EXHIBIT 10.28
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COLORADO GREENHOUSE, LLC LOAN SUPPLEMENT
BETWEEN
COLORADO SPRINGS PRODUCTION CREDIT ASSOCIATION
AND
COLORADO GREENHOUSE, INC.
DATED
AS OF
JANUARY 24, 1997
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COLORADO GREENHOUSE, LLC LOAN SUPPLEMENT
THIS SUPPLEMENT (the "LLC Loan Supplement") to the Master Loan Agreement
dated the 24th day of January, 1997 (the "Lender"), is entered into as of the
24th day of January, 1997, between COLORADO SPRINGS PRODUCTION CREDIT
ASSOCIATION ("Lender") and COLORADO GREENHOUSE, INC. ("CGI"].
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINITIONS. In addition to the definitions set out in the
MLA, which are incorporated herein to the extent there is no conflict with
terms defined herein, the capitalized terms set forth herein shall have the
following meanings:
LLC BORROWING BASE shall have the meaning provided in Section 2.1 of
Article 2 of this Supplement, and shown at Exhibit "A."
LLC COMMITMENT shall have the meaning provided in Section 2.1 of Article 2
of this Supplement.
LLC LOAN DOCUMENTS shall have the meaning provided in Section 5.1(c) of
Article 5 of this Supplement.
LLC LOAN SUPPLEMENT shall have the meaning provided in the preamble hereof.
MATURITY DATE shall have the meaning provided in Section 2.4 of Article 2
of this Supplement.
NOTIFICATION DATE shall have the meaning provided in Section 2 of Article 2
of this Supplement.
PRIME RATE shall mean, for any day, the rate defined as the "prime rate,"
as published from time to time in the Eastern Edition of The Wall Street
Journal as the average prime lending rate for seventy-five percent (75%) of
the United States' thirty (30) largest commercial banks, or if The Wall
Street Journal shall cease publishing the "prime rate" on a regular basis,
such other regularly published average prime rate application to such
commercial banks as is acceptable to Lender in its reasonable discretion.
PROMISSORY NOTE shall have the meaning provided in Section 2.4 of Article 2
of this Supplement, and shown at Exhibit "B."
ARTICLE 2
OPERATING COMMITMENT
SECTION 2.1 THE OPERATING LOAN. On the terms and conditions set forth in
the MLA and this Supplement, Lender agrees to make Advances to CGI to fund
Advances to LLC during the period set
forth below in any aggregate principal amount not to exceed, at any one time
outstanding, the lesser of the "LLC Borrowing Base" (as calculated pursuant to
the LLC Borrowing Base Report attached hereto as "LLC Borrowing Base Report") or
ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000) (the "LLC Commitment").
Within the limits of the LLC Commitment, CGI may borrow, repay and reborrow.
SECTION 2.2 PURPOSE. The purpose of the LLC Commitment is to provide
financing for the operating needs of LLC, and all Advances hereunder shall be
used only to make Advances to LLC under the LLC Loan Documents. Promptly upon
CGI's receipt of a request for Advance from LLC under the LLC Loan Documents,
CGI shall submit a request for Advance to Lender and Lender shall, under the
terms of this Supplement, fund the Advance to CGI, and CGI shall further fund
the Advance to LLC. Promptly upon receipt by CGI of any amount paid by LLC
under the Line of Credit, CGI shall, to the extent amounts are outstanding
hereunder, pay over such amounts to Lender.
SECTION 2.3 TERM. The term of the LLC Commitment shall be from January
24, 1997, up to and including December 31, 1997, or such later date as Lender
may, in its sole discretion, authorize in writing. Notwithstanding the
foregoing, the LLC Commitment shall be automatically extended for an additional
year unless on or before ninety (90) days prior to end of the term in any year
(the "Notification Date"), either party receives written notice from the other
to the contrary. If on or before the Notification Date, Lender grants a
short-term extension of the LLC Commitment, then the Notification Date shall be
extended for a like period, and in the event neither party receives written
notice from the other to the contrary on or before such extended Notification
Date (or any further extension so granted), then the LLC Commitment shall be
automatically extended for an additional year as provided above. All annual
extensions shall be measured from, and effective as of, the anniversary date of
the first day of the initial term of the LLC Commitment. Provided that there
shall be no amounts outstanding hereunder with respect to Advances, interest
thereon or other obligations hereunder, CGI may at any time, by written notice
to Lender, terminate this LLC Supplement and the LLC Commitment.
SECTION 2.4 PROMISSORY NOTE. CGI promises to repay the Advances on the
first Business Day following the last day of the term of the LLC Commitment (the
"Maturity Date"), all in accordance with the Promissory Note in the form
attached hereto as Exhibit "B." In addition to the above, CGI promises to pay
interest on the outstanding principal balance of the Advances on the first day
of each month during the term hereof, with the first such payment due on the
first day of the first month following the first Advance hereon, and in
accordance with the provisions set forth in Article 3 hereof.
ARTICLE 3
INTEREST
SECTION 3.1 INTEREST. Advances on the LLC Commitment shall bear interest
at the Prime Rate, minus twenty-five (25) basis points (.25%).
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ARTICLE 4
SECURITY
SECTION 4.1 LLC COLLATERAL. The Advances on the LLC Commitment shall be
secured by the property described in the MLA,the Security Agreement, the Pledge
Agreement of Holdings' interests in CGI, the Pledge Agreement of CG Member,
Inc.'s interests in LLC, and the Mortgages.
ARTICLE 5
ADDITIONAL CONDITIONS PRECEDENT
SECTION 5.1 INITIAL ADVANCE. Lender's obligation to make the initial
Advance hereunder is subject to satisfaction of each of the following additional
conditions precedent on or before the date of such Advance:
(A) CONSENTS AND SUBORDINATIONS OF LANDLORDS. That Lender receive
from each of the landlords of the greenhouses operated by LLC a Consent and
Subordination in the form of Exhibits "C" through "F" attached hereto, which
Consents and Subordinations shall have been assigned to Lender along with the
other LLC Loan Documents.
(B) WAIVER LETTERS OF POWER PLANT LENDERS. That CGI receive from the
lenders for the construction of the power plants of which the greenhouses are a
part a Waiver Letter in the form of Exhibits "G" through "I" attached hereto,
which Waiver Letters shall be for the benefit of Lender.
(C) ASSIGNMENT OF LLC LINE OF CREDIT. That Lender shall have had
assigned to it by CGI the Line of Credit to LLC, including without limitation
the loan agreement, promissory note, security agreements (including the
trademark security agreement), financing statements, and other assignments of
collateral and all other documents, instruments and the like contemplated by
such loan (collectively, the "LLC Loan Documents").
(D) LIEN POSITION. That the LLC Loan Documents demonstrate that CGI
is in a first lien position on all of the Collateral for the LLC Line of Credit.
(E) OPINION OF COUNSEL. That the Lender receive an opinion from
counsel to CGI that the security interest granted by CGI is a perfected security
interest in all of the Collateral for the LLC line of credit and that the
assignment of the LLC Line of Credit to Lender is valid and enforceable
according to its terms.
ARTICLE 6
REPORTS AND NOTICES
SECTION 6.1. BORROWING BASE REPORTS, ETC. CGI agrees to furnish a LLC
Borrowing Base Report to Lender at such times or intervals as Lender may from
time to time request. However, if
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no balance is outstanding hereunder on any day of such month, then no Report
need be furnished. Regardless of the frequency of the reporting, if at any time
the amount outstanding under the LLC Commitment exceeds the LLC Borrowing Base,
CGI shall immediately notify Lender and repay so much of the loans as is
necessary to reduce the amount outstanding under the LLC Commitment to the
limits of the LLC Borrowing Base.
SECTION 6.2 NOTICE OF DEFAULT. CGI shall copy Lender with any notice of
any LLC default immediately upon receipt of any notice of default from any
Person with respect to any contract, lease, agreement or the like to which LLC
is a party or to which any of its property or other rights is subject.
ARTICLE 7
ADDITIONAL EVENTS OF DEFAULT
SECTION 7.1 LLC DEFAULTS. If there shall be any Event of Default in any
of the LLC Loan Documents, including any defaults in any agreement under which
LLC's rights to occupy, operate and maintain any of the greenhouses it currently
operates may be terminated or otherwise jeopardized, which remains uncured for a
period of thirty (30) days, such event shall be an Event of Default of this
Supplement.
ARTICLE 8
RELEASE OF LLC COLLATERAL
SECTION 8.1 RELEASE OF COLLATERAL. At such time as all Advances and all
interest accruing thereon shall have been paid in full and there are no
obligations owing from CGI under the LLC Commitment, and the LLC Supplement
shall have been terminated, Lender shall release, (a) that certain Assignment of
Loan Documents, made as of this date by CGI in favor of Lender and the Security
Agreement (but only to the extent it grants a Lien on the agreements and
instruments assigned pursuant to the Assignment of Loan Documents), and (b) all
of its rights and interests in the property of LLC in which there has been
granted, directly or indirectly, a security interest or other Lien as security
for the obligations of CGI hereunder or LLC under the Line of Credit, from such
security interest or other Lien upon request for such release from LLC.
IN WITNESS WHEREOF, the parties have caused this Supplement to be executed
by their duly authorized officers as of the date shown above.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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OPERATING LOAN SUPPLEMENT
SIGNATURE PAGE
COLORADO SPRINGS PRODUCTION
CREDIT ASSOCIATION COLORADO GREENHOUSE, INC.
By: [SIGNATURE ILLEGIBLE] By: /s/ Xxxxxx Xxxxxxxxx
------------------------ ------------------------
Title: SR. V.P. - CREDIT Title: CEO
--------------------- ---------------------
5
Exhibit A
To
Line of Credit
BORROWING BASE REPORT FOR
COLORADO GREENHOUSE, LLC
For the month ended _________
AMOUNT FACTOR COLLATERAL VALUE
========== ====== ================
Accounts Receivable - produce sales 80%
(less than 60 days)
---------- ----------------
Accounts Receivable - other 60%
---------- ----------------
Inventory - produce 50%
---------- ----------------
Inventory - materials & supplies 75%
---------- ----------------
========== ================
Total
---------- ----------------
Less: claims & allowances 100%
---------- ----------------
Less: other payables 100%
---------- ----------------
Less: Operating loan balance 100%
---------- ----------------
================
Total available Borrowing Base:
----------------
I hereby certify the above information is true and correct as of the date
referenced.
_____________________________________ _______________
(Signature) (Date)
Page 1
EXHIBIT B
TO
COLORADO GREENHOUSE, LLC LOAN SUPPLEMENT
PROMISSORY NOTE
ONE MILLION FIVE HUNDRED THOUSAND DOLLARS January 24, 1997
$1,500,000.00 Loan No. 2406650
FOR VALUE RECEIVED, the undersigned, Colorado Greenhouse, Inc., a Delaware
corporation doing business in Colorado ("Maker"), hereby promises to pay to the
order of Colorado Springs Production Credit Association ("Lender"), a federally
chartered association of the Farm Credit System, ("Payee"), at its offices, on
the Maturity Date as defined in the LLC Supplement, in lawful money of the
United States of America, the principal amount of ONE MILLION FIVE HUNDRED
THOUSAND DOLLARS ($1,500,000.00) or so much thereof as may have been Advanced
and is outstanding hereunder, together with interest on the outstanding
principal balance from day to day remaining, at the rate provided in the LLC
Supplement. All accrued and unpaid interest shall be due and payable on the
first day of each month beginning on the first of the first month following the
first Advance hereon and on the Maturity Date. All unpaid principal balance of
the Advances on this Promissory Note shall be due and payable on the Maturity
Date. All past due principal shall bear interest at the Default Rate.
This Promissory Note has been given to Payee pursuant to the Master Loan
Agreement dated as of the 24th day of January, 1997, and the LLC Supplement
dated as of the 24th day of January, 1997, and all capitalized terms used herein
and not otherwise defined shall have the meaning provided therein. Maker may
borrow, repay and reborrow hereunder and under the terms of the LLC Supplement.
Upon the occurrence of any Event of Default, the holder hereof may, at its
option, declare the entire unpaid principal of and accrued interest on this
Promissory Note immediately due and payable without notice, demand or
presentment, all of which are hereby waived, and upon such declaration, the same
shall become and shall be immediately due and payable, and the holder hereof
shall have the right to foreclose or otherwise enforce all Liens or security
interests securing payment hereof, or any part hereof, and offset against this
Promissory Note any sum or sums owed by the holder hereof to Maker. Failure of
the holder hereof to exercise this option shall not constitute a waiver of the
right to exercise the same upon the occurrence of a subsequent Event of Default.
If the holder hereof expends any effort in any attempt to enforce payment
of all or any part of any sum due the holder hereunder, or if this Promissory
Note is placed in the hands of an attorney for collection, or if it is collected
through any legal proceedings, Maker agrees to pay all costs, expenses and
reasonable fees incurred by the holder, including reasonable attorney's fees.
This Promissory Note shall be governed by and construed accordance with the
Laws of the State of Colorado and the applicable Laws of the United States of
America.
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Maker and each surety, guarantor, endorser and other party ever liable for
payment of any sums of money payable on this Promissory Note jointly and
severally waive notice, presentment, demand for payment, protest, notice of
protest and non-payment or dishonor, notice of acceleration, notice of intent to
accelerate, notice of intent to demand, diligence in collecting, grace, and all
other formalities of any kind, and consent to all extensions without notice for
any period or periods of time and partial payments, before or after maturity,
and any impairment of any collateral securing this Promissory Note, all without
prejudice to the holder. The holder shall similarly have the right to deal in
any way, at any time, with one or more of the foregoing parties without notice
to any other party, and to grant any such party any extensions of time for
payment of any of said indebtedness, or to release or substitute any such party
or part or all of the collateral securing this Promissory Note, or to grant any
other indulgences or forbearances whatsoever, without notice to any other party
and without in any way affecting the personal liability of any party hereunder.
Maker hereby authorizes the holder hereof to record in its records all
Advances made to Maker hereunder, interest accruing thereon, and all payments
made on account of the principal hereof and interest accruing hereon, which
records shall be prima facie evidence as to the outstanding principal amount of
and accrued interest on this Promissory Note; provided, however, any failure by
the holder hereof to make any records shall not limit or otherwise affect the
obligations of Maker under the Agreement or this Promissory Note.
COLORADO GREENHOUSE, INC.
By:_____________________________________
Title:__________________________________
2
Exhibit C
to
Colorado Greenhouse, LLC Loan Supplement
CONSENT AND SUBORDINATION
This CONSENT AND SUBORDINATION (the "Agreement") dated as of January 24,
1997. is executed by Colorado Power Partners, a Colorado general partnership
("Landlord"), and Brush Greenhouse Partners, a Colorado general partnership
("Tenant") for the benefit of Colorado Springs Production Credit Association
("Farm Credit").
RECITALS:
--------
A. Landlord and Tenant have entered into that certain Cogeneration and
Greenhouse Lease Agreement dated as of June 8, 1989 (the "Greenhouse Lease")
pursuant to which Landlord has leased the Premises (as defined in the Greenhouse
Lease) to Tenant.
B. Landlord has executed that certain Construction and Term Loan Deed of
Trust Security Agreement and Assignment of Rents dated as of June 30, 1993, in
favor of The Prudential Insurance Company of America and Pruco Life Insurance
Company (collectively, the "Lenders") (as the same has been or may hereafter be
amended, the "Mortgage") pursuant to which Landlord has granted a lien to the
Lenders on, among other property, the Premises.
C. Tenant and Colorado Greenhouse LLC, a Colorado limited liability
company ("Colorado Greenhouse") have entered into that certain Greenhouse
Operation and Management Agreement dated as of December 29, 1994 (as the same
may be amended the "Management Agreement", and together with the Greenhouse
Lease and the Mortgage, herein the "Project Documents") pursuant to which
Colorado Greenhouse has agreed to operate and manage the Premises.
D. Farm Credit and Colorado Greenhouse, Inc. ("CGI"), an affiliate of
Colorado Greenhouse, have entered into that certain Master Loan Agreement dated
as of January 24, 1997 (as the same may be amended, the "MLA"). As allowed under
the MLA, CGI has entered into a Line of Credit Agreement (the "Line of Credit
Agreement") with Colorado Greenhouse, providing for a line of credit in the
aggregate principal amount of $1,500,000, pursuant to which CGI may make loans
to Colorado Greenhouse.
E. In order to secure the obligations arising in connection with the Line
of Credit Agreement (the "Obligations"), Colorado Greenhouse has entered into a
Security Agreement (as the same may be amended, the "Security Agreement") with
CGI dated as of January 24, 1997, pursuant to which Colorado Greenhouse granted
to CGI security interests (the "Security Interests") in all of its right, title
and interest in and to all crops now or hereafter planted, growing or stored on
the Leased Premises (as defined in the Greenhouse Lease, and any such crops,
herein, the "Crops"), all material and supplies utilized in the planting,
growing, harvesting and packaging of such Crops of the type described on Exhibit
A attached hereto, which are now (or may hereafter be) stored on the Leased
Premises (the "Supplies"), certain equipment described on Exhibit B attached
hereto, which is or may be located on the Leased Premises (the
"Equipment") and all other property owned by Colorado Greenhouse described
therein as the Collateral (such property herein referred to as the "CGI
Collateral").
F. In order to secure its obligations under the MLA, CGI has granted a
security interest (the "Chattel Security Interest") in favor of Farm Credit in
and to the Security Interests.
G. In order to induce (i) CGI to extend credit to Colorado Greenhouse and
(ii) Farm Credit to extend credit to CGI. Landlord and Tenant (together, the
"Project Parties") desire to enter into this Agreement for the benefit of Farm
Credit.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which have hereby been
acknowledged, the parties hereto agree as follows:
1. Landlord acknowledges having been informed of (i) Colorado Greenhouse's
execution and delivery of the Line of Credit Agreement and the Security
Agreement, and of the consummation of the transactions contemplated
thereby and (ii) CGI's execution and delivery of the MLA and the
granting of the Chattel Security Interest.
2. Tenant hereby consents to Colorado Greenhouse's execution and delivery
of the Line of Credit Agreement and the Security Agreement and to the
consummation of the transactions contemplated thereby and agrees that
such execution, delivery and consummation do not conflict with, result
in a breach of or constitute a default under any Project Documents to
which it is a party.
3. Each Project Party represents and warrants to Farm Credit with respect
to itself and the Project Documents to which it is a party that:
(a) No default, event of default or event that would permit the
termination of a Project Document exists under the Project
Documents to which it is a party;
(b) The Project Documents to which it is a party constitutes its
legal, valid and binding obligation enforceable against it in
accordance with their respective terms except as limited by
bankruptcy, insolvency or other laws of general application
relating to the enforcement of creditors rights; and
(c) None of the Project Documents to which it is a party has
terminated.
4. Each Project Party hereby subordinates, makes junior, second and
inferior to the Security Interests covering the CGI Collateral, any
security interests, liens, and other rights, titles and interests
(including without limitation, any security interest, lien or other
right covering the CGI Collateral created in any Project Documents)
which it now has or may hereafter acquire with respect to the CGI
Collateral
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(regardless of whether the CGI Collateral is now owned or hereafter acquired
by Colorado Greenhouse); provided, however, that this subordination shall
not affect, postpone or diminish in any way the priority of the Landlord's
reversionary interest in the "Facility" (as such term is defined under
Section 2.1 of the Greenhouse Lease) which has been leased and demised to
Tenant under the Greenhouse Lease, or to inhibit or impair in any way the
exercise by Landlord of any rights and remedies available to Landlord in the
event of a Default (defined in the Greenhouse Lease to be a breach extending
beyond any applicable grace or cure period) by Tenant under the Greenhouse
Lease.
5. Farm Credit through its authorized representatives or agents, may during
normal business hours and upon 24 hours advance notice enter upon the
Premises (as defined in the Greenhouse Lease) at any time and from time to
time for the purposes of inspecting and caring for the CGI Collateral and,
after the occurrence of an Event of Default under the Line of Credit
Agreement, for the purpose of removing or conducting a sale or sales of any
or all of the CGI Collateral. Farm Credit shall have no obligation or
liability to Colorado Greenhouse or any Project Party in connection with the
foregoing actions except, however, that Farm Credit shall promptly repair
any damage to the Premises (as defined in the Greenhouse Lease) caused by
such removal, sale or inspection and that Farm Credit shall be liable to a
Project Party that has been damaged as a result of the acts and omissions of
Farm Credit's employees or agents in connection with such removal, sale or
inspection.
6. The Project Parties shall permit Farm Credit immediate access to the
Facility at any time if Farm Credit notifies the Project Parties that such
immediate access is necessary to prevent the value of the crops from being
impaired given their perishable nature and the controlled conditions under
which they are grown, harvested and stored.
7. Farm Credit's right to enter and remain upon the Premises and to remove
therefrom the CGI Collateral as hereinbefore set forth shall terminate on
the date which is the later of:
(a) the date 60 days after the Lenders have (i) taken possession of the
Premises and (ii) provided Farm Credit written notice of such termination,
or
(b) the date 30 days after the completion of the harvest of all crops
which were planted on the Premises prior to the date Colorado Greenhouse's
right to possession of the Premises terminated.
8. Each Project Party agrees to give Farm Credit written notice prior to or
simultaneously with its exercise of any of its rights or remedies, or any
other parties' rights or remedies of which such Project Party has knowledge,
arising under any Project Documents as a result of a default, event of
default or other
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event that would entitle a party to terminate any Project Document. Any
notice or other communication required or permitted to be given under this
Agreement to Farm Credit must be in writing and delivered in person or
mailed by registered or certified mail, return receipt requested, postage
prepaid to Farm Credit at this following address:
0000 Xxxxxxx Xx. S.
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
or such other address as shall be set forth in a notice from the
appropriate party given in compliance with this paragraph. Any such notice
or other communication shall be deemed given when delivering in person, or,
if mailed, when duly deposited in the mails. Failure of a Project Party to
provide such notice to Farm Credit shall not constitute a breach of this
Agreement, and Farm Credit agrees that Project Parties shall have no
liability to Farm Credit for such failure; however, no claim of rescission
or termination of the Project Documents by the applicable Project Party
shall be binding upon Farm Credit without such notice.
9. Each Project Party acknowledges and agrees for the benefit of Farm Credit
that as between itself and Colorado Greenhouse, Colorado Greenhouse owns
all crops on the Premises planted by Colorado Greenhouse prior to the
termination of the Management Agreement and all crops harvested therefrom.
10. Each Project Party agrees that the making of any distributions by Colorado
Greenhouse to its members after the payment of all of its other obligations
then due (including, without limitation, all payments due under the
Management Agreement), regardless of the purposes for which such funds are
used by the members of Colorado Greenhouse (including the construction and
operation of any new greenhouses), shall not cause Colorado Greenhouse to
be in violation of Section 3.3(a) of the Management Agreement.
11. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. This Agreement shall be binding upon the
Project Parties and their successors and assigns and is executed for the
benefit of Farm Credit and its successors and assigns.
12. This Agreement shall continue in full force and effect so long as any
portion of the Obligations remain due and owing and CGI has any commitment
or obligation to Colorado Greenhouse under the Line of Credit Agreement.
13. This Agreement represents the entire agreement of the parties with respect
to the subject matter hereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
LANDLORD:
COLORADO POWER PARTNERS
By: XXXXXXX PARTNERS
/s/ Xxxxxxxx X. Xxxxxx
By:______________________________
Xxxxxxxx X. Xxxxxx
Management Committee Member
and
By: CTI PARTNERS I LLC
/s/ Xxxxxx X. Xxxxxxxxx
By:______________________________
Xxxxxx X. Xxxxxxxxx
TENANT:
BRUSH GREENHOUSE PARTNERS
/s/ Xxxxxx X. Xxxxxxxxx
By:__________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Management Committee Member
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EXHIBIT A
to
Consent and Subordination
Supplies
--------
Growing Media
Seed
Fertilizer
Greenhouse consumables - bobbins, clips, truss supports, white wash, etc.
Pesticides/ Insecticides/ Biological Controls/ Bees
Miscellaneous repair parts/ supplies
Packing Materials - boxes, xxxxx boards, panapack, film, labels, pallets,
stretch wrap, trays
A-1
EXHIBIT B
to
Consent and Subordination
Equipment
---------
Box machines
Forklifts
Pallet jacks
Carts
Sprayers
Graders
Conveyors
B-1
Exhibit D
to
Colorado Greenhouse, LLC Loan Supplement
CONSENT AND SUBORDINATION
This CONSENT AND SUBORDINATION (the "Agreement") dated as of January 24,
1997, is executed by Brush Cogeneration Partners, a Colorado general partnership
("Landlord"), and Brush Greenhouse Partners II, LLC, a Colorado limited
liability company ("Tenant"), for the benefit of Colorado Springs Production
Credit Association ("Farm Credit").
RECITALS:
--------
A. Landlord and Tenant have entered into that certain Amended and
Restated Cogeneration and Greenhouse Lease Agreement dated as of June 30, 1992
(as the same has been amended by Amendment to Amended and Restated Cogeneration
and Greenhouse Lease Agreement dated as of December 29, 1994, the "Greenhouse
Lease") pursuant to which Landlord has leased the Premises (as defined in the
Greenhouse Lease) to Tenant.
B. Landlord has executed that certain Construction and Term Loan Deed of
Trust, Security Agreement and Assignment of Rents dated as of June 30, 1992,
in favor of The Prudential Insurance Company of America and Credit Suisse
(collectively, the "Lenders") (as the same has been or may hereafter be amended,
the "Mortgage") pursuant to which Landlord has granted a lien to the Lenders
on, among other property, the Premises.
C. Tenant and Colorado Greenhouse LLC, a Colorado limited liability
company ("Colorado Greenhouse") have entered into that certain Greenhouse
Operation and Management Agreement dated as of December 29, 1994 (as the same
may be amended the "Management Agreement", and together with the Greenhouse
Lease and the Mortgage, herein the "Project Documents") pursuant to which
Colorado Greenhouse has agreed to operate and manage the Premises.
D. Farm Credit and Colorado Greenhouse, Inc. ("CGI"), an affiliate of
Colorado Greenhouse, have entered into that certain Master Loan Agreement dated
as of January 24, 1997 (as the same may be amended, the "MLA"). As allowed under
the MLA, CGI has entered into a Line of Credit Agreement (the "Line of Credit
Agreement") with Colorado Greenhouse, providing for a line of credit in the
aggregate principal amount of up to $1,500,000, pursuant to which CGI may make
loans to Colorado Greenhouse.
E. In order to secure the obligations arising in connection with the Line
of Credit Agreement (the "Obligations"), Colorado Greenhouse has entered into a
Security Agreement (as the same may be amended, the "Security Agreement") with
CGI dated as of January 24, 1997, pursuant to which Colorado Greenhouse granted
to CGI security interests (the "Security Interests") in all of its right, title
and interest in and to all crops now or hereafter planted, growing or stored on
the Premises (as defined in the Greenhouse Lease, and any such crops, herein,
the "Crops"), all material and supplies utilized in the planting, growing,
harvesting and packaging of such Crops of the type described on Exhibit A
attached hereto, which are now (or may hereafter be) stored on the Premises (the
"Supplies"), certain equipment described on
Exhibit B attached hereto, which is or may be located on the Premises (the
"Equipment") and all other property owned by Colorado Greenhouse described
therein as the Collateral (such property herein referred to as the "CGI
Collateral").
F. In order to secure its obligations under the MLA, CGI has granted a
security interest (the "Chattel Security Interest") in favor of Farm Credit in
and to the Security Interests.
G. In order to induce (i) CGI to extend credit to Colorado Greenhouse and
(ii) Farm Credit to extend credit to CGI, Landlord and Tenant (together, the
"Project Parties") desire to enter into this Agreement for the benefit of Farm
Credit.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which have hereby been
acknowledged, the parties hereto agree as follows:
1. Landlord acknowledges having been informed of (i) Colorado
Greenhouse's execution and delivery of the Line of Credit Agreement
and the Security Agreement, and of the consummation of the
transactions contemplated thereby and (ii) CGI's execution and
delivery of the MLA and the granting of the Chattel Security
Interest.
2. Tenant hereby consents to Colorado Greenhouse's execution and
delivery of the Line of Credit Agreement and the Security Agreement
and to the consummation of the transactions contemplated thereby and
agrees that such execution, delivery and consummation do not conflict
with, result in a breach of or constitute a default under any Project
Documents to which it is a party.
3. Each Project Party represents and warrants to Farm Credit with
respect to itself and the Project Documents to which it is a party
that:
(a) No default, event of default or event that would permit the
termination of a Project Document exists under the Project
Documents to which it is a party;
(b) The Project Documents to which it is a party constitutes its
legal, valid and binding obligation enforceable against it in
accordance with their respective terms except as limited by
bankruptcy, insolvency or other laws of general application
relating to the enforcement of creditors rights; and
(c) None of the Project Documents to which it is a party has
terminated.
4. Each Project Party hereby subordinates, makes junior, second and
inferior to the Security Interests covering the CGI Collateral, any
security interests, liens, and other rights, titles and interests
(including without limitation, any security interest, lien or other
right covering the CGI Collateral created in any Project Documents)
2
which it now has or may hereafter acquire with respect to the CGI
Collateral (regardless of whether the CGI Collateral is now owned or
hereafter acquired by Colorado Greenhouse); provided, however, that this
subordination shall not affect, postpone or diminish in any way the
priority of the Landlord's reversionary interest in the "Facility" (as such
term is defined under Section 2.1 of the Greenhouse Lease) which has been
leased and demised to Tenant under the Greenhouse Lease, or to inhibit or
impair in any way the exercise by Landlord of any rights and remedies
available to Landlord in the event of a Default (defined in the Greenhouse
Lease to be a breach extending beyond any applicable grace or cure period)
by Tenant under the Greenhouse Lease.
5. Farm Credit through its authorized representatives or agents, may during
normal business hours and upon 24 hours advance notice enter upon the
Premises (as defined in the Greenhouse Lease) at any time and from time to
time for the purposes of inspecting and caring for the CGI Collateral and,
after the occurrence of an Event of Default under the Line of Credit
Agreement, for the purpose of removing or conducting a sale or sales of any
or all of the CGI Collateral. Farm Credit shall have no obligation or
liability to Colorado Greenhouse or any Project Party in connection with
the foregoing actions except, however, that Farm Credit shall promptly
repair any damage to the Premises (as defined in the Greenhouse Lease)
caused by such removal, sale or inspection and that Farm Credit shall be
liable to a Project Party that has been damaged as a result of the acts and
omissions of Farm Credit's employees or agents in connection with such
removal, sale or inspection.
6. The Project Parties shall permit Farm Credit immediate access to the
Facility at any time if Farm Credit notifies the Project Parties that such
immediate access is necessary to prevent the value of the crops from being
impaired given their perishable nature and the controlled conditions under
which they are grown, harvested and stored.
7. Farm Credit's right to enter and remain upon the Premises and to remove
therefrom the CGI Collateral as hereinbefore set forth shall terminate on
the date which is the later of:
(a) the date 60 days after the Lenders have (i) taken possession of the
Premises and (ii) provided Farm Credit written notice of such termination,
or
(b) the date 30 days after the completion of the harvest of all crops which
were planted on the Premises prior to the date Colorado Greenhouse's right
to possession of the Premises terminated.
8. Each Project Party agrees to give Farm Credit written notice prior to or
simultaneously with its exercise of any of its rights or remedies, or any
other parties' rights or remedies of which such Project Party has
knowledge, arising
3
under any Project Documents as a result of a default, event of default or
other event that would entitle a party to terminate any Project Document.
Any notice or other communication required or permitted to be given under
this Agreement to Farm Credit must be in writing and delivered in person or
mailed by registered or certified mail, return receipt requested, postage
prepaid to Farm Credit at this following address:
0000 Xxxxxxx Xx. S.
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
or such other address as shall be set forth in a notice from the
appropriate party given in compliance with this paragraph. Any such notice
or other communication shall be deemed given when delivering in person, or,
if mailed, when duly deposited in the mails. Failure of a Project Party to
provide such notice to Farm Credit shall not constitute a breach of this
Agreement, and Farm Credit agrees that Project Parties shall have no
liability to Farm Credit for such failure; however, no claim of rescission
or termination of the Project Documents by the applicable Project Party
shall be binding upon Farm Credit without such notice.
9. Each Project Party acknowledges and agrees for the benefit of Farm Credit
that as between itself and Colorado Greenhouse, Colorado Greenhouse owns
all crops on the Premises planted by Colorado Greenhouse prior to the
termination of the Management Agreement and all crops harvested therefrom.
10. Each Project Party agrees that the making of any distributions by Colorado
Greenhouse to its members after the payment of all of its other obligations
then due (including, without limitation, all payments due under the
Management Agreement), regardless of the purposes for which such funds are
used by the members of Colorado Greenhouse (including the construction and
operation of any new greenhouses), shall not cause Colorado Greenhouse to
be in violation of Section 3.3(a) of the Management Agreement.
11. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. This Agreement shall be binding upon the
Project Parties and their successors and assigns and is executed for the
benefit of Farm Credit and its successors and assigns.
12. This Agreement shall continue in full force and effect so long as any
portion of the Obligations remain due and owing and CGI has any commitment
or obligation to Colorado Greenhouse under the Line of Credit Agreement.
13. This Agreement represents the entire agreement of the parties with respect
to the subject matter hereof.
4
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
LANDLORD:
BRUSH COGENERATION PARTNERS
By: NOAH I POWER PARTNERS, L.P., a general partner
By: NOAH I POWER GP,INC., its general partner
By: [SIGNATURE ILLEGIBLE]
---------------------------
Name: [NAME ILLEGIBLE]
-------------------------
Title: VICE PRESIDENT
------------------------
and
By: CTI PARTNERS II LLC, a general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxxx
Management Committee Member
TENANT:
BRUSH GREENHOUSE PARTNERS II, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxxx
Management Committee Member
5
EXHIBIT A
to
Consent and Subordination
Supplies
--------
Growing Media
Seed
Fertilizer
Greenhouse consumables - bobbins, clips, truss supports, white wash, etc.
Pesticides/ Insecticides/ Biological Controls/ Bees
Miscellaneous repair parts/ supplies
Packing Materials - boxes, corner boards, panapack, film, labels, pallets,
stretch wrap, trays
A-1
EXHIBIT B
to
Consent and Subordination
Equipment
---------
Box machines
Forklifts
Pallet jacks
Carts
Sprayers
Graders
Conveyors
B-1
Exhibit E
to
Colorado Greenhouse, LLC Loan Supplement
CONSENT AND SUBORDINATION
This CONSENT AND SUBORDINATION (the "Agreement") dated as of January 24,
1997 is executed by Thermo Cogeneration Partnership, L.P., a Colorado limited
partnership ("Landlord"), and Rocky Mountain Produce LLC, a Colorado limited
liability company ("Tenant"), for the benefit of Colorado Springs Production
Credit Association ("Farm Credit").
RECITALS:
--------
A. Landlord and Tenant have entered into that certain Thermal Supply Lease
Agreement dated as of March 22, 1993 (supplemented pursuant to the Supplemental
Agreement and Consent to Assignment dated April 7, 1993, among Landlord, Tenant
and The Prudential Insurance Company of America ("Prudential"), and as the same
has been amended by Amendment No. 1 to Thermal Supply Agreement dated as of
December 29, 1994, and by Amendment No. 2 to Thermal Supply Agreement dated as
of February 28, 1995, and by Amendment No. 3 to Thermal Supply Agreement dated
as of February 28, 1995 (as so supplemented and amended), the "Greenhouse
Lease") pursuant to which Landlord has leased the Premises (as defined in the
Greenhouse Lease) to Tenant.
B. Landlord has executed that certain Construction and Term Loan Deed of
Trust, Security Agreement and Assignment of Rents (as the same has been or may
hereafter be amended, the "Mortgage") dated as of April 7, 1993, in favor of
Prudential, The Fuji Bank, Limited and certain other lenders (collectively
"Lenders") pursuant to which Landlord has granted a lien to the Lenders on,
among other property, the Premises.
C. Tenant and Colorado Greenhouse LLC, a Colorado limited liability
company ("Colorado Greenhouse") have entered into that certain Greenhouse
Operation and Management Agreement dated as of December 29, 1994 (as the same
may be amended the "Management Agreement", and together with the Greenhouse
Lease and the Mortgage, herein the "Project Documents") pursuant to which
Colorado Greenhouse has agreed to operate and manage the Premises.
D. Farm Credit and Colorado Greenhouse, Inc. ("CGI"), an affiliate of
Colorado Greenhouse, have entered into that certain Master Loan Agreement dated
as of January 24, 1997 (as the same may be amended, the "MLA"). As allowed under
the MLA, CGI has entered into a Line of Credit Agreement (the "Line of Credit
Agreement") with Colorado Greenhouse, providing for a line of credit in the
aggregate principal amount of up to $1,500,000, pursuant to which CGI may make
loans to Colorado Greenhouse.
E. In order to secure the obligations arising in connection with the Line
of Credit Agreement (the "Obligations"), Colorado Greenhouse has entered into a
Security Agreement (as the same may be amended, the "Security Agreement") with
CGI dated as of January 24, 1997, pursuant to which Colorado Greenhouse granted
to CGI security interests (the "Security Interests") in all of its right, title
and interest in and to all crops now or hereafter planted,
growing or stored on the Premises (as defined in the Greenhouse Lease, and any
such crops herein, the "Crops"), all material and supplies utilized in the
planting, growing, harvesting and packaging of such Crops of the type described
on Exhibit A attached hereto, which are now (or may hereafter be) stored on the
Premises (the "Supplies"), certain equipment described on Exhibit B attached
hereto, which is or may be located on the Premises (the "Equipment") and all
other property owned by Colorado Greenhouse described therein as the Collateral
(such property herein referred to as the "CGI Collateral").
F. In order to secure its obligations under the MLA, CGI has granted a
security interest (the "Chattel Security Interest") in favor of Farm Credit in
and to the Security Interests.
G. In order to induce (i) CGI to extend credit to Colorado Greenhouse and
(ii) Farm Credit to extend credit to CGI, Landlord and Tenant (together, the
"Project Parties") desire to enter into this Agreement for the benefit of Farm
Credit.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which have hereby been
acknowledged, the parties hereto agree as follows:
1. Landlord acknowledges having been informed of (i) Colorado Greenhouse's
execution and delivery of the Line of Credit Agreement and the Security
Agreement, and of the consummation of the transactions contemplated
thereby and (ii) CGI's execution and delivery of the MLA and the
granting of the Chattel Security Interest.
2. Tenant hereby consents to Colorado Greenhouse's execution and delivery
of the Line of Credit Agreement and the Security Agreement and to the
consummation of the transactions contemplated thereby and agrees that
such execution, delivery and consummation do not conflict with, result
in a breach of or constitute a default under any Project Documents to
which it is a party.
3. Each Project Party represents and warrants to Farm Credit with respect
to itself and the Project Documents to which it is a party that:
(a) No default, event of default or event that would permit the
termination of a Project Document exists under the Project Documents to
which it is a party;
(b) The Project Documents to which it is a party constitutes its legal,
valid and binding obligation enforceable against it in accordance with
their respective terms except as limited by bankruptcy, insolvency or
other laws of general application relating to the enforcement of
creditors rights; and
(c) None of the Project Documents to which it is a party has
terminated.
2
4. Each Project Party hereby subordinates, makes junior, second and
inferior to the Security Interests covering the CGI Collateral, any
security interests, liens, and other rights, titles and interests
(including without limitation, any security interest, lien or other
right covering the CGI Collateral created in any Project Documents)
which it now has or may hereafter acquire with respect to the CGI
Collateral (regardless of whether the CGI Collateral is now owned or
hereafter acquired by Colorado Greenhouse); provided, however, that
this subordination shall not affect, postpone or diminish in any way
the priority of the Landlord's reversionary interest in the "Facility"
(as such term is defined under Section 2.1 of the Greenhouse Lease)
which has been leased and demised to Tenant under the Greenhouse Lease,
or to inhibit or impair in any way the exercise by Landlord of any
rights and remedies available to Landlord in the event of a Default
(defined in the Greenhouse Lease to be a breach extending beyond any
applicable grace or cure period) by Tenant under the Greenhouse Lease.
5. Farm Credit through its authorized representatives or agents, may
during normal business hours and upon 24 hours advance notice enter
upon the Premises (as defined in the Greenhouse Lease) at any time and
from time to time for the purposes of inspecting and caring for the CGI
Collateral and, after the occurrence of an Event of Default under the
Line of Credit Agreement, for the purpose of removing or conducting a
sale or sales of any or all of the CGI Collateral. Farm Credit shall
have no obligation or liability to Colorado Greenhouse or any Project
Party in connection with the foregoing actions except, however, that
Farm Credit shall promptly repair any damage to the Premises (as
defined in the Greenhouse Lease) caused by such removal, sale or
inspection and that Farm Credit shall be liable to a Project Party that
has been damaged as a result of the acts and omissions of Farm Credit's
employees or agents in connection with such removal, sale or
inspection.
6. The Project Parties shall permit Farm Credit immediate access to the
Facility at any time if Farm Credit notifies the Project Parties that
such immediate access is necessary to prevent the value of the crops
from being impaired given their perishable nature and the controlled
conditions under which they are grown, harvested and stored.
7. Farm Credit's right to enter and remain upon the Premises and to remove
therefrom the CGI Collateral as hereinbefore set forth shall terminate
on the date which is the later of:
(a) the date 60 days after the Lenders have (i) taken possession of
the Premises and (ii) provided Farm Credit written notice of such
termination, or
(b) the date 30 days after the completion of the harvest of all crops
which were planted on the Premises prior to the date Colorado
Greenhouse's right to possession of the Premises terminated.
3
8. Each Project Party agrees to give Farm Credit written notice prior to
or simultaneously with its exercise of any of its rights or remedies,
or any other parties' rights or remedies of which such Project Party
has knowledge, arising under any Project Documents as a result of a
default, event of default or other event that would entitle a party to
terminate any Project Document. Any notice or other communication
required or permitted to be given under this Agreement to Farm Credit
must be in writing and delivered in person or mailed by registered or
certified mail, return receipt requested, postage prepaid to Farm
Credit at this following address:
0000 Xxxxxxx Xx. S.
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
or such other address as shall be set forth in a notice from the
appropriate party given in compliance with this paragraph. Any such
notice or other communication shall be deemed given when delivering in
person, or, if mailed, when duly deposited in the mails. Failure of a
Project Party to provide such notice to Farm Credit shall not
constitute a breach of this Agreement, and Farm Credit agrees that
Project Parties shall have no liability to Farm Credit for such
failure; however, no claim of rescission or termination of the Project
Documents by the applicable Project Party shall be binding upon Farm
Credit without such notice.
9. Each Project Party acknowledges and agrees for the benefit of Farm
Credit that as between itself and Colorado Greenhouse, Colorado
Greenhouse owns all Crops on the Premises planted by Colorado
Greenhouse prior to the termination of the Management Agreement and all
crops harvested therefrom.
10. Each Project Party agrees that the making of any distributions by
Colorado Greenhouse to its members after the payment of all of its
other obligations then due (including, without limitation, all payments
due under the Management Agreement), regardless of the purposes for
which such funds are used by the members of Colorado Greenhouse
(including the construction and operation of any new greenhouses),
shall not cause Colorado Greenhouse to be in violation of Section
3.3(a) of the Management Agreement.
11. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. This Agreement shall be binding upon
the Project Parties and their successors and assigns and is executed
for the benefit of Farm Credit and its successors and assigns.
12. This Agreement shall continue in full force and effect so long as any
portion of the Obligations remain due and owing and CGI has any
commitment or obligation to Colorado Greenhouse under the Line of
Credit Agreement.
4
13. This Agreement represents the entire agreement of the parties with
respect to the subject matter hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
LANDLORD:
THERMO COGENERATION PARTNERSHIP, L.P.
By: Thermo Ft. Xxxxxx, X.X., General Partner
By: Thermo Ft. Xxxxxx I, Inc., General Partner
By: /s/ Xxxxx Xxxxxx, III
-------------------------------------------
Xxxxx Xxxxxx, III, President
By: CSW Ft. Xxxxxx, Inc., General Partner
By: /s/ signature illegible
-------------------------------------------
Name: illegible
-----------------------------------------
Title: illegible
----------------------------------------
TENANT:
ROCKY MOUNTAIN PRODUCE LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxxxx
Management Committee Member
5
EXHIBIT A
to
Consent and Subordination
Supplies
--------
Growing Media
Seed
Fertilizer
Greenhouse consumables - bobbins, clips, truss supports, white wash, etc.
Pesticides/ Insecticides/ Biological Controls/ Bees
Miscellaneous repair parts/ supplies
Packing Materials - boxes, corner boards, panapack, film, labels, pallets,
stretch wrap, trays
A-1
EXHIBIT B
to
Consent and Subordination
Equipment
---------
Box machines
Forklifts
Pallet jacks
Carts
Sprayers
Graders
Conveyors
B-1
Exhibit F
to
Colorado Greenhouse, LLC Loan Supplement
CONSENT AND SUBORDINATION
This CONSENT AND SUBORDINATION (this "Agreement") dated as of January 24,
1997, is executed by American Atlas #1, Ltd., a Colorado limited partnership
("Landlord"), and Wolf Creek Rifle Limited Liability Company, a Colorado limited
liability company ("Tenant"), for the benefit of Colorado Springs Production
Credit Association ("Farm Credit").
RECITALS:
---------
A. Landlord and Westinghouse Credit Corporation, a Delaware corporation
("Westinghouse") have entered into that certain Facility and Site Lease (the
"Site Lease") dated as of January 1, 1993, covering certain real property
located near Rifle, Colorado (the "Property") and the cogeneration facility
located thereon.
B. Landlord and Tenant have entered into that certain Greenhouse Lease
Agreement dated as of April 15, 1993, between Landlord and Tenant pursuant to
which Landlord has leased to Tenant the Premises (as defined in the Greenhouse
Lease) located on the Property.
C. Tenant and Colorado Greenhouse LLC, a Colorado limited liability
company ("Colorado Greenhouse"), have entered into that certain Greenhouse
Operation and Management Agreement dated as of July 31, 1996 (as the same may
be amended, the "Management Agreement", and together with the Site Lease and the
Greenhouse Lease, herein the "Project Documents") pursuant to which Colorado
Greenhouse has agreed to operate and manage the Premises.
D. Farm Credit and Colorado Greenhouse, Inc. ("CGI"), an affiliate of
Colorado Greenhouse, have entered into that certain Master Loan Agreement dated
as of January 24, 1997 (as the same may be amended, the "MLA"). As allowed
under the MLA, CGI has entered into a Line of Credit Agreement (the "Line of
Credit Agreement") with Colorado Greenhouse, providing for a line of credit in
the aggregate principal amount of $1,500,000, pursuant to which CGI may make
loans to Colorado Greenhouse.
E. In order to secure the obligations arising in connection with the Line
of Credit Agreement (the "Obligations"), Colorado Greenhouse has entered into a
Security Agreement (as the same may be amended, the "Security Agreement") with
CGI dated as of January 24, 1997, pursuant to which Colorado Greenhouse has
granted to CGI security interests (the "Security Interests") in all of its
right, title and interest in and to all crops now or hereafter planted, growing
or stored on the Premises (as defined in the Greenhouse Lease, and any such
crops, herein, the "Crops"), all material and supplies utilized in the planting,
growing, harvesting and packaging of such Crops of the type described on
Exhibit A attached hereto, which are now (or may hereafter be) stored on the
Premises, certain equipment described on Exhibit B attached hereto, which is
now, or may be hereafter, located on the Premises (expressly excluding, however,
those items of equipment owned by Landlord and Tenant and existing on the
Premises on or before January 1, 1996, as more particularly described on Exhibit
B-1 attached hereto), and
all other property owned by Colorado Greenhouse described therein as the
Collateral (such property herein referred to as the "CGI Collateral").
F. In order to secure its obligations under the MLA, CGI has granted a
security interest (the "Chattel Security Interest") in favor of Farm Credit in
and to the Security Interests.
G. In order to induce (i) CGI to extend credit to Colorado Greenhouse, and
(ii) Farm Credit to extend credit to CGI, Landlord and Tenant (together, the
"Project Parties") desire to enter into this Agreement for the benefit of Farm
Credit.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which have hereby been
acknowledged, the parties hereto agree as follows:
1. Landlord acknowledges having been informed of (i) Colorado Greenhouse's
execution and delivery of the Line of Credit Agreement and the Security
Agreement, and of the consummation of the transactions contemplated
thereby, and (ii) CGI's execution and delivery of the MLA and the
granting of the Chattel Security Interest.
2. Tenant hereby consents to Colorado Greenhouse's execution and delivery
of the Line of Credit Agreement and the Security Agreement and to the
consummation of the transactions contemplated thereby and agrees that
such execution, delivery and consummation do not conflict with, result
in a breach of or constitute a default under any Project Documents to
which it is a party.
3. Each Project Party represents and warrants to Farm Credit with respect
to itself and the Project Documents to which it is a party that:
(a) No default, event of default or event that would permit the
termination of a Project Document exists under the Project
Documents to which it is a party;
(b) The Project Documents to which it is a party constitutes its
legal, valid and binding obligation enforceable against it in
accordance with their respective terms except as limited by
bankruptcy, insolvency or other laws of general application
relating to the enforcement of creditors rights; and
(c) None of the Project Documents to which it is a party has
terminated.
4. Each Project Party hereby subordinates, makes junior, second and
inferior to the Security Interests covering the CGI Collateral, any
security interests, liens, and other rights, titles and interests
(including without limitation, any security interest, lien or other
right covering the CGI Collateral created in any Project Documents)
which it now has or may hereafter acquire with respect to the CGI
Collateral
2
(regardless of whether the CGI Collateral is now owned or hereafter
acquired by Colorado Greenhouse); provided, however, that this
subordination shall not inhibit or impair in any way the exercise by
Landlord of any rights and remedies available to Landlord if an event
of default has occurred under the Greenhouse Lease, except that
Landlord acknowledges that such exercise of its rights and remedies
does not include possession or removal of the CGI Collateral for so
long as Farm Credit has the right to enter and remain upon the Premises
and to remove therefrom the CGI Collateral as provided in Section 7 of
this Agreement.
5. Farm Credit, through its authorized representatives or agents, may,
during normal business hours and upon 24 hours advance notice, enter
upon the Premises (as defined in the Greenhouse Lease) at any time and
from time to time for the purposes of inspecting and caring for the
CGI Collateral and, after the occurrence of an Event of Default under
the Line of Credit Agreement, for the purpose of removing or conducting
a sale or sales of any or all of the CGI Collateral. Farm Credit shall
have no obligation or liability to Colorado Greenhouse or any Project
Party in connection with the foregoing actions except, however, that
Farm Credit shall promptly repair any damage to the Premises (as
defined in the Greenhouse Lease) caused by such removal, sale or
inspection and that Farm Credit shall be liable to a Project Party that
has been damaged as a result of the acts and omissions of Farm Credit's
employees or agents in connection with such removal, sale or
inspection.
6. The Project Parties shall permit Farm Credit immediate access to the
Property at any time if Farm Credit notifies the Project Parties that
such immediate access is necessary to prevent the value of the crops
from being impaired given their perishable nature and the controlled
conditions under which they are grown, harvested and stored.
7. Farm Credit's right to enter and remain upon the Premises and to remove
therefrom the CGI Collateral as hereinbefore set forth shall terminate
on the date which is the later of:
(a) the date 60 days after Westinghouse has (i) taken possession of
the Premises and (ii) provided Farm Credit written notice of such
termination, or
(b) the date 30 days after the completion of the harvest of all crops
which were planted on the Premises prior to the date Colorado
Greenhouse's right to possession of the Premises terminated.
8. Each Project Party agrees to give Farm Credit written notice prior to
or simultaneously with its exercise of any of its rights or remedies,
or any other parties' rights or remedies of which such Project Party
has knowledge, arising under any Project Documents as a result of a
default, event of default or other event that would entitle a party to
terminate any Project Document. Any notice or
3
other communication required or permitted to be given under this
Agreement to Farm Credit must be in writing and delivered in person or
mailed by registered or certified mail, return receipt requested,
postage prepaid to Farm Credit at this following address:
0000 Xxxxxxx Xx. S.
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
or such other address as shall be set forth in a notice from the
appropriate party given in compliance with this paragraph. Any such
notice or other communication shall be deemed given, when delivering in
person, or, if mailed, when duly deposited in the mails. Failure of a
Project Party to provide such notice to Farm Credit shall not
constitute a breach of this Agreement, and Farm Credit agrees that
Project Parties shall have no liability to Farm Credit for such
failure; however, no claim of rescission or termination of the Project
Documents by the applicable Project Party shall be binding upon Farm
Credit without such notice.
9. Each Project Party acknowledges and agrees for the benefit of Farm
Credit that as between itself and Colorado Greenhouse, Colorado
Greenhouse owns all crops on the Premises planted by Colorado
Greenhouse prior to the termination of the Management Agreement and all
crops harvested therefrom.
10. This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado. This Agreement shall be binding upon
the Project Parties and their successors and assigns and is executed
for the benefit of Farm Credit and its successors and assigns.
11. This Agreement shall continue in full force and effect so long as any
portion of the Obligations remain due and owing and CGI has any
commitment or obligation to Colorado Greenhouse under the Line of
Credit Agreement.
12. This Agreement represents the entire agreement of the parties with
respect to the subject matter hereof.
4
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
LANDLORD:
AMERICAN ATLAS #1, LTD., a Colorado limited
partnership
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman of General Partner
TENANT:
WOLF CREEK RIFLE LIMITED LIABILITY
COMPANY, a Colorado limited liability company
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Manager
5
EXHIBIT A
to
Consent and Subordination
Supplies
--------
Growing Media
Seed
Fertilizer
Greenhouse consumables - bobbins, clips, truss supports, white wash, etc.
Pesticides/ Insecticides/ Biological Controls/ Bees
Miscellaneous repair parts/ supplies
Packing Materials - boxes, corner boards, panapack, film, labels, pallets,
stretch wrap, trays
6
EXHIBIT B
to
Consent and Subordination
Equipment
---------
Box machines
Forklifts
Pallet jacks
Carts
Sprayers
Graders
Conveyors
7
Exhibit G
to
Colorado Greenhouse, LLC Loan Supplement
January 28, 0000
Xxxxxxxx Xxxxxxx Production Credit Association
0000 Xxxxxxx Xxxxx X.
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Re: Colorado Power Partners, Partners, Brush Greenhouse Partners and
Colorado Greenhouse LLC
Ladies and Gentlemen:
Reference is made to that certain Construction and Term Loan Deed of Trust,
Security Agreement and Assignment of Rents dated as of June 30, 1993 (as may be
amended, the "Deed of Trust") from Colorado Power Partners ("CPP") in favor of
the undersigned (collectively, the "Lenders"). The Deed of Trust was created
pursuant to the terms of the Construction and Term Loan Agreement among CPP and
the Lenders, which document provided for the advancement of funds from the
Lenders to CPP for the purposes of constructing a cogeneration facility, which
includes a commercial greenhouse facility, located in Brush, Colorado (the
"Facility").
It is our understanding that:
(a) CPP has leased the greenhouse component of the Facility to Brush
Greenhouse Partners ("BGP") pursuant to that certain Cogeneration and
Greenhouse Lease Agreement dated as of June 8, 1989 (the "Greenhouse
Lease");
(b) BGP has entered into a Greenhouse Operation and Management Agreement
("O&M Agreement") dated as of December 29, 1994 with Colorado
Greenhouse LLC ("Colorado Greenhouse"); and
(c) Colorado Greenhouse has entered into a Line of Credit Agreement
(providing for a line of credit in the aggregate principal amount of
up to $1,500,000) and a Security Agreement (together, the "Loan
Documents"), each dated as of January 24, 1997, with Colorado
Greenhouse, Inc. ("CGI"), which is an affiliate of Colorado
Greenhouse;
(d) CPP and BGP have executed that certain Consent and Subordination (the
"Consent") dated as of January 24, 1997, in favor of Colorado Springs
Colorado Springs Production Credit Association
January 28, 1997
Page 2
Production Credit Association ("Farm Credit"), a copy of which is
attached hereto as Exhibit H.
You have informed us that you are entering into a loan transaction (the
"Loan") with CGI evidenced by Master Loan Agreement (the "Master Loan
Agreement") dated as of January 24, 1997, which contemplates the execution of a
Security Agreement (the "Security Agreement") and an Assignment of Loan
Documents (the "Assignment"), copies of which is attached hereto as Exhibits C-1
and C-2, pursuant to which CGI will grant to Farm Credit a security interest in
the Loan Documents. You have also informed us that the Loan Documents, copies of
which are attached hereto as Exhibits D and E, will grant to CGI security
interests in all of Colorado Greenhouse's right, title and interest in and to
all crops now or hereafter planted, growing or stored on the Premises (as
defined in the Greenhouse Lease, and any such crops, herein the "Crops"), all
material and supplies utilized in the planting, growing, harvesting and
packaging of such Crops, of the type described on Exhibit A attached hereto,
which are now (or may hereafter be) stored on the Premises (the "Supplies"),
the equipment described on Exhibit B attached hereto, which is or may be located
on the Premises (the "Equipment") and all the other property owned by Colorado
Greenhouse described therein as the Collateral (such property herein referred to
as the "CGI Collateral").
We acknowledge for your benefit that Colorado Greenhouse has not granted
any liens or security interests to us or for our benefit, and we disclaim any
interest in any of the Crops, Supplies or Equipment.
We also agree for the benefit of Farm Credit that we will not claim any
crops which are now or may hereafter be planted on the Premises prior to the
termination of Colorado Greenhouse's right to possession of the Premises and any
crops now or hereafter stored on the Premises by Colorado Greenhouse as being
part of the Facility encumbered by the Deed of Trust.
As long as either CPP or BGP is entitled to possession of the Facility, the
undersigned Lenders agree not to interfere with any rights Farm Credit has under
the Consent.
Lenders agree that after they have or their authorized representative has
obtained possession of the Facility under the rights set forth in the Deed of
Trust or otherwise, Farm Credit may from time to time, through its authorized
representative, during normal business hours and with 24 hours written notice to
the Lenders at the address set forth herein, enter the Premises for the purposes
of caring for the Crops and removing the Crops, Supplies, Equipment and any
other property that is owned by Colorado
Colorado Springs Production Credit Association
January 28, 1997
Page 3
Greenhouse (as determined by reasonable and customary evidence thereof) which
constitutes CGI Collateral.
After the Lenders or their authorized representatives have obtained
possession of the Facility under the rights set forth in the Deed of Trust or
otherwise, the Lenders shall permit Farm Credit immediate access to the Facility
at anytime if Farm Credit notifies the Lenders that such immediate access is
necessary to prevent the value of the Crops from being impaired given their
perishable nature and the controlled conditions under which they are grown,
harvested and stored.
Farm Credit's right to enter and remain upon the Premises and to remove
therefrom the CGI Collateral as hereinbefore set forth shall terminate on the
date which is the later of:
(a) the date 60 days after the Lenders have (i) taken possession of the
Facility and (ii) provided Farm Credit written notice of such
termination; or
(b) the earlier of (i) the date 30 days after the completion of the
harvest of all Crops which were planted on the Premises prior to the
date Colorado Greenhouse's right to possession of the Premises
terminated or (ii) 10 months after the date Colorado Greenhouse's
right to possession of the Premises terminated.
Farm Credit agrees to promptly and at its own expense repair any damages to
the Facility caused by either it or its authorized representatives while on the
Facility. In furtherance of the foregoing, Farm Credit shall indemnify and hold
the Lenders and their respective affiliates, officers, directors and agents
harmless from any loss, liability or damage incurred or suffered by any such
persons or entity as a direct or proximate result of the acts or omissions of
Farm Credit or its authorized representatives while Farm Credit or its
authorized representatives are present at the Facility.
The Lenders acknowledge and accept that CPP and BGP have agreed that the
making of any distributions by Colorado Greenhouse to its members after the
payment of all of its other obligations then due (including, without limitation,
all payments due under the O&M Agreement), regardless of the purposes for which
such funds are used by the members of Colorado Greenhouse (including the
construction and operation of any new greenhouses), shall not cause Colorado
Greenhouse to be in violation of Section 3.3(a) of the O&M Agreement.
This consent shall terminate and be of no further force and effect in the
event that Farm Credit shall agree to any amendment to or waive, or accept any
waiver of, (a) the provisions of Section 2(D) of the Pledge Agreement, dated as
of January 24, 1997 (the
Colorado Springs Production Credit Association
January 28, 1997
Page 4
"Pledge Agreement"), made by CG Member, Inc., a Delaware corporation ("CG
Member") to Farm Credit, a copy of which is attached hereto as Exhibit F, or any
other provision of the Pledge Agreement if such amendment or waiver affects the
application or effect of the provisions of Section 2(D) thereof or (b) the
provisions of Section 2.2, 2.3 or 8.1 of the Colorado Greenhouse LLC Loan
Supplement, dated as of January 24, 1997 (the "LLC Loan Supplement"), between
Farm Credit and CGI, a copy of which is attached hereto as Exhibit G, or any
other provision of the LLC Loan Supplement is such amendment or waiver affects
the application or effect of the provisions of any such Section. This consent
shall also terminate upon the termination of the LLC Loan Supplement. Finally,
this consent is given based upon our understanding that the shares of CG Member
have not been and will not be pledged to Farm Credit.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ Xxx X. Xxxx
-------------------------------------
Name: Xxx X. Xxxx
-----------------------------------
Title: Vice President
----------------------------------
Address for Notices:
c/o Prudential Capital Group
Global Utility and Project Finance
Xxxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
PRUCO LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx Xxxx
-----------------------------------
Title: V.P.
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address for Notices:
c/o Prudential Capital Group
Global Utility and Project Finance
Xxxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Colorado Springs Production Credit Association
January 28, 1997
Page 5
Accepted and Agreed:
Colorado Springs Production Association
By: /s/ Xxxxxxx Xxxxx Address for Notices
---------------------------- 3625 Citadel Dr. S
Name: Xxxxxxx Xxxxx P.O. Box 9290
-------------------------- Xxxxxxxx Xxxxxxx, XX 00000-0000
Title: SR. V.P. - CREDIT
-------------------------
Colorado Greenhouse, Inc.
By: /s/ Xxxxxx Xxxxxxxxx Address for Notices
---------------------------- 6811 Weld County Road 31
Name: X.X. Xxx 000
-------------------------- Ft. Xxxxxx, XX 00000
Title:
-------------------------
EXHIBIT A
Supplies:
Growing Media
Seed
Fertilizer
Greenhouse consumables - bobbins, clips, truss supports, white wash, etc.
Pesticides/Insecticides/Biological Controls/Bees
Miscellaneous repair parts/supplies
Packing Materials - boxes, corner boards, panapack, film, labels, pallets,
stretch wrap, trays
A-1
EXHIBIT B
Equipment
Box Machines
Forklifts
Pallet Jacks
Carts
Sprayers
Graders
Conveyors
B-1
Exhibit H
to
Colorado Greenhouse, LLC Loan Supplement
January 28, 0000
Xxxxxxxx Xxxxxxx Production Credit Association
0000 Xxxxxxx Xxxxx X.
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Re: Brush Cogeneration Partners, Brush Greenhouse Partners II, LLC and
Colorado Greenhouse LLC
Ladies and Gentlemen:
Reference is made to that certain Construction and Term Loan Deed of
Trust, Security Agreement and Assignment of Rents dated as of June 30, 1992, as
amended (the "Deed of Trust") from Brush Cogeneration Partners ("BCP") in favor
of the undersigned (collectively, the "Lenders"). The Deed of Trust was created
pursuant to the terms of the Construction and Term Loan Agreement among BCP and
the Lenders, which document provided for the advancement of funds from the
Lenders to BCP for the purposes of constructing a cogeneration facility, which
includes a commercial greenhouse facility, located in Brush, Colorado (the
"Facility").
It is our understanding that:
(a) BCP has leased the greenhouse component of the Facility to Brush
Greenhouse Partners II, LLC ("BGP II") pursuant to that certain
Amended and Restated Cogeneration and Greenhouse Lease Agreement
dated as of June 1, 1992 (as amended, the "Greenhouse Lease");
(b) BGP II has entered into a Greenhouse Operation and Management
Agreement (the "O&M" Agreement") dated as of December 29, 1994 with
Colorado Greenhouse LLC ("Colorado Greenhouse");
(c) Colorado Greenhouse has entered into a Line of Credit Agreement
(providing for a line of credit in the aggregate principal amount
of up to $1,500,000) and a Security Agreement (together, the "Loan
Documents"), each dated as of January 24, 1997, with Colorado
Greenhouse, Inc. ("CGI"), which is an affiliate of Colorado
Greenhouse;
Colorado Springs Production Credit Association
January 28, 1997
Page 2
(d) BCP and BGP 11 have executed that certain Consent and Subordination
(the "Consent") dated as of January 24, 1997, in favor of Colorado
Springs Production Credit Association ("Farm Credit"), a copy of which
is attached hereto as Exhibit H.
You have informed us that you are entering into a loan transaction (the
"Loan") with CGI evidenced by Master Loan Agreement (the "Master Loan
Agreement") dated as of January 24, 1997, which contemplates the execution of a
Security Agreement (the "Security Agreement") and an Assignment of Loan
Documents (the "Assignment"), copies of which are attached hereto as Exhibits
C-1 and C-2, pursuant to which CGI will grant to Farm Credit a security interest
in the Loan Documents. You have also informed us that the Loan Documents, copies
of which are attached hereto as Exhibits D and E, will grant to CGI security
interests in all of Colorado Greenhouse's right, title and interest in and to
all crops now or hereafter planted, growing or stored on the Premises (as
defined in the Greenhouse Lease, and any such crops, herein the "Crops"), all
material and supplies utilized in the planting, growing, harvesting and
packaging of such Crops, of the type described on Exhibit A attached hereto,
which are now (or may hereafter be) stored on the Premises (the "Supplies"), the
equipment described on Exhibit B attached hereto, which is or may be located on
the Premises (the "Equipment") and all the other property owned by Colorado
Greenhouse described therein as the Collateral (such property herein referred to
as the "CGI Collateral").
We acknowledge for your benefit that Colorado Greenhouse has not granted
any liens or security interests to us or for our benefit, and we disclaim any
interest in any of the Crops, Supplies or Equipment.
We also agree for the benefit of Farm Credit that we will not claim any
crops which are now or may hereafter be planted on the Premises prior to the
termination of Colorado Greenhouse's right to possession of the Premises and any
crops now or hereafter stored on the Premises by Colorado Greenhouse as being
part of the Facility encumbered by the Deed of Trust.
As long as either BCP or BGP II is entitled to possession of the Facility,
the undersigned Lenders agree not to interfere with any rights Farm Credit has
under the Consent.
Lenders agree that after they have or their authorized representative has
obtained possession of the Facility under the rights set forth in the Deed of
Trust or otherwise, Farm Credit may from time to time, through its authorized
representative, during normal business hours and with 24 hours written notice to
the Lenders at the address set forth herein, enter the Premises for the purposes
of caring for the Crops and removing the
Colorado Springs Production Credit Association
January 28, 1997
Page 3
Crops, Supplies, Equipment and any other property that is owned by Colorado
Greenhouse (as determined by reasonable and customary evidence thereof) which
constitutes CGI Collateral.
After the Lenders or their authorized representatives have obtained
possession of the Facility under the rights set forth in the Deed of Trust or
otherwise, the Lenders shall permit Farm Credit immediate access to the Facility
at any time if Farm Credit notifies the Lenders that such immediate access is
necessary to prevent the value of the Crops from being impaired given their
perishable nature and the controlled conditions under which they are grown,
harvested and stored.
Farm Credit's right to enter and remain upon the Premises and to remove
therefrom the CGI Collateral as hereinbefore set forth shall terminate on the
date which is the later of:
(a) the date 60 days after the Lenders have (i) taken possession of the
Facility and (ii) provided Farm Credit and CGI written notice of such
termination; or
(b) the date 30 days after the completion of the harvest of all Crops
which were planted on the Premises prior to the date Colorado Greenhouse's right
to possession of the Premises terminated.
Farm Credit agrees to promptly and at its own expense repair any damages to
the Facility caused by either it or its authorized representatives while on the
Facility. In furtherance of the foregoing, Farm Credit shall indemnify and hold
the Lenders and their respective affiliates, officers, directors and agents
harmless from any loss, liability or damage incurred or suffered by any such
persons or entity as a direct or proximate result of the acts or omissions of
Farm Credit or its authorized representatives while Farm Credit or its
authorized representatives are present at the Facility.
The Lenders acknowledge and accept that BCP and BGP II have agreed that the
making of any distributions by Colorado Greenhouse to its members after the
payment of all of its other obligations then due (including, without limitation,
all payments due under the O&M Agreement), regardless of the purposes for which
such funds are used by the members of Colorado Greenhouse (including the
construction and operation of any new greenhouses), shall not cause Colorado
Greenhouse to be in violation of Section 3.3(a) of the O&M Agreement.
This consent shall terminate and be of no further force and effect in the
event that Farm Credit shall agree to any amendment to or waive, or accept any
waiver of, (a) the
Colorado Springs Production Credit Association
January 28, 1997
Page 4
provisions of Section 2(D) of the Pledge Agreement, dated as of January 24, 1997
(the "Pledge Agreement"), made by CG Member, Inc., a Delaware corporation ("CG
Member") to Farm Credit, a copy of which is attached hereto as Exhibit F, or any
other provision of the Pledge Agreement if such amendment or waiver affects the
application or effect of the provisions of Section 2(D) thereof or (b) the
provisions of Section 2.2, 2.3 or 8.1 of the Colorado Greenhouse LLC Loan
Supplement, dated as of January 24, 1997 (the "LLC Loan Supplement"), between
Farm Credit and CGI, a copy of which is attached hereto as Exhibit G, or any
other provision of the LLC Loan Supplement if such amendment or waiver affects
the application or effect of the provisions of any such Section. This consent
shall also terminate upon the termination of the LLC Loan Supplement. Finally,
this consent is given based upon our understanding that the shares of CG Member
have not been and will not be pledged to Farm Credit.
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ Xxxxxx X. Lemanswicz
-------------------------------------
Name: Xxxxxx X. Lemanswicz
-----------------------------------
Title: Vice President
----------------------------------
Address for Notices:
c/o Prudential Capital Group
Global Utility and Project Finance
Xxxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Colorado Springs Production Credit Association
January 28, 1997
Page 5
CREDIT SUISSE FIRST BOSTON
By: /s/ SIGNATURE ILLEGIBLE
--------------------------------------
Name: NAME ILLEGIBLE
------------------------------------
Title: Associate
-----------------------------------
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
------------------------------------
Title: Associate
-----------------------------------
Address for Notices:
Global Project Finance Group
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Accepted and Agreed:
Colorado Springs Production Credit Association
By: _________________________ Addresses for Notices:
Name: _______________________ 3625 Citadel Dr. S
Title: ______________________ X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, XX 00000-0000
Colorado Greenhouse, Inc.
By: _________________________ Address for Notices:
Name: _______________________ 6811 Weld County Road 31
Title: ______________________ X.X. Xxx 000
Xx. Xxxxxx, XX 00000
Colorado Springs Production Credit Association
January 28, 1997
Page 5
CREDIT SUISSE FIRST BOSTON
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address for Notices:
Global Project Finance Group
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Accepted and Agreed:
Colorado Springs Production Credit Association
By: /s/ Xxxxxxx Xxxxx Addresses for Notices:
------------------------- 3625 Citadel Dr. S
Name: Xxxxxxx Xxxxx P.O. Box 9290
----------------------- Xxxxxxxx Xxxxxxx, XX 00000-0000
Title: Sr. V.P.-Credit
----------------------
Colorado Greenhouse, Inc.
By: _________________________ Address for Notices:
Name: _______________________ 6811 Weld County Road 31
Title: ______________________ X.X. Xxx 000
Xx. Xxxxxx, XX 00000
EXHIBIT A
Supplies:
Growing Media
Seed
Fertilizer
Greenhouse consumables - bobbins, clips, truss supports, white wash, etc.
Pesticides/Insecticides/Biological Controls/Bees
Miscellaneous repair parts/supplies
Packing Materials - boxes, corner boards, panapack, film, labels, pallets,
stretch wrap, trays
A-1
EXHIBIT B
Equipment
Box Machines
Forklifts
Pallet Jacks
Carts
Sprayers
Graders
Conveyors
B-1
Exhibit I
to
Colorado Greenhouse, LLC Loan Supplement
January 28, 0000
Xxxxxxxx Xxxxxxx Production Credit Association
0000 Xxxxxxx Xxxxx X.
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
Re: Thermo Cogeneration Partnership, L.P., Rocky Mountain Produce LLC and
Colorado Greenhouse LLC
Ladies and Gentlemen:
Reference is made to that certain Construction and Term Loan Deed of Trust,
Security Agreement and Assignment of Rents dated as of April 7, 1993, as
amended (the "Deed of Trust") from Thermo Cogeneration Partnership, L.P.
("Thermo") in favor of the undersigned (collectively, the "Lenders"). The Deed
of Trust was created pursuant to the terms of the Construction and Term Loan
Agreement among Thermo and the Lenders, which document provided for the
advancement of funds from the Lenders to Thermo for the purposes of
constructing a cogeneration facility, which includes a commercial greenhouse
facility, located in Fort Xxxxxx, Colorado (the "Facility").
It is our understanding that:
(a) Thermo has leased the greenhouse component of the Facility to Rocky
Mountain Produce LLC ("RMP") pursuant to that certain Thermal Supply
Lease Agreement dated as of March 22, 1993 (as amended, the
"Greenhouse Lease");
(b) RMP has entered into a Greenhouse Operation and Management Agreement
("O&M Agreement") dated as of December 29, 1994 with Colorado
Greenhouse LLC ("Colorado Greenhouse");
(c) Colorado Greenhouse has entered into a Line of Credit Agreement
(providing for a line of credit in the aggregate principal amount of
up to $1,500,000) and a Security Agreement (together, the "Loan
Documents"), each dated as of January 24, 1997, with Colorado
Greenhouse, Inc. ("CGI"), which is an affiliate of Colorado
Greenhouse;
Colorado Springs Production Credit Association
January 28, 1997
Page 2
(d) Thermo and RMP have executed that certain Consent and Subordination
(the "Consent") dated as of January 24, 1997, in favor of Colorado
Springs Production Credit Association ("Farm Credit"), a copy of which
is attached hereto as Exhibit H.
You have informed us that you are entering into a loan transaction (the
"Loan") with CGI evidenced by Master Loan Agreement (the "Master Loan
Agreement") dated as of January 24, 1997, which contemplates the execution of a
Security Agreement (the "Security Agreement") and an Assignment of Loan
Documents (the "Assignment"), copies of which are attached hereto as Exhibits C-
1 and C-2, pursuant to which CGI will grant to Farm Credit a security interest
in the Loan Documents. You have also informed us that the Loan Documents, copies
of which are attached hereto as Exhibits D and E, will grant to CGI security
interests in all of Colorado Greenhouse's right, title and interest in and to
all crops now or hereafter planted, growing or stored on the Premises (as
defined in the Greenhouse Lease, and any such crops, herein the "Crops"), all
material and supplies utilized in the planting, growing, harvesting and
packaging of such Crops, of the type described on Exhibit A attached hereto,
which are now (or may hereafter be) stored on the Premises (the "Supplies"), the
equipment described on Exhibit B attached hereto, which is or may be located on
the Premises (the "Equipment") and all the other property owned by Colorado
Greenhouse described therein as the Collateral (such property herein referred
to as the "CGI Collateral").
We acknowledge for your benefit that Colorado Greenhouse has not granted
any liens or security interests to us or for our benefit, and we disclaim any
interest in any of the Crops, Supplies or Equipment.
We also agree for the benefit of Farm Credit that we will not claim any
crops which are now or may hereafter be planted on the Premises prior to the
termination of Colorado Greenhouse's right to possession of the Premises and any
crops now or hereafter stored on the Premises by Colorado Greenhouse as being
part of the Facility encumbered by the Deed of Trust.
As long as either Thermo or RMP is entitled to possession of the Facility,
the undersigned Lenders agree not to interfere with any rights Farm Credit has
under the Consent.
Lenders agree that after they have or their authorized representative has
obtained possession of the Facility under the rights set forth in the Deed of
Trust or otherwise, Farm Credit may from time to time, through its authorized
representative, during normal business hours and with 24 hours written notice to
the Lenders at the address set forth herein, enter the Premises for the
purposes of caring for the Crops and removing the
Colorado Springs Production Credit Association
January 28, 1997
Page 3
Crops, Supplies, Equipment and any other property that is owned by Colorado
Greenhouse (as determined by reasonable and customary evidence thereof) which
constitutes CGI Collateral.
After the Lenders or their authorized representatives have obtained
possession of the Facility under the rights set forth in the Deed of Trust or
otherwise, the Lenders shall permit Farm Credit immediate access to the Facility
at any time if Farm Credit notifies the Lenders that such immediate access is
necessary to prevent the value of the Crops from being impaired given their
perishable nature and the controlled conditions under which they are grown,
harvested and stored.
Farm Credits right to enter and remain upon the Premises and to remove
therefrom the CGI Collateral as hereinbefore set forth shall terminate on the
date which is the later of:
(a) the date 60 days after the Lenders have (i) taken possession of the
Facility and (ii) provided Farm Credit written notice of such
termination; or
(b) the earlier of (i) the date 30 days after the completion of the
harvest of all Crops which were planted on the Premises prior to the
date Colorado Greenhouse's right to possession of the Premises
terminated or (ii) 10 months after the date Colorado Greenhouse's
right to possession of the Premises terminated.
Farm Credit agrees to promptly and at its own expense repair any damages
to the Facility caused by either it or its authorized representatives while on
the Facility. In furtherance of the foregoing, Farm Credit shall indemnify and
hold the Lenders and their respective affiliates, officers, directors and agents
harmless from any loss, liability or damage incurred or suffered by any such
persons or entity as a direct or proximate result of the acts or omissions of
Farm Credit or its authorized representatives while Farm Credit or its
authorized representatives are present at the Facility.
The Lenders acknowledge and accept that Thermo and RMP have agreed that the
making of any distributions by Colorado Greenhouse to its members after the
payment of all of its other obligations then due (including, without limitation,
all payments due under the O&M Agreement), regardless of the purposes for which
such funds are used by the members of Colorado Greenhouse (including the
construction and operation of any new greenhouses), shall not cause Colorado
Greenhouse to be in violation of Section 3.3(a) of the O&M Agreement.
Colorado Springs Production Credit Association
January 28, 1997
Page 4
We understand that it is the intention of CGI that certain of the proceeds
of the loans to be made by Farm Credit to CGI under the Master Loan Agreement
are to be utilized to pay the costs of constructing a new greenhouse facility
(the "New Greenhouse") at the premises of Thermo's cogeneration facility. We
further understand that in connection with the construction of the New
Greenhouse, Thermo may request that the Lenders consent to certain actions
proposed to be taken by Thermo (or its affiliates) including, without
limitation, the grant to CGI of certain easements, the sale of certain premises
to CGI, the sale of natural gas by Thermo to CGI, and the provision or sharing
of certain water and wastewater, disposal rights to or with CGI. Please be
advised that by executing and delivering this consent to you, the Lenders are
not in any way undertaking to you or to CGI or Colorado Greenhouse to consent to
or consider any such actions and that the Lenders are granting this consent
based upon the mutual understanding of the Lenders, Farm Credit, CGI or Colorado
Greenhouse that the Lenders have no obligations whatsoever to Farm Credit, CGI
or Colorado Greenhouse to consent to or consider any such actions by Thermo.
This consent shall terminate and be of no further force and effect in the
event that Farm Credit shall agree to any amendment to or waive, or accept any
waiver of, (a) the provisions of Section 2(D) of the Pledge Agreement, dated as
of January 24, 1997 (the "Pledge Agreement"), made by CG Member, Inc., a
Delaware corporation ("CG Member") to Farm Credit, a copy of which is attached
hereto as Exhibit F, or any other provision of the Pledge Agreement if such
amendment or waiver affects the application or effect of the provisions of
Section 2(D) thereof or (b) the provisions of Section 2.2, 2.3 or 8.1 of the
Colorado Greenhouse LLC Loan Supplement, dated as of January 24, 1997 (the "LLC
Loan Supplement"), between Farm Credit and CGI, a copy of which is attached
hereto as Exhibit G, or any other provision of the LLC Loan Supplement if such
amendment or waiver affects the application or effect of the provisions of any
such Section. This consent shall also terminate upon the termination of the LLC
Loan Supplement. Finally, this consent is given based upon our understanding
that the shares of CG Member have not been and will not be pledged to Farm
Credit.
Colorado Springs Production Credit Association
January 28, 1997
Page 5
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ SIGNATURE ILLEGIBLE
----------------------------------
Name: NAME ILLEGIBLE
--------------------------------
Title: Vice President
-------------------------------
Address for Notices:
c/o Prudential Capital Group
Global Utility and Project Finance
Xxxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
THE FUJI BANK LIMITED
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address for Notices:
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
CREDIT LOCAL DE FRANCE
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address for Notices:
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Colorado Springs Production Credit Association
January 28, 1997
Page 6
CREDIT LYONNAIS
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address for Notices:
Credit Lyonnais Building
1301 Avenue of the Americas
New York, New York 10018
MELLON BANK, N.A.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address for Notices:
One Mellon Bank Center
000 Xxxxx Xxxxxx, Xxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-000
THE SANWA BANK, LIMITED
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address for Notices:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Colorado Springs Production Credit Association
January 28, 1997
Page 7
CAMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENE
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Address for Notices:
0, Xxx Xxxxxxx
00000 Xxxxx Cedex 02 France
Accepted and Agreed:
Colorado Springs Production Credit Association
By: /s/ Xxxxxxx Xxxxx Address for Notices
------------------------- 0000 Xxxxxxx Xx. S.
Name: Xxxxxxx Xxxxx P.O. Box 9290
----------------------- Xxxxxxxx Xxxxxxx, XX 00000-0000
Title: SR. V.P. - CREDIT
----------------------
Colorado Greenhouse, Inc.
By: /s/ Xxxxxx Xxxxxxxxx Address for Notices:
------------------------- 6811 Weld County Road 31
Name: X.X. Xxx 000
----------------------- Ft. Xxxxxx, XX 00000
Title:
----------------------
EXHIBIT A
Supplies:
Growing Media
Seed
Fertilizer
Greenhouse consumables - bobbins, clips, truss supports, white wash, etc.
Pesticides/Insecticides/Biological Controls/Bees
Miscellaneous repair parts/supplies
Packing Materials - boxes, corner boards, panapack, film, labels, pallets,
stretch wrap, trays
A-1
EXHIBIT B
Equipment
Box Machines
Forklifts
Pallet Jacks
Carts
Sprayers
Graders
Conveyors
B-1
