EXHIBIT 10.6


 


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.”


 


2

















 


(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 


 


3

















 


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, 


 


4

















 


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)


 


5

















 


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


 


 


	
   

  	
  ROCKY MOUNTAIN LEASING
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elizabeth B.
  Higgins

  
	
   

  	
   

  	
  Name:

  	
  Elizabeth B.
  Higgins

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signed,
  sealed and delivered in the presence of:

  	
   

  
	
   

  	
   

  
	
  /s/
  Thomas J. Brendiar

  	
   

  	
   

  
	
  Unofficial
  Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Sharon H. Wright

  	
   

  	
   

  
	
  Notary
  Public

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  My
  commission expires:

  	
  October 14,
  2011

  	
   

  
						



 


 


[Notary Seal]


 


6

















 


	
   

  	
  OGLETHORPE POWER
  CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas A.
  Smith

  
	
   

  	
   

  	
  Name:

  	
  Thomas A. Smith

  
	
   

  	
   

  	
  Title:

  	
  President and
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signed,
  sealed and delivered in the presence of:

  	
   

  
	
   

  	
   

  
	
  /s/
  Thomas J. Brendiar

  	
   

  	
   

  
	
  Unofficial
  Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Sharon H. Wright

  	
   

  	
   

  
	
  Notary
  Public

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  My
  commission expires:

  	
  October 14,
  2011

  	
   

  
						



 


 


[Notary Seal]


 


7

















 


Acknowledged and consented to by:


 


 


	
   

  	
  UTRECHT-AMERICA FINANCE
  CO.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brett Delfino

  
	
   

  	
   

  	
  Name:

  	
  Brett Delfino

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Margaret
  Schaubeck

  
	
   

  	
   

  	
  Name:

  	
  Margaret
  Schaubeck

  
	
   

  	
   

  	
  Title:

  	
  Assistant Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Signed,
  sealed and delivered in the presence of:

  	
   

  
	
   

  	
   

  
	
  /s/
  Geert C. Kortlandt

  	
   

  	
   

  
	
  Unofficial
  Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Shannon Smith

  	
   

  	
   

  
	
  Notary
  Public

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  My
  commission expires:

  	
  November
  5, 2011

  	
   

  
						



 


 


[Notary Seal]


 


8

















 


SCHEDULE TO EXHIBIT 10.6


 


AMENDMENT NO. 1 TO FACILITY SUBLEASE 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)