemnity (whether or not constituting Supplemental
Rent or Sublease Supplemental Rent and whether or not an Event of Default
exists) payable to either Trust Company, either Trustee or the Owner
Participant or to their respective Indemnitees or RMLC Indemnitees and
successors and permitted assigns (other than the Lender) pursuant to Section 2.3,
11.1, 11.2, 12.1 or 12.2 of the Participation Agreement, Section 7.01 of
the Trust Agreement, and any payments under the Tax Indemnity Agreement or (B) any
amount payable by the Facility Lessee or the Facility Sublessee to either
Trustee or the Owner Participant to reimburse any such Person for its costs and
expenses in exercising its rights under the Operative Documents, (ii)(A) insurance
proceeds, if any, payable to either Trustee or the Owner Participant under
insurance separately maintained by either Trustee or the Owner Participant with
respect to the Facility as permitted by Section 11 of the Facility Lease
or (B) proceeds of personal injury or property damage liability insurance
maintained under any Operative Document for the benefit of either Trustee or
the Owner Participant, (iii) any amount payable to the Owner Participant
as the purchase price of the Owner Participant’s right and interest in the
Beneficial Interest, (iv) the Equity Portion of Termination Value, the
Equity Portion of Basic Rent, the Equity Portion of the Sublease Basic Rent and
the Equity Portion of Purchase Option Price payable (A) by the Facility
Lessee under the Facility Lease to the extent of amounts payable under the
Qualifying Equity Funding Agreement (in each case, whether the foregoing
agreement was “qualifying” as of or after the Berkshire Surety Bond Date under
the definitions herein or not) or through assignment of the Surety Bonds or any
Qualifying Additional Security and/or (B) by the Head Lessor under the
Head Lease or the Facility Sublessee under the Facility Sublease, in each case,
to the extent of amounts payable under the Surety Bonds and any Qualifying
Additional Security (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), (v) any
payments or distributions to either Trustee or the Owner Participant attributable
to any Qualifying Equity Funding Agreement, Qualifying Additional Security, the
AMBAC Head Lease Surety Bond, the AMBAC Sublease Surety Bond, the AMBAC
Assignment Agreement, the Berkshire Head Lease Surety Bond, the Berkshire 


 

















 


Sublease
Surety Bond, the Berkshire Assignment Agreement, any Qualifying Surety Bond or
any Qualifying Letter of Credit (in each case, whether any of the foregoing
agreements, arrangements, security or letters of credit was “qualifying” as of
or after the Berkshire Surety Bond Date under the definitions herein or not), (vi) any
amounts payable to the Owner Participant upon exercise by it of the Special
Equity Facility Lease Remedy pursuant to Section 16.1 of the Participation
Agreement or the Special Equity Head Lease Remedy pursuant to Section 16.2
of the Participation Agreement and (vii) any payments in respect of
interest, or any payments made on an After-Tax Basis, to the extent
attributable to payments referred to in clause (i) through (vi) above
that constitute Excepted Payments.


 


(iii)                             by (A) adding
the phrase “the Consent, dated as of May 22, 2009, made by the Lender, the
Implementation Agreement, the Berkshire Head Lease Surety Bond, the Berkshire
Sublease Surety Bond, the Berkshire Assignment Agreement and the AMBAC Guaranty”
after the phrase “the Subordinated Deed to Secure Debt and Security Agreement”
in the fourteenth line of the definition of “Operative Documents”; and (B) by
adding at the end of such definition of “Operative Documents” the following
sentence:


 


“The
Agreement Regarding Surety Bonds and the Berkshire Guaranty Agreement shall
constitute Operative Documents if and only if Berkshire or a designee of
Berkshire shall, by subrogation, assignment, purchase or otherwise, acquire the
Owner Participant’s Beneficial Interest or the Berkshire Subrogation Interest
or the rights of the Owner Participant or the Head Lessee under the Operative
Documents and, at the time of such acquisition or at the time that Berkshire or
any designee of Berkshire shall be committed to make such acquisition or at any
time thereafter, either (A) an Event of Default or a Head Lessor Event of
Default shall exist or (B) Berkshire shall have received a demand for
payment under either of the Berkshire Surety Bonds.”


 


(iv)                            by adding the
following definitions thereto:


 


“Agreement Regarding
Surety Bonds” shall mean the Agreement Regarding Surety Bonds
(P1), dated as of the Berkshire Surety Bond Date, among Oglethorpe, RMLC and
Berkshire.


 


“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.


 


“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 Assignment
Agreement” shall mean the Berkshire Agreement for Assignment
on Default (P1), dated as of the Berkshire Surety Bond Date, among the Owner
Participant, the Co-Trustee, the Owner Trustee and Berkshire.


 


“Berkshire Guaranty
Agreement” shall mean the Berkshire Guaranty Agreement (P1),
dated as of the Berkshire Surety Bond Date, between Oglethorpe and Berkshire.


 


“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.


 


“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.


 


“Berkshire Subrogation
Interest” shall mean Berkshire’s right to be subrogated or to
an assignment, as provided in paragraphs 6 and 11(f) of each of the
Berkshire Surety Bonds, to the right, title and interest of the Head Lessee,
the Facility Lessor, the Ground Lessee, the Ground Sublessor and the Owner
Participant (as the case may be) in, to and under the Head Lease, the Facility
Lease, the Ground Lease, the Ground Sublease, the Rocky Mountain Agreements
Assignment and the Rocky Mountain Agreements Re-Assignment or relating to or
arising under the Operative Documents.


 


“Berkshire Surety Bonds” shall mean,
collectively, the Berkshire Head Lease Surety Bond and the Berkshire Sublease
Surety Bond.


 


“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.


 


“Surety Bonds” shall mean,
collectively, the AMBAC Head Lease Surety Bond, the AMBAC Sublease Surety Bond
and the Berkshire Surety Bonds (in each case, whether any of the foregoing
surety bonds was “qualifying” as of or after the Berkshire Surety Bond Date
under the definitions herein or not).


 


Section 2.                                          Amendments
to Loan Agreement


 


(a)                                Section 5.05(a) of the
Loan and Security Agreement is hereby amended by replacing clause (vi), in its
entirety, with the following language:


 


“(A) make the demand for the payment of
Termination Value referred to in Section 11.2(a) of the Head Lease, (B) make
the demand referred to in Section 17.1(e)(ii) of the Facility Lease
and exercise the remedy and apply the proceeds as set forth in Section 17.1(g) of
the Facility Lease, (C) take the actions referred to in 


 

















 


Sections
4.1(A)(i) and (ii) and Section 4.1(B) of the Facility
Sublease Assignment Agreement and (D) make the demand referred to in Section 17.1(e)(ii) of
the Facility Sublease and exercise the remedy and apply the proceeds as set
forth in Section 17.1(g) of the Facility Sublease;”


 


(b)                               Section 5.05(c) of the
Loan and Security Agreement is hereby replaced, in its entirety, with the
following language:


 


“at all times each of the Trustees, each of the
Trust Companies and the Owner Participant shall have the right, to the
exclusion of the Lender, to (i) exercise the rights set forth in the
Operative Documents necessary to recover Excepted Payments, including the right
to demand, collect, sue for or otherwise receive and enforce payment in respect
of any Excepted Payments due and payable to it and give and receive notices,
waivers, approvals or consents under the AMBAC Head Lease Surety Bond, AMBAC
Sublease Surety Bond, AMBAC Assignment Agreement, Berkshire Head Lease Surety
Bond, Berkshire Sublease Surety Bond, Berkshire Assignment Agreement, the AIG
Equity Funding Agreement, any Qualifying Additional Security, any Qualifying Equity
Funding Agreement, any Qualifying Surety Bonds or any Qualifying Letter of
Credit   (in each case, whether any of
the foregoing was “qualifying” as of or after the Berkshire Surety Bond Date
under the definitions herein or not) and to grant consents and waive rights
relating thereto (including, to the extent, if any, such parties have such
rights under Sections 8.5 through 8.8 of the Participation Agreement, Section 7(c) of
the Facility Sublease Assignment Agreement (other than with respect to the Sublease
Documents) and with respect to the ratings set forth in the definitions of
Qualifying Surety Bond Provider and Qualifying Letter of Credit Bank) and
otherwise relating to Excepted Payments, (ii) maintain separate insurance
with respect to the Undivided Interest and the Ground Interest pursuant to Section 11
of each of the Facility Lease and the Facility Sublease and (iii) perform
under Section 21 of each of the Facility Lease and the Facility Sublease.”


 


Section 3.                                          Effect
of Amendment


 


Except as herein amended, the Loan and Security
Agreement shall remain in full force and effect.  As amended hereby, the Loan and Security
Agreement is hereby ratified, approved and confirmed in all respects.  Upon the execution of this Amendment, the
Loan and Security Agreement will be modified in accordance with the terms
herewith and the Amendment will form a part of the Loan and Security Agreement
for all purposes.


 


Section 4.                                          Amendments
and Waivers


 


Any provision of this Amendment may be amended or
waived if, but only if, such Amendment is in writing and is signed by each
Trustee and the Lender.


 

















 


Section 5.                                          Severability


 


The
unenforceability or invalidity of any provision hereof shall not render any
other provision or provisions herein contained unenforceable or invalid.  Any provision found to be unenforceable shall
be severable from this Amendment.


 


Section 6.                                          Successors
and Assigns


 


All covenants and agreements contained herein will be
binding upon, and inure to the benefit of, each of the parties hereto and the
successors and assigns of each, all as provided in the Loan and Security
Agreement as amended hereby.


 


Section 7.                                          Governing
Law


 


THIS AMENDMENT SHALL IN ALL RESPECTS BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


Section 8.                                          Counterparts


 


This Amendment may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered will be
an original, but all such counterparts will together constitute but one and the
same instrument.  This Amendment shall be
effective on and as of the date first written above.


 


Section 9.                                          Liability
of the Trustees Limited


 


All and each of the representations, warranties,
undertakings and agreements made in the Loan and Security Agreement, as amended
hereby, on the part of each Trustee are made and intended not as personal
representations, warranties, undertakings and agreements by or for the purpose
or with the intention of binding such Trustee personally, but are made and
intended for the purpose of binding only the Trust, with all recourse being
limited to the Collateral.  This
Amendment is executed and delivered by each Trustee solely in the exercise of
the powers expressly conferred upon it under the Trust Agreement.  Except as otherwise specifically provided in
the Participation Agreement or any other Operative Document, no personal
liability or responsibility is assumed by either Trustee hereunder and no such
liability or responsibility shall at any time be imposed on either Trustee on
account of any representation, warranty, undertaking or agreement in the Loan
and Security Agreement, as amended hereby, of either Trustee either express or
implied, all such personal liability, if any, being expressly waived by the
Lender.  Under no circumstances shall
U.S. Bank National Association be liable in its individual capacity for any
representation, warranty, undertaking or agreement made by the Trustees in the
Loan and Security Agreement, as amended hereby.


 


(Signature pages follow)


 

















 


IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective officers thereunto duly
authorized as of the date first written above.


 


 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, not in its individual
  capacity, but solely as Owner Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  UTRECHT-AMERICA FINANCE CO.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 














EXHIBIT CC


to


Participation


Agreement


 


Form of Amendment to the Subordinated Deed to Secure Debt and
Security Agreement


 


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 386


Floyd
County, Georgia


 


AMENDMENT NO. 1 TO SUBORDINATED DEED 


TO SECURE DEBT AND SECURITY AGREEMENT (P1)


 


THIS AMENDMENT NO. 1 TO SUBORDINATED DEED TO
SECURE DEBT AND SECURITY AGREEMENT (P1) (this “Amendment”) is made as of May 22, 2009, by
and among (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”),
(ii) AMBAC ASSURANCE CORPORATION (formerly
known as AMBAC Indemnity Corporation), a Wisconsin-domiciled stock insurance
corporation (together with its successors and assigns, called “AMBAC”) and (iii) U.S. BANK NATIONAL ASSOCIATION, a national banking association organized under the laws of the United
States, as 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 “Facility Lessor”, and together with AMBAC, the “Beneficiaries”).  Capitalized terms used but not defined herein
shall have the meaning ascribed to them in the Subordinated Deed (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, Oglethorpe secured the payment,
performance and observance of certain of its obligations under the Operative
Documents and the AMBAC Guaranty to AMBAC and the Facility Lessor under the
Subordinated Deed to Secure Debt and Security Agreement (P1), dated 


 

















 


as of December 30,
1996 and filed for record on August 7, 1997 in Book 1409 Page 386 of
the Floyd County, Georgia land records (the “Subordinated Deed”); 


 


WHEREAS, the Secured Obligations are obligations such
as reimbursement and indemnification obligations and not indebtedness evidenced
by a note or for the payment of borrowed money and are therefore exempt from
the payment of intangible recording tax under the laws of the State of Georgia;


 


WHEREAS, pursuant to Section 8.5 and Section 8.6
of the Participation Agreement, Oglethorpe has caused Berkshire to deliver (a) to
the Head Lessee and the Owner Participant, the Surety Bond (Head Lease-P1) No. 98SRD102494
issued by Berkshire (as amended from time to time, the “Berkshire Head Lease
Surety Bond”), and (b) to the Facility Sublessor and the Facility
Lessor, Surety Bond (Facility Sublease-P1) No. 98SRD102495 issued by
Berkshire (as amended from time to time, the “Berkshire Sublease Surety Bond”
and, together with the Berkshire Head Lease Surety Bond, the “Berkshire
Surety Bonds”);


 


WHEREAS, pursuant to the Berkshire Guaranty Agreement,
dated as of May 22, 2009, Oglethorpe has agreed to reimburse Berkshire for
any payments made under the Berkshire Surety Bonds; and


 


WHEREAS, in connection with the issuance by Berkshire
of the Berkshire Surety Bonds, Oglethorpe has agreed to grant Berkshire a security
interest in the same collateral as the Beneficiaries, and Oglethorpe and the
Beneficiaries have agreed to amend the Subordinated Deed to make Berkshire a
secured party thereunder.


 


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 Subordinated Deed


 


Appendix
A to the Subordinated Deed 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:


 


“Berkshire”
shall mean Berkshire Hathaway Assurance Corporation.


 


“Berkshire
Guaranty Agreement” shall mean the Berkshire Guaranty Agreement
(P1), dated as of May 22, 2009, by and between Oglethorpe and Berkshire.


 

















 


“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.


 


“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.


 


“Berkshire Surety Bonds” shall mean,
collectively, the Berkshire Head Lease Surety Bond and the Berkshire Sublease
Surety Bond.


 


Section 2.                                        Other
Amendments to the Subordinated Deed


 


(a)                                The seventh “WHEREAS”
clause of the Subordinated Deed is hereby amended by replacing the words “Qualifying
Surety Bonds” with “Surety Bonds (as defined in the AMBAC Guaranty”.


 


(b)                               The
Subordinated Deed is hereby amended by adding the following “WHEREAS” clause
after the seventh “WHEREAS” clause thereof:


 


“WHEREAS, pursuant to the Berkshire Guaranty
Agreement, Oglethorpe has agreed to reimburse Berkshire for payments made under
the Berkshire Surety Bonds and to secure such reimbursement obligation by
providing a lien, security title and security interest identified in the fifth “WHEREAS”
above.”


 


(c)                                The opening
paragraph of the Granting Clause of the Subordinated Deed is hereby amended and
replaced in its entirety with the following paragraph:


 


“To secure all of the due
and punctual payment, performance and observance by Oglethorpe of all of (a) Oglethorpe’s
obligations to the Facility Lessor and the Owner Participant under the
Operative Documents, (b) Oglethorpe’s obligations to AMBAC under the AMBAC
Guaranty, and (c) Oglethorpe’s obligations to Berkshire under the
Berkshire Guaranty Agreement (items (a), (b) and (c) collectively
referred to hereinafter as the “Secured Obligations”; it being acknowledged and
agreed that the Secured Obligations are obligations such as reimbursement and
indemnification obligations and are not indebtedness evidenced by a note or for
the payment of borrowed money and are therefore exempt from the payment of
intangible recording tax under the laws of the State of Georgia), Oglethorpe
hereby grants, bargains, sells and conveys unto AMBAC, Berkshire and the
Facility Lessor (for itself and for the benefit of the Owner Participant)
(collectively, the “Subordinated Secured Parties”) all rights, title and
interests of Oglethorpe in, to and under, and grants to the Subordinated
Secured Parties a security interest in, each and all of the following described
property, rights and privileges (such property, rights and privileges being
hereinafter referred collectively, the “Subordinated Collateral”):”


 


(d)                               Section 2
of the Subordinated Deed is hereby amended and replaced in its entirety with
the following paragraph:


 

















 


“Any amounts received in respect of a sale of any of the Subordinated
Collateral after a Subordinated Deed to Secure Debt Event of Default (as
defined herein) shall have occurred and be continuing shall be applied or distributed
ratably among (i) Berkshire (or if (x) the Berkshire Surety Bonds
have been terminated and all amounts owing to Berkshire under the Berkshire
Guaranty Agreement have been indefeasibly paid in full, or (y) no amounts
are then owed to Berkshire under the Berkshire Guaranty Agreement, AMBAC), (ii) the
Owner Participant and (iii) the Facility Lessor, pari passu,
according to the Secured Obligations held by each.


 


Upon payment in full of the Secured Obligations, the balance, if any,
of such amounts remaining shall be distributed to Oglethorpe.”


 


(e)                                Section 3.1
of the Subordinated Deed is hereby amended and replaced in its entirety with
the following paragraph:


 


“The term “Subordinated
Deed to Secure Debt Event of Default,” wherever used herein, shall mean the
occurrence of a Head Lessor Event of Default or the failure of Oglethorpe to
promptly perform any of its obligations under this Subordinated Deed to Secure
Debt, the AMBAC Guaranty or the Berkshire Guaranty Agreement.”


 


(f)                                  Section 6.3
of the Subordinated Deed is hereby amended by adding the following contact
information:


 


“If to Berkshire:


 


Berkshire Hathaway
Assurance Corporation


c/o Berkshire
Hathaway Group


100 First Stamford
Place


Stamford, CT 06902


Attn:  General Counsel


Facsimile
No.:  (203) 363 5221


 

















 


with
copies to:


 


Berkshire Hathaway
Assurance Corporation


3024 Harney Street


Omaha, NE 68131


Attention:  President


Facsimile
No.:  (402) 916-3237


 


and


 


Robert E. Bennett


99 Mill Lane


Norwell, MA 02061


Facsimile
No.:  (781) 659-2491”


 


Section 3.                                        Reference
to Subordinated Deed


 


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


 


Section 4.                                        Successors
and Assigns


 


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.  Except as expressly
provided herein or in the other Operative Documents, no party hereto may assign
its interests herein without the consent of the other parties hereto.


 


Section 5.                                        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 6.                                        Severability


 


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


 


Section 7.                                        Counterparts


 


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


 

















 


Section 8.                                        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 the 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 Trust 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 the 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)


 

















 


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:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed,
  sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial
  Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary
  Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My
  commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary
  Seal]

  	
   

  	
   

  
					



 

















 


	
   

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed,
  sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial
  Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary
  Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My
  commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary
  Seal]

  	
   

  	
   

  
					



 

















 


	
   

  	
   

  	
  AMBAC ASSURANCE CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed,
  sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial
  Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary
  Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My
  commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary
  Seal]

  	
   

  	
   

  
					



 

















 


Acknowledged and consented to by:


 


	
   

  	
   

  	
  UTRECHT-AMERICA FINANCE CO.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed,
  sealed and delivered in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Unofficial
  Witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Notary
  Public

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  My
  commission expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Notary
  Seal]

  	
   

  	
   

  
					



 

















 


SCHEDULE TO EXHIBIT 10.1


 


AMENDMENT NO. 2 TO PARTICIPATION 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)