EXHIBIT 10.2
AMENDMENT TO GREENHOUSE LEASE AGREEMENT
THIS AMENDMENT TO GREENHOUSE LEASE AGREEMENT (this "Amendment"), dated as
of December 29, 1994, is between COLORADO POWER PARTNERS ("CPP"), a Colorado
general partnership and BRUSH GREENHOUSE PARTNERS ("BGP"), a Colorado general
partnership.
RECITALS
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A. CPP and BGP have previously entered into that certain Greenhouse Lease
Agreement dated as of June 8, 1989 (the "Greenhouse Lease").
B. Contemporaneously with this Amendment, BGP is entering into a
Greenhouse Operation and Management Agreement (the "O&M Agreement") with
Colorado Greenhouse Limited Liability Company ("Colorado Greenhouse"), a copy of
which agreement is attached hereto as Exhibit A. Pursuant to the O&M Agreement,
Colorado Greenhouse will manage the Premises and will make payments (including
Primary Fees and Contingent Fees) to BGP out of proceeds from the greenhouse
facility.
C. CPP and BGP desire to further amend the Greenhouse Lease in the manner
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
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1. All capitalized terms used herein but not otherwise defined shall have
the meanings given to such terms in the Greenhouse Lease or the O&M Agreement,
as appropriate. The definitions of terms incorporated from the O&M Agreement by
the preceding sentence may not be amended in the O&M Agreement without the prior
written consent of CPP.
2. Recital B is hereby deleted and Recital C is amended to be Recital B.
3. Paragraph 6 a. is hereby deleted and replaced in its entirety with the
following:
a: Rental Amount. All rents otherwise due prior to January 1, 1995
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have been restructured and satisfied. Beginning on or before April 30,
1995 and thereafter by the 30th day after the end of each calendar
quarter Tenant shall pay to Landlord as rent an amount equal to the
Primary Fee. As additional contingent rent, Tenant
shall pay to Landlord within ten business days of receipt thereof by
Tenant any other amount owed to Tenant pursuant to the O&M Agreement
including, without limitation, amounts paid with respect to a Primary
Fee Deficiency or the Primary Fee Deficiency Balance.
4. Paragraph 6 b. is hereby deleted in its entirety.
5. Paragraph 6 c. is hereby amended to read in its entirety as follows:
b. Payment of Rental. Tenant shall pay all rental when due and
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payable, without any setoff, counterclaim, abatement, deduction or
prior demand therefor whatsoever. In addition, any rental which is not
paid within ten days after the same is due shall bear interest at a
default rate equal to the rate of interest (the "Prime Rate") publicly
announced or published from time to time by Xxxxxx Guaranty Trust
Company of New York as its "prime rate" plus two percent per annum
from the first day due until paid. Unless otherwise directed in
writing by Landlord and consented to by Lender, payment of rent shall
be made to Colorado National Bank for deposit in the Revenue Account
(as such term is defined in the Amended and Restated Deposit and
Disbursement Agreement (the "Deposit and Disbursement Agreement")
among Landlord, Lender and Colorado National Bank. The payment of rent
and all other sums due hereunder is independent of each and every
other covenant and agreement contained in this Lease.
6. Paragraph 6 d. is hereby deleted and replaced in its entirety with the
following:
c. Limitation on Distributions. Subject to the exception provided in
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Paragraph 23.M Four. Tenant agrees that prior to making any
distributions of profits or other sums to the partners of Tenant
pursuant to Tenant's partnership agreement, Tenant shall have
deposited and there shall then be on deposit in an escrow account for
the benefit of Landlord an amount equal to 426,454.50. Such account
shall be maintained in the name of Colorado Power Partners/Brush
Greenhouse Partners at Colorado National Bank or such other financial
institution as may be designated by Landlord and reasonably acceptable
to Lender; and Tenant, Landlord and Colorado National Bank or such
other financial institution designated by Landlord and reasonably
acceptable to Lender, shall enter into
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an escrow agreement acceptable to Landlord and Lender providing that
in the event the Primary Fee payable with respect to any calendar
quarter is less than one-quarter of the Allocated Percentage of
$3,429,092 (such difference, if any, being known herein as the
"Deficiency"), Landlord shall be entitled to withdraw from such escrow
account by transferring from such account to the Revenue Account (as
defined in the Deposit and Disbursement Agreement) an amount equal to
the Deficiency.
7. Paragraph 6 e. is hereby amended by changing "6 e." to 6 d."
8. Paragraph 21 is hereby amended by replacing the addresses for CPP and
BGP with the following:
Colorado Power Partners
0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Brush Greenhouse Partners
0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
9. Except as amended or modified by this Amendment, the Greenhouse Lease
remains in full force and effect and is hereby ratified and confirmed in all
respects.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
COLORADO POWER PARTNERS
By: /s/ Xxxxxx X. Xxxxxxxxx
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__________________________________
Management Committee Member
BRUSH GREENHOUSE PARTNERS
By: /s/ Xxxxxx X. Xxxxxxxxx
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__________________________________
Management Committee Member
and
By: /s/ Xxxxxxx X. Xxxxxxx
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__________________________________
Management Committee Member
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