EXHIBIT 10.3
SECOND AMENDMENT
TO GREENHOUSE LEASE AGREEMENT
THIS SECOND AMENDMENT TO GREENHOUSE LEASE AGREEMENT (this "Amendment"),
dated as of December 29, 1995, 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, and that certain Amendment to Greenhouse
Lease Agreement dated as of December 29, 1994 (the "First Amendment") (as so
amended the "Greenhouse Lease").
B. Contemporaneously with this Amendment, CPP, The Prudential Insurance
Company of America ("Prudential") and Pruco Life Insurance Company ("Pruco") are
entering into that certain Second Amended and Restated Construction and Term
Loan Agreement and that certain Restructuring Agreement, both dated as of
December 29, 1995 (together the "Restructuring Documents").
C. Pursuant to the Restructuring Documents, CPP has agreed to make
certain changes in the Greenhouse Lease and Prudential and Pruco have agreed to
consent to such changes. To implement such changes, CPP and BGP desire to
further amend the Greenhouse Lease in the manner hereinafter set forth.
IN CONSIDERATION of the above Recitals and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
Agreement
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1. Paragraph 6.a is hereby amended by deleting the first sentence
thereof.
2. Paragraph 6.c is hereby amended by (i) inserting at the beginning of
the first sentence threof the following: "Subject to the exception provided in
Paragraph 23.m FOURTH," (ii) deleting in line 7 of the First Amendment, the
phrase "an amount equal to the Reserve Amount" and replacing it with
"$426,549.50"; and (iii) deleting in the 20th line the amount $2,740,000 and
replacing it with $3,429,092.
3. A new paragraph 6.e is hereby added as follows:
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e. Supplemental Rent Payments. Tenant agrees to pay to Landlord, in
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addition to the rents payable under paragraph 6.a hereof and any
other amounts payable to the Landlord hereunder, supplemental
rent payments (the "Supplemental Rent Payments") for each
calendar quarter in each of the years set forth below in the
amount set forth opposite such year:
Each Calendar Quarterly
Quarter in Supplemental Rent
Year Payment
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1996 $56,250
1997 $56,250
1998 $62,500
1999 $62,500
2000 $68,750
2001 $68,750
2002 $75,000
2003 $75,000
2004 $81,250
2005 $81,250
The Supplemental Rent Payment for each calendar quarter shall be
due and payable by the 30th day after the end of such calendar
quarter. Tenant shall pay all Supplemental Rent Payments when
due and payable, without any set-off, counterclaim, abatement,
deduction or prior demand therefor whatsoever. In addition, any
Supplemental Rent Payment that is not paid within six months
after the same is due shall bear interest at a rate equal to the
greater of 12.21% or the Prime Rate plus two percent per annum
from the date six months after such payment is due until paid.
All payments of Supplemental Rent shall be made as provided in
paragraph 6.b.
5. The Greenhouse Lease is further amended by adding a new paragraph 23 m
as follows:
m. Use of Rent and Other Proceeds. Tenant agrees for the benefit of
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the Landlord and any Lender that all monies received by Tenant
from any source whatsoever, including, without limitation, any
payments received by Tenant from Colorado Greenhouse LLC
("Colorado Greenhouse"), or any successor operator of the
Greenhouse, whether as Primary Fee, Contingent Fee, rent,
dividends or other distributions, reimbursement of loan proceeds
or otherwise shall be retained by Tenant until the next Rent
Payment Date (as hereinafter defined) and shall be applied by
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Tenant on the 30th day after the end of each calendar quarter
("Rent Payment Date") according to the following priority:
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FIRST, to the payment of any rent due under Paragraph 6.a
hereof ("Rent") on such Rent Payment Date, any unpaid Rent
due prior to such Rent Payment Date, any other amount
payable to Landlord hereunder on or prior to such Rent
Payment Date (other than Supplemental Rent Payments and
interest thereon), and any accrued and unpaid interest on
any of the foregoing;
SECOND, if, pursuant to Paragraph 6.c, any amount has been
withdrawn from the escrow account referred to in Paragraph
6.c (the "Escrow Account"), an amount equal to the aggregate
amount withdrawn from the Escrow Account, less the aggregate
amount theretofor transferred for deposit in the Escrow
Account pursuant to this clause SECOND, shall be paid to the
escrow agent under the escrow agreement referred to in
Paragraph 6.c (the "Escrow Agent") for deposit in the Escrow
Account;
THIRD, to the payment of all obligations of Tenant (other
than Supplemental Rent Payments and interest thereof) to any
person which is not an Affiliate (as defined in the
Restructuring Documents) of Tenant due on such Rent Payment
Date;
FOURTH, to the distribution to owners of partnership
interests in Tenant in an amount not to exceed 30% of (i)
the cash available to Tenant on such Rent Payment Date, less
(ii) the amounts applied on such Rent Payment Date pursuant
to clauses FIRST, SECOND and THIRD, above;
FIFTH, to the payment of Supplemental Rent Payments due on
such Rent Payment Date, any unpaid Supplemental Rent
Payments due prior to such Rent Payment Date and any accrued
and unpaid interest thereon;
SIXTH, to Escrow Agent, for deposit in the Escrow Account,
to the extent necessary to cause the amount in the Escrow
Account to equal $426,559.50; and
SEVENTH, subject to having made the deposit into the Escrow
Account as required by paragraph 6.c, the remainder may be
made to the owners of partnership interests in Tenant.
Notwithstanding the foregoing, upon the receipt by Tenant from
Colorado Greenhouse of the reimbursement of the $615,000 of prior advances made
by Tenant to Colorado Greenhouse, as contemplated by Section 3.4(c) of the O&M
Agreement, Tenant may distribute up to $615,000 from such reimbursement to the
owners of partnership interests in Tenant.
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6. Except as amended and 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 above written.
COLORADO POWER PARTNERS
By: CTI Partners I LLC, general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
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Manager
and
By: Xxxxxxx Partners, general partner
By: /s/ Xxxxxxxx X. Xxxxxx
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Management Committee Member
and
PEARL EAST POWER PARTNERS L.P.
By: CTI Partners I LLC, general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
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Manager
and
By: Xxxxxxx Partners, general partner
By: /s/ Xxxxxxxx X. Xxxxxx
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Management Committee Member
BRUSH GREENHOUSE PARTNERS
By: /s/ Xxxxxx X. Xxxxxxxxx
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Management Committee Member
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