EXHIBIT 10.15
AMENDMENT NO. 2 TO
THERMAL SUPPLY LEASE AGREEMENT
THIS AMENDMENT NO. 2 TO THERMAL SUPPLY LEASE AGREEMENT (this
"Amendment No. 2"), dated as of February 28, 1995, IS BY AND BETWEEN THERMO
COGENERATION PARTNERSHIP, L.P., a Colorado limited partnership ("Thermo"), and
ROCKY MOUNTAIN PRODUCE LIMITED LIABILITY COMPANY, a Colorado limited liability
company ("Rocky Mountain").
RECITALS:
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A. Thermo and Rocky Mountain have previously entered into that
certain Thermal Supply Lease Agreement effective as of March 22, 1993, as
amended by Amendment No. 1, dated December 29, 1994 (the "Agreement"), pursuant
to the terms of which Thermo leased to Rocky Mountain, and Rocky Mountain leased
from Thermo a commercial greenhouse located in Ft. Xxxxxx, Colorado (the
"Facility").
B. By Commencement Date Notice and Agreement also dated December 29,
1994, Thermo and Rocky Mountain have fixed the Term of the Agreement and the
Quarterly Payment Dates for payment of Base Rent under the Lease.
C. Pursuant to a certain Memorandum Regarding Adjustment of Rent and
Option Price dated March 25, 1993 (the "Adjustment Memorandum"), Thermo and
Rocky Mountain agreed that promptly after conversion of the construction loan
financing for the Plant and the Facility to term loan financing, Thermo would
make certain determinations with respect to the actual average annual rate of
interest for financing of the Plant and the Facility, and that thereafter,
utilizing such redetermined actual average annual rate and the final Contract
Sum for construction of the Facility, the Quarterly Base Rent payment and the
Purchase Option Price Schedule would be revised in accordance with the formula
provided in said Memorandum.
D. Thermo is in the process of converting its construction loan
financing for the Plant and the Facility to term loan financing, and has
sufficient information to permit it to make the interest rate determination
required by the said Memorandum.
E. Thermo and Rocky Mountain have agreed upon a rate of interest and
on a final Contract Sum to be utilized in such calculations and desire to
finalize such adjustments in anticipation of Thermo's completion of the
conversion of its construction
loan financing for the Plant and the Facility to term loan financing.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
---------
1. All capitalized terms used herein but not otherwise defined shall
have the meaning given to such terms in the Agreement.
2. Paragraph 4.1 of the Agreement is hereby amended by deleting the
first two sentences in their entirety, and replacing them with the following two
sentences:
Subject to deferral in the manner provided in paragraph
4.6, below, and as adjusted in accordance with a certain
"Memorandum Regarding Adjustment of Rent and Option Price"
dated March 25, 1993 (the form of which is attached hereto
as Appendix I), Rocky Mountain shall pay to Thermo during
that portion of the Lease Term beginning on the Commencement
Date and expiring on the twentieth (20th) anniversary of the
initial Date of Commercial Operation total "BASE RENT" for
the Leased Premises equal to Nineteen Million Seven Hundred
Twenty-Eight Thousand Nine Hundred Fifty-Nine and 15/100
dollars ($19,728,959.15). Subject to deferral and adjustment
in like manner, Base Rent for such initial period shall be
paid in seventy-seven (77) equal quarterly installments of
Two Hundred Fifty-Six Thousand Two Hundred Twenty and 25/100
dollars ($256,220.25).
3. In accordance with the Adjustment Memorandum, the prior Exhibit
"C" to the Agreement, which shows the Base Rent Purchase Price of the Facility
prior to the first Quarterly Payment Date as being $7,800,000, is hereby
deleted, and there is substituted therefor the Exhibit "C" attached hereto,
wherein the Base Purchase Price of the Facility prior to the first Quarterly
Payment Date is Eight Million Seven Hundred Ninety-Four Thousand Four Hundred
Thirty-Five and 18/100 Dollars ($8,794,435.18).
4. Nothing herein shall be construed to be in derogation of the
provisions of a certain Supplemental Agreement and Consent to Assignment
effective as of April 7, 1993 (the "Supplemental Agreement") between and among
Thermo, Rocky Mountain, and The Prudential Insurance Company of America
("Prudential") on its own behalf and in the capacities therein stated, wherein,
among other things, Thermo and Rocky Mountain agreed that Rocky Mountain would
not be entitled to exercise the rights conferred under
-2-
section 5 or be deemed to have exercised such rights under section 12 of the
Agreement under certain circumstances. Thermo and Rocky Mountain hereby
reiterate and reaffirm all terms, conditions, and covenants of the Supplemental
Agreement as if the same were being made simultaneously with this Amendment No.
2, and agree that upon being requested by the Lead Agent or the Bank Agent to do
so they will extend the benefit of the Supplemental Agreement directly to
additional Lenders (i.e. Lenders under the Loan Agreement in addition to
Prudential) and to the Bank Agent, their respective successors and assigns.
Capitalized terms used in this paragraph but not defined in this paragraph or
elsewhere pursuant to this Amendment No. 2 have the meanings given to such terms
in the said Supplemental Agreement.
5. Except as amended or modified by this Amendment No. 2 and the
said Amendment No. 1, the Agreement remains in full force and effect and is
hereby ratified and confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
THERMO COGENERATION PARTNERSHIP,
L.P.
By: Thermo Ft. Xxxxxx, X.X.
General Partner
By: Thermo Ft. Xxxxxx I, Inc.
General Partner
By: [SIGNATURE ILLEGIBLE]
--------------------------
Name: __________________________
Title: __________________________
By: CSW Ft. Xxxxxx, Inc.
General Partner
By: [SIGNATURE ILLEGIBLE
-------------------------------
Name: _______________________________
Title: _______________________________
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ROCKY MOUNTAIN PRODUCE LIMITED
LIABILITY COMPANY, a Colorado
limited liability company
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Manager
By: ______________________________________
Xxxxxxxx X. Xxxxxx
Manager
COUNTY OF Xxxxx )
) SS:
STATE OF Colorado )
The foregoing instrument was acknowledged before me this 24th day of
February, 1995, by [NAME ILLEGIBLE], the President of Thermo Ft. Xxxxxx I, Inc.,
General Partner of Thermo Ft. Xxxxxx, X.X., General Partner of Thermo
Cogeneration Partnership, L.P., a Colorado limited partnership, on behalf of
said partnership.
[SEAL] [SIGNATURE ILLEGIBLE]
--------------------------------------
Notary Public
My commission expires: 02/28/97
COUNTY OF ______________ )
) SS:
STATE OF ________________ )
The foregoing instrument was acknowledged before me this _____ day of
________________, 1995, by _______________________, the ________________________
of CSW Ft. Xxxxxx I, Inc., General Partner of Thermo Cogeneration Partnership,
L.P., a Colorado limited partnership, on behalf of said partnership.
[SEAL] ______________________________________
Notary Public
My commission expires: _______________
-4-
COUNTY OF Boulder)
------- ) SS:
STATE OF Colorado )
The foregoing instrument was acknowledged before me this 24th day of
February, 1995, by Xxxxxx X. Xxxxxxxxx, Manager of Rocky Mountain
Produce Limited Liability Company, a Colorado limited liability company, on
behalf of said company.
[SEAL] Xxxxx Xxxxx Xxxxxx
----------------------------------
Notary Public
My commission expires: 3-25-98
COUNTY OF ______________ )
) SS:
STATE OF ________________ )
The foregoing instrument was acknowledged before me this _____ day of
________________, 1995, by Xxxxxxxx X. Xxxxxx, Manager of Rocky Mountain Produce
Limited Liability Company, a Colorado limited liability company, on behalf of
said company.
[SEAL] ______________________________________
Notary Public
My commission expires: _______________
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EXHIBIT C
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(Revised ________________ ___, 199__)
OPTION PURCHASE PRICE SCHEDULE
Number of Quarterly Base Purchase Price**
Payment Dates ("QPD") (for closing on or before
Expired* (see paragraph 4.1 serially numbered Quarterly
and Commencement Date Notice) Payment Date in left column)
----------------------------- ----------------------------
Prior to first QPD $8,794,435.00
1 8,755,217.43
2 8,715,032.17
3 8,673,855.34
4 8,631,662.47
5 8,588,428.49
6 8,544,127.71
7 8,498,733.81
8 8,452,219.82
9 8,404,558.09
10 8,355,720.31
11 8,305,677.46
12 8,254,399.80
13 8,201,856.87
14 8,148,017.44
15 8,092,849.52
16 8,036,320.33
17 7,978,396.28
18 7,919,042.96
19 7,858,225.10
20 7,795,906.55
21 7,732,050.29
22 7,666,618.38
23 7,599,571.94
24 7,530,871.13
25 7,460,475.13
26 7,388,342.10
27 7,314,429.19
28 7,238,692.48
29 7,161,086.97
30 7,081,566.54
31 7,000,083.94
32 6,916,590.76
33 6,831,037.39
34 6,743,372.99
35 6,653,545.47
36 6,561,501.45
C-1
Number of Quarterly Base Purchase Price**
Payment Dates ("QPD") (for closing on or before
Expired* (see paragraph 4.1 serially numbered Quarterly
and Commencement Date Notice) Payment Date in left column)
----------------------------- ----------------------------
37 $6,467,186.25
38 6,370,543.82
39 6,271,516.74
40 6,170,046.17
41 6,066,071.81
42 5,959,531.88
43 5,850,363.08
44 5,738,500.54
45 5,623,877.79
NOTES: * Purchase Option expires if not exercised for conveyance on or before
end of the twelfth (12th) year following the Commencement Date.
** This figure is EXCLUSIVE of the premium of $10,000, the quarterly
rent payment applicable to the designated quarterly payment date (if
closing occurs on or prior to a quarterly payment date), plus such
additional sums, if any, as may also be due pursuant to paragraph
5.2
C-2
