EXHIBIT 10.12
THERMAL SUPPLY LEASE AGREEMENT
(Contains Option to Purchase)
THIS is a THERMAL SUPPLY LEASE AGREEMENT (Agreement), made to be
effective as of March 22, 1993 by and between THERMO COGENERATION PARTNERSHIP, a
Colorado partnership with an office at 0000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx,
Xxxxxxxx 00000 ("Thermo"), and ROCKY MOUNTAIN PRODUCE LIMITED LIABILITY COMPANY,
a Colorado limited liability company with an office at 000 Xxxx Xxxxxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 ("Rocky Mountain"), under the
following circumstances:
A. Thermo owns certain real property located at Fort Xxxxxx,
Colorado (the "Project Site") on which Rocky Mountain desires to construct,
equip for production, and operate a commercial greenhouse.
B. Rocky Mountain also desires Thermo to supply Rocky Mountain's
requirements for thermal energy for production of agricultural crops at the
Facility.
C. Thermo intends to construct and operate on the Project Site a
cogeneration plant (the "Plant") which will produce available thermal energy to
supply the Facility's requirements, and desires to supply thermal energy to
Rocky Mountain.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants contained in this Agreement. Thermo and Rocky Mountain
hereby agree as follows.
DEFINITIONS
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The following capitalized terms have the meanings provided in this
preliminary section, or as elsewhere defined in this Agreement. Failure to
enumerate in this section any capitalized term elsewhere defined in this
Agreement shall not limit the general applicability of such term elsewhere
defined. In the event, of any variation, definition of the same term between
this Agreement and the Construction Contract (hereinafter defined), the
definition of such term in this Agreement shall prevail except for purposes of
the Construction Contract, in which case the definition therein shall prevail.
(i) "Additional Rent" means any and all sums (whether or not
specifically called "Additional Rent") other than Base Rent, Thermal Payments,
and the Option Purchase Price, which Rocky Mountain is or becomes obligated to
pay to Thermo, or on behalf of Thermo with respect to the Leased Premises under
this Agreement.
(ii) "Affiliate" means a person, company, or other entity directly or
indirectly effectively controlled by, controlling, or under common control with
the affiliated
entity. For the purposes of this definition, control means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of another entity, whether through the ownership of
voting securities, by contract, or otherwise.
(iii) "Available Net Cash" shall have the meaning given to such term
in paragraph 4.5.
(iv) "Base Rent" means the rent payable by Rocky Mountain to Thermo
pursuant to paragraph 4.1.
(v) "BTU" means British thermal unit, which is the amount of heat
needed to raise the temperature of one pound of water one degree Fahrenheit, at
or near 39.2 degrees Fahrenheit.
(vi) "Calculation Period" means any of four (4) designated three (3)
month periods during each year, and being specifically December through February
March through May, June through August, and September through November.
(vii) "Commencement Date" has the meaning given to such term in
paragraph 3.2.
(viii) "Commencement Date Notice" means the Notice to be provided by
Thermo to Rocky Mountain pursuant to paragraph 3.2, which shall designate the
Commencement Date.
(ix) "Completion Date" shall have the meaning given to such term in
paragraph 6.4.
(x) "Construction Contract" means the Standard Form of Agreement
between Owner and Contractor (AIA Document A111) together with General
Conditions of the Contract for Construction (AIA Document A201) and the various
other "Contract Documents" therein enumerated, to be entered into between Rocky
Mountain as Contractor, and Thermo as "Owner," in substantially the form
attached as Exhibit G.
(xi) "Construction Plans" means drawings and specifications for the
construction or alteration of the Facility, which depict and describe the work
shown thereon in sufficient detail for a competent general contractor to
construct the Facility or the alteration without preparing or obtaining
additional plans and specifications (other than customary field work orders and
shop drawings).
(xii) "Contractor" means Rocky Mountain, acting as Contractor under
the Construction Contract.
(xiii) "Contract Sum" means the total amount to be paid by Thermo to
Rocky Mountain, acting as Contractor under the Construction Contract, to be
finally determined pursuant to the Construction Contract.
(xiv) "Damages" means any and all expenses, losses, costs, claims,
liability or damages incurred by a contracting party as a proximate result of an
event or
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occurrence causing loss or damage to the damaged party, including without
limitation attorneys' fees and other costs of defending or prosecuting a claim
resulting reasonable directly from such event or occurrence; provided, however,
that all incidental, consequential, or special damages (such as, for example and
without limitation, lost profits and lost opportunities) are expressly excluded
from such term.
(xv) "Date of Commercial Operation" (initial) means the first date
that the Plant or a portion thereof shall be entitled to accrue capacity
payments from the purchaser of energy and capacity pursuant to an on-system
power purchase agreement with a public utility.
(xvi) "Default" means any of the defaults by Rocky Mountain
described in paragraph 13.1.
(xvii) "Effective Date" shall have the meaning given to such term in
paragraph 1.1.
(xviii) "Environmental Law(s)" means all existing or future federal,
state, local, and foreign laws, statutes, ordinances, rules, regulations,
administrative orders, and final decisions of judicial bodies or administrative
agencies (to the extent the issuing governmental authority has jurisdiction
over the project), including without limitation any common law theory of
liability, in any case relating to regulation or control of pollution, or to
protection of human health or the environment from or with respect to Materials
of Environmental Concern. A further elaboration of this definition is contained
in paragraph 6.2 of the Supplemental Agreement.
(xix) "Facility" means all improvements to real property and all
fixtures and tangible personal property of any nature to be constructed,
installed, and furnished by the Contractor under the Construction Contract, and
to be leased by Thermo to Rocky Mountain pursuant to this Agreement, plus such
additions or alterations as may be made thereto from time to time in compliance
with this Agreement.
(xx) "Financial Closing" means the date that Thermo secures and
becomes entitled to draw financing anticipated to be sufficient to construct and
start up the Plant and to pay the Contract Sum under the Construction Contract.
(xxi) "Force Majeure" shall have the meaning given to such term in
paragraph 7.7.
(xxii) "Greenhouse Affiliate" means an Affiliate of Rocky Mountain
which is then engaged in the commercial production and sale of agricultural
products from greenhouse facilities which utilize thermal energy generated from
cogeneration plants as their primary source of thermal energy.
(xxiii) "Greenhouse Rent Reserve Account" shall have the meaning
given to such term in paragraph 4.7.
(xxiv) "Land" means that certain real property consisting of
approximately 35.001 acres and being a portion of the Project Site, to be
leased by Thermo to Rocky Mountain pursuant to this Agreement. The Land is
particularly described in part I of
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Exhibit A, and shall be subject to any Reservations permitted pursuant to
paragraph 2.2, and to any Permitted Encumbrances described in Exhibit H.
(xxv) "Leased Premises" means the Land and the Facility to the
extent that the same shall remain subject to the leasehold created under this
Agreement.
(xxvi) "Lease Term" means the entire duration of the leasehold
estate created under this Agreement.
(xxvii) "Loan Agreement" shall have the meaning given to such term in
definition (xli), below.
(xxviii) "Materials of Environmental Concern" means chemicals,
pollutants, contaminants, wastes, degradation by-products, toxic substances,
petroleum and petroleum products, including without limitation "hazardous
substances," "hazardous wastes," "toxic substances" and "toxic pollutants," as
defined in or identified pursuant to any Environmental Law(s).
(xxix) "Minimum Annual Heat Requirement" means the minimum annual
quantity of thermal energy which Thermo is required to provide to Rocky Mountain
as specified in paragraph 7.1 and Rocky Mountain is required to accept and
utilize in connection with its commercial agricultural activities at the
Facility, pursuant to paragraph 7.5.
(xxx) "Notice" means each and every consent, demand, approval,
notice, information, or other communication required or permitted to be given or
obtained under this Agreement.
(xxxi) "Notice to Proceed" means the Notice provided by Thermo to
the Contractor pursuant to paragraph 6.4 directing the Contractor to commence
construction of the Facility.
(xxxii) "Operating Line of Credit" shall have the meaning given to
such term in clause (d) of paragraph 4.5.
(xxxiii) "Option Purchase Price" means the sum to be paid by Rocky
Mountain to Thermo for the purchase of the Facility if the Purchase Option is
exercised, calculated in the manner described in paragraph 5.2.
(xxxiv) "Owner" means Thermo Cogeneration Partnership, acting as
Owner under the Construction Contract.
(xxxv) "Permitted Encumbrances" means those matters affecting title
to the Land as referenced or set forth in Exhibit H hereto, including without
limitation the Declaration of Restrictive Covenants set forth in such Exhibit.
(xxxvi) "Plant" means the cogeneration plant to be constructed and
operated by Thermo on that portion of the Project Site, other than the Land,
which is described in part II of Exhibit A.
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(xxxvii) "Postponement" means a permitted deferral of payment of Base
Rent by Rocky Mountain, as provided in paragraph 4.6.
(xxxviii) "Preliminary Construction Schedule" means the schedule
detailing the approximate time required for Rocky Mountain's construction of the
Facility, attached as Exhibit F.
(xxxix) "Project Site" means the location for the proposed Thermo
Cogeneration Partnership cogeneration Plant and the Facility, consisting of
approximately seventy-eight and sixty-four one-hundredths (78.64) acres, and
currently having a postal address at 0000 Xxxx Xxxxxx Xxxx 00, Xxxx Xxxxxx,
Xxxxxxxx 00000. The Land is included within the Project Site. The Project Site
encompasses the real property described on both part I and part II of Exhibit A.
(xl) "Preliminary Plans" means the preliminary drawings and
construction specifications of the Facility, attached as Exhibit E.
(xli) "Prudential" means The Prudential Insurance Company of
America, a New Jersey mutual insurance corporation, as a lender and as lead
agent for the Secured Parties (hereinafter together with any successors and
assigns referred to as "Prudential") under the Construction and Term Loan
Agreement dated as of March 1993 (sometimes herein and in the Supplemental
Agreement referred to as the "Loan Agreement") among Thermo Cogeneration
Partnership, L.P., a Delaware limited partnership to which Thermo intends to
assign its rights hereunder, Prudential, CSW Ft. Xxxxxx, Inc. and the other
financial institutions named therein, as Lenders, Prudential as Lead Agent, and
CSW Ft. Xxxxxx, Inc. as Bank Agent.
(xlii) "Purchase Option" means the option granted by Thermo to
Rocky Mountain in paragraph 5.1 to purchase the Facility, at the price, upon the
terms, and to be exercised in the manner, provided in paragraphs 5.2 and 5.9.
(xliii) "PURPA" means the Public Utility Regulatory Policies Act of
1973, as amended from time to time.
(xliv) "Qualifying Facility (QF)" means a facility which meets all
of the requirements for a "qualifying cogeneration facility" set forth in the
Regulations implementing PURPA as currently established by the Federal Energy
Regulatory Commission and set forth in Sections 292.201 through 292.207 of Title
18, Code of Federal Regulations, and all amendments of such requirements which
may become effective from time to time.
(xlv) "Quarterly Payment Date(s)" shall have the meaning given to
such term in paragraph 4.1.
(xlvi) "Reservations" shall have the meaning given to such term in
paragraph 2.2.
(x1vii) "Substantial Completion (Substantially Complete)" means the
stage of the process of the Work when the Work is sufficiently complete in
accordance with the
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Construction Plans so the Facility can be occupied and utilized for the
commercial production of agricultural products.
(xlviii) "Supplemental Agreement" means a certain agreement in the
form attached hereto as Appendix II to be executed and delivered by Rocky
Mountain, Thermo, and Prudential of even date with the Loan Agreement (defined
under clause x1i above), and which agreement takes effect upon execution by
Thermo and Prudential of the Loan Agreement and remains in effect only until the
prospective obligations of Thermo under the Loan Agreement and the collateral
and other documents related to Loan Agreement have been fully performed, paid,
and discharged.
(xlix) "Thermal Payments" means the payments which Rocky Mountain is
required to make to Thermo in accordance with paragraph 7.6.
(l) "Thermal Term" means the period beginning on the
Commencement Date and expiring on the twenty-fifth (25th) anniversary of the
initial Date of Commercial Operation.
(li) "Work" means the construction and services to be performed by
the Contractor under the Construction Contract and includes all other labor,
materials, equipment, and services provided or to be provided by the Contractor
to fulfill the Contractor's obligations thereunder. The Work is further
described in Article 2 of the Construction Contract.
TERMS, COVENANTS, AND CONDITIONS
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1. EFFECTIVE DATE; DURATION
OF OBLIGATIONS
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1.1 Effective Date. The "Effective Date" of this Agreement
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is the date first set forth above, notwithstanding any prior or subsequent date
of execution or ratification. All obligations of both parties, shall take effect
on the Effective Date; provided, however, that the demise of the Leased
Premises shall not become effective until the "Commencement Date" as provided
in paragraph 3.2.
1.2 Duration of Obligations. The leasehold estate to be
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conferred hereunder shall begin on the Commencement Date and shall remain in
effect until the earlier of (a) the purchase of the entire Leased Premises
(including both the "Land" and the "Facility") by Rocky Mountain, or (b) the
expiration or earlier termination of the Lease Term as to both the Land and
Facility. Notwithstanding such purchase, expiration, or earlier termination of
the Lease Term because of exercise of the Purchase Option, subject to agreed
earlier termination or the right of either party to terminate in the event of a
material breach by the other, the thermal supply obligations of Thermo and the
thermal usage obligations of Rocky Mountain hereunder shall begin on the
Commencement Date and shall remain in effect for a period of twenty-five (25)
years from the initial Date of Commercial Operation (the "Thermal Term"). The
provisions of this paragraph are subject to the Financial Closing condition
subsequent provided in paragraph 21.1. Should Financial Closing not be achieved
on or before the final date
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determined in accordance with paragraph 21.1, this Agreement, including the
leasehold estate, the construction obligations, and the thermal supply and usage
obligations of both parties, shall terminate as of such date; provided, however,
all obligations of both parties which were, by the terms of this Agreement,
required to have been performed prior to such termination date, or are required
by their terms or the context to survive such termination date, shall survive.
2. LEASE OF PREMISES
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2.1 Demise. Effective on the Commencement Date (but not until such
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date), Thermo shall, and hereby does, lease and demise to Rocky Mountain, for
and during the Lease Term, and subject to all terms and conditions of this
Agreement, that certain Land described in part I of Exhibit A attached hereto
consisting of 35.001 acres, more or less (being a portion of the "Project Site"
also described in Exhibit A), together with certain improvements to real
property and all fixtures and tangible personal property of any nature which,
pursuant to the Construction Contract, shall be constructed on the Land and
furnished for the operation of such improvements as a commercial Greenhouse
prior to the Commencement Date, as provided in section 6; provided, however,
that Thermo shall not be obligated to grant such leasehold interest if Rocky
Mountain or any of Rocky Mountain's Affiliates are then in default under any
then-existing contract between Rocky Mountain or any of Rocky Mountain
Affiliates on one hand, and Thermo or any of Thermo's Affiliates on the other.
Such improvements, fixtures, and personal property, together with any additions
or alterations thereto permitted to be made by Rocky Mountain hereunder, shall
constitute the "Facility". A more complete description of the Facility shall be
included in the Commencement Date Notice to be delivered pursuant to paragraph
3.2. Subject to section 5 (pursuant to which Rocky Mountain may, under certain
circumstances, purchase Facility and, under certain additional conditions, the
Land), the Facility and the Land are hereafter referred to collectively as the
"Leased Premises."
2.2 Reservations from Description: Restrictive Covenants. At any
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time prior to purchase by Rocky Mountain of the entire Leased Premises, Thermo
shall have the right to make reasonable reservations from the interest in
the Land leased hereunder ("Reservations") for such covenants, easements,
licenses, and rights of entry as Thermo may in Thermo's discretion,
reasonably exercised, deem prudent to grant to third parties or retain for
Thermo's business purposes; provided, however, that such Reservations shall not
impair materially the use of the Facility by Rocky Mountain for commercial
agricultural purposes. Thermo shall notify Rocky Mountain a reasonable time
prior to effecting any such Reservations. Within thirty (30) days after
receipt of such Notice(s), Rocky Mountain shall give Notice to Thermo of any
objection by Rocky Mountain stating in such Notice any material impairment of
use for commercial agricultural purposes which will result from such proposed
Reservations. If Rocky Mountain's objection is valid in Thermo's discretion
reasonably exercised, Thermo shall not implement the proposed Reservations. If
no objection is made by Rocky Mountain within such thirty (30) day period, or
if such objection is not valid in Thermo's discretion reasonably exercised,
Exhibit H to this Agreement shall be deemed to have been amended to incorporate
the proposed Reservation. Thermo shall have the right to file with respect to
the Leased Premises, at any time deemed prudent by Thermo, (i) a declaration of
restrictive covenants substantially in accordance with the proposed Declaration
of Covenants set
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forth in Exhibit H and (ii) such instruments as may be necessary or appropriate
to reflect reservations to be granted or retained by Thermo under this paragraph
2.2. Upon filing of such declaration the Leased Premises shall be deemed to have
been made subject to such restrictions prior to the demise thereof to Rocky
Mountain.
3. LEASE TERM.
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3.1 Basis of Commencement Date. The "Commencement Date" of the Lease
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Term shall be determined, in part, based on progress achieved by Thermo in
construction of the Plant. Thermo shall use reasonable efforts to construct (or
cause to be constructed) the Plant at the Project Site in order to achieve an
initial "Date of Commercial Operation" for the Plant (or a portion thereof) of
January 1, 1994. Prior to achieving a Date of Commercial Operation, Thermo must
substantially complete construction, commence initial operation, and complete
start-up of all or a portion of the Plant. Thermo shall not become liable to
Rocky Mountain in any way if the Commencement Date does not occur because
the Plant is delayed in achieving, or is not expected to achieve, an initial
Date of Commercial Operation. Thermo shall inform Rocky Mountain from time to
time upon inquiry concerning progress toward Financial Closing and thereafter
concerning the Plant construction schedule and process of Plant construction.
Rocky Mountain acknowledges that, among other things, delay in achieving
Financial Closing beyond March 31, 1993 may impact, materially and adversely,
the ability of Thermo to achieve the currently proposed initial Date of
Commercial Operation.
3.2 Establishment of Commencement Date: Prior Occupancy. The
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Commencement Date shall be established in the "Commencement Date Notice" which
shall be to Rocky Mountain by Thermo in the form of Exhibit B attached
hereto. Provided that the Facility is then Substantially Complete as envisioned
in section 6, Thermo shall, not less than sixty (60) days before the date
Thermo anticipates that an initial Date of Commercial operation will be
achieved, give to Rocky Mountain the Commencement Date Notice to the effect
that the Lease Term will commence on such future date (the "Commencement Date")
which, is specified in the Commencement Date Notice; provided, however, that
unless Rocky Mountain shall consent the Commencement Date shall not occur
from October 1 through December 31 (inclusive) of any calendar year. The
Commencement Date Notice shall then be incorporated into this Agreement in
lieu of Exhibit "B". In addition, should it reasonably appear to Thermo that the
Plant will, in all probability, achieve an initial Date of Commercial Operation
at some future date (even if such future date is then uncertain), Thermo shall,
upon request by Rocky Mountain, permit Rocky Mountain to occupy the Facility or
any material portion thereof prior to the Commencement Date for purposes of
initial planting and other preparations for Rocky Mountain's first production of
agricultural products at the Facility. Such prior occupancy shall be on a
provisional basis pursuant to a temporary license incorporating such
special terms and conditions as the parties shall deem reasonable. In addition,
Thermo may waive the requirement that the Facility be Substantially Complete
prior to giving the Commencement Date Notice should it reasonably appear to
Thermo that Substantial Completion will be achieved prior to the anticipated
initial Date of Commercial Operations.
3.3 Lease Term Duration. The "Lease Term" shall begin on the
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Commencement Date, and shall expire, unless sooner terminated, on the date which
is
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the twenty-fifth (25th) anniversary of the initial Date of Commercial Operation
applicable to the Plant. After the initial Date of Commercial Operation occurs,
Thermo shall confirm the date of expiration of the Lease Term to Rocky Mountain
by Notice. No leasehold estate shall be deemed created until the Commencement
Date shall have occurred. Prior to such date, Rocky Mountain's access to the
facility and the land shall be pursuant to the Construction Contract and any
temporary license which may be granted pursuant to paragraph 3.2.
4. RENT
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4.1 Base Rent. Subject to deferral in the manner provided in
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paragraph 4.6, below and to adjustment in accordance with a certain "Memorandum
Regarding Adjustment of Rent and Option Price" of even date (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 Seventeen Million, Five
Hundred Twenty-One Thousand, Six Hundred Seventy Eight and 18/100 Dollars ($
17,521,673.18). 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 Twenty-Seven Thousand, Five Hundred Fifty-Four and
29/100 Dollars ($227,5554.29). Installments of Base Rent shall be payable in
arrears beginning on the last day (i.e. on March 31, June 30, September 30, or
December 31) of the first complete calendar quarter which commences six (6)
complete calendar months or more after the Commencement Date, and continuing on
the final day of each calendar quarter for seventy-six (76) calendar quarters
thereafter. (For example, if the Commencement Date should be any date from
January 1, 1994 through March 31, 1994, the first installment of Base Rent would
be payable on December 31, 1994; should the Commencement Date be any date from
April 1, 1994 through June 30, 1994, the first installment of Base Rent would be
payable on March 31, 1995, etc.) Such dates on which payments of Base Rent shall
be due (without regard to any Postponement of payment permitted under paragraph
4.6) are hereinafter referred to as "Quarterly Payment Dates." The Quarterly
Payment Dates shall be confirmed in the Commencement Date Notice; subject,
however, to Postponements to the extent permitted under paragraph 4.6. During
the final five (5) years of the Lease Term, Base Rent for the Leased Premises
shall be One Hundred Dollars ($100) per year, payable in advance on the
twentieth (20th) anniversary of the Commencement Day and on the same day of each
year thereafter during the remainder of the Lease Term, and, in addition, Rocky
Mountain shall pay to Thermo any accumulated postponements of Base Rent (plus
interest thereon) which may have been referred and shall then be outstanding
pursuant to paragraph 4.6. During such period, payments of deferred Base Rent
shall be made at such time and in such amounts as is provided in such paragraph
4.6.
4.2 Additional Rent. Rocky Mountain also shall pay, as "Additional
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Rent", all real property and other property taxes, all governmental assessments
levied during the Lease Term against the Leased Premises (including without
limitation the Land) for improvements benefiting the Leased Premises during the
Lease Term, and all other costs or charges of any nature whatsoever which Rocky
Mountain is expressly required by this Agreement to pay with respect to the
Leased Premises during The Lease Term, including, without limitation any
apportionment of insurance premiums allocated to
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Rocky Mountain under paragraph 9.6. This obligation shall survive expiration of
the Lease Term. Additional Rent shall be paid by Rocky Mountain making payment
of such costs and charges directly to the third party entitled to receive
payment therefor; provided, however, that unless Thermo notifies Rocky
Mountain to make real property tax payments directly to the taxing authority,
all real property taxes and assessments shall be paid to Thermo as Additional
Rent at least ten (10) days before the same would become delinquent. Should the
present method of property taxation or assessment be changed so that there
would be substituted for the whole or any part of the real property taxes or
assessments now or hereafter imposed on the Leased Premises or any part thereof,
a capital tax or other tax imposed on the rent or any other payments received by
Thermo from Rocky Mountain, such other tax, to the extent that it is so
substituted, shall be included in determining Thermo's real property tax xxxx
for the relevant years, and shall be paid by Rocky Mountain as Additional Rent.
4.3 Manner and Application of Payment. Except as is expressly
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permitted pursuant to paragraph 4.6, all rent and other charges of any nature
required to be paid by Rocky Mountain to Thermo under this Agreement, including
without limitation Base Rent, Additional Rent, and Thermal Payments shall be
paid to Thermo on or before the due date in immediately available funds without
Notice or demand. Payments shall be made at the office of Thermo from time to
time provided for delivery of Notices or to such other address and/or payee, as
Thermo may from time to time designate by Notice to Rocky Mountain. Payments
shall be applied first to pay Additional Rent and other costs and expenses which
shall become payable to Thermo hereunder, second to Thermal Payments required
hereunder, third to Base Rent then currently due and payable hereunder (unless
Rocky Mountain shall then be entitled to and shall elect to defer payment of
Base Rent under paragraph 4-6) and fourth to "Postponements" and accrued
interest thereon as provided in paragraph 4.6 in order of the longest
outstanding to the shortest outstanding Postponement. Payment of those
components of Additional Rent which Rocky Mountain is obligated to Pay directly
to third parties hereunder shall be made in a timely manner, as the applicable
creditors may from time to time direct. Nothing, herein shall create any privity
of contract between Thermo and any third-party creditors of Rocky Mountain, or
otherwise make Thermo responsible for any debts of Rocky Mountain. All covenants
in this Agreement with respect to payments of any nature to be made by Rocky
Mountain, except payment of Thermal Payments, are and shall be deemed to be
independent covenants.
4.4 Least Not Terminable Prior to Payment of Base Rent. Except
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as otherwise expressly set forth in this Agreement, the demise of the Leased
Premises provided in this Agreement shall not expire or become terminable by
Rocky Mountain for any reason whatsoever prior to payment to Thermo in full of
the entire Base Rent provided in paragraph 4.1. Until Base Rent for the Lease
Term shall be paid in full, or until Rocky Mountain shall have purchased the
entire Leased Premises as provided in section 5, below, Rocky Mountain waives
all rights which may now or hereafter be conferred by law to abandon, terminate,
or surrender the leasehold estate, in whole or in part, or to any abatement,
suspension, diminution, deduction, or reduction whatsoever of Base Rent. Nothing
in this paragraph 4.4 or in any other paragraph of this Agreement shall be
construed as a waiver of any claims which may become assertable by Rocky
Mountain against Thermo under this Agreement, or as a relinquishment by Rocky
Mountain of the right of setoff against Base Rent with respect to such claims.
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4.5 Determination of "Available Net Cash"; Restrictions on
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Distributions. Beginning on the first complete calendar quarter which
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commences six (6) complete calendar months or more after the Commencement Date,
and continuing throughout the first twenty (20) years of the Lease Term, Rocky
Mountain shall calculate "Available Net Cash" (hereinafter defined) four (4)
times yearly. Such calculations shall be made within fifteen (15) days after the
final day of February, May, August, and November in the manner provided below in
this paragraph 4.5 from receipts and disbursements during the "Calculation
Period" ending on the final day of such months. The results of such calculations
shall be deemed to be the determination of cash available to Rocky Mountain for
payment of Base Rent for the calendar quarter ending on the final day of the
month after such Calculation Period, that is, for the quarters ending March,
June, September, and December, respectively. "Available Net Cash" is defined as:
(a) Rocky Mountain's fractional share on an acreage basis
(the denominator being the total acreage of all commercial greenhouses then
being operated by Rocky Mountain and Rocky Mountain's Greenhouse Affiliates and
the numerator being total acreage of the Facility) of gross cash receipts during
a given Calculation Period from the sale of agricultural products produced at
the Facility and at all other commercial greenhouse facilities operated by all
of Rocky Mountain's Greenhouse Affiliates (for example, with respect, to the
calendar quarter ended December 31, cross cash receipts for the Calculation
Period comprised of months of September, October, and November); provided, that
insurance proceeds received by Rocky Mountain (directly or indirectly) on
account of damage to or loss of crop from insurance carried pursuant to
paragraph 9.7 shall be included in Available Net Cash without apportionment.
(b) Less Rocky Mountain's same fractional share (i.e. determined
in the manner provided in clause (a) of this paragraph 4.5) of reasonable cash
expenditures by Rocky Mountain and all of Rocky Mountain's Greenhouse Affiliates
during the same Calculation Period for marketing of the agricultural products
produced at all such commercial greenhouse facilities;
(c) Less Rocky Mountain's same fractional share of reasonable
cash expenditures by Rocky Mountain and all of Rocky Mountain's Greenhouse
Affiliates during the same Calculation Period for general and administrative
purposes which are properly allocable to the production and sale of such
agricultural products;
(d) Less all other cash expenditures during the same
Calculation Period (i.e. excluding depreciation and amortization) by Rocky
Mountain for ail ordinary and necessary expenses of operating the Facility,
except Base Rent. Repayment of interest and principal on debt which is (i)
reasonably necessary to incur in order to provide for operation of the Facility,
(ii) is used solely to pay ordinary and necessary expenses of operating the
Facility and (iii) is borrowed by Rocky Mountain at rates an on terms not less
favorable to commercial banks doing business in Denver, Colorado (an "Operating
Line of Credit") shall be considered to be an ordinary and necessary expense of
operating the Facility. Repayment of interest or principal on debt which does
not meet the requirements of the preceding sentence shall not be considered to
be an ordinary and necessary expense of operating the Facility, and Rocky
Mountain shall not incur debt
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which does not meet such requirements without Thermo's prior written consent.
Expenses incurred by Rocky Mountain's Greenhouse Affiliates shall not be
considered for purposes of the deduction permitted under this clause (d);
provided, however, that should Rocky Mountain and any of Rocky Mountain's
Greenhouse Affiliates utilize personnel, services, equipment, materials,
facilities, or other non-financial resources in common (other than such of the
foregoing as are utilized for marketing and general and administrative
purposes), or should Rocky Mountain obtain, in conjunction and as joint obligor
with any of Rocky Mountain's Greenhouse Affiliates, an Operating Line of Credit,
the expenditures attributable to such common usage of non-financial resources
and repayment of debt on such common Operating Line of Credit shall be
apportioned equitably among all such commercial greenhouse operators, based on
the relative utilization of such common resource by each such greenhouse
operator, and the allocation thus made to Rocky Mountain shall be deemed, for
purposes of this clause (d), to have been incurred by Rocky Mountain and not by
any of Rocky Mountain's Greenhouse Affiliates. Nothing in this paragraph 4.5
shall be construed: (i) to require that Rocky Mountain obtain a single Operating
Line of Credit in conjunction with one or more Greenhouse Affiliates or
repayment of principal and interest thereon to be considered an ordinary and
necessary expense of operating the Facility, (ii) to require that Rocky Mountain
obtain an Operating Line of Credit rather than establishing a reserve for
working capital, or (iii) to preclude Rocky Mountain from establishing a reserve
for working capital and also obtaining an Operating Line of Credit to the extent
such Operating Line of Credit meets the requirements set forth above in this
clause (d). However, no amounts set aside as a reserve, for working capital
shall be deductible from gross cash receipts for purposes of determining,
Available Net Cash. Rocky Mountain shall not, without Thermo's prior written
consent, directly or indirectly declare or pay any dividend or make any
distribution of cash or other property out of borrowed funds, regardless of
whether such borrowed funds arc obtained from an Operating Line of Credit:
provided, however, that this shall not be construed to prohibit Rocky Mountain
from making matching, dividends or distributions to the extent permitted in
paragraph 1.6 while Postponements of Base Rent are outstanding.
4.6 Deferral of Base Rent: Limitations on Distributions. In the event
---------------------------------------------------
that, during that portion of the Lease Term which expires on the twentieth
(20th) anniversary of the Commencement Date, operation of the Facility should,
with respect to any calender quarter, fall to generate sufficient Available Net
Cash for payment in full of the installment of Basement due with respect to
such calendar quarter, Rocky Mountain may give to Thermo, not later than ten
(10) days prior to the applicable Quarterly Payment Date, Notice stating Rocky
Mountain's intention to defer payment of all or a portion of the quarterly
installment of Base Rent to become due on such Quarterly Payment Date. Such
Notice shall be accompanied by a complete copy of Rocky Mountain's calculations
showing a deficiency in Available Net Cash for payment in full of Base Rent due
with respect to such calendar quarter and shall be deemed to be a representation
by Rocky Mountain of the completeness and accuracy of such calculations. Such
calculations shall be subject to review and approval by Thermo, which shall not
be withheld unreasonably. Based on such calculations, Rocky Mountain shall have
the right to defer payment of such installment of Base Rent to the extent of the
deficiency in Available Net Cash (each such deferral sometimes herein a
"Postponement"). Each Postponement shall be accounted for separately as a deemed
extension of credit from Thermo to Rocky Mountain, and shall accrue interest
from the time of deferral until the time of payment at the rate of eight percent
(8%) per annum, compounded annually
-12-
with respect to each postponement beginning twelve (12) months after the date of
such Postponement. Under no circumstances shall Rocky Mountain be permitted to
have outstanding accumulated Postponements plus accrued interest thereon of more
than Two Million Five Hundred Thousand Dollars ($2.500.000). Rocky Mountain may
make payments to Thermo of such Postponement(s), plus accrued interest thereon,
in whole or in part at any time without penalty. Should Rocky Mountain desire to
pay any dividends or make any distribution of cash or other property to its
members or other equity owners at any time while any Postponement is
outstanding, Rocky Mountain shall, simultaneously with such dividend or
distribution, make a payment equal to such dividend or distribution for
application against such total Postponement(s) and accrued interest thereon, but
under no circumstances in excess of total Postponement(s) plus accrued interest
then outstanding. The foregoing notwithstanding standing, Rocky Mountain shall,
in addition to Thermal Payments and payments of Additional Rent, also make
payments to Thermo to apply against Postponements (plus accrued interest
thereon) to tile extent that, as of any Quarterly Payment Date, the sum of all
Postponements plus accrued interest then outstanding (including any Postponement
to which Rocky Mountain would otherwise be entitled for the then-current
calendar quarter) exceeds Two Million Five Hundred Thousand Dollars
($2,500,000). For example, should the sum of all Postponements plus accrued
interest thereon as of any Quarterly Payment Date be $2,600,000 (after giving
effect to the regular quarterly payment of Base Rent made on such date) an
additional payment of $100,000 would be required on such Quarterly Payment Date,
thereby reducing he sum of all Postponements plus accrued interest to
$2,500,000 after application of such additional payment. If not sooner paid,
Rocky Mountain shall, beginning on the final day of each calendar quarter
which occurs after the twentieth (20th) anniversary of the initial Date of
Commercial Operation, and continuing on the final day of each calendar
quarter thereafter until all Postponements outstanding on the twentieth (20th)
anniversary of the initial Date of Commercial Operation, together with
interest accruing thereon through the date of payment, shall have been fully
paid, make payments to apply against such Postponements plus accrued interest
thereon in the amount of the quarterly installments of Base Rent provided in
paragraph 4.1, as the same may be adjusted pursuant to the Memorandum
Regarding Adjustment of Rent and Option Price. Such payments shall be in
addition to the Base Rent payments of One Hundred Dollars ($100) per year
required during the final five (5) years of the Lease Term pursuant to
paragraph 4.1. Anything herein to the contrary notwithstanding, should any
Postponement(s) be outstanding (in whole or in part) upon purchase of the
Facility or the entire Leased Premises (i.e. both the Land and the Facility) as
Provided in paragraphs 5.2 and 5.5. below, such Postponements shall become due
and payable, and shall be paid in full, together with accrued interest thereon,
upon closing of such purchase. Further, should any Postponement(s) of Base Rent
(in whole or in part) be outstanding upon final expiration or other termination
of the Lease Term, such deferred amounts shall become due and payable, and
shall be paid in full, together with interest thereon, upon expiration or
termination of the Lease Term.
4.7 Reserve for Rent Payments: Restriction on Distributions. To the
-------------------------------------------------------
extent required of Thermo in the Loan Agreement, Rocky Mountain shall, on each
Quarterly Payment Date, make payments to Thermo for deposit in a cash reserve
account (the "Greenhouse Rent Reserve Account") equal to seventy percent (70%)
of Available Net Cash in excess of amounts required to pay rent hereunder;
provided, however, that such payments
-13-
shall not be required at any time when the amount on deposit in the Greenhouse
Rent Reserve Account equals or exceeds Base Rent to become due on the next
succeeding four (4) Quarterly Payment Dates. Thermo shall deliver such sums to
the Disbursement Agent provided for under the Loan Agreement (or to any
successor Disbursement Agent) to be held as security for payment of rent
hereunder by Rocky Mountain. Commencing with the first Calculation Period and
continuing until the Greenhouse Rent Reserve Account shall no longer be required
hereunder, Rocky Mountain shall not declare or pay any dividend or make any
distribution of cash or other property at any time while the Greenhouse Rent
Reserve is not fully funded. In the event that Rocky Mountain shall not have
sufficient Available Net Cash to pay all rent due on any Quarterly Payment Date.
Thermo shall return to Rocky Mountain, from the Rent Reserve Account, sums
sufficient to pay such rent, (to the extent of funds then on deposit in the Rent
Reserve Account), and Rocky Mountain shall forthwith remit such sums to Thermo
for payment of rent. Amounts so returned to Rocky Mountain from the Greenhouse
Rent Reserve Account shall be applied to avert Postponements to which Rocky
Mountain would otherwise be entitled under paragraph 4.6 on such Quarterly
Payment Date, but Thermo shall not be entitled to apply funds obtained from the
Greenhouse Rent Reserve Account to reduce Postponements which accrued on prior
Quarterly Payment Dates. Thermo shall also return to Rocky Mountain from the
Greenhouse Rent Reserve Account on each Quarterly Payment Date any balance in
such account in excess of Base Rent to become due on the next succeeding four
(4) Quarterly Payment Dates. Promptly after receipt of the Tax Rate Certificate,
Thermo shall return to Rocky Mountain the difference between 80% of Available
Net Cash in excess of rent deposited for the preceding tax year and the lesser
percentage (but not less than 70%) of Available Net Cash in excess of rent which
Rocky Mountain was obligated to deposit during such tax year as established by
the Tax Rate Certificate. Upon expiration or earlier termination of the Lease
Term, or upon the Greenhouse Rent Reserve Account no longer being required
hereunder, Thermo shall return all funds then on deposit in such account to
Rocky Mountain. Should an alternate form of security for payment of rent by
Rocky Mountain or a reduced amount of such security be acceptable to the party
or parties providing financing for the Plant and/or the Facility, Rocky Mountain
and Thermo shall cooperate to establish such alternate form or reduced amount of
security. Anything in this paragraph 4.7 to the contrary notwithstanding, Thermo
shall also have the right to set off against rent then due from Rocky Mountain
hereunder all sums obtained by Thermo from the Greenhouse Rent Reserve Account,
in lieu of returning such sums to Rocky Mountain for remission to Thermo. Should
Thermo exercise such right of set off it shall promptly advise Rocky Mountain
thereof.
4.8 Impact of Certain Thermo Financing. Rocky Mountain's payment
----------------------------------
obligations under this Section 4 are subject to the provisions of paragraph 16
of the Supplemental Agreement.
-14-
5. PURCHASE BY ROCKY MOUNTAIN
--------------------------
5.1 Option to Purchase Facility. Subject to the provisions of paragraph 4
---------------------------
of a certain Supplemental Agreement of even date (the form of which is attached
hereto as Appendix II and is hereinafter referred to as the "Supplemental
Agreement"), for a period beginning on the Commencement Date and expiring twelve
(12) years after the Commencement Date, Thermo grants to Rocky Mountain the
right and option ("Purchase Option") to purchase the Facility upon payment of
the Option Purchase Price determined in accordance with Exhibit C and paragraph
5.2; provided, however, that at the time of exercise of the Purchase Option, and
at the time of closing of such purchase, neither Rocky Mountain nor any
Affiliate of Rocky Mountain shall be in default under this Agreement or any
other agreement then existing between Rocky Mountain on any Affiliate of
Rocky Mountain on one hand, and Thermo or any Affiliate of Thermo on the other;
provided, further, that such purchase shall be closed within the time designated
by Rocky Mountain in its Notice of exercise or such extended time as may be
permitted under paragraph 5.5.
5.2 Exercise of Option: Purchase Price: Closing. Rocky Mountain must
-------------------------------------------
exercise the Purchase Option, if at all, by notifying Thermo of exercise thirty
(30) days or more prior to the date on which Rocky Mountain desires to accept
title to the Facility, but under no circumstances shall such Notice be given
later than one (1) month prior to expiration of the Purchase Option. If the
Purchase Option is exercised, the purchase shall be closed on the last day of
any calendar quarter designated by Rocky Mountain for closing in the Notice of
exercise, but under no circumstances later than the expiration date of the
Purchase Option as provided in paragraph 5.1. The "Option Purchase Price" shall
be, as of the applicable calendar quarter end, the amount on Exhibit "C"
attached hereto (as adjusted, if required, pursuant to the Rent Adjustment
Memorandum), plus any other payments accrued to Thermo hereunder as of the date
of closing, plus any outstanding Postponements and accrued interest thereon in
accordance with paragraph, 4.6, above, plus any prepayment premium of any nature
which Thermo shall be obligated to pay on the Option Purchase Price (but not on
any other sum prepaid in conjunction therewith) to any third party providing
financing for the Plant and/or the Facility holding a security interest in the
Facility and who shall be entitled to receive proceeds from payment of the
Option Purchase Price in accordance with the loan agreement and supporting
security documents between Thermo and such third party, plus the additional sum
of Ten Thousand Dollars ($10,000). Closing shall occur at the principal office
of Thermo, or such other mutually convenient location as the parties may
designate.
5.3 Title to and Condition of Assets Purchased. At the closing of any
------------------------------------------
purchase hereunder, Rocky Mountain shall pay the applicable Option Purchase
Price to Thermo in cash, and Thermo shall convey to Rocky Mountain all of
Thermo's right, title, and interest in the Facility by general warranty deed,
free and clear of all mortgages, liens, and other encumbrances relating to
financing obtained or debts incurred by Thermo, but subject to the continuing
covenants of this Agreement and to the other matters provided in sections 7 and
8 (except paragraph 4.7), which shall be covenants running with the Land for the
benefit of the remaining portion of the Project Site (described in Part II of
Exhibit A) and be enforceable for a period concurrent with the expiration date
of the Thermal Term as if the purchase had not occurred, and subject to those
further matters, if any, then comprising the "Schedule of Permitted
Encumbrances"
-15-
attached hereto as Exhibit H. The foregoing notwithstanding, Thermo may elect to
convey by special warranty deed, in which event Thermo shall purchase and
provide to Rocky Mountain an ALTA Owner's Policy of Title Insurance in the
amount of the applicable Option Purchase Price. Such title insurance policy
shall insure title in Rocky Mountain subject only to standard exceptions
provided in such form and to special exceptions permitted under this paragraph
5.3). Rocky Mountain shall accept such conveyance of the Facility "as is, where
is," and "with all faults," and shall thereafter defend, indemnify and save
Thermo harmless from any losses, Damages or claims arising out of or occurring
in connection with the operation of the Facility except such losses, damages,
and claims as may arise out of the negligent or intentionally tortious acts or
omissions of Thermo, its agents, and employees.
5.4 Ground Rent if Facility Purchased. In the event that Rocky
---------------------------------
Mountain purchases the Facility, Thermo shall, subject to the provisions of
paragraph 5.5, retain the lessor's interest in the Land (i.e. the reversion in
fee), and the Land will thereafter comprise the entirety of the Leased Premises.
In such event, the Lease Term shall continue with respect to the Land only.
Effective on the closing date of such purchase, total Base Rent for the Leased
Premises for the remainder of the Lease Term shall be reduced to an amount equal
to the number of whole or partial months remaining in the Lease Term multiplied
by one percent (1%) of the unencumbered fair market value of the Land
(determined as if there were no improvements thereon) as of the closing date.
Such reduced total Base Rent shall be payable in equal quarterly installments,
in arrears three (3) months after the closing date and on the same day of each
quarter during the remainder of the Lease Term. The amount of each such
installment shall be three percent (3%) of the unencumbered fair market value
of the Land as of the closing date. Additional Rent for the Land during such
period of ground rent only shall consist of real property taxes and assessments
levied with respect to the Land, and shall be paid in the same manner required
for payment of taxes and assessments with respect to the Land and the Facility
pursuant to paragraph 4.2.
5.5 Purchase of Land: Conditions. Prior to exercising the Purchase
----------------------------
Option, Rocky Mountain may request that Thermo enlarge the Purchase Option to
encompass the right to also purchase all of Thermo's right, title, and interest
in the Land. Thermo shall do so if Rocky Mountain determines, in Rocky
Mountain's discretion reasonably exercised, that Rocky Mountain is unable to
obtain commercially reasonable financing for purchase of the Facility without
also purchasing the Land, and if Rocky Mountain provides to Thermo reasonable
assurances that if the Purchase Option is enlarged Rocky Mountain will in fact
proceed to purchase the Leased Premises, including the Land. In such event, the
Option Purchase Price for the Leased Premises shall be increased by adding
thereto an amount equal to the unencumbered fair market value of the Land
(determined as if there were no improvements thereon) as of the date the
Purchase Option is exercised, and upon payment of such increased Option Purchase
Price Thermo shall, at the closing, also convey the Land to Rocky Mountain in
the same manner and subject to the terms and conditions provided in paragraph
5.3. Rocky Mountain shall have no right or option to purchase the Land separate
and apart from, or later than, the purchase by Rocky Mountain of the Facility
through exercise of the Purchase Option. Should it become necessary to determine
the fair market value of the Land by appraisal pursuant to paragraph 5.7, the
date for closing may be extended to the extent necessary to complete the
appraisal process.
-16-
5.6 Certain Obligations to Continue. Should Rocky Mountain purchase
-------------------------------
the entirety of the Leased Premises, i.e. both the Facility and the Land, both
the Lease Term and Rocky Mountain's obligation to pay rent shall cease. The
foregoing notwithstanding, in the event of a purchase, there shall be no
apportionment of any expenses with respect to the property purchased, and Rocky
Mountain shall continue to pay all costs and charges of any nature which Thermo
may become obligated to pay with respect to the Facility, and (if applicable)
the Land and which, but for such purchase by Rocky Mountain, would have been
payable by Rocky Mountain as Additional Rent. Anything herein to the contrary
notwithstanding, all covenants and obligations of this Agreement pertaining
to thermal supply matters (including, without limitation, sections 7 and 8)
shall continue, after termination of the Lease Term as a result of purchase by
Rocky Mountain of either the Facility or the entire Leased Premises, for the
period ending on the date for expiration of the Thermal Term.
5.7 Valuation by Appraisal. Whenever this Agreement requires that the
----------------------
fair market value of the Land be determined as of any particular date, the
parties shall negotiate in good faith to determine such value for a period of up
to thirty (30) days after it becomes apparent that valuation is required. If
they are unable to agree within such period, either party may, by Notice to the
other, demand that the value be determined by appraisal. The party demanding
appraisal shall, at the time such demand is made, designate a professional real
estate appraiser to perform such appraisal. If such appraiser is not acceptable
to the non-designating party, the non-designating party shall, within ten (10)
days after demand for appraisal is made, designate a second professional
appraiser. If such second professional appraiser is acceptable to the party
having first demanded appraisal, the appraisal shall be performed by the second
appraiser so designated. Otherwise, both parties (or, should the parties be
unable to agree, the two previously designated appraisers) shall, within ten
(10) days after the second appraiser is designated, designate a third appraiser,
and the three (3) appraisers shall, within thirty (30) days after the third
appraiser is designated, jointly determine the fair market value of the Land, on
an unencumbered and unimproved basis, and render a written report of such
determination to both parties. The appraisers shall attempt to determine value
by consensus, but if they are unable to do so the fair market value of the
property appraised shall be deemed to be the average of their separate
valuations; provided, however, that if two of the three appraisers' valuations
are within ten percent (10%) of each other, and the third appraiser's valuation
is more than ten percent (10%) different from either of the other two
valuations, the valuation which is more than ten percent (10%) different shall
be disregarded. All appraisers shall be independent of either party and shall be
persons having not less than ten (10) years' experience in appraisal of
commercial and industrial real property in the Counties of Weld, Denver,
Boulder, and Xxxxx, Colorado, or if less experienced in the local market shall
hold the then-current designation of Member of the Appraisal Institute ("MAI"),
Society of Industrial Realtors ("SIR"), or other professional appraiser
designation of comparable stature and qualification. Costs and expenses of
appraisal shall be borne equally by Thermo and Rocky Mountain. If any other
transaction in property sold or leased by thermo on or in the vicinity of the
Project Site shall be considered by the appraisers as a comparable transaction,
the appraisers shall analyze and take into consideration, when evaluating such
comparable transaction, the impact of any thermal energy sales contracts or
agreements entered into with Thermo in connection with such transaction.
-17-
5.8 Mortgage to Secure Performance. Upon closing of any purchase
------------------------------
provided for in this section 5, whether of the Facility alone or of the entire
Leased Premises, should any party providing financing to Thermo so request,
Rocky Mountain shall execute and deliver to Thermo a Mortgage of the Facility
(and if applicable the Land) in substantially the form attached hereto as
Exhibit "D" (the "Mortgage"), in order to secure to Thermo performance by
Rocky Mountain of each and every obligation by Rocky Mountain hereunder which
will survive such purchase by Rocky Mountain. The Mortgage shall be
subordinated in priority to a deed of trust or other financing encumbrance
granted by Rocky Mountain to secure repayment by Rocky Mountain of purchase
money paid to Thermo; or to secure funds advanced to Rocky Mountain from time
to time by a recognized commercial bank or other institutional lender for
working capital purposes; provided, however, that such subordination shall
provide that the Mortgage shall survive foreclosure of any such deed of trust or
other financing encumbrance to which the Mortgage is subordinated, and that any
purchaser of the former Leased Premises at foreclosure shall take title
subject to the terms of the Mortgage. Thermo may assign the Mortgage and all
of its rights thereunder to any party providing financing to Thermo for the
Plant and/or the Facility.
5.9 Impact of Certain Thermo Financing. Rocky Mountain's rights under
----------------------------------
this section 5 are subject to the provisions of paragraph 4 of the Supplemental
Agreement.
6. CONSTRUCTION OF FACILITY
------------------------
6.1 Acceptance of Site. Prior to signing this Agreement, Rocky Mountain
------------------
has visited the Project Site and has examined the Land to its satisfaction.
Rocky Mountain has also obtained such zoninq and other land use regulation
information, soils and subsurface investigation information, and information
with respect to present or prospective availability of utilities, including
without limitation water, sewerage, waste disposal, natural gas, and
electricity, and such other information with respect to the Project Site as
Rocky Mountain deems prudent. Rocky Mountain agrees to commence construction on
the Land pursuant to paragraph 6 4 "as is" (or as shall have been placed by
"Owner" pursuant to the Construction Contract) and to accept possession of the
Land on the Commencement Date as the Land shall be improved pursuant to this
Agreement. Rocky Mountain agrees to make no claims against Thermo with respect
to the physical condition of the Project Site or the Land, and agrees to save,
indemnify and hold Thermo harmless from any such claims asserted by Affiliates
of or persons claiming under Rocky Mountain.
6.2 Preliminary Plans and Schedule. Attached hereto (or incorporated
------------------------------
by reference) as Exhibit E are preliminary drawings and an outline construction
specification for the Facility (the "Preliminary Plans") which have been
furnished by Rocky Mountain. Thermo shall review the Preliminary Plans promptly
to the extent that they provide for interface between the Facility and the
Plant, and shall give Notice to Rocky Mountain within fifteen (15) days after
the effective date stating whether or not the Preliminary Plans are satisfactory
to Thermo for such purposes. Any such Notice shall specify the reasonable
revisions (if any) with respect to interface matters which Thermo requires. In
all other aspects, the Preliminary Plans are agreed by the parties to be
satisfactory. Also attached hereto (or incorporated by reference) as
-18-
Exhibit F is a "Preliminary Construction Schedule" showing the approximate time
which Rocky Mountain has estimated will be required to construct the Facility.
Based on the Preliminary Plans and the Preliminary Construction Schedule, Thermo
has familiarized itself generally with the nature and scope of the Work required
to construct the Facility. Both parties have considered the Preliminary Plans
and the Preliminary Construction Schedule in determining the time for completing
the Facility and for giving Notice to Proceed pursuant to paragraph 6.4.
6.3 Construction Plans: Changes. Within sixty (60) days after the
---------------------------
later of either Financial Closing or the delivery by Thermo of Notice to Proceed
(accompanied by any "Notice to Proceed Payment" required in the Construction
Contract) Rocky Mountain shall cause to be prepared and delivered to Thermo
Construction Plans. The Construction Plans shall be satisfactory in all respects
to Rocky Mountain, and shall be consistent with the Preliminary Plans. Thermo
shall promptly review the Construction Plans and shall have the right to require
reasonable changes in the Construction Plans in order to ensure that the
Facility will permit the Plant to attain and retain "Qualifying Facility" ("QF")
status for purposes of the Public Utility Regulatory Policies Act of 1978 (also
referred to herein as "PURPA") and to provide for proper interface between the
Facility and the Plant, but not to increase the size or scope of the Facility.
Rocky Mountain shall promptly cause such reasonable changes required by Thermo
to be made to the Construction Plans and shall resubmit the Construction Plans
to Thermo. Thermo shall not withhold or delay approval of the Construction Plans
nor shall Thermo require changes to the Construction Plans which would
materially change the size of the Facility or the scope of the "Work" (as
defined in the Construction Contract). Under no circumstances shall Rocky
Mountain be required or permitted to make any change in the Work which would
make the Facility materially less satisfactory for commercial agricultural
purposes. Upon approval by Thermo of the Construction Plans they shall be
incorporated by reference into the Construction Contract. Thermo and Rocky
Mountain acknowledge that the Construction Contract gives both parties the
authority to make certain changes to the Work after the Construction Plans have
been initially approved, subject to Thermo's prior approval of any change which
would downsize the Facility, affect Facility/Plant interface, impair QF status
for PURPA purposes, impair Plant qualification under applicable on-system power
purchase agreements with a public utility, or materially increase the "Cost of
the Work" (as defined in the Construction Contract) when compared to the Work
Budget (in its original form) which is attached to the Construction Contract.
For purposes of such provisions, changes of not more than $25,000.00 for any
single change or more than $100,000.00 for all such changes (taken in the
aggregate) ordered by Rocky Mountain shall be deemed not to materially increase
the Cost of the Work. Subject to the foregoing, Rocky Mountain shall retain full
responsibility for the Facility design and for the sufficiency and integrity of
all plans and specifications which are used for construction of the Facility.
Rocky Mountain agrees to make no claims against Thermo with respect to the
design of the Facility, such plans and specifications, or the suitability of
the Facility, as finally constructed and occupied, for use as a commercial
greenhouse as required by this Agreement.
6.4 Construction Contract: Completion. Contemporaneously herewith
---------------------------------
Thermo and Rocky Mountain have entered into a construction contract in
substantially the form attached hereto as Exhibit F the ("Construction
Contract"). The Construction Plans shall be incorporated by reference into the
Construction Contract promptly after the Construction Plans have been delivered
to Thermo by Rocky Mountain
-19-
and have been approved by Thermo. Not less than eight (8) months prior to the
date on which Thermo anticipates that the initial Date of Commercial Operation
of the Plant shall occur, Thermo shall give "Notice to Proceed" to the
Contractor under the Construction Contract, accompanied by any Notice to Proceed
payment required by the Construction Contract. Rocky Mountain, acting as
Contractor, shall thereupon proceed expeditiously to construct the Facility
pursuant to the Construction Contract so as to achieve Substantial Completion
not later than eight (8) months after Notice to Proceed is given, subject to
extension as expressly provided in the Construction Contract (the "Completion
Date"). The Completion Date shall also be subject to extension to the extent
that the anticipated initial Date of Commercial Operation provided in paragraph
3.1 is extended. Both Thermo and Rocky Mountain shall use their best efforts to
coordinate their respective construction activities on the Project Site in such
a manner to avoid materially impeding each other with respect to completion of
the Plant and the Facility. All vendors and subcontractors for the Facility
proposed to be engaged by Rocky Mountain acting as Contractor shall be subject
to review and prior approval by Thermo. Subject to active interference with the
prosecution of the Work which materially delays Rocky Mountain acting as
Contractor and is caused solely by Thermo or any person having a direct contract
with Thermo for construction of the Plant, Rocky Mountain, acting as Contractor,
shall (and hereby does) guarantee to Thermo that the Facility shall be
Substantially Complete and ready for use, and occupancy, not later than the
Completion Date. Should the "Project Manager" under the Construction Contract
notify Thermo that it appears to the Project Manager, after due investigation
and consultation with Rocky Mountain that Rocky Mountain is not proceeding so as
to cause the Facility to be Substantially Complete by such Date, Thermo may,
subject to such rights of cure as are provided under the Construction Contract,
exercise its rights under the Construction Contract to declare Rocky Mountain in
default thereunder and, at Thermo's option, terminate the Construction Contract
or, without terminating the Construction Contract, finish the Work as provided
in the Construction Contract. This paragraph 6.4 is subject to the provisions
for extension of time provided in the Construction Contract.
6.5 Contract Sum. The "Contract Sum" under the Construction Contract
------------
shall be the "Cost of the Work" as defined thereunder, plus a "Contractor's Fee"
as provided in the Construction Contract. For purposes of estimating the Base
Rent provided in paragraph 4.1, the Contract Sum has been estimated at Seven
Million Eight Hundred Thousand Dollars ($7,800,000). The Contract Sum shall be
disbursed by Thermo to the Contractor in a timely manner in accordance with the
requirements of the Construction Contract.
7. THERMAL SUPPLY
--------------
7.1 Thermal Energy Commitment - Minimum Level. Thermo shall use
-----------------------------------------
reasonable efforts to cause the Plant to be constructed as herein provided.
Thermo plans that as constructed the Plant will be capable of generating
available thermal energy of not less than sixty million (60,000,000) BTU per
hour. Thermal energy shall be made available to and shall be accepted by Rocky
Mountain at a heat transfer subsystem which shall be constructed by Thermo and
shall constitute a portion of the Plant. Thermal energy shall then be
transmitted to the Facility by means of a self-contained, closed system
circulating hot water loop which shall be part of the Facility. The heat
transfer subsystem shall be reasonably satisfactory to Rocky Mountain and shall
include (but not
-20-
be limited to) interface equipment which will facilitate the prompt connection
to the heat transfer subsystem of temporary steam boiler equipment in the event
of need to utilize temporary sources of thermal energy to supply thermal energy
to the Facility. The heat transfer subsystem shall be located in reasonable
proximity to the boundary of the Land but shall not be located on the Land.
Rocky Mountain shall at all times have satisfactory access to the heat transfer
subsystem for the purpose of connecting thereto such temporary sources of
thermal energy as may be required pursuant to paragraph 7.4, below. After the
Plant is constructed, Thermo shall continually use its best efforts to make
available for use by Rocky Mountain, beginning on the initial Date of Commercial
Operation and extending for a period of twenty-five (25) years thereafter, a per
annum quantity of thermal energy generated through operation of the Plant of not
less than Two Hundred Billion (200,000,000,000) BTU, net of condensate loss at
the heat transfer subsystem, measured annually on a calendar year basis (the
"Minimum Annual Heat Requirement"); provided, however, that for any partial
calendar year in which the Thermal Term of this Agreement shall be in effect,
the Minimum Annual Heat Requirement shall be Two Hundred Billion
(200,000,000,000) BTU multiplied by a fraction, the numerator of which shall be
the number of days in such partial calendar year and the denominator of which
shall be three hundred sixty-five (365). The Plant shall include an instrumenta-
tion system, satisfactory to both Thermo and Rocky Mountain, for continuous
measurement and metering of the thermal energy made available by Thermo and
accepted by Rocky Mountain at the heat transfer subsystem. Both parties to this
Agreement shall have continuous access to such instrumentation system at all
reasonable times for the purposes of monitoring and recording thermal energy
available to and accepted by Rocky Mountain and inspecting the instrumentation
system. Maintenance, testing, and adjustment of the instrumentation system shall
be the responsibility of Thermo. Thermo shall test and calibrate the
instrumentation system from time to time as reasonably requested by Rocky
Mountain, but not less than is necessary to ensure accuracy and measurement of
available and accepted thermal energy. Rocky Mountain shall defend, indemnify
and save harmless Thermo and the other persons who constitute Indemnitees under
paragraph 10.1 below, from any liabilities, costs, expenses, or Damages
resulting from entry on to Project Site by Rocky Mountain, its agents, employees
and contractors, for purposes of obtaining access to the heat transfer subsystem
and the heat transfer instrumentation system.
7.2 Thermal Energy Commitment - Additional Level. Upon not less than
---------------------------------------------
seven (7) days' advance request by Rocky Mountain, Thermo may make available to
Rocky Mountain quantities of thermal energy in excess of the Minimum Annual
Heat Requirement, and Thermo shall do so if it is consistent with Plant
operating requirements (which shall include, without limitation, the
requirements of on system power purchase agreements) and the utilization of or
commitments to make thermal energy available to other thermal users (if any)
served by Thermo who may from time to time conduct operations on or in the
vicinity of the Project Site.
7.3 Manner of Furnishing Thermal Energy. Not less frequently than
------------------------------------
before noon of each Monday during the Thermal Term, Rocky Mountain shall
prepare and furnish to Thermo a written forecast of Rocky Mountain's expected
minimum daily requirements for thermal energy during the ensuing seven (7) day
period which begins at 8:00 a.m. on the first Tuesday following the day the
forecast is delivered. This forecast shall be updated by Rocky Mountain verbally
or in writing as often as may be reasonable and practical for Rocky Mountain to
do so in order to take into consideration
-21-
anticipated changes in operating conditions, including without limitation
expected changes in weather which would materially increase Rocky Mountain's
thermal energy requirements. Based on the forecasts of heat requirements and the
supplemental heat requirements information which Rocky Mountain shall have
provided to Thermo in a timely manner, Thermo shall operate the Plant in a
manner which will result in the Minimum Annual Heat Requirement being made
available to Rocky Mountain during each calendar year substantially in
accordance with such forecasts and supplemental information. In the event that,
after reasonable prior notice of Rocky Mountain's heat requirements Thermo
should fail to make available thermal energy from operations of the Plant
substantially in accordance with Rocky Mountain's forecasts and supplemental
heat requirements information (within the limits of 60,000,000 BTU per hour and
not in excess of the Minimum Annual Heat Requirement in any calendar year),
Thermo shall make thermal energy available to Rocky Mountain, in a timely manner
and substantially in accordance with Rocky Mountain's forecasts, from alternate
sources arranged by Thermo at Thermo's expense, and should Thermo fail to do so,
Thermo shall be liable to Rocky Mountain as hereinafter provided in paragraph
7.4.
7.4 Temporary Sources of Thermal Energy. Should Thermo fail to furnish
------------------------------------
thermal energy in accordance with paragraph 7.3 on a timely basis after demand
by Rocky Mountain, Rocky Mountain shall, to the extent it is reasonably
practical to do so, attempt to obtain temporary alternate sources of thermal
energy and charge Rocky Mountain's costs in connection therewith to Thermo.
Should Thermo become aware of impending condition(s) which are likely to
materially impair Thermo's ability to furnish, thermal energy as required under
paragraph 7.3, Thermo shall give notice (verbally or in writing) of such
conditions to Rocky Mountain as soon as it is practical to do so. Should Rocky
Mountain be able, in the exercise of reasonable diligence, to obtain and utilize
such temporary alternate sources of thermal energy the actual incremental cost,
(i.e. the cost in excess of Fifty Cents ($.50) per One Million BTU) to Rocky
Mountain of obtaining thermal energy from alternate sources shall be paid by
Thermo and be compensation in the nature of liquidated damages, as Rocky
Mountain's sole remedy in such event. Further, should the Facility be
constructed or modified to include permanent standby heat generating or heat
storage equipment reasonably satisfactory to Rocky Mountain, Rocky Mountain
shall be responsible for operating such equipment in the event that Thermo
should fail to furnish thermal energy, and the actual incremental cost (i.e. the
cost in excess of Fifty Cents ($.50) per One Million BTU produced) of operating
such equipment in a manner which will avoid loss or material damage to Rocky
Mountain's crop because of failure by Thermo to supply thermal energy as herein
required shall also be compensation in the nature of liquidated damages in lieu
of the liquidated damages specified in the preceding sentence. At any time
during the Thermal Term, Thermo shall have the right to install, or to cause
Rocky Mountain to install, such permanent standby heat generating or heat
storage equipment in the Facility at Thermo's expense. The parties agree that in
the event that Rocky Mountain should receive less than ninety-six (96) hours'
prior notice (written or verbal) from Thermo that Thermo will not be able to
furnish thermal energy to Rocky Mountain in a timely manner (i.e. as and to the
extent contemplated under paragraph 7.3), Rocky Mountain's ability to arrange
for temporary sources of thermal energy in sufficient time to avert probable
damage to Rocky Mountain's crop may be materially impaired. Should Rocky
Mountain be unable, in the exercise of reasonable diligence, to obtain temporary
alternate sources of thermal energy under such circumstances, and if the
Facility does not then include permanent standby heat generating or heat storage
equipment, then Rocky Mountain shall be entitled to seek
-22-
recovery of its Damages resulting from failure by Thermo to supply thermal
energy as herein required; provided, however, that (i) so long as Thermo shall
have paid or reimbursed premiums for a policy of insurance insuring the risk of
damage to crop because of loss of heat as further described in paragraph 9.7,
below, or (ii) Rocky Mountain shall have obtained a policy of such insurance as
permitted under paragraph 9.7, (a) Rocky Mountain shall not be entitled to claim
a breach or default under this Agreement because of failure by Thermo to furnish
thermal energy as herein required; and (b) Rocky Mountain shall have no claim
for loss or damages of any nature arising out of such occurrence except to the
proceeds of such insurance (whether such proceeds are payable directly to Rocky
Mountain as named insured or to Thermo as indemnification or Thermo's liability
to Rocky Mountain under such circumstances). Thermo shall reimburse Rocky
Mountain for any deductible under such insurance which actually diminishes
recovery by Rocky Mountain under such circumstances.
7.5 Use and Operation of Facility: Use of Thermal Energy. As an
-----------------------------------------------------
essential term of this Agreement, Rocky Mountain shall use and operate the
Facility only as a greenhouse for commercial production of agricultural
products, or for such alternative uses (which may not be implemented prior to
Thermo obtaining certification by the Federal Energy Regulatory Commission that
such altered use will continue to qualify the Plant as a QF, and must in any
event require consumption of sufficient useful thermal energy for the Plant to
remain a QF) as may be approved by Thermo prior to any change of use. Thermo
shall not withhold or delay approval unreasonably. Rocky Mountain shall, in
connection with operation of the Facility, provide to Thermo forecasts pursuant
to paragraph 7.3 calling for at least One Hundred Percent (100%) of the minimum
Annual Heat Requirement to be consumed each calendar year beginning with the
year in which the initial Date of Commercial Operation occurs. Unless it is
impossible for Rocky Mountain to do so (and notwithstanding the provisions of
paragraph 7.7 below), Rocky Mountain shall accept One Hundred Percent (100%) of
the Minimum Annual Heat Requirement, plus any additional thermal energy made
available by Thermo to Rocky Mountain upon Rocky Mountain's request,and shall
utilize such Minimum Annual Heat Requirement provided by Thermo for useful
thermal purposes in accordance with rules and regulations from time-to-time
promulgated and in effect under PURPA and any amendment thereof; provided,
however, that this sentence shall not be construed to require use of the
Facility for purposes other than a commercial greenhouse. Rocky Mountain shall
request additional thermal energy from Thermo prior to obtaining or generating
thermal energy for such agricultural production purposes (or approved alternate
useful thermal purposes) from any other source. Rocky Mountain shall refrain
from utilization of any other source of thermal energy (except solar generated
radiant energy) in connection with activities conducted at the Facility so long
as Thermo is able to make available thermal energy to Rocky Mountain sufficient
to satisfy Rocky Mountain's needs. Should Thermo be unable to supply from Plant
operations all of Rocky Mountain's requirements for thermal energy at any time,
Rocky Mountain shall nevertheless be obligated to accept and use, in the manner
herein provided, such portion of Rocky Mountain's requirements as Thermo is able
to and does supply from Plant operations.
7.6 Thermal Payments. Subject to paragraph 7.7 below, beginning
-----------------
with the last day of the first complete calendar quarter after the initial Date
of Commercial Operation shall have occurred, and continuing for the entire
Thermal Term, Rocky Mountain shall pay to Thermo Fifty Cents ($.50) Per One
Million (1,000,000) BTU (or portion thereof) of Thermal Energy made available
pursuant to Rocky Mountain's
-23-
forecasts under paragraph 7.3 up to the Minimum Annual Heat Requirement, and One
Dollar ($1.00) per One Million (1,000,000) BTU (or portion thereof) for thermal
energy requested by Rocky Mountain and supplied by Thermo pursuant to paragraph
7.2 in excess of the Minimum Annual Heat Requirement by Thermo to Rocky Mountain
during such calendar quarter. Such quarterly payment obligations are herein
referred to as "Thermal Payments." On every January 1 beginning with the second
complete calendar year after the initial Date of Commercial Operation, such
rated per MMBTU shall be adjusted by multiplying the rates in effect during the
preceding calendar year by one hundred three percent (103%). Thermal Payments
shall be due and payable within thirty (30) days after receipt by Rocky Mountain
of Thermo's invoices for such thermal energy. Rocky Mountain's payment
obligations under this paragraph 7.6 are subject to paragraph 16 of the
Supplemental Agreement.
7.7 Force Majeure. The obligations of Thermo to supply thermal energy
-------------
hereunder shall be suspended for so long as Thermo is prevented from performing
such obligations by an act of God, strike, fire, flood, explosion, disease,
blight, pestilence, or any other cause of the kind specifically enumerated in
this sentence hereinafter a condition of "Force Majeure"). The obligations of
Rocky Mountain to make Thermal Payments hereunder shall be suspended for so long
as Rocky Mountain is prevented because of conditions of Force Majeure from
utilizing the Facility for commercial production of agricultural products. The
foregoing notwithstanding, no occurrence or circumstances shall give rise to a
condition of Force Majeure unless such occurrence or circumstances are not
reasonably within the control of and could not, in the exercise of reasonable
diligence, have been avoided by the affected party, and under no circumstances
shall a condition of Force Majeure be deemed to exist solely because of
operational or business circumstances which would require the affected party to
carry on its operations under this Agreement at an economic loss. Such
operational or business circumstances might include, by way of example and
without limitation, lack of demand for or fluctuations in the price of
electricity, fluctuations in the price of fuel and other costs of operation the
Plant, lack of demand for or fluctuations in the price of agricultural products,
and fluctuations in the costs of operating the Facility. Both parties shall use
best efforts to cause all conditions of Force Majeure to be alleviated as soon
as is reasonably practical (and in any event in not more than thirty (30) days),
but nothing herein shall be construed to require the settlement of strikes or
labor disputes in any manner or at any time other than in a manner and at a time
which is within the discretion of the party affected thereby. Further
notwithstanding the foregoing, and without regard to the existence of any
condition of Force Majeure, Rocky Mountain shall continue to accept and utilize
for useful thermal purposes thermal energy made available by Thermo in
accordance with the requirements of this section 7 unless it is impossible for
Rocky Mountain to do so, and then only to the extent of such impossibility.
7.8 Duration of Covenants. Notwithstanding any earlier purchase by
---------------------
Rocky Mountain of the Facility (and if applicable the Land), Thermo and Rocky
Mountain shall be and remain obligated to each other as provided in this section
7 for the Thermal Term, which shall begin on the Commencement Date and shall
expire twenty five (25) years after the initial Date of Commercial Operation of
the Plant. Should Rocky Mountain purchase the Facility (and if applicable the
Land), the provisions of this section 7 shall constitute covenants running with
the Land and with the portion of the Project Site described in Part II of
Exhibit A, and be binding for such twenty-five (25) year period on Rocky
Mountain and Thermo, and their respective successors-in-title to the Land and
the portion of the Project Site described in Part II of Exhibit A.
-24-
8. FACILITY USE, OCCUPANCY,
AND OPERATION
------------------------
8.1 No Other Activities. Rocky Mountain has not
--------------------
heretofore engaged, and shall refrain from engaging, in any business or activity
other than the development, construction, equipping and operation of the
Facility in compliance with this agreement and the adjunct agreement entered
into pursuant to this Agreement.
8.2 Compliance with Law Generally. Rocky Mountain agrees
------------------------------
that the Facility and the Land shall be used and occupied for the purposes
provided in paragraph 7.5 in a careful, safe, and proper manner, that no
activity which is known in the insurance industry as extra or especially
hazardous shall be permitted therein, and that no waste shall be committed or
suffered by Rocky Mountain to the Leased Premises. Rocky Mountain shall at all
times comply with all laws, ordinances, and lawful regulations of federal,
state, and local governmental authorities having jurisdiction over the Facility
and the Land. Rocky Mountain shall at all times maintain in force and effect all
permits and licenses, if any, required for the operation of the Facility as a
commercial greenhouse. except such permits and licenses as apply to the Plant
and the Facility jointly, which shall be obtained and maintained by Thermo.
8.3 Environmental Compliance. Without limitation of
-------------------------
paragraphs 5.3, 8.2, or 10.1, Rocky Mountain shall at all times comply fully
with all laws, rules, regulations and ordinances now existing or hereafter
enacted of any public authority having jurisdiction with respect to the storage,
use, or release of "Materials of Environmental Concern" at the Facility and on
the Land. For purposes hereof, "Materials of Environmental Concern" shall mean
chemicals, pollutants, contaminants, wastes, degradation by-products, toxic
substances, petroleum and petroleum products, including without limitation
"hazardous substances," "hazardous wastes," "toxic substances," and "toxic
pollutants," as defined in or identified pursuant to any "Environmental Laws."
8.4 Clean and Orderly Appearance. Rocky Mountain shall
-----------------------------
at all times keep the Facility and the Land in a clean, neat, and orderly
condition typical of a well managed commercial greenhouse, shall cause trash and
refuse to be stored out of view of the general public and the adjoining
property, and shall cause such trash, refuse, and other waste products to be
removed on a regular basis. Rocky Mountain shall keep all parking and walkway
areas on the Land clean, orderly, and reasonably free from snow, ice, and
debris. This paragraph 8.4 is subject to the provisions of paragraph 7 of the
Supplemental Agreement.
8.5 Repairs and Maintenance. Rocky Mountain shall from
------------------------
time to time make, at Rocky Mountain's expense, all necessary interior and
exterior repairs and replacements to the Facility and all parts thereof, and
shall perform all necessary interior and exterior maintenance to the Land, the
Facility and the other improvements thereon, including without limitation the
landscaped areas, drives, parking areas, aprons, and sidewalks constituting a
part thereof. Such duty to make repairs shall include all structural and
nonstructural repairs and all partial or complete replacements of Facility
-25-
components and building systems which may become necessary or advisable during
the Thermal Term of this Agreement in order for the Plant to be and remain a
Qualifying Facility because of supply of useful thermal energy to the Facility
pursuant to this Agreement; provided, however, that nothing in this paragraph
8.5 shall be construed to require Rocky Mountain to make modifications to or
alterations of the Facility, as distinguished from repairs or replacements of
the Facility or components thereof. Should Thermo be entitled to any guarantees
or warranties with respect to the Facility from contractors or vendors, Thermo
shall assign such guarantees and warranties to Rocky Mountain. Should changes in
PURPA or the regulations promulgated thereunder subsequent to the Effective Date
impose materially more rigorous standards of maintenance of the Facility for the
Plant to be and remain a QF than is then customary for maintenance of similar
commercial greenhouses by prudent greenhouse operators, such more rigorous
requirements shall be deemed to be a PURPA-mandated alteration of the Facility
and to be subject to paragraph 8.6. This paragraph 8.5 is subject to the
provisions of paragraph 7 of the Supplemental Agreement.
8.6 Alterations of Facility: When Permitted and Required.
----------------------------------------------------
After providing not less than thirty (30) days' prior Notice to Thermo
accompanied by Construction Plans for such work, Rocky Mountain may make such
changes to the Facility and the, Facility systems as Rocky Mountain from time to
time require or deem appropriate in Rocky Mountain discretion to adapt the same
to Rocky Mountain's reasonable requirements for the commercial production of
agricultural products or such other uses as may be permitted under paragraph
7.5, above; provided, however, that no such change shall impair or diminish in
any material manner Rocky Mountain's ability to discharge fully all obligations
under section 7; provided, further, that no such change shall adversely affect
the status of the Plant as a Qualifying Facility; and provided, further, that
Thermo shall not have objected to such work within such thirty (30) day period.
Should Thermo not object to such work within such thirty (30) day Period, such
work shall be commenced and thereafter completed expeditiously by Rocky Mountain
in accordance with the Construction Plans submitted by Rocky Mountain. Thermo
shall have the right to witthhold approval of such alterations and such
Construction Plans if the alterations to be made do not meet the foregoing
requirements of this paragraph 3.6. If Thermo withholds approval of Construction
Plans as provided in the preceding sentence, Rocky Mountain shall not proceed
with the proposed alteration, but shall have the right to resubmit revised
Construction Plans which meet the foregoing requirements for Thermo's approval.
Should changes in PURPA or in the rules and regulations promulgated thereunder
subsequent to the Effective Date require modifications in the design, size, or
equipment of the Facility in order for thermal energy supplied to the Facility
by Thermo to be deemed (for PURPA purposes) to be utilized by Rocky Mountain for
a useful thermal purpose or for the Plant to retain (or regain) QF status,
Thermo and Rocky Mountain shall promptly negotiate to determine the scope and
costs of such modifications. At Thermo's request, Rocky Mountain shall thereupon
promptly commence and complete the modifications in design, size, or equipment
of the Facility which are required because of changes in PURPA or rules and
regulations promulgated thereunder) for thermal energy supplied to the Facility
by Thermo to be deemed (for PURPA purposes) to be utilized by Rocky Mountain for
a useful thermal purpose, or for the Plant to retain (or regain) QF status, or
if Rocky Mountain declines to do so Rocky Mountain shall promptly permit Thermo
to do so. Such work shall be performed in an expeditious manner so as to
minimize any period of time during which the Plant shall not be entitled to QF
status pending completion of such modifications and so as to minimize disruption
of agricultural
-26-
production by Rocky Mountain. Regardless of which party proceeds with such
modifications, Thermo shall pay all capital costs associated with such
modifications. If the Purchase Option remains in effect at that time, Exhibit C
shall be modified to reflect an increase in the Base Purchase Price equal to the
fully allocated cost of such additional investment by Thermo. The foregoing
notwithstanding, if the Facility shall have been purchased by Rocky Mountain and
thereafter modifications shall be required for PURPA compliance purposes, Thermo
may request that Rocky Mountain pay the costs of such modifications in lieu of
payment by Thermo, and should Rocky Mountain decline to do so Thermo may pay
such costs as hereinabove provided, and, if such costs exceed a total of Five
Hundred Thousand Dollars ($500,000), at Thermo's option the purchase and sale
of the Facility to Rocky Mountain shall be rescinded, the Option Purchase Price
actually paid shall be refunded to Rocky Mountain, Rocky Mountain shall reconvey
the Facility (and if applicable the Land) to Thermo in the same manner as is
provided in paragraph 5.3, above, and all provisions of this Agreement which had
become inapplicable because of such prior purchase shall be reinstated, except
for the provisions of section 5. In the event of such reconveyance, Thermo shall
also have the right to terminate this Agreement, including the Thermal Term and
the reinstated Lease Term, upon six (6) months' Notice to Rocky Mountain.
8.7 Alterations of Facility: How Effected. All
--------------------------------------
alterations, additions and improvements made by Rocky Mountain (whether or not
Thermo's prior consent is required) shall be effected in a good and workmanlike
manner and subject to prior purchase of the Facility by Rocky Mountain, shall
become the absolute property of Thermo upon expiration or termination of Rocky
Mountain's leasehold or the abandonment of the Leased Premises by Rocky Mountain
unless Thermo elects to require Rocky Mountain to remove the Facility at such
time. Nothing herein shall be construed to constitute Rocky Mountain as the
agent of Thermo for purposes of making any such alterations, additions, or
improvements or to give Thermo any control over the manner of execution of the
work, it being agreed that Rocky Mountain and Rocky Mountain alone is fully
responsible for completion of all such alterations, additions, and improvements.
8.8 Discharge or Liens. Rocky Mountain shall defend,
-------------------
indemnify and hold Thermo and Thermo's interest in the Facility and the Land
harmless from all liens and claims of liens which may be filed or claimed in
connection with any construction repairs, maintenance, alterations, additions,
improvements, or other work made or done by Rocky Mountain on the Facility or
the Land. Upon Thermo's demand, any liens filed against the Facility or the Land
(or against other portions of the Project Site or any improvements thereon)
arising out of or under the Construction Contract or any subcontract (at any
tier) thereunder, or out of any alterations, additions, improvements, or other
work by Rocky Mountain in or on the Leased Premises, shall immediately be
removed by Rocky Mountain, at Rocky Mountain's sole expense, or, if Rocky
Mountain desires to contest the same, Rocky Mountain shall have the right to do
so provided that such contest does not produce a material risk that the Project,
the Facility, the Land, or any significant part thereof, title thereto, or any
significant interest therein may be sold, lost, or forfeited, or the use thereof
interfered with, and provided further that Rocky Mountain shall have posted a
bond for the full amount of such liens. Should any third party providing
financing for the Plant and/or The Facility require Thermo to adhere to more
rigorous standards with respect to the discharge (or bonding) of liens, Rocky
-27-
Mountain shall adhere to such more rigorous standards promptly after Thermo
shall have given Notice to Rocky Mountain of such more rigorous standards.
8.9 Utilities. Rocky Mountain, at its expense, shall
----------
obtain and pay for all necessary or required utilities and other services for
the Facility and the Land. The foregoing notwithstanding, at Rocky Mountain's
request and in lieu of Rocky Mountain obtaining water directly from the City of
Fort Xxxxxx, Thermo shall furnish to Rocky Mountain such reasonable quantities
or raw and/or treated water as shall be available to Thermo and as Rocky
Mountain may reasonably require for operation of a commercial greenhouse in the
Facility in excess of Thermo's requirements from time to time for operation of
the Plant. Thermo shall invoice Rocky Mountain quarterly for Thermo's fully
allocated costs (including without limitation capital investment costs but
without any allocation of general and administrative expenses or allowance for
profit) of providing such water, and such invoices shall be paid by Rocky
Mountain in the same manner as is required herein for the payment of Thermal
Payments. Thermo shall not be liable for any damages Rocky Mountain may suffer
because of any unavailability of or interruption or other deficiency in such
utility services including, without limitation water service furnished by
Thermo, unless such interruption or deficiency is caused by the negligent or
intentionally tortious acts or omissions of Thermo, its agents, and employees in
performance of Thermo's obligations hereunder.
8.10 Abandonment. Should Rocky Mountain vacate or abandon
------------
the Facility, Thermo may enter the same, using such force as may be necessary,
change the locks on the doors, and take possession of the Facility, all without
liability to Rocky Mountain. Thereafter Thermo may use the Facility and the Land
for any desired purpose, with or without terminating this in accordance with
provisions of this Agreement concerning Default.
8.11 Inspection: Maintenance of Records. Rocky Mountain
-----------------------------------
shall permit Thermo to enter and inspect the Facility and the Land at any
reasonable time for any proper purpose, including without limitation review of
compliance by Rocky Mountain with its obligations hereunder and inspection by a
prospective purchaser, mortgagee, or tenant of Thermo's interest in the Facility
or Land. However, Thermo shall have no duty to inspect and no failure by Thermo
to inspect shall relieve Rocky Mountain of any duty which Rocky Mountain may
have under this Agreement. Rocky Mountain shall maintain and preserve, for a
period of at least five (5) years from the close of its applicable fiscal year,
complete books, records, financial statements and tax returns, fully and
accurately reflecting its business activities conducted at and from the Facility
and the financial results of its operation of the Facility. Upon disposal of any
such books, records, financial statements, and tax returns, Rocky Mountain shall
offer to deliver the same to Thermo, which may retain them for Thermo's own
business purposes, subject, however, to the requirements of paragraph 8.12. For
the purpose of ascertaining from time to time that Rocky Mountain is in full
compliance with its obligations hereunder and that any security interest held by
a third party providing debt or equity financing to Thermo for the Plant is not
then, and is not likely to become, impaired, Rocky Mountain shall, from time to
time, within twenty (20) days after receiving a request from Thermo, make
available to Thermo such copies or extracts of, or information from, such books,
records, financial statements, and tax returns, as Thermo or such third party
providing debt or equity financing to Thermo may reasonably request. This
paragraph 8.11 is subject to the provisions of paragraph 8 of the Supplemental
Agreement.
-28-
8.12 Additional information Regarding Operations: Confidentiality.
-------------------------------------------------------------
Rocky Mountain acknowledges that Thermo has a vital and protectable interest in
the use and operation of the Facility in full compliance with all terms and
conditions of this Agreement, in receipt of rent and other payments required to
be made by Rocky Mountain hereunder, and in the continuing financial viability
of the Facility as a commercial greenhouse for the entire duration of the
Thermal Term of this Agreement. It is the intention of the parties that in the
event that the leasehold estate for the Facility should expire or be terminated
prior to the end of the Thermal Term, these interests of Thermo shall be
secured, to the maximum extent possible, by the Mortgage. Rocky Mountain
further acknowledges that, in order for such interests to be adequately
protected, it may be necessary for Thermo (or Thermo's designated
representative) to become and remain knowledgeable of the general nature of
Rocky Mountains business activities at the Facility and the activities of
any Greenhouse Affiliates of Rocky Mountain. Therefore, upon request by Thermo,
Rocky Mountain shall, in addition to the information available to Thermo under
paragraph 8.11, also provide to Thermo from time to time after request by Thermo
reasonable access to other sources of information concerning Rocky Mountain's
business and Rocky mountains activities at the Facility, plus complete and
accurate information on gross cash receipts derived from operation by Rocky
Mountain's Greenhouse Affiliates of other commercial Greenhouses. Such
information may include, without limitation, Rocky Mountain's and such
Greenhouse Affiliates' thencurrent business plan and projections of results
of operations. All of such information, plus any information provided to
Thermo under paragraph 8.11, shall be deemed to be proprietary to Rocky Mountain
and shall be held in confidence by Thermo and any third persons having a need to
know such information because of their interest, financial or otherwise, in
Thermo's business at the Project Site. Such third persons with need to know
shall include, without limitation, those parties from time to time providing
financing for the construction and operation of the Plant and/or the Facility.
Except for disclosure to such third persons with need to know (which shall be
permitted upon such third persons agreeing to be bound by this paragraph) such
information shall not be disclosed by Thermo or by any such third person to
anyone without the prior consent of Rocky Mountain, unless such disclosure is
compelled by applicable law or unless such disclosure is required to protect,
Thermo's, or such third person(s)' legitimate business interests hereunder. Such
legitimate business interests shall include, without limitation obtaining
assurance from time to time that the Plant is and shall remain a Qualifying
Facility. Thermo and such third person(s) shall refrain from any use of such
information which is not reasonably required to protect legitimate interests of
the party obtaining such information during the time while the Thermal Term of
this Agreement remains in effect. Under no circumstances shall any such
information be utilized in any manner to compete with Rocky Mountain or any
Greenhouse Affiliate of Rocky Mountain; provided, however, that this covenant
shall not limit Thermo from exercising any rights or remedies Thermo may have
under this Agreement or under the Mortgage in the event of default by Rocky
Mountain, including without limitation the right to take possession of and
operate the Facility. The additional information to be made available to Thermo
may also include, by way of additional example and without limitation,
invitations for Thermo to attend and observe Rocky Mountain's board meetings and
information concerning and opportunities to observe the day-to-day production,
harvesting, marketing, and shipping activities carried on at the Facility. This
paragraph 8.12 is also subject to the provisions of paragraph 8 of the
Supplemental Agreement.
-29-
8.13 Duration of Covenants. Thermo and Rocky Mountain
----------------------
shall be and remain obligated to each other as provided in this section 8 for a
period which commences with the Commencement Date and expires on the expiration
of the Thermal Term. Should Rocky Mountain purchase the Facility (and if
applicable the land), the provisions of this section 8 shall constitute
covenants running with the Land and with the portion of the Project Site
described in Part II of Exhibit A, and be binding on Rocky Mountain and Thermo,
and their respective successors-in-title to the Land and the portion of the
Project Site described in Part II of Exhibit A until expiration of the Thermal
Term.
9. INSURANCE
---------
9.1 Required Insurance Coverages: Limits. Subject to
-------------------------------------
paragraph 9.6, below, beginning on the Commencement Date (or such earlier date
as Rocky Mountain shall be entitled to beneficial use and occupancy of the
Facility under paragraph 3.2) or as soon thereafter as the specified risks
shall arise, and continuing until expiration of the Thermal Term, Rocky
Mountain (or Thermo pursuant to paragraph 9.6) shall continuously maintain in
force the following insurance coverage:
(a) property damage insurance on an all risk basis
including coverage against damage or loss caused
by earth movement (including but not limited to
earthquake, landslide, subsidence, and volcanic
eruption) and flood and providing (i) coverage
for the Facility in a minimum aggregate amount
equal to the full insurable value of the Facility
(ii) coverage for foundations and other property
below the surface of the ground, and (iii) soft
costs defined as attorneys fees, engineering and
other consulting costs, and permit fees that may
be incurred due to damage to the premises in a
minimum amount of $500,000. For purposes of this
paragraph 9.1(a), "full insurable value" shall
mean the full replacement value of the Facility,
including any improvements and equipment without
deduction for physical depreciation and/or
obsolescence; all such policies may have deductible
of not greater than $550,000; and
(b) boiler and machinery insurance coverage at the
Facility, written on a comprehensive form basis
for all insurable objects, including but not
limited to pressure vessels, electrical turbines
and equipment, motors, air tanks, boilers,
-30-
machinery, pressure piping, or any other
similar objects located on or adjacent to
the Facility in a minimum aggregate amount
equal to the "full insurable value" (as
defined in paragraph 9.1(a), above, of the
Facility, and expediting expenses in the
amount of $100,000 (with losses to be
adjusted on a full replacement value); all
such policies may have deductibles of not
greater than $50,000; and
(c) all risk rental insurance, payable in event
of business interruption sufficient to provide
for payment of Base Rent and Additional Rent
for 12 months.
At all times while this Agreement is in effect subsequent to Financial Closing
Thermo and Rocky Mountain shall each continuously maintain in force the
following insurance coverage:
(d) commercial general liability insurance on
an occurrence basis against claims for personal
injury (including bodily injury and death) and
property damage, with coverage for products
completed operations, blanket, contractual,
explosion, collapse and underground coverage,
broad form property damage, and personal injury,
with a $1,000,000 minimum limit per occurrence for
combined bodily injury and property damage and
a $2,000,000 aggregate annual limit;
(e) workers' compensation insurance as required by
state laws, including employer's liability
insurance for all employees in the amount of not
less than the minimum statutory requirements; and
(f) automobile liability with limits of Two Million
Dollars ($2,000,000) per occurrence with no aggregate
limitation.
Prior to the time that Rocky Mountain is required to assume responsibility for
insurance coverage, Thermo shall maintain adequate insurance coverage with
respect to such of the foregoing risks as shall then be applicable, including
builder's risk coverage with delay in start up coverage endorsement during
construction.
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9.2 Certain Policy Requirements. All insurance policies required under
---------------------------
paragraph 9.1 shall be written by responsible and accredited companies of
recognized standing authorized to do business in the State of Colorado, with a
Best's Key Rating Guide rating of "A-X" or better (except for Lloyds of London,
AEGIS, Colorado Compensation Insurance Authority or other companies acceptable
to Thermo), and shall provide that the policies shall not be cancelable except
upon sixty (60) days' prior written notice by the insurer to the party to this
Agreement which is not the owner of the policy, and to any mortgagee of the
Facility. Property insurance policies carried by Thermo shall include a
lender's loss payable endorsement similar to form 438 BFU. All liability
policies shall be endorsed (i) to provide a severability of interests or cross
liability clause; and (ii) that the insurance shall be primary and not excess to
or contribution with any insurance or self-insurance maintained by others. Rocky
Mountain's policies shall be endorsed to name Thermo, any mortgagee of the
Facility, their respective officers, agents, partners, and such other parties as
may reasonably be requested by Thermo as additional insured parties, as their
interests may appear. Thermo's policies shall be endorsed to name Rocky
Mountain, its managers, agents, and such other parties as may reasonably be
requested by Rocky Mountain as additional insured parties, as their interests
may appear. Each party shall deliver to the other a copy of such policies (or,
in lieu of policies of insurance, certificates of insurance if then acceptable
to such recipient) prior to the Commencement Date, and a copy of any renewal
policy or certificate of insurance if then acceptable to Thermo shall be
delivered to Thermo and to any mortgagee of the Facility at least fifteen (15)
days prior to the termination date or any expiring policy. Thermo's liability
insurance policy shall provide that in the event of injury as a result of the
sole negligence of Thermo, to persons or property on the Land, Thermo's
liability coverage shall be primary, and in the event of injury to such persons
as a result of the joint or concurrent negligence of Rocky Mountain and Thermo,
the liability coverage of Thermo and Rocky Mountain shall contribute in
proportion to the negligence of the insured parties. Rocky Mountain's liability
insurance policy shall provide that in the event of injury, as a result of the
sole negligence of Rocky Mountain to persons or property on the cogeneration
Plant site, Rocky Mountain's liability coverage shall be primary and in the
event of injury to such persons as a result of the joint or concurrent
negligence of Thermo and Rocky Mountain the liability insurance coverage of
Rocky Mountain and Thermo shall contribute in proportion to the negligence of
the insured parties.
9.3 Application of Proceeds. Anything herein to the contrary
-----------------------
notwithstanding, Thermo and Rocky Mountain agree that at all times while the
Lease Term remains in effect the proceeds of any policy of fire and extended
coverage insuring against casualty loss to the Facility shall be disbursed and
applied in accordance with the requirements of any loan agreement and supporting
security documents in effect between Thermo and any secured lender providing
financing for the Plant and/or the Facility. Both parties shall upon request
promptly take such steps as may be required to cause the disbursement and
application of proceeds provisions of such policies to conform to the secured
lender's requirements. Subsequent to purchase by Rocky Mountain of the Facility
(and the Land, if applicable), Rocky Mountain shall cause each and every
mortgagee of the Facility to agree to disburse, in accordance with such
mortgagee's standard construction loan practices, amounts received by such
mortgagee from fire and extended coverage insurance policies for use by Rocky
Mountain in repairing, rebuilding, or reconstructing the Facility in accordance
with the obligations of Rocky Mountain hereunder. This paragraph 9.3 is subject
to the requirements of paragraph 10 of the Supplemental Agreement.
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9.4 Waiver of Subrogation. Thermo and Rocky Mountain each hereby
---------------------
waive on behalf of themselves and on behalf of all carriers of the insurance
required to be maintained pursuant to paragraph 9.1 above, all claims, by
subrogation or otherwise, which such waiving party might otherwise have against
the other for loss or damage to the Facility and the Land and the respective
interests of both such parties therein, and for legal liability arising out of
perils insured against in accordance with such requirements of this Agreement,
but only if this waiver does not or will not invalidate, limit, or otherwise
restrict coverage.
9.5 Exculpation for Property Damage. Subject to paragraphs 7.3 and 9.7
-------------------------------
hereof, all personal property of every kind and description, including without
limitation growing crops and agricultural products, that may at any time be in,
at or on the Facility or the Land shall be kept in, at or on the Facility or the
Land at Rocky Mountain's sole risk, or at the risk of those claiming under Rocky
Mountain. Without limitation of the foregoing waivers of claims and subrogation,
Thermo shall not be liable for any damage to said personal property or any loss
of business by Rocky Mountain however arising, including without limitation from
the bursting, overflowing, or leaking or water or pipes, from the malfunction of
the heat transfer subsystem, or from other heating, electrical, or plumbing
fixtures, from electric wires, from gas or odors, from acts of other persons on
or in the vicinity of the Project Site or from any other cause in any other
manner whatsoever, except to the extent that such damage to personal property
may result from and actually be caused by the negligent or willfully tortious
acts or omissions of Thermo provided, however, that the general limitations of
this paragraph 9.5 shall be subject to the specific limitations of paragraphs
7.4 and 9.7 with respect to any failure by Thermo to provide thermal energy to
Rocky Mountain as required hereunder. Rocky Mountain shall be responsible for
disclosing the contents of this paragraph 9.5 to any insurer of Rocky Mountain's
business activities and for taking such steps, if any, as such insurer may
require to maintain coverage of Rocky Mountain's personal property.
9.6 Property, Insurance During Lease Term. Anything in this section 9
-------------------------------------
to the contrary notwithstanding, while this Agreement (including both the Lease
Term and the Thermal Term) remains in effect Thermo may insure the Leased
Premises against fire and extended coverage perils, and such other casualty
losses as may be required under clauses (a), (b) and (c) of paragraph 9.1,
either separately or in conjunction with similar insurance which may be carried
by Thermo on the Plant, and Thermo shall do so if the result of insuring the
Facility in this manner would be to reduce the combined cost of separate
insurance premiums for separate property insurance meeting such requirements on
the Plant and the Facility. If the Leased Premises are insured in this manner,
Rocky Mountain shall not be obligated to carry the insurance required, by
clauses (a), (b) and (c) of paragraph 9.1, but in lieu thereof shall pay to
Thermo as Additional Rent (or as a reimbursement of Thermo's incremental costs
therefor if the Lease Term shall no longer be in effect) an equitably allocated
share of the premium from time to time paid by Thermo for such insurance based
on the relative replacement costs of the Plant and the Facility. Such insurance
carried by Thermo on the Plant and the Facility shall name Thermo and Rocky
Mountain as insureds, as their interests may appear. In the event that such
combined insurance is maintained in force, if the cause of loss can be
determined to have originated in the negligence of either Thermo or Rocky
Mountain, the party responsible for such loss shall be responsible for payment
of any deductible amount; otherwise, the impact of the deductible shall be borne
by the parties equally.
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9.7 Certain Special Loss Coverages. Beginning on the Commencement Date
------------------------------
or as soon thereafter as the risk shall arise, and continuing until such time as
the Facility shall include permanent standby heat generating or emergency heat
storage equipment, insurance shall also be maintained against losses, including
loss of revenue and reasonably estimated profits, which would be incurred by
Rocky Mountain for damage to crop (including without limitation substantial or
total loss of crop) resulting from failure by Thermo to furnish thermal energy
as required by paragraphs 7.1, 7.3 and 7.4. Rocky Mountain and Thermo shall
consult from time to time with each other and with insurance consultants
concerning the required limits of such policy(ies) and most effective and least
expensive manner of obtaining such coverage, the parties agreeing that it is in
their mutual best interests to maintain flexibility with respect to the specific
type of coverage or coverages which shall be obtained and the party or parties
which shall be designated as named insured thereunder. After such consultation,
the form of coverage shall be selected by Thermo in good faith and with due
consideration of the objectives described above. Thermo shall pay the premium
for such insurance, or, if coverage is effected by endorsement to insurance
coverage otherwise required to be maintained by Rocky Mountain hereunder, shall
reimburse Rocky Mountain for incremental premium costs due to such insurance.
Should insurance then be required under this paragraph 9.7, and should Thermo
fail or decline to select such coverage or to pay the premium (or reimburse
Rocky Mountain for the incremental premium) therefor, Rocky Mountain may effect
such insurance, not less than three (3) days prior notice to Thermo and in such
event Thermo shall reimburse Rocky Mountain for the premiums attributable
thereto; provided, however, that such reimbursement shall not exceed one hundred
twenty percent (120%) of the most recent premium (or reimbursement) incurred by
Thermo for such insurance. Thermo shall have the right to reinstate coverage
upon expiration of any policy thus procured by Rocky Mountain. If the policy or
policies selected to provide this coverage shall be issued for the direct
benefit of Rocky Mountain, such policies shall be primary and noncontributory
with other policies. Without limitation of the foregoing general requirements
and solely for the purposes of illustration, among the forms of coverage, which
may be selected, separately or in combination, are:
(a) "failure to supply coverage," to be maintained by Thermo in
addition to Thermo's general liability coverage (generally to
be considered only if other coverage is unavailable or not
satisfactory to provide adequate recover to Rocky Mountain);
(b) "extended crop insurance coverage-temperature variation," to
be maintained by Rocky Mountain in addition to Rocky Mountain's
standard named peril or broad form crop insurance;
(c) "contingent business interruption coverage," to be maintained by
Rocky Mountain on a scheduled monthly limit basis; and
(d) "business interruption coverage for loss from a named peril"
(failure to supply heat), to be maintained by Thermo as insured
with an
-34-
extension corresponding to extended crop insurance to provide
payments equivalent to extended crop coverage to Rocky Mountain
as its interests may appear.
If the policy of insurance required by this paragraph 9.7 names Rocky Mountain
as an insured, such policy shall be endorsed with a broad form waiver of
subrogation reasonably satisfactory to Thermo and any party providing secured
financing to Thermo for construction and operation of the Plant and/or the
Facility. The waiver of subrogation in this paragraph 9.7 shall not be construed
to limit any other waiver of claims and subrogation or limitation of Thermo's
liability, provided under other paragraphs of this Agreement, including without
limitation paragraph 7.4. All proceeds of such insurance received by Rocky
Mountain, including without limitation proceeds received indirectly through
Thermo pursuant to Thermo's obligations under paragraph 7.4 or otherwise, shall,
to the extent such proceeds represent compensation for expenditures which are
(or if incurred would have been) deductible for the purpose's of determination
of Available Net Cash, or to the extent such proceeds represent revenues not
received because of such loss of crop, be deemed to be Available Net Cash
without regard to the apportionment requirements set forth in paragraph 4.5,
above.
10. GENERAL INDEMNIFICATION
-----------------------
10.1 By Rocky Mountain. Subject to such waivers and limitations of
-----------------
liability as are specifically provided hereunder, Rocky Mountain shall at all
times defend, indemnify and save Thermo, Thermo's Partners, and their respective
shareholders, directors, officers, agents and employees and any lender providing
secured financing to Thermo and such lender's shareholders directors, officers,
agents and employees (collectively "Indemnitees") harmless from any and all
Damages relating to the Facility and the Land, and from any Damages that may
occur or be claimed by or with respect to any party, person or persons, entity,
property or chattels in, on, or about the Facility or on the Land, resulting in
whole or in part from any negligent or willfully tortious act done or omission
by or through Rocky Mountain, any Affiliate of Rocky Mountain, or any party in
the Facility or on the Land or resulting from Rocky Mountain's, any such
Affiliate's or any such third party's use, non-use, or occupancy of the Facility
in any manner contrary to the requirements of this Agreement. Without limiting
the generality of the foregoing, Rocky Mountain shall defend, indemnify and save
such Indemnitees harmless from any and all Damages that may occur or be claimed
with respect to Rocky Mountain's, any Affiliate of Rocky Mountain's or any such
third party's violation or failure to comply with all Environmental Laws. This
paragraph 10.1 is subject to the provisions of paragraph 6.2 of the Supplemental
Agreement. This covenant of indemnity shall survive expiration or termination of
this Agreement, and shall be construed as supplementary to and not be construed
to conflict with or limit any other covenant of indemnity contained in this
Agreement.
10.2 By Thermo. Subject to such waivers and limitations of liability
---------
as are specifically provided hereunder, Thermo shall at all times defend,
indemnify and save Rocky Mountain and Rocky Mountain's members and their
respective shareholders, directors, officers, agents and employees (collectively
"Indemnified Persons") harmless from any and all Damages relating to the Plant,
and from any Damages that may occur
-35-
or be claimed by or with respect to any party, person or persons, entity,
property or chattels in, on, or about the Plant or the Project site (exclusive
of the Land), resulting in whole or in part from any negligent or willfully
tortious act done or omission by or through Thermo, any Affiliate of Thermo, or
any third party in the Plant or on the Project Site exclusive of the Land, or
resulting from Thermo's, any such Affiliate's or any such third party's use,
non-use or occupancy of the Plant in any manner contrary to the requirements of
this Agreement. Without limiting the generality of the foregoing Thermo shall,
except to the extent of such waivers and limitations, defend, indemnify and save
such Indemnified Parties harmless from any and all Damages that may occur or be
claimed with respect to Thermo's, any Affiliate of Thermo's or any such third
party's violation of or failure to comply with all Environmental Laws. This
covenant of indemnity shall survive expiration or termination of this Agreement,
and shall be construed as supplementary to and not be construed to conflict with
or limit any other covenant of indemnity contained in this Agreement.
11. DAMAGE OR DESTRUCTION
---------------------
11.1 Rebuilding Required. If, at any time during the Thermal Term of
-------------------
this Agreement (and whether or not Rocky Mountain is then a lessee under this
Agreement), the Facility is damaged or destroyed by fire, hail, windstorm, or
other casualty, regardless of the severity of such loss and whether or not such
loss shall have been insured against, Rocky Mountain shall, unless Thermo shall
consent to Rocky Mountain not rebuilding, promptly repair, and reconstruct the
Facility. If Rocky Mountain is a lessee of the Facility at the time such damage
or destruction occurs, the Facility shall Ve repaired and reconstructed to
substantially the same condition, or better, as existed immediately prior to
such casualty loss. If Rocky Mountain has purchased the Facility, prior to the
time such damage or destruction occurs, the Facility shall be repaired and
reconstructed in such manner as Rocky Mountain may determine in Rocky Mountain's
discretion, reasonably exercised; provided, however, that: (a) such repair and
reconstruction is completed within 180 days or less after the date of such
damage or destruction; (b) after such repair and reconstruction, Rocky
Mountain's annual requirements for thermal energy supplied by the Plant and used
for commercial or industrial purposes shall not be less than the Minimum Annual
Heat Requirement; and (c) the use of such thermal energy shall qualify the Plant
as a Qualifying Facility. All repair and reconstruction of the Facility/Plant
interface equipment shall be subject to Thermo's prior approval, which shall not
be withheld or delayed unreasonably. Any repair or reconstruction of the
Facility for a purpose other than a commercial greenhouse shall require Thermo's
prior consent, which may be withheld. For the purpose of repair and
reconstruction, Thermo shall waive Thermo's interest in insurance proceeds, if
any, relating to such casualty loss, but Rocky Mountain's obligation to repair
and reconstruct shall be limited by the amount of insurance proceeds. Thermo may
provide for the payment of such insurance proceeds in a manner which assures
Thermo of satisfactory, lien-free completion of such repair or reconstruction.
11.2 No Abatement of Rent. If Rocky Mountain is a lessee hereunder at
--------------------
the time of such casualty loss, neither Base Rent nor Additional Rent shall be
abated or reduced during any period in which the Facility is being repaired or
reconstructed or is otherwise untenantable, it being the intention of the
parties that business interruption insurance shall be maintained hereunder.
-36-
11.3 Impact of Certain Thermo Financing. The provisions of this
----------------------------------
section 11 are subject to the provisions of paragraph 10 of the Supplemental
Agreement.
12. EMINENT DOMAIN.
--------------
12.1 Condemnation During Leasehold - Substantial. If, during any
-------------------------------------------
period in which Rocky Mountain is a lessee under this Agreement, the Leased
Premises or any part thereof is condemned or appropriated by any public
authority, all proceeds of such taking shall belong and are hereby assigned to
Thermo, but shall be subject to distribution as herein provided. If any such
taking would materially and adversely affect the ability of Rocky Mountain to
meet its obligations under section 7 notwithstanding any practical repair or
restoration of the Leased Premises, this Agreement (including without limitation
the thermal supply provisions hereof) shall terminate, and if the Purchase
Option shall not have lapsed, Rocky Mountain shall be deemed to have exercised
the Purchase Option as of the effective date of the appropriation, subject,
however, to the provisions of paragraph 4 of the Supplemental Agreement. In such
event, the proceeds of such appropriation shall be applied: first, to pay to
Thermo an amount equal to the amount which is due to Thermo upon purchase
pursuant to exercise of the Purchase Option, second, to compensate Thermo for
the value of any Land and appurtenant rights easements taken but not compensated
in accordance with the Purchase Option formula, third, to compensate Thermo for
the reasonable costs anticipated by Thermo to be incurred in obtaining at the
Project Site a replacement user of thermal energy so that the Plant shall at all
times remain a Qualifying Facility, and fourth, the balance of such condemnation
proceeds, if any, shall belong to Rocky Mountain. If the Purchase Option shall
have lapsed, this Agreement, including both Rocky Mountain's leasehold estate
and the thermal supply provisions hereunder. shall terminate, and the entire
proceeds of condemnation shall be retained by Thermo.
12.2 Condemnation During Leasehold - Nonsubstantial. If a portion of
----------------------------------------------
the Facility and/or the Land is condemned or appropriated by any public
authority during the term of Rocky Mountain's leasehold interest in a manner
which would not materially and adversely affect the ability of Rocky Mountain to
meet its obligations under section 7 after practical repair and reconstruction,
this Agreement shall remain in effect and Rocky Mountain shall repair and
reconstruct the Facility to as nearly as practicable the same condition, or
better, as existed immediately prior to such taking, in which event Thermo shall
deliver the proceeds relating to such condemnation or appropriation loss to
Rocky Mountain less an equitable amount retained by Thermo to compensate Thermo
for any portion of the Land and any appurtenant rights and casements taken.
Rocky Mountain's obligation to repair and reconstruct shall not be limited to
the proceeds of condemnation available for such purposes. Thermo may provide for
the payment of such proceeds in a manner which assures Thermo of satisfactory,
lien-free completion of such repair or construction.
12.3 Condemnation After Purchase of Leased Premises. If the Facility
----------------------------------------------
and/or the Land, or any part thereof is condemned or appropriated by any public
authority during any period after which Rocky Mountain has purchased the
Facility (and, if applicable, the Land), the proceeds of condemnation shall
belong to, and be apportioned between, the parties as follows: Rocky Mountain
shall retain all proceeds of condemnation which are reasonably apportionable to
the interest then owned by Rocky
-37-
Mountain in that portion of the Land and/or the Facility which is taken, and
Thermo shall retain all proceeds of condemnation payable which are reasonably
apportionable to any interests then owned by Thermo in such property and any
easements and appurtenant rights of Thermo taken or already affected. The
foregoing notwithstanding, each party shall, if commercially practical (in
Thermo's discretion, reasonably exercised), repair and reconstruct their
respective interests in the Facility and the Plant so that section 7 and all
related provisions of this Agreement shall remain in effect until expiration of
the Thermal Term. Such obligation to repair and reconstruct shall not be limited
by the proceeds of condemnation available for such purposes. If such repair or
restoration is not commercially practical under those circumstances, this
Agreement shall thereupon terminate. In the event of such termination, any
remaining proceeds of condemnation shall be applied first to reimburse Rocky
Mountain for the Option Purchase Price paid by Rocky Mountain, next as provided
in clause "third" and finally as provided in clause "fourth" under paragraph
12.1.
12.4 Special Provisions Concerning Condemnation. Ground rent, if being
------------------------------------------
paid with respect to Land only at the time of any condemnation, shall, if this
Agreement does not terminate, xxxxx in proportion to the ratio of the area of
the Land taken to the area of the Land prior to the appropriation. Thermal
Payments shall xxxxx during repair and reconstruction only to the extent that
Rocky Mountain's ability to utilize thermal energy is reduced. Rocky Mountain
shall not transfer or convey its interest in the Facility or the Land, or any
part thereof under threat of condemnation, nor shall Rocky Mountain settle any
proceedings or suit in eminent domain affecting the Facility or the Land (or any
interest of Rocky Mountain therein), without the prior consent of Thermo.
Regardless of whether Rocky Mountain shall have purchased the entire Leased
Premises prior to such condemnation, Rocky Mountain irrevocably consents to the
appearance by Thermo, in any such eminent domain proceedings or suit, for the
purpose of proving or to prove such damages to Thermo's compensable property
rights and economic interests as may appear because of such eminent domain
proceedings or suit.
12.5 Impact of Certain Thermo Financing. The provisions of this
----------------------------------
section 12 are subject to the provisions of paragraph 10 of the Supplemental
Agreement.
13. DEFAULT AND REMEDIES
--------------------
13.1 Default Defined: Cure Period. Should Rocky Mountain fail to pay
----------------------------
any installment of Base Rent, Additional Rent, or any other sum herein required
to be paid to Thermo (including without limitation Thermal Payments) within
thirty (30) days after such payment is due and payable, making due allowance, if
applicable, for any Postponement to which Rocky Mountain may be entitled
hereunder, and Thermo shall have made written demand therefor; or should Rocky
Mountain abandon, vacate, or fail to operate the Facility as required hereunder;
or should Rocky Mountain fail to maintain any required insurance; or should
Rocky Mountain fail to perform any other covenant or to comply with any other
condition herein provided to be performed or complied with by Rocky Mountain
(other than the payment of money, continuation of operations, and maintenance of
insurance) within thirty (30) days after receipt by Rocky Mountain of written
notice thereof from Thermo (or, in the event such failure can be removed or
corrected, but cannot be removed or corrected within such thirty (30) day
period, in the
-38-
event Rocky Mountain does not commence to remove or correct such failure as
quickly as practical within said thirty (30) day period and thereafter
diligently pursue such removal or correction to completion as quickly as may be
reasonably practicable but in any event within one hundred eighty (180) days
after the onset of such failure); or should any proceeding in bankruptcy or
under any state or federal law relating to the relief of debtors be filed by or
against Rocky Mountain; or should a receiver be appointed of any of the property
of Rocky Mountain so as to directly affect the fulfillment of the obligations of
Rocky Mountain hereunder then and in any such event Rocky Mountain shall be in
"Default" hereunder.
13.2 Right to Terminate: Re-entry. At any time while Rocky Mountain is
----------------------------
in Default, Thermo may: (a) unless Rocky Mountain shall have previously
purchased the Facility, terminate without Notice Rocky Mountain's right to
possession of the Facility without terminating this Agreement, and thereupon
Thermo may enter and retake possession of the Facility without Notice or demand
and may, without being required to, sublease the Facility as agent of Rocky
Mountain on such sublease terms and conditions as Thermo in its discretion may
deem obtainable for the balance of the Lease Term (subject to the thermal supply
provisions of this Agreement), and receive the sublease rent therefor, applying
the same first to the payment of expenses of such re-entering and subletting and
then to the payment of all rent and other charges due or to become due to Thermo
under the terms of this Agreement, and Rocky Mountain shall pay any deficiency,
or (b) whether or not Rocky Mountain shall have purchased the Facility, declare
this Agreement terminated without Notice. If Thermo retakes possession of the
Facility, Thermo may use such force as Thermo, in Thermo's discretion, may
believe to be necessary to do so without the benefit of prior judicial process
and without being deemed to have committed a breach of peace.
13.3 Retention and Acceleration of Rent. If Thermo terminates this
----------------------------------
Agreement because of a Default by Rocky Mountain while Rocky Mountain remains a
lessee of the Facility, Thermo shall be entitled to retain any and all sums paid
by Rocky Mountain hereunder to the date of termination without prejudice to
recovery of additional damages arising from such Default, and, at the option of
Thermo exercised without Notice to Rocky Mountain, the Base Rent for the entire
remaining Lease Term of this Agreement, discounted to the then present value of
such total remaining sum at the actual average rate of interest determined under
paragraph 4 of the Memorandum Regarding Adjustment of Rent and Option Price,
plus any then-existing Postponements of Base Rent shall accelerate and shall
become immediately due and payable. In case Rocky Mountain is declared bankrupt
or voluntarily offers to creditors terms of composition, or in case a receiver
is appointed to take charge of and conduct the affairs of Rocky Mountain, or if
an order for relief is granted for or against Rocky Mountain, such claim for
unpaid and accelerated installments of Base Rent due under this Agreement shall
constitute a debt provable in bankruptcy or receivership.
13.4 Other Available Remedies. If Rocky Mountain should commit a
------------------------
Default under this Agreement (regardless of whether Rocky Mountain has purchased
the Facility), Thermo shall also be entitled to such other remedies as it may
have at law or in equity on account of such Default, including without
limitation the right to obtain equitable relief such as injunction or a decree
of specific performance, and to proceed against property mortgaged under the
terms of the Mortgage (if any) then granted pursuant to paragraph 5.8. The
remedies to which Thermo may resort under this
-39-
Agreement are cumulative and are not intended to be exclusive of, and Thermo
shall be entitled to exercise, any other remedy to which Thermo may be entitled
by law or in equity.
13.5 Payment of Enforcement Expenses. To the maximum extent permitted
-------------------------------
by law, should either party commit a Default under this Agreement, the
defaulting party covenants and agrees to pay and discharge all reasonable costs
and expenses which shall be incurred by the non-defaulting party arising out of
such Default, in enforcing the covenants and agreements of this Agreement,
including without limitation reasonable attorneys' fees.
13.6 Forbearance not to Limit Remedies. The failure of Thermo to
---------------------------------
insist in any one or more cases on strict or specific performance of any
provision of this Agreement or to exercise any right herein contained shall not
constitute a waiver in the future of such right. Acceptance by Thermo of rent or
other payment, or acceptance of any other performance required hereunder with
knowledge of a breach, by Rocky Mountain of any provision hereof shall not
constitute a waiver of such breach nor shall any acceptance of rent or other
payment in a lesser amount than herein provided for operate or be construed in
any other manner other than as a payment on account of the earliest rent or
other charge then unpaid by Rocky Mountain.
14. ASSIGNMENT, SUBLEASING.
AND SUBCONTRACTING
--------------------
14.1 Assignment by Rocky Mountain. Rocky Mountain may not assign its
----------------------------
rights, or any of them hereunder except to an Affiliate of Rocky Mountain which
shall assume in writing and agree to be bound by all of the terms, conditions,
duties and obligations hereunder and then only if Thermo shall have given its
prior consent to such assignment. Thermo shall not withhold or delay such
consent unreasonably. Rocky Mountain shall not make or agree to make any partial
assignment of the rights granted or conferred hereunder. Except by Thermo acting
on behalf of Rocky Mountain pursuant to paragraph 13.2, no sublease of the Lased
Premises or any portion thereof, or any subcontract for sale of thermal energy,
water, or otherwise, shall be granted hereunder. Any assignment, sublease, or
subcontract (or attempted assignment, sublease, or subcontract) in violation of
these restrictions shall be void. This paragraph 14.1 is subject to the
provisions of paragraph 5.6 of the Supplemental Agreement.
14.2 Effect of Assignment. In the event that Rocky Mountain assigns
--------------------
its rights or any of them hereunder to Rocky Mountain's Affiliate, such
assignment shall not relieve Rocky Mountain of any obligations hereunder. Any
event subsequent to such assignment that causes Rocky Mountain to no longer have
a substantial economic investment in or economically significant relationship
with the entity or person that is Rocky Mountain's Affiliate shall be deemed an
assignment of this Agreement and shall not be valid unless Thermo's prior
consent shall have been obtained.
14.3 Assignment by Thermo. Thermo may assign its rights hereunder, or
--------------------
any of them, collaterally for financing purposes or otherwise, without
limitation.
-40-
14.4 Bind and Inure. All terms, conditions, duties, and obligations of
--------------
this Agreement shall be binding on, and all rights and benefits shall inure to
the benefit of, the respective permitted successors and assigns of Thermo and
Rocky Mountain.
14.5 Third-Party Rights. Whenever this Agreement or the Supplemental
------------------
Agreement expressly provides for rights of review, consent, approval, or similar
rights to be exercised by third parties providing financing for the Plant and/or
the Facility such rights may be assigned to any assignee of such third party's
rights under any secured financing loan agreement with Thermo, or any security
documents supporting such loan agreement, and such rights of review, consent,
and approval shall be deemed to have been assigned by any such third party to
the assignee of any such third party's rights under such secured loan agreement.
Except as expressly provided in paragraph 8.12 relating to confidentiality of
Rocky Mountain's proprietary information, under no circumstances shall the
conferring of such third-party rights under this Agreement impose any duties on
such third parties, their successors and assigns.
15. SURRENDER: PERSONAL PROPERTY
----------------------------
15.1 Condition upon Termination. Except to the extent that Rocky
--------------------------
Mountain shall have purchased the Leased Premises. Rocky Mountain shall
surrender the Leased Premises to Thermo upon expiration or termination of the
Lease Term in as good condition and repair as the same shall be at the
commencement of the Lease Term, ordinary wear and tear and erection of permitted
improvements thereon, excepted. No tenancy of any duration (other than a tenancy
at will), nor any extension of the thermal supply covenants of this Agreement,
shall be created by Rocky Mountain's holding over beyond the end of the Lease
Term.
15.2 Responsibility for Personalty. All equipment and trade fixtures
-----------------------------
furnished by Rocky Mountain and used in the operation of the Facility, including
without limitation any tanks, pipes, and connections installed by Rocky Mountain
on the Leased Premises (unless such equipment and fixtures are included in the
Work under the Construction Contract), shall at all times be and remain the
personal property of Rocky Mountain. Unless Rocky Mountain shall have purchased
both the Facility and the Land, Rocky Mountain shall, on or prior to the date of
expiration or termination of the Lease Term, remove all of such equipment and
trade fixtures from the Leased Premises; provided, however, that upon request
made by Rocky Mountain not less than one hundred eighty (130) days prior to
expiration or termination. Thermo shall permit Rocky Mountain to remain in
possession as a holdover tenant for up to ninety (90) days, during which time
such equipment and fixtures may be removed. Rocky Mountain shall pay a
reasonable holdover rent specified by Thermo at such time during the holdover
period. At Thermo's request, Rocky Mountain shall repair all damages to the
Facility and the Land caused by such trade fixtures and equipment or by their
removal.
15.3 Removal of Facility. If Rocky Mountain shall have purchased the
-------------------
Facility but not the Land, then upon expiration or termination of the Lease
Term, the Facility may, at Rocky Mountain's option, be removed from the Land in
the same manner as provide in paragraph 15.2 for removal from the Facility of
trade fixtures and equipment. Unless Rocky Mountain shall have purchased the
Land as herein provided,
-41-
any property of any nature whatsoever of Rocky Mountain which is not removed on
or before the latest date provided for removal under this section 15 shall
conclusively be deemed to have been abandoned by Rocky Mountain and all right,
title, and interest of Rocky Mountain in such property shall thereby pass
irrevocably to Thermo, which may then use or dispose of such property as Thermo
sees fit. In the event the Facility is so removed by Rocky Mountain, Rocky
Mountain shall prepare the Land, as reasonably required by Thermo, for
commercial or industrial redevelopment.
16. SUBORDINATION
-------------
16.1 Subordination: Nondisturbance. This Agreement and all rights of
-----------------------------
Rocky Mountain hereunder, including without limitation the Purchase Option
granted under section 5, shall be subordinate to the lien of each and every
mortgage, deed of trust, or other financing encumbrance of any nature which
Thermo may grant affecting the Project Site or any portion thereof (including
without limitation the Land), whether previously or hereafter made, unless the
holder of any such financing encumbrance elects by recorded instrument that this
Agreement shall be prior to such encumbrance. This subordination shall be self-
executing and effective without any further action by any party; provided,
however, that Rocky Mountain shall not be required to subordinate its rights and
interests under this Agreement to the lien of any such financing encumbrance
hereafter made unless the holder thereof shall execute a subordination,
attornment and nondisturbance agreement which shall provide in substance: (a)
that this Agreement shall not be terminated by such holder so long as Rocky
Mountain is not in Default of its obligations hereunder; (b) that such holder
shall recognize Rocky Mountain's Purchase Option if the same shall be exercised,
and upon payment to the holder of the net proceeds of such purchase such holder
shall release the lien on the Facility and, if applicable, the Land (subject,
however, to the limitations of paragraph 4 of the Supplemental Agreement); and
(c) that in the event of foreclosure or other action by such holder to enforce
its rights under such financing encumbrance (should Thermo have defaulted in its
obligations to such holder). Rocky Mountain shall remain bound to and shall
recognize such holder, and the successors or assigns of such holder, to the same
extent that Rocky Mountain shall then be required to recognize and be bound to
Thermo hereunder.
16.2 Estoppel Certificates. Rocky Mountain agrees, from time to time,
---------------------
immediately upon request by Thermo, promptly to execute such instruments,
certificates, and tenant estoppel letters as may be reasonably requested by
Thermo to evidence and confirm the subordination herein provided and the then-
current status of this Agreement, stating fully and accurately whether either
party is in default hereunder and whether this Agreement has been amended,
modified or waived in any respect (together with full particulars of such
defaults, amendments, modifications, and waivers), plus such other relevant
factual information with respect to this Agreement as Thermo may reasonably
request. Rocky Mountain shall promptly deliver such instruments, certificates
and letters to any third party designated by Thermo as having a bona fide reason
to know such information, and in the default of such delivery hereby irrevocably
designates Thermo as Rocky Mountain's attorney-in-fact to execute and deliver
such instruments, certificates and letters on Rocky Mountain's behalf.
-42-
17. QUIET ENJOYMENT
---------------
Thermo covenants that, for so long as Rocky Mountain shall enjoy any
leasehold estate under this Agreement, Rocky Mountain, having performed all
covenants and obligations herein set forth, shall have quiet and peaceable
possession of the Leased Premises, subject to and on the terms and conditions
herein provided (including, without limitation, subordination pursuant to
paragraph 16.1), free and clear of any claim by, from, through, or under any
person lawfully claiming an interest in the Leased Premises from or through
Thermo.
18. INDEPENDENT CONTRACTORS
-----------------------
Nothing herein shall be deemed to constitute Thermo and Rocky Mountain as
partners or joint venturers of any nature or to provide that either party shall
have any responsibility or authority for or in connection with the business
activities of the other. Neither party shall have any control over or
responsibility for or obligations to the employees or agents of the other. The
relationship of the parties hereunder is that of independent contractors and,
except to the extent that Rocky Mountain shall have exercised the Purchase
Option, of lessor and lessee.
19. REFORMATION: SEVERABILITY
-------------------------
If any clause or provision of this Agreement shall be held by final
judgment of a court of competent jurisdiction to be illegal, invalid, or
unenforceable, then it is the intention of the parties that the remainder of
this Agreement shall not be affected thereby, and in lieu of each clause or
provision of this Agreement that is illegal, invalid, or unenforceable, there
shall be added as a part of this Agreement a clause or provision as similar
in terms to such illegal, invalid, or unenforceable clause or provision as may
be possible without being illegal, invalid, or unenforceable. If such
reformation cannot be accomplished, the offending provision shall be stricken
and the remainder of this Agreement shall remain in full force and effect;
provided, however, that if such offending provision cannot be reformed without
resulting in a material change in the contractual relationship between the
parties, thereby depriving either or both of the parties of the benefit of the
fundamental economic bargain herein provided, this Agreement shall become
voidable upon demand of the party whose economic interests are thus impaired.
20. NOTICES
-------
Consents, demands, approvals, notices, information, or other communications
required or permitted to be given or obtained under this Agreement in order to
establish, fix, define, or determine the rights or obligations of either party
("Notices") shall be in writing and shall be deemed to have been given when
received at the addresses provided therefor addressed to the respective parties
as provided in this Agreement. Notices shall be delivered personally by the
sending party or addressed to Thermo and Rocky Mountain at their respective
addresses shown in the first paragraph of this Agreement, to the attention of
the officers who are signatories to this Agreement, or to such other addresses
and/or persons who may be designated from time to time by Notice given in the
manner
-43-
herein provided, or sent by registered, certified, or express U.S. Mail, return
receipt requested, or by any recognized independent private mail or courier
service which routinely maintains records of delivery and will upon request
provide verification thereof, or, if facsimile or electronic mail Notices have
been requested by such recipient by Notice as herein provided, at the option of
the sender by facsimile or electronic mail transmission initiated and completed
during the ordinary business hours of the intended recipient; provided, however,
that no Notice given by facsimile or electronic mail shall be deemed given
unless the sender obtains, contemporaneously and in the ordinary course of
business, confirmation of receipt of the written Notice in legible form. This
section 20 is subject to the provisions of paragraphs 9 and 14 of the
Supplemental Agreement.
21. FINANCING BY THERMO
-------------------
21.1 Condition Subsequent. All obligations of Thermo and Rocky
--------------------
Mountain hereunder are conditioned on Thermo, on or before April 30, 1993,
having closed and become entitled to draw funds under a financing arrangement
sufficient to construct and start up the Plant and to pay the Contract Sum under
the Construction Contract ("Financial Closing"). Thermo shall advise Rocky
Mountain from time to time upon Rocky Mountain's request concerning Thermo's
progress toward Financial Closing. If Financial Closing does not occur on or
before such date, this Agreement shall be deemed canceled without any further
obligation of either party to the other; provided, however, that at the option
of either party, exercised by Notice to the other on or before such date, this
time for automatic cancellation shall be extended as set forth in the Notice of
extension, but to no later than February 1, 1994. Should the condition
subsequent provided in this paragraph be fulfilled within the time so provided
by the execution between Thermo and Prudential of the "Loan Agreement," the
Supplemental Agreement shall remain in effect. Should this condition
subsequently be fulfilled in any other manner, the Supplemental Agreement shall
become null and void and of no further force and effect.
21.2 Cooperation of Parties. Thermo shall attempt in good faith and
---------------------
with diligence to achieve Financial Closing, but shall determine in Thermo's
discretion whether any financing opportunities which Thermo may encounter are
satisfactory to proceed to Financial Closing. Rocky Mountain shall cooperate
with Thermo in such efforts upon Thermo's reasonable request. Should any third
person contemplating providing substantial financing to Thermo (regardless of
the form or nature of such financing) and from whom Thermo has a bona fide
interest in obtaining financing (whether before or after Financial Closing)
request. as a condition of providing such financing, (a) amendments or additions
to this Agreement or the Supplemental Agreement, (b) execution of reasonable
supplemental documents for the benefit of such third person(s) or either or both
of the parties hereto, or (c) information (including business plans or other
written projections) concerning the business prospects of Rocky Mountain or
Thermo, both parties shall consider such requested amendments, additions,
supplemental documents and requests for information and shall agree to the same
unless in the discretion, reasonably exercised, of either of the parties to this
Agreement, such amendments, additions, supplemental documents, or requests for
information would materially impair the long range economic interests hereunder
of such objecting party. By way of example, and without limitation, the long
range economic interests of the parties to this Agreement would not be impaired
if, in response to a request by any such
-44-
person providing financing, the parties to this Agreement, or either of them,
would be required to forebear from pursuing any rights or remedies against the
other until such third person had received Notice of any alleged default
hereunder, and a reasonable time had expired, subsequent to receipt of such
Notice, during which time the third person providing financing had failed to
cure any default on the behalf of the defaulting party to this Agreement. The
provisions of this paragraph 21.2 are supplemented in paragraph 12 of the
Supplemental Agreement.
21.3 Condition Precedent. The obligations of each party under this
-------------------
Agreement are further conditioned on the approval of this Agreement,
respectively, by the members of Rocky Mountain and the partners of Thermo,
acting, to the extent applicable, through their boards of directors. If such
approvals have not been obtained by both parties and Notice thereof delivered to
the other party to this Agreement within seven (7) days after the effective date
hereof, a party having obtained such approval may give Notice to the other party
that unless the other party obtains such approval within seven (7) days after
receipt of such Notice, the party having previously obtained approval may revoke
such approval and withdraw from this Agreement. Otherwise such approvals, when
obtained, shall be binding and irrevocable. If such approvals are obtained, the
Effective Date of this Agreement shall nevertheless be the date first set forth
above.
22. CONSTRUCTION AND INTERPRETATION
-------------------------------
22.1 Waivers. Any term, covenant, condition, representation, or
-------
warranty under this Agreernent may be waived by the party entitled to the
benefit thereof, and any default in performance by one party may be waived by
the party entitled to receive such performance, but none or such provisions of
this Agreement shall be considered waived by either party unless such waiver is
reduced to writing and signed by the party entitled to such benefits. No such
waiver shall be construed as a modification of any of the provisions of this
Agreement, or as a waiver of any past or future default or breach hereof unless
as expressly so stated in such waiver.
22.2 Survival of Covenants. All covenants and agreements and all
---------------------
representations of either party not required by their terms to be fully
performed and discharged prior to expiration or earlier termination of this
Agreement shall survive such expiration or termination.
22.3 Exercise of Discretion. Whenever either party shall have the
----------------------
right under this Agreement, either expressly or by implication, to exercise such
party's discretion in making a decision, granting or withholding an approval, or
consenting to some action on behalf of the other party, it is understood that
such discretion is absolute and the exercise thereof is not subject to review or
question for any reason, unless the contrary is expressly provided with respect
to such decision (for example, in those instances in which it is provided that
discretion is to be exercised reasonably). It is further understood that any
such decision, approval or consent by either party may be subject to the
approval, consent or ratification of the third party or parties providing
financing to the party hereto entitled to make such decision, grant or withhold
such approval, or extend such consent.
-45-
22.4 Neither Party Drafter. This Agreement represents the culmination
---------------------
of extensive and arms length negotiations between the parties. Neither party
shall be deemed the drafter of this Agreement.
22.5 Captions. Section and paragraph headings have been included in
--------
this Agreement solely for the convenience of the reader. Such headings do not
constitute a part of this Agreement and shall be disregarded in the construction
or interpretation of this Agreement and every portion hereof.
22.6 Certain Words and Phrases. Whenever the terms "herein," "hereof,"
-------------------------
"hereunder," or words of like import are used in this Agreement, the intended
inference is to the entire Agreement and not to the clause, sentence, paragraph
or section in which such word appears. The word "paragraph" refers to a single
paragraph designated by a separate number. The word "section" refers to a
portion of this Agreement comprised of a series of one or more paragraphs
designated by the same numerical series. For example, this section 22 includes
paragraphs 22.1 through 22.9; the following section 23 consists of a single
paragraph. Pronouns of any specific gender shall be deemed to include all other
genders. The singular shall include the plural, and the plural the singular,
unless the context otherwise requires.
22.7 Time of the Essence. Time is of the essence with respect to
-------------------
all obligations and rights of the parties under this Agreement.
22.8 Choice of Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the United States and of the State of Colorado,
without giving effect to conflicts of law principles thereof.
22.9 Agents, Consultants, and Third Persons. Whenever any right is
--------------------------------------
conferred or reserved hereunder on or to either or both of the parties to this
Agreement, it is intended that such right may be exercised by or through an
agent or independent consultant acting on behalf of the benefitted party. It is
understood that either or both of the parties may exercise such rights from
time to time at the request of third persons who have a bona fide business
interest in the success of such party in discharging its obligations hereunder,
including without limitation third persons providing (or contemplating
providing) financing or credit to such party. No reference to the interest or
involvement of such third persons need be made in the provision or context of
this Agreement wherein such right is conferred on or reserved to a party.
Nothing in this paragraph 22.9 shall be construed to impair or conflict with any
provision of this Agreement which limits assignment, subletting, or
subcontracting of rights, or which requires that certain business information
required to be furnished or permitted to be obtained hereunder remain
confidential and not be exploited improperly by the recipient for competitive
purposes. Recipients of confidential information shall take reasonable steps to
assure that if such information becomes available to such third persons, the
third persons will respect such confidentiality and noncompetition requirements.
Nothing herein shall be construed to make any of such interested third persons
third-party beneficiaries under this Agreement.
22.10 No Recourse Except to Contracting Parties. This Agreement is
-----------------------------------------
entered into between a limited liability company and a partnership upon the
express agreement that notwithstanding any statute or other rule of law to the
contrary now or
-46-
hereafter in force, in the event of a breach of or default under this Agreement,
or in the event of.any other claim or cause of action arising out of or under
this Agreement or the transactions herein contemplated, the complaining party
shall have no recourse for the repayment of Damages occasioned thereby except to
the assets of the other contracting party to this Agreement. Both parties to
this Agreement covenant and agree not to seek, obtain, or in any manner attempt
to enforce against the members of Rocky Mountain or against the officers and
directors of Rocky Mountain, or against the partners (directly and indirectly)
of Thermo and the shareholders, officers, and directors of such partners, any
judgment or decree for the payment of money damages on account of any claim or
cause of action arising out of or under this Agreement or the transactions
herein contemplated.
23. MEMORANDUM OF AGREEMENT
-----------------------
A memorandum of this Agreement in proper form to give notice for
recording purposes of the demise of the Leased Premises shall be executed and,
upon commencement of the Lease Term, recorded upon request by either party. Such
memorandum may include selected thermal supply covenants, including without
limitation those which are intended to run with the land hereunder. This
Agreement shall not be recorded.
24. DISPUTES RESOLUTION
-------------------
A. Unless any third party or parties providing financing to Thermo
shall object thereto not later than upon selection of the arbitration panel as
hereinafter provided, all claims, disputes, and other matters in question
arising out of or relating to this Agreement, or the breach thereof, shall, in
lieu of court action, be submitted to arbitration in Weld County, Colorado
before a panel of three (3) arbitrators. This agreement to arbitrate shall be
specifically enforceable under the arbitration laws of the State of Colorado.
Demand for arbitration must be made within a reasonable time after the claim,
dispute, or other matter in question has arisen. In no event shall the
arbitration be made after the date when institution of legal or equitable
proceedings based on such claims, dispute, or other matter in question would be
barred by the applicable statute of limitations.
B. The arbitrators shall be appointed in the following manner:
(1) The claimant shall give notice in writing to that effect to
the respondent and shall in such notice appoint the first
arbitrator to the panel.
(2) The respondent shall, within ten (10) days by notice in
writing to the claimant, appoint a second arbitrator to the
panel, and if the respondent shall fail to do so within the
ten (10) day period such appointment may (at the request of
the claimant) be made by any judge who is willing to so
designate an arbitrator and who is at the time serving on
the court of general jurisdiction for Weld County.
-47-
(3) The two arbitrators appointed under subparagraphs (1) and
(2), above, shall within ten (10) days appoint the third
arbitrator to the panel, and if they shall fail to do so
within the ten (10) day period such appointment shall (at the
request of either party) be made in like manner as is
provided for alternate appointment under subparagraph (2),
above.
No person shall be appointed to act as an arbitrator unless such person shall be
qualified by a minimum of ten (10) years' experience in the operation of or as a
consultant to the cogeneration or commercial greenhouse industries, or a minimum
of ten (10) years' experience in the private practice of law in a discipline
relevant to such industries. No person shall be appointed as an arbitrator if
such person is known to the party appointing the arbitrator to have some then
existing business or professional relationship with the party making the
appointment, or some interest or duty which conflicts or may conflict with such
person's duty to decide the question under arbitration fairly and objectively.
Should any arbitrator(s) be appointed who shall appear, at any time prior to the
announcement by the arbitrators of their final award, to have a conflict of
interest, the position and views of such arbitrator(s) shall be disregarded by
the other(s) and if such disregard would result in the remaining arbitrator(s)
being equally divided on the outcome, the remaining arbitrator(s) shall promptly
appoint disinterested arbitrator(s) to succeed the interested arbitrator(s)
before concluding the arbitration. Any willful attempt by either party to
conceal a conflict of interest on the part of an arbitrator appointed by such
party shall constitute fraud on the arbitration.
C. Notwithstanding any provisions of law or rule of arbitration to
the contrary:
(1) The panel of arbitrators so appointed shall promptly fix a
reasonable time and place for receiving submissions or
information from the parties concerned or from any other
persons that they think fit and such panel may make such
other inquiries and require such other evidence as may be
necessary for determining the matter before them.
(2) If within a period of ninety (90) days after the date of the
appointment of the said panel a decision shall not have been
rendered by the panel or a majority thereof, a new panel of
arbitrators shall at the request of either party be appointed
in the manner aforesaid and the appointment of the previous
panel shall thereupon cease.
(3) The determination of the said panel of arbitrators shall be
in writing and shall be final and binding upon the parties
concerned except in the event of fraud, or agreed mistake,
and judgment upon such determination rendered by the
arbitrators may be entered in any court of competent
jurisdiction. In addition to establishment and enforcement of
such judgment for damages as may be awarded by the
arbitrators, such judgment may establish the basis for entry
by
-48-
such court of an injunction, decree of specific performance,
order of foreclosure, or such other legal or equitable remedy
as it may appear to said court that the party receiving the
award shall be entitled to under the circumstances.
(4) Claimant and respondent shall each bear the costs and
expenses of the arbitrator appointed by it or on its behalf,
and also the costs and expenses of the third arbitrator shall
be paid by either claimant or respondent, or shall be appor-
tioned among parties to the arbitration in such proportions
as the panel of arbitrators shall in the circumstances
consider proper.
(5) Any party to the arbitration may cause to be joined in the
arbitration any third party who is willing to be joined and
whose presence in the arbitration may be necessary or
desirable for a complete and final resolution of the claim,
dispute, or other matter in question. After such joinder,
such third parties shall have all rights of any other party
to the arbitration, except that such third parties shall not
participate in the selection or replacement of members of the
arbitration panel. Refusal by such third parties to be joined
shall not impair the effectiveness of the arbitration as
between the claimant and the respondent.
(6) Any party to the arbitration shall be entitled, in accordance
with an expedited schedule which shall be determined by the
panel upon request by any such party, to obtain discovery
through depositions, interrogatories, demands for admissions
and requests for production and inspection of documents
and reports as provided for in the Colorado Rules of Civil
Procedure, and should disputes arise with respect to such
discovery procedures the party seeking discovery shall be
entitled to apply to the court of general jurisdiction in
Weld County, Colorado to enforce such rules.
(7) A stenographic record of all arbitration proceedings shall be
made upon request of any party to the arbitration, the cost
of which shall be shared equally among all parties, and no
party shall be entitled to receive a copy of the transcript
of proceedings except upon payment of such party's respective
pro rata share of such cost.
(8) The arbitrators shall be required to make detailed findings
of fact, conclusions of law, and award.
(9) Except as is herein otherwise expressly provided or may be
agreed by all parties to the arbitration, the arbitrators
shall be governed by the Commercial Arbitration Rules of the
-49-
American Arbitration Association (or its successor organization)
then in effect.
These directions for arbitration shall be interpreted under the laws of
Colorado. If at any time it is not possible to establish an arbitration in
accordance with the foregoing, arbitration shall nevertheless be conducted in
accordance with substitute procedures which shall be as nearly as may be
practical in accordance with these prescribed procedures, and resort may be had
to the court of general jurisdiction of Weld County, Colorado to establish the
same.
25. INTEGRATION: AMENDMENT
----------------------
This Agreement, together with the Exhibits attached (or to be
attached) hereto or incorporated by reference, and together with certain
additional agreements, the forms of which are set forth in the Appendices
hereto, embodies the entire agreement and understanding of the parties with
respect to the subject matter hereof. Neither party shall be bound by or liable
for any prior or contemporaneous statement, representation, promise, inducement,
or understanding of any kind or nature which is not set forth or provided for
herein. This Agreement may not be amended, changed, modified, or altered except
in a writing signed by both parties and declaring therein the intention of the
parties that said writing shall effect an amendment hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers or agents as of the date and year of
acknowledgement of their signatures, set forth below.
Signed and acknowledged in the THERMO COGENERATION PARTNERSHIP
presence of: By: Thermo Industries, Ltd., a partner
(as to all signatures on behalf of By: Thermo Industries, Inc. of Colorado,
Thermo Cogeneration Partnership) General Partner
/s/ Xxxxxxx X. Xxxxxxx By: /s/ X. Xxxxxx, III
----------------------------------- ---------------------------------
Printed Name: Xxxxxxx X. Xxxxxxx Xxxxx Xxxxxx, III
--------------------- President
By: Thermo Carbonic Inc., a partner
/s/ Lansing X. Xxxxxxx By: /s/ X. Xxxxxx, III
----------------------------------- ---------------------------------
Printed Name: Lansing X. Xxxxxxx Xxxxx Xxxxxx, III
--------------------- President
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By: Thermo Fuels, Inc., a partner
By: /s/ Xxxxx Xxxxxx, III
--------------------------------
Xxxxx Xxxxxx, III
President
(as to Rocky Mountain Produce ROCKY MOUNTAIN PRODUCE LIMITED
Limited Liability Company) LIABILITY COMPANY
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------- ------------------------------------
Printed Name: Xxxxxx X. Xxxxx Printed Name: Xxxxxxx X. Xxxxxxx
------------------ ----------------------
TITLE: Manager
-----------------------------
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------- ------------------------------------
Printed Name: Xxxxxxx X. Xxxxxxx Printed Name: Xxxxxxxx X. Xxxxxx,
------------------ ----------------------
TITLE: Manager
-----------------------------
STATE OF COLORADO )
CITY AND ) SS:
COUNTY OF DENVER )
------
The foregoing instrument was acknowledged before me this 25th day of
----
March, 1993, by Xxxxx Xxxxxx, III, the President of Thermo Industries, Inc., of
----- -
Colorado, a Colorado corporation and a general partner of Thermo Industries,
Ltd., a Colorado limited partnership, on behalf of the limited partnership,
and in the limited partnership's capacity of a general partner of Thermo
Cogeneration Partnership.
Witness my hand and official seal.
[NOTARY PUBLIC SEAL /s/ Lansing X. Xxxxxxx
OF LANSING A. ----------------------------------------
XXXXXXX Notary Public
STATE OF COLORADO
APPEARS HERE] My commission expires: 0-00-00
------------------
-00-
XXXXX XX XXXXXXXX )
CITY AND ) SS:
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 25th day of
March, 1993, by Xxxxx Xxxxxx, III, the President of Thermo Carbonic, Inc., a
Colorado corporation, on behalf of the corporation and in the corporation's
capacity as a partner of Thermo Cogeneration Partnership.
Witness my hand and official seal.
[COLORADO SEAL OF NOTARY /s/ Lansing X. Xxxxxxx
PUBLIC OF LANSING X. XXXXXXX] ------------------------------
Notary Public
My commission expires: 9-30-95
------------------------------
STATE OF COLORADO )
CITY AND ) SS:
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 25th day of
March, 1993, by Xxxxx Xxxxxx, III, the President of Thermo Fuels, Inc., a
Colorado corporation, on behalf of the corporation and in the corporation's
capacity as a partner of Thermo Cogeneration Partnership.
Witness my hand and official seal.
[COLORADO SEAL OF NOTARY /s/ Lansing X. Xxxxxxx
PUBLIC OF LANSING X. XXXXXXX] ------------------------------
Notary Public
My commission expires: 0-00-00
------------------------------
-00-
XXXXX XX XXXXXXXX )
CITY AND ) SS:
COUNTY OF DENVER )
------
The foregoing instrument was acknowledged before me this 25th day of
----
March, 1993 by Xxxxxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxx the Manager of Rocky
----- - ----------------------------------------- -------
Mountain Produce Limited Liability Company, a Colorado limited liability
company, on behalf of the company.
Witness my hand and official seal.
/s/ Xxxxxx Love
-------------------------------------
Notary Public
My commission expires: 06-10-94
---------------
This instrument prepared by:
Xxxxxxx X. Xxxxxxx
Xxxx, Xxxxxxxxxx & Xxxxxxxxx
1800 Star Bank Center
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000-0000
-53-
EXHIBIT A
---------
Descriptions Comprising the Project Site
(78.643 acres total)
I. The Land (Greenhouse Parcel):
-----------------------------
Located in the State of Colorado, County of Weld, described as:
That part of the Xxxxxxxxx 0/0 xx Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 66
West of the 6th principal meridian, County of Weld, State of Colorado, being
more particularly described as:
Beginning at the West 1/4 corner of said Section 34; thence North 00 degrees
1O minutes 58 seconds West on an assumed bearing along the West line of said
NW1/4 of Section 34 a distance of 40.00 feet to the true point of beginning;
thence North 89 degrees 53 minutes 11 seconds East parallel with the South
line of said NW1/4 of Section 34 a distance of 1070.65 feet to the East line
of zoning parcel one as shown on the plat of Thermo Annexation No. 2; thence
North 00 degrees 01 minutes 29 seconds West parallel with the East line of
said NW1/4 of Section 34 a distance of 1453.44 feet; thence South 89 degrees
49 minutes 02 seconds West perpendicular to said West line of the NW1/4 of
said Section 34 a distance of 882.51 feet to the Easterly line of a public
service co. transmission line easement; thence: South 00 degrees 10 minutes
06 seconds East along said Easterly line of said easement a distance of
119.61 feet to the Southeasterly corner of said easement; thence South 59
degrees 42 minutes 58 seconds West along the Southerly line of said easement
a distance of 222.06 feet to said West line of the NW1/4 of Section 34;
thence South 00 degrees 10 minutes 58 seconds East along said West line of
the NW1/4 of Section 34 a distance of 1221.16 feet to the true point of
beginning.
Contains: 35.001 acres, more or less.
II. The Balance of the Project Site (Cogeneration) Plant Parcel):
----------------------------------------------------------------
That part of the Northeast 1/4 of Section 33, and the Xxxxxxxxx 0/0 xx
Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 66 West of the 6th principal meridian,
County of Weld, State of Colorado, being more particularly described as:
Beginning at the West 1/4 Corner of said Section 34; thence North 00
degrees 10 minutes 58 seconds West on an assumed bearing along the West line
of the Northwest 1/4 of said Section 34 a distance of 40.00 feet to the true
point of beginning; thence South 89 degrees 59 minutes 12 seconds West
parallel with and 40.00 feet North of The East-West centerline of said
Section 33 a distance of 409.95 feet to the East line of Weld County
A - 1
Road 31; thence Northerly along said East line of Weld County Road 31, the
following 5 courses: North 11 degrees 08 minutes 11 seconds West a distance of
569.37 feet to the beginning of a curve to the left; thence along said curve to
the left, having a radius of 5759.58 feet, a delta angle of 6 degrees 22 minutes
00 seconds, a chord that bears North 14 degrees 19 minutes 11 seconds West -
639.67 feet, and an arc length of 640.00 feet; Thence North 17 degrees 30
minutes 11 seconds West a distance of 327.18 feet to the beginning of a curve to
the right: thence along said curve to the right, having a radius of 2261.83
feet, a delta angle of 17 degrees 26 minutes 00 seconds, a chord that bears
North 08 degrees 47 minutes 11 seconds West - 685.55 feet, and an arc length of
688.20 feet; thence North 00 degrees 04 minutes 11 seconds West a distance of
406.67 feet to a point 30.00 feet South of the North line of said Northeast 1/4
of Section 33; thence leaving said East line of Weld County Road 31, North 89
degrees 36 minutes 49 seconds East parallel with said North line of the
Northeast 1/4 of Section 33 a distance of 213.32 feet to the West line of the
North 3/4 of the East 1/2 of the Northeast 1/4 of the Northeast 1/4 of said
Section 33; thence South 00 degrees 10 minutes 06 seconds East along said West
line of the N3/4 E1/2 NE1/4 NE1/4 of Section 33 a distance of 962.31 feet to the
Southwest corner of said N3/4 E1/2 NE1/4 NE1/4 of Section 33; thence North 89
degrees 45 minutes 13 seconds East along the South line of said N3/4 E1/2 NE1/4
NE1/4 of Section 33 a distance of 660.45 feet to said East line of the Northeast
1/4 of Section 33; thence North 89 degrees 41 minutes 29 seconds East along the
South line of the North 3/4 of the West 1/2 of the West 1/2 of the Northwest 1/4
of the Northwest 1/4 of said Section 34 a distance of 331.83 feet to the
Southeast corner of said N3/4 W1/2 NW1/4 NW1/4 of Section 34; thence North 00
degrees 09 minutes 47 seconds West along the East line of said N3/4 W1/2 NW1/4
NW1/4 of Section 34 a distance of 734.60 feet to a point 260.00 feet South of
the North line of the Northwest 1/4 of Section 34; thence North 89 degrees 34
minutes 30 seconds East parallel with and 260.00 feet South of the North line of
said Northwest 1/4 of Section 34 a distance of 745.07 feet; thence South 00
degrees 01 minutes 29 seconds East parallel with the East line of Said Northwest
1/4 of Section 34 a distance of 902.88 feet to a point 1493.44 feet North of the
South line of said Northwest 1/4 of Section 34; thence South 89 degrees 49
minutes 02 seconds West perpendicular to said West line of the NW1/4 of said
Section 34 a distance of 882.51 feet to the Easterly line of a public service
co. transmission line easement; thence South 00 degrees 10 minutes 06 seconds
East along said Easterly line of said easement a distance of 119.61 feet to the
Southeasterly corner of said easement; thence South 59 degrees 42 minutes 58
seconds West along the Southerly line of said easement a distance of 222.06 feet
to said West line of the NW1/4 of Section 34; thence South 00 degrees 10 minutes
58 seconds East along said West line of the NW1/4 of Section 34 a distance of
1221.16 feet to the true point of beginning.
Contains 43.642 acres, more or less.
A - 2
EXHIBIT C
---------
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 $7,800,000.00
1 7,765,300.71
2 7,729,743.48
3 7,693,307.10
4 7,655,969.83
5 7,617,709.39
6 7,578,502.96
7 7,538,327.16
8 7,497,158.01
9 7,454,970.95
10 7,411,740.82
11 7,367,441.82
12 7,322,047.53
13 7,275,530.87
14 7,227,864.08
15 7,179,018.73
16 7,128,965.68
17 7,077,675.07
18 7,025,116.30
19 6,971,258.01
20 6,916,068.07
21 6,859,513.56
22 6,801,560.74
23 6,742,175.04
24 6,681,321.03
25 6,618,962.40
26 6,555,061.96
27 6,489,581.58
28 6,422,482.19
29 6,353,723.77
30 6,283,265.30
31 6,211,064.74
32 6,137,079.03
33 6,061,264.02
34 5,983,574.48
35 5,903,964.07
36 5,822,385.29
37 5,738,789.48
38 5,653,126.76
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
------------------------------ ----------------------------
39 $5,565,346.03
40 5,475,394.92
41 5,383,219.77
42 5,288,765.59
43 5,191,976.03
44 5,092,793.35
45 4,991,158.38
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, plus such
additional sums as may also be due pursuant to paragraph 5.2
*** See "Memorandum Regarding Adjustment of Rent and Option Price" of
even date (Appendix I).
C - 2
EXHIBIT D
---------
(Form of)
MORTGAGE
THIS INSTRUMENT is made this day of 19 , by and between
ROCKY MOUNTAIN PRODUCE LIMITED LIABILITY COMPANY, a Colorado limited liability
company, with a mailing address of 000 Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000 ("Mortgagor"), and THERMO COGENERATION PARTNERSHIP, a
Colorado partnership with a mailing address of 0000 Xxxxxx Xxxxxx, Xxxxxxxx
Xxxx, Xxxxxxxx 00000 ("Mortgagee"), with respect to the following recitals:
A. Mortgagor is obligated to Mortgagee under the terms of a Thermal
Supply Lease Agreement between the parties dated ,19 (the "Thermal
Lease Agreement").
B. Mortgagor is the owner of that property situated in Weld County,
Colorado (the "Property") which is more particularly described in Exhibit A
attached hereto and incorporated herein by reference.
C. Mortgagor is desirous of securing to Mortgagee the full and timely
performance of Mortgagor's obligations under the Thermal Lease Agreement.
NOW, THEREFORE, the Mortgagor, in consideration of the Premises and for
the purposes aforesaid, does grant, bargain, sell, convey, and mortgage to
Mortgagee the Property and all its appurtenances thereto.
TOGETHER WITH AND INCLUDING:
All right, title, and interest which Mortgagor now has or may hereafter
acquire in and to said Property and in and to all improvements, tenements,
easements, hereditaments, and appurtenances thereunto belonging; and
All right, title, and interest, if any, of Mortgagor, in and to the
land lying within any street or roadway adjoining the above-described Property;
and all right, title and interest of Mortgagor in any vacated or hereafter
vacated street or alley adjoining the above-described Property and all right,
title and interest, if any, of Mortgagor in and to any strips or gores adjoining
the above-described Property; and
All rents, issues, proceeds, and profits accruing and to accrue from
said Property; and
D - 1
All proceeds or sums payable in lieu of or as compensation for the
loss of or damage to (1) any property described herein, or (2) the Property and
all rights in and to all pertinent present and future fire and/or hazard
insurance policies; and
All awards made by any public body or decreed by any court of
competent jurisdiction for a taking or for degradation of value in any eminent
domain proceeding; and
All fixtures and articles of personal property now or hereafter owned
by Mortgagor and attached to or contained in and used or usable in connection
with said Property (but not including removable trade fixtures or personalty,
such as office machines), including, but not limited to, all furnishings, rugs
and carpets, apparatus, machinery (except office machines), motors, elevators,
fittings, radiators, disposals, mechanical refrigerators, televisions, radios
(to the extent such televisions and radios are used in the operation and
maintenance of the Property), recreational equipment, awnings, shades, screens,
equipment and other furnishings and all plumbing, heating, air conditioners,
lighting, ventilating, refrigerating, incinerating, and sprinkler equipment and
fixtures and appurtenances thereto; and all renewals or replacements thereof or
articles of substitution therefor, whether or not the same are or shall be
attached to said building or buildings in any manner; and
All buildings, structures, and improvements of every kind and
description now or hereafter erected or placed thereon and all materials
intended for construction, reconstruction, alteration and repairs of such
improvements now or hereafter erected thereon, including, but not limited to,
lumber, plaster, cement, shingles, roofing, plumbing, fixtures, pipe, lath,
wallboard, cabinets, nails, sinks, toilets, furnaces, heaters, brick, and
unattached refrigerating, cooking, heating and ventilating appliances and
equipment, all of which materials shall be deemed to be included within the said
Property immediately upon the delivery thereof to the said Property.
It is specifically understood that the enumeration of any specific
articles of property shall in no wise exclude or be held to exclude any items of
property not specifically mentioned. All of the land, estate and property
hereinabove described, real, personal and mixed, whether affixed or annexed or
not, and all rights hereby conveyed and encumbered are intended so to be as a
unit and are hereby understood, and agreed and declared to form a part and
parcel of the real estate and to be appropriated to the use of the real estate,
and shall for the purposes of this Mortgage be deemed to be real estate and
conveyed and encumbered hereby.
TO HAVE AND TO HOLD the said Property unto Mortgagee, its successors
and assigns forever;
PROVIDED, ALWAYS, that if Mortgagor, its successors and assigns, shall
well and fully perform all and singular the several obligations, covenants,
agreements and promises contained in the Secured Obligations, hereinafter
described, and shall in the meantime keep and perform all the covenants and
agreements herein contained, then Mortgagee shall execute and deliver a full
and complete release hereof. For purposes of Section 00-00-000, Colorado
Revised Statutes, as amended, the Secured Obligations are currently scheduled
to expire not later than , .
D - 2
1. Secured Obligations. This Morgage is given to secure the full and
--------------------
faithful performance of Mortgagor's obligations (the "Secured Obligations")
under the Thermal Lease Agreement, including without limitation, the payment of
Base Rent and Additional Rent during the term of the leasehold therein
described, Ground Rent (if any) as provided therein, the covenant to use thermal
energy and to operate the Facility as described in the Thermal Lease Agreement,
the payment of Thermal Payments and the indemnifications and other covenants set
forth in the Thermal Lease Agreement. Mortgagor agrees to abide by and fully
perform each of the foregoing obligations, and agrees that any Default on its
part (which is not cured within the grace period, if any, applicable thereto)
under or pursuant to any of such obligations shall constitute a default under
this Mortgage.
2. Covenant of Title. Mortgagor, for itself and its successors and
------------------
assigns covenants and agrees to and with Mortgagee, its successors and assigns,
that it holds the said Property by title in fee simple; that it has good right
and lawful authority to sell and convey the same; that said Property is free and
clear of all liens and encumbrances whatsoever, except those matters described
on Exhibit B hereto and by this reference made a part hereof; and that except
as aforesaid, Mortgagor will warrant and defend said Property against the lawful
claims of all persons claiming by, through, or under it. Mortgagee shall permit
no superior or subordinate Mortgage, Deed of Trust or other financing
encumbrances to exist with respect to the Property except as is permitted under
paragraph 5.8 of the Thermal Lease Agreement.
3. Default. Each of the following events shall constitute a default
--------
hereunder:
(a) Failure of Mortgagor to fully and faithfully perform each
andevery term and condition to be performed by it under any one or more of the
Secured Obligations;
(b) The occurrence of any default under any encumbrance on all
or any part of the Property which has priority over the lien of this Mortgage,
or the creation of any encumbrance subsequent to the date hereof, except as
permitted under paragraph 5.8 of the Thermal Lease Agreement;
(c) Failure by Mortgagor to comply with or observe any term,
covenant, warranty or representation contained in this Mortgage;
(d) Failure by Mortgagor to comply with the provisions of the
Declaration of Restrictive Covenants recorded on in Book , at
Page Reception No. of the records of County, Colorado,
the terms of which encumber and restrict the use of the Property.
4. Mortgagee's Right to Cure or Perform. In the case of any default
-------------------------------------
herein, Mortgagee may, but need not, make any payments or perform any actions,
including the purchase, discharge, and compromise of any prior encumbrance,
which are necessary or required to cure such default or protect the security of
this Mortgage. All monies paid for the purposes herein authorized and all
reasonable expenses of any such performance, including reasonable attorneys'
fees, shall be included as additional indebtedness secured hereby, and shall
become immediately due and payable with interest
D - 3
thereon at the lesser of eighteen percent (18%) per annum or the highest non-
usurious rate for commercial transactions permitted by Colorado law. Inaction of
Mortgagee shall never be considered as a waiver of any right accruing to it on
account of any default hereunder on the part of Mortgagor.
5. Mortgagee's Remedies. In the event of any default hereunder,
---------------------
Mortgagee, its successors or assigns, may, at its sole option, elect to
foreclose this Mortgage. Following the occurrence of a default, Mortgagee or the
holder of the certificate of purchase after a foreclosure sale, acting by and
through a Receiver appointed in accordance with law, shall at once become
entitled to the possession, use and enjoyment of the Property, and to the rents,
issues and profits thereof, from the date of occurrence of the default and
during the pendency of foreclosure proceedings and the period of redemption, if
any there be; and such possession shall at once be delivered to such Receiver
appointed in accordance with law; and Mortgagee, or the holder of said
certificate of purchase, shall be entitled to a Receiver for said Property and
of the rents, issues and profits thereof, whether or not foreclosure proceedings
have been commenced, and without regard to the solvency or insolvency of
Mortgagor or of the then owner of said Property and without regard to the value
thereof, and such Receiver may be appointed by any court of competent
jurisdiction upon ex parte application and without notice; and all rents, issues
-- -----
and profits, income and revenue therefrom shall be applied by such Receiver to
the payment of the damages occasioned by Mortgagee on account of such default,
according to law and the orders and directions of the Court.
6. Partial Foreclosures. In the event Mortgagee elects to foreclose
---------------------
this Mortgage, such election may be made in Mortgagee's sole discretion, with
respect to any one or more defaults together with fees, costs, advancements and
expenses incurred with respect to such defaults. Such foreclosure shall not
affect the lien of this Mortgage as to any remaining obligation or any part of
any such obligation, which is secured hereby but not covered by such
foreclosure, and which does not become due prior to the commencement of such
foreclosure proceedings. Any such foreclosure shall not extinguish the lien of
this Mortgage, but title acquired by such foreclosure shall be subject to the
lien of this Mortgage for all remaining obligations secured hereby. A redemption
from any such foreclosure shall have the same effect as if the foreclosure had
been that of an independent mortgage; and if Mortgagee acquires title conveyed
by virtue of any such foreclosure, the title evidenced by this Mortgage shall
nonetheless continue to secure the lien for the remaining obligations and shall
not merge with the title acquired by such foreclosure. Mortgagee expressly
acknowledges and agrees that the limitations on foreclosure set forth in Section
00-00-000, Colorado Revised Statutes, are inapplicable to this Mortgage.
7. Expenses of Foreclosure and Litigation. In the event of foreclosure
---------------------------------------
of the lien hereof, there shall be allowed and included as additional
indebtedness all reasonable expenditures and expenses which may be paid or
incurred on behalf of Mortgagee for attorneys' fees, appraiser's fees, outlays
for documentary and expert evidence, stenographer's charges, publication costs
(which may be estimated as to items to be expended after foreclosure sale or
entry of the decree) of procuring all such abstracts of title, title searches
and examinations, title insurance policies and similar data assurances with
respect to title as Mortgagee may deem reasonably necessary either to prosecute
such suit or to evidence to bidders at any sale which may be had pursuant to
such decree the true condition of title to or the value of the Property. All
expenditures
D - 4
and expenses of this nature in this paragraph mentioned, and such reasonable
expenses and fees as may be incurred in the protection of said Property, the
maintenance of the lien of this Mortgage, including the reasonable fees of any
attorney employed by Mortgage in any litigation or proceeding affecting this
Mortgage, or said Property, including probate and bankruptcy proceedings, or in
preparation for the commencement or defense of any proceeding or threatened
suit or proceeding, shall be immediately due and payable by Mortgagor, with
interest thereon, at the rate equal to the lesser of eighteen percent (18%)
per annum or the highest non-usurious rate permitted by Colorado law, and shall
be secured by this Mortgage.
8. Binding on Successors and Assigns. This Mortgage and all provisions
----------------------------------
hereof, shall extend to and be binding upon Mortgagor and all persons claiming
under or through Mortgagor, whether or not such persons have executed this
Mortgage, and the terms of this Mortgage shall inure to the benefit of Mortgage
and its successors and assigns. Nothing herein contained, however, shall be
deemed to authorize any conveyance or encumbrance of the Property by Mortgagor
except in accordance with the Thermal Lease Agreement.
9. Captions: Definitions. The captions and headings of various
---------------------
paragraphs of this Mortgage are for convenience only and are not to be construed
as defining or limiting in any way the intent of the provisions hereof.
Capitalized terms used herein but not defined herein shall have the meaning
given to such terms in the Thermal Lease Agreement.
10. Law. This instrument has been executed in Colorado and shall be
---
governed by and construed in accordance with the laws of the State of Colorado.
11. No Merger. In the event Mortgagee acquires any interest in the
---------
Property whether subordinate or superior to the lien of this Mortgage at any
time prior to the full performance of the obligations described herein, it is
the intent of Mortgagor and Mortgagee that such other interest shall not be
merged with any interest of Mortgagor acquired by reason of the grant of this
Mortgage.
IN WITNESS WHEREOF, Mortgagee has hereunto set its hand the day and
year first above written.
Signed and acknowledged in the ROCKY MOUNTAIN PRODUCE LIMITED
presence of. LIABILITY COMPANY
_______________________________ By:___________________________
Printed Name:__________________ Printed Name:_________________
_______________________________ Title:________________________
Printed Name:__________________
D-5
EXHIBIT E
---------
Preliminary Plans
Foundation Drawing dated February 11, 1993 for Ft. Xxxxxx
Greenhouse by Dalsen Kassenbouw BV, drawing number
80011FU. (Incorporated by reference.)
Greenhouse Drawings Details dated March 8, 1993 for
Ft. Xxxxxx Greenhouse by Dalsen Kassenbouw BV, drawing
number 80011DET01. (Incorporated by reference.)
Outline specifications consisting of pages 8-38 from Dalsen
Kassenbouw BV. Order Confirmation No..8010/Xxxxxx No.138.
E -1
[LOGO OF DALSEM APPEARS HERE]
General design
--------------
The greenhouse area of 78.641,33 sq. meters is divided into 2 adjacent areas.
The whole block is divided into 12 separate compartments, 12 compartments each
6.528 m2.
Description per greenhouse block
--------------------------------
MATERIALS
The materials chosen for the greenhouse structure are hot dipped galvanized
steel, aluminium system profiles for the outside cladding and horticultural
tempered glass as covering. These materials will guarantee a longer life under
all weather circumstances.
Type: 6,40 mtrs. span with 2 x 3, 2 mtrs. Venlo, roof
and sections of 4,0 mtrs.
Layout see attached drawing.
Specification 12 units of 6.528 m2
----------------------------------
Width : 10 spans of 6,40 mtrs. = 64.00 mtrs.
Length: 25,5 sections of 4,00 mtrs. = 102,00 mtrs.
Covered area (12 units) = 78.336,00 m2
Connecting corridor Connected to greenhouse bij expansion joint.
-------------------
Width: 1 span of 6,40 mtrs/resp 12.80 = 19.20 mtrs.
Length: 10 sections of 4 mtrs = 40.00 mtrs.
Covered area (Outside dimensions) = 782 m2
One expansion joint 0.5 x 192.31 = 96,16 m2
Total covered area of the greenhouse unit = 78.545,17 m2
Note:
Due to screening end sections and expansion joints, gutter length in
outside dimensions = 408,93 mtrs. while width = 192.31 mtrs.
Total covered area = 79.423,33 m2.
[LOGO OF DALSEM APPEARS HERE]
Partitions
----------
There is one partition in the greenhouse xxxxxxx xxxx.
Gutterheight from foundation = 4,00 mtrs.
Gutterheight from soil level = 4,30 mtrs.
Building site : Fort Xxxxxx, U.S.A.
Anticipated erection period: April 1993.
The whole construction complies with the Dutch standard specification NEN 3859.
TNO-IBBC approved according CASTA version 1.40.
[LOGO OF DALSEM APPEARS HERE]
Foundations of the greenhouse unit of 79.423,33 mZ (included)
--------------------------------------------------------------------------------
EXHIBIT 10.12
The greenhouse must be built with a slope towards both xxxxx-ends and middle
partion wall
FOOTING WITH PREFABRICATED INSULATED SLABS:
On site, reinforced prefabricated wall will be built for the
sides, ends and partitions of the greenhouse and corridor.
Slab dimensions :
- Height = 450 mm
- Thickness (inclusive insulation) = 65 mm
- Side wall = 1980 mm
- Xxxxx-end = 3180 mm
Total length of the concrete footing :+/- 1500 mtr.
Dollies connected to the prefabricated slabs every 3,20 meter in the xxxxx ends
and every 2,00 mtr. in the sides. Dimensions 12 x 15 x 100 cm. These dollies are
placed in + 95 ltr. concrete mortar + 70 cm below soil level.
- -
Concrete dollies
Pre-fabricated dollies are delivered below every steel post of the
inner construction, dimensions 12 x 12 x 100 cm.
These dollies to be placed in 45 ltrs. concrete mortar + 70 cm below
soil level. -
Total number of concrete dollies :2939 pcs.
Concrete pathways (not included)
A concrete path is projected in the centre of each greenhouse in the
corridor area, in the half of the width and in the length of the
greenhouse. The pathways are 10 cm thick and have a single net
reinforcing, size 150 x 150 x 7 mm.
Delivery includes:
-local readymix concrete for foundation only
-all reinforcing for foundation only (Dutch origin)
Not included:
-site levelling according the offer requirements.
[LOGO OF DALSEM APPEARS HERE]
Steel Structure
---------------
Steel posts
Every 6,40 mtrs. wide and 4,00 mtrs. long for the inner construction.
Rolled hollow section dimension : 80 x 50 x 4,0 mm
Posts at cross bracing : 80 x 50 x 5,0 mm
Postheight (from foundation until
gutterheight) : 4,00 mtrs.
Connected to the foundations with anchor bolts and nuts.
Xxxxx-end posts and partion posts.
Rolled hollow steel section 100 x 100 x 4 mm at xxxxx ends.
All necessary provisions for heating suspension and screening purlins
are welded to these posts.
The Xxxxx end posts are drain posts with a "turbo" in-let and an out let at a
low level. The posts function as a drain pipe and are cosmastic coated
internally.
Framed cross-ties (trellis) type 6,40 mtrs.
Composed of: - upper profile RHS : 50 x 25 x 1,5 mm
- lower profile RES : 50 x 25 x 1,5 mm
- tension rods : diam. 14 mm
- pulling rods : diam. 14 mm
- number of rods : 16
- coupler plates : flat 50 x 12 mm
- trellis height : 35 cm
Trelisses are lowered 15 cm.
Xxxxx end, side and partition purlins
Cable-end - 1 U-profiles : 80 x 40 x 3 mm
- 1 U-profile : 35 x 180 x 40 (For screening)
Sides - 2 U-profiles : 80 x 40 x 2 mm
One upright halfway each side section of 4,5 mtrs. made of rolled hollow steel
section 80 x 50 x 2,5 mm.
Xxxxx-and cross struts
Steel bars diam. 10 mm complete with turnbuckles.
Total 10 xxxxx end crosses for the greenhouse.
Cross bracing (per ditilated block)
2 rows of cross bracing. Position: parallel to the gutter composed of
rolled hollow sections 40 x 20 x 1,50 mm and coupler beams between
the posts at a high and low level.
Posts will be 80 x 50 x 5 mm
Extra concrete poured at the dollies for the cross bracing 110ltr.
instead of 45 ltrs. Diameter of drilled hole to be 60 cm and height
of concrete prop 40 cm.
[LOGO OF DALSEM APPEARS HERE]
Windbracing (per dilitated block)
2 rows of windbracing in a horizontal position, projected above the cross
bracing sections composed of tension rods diam. 10 mm complete with coupler
plates and turnbuckles.
Gutters
Galvanized steel width 17,5 cm, thickness 3,0 mm, type APD.
The gutters will be mounted on the steel posts, bolts, washers and
nuts. Gutters are white coated on both sides.
Drip channel
Aluminium drip channel under the above mentioned steel gutter is
included.
The condensate will be collected 4 times per gutter and transported
in a central collecting pipe every 8 gutters outer sidewalls at a
max. distance of 1 mtr.
Crop supports
Each xxxxx-end will be equipped with an adjustable crop wire support
made of diam. 12 mm, projected every 3,20 mtrs.
Total number mounted = 240 pcs.
Crop wires
Total 99.000 mtrs. crop wire no. 10 diam. 3,40 mm for the suspension
of crops, irrigation lines etc.
All crop wires are 60 cm lowered from the trellis with xxxxxx chain.
Crop wire and chains are supplied only.
All above mentioned steel parts are hot dipped galvanized according to the Dutch
--------------------------------------------------------------------------------
standard specification NEN 1275
-------------------------------
[LOGO OF DALSEM APPEARS HERE]
Aluminium
---------
Roof: Dalsem system
Aluminium standard roof, type 3,2 mtrs. Venlo. The roof is composed
of aluminium profiles such as ridges, reinforced glazing bars
(snowload 50 kg), gutter edges with a roof pitch of 22 deg. suitable
for glass sizes 165 X 100 cm.
According the Dutch standards, the roof is mounted storm-tight with
the following materials:
-ridge clips for the connection glazing bar - ridge
-gutter clamps for the connection gutter - glazing bar
-a double ridge catcher per xxxxx-end of 3,2 mtrs. and near
all 3 expansion joints on both sides.
-gutter-ridge-gutter connections
positions: - above the first trellis girder at both xxxxx ends
and between the ridge catchers at xxxxx ends.
- above each trellis of the first and the last span
of 3,20 mtrs. and near expansion joint.
The whole roof construction complies with the Dutch standard
specification NEN 3859. TNO-IBBC approved report no: B88-669
(glass 1,00 mtr. APD gutter).
Gables, partition (corridor(s) and sides
The side walls, xxxxx ends and corridors are composed of aluminium
profiles such as wall plates, gutter edge profiles, vertical glazing
bars and horizontal glazing bars. This rubber capped glazing system
increases the stability of the greenhouse and improves the air
tightness.
The greenhouse corners are finished with special aluminium corner
profiles. The glazing bars are suitable for double glazing, glass
width: 78,40 cm.
Expansion joints
One expansion joint (30 cm) is projected one in the centre of the
greenhouse 30x6,4 straight after the partition xxxxx.
This joint is closed with a special expansion rubber between the
profiles.
As the dutch Nen standaards admit greenhouses to be max. 200 mtrs. in
length, the greenhouse is split into two areas divided by the above
described expansion (dilitation) joint. Due to the fact that the
total length of the two areas will be 2x 204 mtrs. the greenhouse
still does not pass the Dutch Nen standards on this point. To compen-
sate the above, two extra expansions will be projected in the roof
and gables allowing the expansion and contraction however the gutters
will not be split at these two joints, enabling an eventual roof
cleaner to pass these joints.
Adjacent to the partition xxxxx (drainposts) the next (dititated)
area will start with posts every 3,20 mtr. (drainposts) and be fitted
with screening purlins and crop supports.
[LOGO OF DALSEM APPEARS HERE]
Roof airing windows on the greenhouse
The supply includes 6.054 ventilation windows on the roof with a
width of three glass sheets of 100,0 cm = 300,0 cm.
The height of the ventilation windows are 100,0 cm.
Position of the ventilation windows one above each trellis per ridge,
on both sides of the ridge alternately.
The airing windows are complete with rubber closing profile at three
sides.
Airinq system "RAIL":
The airing system is a so called "rail" system on 27 mm. galvanized
tubes pulled in a transverse direction under the gutter, position
over each trellis. The tube is guided by three clamp consoles made of
an aluminium tube with two brass bearings.
Drive of the roof airing windows on the greenhouse
Performed by a tooth rack mechanism TRI 25 S. The gear rack to
perform with transverse connection. The motor driveshaft 1" is
galvanized and projected in bearing plates. The supply includes 300
toothracks.
The driving by 48 reduction motors type RW. twenty four for the left
hand and twenty four for the right hand windows with a double worm
gear transmission and with galvanized supports.
The motors are based on a voltage of 480 V - 3 phase 60 Hz.
The airing system of the corridor is carried out with 9 toothracks and two
ventmotor manual operated with electric switch.
[LOGO OF DALSEM APPEARS HERE]
Glazing and glass sheets
------------------------
Glass sheet dimensions
-on the roof of the production areas : 165,0 x 99,7 cm
-on the roof of the cooling corridor
*in the airing windows : 100,0 x 99,7 cm
*under the airing windows : 66,5 x 99,7 cm
-The first 2 mtrs. of the roof on both
ends and on both sides of the ridge
of the first and the last span : 165,0 x 49,7 cm
-Gables and sides - single max. 78,4 cm width
-Glass type: clear horticultural tempered glass with a light
transmission of 89 percent with the industrial tolerance
of plus or minus 1 percent.Xxxxx-ends and sides with clear
horticultural glass.
-Light transmission of the glass to standard specification
concept NEN 2675.
-Glass thickness : 3,8 - 4,2 mm
-Origin : U.S.A.
Glazing
The roof glass will be slid into the roof glazing bars and is sup-
ported on the gutter by a gutter edge profile. The xxxxx/side glass
will be fixed on the xxxxx/sides glazing bars with special aluminium
connecting bars (horizontally) and covered with rubber after the
glazing. The first xxxxx ends of 3,2 mtrs. and the first 46,4 mtrs.
of each side will be glazed with half glass sheets.
Rainwater discharge
The rainwater will be collected two times per gutter of each
block.
-The rainwater will be.transported down to soil.level through
xxxxx-end and partion post. Total 4X per gutter.
-eight collective pipelines are projected tapering from diam.
315 mm to 125 mm.
-From each corner to the middle of the connecting corridor into
collecting silo The silo will be provided with overflow.
(max.lenght 20 metres).
The drainage installation includes an automatic pump system TO EMPTY
the eight collecting pipes after rainfall.
Gutters and roof drainage is based on 20 ltrs. per m2 per hour
Rainfall exceeding this average figure may result in overflowing.
The doors of the greenhouse Five aluminium doors running on underrollers.
The door is complete with rails, rollers, upper guide, door frame,
handle and lock, 3 mtrs. wide, 3 mtrs. high.
Two doors are automatically controlled by pull chain switches.
[LOGO OF DALSEM APPEARS HERE]
Enclosure 2
-----------
Heating system
--------------
The supply includes the installation of a grow-tube heating, tube-
rail heating, ringtransport pipeline, mixing groups and insulation
works.
Calculation conditions:
Outside temperature -12 deg. Celsius
Inside temperature +18 deg. Celsius
Windspeed 5 mtrs./sec.
Main water supply temperature 87 deg. Celsius
Return water temperature 32 deg. Celsius
Maximum difference between main- and
return water 55 deg. Celsius
Transmission coefficient roof 5,8 Watt/m2K
Transmission coefficient wall 5,0 Watt/m2K
Change of air in the greenhouse without
screening 1,2/hour
The heating coils in the greenhouse are connected to a Tichelmann distribution
system.
The maximum water velocity in the supply-return pipeline is 1,6 m/sec. All
suspension materials are hot dipped galvanized Hoses for the mobile loops made
by KVS 4 bar at 110 degrees, 1 cotton ply wall 6 mm.
Based on conditions within the above,the maximum variation in temperature will
not exceed plus/minus 1 degree celsius in any area of the greenhouse.
[LOGO OF DALSEM APPEARS HERE]
The pressure expansion unit must be delivered by purchaser because
of the connection with the thermal reservoirs.
The connection of the powerplant on the ringtransport by means of:
4 valves Keystone 350 mm with motor
4 valves Keystone 350 mm complete with flanges
Ring distribution pipelines incl. mixing groups
The delivery includes the supply and delivery of two ringtransport
pipeline heating systems for the greenhouse.
The pipeline of the ringtransport system is pre-insulated and fitted
with alarm wiring.
The pipeline originates in the boilerhouse and runs parallel to the
xxxxx-ends further to compartments.
The ringtransport pipeline is connected on a manifold. On this
ringtransport pipeline 12 mixing groups for the tube-rail heating and
12 mixing groups for the grow-tube heating are projected.
[LOGO OF DALSEM APPEARS HERE]
XXXXXXXXXXXXXXXXXXXXX
384 pre-insulated underground pipeline 140/200 mm incl.
alarm-wiring
265 pre-insulated underground pipeline 114/200 mm incl.
alarm-wiring
125 pre-insulated underground pipeline 219/315 mm incl.
alarm-wiring
964 pre-insulated underground pipeline 168/250 mm incl.
alarm-wiring
Including T-pieces, welding bends and sleeves.
12 Mixing groups on the ring main supply pipeline in the greenhouse
for the tube-rail heating system in section 1 to 12
4 shut-off valves Keystone diam. 100 mm complete
1 four-way mixing valve diam. 100 mm complete
with servo-motor 24 V, manual operation, flanges
1 pump type Stork 1,5 Kw/480 V - 3ph - 60 Hz.
10 mtrs. tube diam. 114 mm
8 welding bends diam. 114 mm
2 thermometers
4 welding sockets 1/2"
4 mtrs. threaded pipe 1/4" + 2 quick shut-off valves for
central flue.
12 Mixing groups for the grow-tube heating system in section 1 to 12
4 shut-off valves Keystone diam. 100 mm complete
1 four-way mixing valve diam. 100 mm complete
with servo-motor 24 V, manual operation, flanges
1 pump type Stork 1,5 Kw 480V - 3 ph,- 60 Hz.
10 mtrs. tube diam. 114 mm
8 welding bends diam. 114 mm
4 welding reducing sockets
2 thermometers
4 welding sockets 1/2"
4 mtrs. threaded pipe 1/4" 2 quick shut-off valves for
central flue
Excluded excavating
[LOGO OF DALSEM APPEARS HERE]
XXXXXXXX
Greenhouse type : 6,4 mtrs. Venlo
Section nos. : 1 to 12
Span : 6,4 mtrs.
Width : 10 x 6,4 mtrs.
Length : 102 mtrs.
Concrete path : 3,5 mtrs.
Section length : 4,0 mtrs.
Temperature difference outside-inside: 22 deg. C
Needed heating capacity: 665.856 kcal/hr.
Water temperature supply - return: 87 - 62 deg. C
Main supply pipeline: 89 mm pre-insulated in the soil
Cable-end piping: the distributing pipes
Side-wall piping: 4 x diam. 51 mm (incl. stop valve)
The distributing pipes of this trolley heating system are 2 x 32 mtrs. and taper
from 108 - 51 mm.
They will be fitted at low level at one xxxxx end on the uprights.
This greenhouse is heated by 8 x 51 mm heating pipes, wall thickness 2,25 mm per
span of 6,4 mtrs. fitted as per the tube-rail system. The loops are mobile and
connected with a 3,5 mtrs. high pressure hose to the supply lines. The end
pieces are composed of 5 S-bends diam. 51 mm. All loops are fitted with stops
near the xxxxx end to prevent running off of the trolley.
For the suspension of the heating pipes, hooks are projected at the trellisses
every 8 mtrs. The length of the hooks are 200 cm in black. The heating system is
connected to 12 automatic mixing groups on the ring main supply pipeline system.
Exclusive: digging-in for the underground pipeline.
Delivery includes the supply only of 21.710 tube-rail supports projected every
2,25 mtrs. The tube-rail supports are hot dipped galvanized.
Distance c/c : 41,5 cm
Size of footplate : 100 x 1,5 mm, length 50 cm
RHS support : 50 x 30 x 150 mm with holes for strapping.
Supply only of straps and screws are included.
[LOGO OF DALSEM APPEARS HERE]
Grow-tube heating
Dimensions of greenhouse: see enclosed drawing
Sections : 1,3,5,7,9 and 11
Span : 6,4 mtrs.
No. of spans : 10 x 6,4 mtrs.
Span length : 102 mtrs.
Watertemperature supply - return: 62 - 32 deg. C
Mainline : 89 mm pre-insulated in the soil
Xxxxx end piping : the distributing pipes
Side-wall piping : 2 x 51 mm.
One grow-tube heating system per span 6.40 mtrs. of 8 black tubes of 51 mm, wall
thickness 2,25'mm is projected in this greenhouse. The loops turns at the
central path. Four tubes will be mounted in a high position suspended 15 cm from
the lower trellis beam in J hooks while the other 4 tubes are lowered 2.45
mtrs.,at the same place also in J hooks. The pipes in high position are fixed
mounted on the supply pipeline with 1'steelpipe.
The lower pipe is fitted with high pressure hose for the connection to the upper
tube and supply pipeline.
In order to connect the hose to the pipe, a steel bend shall be provided. Also,
to prevent the sagging of pipes, provision is made for a 1" pipe in the xxxxx-
ends to support the 51 mm pipe.
Mains pipeline: diam. 89/140 mm pre-insulated in the soil.
The distribution pipeline of 2 x 38 mtrs. tapers from 102 - 51 mm and is fixed
in a low position at both xxxxx-ends on the uprights.
The grow-tube is suspended with black hooks.
This system allows to change the height by hand.
The grow-tube heating system is connected to 6 automatic mixing groups on the
ring main supply pipeline system and also will be connected to the return of the
tube-railsystem.
[LOGO OF DALSEM]
CO-2 system
The CO-2 system is projected for the sections 1 until 12.
The delivery and mounting of P.V.C. mains in the greenhouse, mains are mounted
along xxxxx-ends above soil while 1 main from xxxxx-end to xxxxx-end is mounted
in the soil.
Sub-mains are along both xxxxx-ends and connected with solenoid valve on main
supply.( 4 in total ).
On this sub-mains tubilene hoses 20 mm must be connected with special P.V.C.
couplings.
Per 6.40 mtrs we have projected 2 CO-2 hoses.
Control equipment:
Each electric solenoid is controlled with a individual Xxxxx CO-2 meter.
Each CO-2 meter is connected to the computer for feedback and control of the
system.
On the out-side weather station a fifth CO-2 measering sensor will be mounted
complete the system.
NOT INCLUDED:
C02 TANK AND CO2 GAS WITH A PRESSURE 2.5 AND 3.5 BAR AT A TEMPERATURE OF 20
DEGREE CELSIUS.
EXCAVATION
ROLLING OUT AND MOUNTING OF TUBILENE HOSES.
Dalsem shall supply the pipe paint only for one times painting the greenhouse
heating pipework.
[LOGO OF DALSEM]
GROW-TUBE HEATING
77Dimensions of greenhouse: see enclosed drawing
Sections : 2,4,6,8,10 and 12
Span : 6,4 mtrs.
No. of spans : 12 x 6,4 mtrs.
Span length : 98 mtrs.
Water temperature supply - return: 62 - 32 deg. C
Mainline : 89 xx
Xxxxx end piping : the distributing pipes
Side-wall piping : 2 x 51 mm.
One grow-tube heating system per span 6.40 mtrs. of 8 black tubes of 51 mm, wall
thickness 2,25 mm is projected in this greenhouse. The loops turns at the
central path. Four tubes will be mounted in a high position suspended 15 cm from
the lower trellis beam in J hooks while the other 4 tubes are lowered 2.45
mtrs., at the same place also in J hooks. The pipes in high position are fixed
mounted on the supply pipeline with 1' steelpipe.
The lower pipe is fitted with high pressure hose for the connection to the upper
tube and supply pipeline.
In order to connect the hose to the pipe, a steel bend shall be provided. Also,
to prevent the sagging of pipes, provision is made for a 1" pipe in the xxxxx-
ends to support the 51 mm pipe.
Mains pipeline: diam. 89 mm.
The distribution pipeline of 2 x 32 mtrs. 102 - 51 mm and is fixed in a low
position at both xxxxx-ends on the uprights at the partition.
The grow-tube is suspended with black hooks.
This system allows to change the height by hand.
The grow-tube heating system is connected to 6 automatic mixing groups on the
ring main supply pipeline system and also will be connected to the return of the
tube-railsystem.
INSULATION OF THE MANIFOLD PIPEWORK
The insulation of the hot water pipeline of our works at the manifold is done
with 50 mm rockwool, and finished with plain aluminium sheets 0,8 mm thick.
[LOGO OF DALSEM]
ENCLOSURE 3
-----------
Drip irrigation system
----------------------
A complete drip irrigation system for the complete greenhouse area. The drip
irrigation specification is divided into four parts.
SYSTEM FOR ZONE 1,2,3 AND 4
4 Lines of polythene trickle irrigation hose, diam. 25 x 21,2 mm per 6,40 mtrs.
span with so-called "Bato" tubes, rated at 3 ltrs./hr. each at a pressure of 6
mtrs. head.
Total 484 lines.
Holes are punched in the polythene hoses, spaced at 25 cm, for tomatoes with a
plant distance of 50 cm. The drip tubes of 60 cm as well as the pins (model
plant spike) are fitted on the hoses.
The irrigation hoses are been fed from two sides by means of p.v.c. distributing
pipelines diam. 50 mm, fitted along the concrete path and along the xxxxx ends.
The distributing pipelines are connected with the main supply pipeline by means
of a connecting p.v.c. tube 75 mm with a valve set (total 24 valve sets). The
system installation is divided into 12 groups of 2 valve sets.
Each valve set is composed of:
-one plastic solenoid valve, diam. 1 /1/2/" with adjusting diaphragm in order to
control the pressure
-a plastic filter, diam. 1 /1/2/"
-a pressure gauge
-a plastic by-pass valve, diam. 50 mm for washing of the trickle irrigation
hoses
-on 4 valve sets a manual valve is mounted for flushing the crops
To reduce the feeding area and/or draining of a group, the distributing
pipelines are provided with 6 p.v.c. ball valves diam. 50 mm
Additional
we install 2 P.V.C. ball valves diam. 50 mm to create an even watergive when 2
valve sets are opend simultaniously.
Four p.v.c. main supply pipelines, diam. 160 mm to be installed along the
concrete path connected to the fertilizer units, projected in the fertilizer
store/pumproom.
[LOGO OF DALSEM]
Total 4 substrate control units.
FERTILIZER CONTROL UNIT
In the pumproom 4 substrate units are projected which are working according to
the mixing vessel principle (every unit is suitable to serve 2 valve sets at the
same time).
The unit is composed of the following elements:
-a stainless steel frame made of rolled hollow sections 40 x 40 x 2 mm
-a fiberglass mixing vessel, round model, capacity 750 ltrs. with lid
-1 double action dosing pump, Iwaki type 2 MD 20 R, which pumps the A and 3
fertilizer solutions (EC) into the mixing vessel.
-1 dosing pump, Iwaki type MD15 R, which pumps the acid or lye solution (Ph)
into the mixing vessel
-1 self priming filling pump Grundfos, type ZP 250, 3,0 Kw 4 HP 480 V - 3 ph -
60 Hz.
-1 coated filling water filter, make UDI with stainless steel strainer 3" 300
micron
-2 solenoid filling valves 1/2" 24 V with adjustable capacity
-1 stainless steel mixing/supply pump Grundfos type DLP80-125/133 7,5 Kw 10
HP/480 V - 60 Hz.
-1 Filtomat fully automatic self cleaning filter, rated at 40 m3/hr., diam. 3",
type nr. M 203
-a return/mixing pipe with control valve and PH control transmitter
-connections for an EC control transmitter and an EC check in the supply
pipeline
-pressure gauges for filter- and pump check
-electronic level control in the mixing vessel for start/stop of the filling
pump and min./max. level of the alarm
-a pump control panel, suitable for the control by a computer of the alarm of
the filling pump, supply pump, A and B pumps, PH pump and filling valve
-all pumps are activated by manual switches or automatically, furthermore the
automatic level control for the filling pump/valve, min./max. level of the
alarm and the power failure alarm are included. All alarms are signalled both
optically and acoustically in a so-called blind diagram
-all pumps are connected to the control panel
-a litres counter is fitted in the pressure pipe for the recording monitoring
and/or control of the solenoid valves.
[LOGO OF DALSEM]
THE FOLLOWING PIPELINES ARE CONNECTED TO THIS UNIT:
-The main supply pipes to the greenhouses inclusive of a p.v.c. shut-off valves
-The suction pipe from the waterstorage to the filling pump, maximum length 50
mtrs. of 125 mm p.v.c. tube inclusive of a foot valve, shut-off valve and a
fixed perforated suction tube.
-Drain/blow down tube from the unit, max. length 20 mtrs. of p.v.c. tube diam.
75 mm.
-2 only open rectangular polyester fertilizer reservoirs (contents 2.200 ltrs.)
no lids fitted on posts including a draining tray.
Further the reservoirs include the necessary supply pipe and floating suction
and discharge pipelines for the fertilizer solutions A and B.
-1 only open round polyethelene reservoirs fitted on supports, contents 200
ltrs., including the necessary supply and suction pipelines for the acid/lye
solutions.
-The supply tubes between the dosing pumps of the fertilizer solutions and the
acid/lye vessels.
-The filling pipe from the filling pump to the fertilizer- and acid/lye vessels
of 50 mm p.v.c.
With the units described a capacity of 1,5 ltrs. per m2 is available. This value
is possible if the installation uses 2 valve sets in one time.
The irrigation water must be free of Fe.
NOTE:THE ACID OR LYE PUMPS ARE FOR CORRECTION ONLY THUS NOT TO INJECT MAXIMUM
ACID OR LYE QUANTITY.
The density of 2,5 drippers per M2 is calculated, each one rated at 3 ltrs./hr.
The units are coupled, so to avoid an error in the irrigation system.
DRAINWATER DISPOSAL
A p.v.c. collecting pipe of 110 mm (class 51) is installed along all xxxxx ends
and partion wall in order to evaluate the superfluous dripwater.
This pipe is fitted in the ground and equipped with 4 risers of 40 mm with
reducers of 40 x 125 mm per 6,40 mtrs. span.
The collecting pipes are joined in the middle by a coupling pipe of 125 mm
(class 51). These pipes debouch into two round fiberglass vessels of 1000 ltrs.
capacity each.
A stainless steel self priming pump make Lowara, type silverjet 480 V - 3 ph -
60 Hz, is installed next to both vessels.
It pumps the drainwater into the drainwater reservoirs via a XXXX p.v.c. pipe.
P.v.c. non return valves are fitted in the suction pipes.
Liter counters and connecting points for an EC transmitter are fitted in the
p.v.c. pipes.
The pumps are calculated at a processing capacity of 4 ltrs. m2 per day.
[LOGO OF DALSEM]
DRAINGUTTERS
This item comprises the supply only of so-called "Bato" troughs.
The supply includes the following:
49.080 mtrs.of "Bato" substrate medium trough 50 x 250 x 50 x 1,2 mm. 49.000
mtrs. polystyreen dim.2000 x 200 x 20 mm.
484 drains
[LETTERHEAD OF DALSEM APPEARS HERE]
Enclosure 4
-----------
Internal screening system
-------------------------
The supply of materials for 24 energy saving/screeningcloth installation with a
DS aluminium profile.
Dimensions of the greenhouse section
Width : 30 spans of 6,40 mtrs. + expansion = 192,00 mtrs.
Length: 102 sections of 4,00 mtrs. = 408,00 mtrs.
The supply and installation of a screening system fitted with a VA-profile.
Working of the system : from trellis to trellis over
4,0 mtrs.
Xxxxx ends : not included
Side walls : not included
Type of motor : total 24 Xxxxxx XX - 480 V.
Length of tubular shafts : 24 times 64,00
Number of tooth racks TUS20
length = 4.000 mm : total 21 per drive shaft
Number of pull/push tubes
diam. 32 mm, narrowed ends : total 21 per drive shaft
Screening material LS 13 A : made of polyester/aluminium,
screening 30%, energy saving 20%
when closed
Specification
-------------
Drive per section
2 wormgear reduction motor, make Ridder, complete with limit switch, chain
coupling (for the protection of the gearbox) and mounting plate for fitting on
the uprights.
This motor is coupled to a galvanized tubular shaft diam. 32 mm (wall 2,6 mm
thick). The tooth racks, made Ridder TUS20, which are activated by this tubular
shaft have been welded directly to the pull/push tubes and they run together
with this tube through special borne pinions, made Ridder.
These pinions are fitted on the trellis girders and serve at the same time as a
bearing of the tubular shaft.
Pull/push tubes
The pull/push tubes to be installed in a lower position (+ 2 cm) in order to
-
prevent the wearing out of the cloth.
The pull/push tubes are all tubes diam. 32 mm with narrowed ends (wall thickness
1,5 mm).
The pull/push tubes run on plastic diabolo wheels, type KST-358/34 fitted on
each truss/trellis girder.
The VA profiles are fitted on the pull/push tubes with aluminium clamps.
[LETTERHEAD OF DALSEM APPEARS HERE]
Supporting/positioning wires
Per 3,2 mtrs. span 8 support wires and 3 position wires 2,5 mm will be
installed, of which one is made of plastified steel 2,5 mm, the others are made
of Atlas wire 2,5 mm.
Xxxxx-end fixing
The support wires are fixed to Dalsem purlins, size 35 x 180 x 40 mm.
These RH steel profiles are hot dipped galvanized.
Suspension of support wires.
Support wires is effected by the so-called VA profile, provided with a black
rubber strip of 20 mm against the truss.
The installation is made energy-tight with a fixed strip of screen over the
rolled hollow sections and along the sides.
Stainless steel clips are used to fix the cloth to the VA profiles.
The profile is provided with a continuous aluminium catch lock that keeps the
pack as small as possible in the closed position.
The profile is provided with support wire guides so that the screen cannot slip
under the profile.
Trellis clamps are used to fix the screen on the trellis and are equipped with
cloth end-stop stainless steel clips.
If the screening system as specified in this offer is ordered from Dalsem
together with the greenhouse, the screen will be fully integrated in the
greenhouse i.e. the greenhouse is fitted with the so-called Dalsem screen
purlins in the xxxxx-ends.
Fixed strips of film/cloth over the rolled hollow sections are no longer
required then and a perfect sealing at the xxxxx-ends is achieved because the VA
sections stop against the screen purlins.
28
[LETTERHEAD OF DALSEM APPEARS HERE]
Enclosure 5
-----------
Electrical and computer controls
--------------------------------
Remarks:
We assume that there is a municipal sub-station in close vicinity of this
project. The project requires a continuous peak power rating of 210 Kw or 520
Kva when the project is in full operation.
roof sprinkler system - 12 Kw
4 dripunits - 40 Kw
roofventilation - 18 Kw
screening - 18 Kw
heating system - 60 Kw
miscellaneous - 30 Kw
warehouse - 30 Kw
-------
total 208 Kw
Cable ducts
This system comprises:
A cable duct over the full length of the greenhouse along the concrete paths
fitted on wall brackets to upright and/or trellis.
Specification
-------------
660 mtrs. of cable duct 120 mm
1200 wall brackets 120 mm
500 coupler plates
fixing materials
Sub main distribution device
Total 6 distribution devices made of sheet steel and each equipped with:
1 automatic main switch 100 amps
1 power group of 35 amps
2 power group for the airing motors
1 power group for the screening system
1 power group spare
[LETTERHEAD OF DALSEM APPEARS HERE]
The greenhouse system
This system comprises:
The wiring of 48 vent gear motors and 24 screening/shading motors with
automatic-reverse and motor protection- and emergency stop switches, all mounted
on a wooden board, via feed cables vmvk 4 x 2,5 mm2 to the distribution devices.
The wiring of the low voltage cables for connecting the measuring box. The
measuring box has a max. distance of 40 mtrs. from the concrete path.
Specification
-------------
8 wooden boards
5200 mtrs. of vmvk cable 4 x 1,5 mm2
5500 mtrs. of vmvk cable 4 x 2,5 mm2
600 mtrs. of low voltage cable 16 x 0,8 mm2
1500 mtrs. of low voltage cable 12 x 0,8 mm2
12 switchboxes for measuring boxes
48 airing window controlboxes
50 mtrs. xxxxxx chain
The greenhouse system (path lighting system)
The supply, installing and wiring of a path lighting system composed
of:
32 double wall sockets 120 V
50 FL fittings 1 x 36 Watt waterproof
3 single pole switches
The supply and installing of 12 power wall sockets 480 V / 16 amps and the
wiring via one feed cable vmvk 4 x 2,5 mm2 to the distribution devices.
Specification
-------------
12 power wall sockets 480 V / 16 amps
50 FL fittings 1 x 36 Watt waterproof
50 FL tubes 36 W / 33
32 double wall sockets 120 V
3 single pole switches
700 mtrs. of vmvk cable 4 x 2,5 mm2
480 mtrs. of vmvk cable 3 x 2,5 mm2
125 branch boxes with coupling nuts and mounting plates
[LOGO OF DALSEM APPEARS HERE]
Power supply cables (underground)
The delivery includes 6 power supply line cables, size, ymvkas
4 x 16 mm2.
These cables are placed in the cableduct and connected to the main
distribution installation.
Specification
-------------
1200 mtrs. ymvkas 4 x 16 mm2
incl. fixing materials
The boilerhouse installation
The delivery includes the necessary regulating boxes and cable for the
connection of the ringtransport mains of the water temperature control.
The delivery includes the supply of 1 min. pressure meters incl. low/level
safety for the pressure expansion automat vessel.
(pressure expansion vessel not included in our offer).
The delivery of a pump switchpanel together with automatic and manual
motorsafety switches for the following equipment:
2 greenhouse thermal pumps
3 spare groups
1 supply transformer for the mixing groups in the boilerhouse
The connection wiring for the substrate computer
This installation includes:
The connecting to an available feed point of 480 V - 3 ph 60 Hz of 4 substrate
control units by 25 mtrs. of feed cable ymvk 5 x 6 mm2
The delivery of weak current wiring for the connection of 36 solenoid valves,
24 V.
The wiring of the flowsensor, EC and Ph pumps and transmitters to the computer.
Drainwater disposal and electrical wiring of all necessary equipment according
our specification.
[LETTERHEAD OF DALSEM APPEARS HERE]
Specification
-------------
6 wooden boards
120 mtrs. of vmvk 5 x 6 mm2 cable
150 mtrs. of vmvk 4 x 2,5 mm2 cable
1000 mtrs. of weak current cable 24 x 0,8 mm
1200 mtrs. of weak current cable 12 x 0,8 mm
200 connectors
35 branch boxes and cable inlets
Connection of the environmental computer
This system includes:
The installing of the computer in the computer room and the connect-
ing to the available 120 V double wall socket.
The installing of the mast with outside sensors and the connection to
the computer.
The supply and installing of the required control and test leads from
the computer to:
26 mixing valve motors and water temperature transmitter
48 vent gear motors and vent position indicators (2 parallel)
12 measuring boxes
2 ringtransport main controls
24 screening/shading motors
The supply and installing of the necessary control boxes for the
measuring boxes, mixing valve motors and ventilation motors.
The alarm of the computer is connected to the existing alarm in the
boilerhouse, whilst a horn is installed directly adjacent to the
computer.
Material specification
----------------------
1 double wall socket 120 V
35 mtrs. of vmvk cable 3 x 2,5 mm2
20 branch boxes + cable inlet
20 mtrs. of p.v.c. cable ducting
150 mtrs. of p.v.c. cable ducting
26 control boxes for the mixing valve motors
50 mtrs. of mattress chain
2 ringtransport control boxes
32
[LETTERHEAD OF DALSEM APPEARS HERE]
CO-2 control equipment
4 CO-2 measuring points and five Xxxxx CO-2 monitor 250 E with
4 solenoid valves.
Main distribution device
Total 1 distribution cabinet of sheet steel.
Main distributing cabinet consist of:
1 automatic main switch 630 amps
4 power groups of 35 A for the substrate units
2 power groups of 63 A for the greenhouse thermal pumps
2 power groups of 63 A for the cooling system spare
6 power groups of 63 A for the sub distributing systems - spare
3 power groups of 35 A for the roofsprinkler
Delivery of supply cables from powerplant
Not included.
Wiring and connection of the roof sprinkler system is included
[LETTERHEAD OF DALSEM APPEARS HERE]
Computer control system for the complete project
------------------------------------------------
For the climate control of the greenhouse we included a "horticultural computer
control system".
Computer system
---------------
One CD 750 climate computer for the total greenhouse complex with video
terminal, keyboard and printer 120 D, built in a steel desk, with connection
panel which can be mounted at the left or right side. The computer is suited to
control 12 compartments according to the following specifications:
Communication : in English
Temperature : degrees Celsius
Line voltage : 000 X-00 Xx
Program version : 112
Computer dimensions : base : dxw =79x150 cm
desk-top : dxw =79x108 cm
connection panel : dxwxh=79x42x108 cm
Digital outputs : max. current 1,0 Amp. per digital output
: max. current 1,6 Amp. per 8 dig. outputs
simultaneously
Climate control : triac, 24 V AC
Fertilizer control : triac, 24 V AC
irrigation valves : either 24 V AC-triac or 24 V DC-transistor
outputs per block of 32 valves
The measurement and control of the following:
-measurement and registration of the outside conditions (light intensity, wind
velocity, wind direction, outside temperature and rain detection)
-measurement and registration of condition in the compartments (ambient temp.
relative humidity, water temp., vents position, fan stages activated)
-clock circuit with setting facilities (astronomical times, fixed times)
-boots setting
-calculation programs (average values day and night period, calculated values)
-alarm reports with or without (audible) alarm contact, with automatic
print-out
-power down protection circuit
-battery back-up
[LETTERHEAD OF DALSEM APPEARS HERE]
Note:
Program numbers with the same substrate unit number are software interlocked, so
only one program at a time can be in operation. In program 112 it is possible to
set independent EC and Ph values per program.
Program numbers with the same pump number are also software interlocked, so only
one program at a time can be in operation.
Delivery includes the following:
1 x Xxxx xxxxxx meter
1 x outside temperature sensor
1 x wind velocity sensor
1 x wind direction sensor
5 x Xxxxx CO-2 monitor 250 E, range 0-3000 ppm
26 x water temperature sensor in stainless steel body
26 x mixing valve switching box with manual switch for a
24V AC mixing valve motor. Mixing valve switching
box is equipped with solid state outputs.
48 x control box with 24 having potentiometer roofvents
24 x screening/shading control
1 x rainsensor, with heating element to prevent condensation
12 x measuring box temperature & humidity with circulation fan,
including:
* integral watertank, 2 ltrs.
* 5 mtrs. steel chain
* 5 mtrs. cable with 7-p. connector
* 1 mtr. cotton sleeving for humidity measurement
The measuring box consists of a galvanized metal construction with a
white polyester coating. Both sensors are protected against temperature
influences caused by direct solar radiation.
1 x pack registration paper, 2000 sheets
1 x chair with textile cover, colour black/grey
6 x EC interface
12 x EC sensor
6 x Ph interface
12 x Ph sensor
36
[LETTERHEAD OF DALSEM APPEARS HERE]
Enclosure 6
-----------
Waterstorage tank
-----------------
Two waterstorage tanks one of 166 cub. mtrs. drainwater disposal, and
one of 450 cub. mtrs. is included for the storage of the irriga-
tion/roofsprinkler water. The watertanks are projected near the
fertilizer room in the connecting corridor.
Materials to connect the irrigation unit to the waterstorage tank are
included.
Dimensions of the watertank
- 1 watertank with a capacity of 166 cub. mtrs.
- 1 watertank with a capacity of 450 cub. mtrs.
Dimensions to be set later because of available space.
Each one of the reservoirs is composed of 5 rings each one assembled
of 10 galvanized corrugated sheets, bolted together.
Genap black water basin film, model Aquatex, thickness 0,5 mm,
suitable for drinking water, KIWA certification is used for lining of
the reservoirs and the existing clean water reservoir.
In order to protect the film against damages Genap polyester sheets
(300 grams/m2) will separate the film from the walls of the xxxxx-
voirs. The top of the films are fitted with a reinforced border.
The borders are fitted with a doubling and rings every 50 cm.
For the installation of the sleeves 6 mm cord is used while for the
fixing of the polyester sheets special profiles are used.
Genap anti-algae tarpaulins for external use are included.
(They fit in the reservoirs as floating tarpaulins).
The place where the reservoirs are assembled on the ground should be
levelled and filled with sand. Further 56 concrete slabs in all are required
and should be laid waterlevel.
The rims of the reservoirs will rest on these slabs.
The slabs are not included in our quotation (size of the slabs
30 x 30 cm).
Note:
Tanks are mentioned in price summary enclosure 3.
37
[LETTERHEAD OF DALSEM APPEARS HERE]
Situation in the greenhouse:
----------------------------
vents, roofsprinklers & heating control
---------------------------------------
---------------------------------------------------
Cmp. Mv + Ps Airinl. Screens
1 - 12 1 2 1
---------------------------------------------------
Cmp = compartment number
Mv + Ps = mixing valve motor with automatic control of
associated circulation pumps
1 x transport line pre-control program with 2 circulation pumps
with automatic selection of summer and winterpump, depending
on demand of heat required in the compartments thereto.
2 x substrate control program for fertilizer system with 2 EC
measurements and 2 Ph measurements. Included control of:
* fertilizer dosing pump (A & B)
* acid or lye pump
* filling pump
* irrigation pump
* mixing pump
5 x CO-2 measurement and dosing programs
1 x graphics program for 5 graphs on screen or the printer.
2 x control of 16 electro valves 24 V AC, divided into 10
independent programs. Each program has independent start
conditions, depending on:
* time
* light intensity or light sum
* too low rel. humidity in a compartment with minimum rest
time between two starts
Situation
---------
Program 1 - 12 : 2 valves each - drip irrigation.
Program 1 - 12 : 24 valves - roof sprinkler.
[LETTERHEAD OF DALSEM APPEARS HERE]
Enclosure 6
Roof irrigation system
----------------------
The system is split up into 4 times 20 rows with each 11 circular
sprinklers. The polypropelene sprinklers Type "Mamcad". The sprink-
lers are rated at 0,3 m3/hr. at a pressure of 2.0 bar.
The sprinkling diameter is approx. 18 mtrs.
The risers to the sprinklers are made of 32 mm aluminium pipe and are
fitted by aluminium brackets at the uprights and the roof glazing
bars and bushed at the ridge. The sprinklers are fitted right on top
of the ridge and will not protrude more than 30 cm in order not to
hinder the eventual greenhouse roof cleaner.
The 63 mm p.v.c. pipes are installed in the ground. They are joined
with 1,5" valve sets. Our supply includes 12 valve sets in all.
Each valve set is composed of the following elements:
- one solenoid valve 1,5" make Bermad
- one take off point 50 mm x 1,5" for draining of the pipes
(frost prevention)
- a p.v.c. ball valve 32 mm with half Geka 1" coupling
(watering tap).
The valve sets are connected to the main supply.
The 110 mm p.v.c. main supply pipe is installed underground along the
pathway and connected on pump station in the substrate room.
The pumpstation is assembled of a stainless steel frame with
1 Lowara pump type XX 00-000 xx 0,0 XX (0,0 XX) 480 V - 60 Hz and a
2" filter, make UDI with stainless steel 300 micron strainer.
The pump capacity is sufficient to control 1 valve at each time.
The following pipework is connected to the pumps:
The pressure pipes of 110 mm p.v.c. fitted with a p.v.c. shut-off
valve. The suction pipe of 90 mm p.v.c. from the mains water xxxxx-
voir at a max. distance of 35 mtrs. inclusive of a fixed perforated
suction pipe, a brass non return valve and p.v.c. shut-off valves.
[LETTERHEAD OF DALSEM APPEARS HERE]
Enclosure 7:
The mounting of 20 hose connectors ball valves 1.5" along pathway for
cleaning and hand irrigation purposes.
These valves connected on a separate main diam. 90 mm connected on the pump set
of the Hydro pressure installation.
Total cost including installation add USD 13.650.
Hydro pressure installation.
The pump installation is placed on a stainless steel frame including pressure
vessel.
In total 3 pumps will be used including filter 3" with stainless
steel strainer 300 micron. One of the pumps is spare to keep the
pressure and to be use in case of emergency.
On this pump set we connect:
A - pressure main 110 mm roof sprinkler installation.
B - pressure main 90 mm cleaning and hand valves.
The suction pipe 90 mm from the main water reservoir at a max.
distance of 20 mtrs. inclusive of a fixed perforates suction pipe, a
brass non return valve and p.v.c. shut-off valve.
Total cost including installation add USD 16.844.
39
[LETTERHEAD OF DALSEM APPEARS HERE]
EXHIBIT F
---------
Preliminary Construction Schedule
F-1
[XXXXX DESCRIPTION TO COME]
EXHIBIT H
---------
Schedule of Permitted Encumbrances
1. Taxes and assessments which are a lien or are now due and payable; any
tax, special assessment, charge or lien imposed for or by any special
taxing district or for water or sewer service; any unredeemed tax sales.
2. Easement granted to Public Service Company of Colorado for the
construction, reconstruction, operation and maintenance of conductors and
conduits for the transmission of electricity, together with the necessary
poles, towers, cross-arms, cables, wires, guys, supports, and other
fixtures and devices, used or useful in the operation of electric
transmission lines, through, on, over, and across the west 13 feet of the
Land, Together with the right of ingress and egress over said premises and
to remove objects or structures therefrom; and, also to survey, construct,
reconstruct, maintain, operate, control, and use said lines and
facilities, as contained in instrument recorded February 27, 1964 in Book
508, at Reception No. 1430152, Weld County, Colorado Records.
3. Oil and gas lease between Xxx Xxxxxxxx, Agent and Attorney in Fact for
Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxxxx, and Xxxxxx X. Xxxxxx and Xxxxxx
X. Xxxxxx dated May 27, 1970, recorded June 11, 1970 in Book 627 as
Reception No. 1548965, and any interests therein or rights thereunder.
Note: Extension of the above lease as claimed by Affidavit of
Production, pursuant to CRS 00-00-000, by Xxxxxx-Xxxx
Petroleum Co., recorded August 5, 1975 in Book 744 as Reception
No. 1666396 and re-recorded September 10, 1975 in Book 747 as
Reception No 1669444, and by Amoco Production Company recorded
January 30, 1976 in Book 758 as Reception Nos. 1680147 and
1680181, and by Xxxx X. Xxxxxxx, Xx., recorded November 15,
1976 in Book 782 as Reception No. 1703543, corrected by
instrument recorded February 25, 1975 in Book 785 as Reception
No. 1706871, and by X.X. Xxxxx, individually and Xxxx X.
Xxxxxxx Xx., as Trustee of the Xxxx X. Xxxxxxx, Xx. Trust dated
May 4, 1982, recorded January 25, 1984 in Book 1019 as
Reception No. 1954108, August 28, 1984 in Book 1041 as
Reception No. 1979337, and January 29, 1985 in Book 1056 as
Reception No. 1996787.
4. All interests in and to all of the oil, gas, and other minerals, as
conveyed to Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxx, and Xxxxx X. Xxxxxx by
deed recorded December 8, 1976 in Book 783 as Reception No. 1705355, and
any interests therein or rights thereunder.
5. Terms, agreements, provisions, conditions, and obligations as contained in
Agreement by and between City of Fort Xxxxxx and Rennoc Corporation
recorded September 22, 1981 in Book 948 as Reception No. 1869885.
H - 1
6. Terms, agreements, provisions, conditions and obligations as contained in
Annexation Agreement by and between Thermo Carbonic, Inc., Rennoc
Corporation, and The City of Fort Xxxxxx, Colorado, a Colorado municipal
corporation recorded October 1, 1992 in Book 1352 as Reception No.
02305317.
7. Reservations of (1) right of proprietor of any penetrating vein or lode to
extract his ore; and (2) right of way for any ditches or canals constructed
by authority of United States, in U.S. Patent recorded October 20, 1909 in
Book 132 at Page 257. (Affects NW1/4 Section 34)
8. Proposed Declaration of Covenants (See pp. H - 3 through H - 6):
H - 2
DECLARATION OF COVENANTS
------------------------
THIS DECLARATION is made as of the ____ day of __________, 19__, by THERMO
COGENERATION PARTNERSHIP, a Colorado partnership, hereinafter referred to as
"Declarant."
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Declarant is the owner of certain real property located in the
County of Weld, State of Colorado, which is more particularly described on
Exhibit "A" hereto ("Cogeneration Site"), upon which Declarant intends to
construct and operate a cogeneration plant; and
WHEREAS, Declarant is also the owner of certain real property located in
the County of Weld, State of Colorado, which is more particularly described in
Exhibit "B" hereto ("Greenhouse Site"), upon which Declarant intends to
construct and lease to others a commercial greenhouse; and
WHEREAS, the cogeneration plant will be constructed with the intention of
supplying the thermal energy requirements for the operation of the commercial
greenhouse; and
WHEREAS, Declarant would not construct the cogeneration plant but for the
obligation of the Greenhouse Operator (hereinafter defined) to purchase and use
thermal energy produced by the cogeneration plant in the operation of the
commercial greenhouse for a continuous period of twenty-five (25) years from the
initial date of commercial operation of the cogeneration plant; and
WHEREAS, Declarant desires that the Greenhouse Site shall be held, leased
and used subject to the following covenants, conditions and restrictions for the
purpose of protecting the value and desirability of the Cogeneration Site.
NOW, THEREFORE, Declarant, for itself, its successors and assigns, declares
as follows:
1. Definitions
-----------
A. The term "Declarant" shall include Thermo Cogeneration
Partnership and any successors and subsequent owners of the Cogeneration Site
for so long as it owns the Cogeneration Site.
B. "Greenhouse Operator" shall mean the party or parties operating
the greenhouse and shall include, without limitation any party or parties owning
fee title to the Greenhouse Site and for any improvements erected thereon.
H-3
2. Restriction on Use. The Greenhouse Site shall be used and
------------------
operated only as a commercial greenhouse for the production of agricultural
products, or for such alternative uses (which must in any event require
consumption of thermal energy) as may be approved by Declarant prior to any
change in use, which approval by Declarant shall not be withheld or delayed
unreasonably.
3. Covenant to Operate. The Greenhouse Operator shall use and
-------------------
operate the Greenhouse Site for the permitted purposes described in paragraph 1
hereof. Such operations shall be conducted in accordance with the terms and
conditions of a certain Thermal Supply Lease Agreement dated as of March 15,
1993, under which Declarant is the lessor and Greenhouse Operator is the lessee
(the "Thermal Supply Agreement"); provided however that the term of Greenhouse
Operator's leasehold estate shall not commence until the occurrence of the
Commencement Date as provided in the Thermal Supply Lease and that this
Declaration of Covenants shall not be construed to have effected any demise
of the Greenhouse Site or to constitute actual or constructive notice of
any such demise. In connection with the operation of the Greenhouse Site,
the Greenhouse Operator shall, subject to the terms of the Thermal Supply
Agreement and conditions of Force Majeure as therein provided, accept a
quantity of thermal energy from the Cogeneration Site of not less than
Two Hundred Billion (200,000,000,000) BTU measured on an annual calendar
year basis, which thermal energy shall be received through a heat transfer
system. To the fullest extent reasonably practicable, thermal energy
prepared on the Cogeneration Site shall be utilized on the Greenhouse
Site in lieu of thermal energy obtained from alternate sources. In addition, no
other source of thermal energy (except solar generated radiant energy) shall
be utilized on the Greenhouse Site in connection with the operation of the
permitted use so long as thermal energy sufficient to satisfy the needs of the
operation is produced and made available from the Cogeneration Site.
4. Appointment of Receiver. In addition to any other rights and
-----------------------
powers conferred on the Declarant, it shall have the right after the breach of
any of the covenants herein to apply for the appointment of a receiver for the
Greenhouse Site with the power to enter upon, take possession and control of and
operate the Greenhouse Site for the permitted use herein described, and with
such other powers as may be deemed necessary to perform its duties. Declarant
shall be entitled to such receiver as a matter of right, and shall be entitled
to apply for such receiver ex parte and without
--------
prior notice to Greenhouse Operator. Any receiver so appointed shall apply any
income from the operation of the Greenhouse Site first to the necessary expense
of continuing the operation, then to the reasonable costs of the receivership,
and the balance shall be held and applied as directed by the court.
5. Enforcement. In any legal or equitable proceeding for the
-----------
enforcement (or to restrain the violation) of this Declaration in any provision
hereof, the losing party shall pay the reasonable attorneys' fees of the
prevailing party, and such amount shall be assessed as part of any judgment or
order entered by the court hearing the dispute. All remedies provided herein or
at law or in equity shall be cumulative and not exclusive. The failure of
Declarant to enforce any of the covenants herein contained shall in no event be
deemed to be a waiver of the right to do so for subsequent violations.
H - 4
6. Term. This Declaration, every provision hereof and every
----
covenant contained herein shall continue in full force and effect for a period
twenty-five years from the initial date of commercial operation of the
cogeneration plant, unless prior thereto the Declarant and the Greenhouse Opera-
tor shall execute and record in the real estate records of Weld County,
Colorado, a written instrument acknowledging the earlier termination hereof. The
date of initial commercial operation of the cogeneration plant shall be deemed
to be the date set forth on a certificate which may be filed in the real estate
records of such county by the Declarant within five (5) years after the date of
filing hereof. Otherwise, such date shall be deemed to be the twenty-fifth
(25th) anniversary of the filing in such real estate records of this
Declaration.
7. Inurement. The covenants herein contained shall bind Declarant
---------
and Greenhouse Operator during the periods in which they shall own their
respective sites, and thereafter shall bind and inure to the benefit of their
respective successors and assigns.
8. Severability. If any of the provisions of this Declaration or
------------
the application thereof in any circumstances shall be invalidated, such
invalidity shall not affect the validity of the remainder of this Declaration or
the application thereof in other circumstances.
Signed and acknowledged in the THERMO COGENERATION PARTNERSHIP
presence of: By: Thermo Industries, Ltd., a partner
(as to all signatures on behalf of By: Thermo Industries, Inc. of Colorado,
Thermo Cogeneration Partnership) General Partner
By:
--------------------------------------- ---------------------------------
Xxxxx Xxxxxx, III
Printed Name: President
---------------------------
By: Thermo Carbonic Inc., a partner
By:
--------------------------------------- ---------------------------------
Xxxxx Xxxxxx, III
Printed Name: President
---------------------------
By: Thermo Fuels, Inc., a partner
By:
---------------------------------
Xxxxx Xxxxxx, III
President
H - 5
MEMORANDUM REGARDING ADJUSTMENT OR RENT
AND OPTION PRICE
Subject: Thermal Supply Lease Agreement dated as of March 22, 1993
(the "Thermal Lease Agreement")
Parties: Thermo Cogeneration Partnership, a Colorado partnership ("Thermo")
Rocky Mountain Produce Limited Liability Company, a Colorado
limited liability company ("Rocky Mountain")
Date: March 25, 1993
1. Reference is hereby made to the Thermal Lease Agreement.
Capitalized terms used in this memorandum have the meanings given to such terms
in the Thermal Lease Agreement. The parties desire to supplement their
agreements and understandings set forth in the Thermal Lease Agreement as
expressly provided in this memorandum.
2. Base Rent payable under paragraph 4.1 of the Thermal Lease
Agreement and the Option Purchase Price set forth on Exhibit C of the Thermal
Lease Agreement have been determined on the assumption that the final Contract
Sum (inclusive of the Contractor's fee under the Construction Contract) for
construction of (and therefore the investment of Thermo in) the Facility will be
Seven Million Eight Hundred Thousand Dollars ($7,800,000). Such Base Rent and
Option Purchase Price also have been determined on the premise that a reasonable
return on Thermo's investment in the Facility should approximate the average
annual rate of interest (not presently capable of final determination) which
Thermo will be required to pay for the definitive
construction/start-up and term financing to be obtained by Thermo for
construction and start-up of the Plant and the Facility, multiplied by Thermo's
then-unrecovered investment from the Facility, plus recovery by Thermo of its
capital investment in the Facility over a period of not longer than twenty (20)
years after the initial Date of Commercial Operation. Thermo has estimated such
average annual rate of interest to be nine and eighty-nine one-hundredths
percent (9.89%) per annum, and this rate of return has been used in a proforma
calculation of Base Rent payable under paragraph 4.1 and the Option Purchase
Price set forth on Exhibit C.
3. If feasible to do so consistent with Rocky Mountain's operating
requirements, the parties agree to use their best efforts to reduce the Cost of
the Work (as defined under the Construction Contract) so that the final Contract
Sum shall be less than $7,800,000. This best efforts obligation shall not
require either party to agree to any change with respect to which such party is
given a right of prior approval under paragraph 6.3 of the Thermal Lease
Agreement or the Construction Contract or to require Rocky Mountain to agree to
a reduction in the Contractor's Fee, unless such reduction is required pursuant
to those provisions of the Construction Contract under which the final payment
to the Contractor is to be determined, and adjusted if necessary.
4. Thermo agrees that promptly after conversion of the construction/start-
up financing for the Plant and the Facility to term loan financing, Thermo shall
in good faith determine as accurately as is practicable the actual average
annual rate of interest which Thermo has been and will be required to pay for
financing for the construction/start-up and term financing for the Plant and the
Facility. For purposes of determining the average annual rate of interest, loan
"points," loan fees paid to the lender, and similar charges in the nature of
prepaid interest paid to the lender and reasonably allocated to obtaining such
financing shall be deemed to be interest costs. If either the final Contract Sum
is other than $7,800,000, or such
2
actual average annual rate is less than 9.89% per annum, Thermo shall
redetermine Base Rent payments required to be made during the first twenty (20)
years of the Lease Term according to the following formulae:
(a) Quarterly Base Rent payment = level quarter-annual
payment required to completely amortize in 77 payments the
amount which is the sum of (i) the final Contract Sum, plus
(ii) interest on the unamortized balance of the final Contract
Sum from time to time outstanding at the actual average
annual rate of interest (all sources blended on an equitably
weighed average basis) paid by Thermo, but not greater than
9.89% per annum.
(b) Total Base Rent = sum of all Quarterly Base Rent
payments, i.e. seventy-seven (77) times the Quarterly Base
Rent payment.
Where: the actual average annual rate of interest is determined
-----
based on an equitably weighted average rate of interest on all
borrowings of funds by Thermo and the partners and Affiliates of
Thermo specifically for use in development, construction and
operation of the Plant and the Facility.
The foregoing redetermination of Base Rent shall be made from time to time in
the event of any general refinancing of the Plant and the Facility by Thermo.
5. If the Base Rent is revised, the Purchase Option Price Schedule
(Exhibit C) shall also be revised to change the Base Purchase Price set forth
therein to the actual Contract Sum (prior to the first Quarterly Payment Date),
with such Base Purchase Price declining, on a quarter-by-quarter basis in the
manner presently set forth in such Exhibit C, so that such Base Purchase Price
will always equal the unamortized principal balance of the final Contract Sum
based on a complete amortization, in seventy-seven (77) equal quarterly
installments (level combined principal and interest basis), of the Contract Sum,
at the actual average rate of interest for the initial construction/start-up and
term financing used to redetermine the Quarterly Base Rent Payment.
3
IN WITNESS WHEREOF the parties have signed this memorandum
contemporaneously with signing of the Thermal Lease Agreement.
THERMO COGENERATION PARTNERSHIP
By: Thermo Industries, Ltd., a partner
By: Thermo Industries, Inc., of Colorado
General Partner
By: /s/ Xxxxx Xxxxxx, III
----------------------------------
Xxxxx Xxxxxx, III
President
By: Thermo Carbonic, Inc., a partner
By: /s/ Xxxxx Xxxxxx, III
----------------------------------
Xxxxx Xxxxxx, III
President
By: Thermo Fuels, Inc., a partner
By: /s/ Xxxxx Xxxxxx, III
----------------------------------
Xxxxx Xxxxxx, III
President
ROCKY MOUNTAIN PRODUCE LIMITED
LIABILITY COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Printed Name: Xxxxxxx X. Xxxxxxx
----------------------------
Title: MANAGER
------------------------------------
/s/ Xxxxxxxx X. Xxxxxx
and by Xxxxxxxx X. Xxxxxx, Manager
4
SUPPLEMENTAL AGREEMENT
AND CONSENT TO ASSIGNMENT
THIS SUPPLEMENTAL AGREEMENT AND CONSENT TO ASSIGNMENT ("Supplemental
Agreement"), effective as of the ______ day of March, 1993, by and between
THERMO COGENERATION PARTNERSHIP, L.P., a Delaware limited partnership
("Thermo"), and ROCKY MOUNTAIN PRODUCE LIMITED LIABILITY COMPANY, a Colorado
limited liability company ("Rocky Mountain"), and THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, as a lender (hereinafter, together with any successors or
assigns in such capacity, referred to as "Prudential") and as lead agent
(hereinafter, with any successors and assigns in such capacity, referred to as
the "Lead Agent") for the Secured Parties under the Construction and Term Loan
Agreement dated as of March ____, 1993, among Thermo, Prudential, and CSW Ft.
Xxxxxx, Inc., and the other financial institutions named therein as lenders, the
Lead Agent and CSW Ft. Xxxxxx, Inc., as Bank Agent (as amended from time to
time, the "Loan Agreement").
RECITALS:
A. On March 22, 1993, Rocky Mountain entered into with Thermo Cogeneration
Partnership, a Colorado partnership, a Thermal Supply Lease Agreement (the
"Assigned Agreement"), which Assigned Agreement contains, among other things,
the agreement of the parties as to (i) the construction of a twenty (20) acre
(more or less) commercial greenhouse (the "Facility") on certain real property
(the "Land") owned by Thermo
APPENDIX II
SUPPLEMENTAL AGREEMENT
AND CONSENT TO ASSIGNMENT
THIS SUPPLEMENTAL AGREEMENT AND CONSENT TO ASSIGNMENT ("Supplemental
Agreement"), effective as of the ___ day of March, 1993, by and between THERMO
COGENERATION PARTNERSHIP, L.P., a Delaware limited partnership ("Thermo"), and
ROCKY MOUNTAIN PRODUCE LIMITED LIABILITY COMPANY, a Colorado limited liability
company ("Rocky Mountain"), and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, as
a lender (hereinafter, together with any successors or assigns in such capacity,
referred to as "Prudential") and as lead agent (hereinafter, with any successors
and assigns in such capacity, referred to as the "Lead Agent") for the Secured
Parties under the Construction and Term Loan Agreement dated as of March __,
1993, among Thermo, Prudential, and CSW Ft. Xxxxxx, Inc., and the other
financial institutions named therein as lenders, the Lead Agent and CSW
Ft. Xxxxxx, Inc., as Bank Agent (as amended from time to time, the "Loan
Agreement").
RECITALS:
A. On March __, 1993, Rocky Mountain entered into with Thermo Cogeneration
Partnership, a Colorado partnership, a Thermal Supply Lease Agreement (the
"Assigned Agreement"), which Assigned Agreement contains, among other things,
the agreement of the parties as to (i) the construction of a twenty (20) acre
(more or less) commercial greenhouse (the "Facility") on certain real property
(the "Land") owned by Thermo
in Fort Xxxxxx, Colorado, (ii) the leasing of such Land and the Facility by
Thermo to Rocky Mountain, (iii) the operation of the Facility by Rocky Mountain
for the commercial production of agricultural products, and (iv) the agreement
by Thermo to supply, and Rocky Mountain to utilize, Rocky Mountain's thermal
energy requirements for such agricultural production at the Facility from
Thermo's cogeneration plant (the "Plant") to be constructed on the site (the
"Project Site") of which the Land is part;
B. In order to facilitate financing and construction of the Plant
and the Facility, Thermo Cogeneration Partnership has assigned the Assigned
Agreement to Thermo, and Thermo, acting in the capacity of borrower, has entered
into the Loan Agreement. Thermo has also, in accordance with the requirements of
the Loan Agreement, collaterally assigned all of its right, title and interest
in, to and under the Assigned Agreement to Lead Agent pursuant to the Collateral
Assignment dated as of March __, 1993 (the "Collateral Assignment"). It is a
condition precedent to the initial funding by Lenders under the Loan Agreement
that Rocky Mountain execute and deliver this Supplemental Agreement.
C. Pursuant to that certain Project Management Agreement dated as of
December 21, 1992 (the "Project Management Agreement") between Thermo Project
Management, Inc., a Colorado corporation ("Project Manager"), and Thermo (as
assignor or successor to Thermo Cogeneration Partnership), Thermo has appointed
Project Manager as its agent to carry out and enforce the Assigned Agreement
within the scope of Project Manager's obligations under the Project Management
Agreement.
D. The Loan Agreement contains certain terms and conditions that,
during its term, will impact not only Thermo, but also Rocky Mountain as lessee
and Facility Operator under
2
the Assigned Agreement, and will place certain restrictions and impose certain
obligations on Thermo as lessor and owner and Rocky Mountain as lessee and
operator with respect to the construction, leasing, and operation of the
Facility and the Plant; and
E. By entering into this Supplemental Agreement, the parties desire to
(i) acknowledge the existence of such terms and conditions in the Loan
Agreement, (ii) supplement the terms of the Assigned Agreement in certain
instances in which the Loan Agreement contains additional or more detailed terms
and conditions dealing with similar subjects as dealt with in the Assigned
Agreement, and (iii) provide in certain instances that the terms and conditions
of this Supplemental Agreement and the Loan Agreement shall, to the extent
specifically expressed herein, supersede and prevail over any conflicting
provisions of the Assigned Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained in this Supplemental Agreement, the parties agree as
follows:
1. Definitions. Capitalized terms used herein (including in the schedules
-----------
attached hereto) have the meanings set forth herein, or if not defined herein
the meanings set forth in the Assigned Agreement, and if not defined herein or
in the Assigned Agreement, in the Loan Agreement. The Secured Parties (as
defined in the Loan Agreement) are sometimes referred to herein as "Assignee".
2. Term. This Supplemental Agreement shall remain in full force and
----
effect for the benefit of Lead Agent and the lenders under the Loan Agreement,
and their respective successors and assigns, until the earlier of expiration or
earlier termination of all obligations of Rocky Mountain under the Assigned
Agreement, or until such time as all loans, commitments, and obligations
incurred by Thermo under the Loan Agreement, the Notes, or any collateral or
other documents
3
entered into in connection herewith (the "Obligations") have been fully paid and
performed ("Termination"); provided however, that the provisions of section 6 of
this Supplemental Agreement shall survive the expiration or complete termination
of the Assigned Agreement; and, provided further, that if the Lead Agent or the
lenders shall initiate action because of an Event of Default by Thermo under the
Loan Agreement, and as a result of such action the rights of Thermo in the
Facility, the Land, the Plant, or the Project Site shall be terminated by
foreclosure or otherwise, any assignee or any transferee of the rights of Thermo
in the Facility, the Land, the Plant, or the Project Site shall also be entitled
to enjoy the benefits of, and to exercise the rights conferred on, the Lead
Agent and the lenders under such section 6. From and after the time of
Termination, the matters, covered by this Supplemental Agreement shall be
governed solely as provided in the Assigned Agreement, as the same may have been
amended in the interim, and this Supplemental Agreement shall automatically
become null and void and be of no further force and effect, except as is
otherwise provided in the preceding sentence. Any extension of time for payment
or performance of the Obligations, whether by amendment, modification or
supplementation of the Loan Agreement or otherwise, shall extend the time for
Termination. After Termination, neither the prior effectiveness of this
Supplemental Agreement nor the text of any provision herein which does not
expressly survive such termination shall have any effect whatsoever on the
construction or interpretation of the Assigned Agreement.
3. Representations And Warranties. Rocky Mountain hereby represents
------------------------------
and warrants to Thermo and to Prudential as follows:
3.1 Duly Organized Etc. (a) Rocky Mountain is a limited liability
------------------
company duly organized, validly existing, and in good standing under the laws of
the State of Colorado. Rocky Mountain is not engaged in any business except the
business of developing,
4
constructing, and operating the Facility pursuant to the Assigned Agreement.
Rocky Mountain shall not become engaged in any other business unless it shall
first have obtained the prior written consent of Thermo.
(b) Rocky Mountain has the power, authority
and legal right to execute, deliver and perform the Assigned Agreement and this
Supplemental Agreement, and the execution and delivery of Rocky Mountain of the
Assigned Agreement and this Supplemental Agreement and the performance of its
obligations hereunder and thereunder have been duly authorized by all necessary
action do not and will not (i) require any consent or approval of any member of
Rocky Mountain except for those approvals which have been duly obtained and are
in full force and effect, (ii) violate the articles of organization of Rocky
Mountain or any provision of any law, rule, regulation, or any order, writ,
judgment, injunction, decree, determination or award presently in effect having
applicability to Rocky Mountain, (iii) result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other agreement,
lease or instrument to which Rocky Mountain is a party or by which it or its
properties may be bound or affected, or (iv) result in, or require, the creation
or imposition of any lien, security interest, charge or en-cumbrance upon or
with respect to any of the properties now owned or hereafter acquired by Rocky
Mountain. The members of Rocky Mountain have approved the Assigned Agreement
and, consequently, the condition referred to in paragraph 21.3 of the Assigned
Agreement has been satisfied.
(c) Each of the Assigned Agreement and this
Supplemental Agreement has been duly executed and delivered and constitutes a
valid and binding obligation of Rocky Mountain, enforceable against Rocky
Mountain in accordance with its terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally.
5
(d) Except as set forth in Schedule 2 hereto, no
consent or approval of, or other action by or any notice or filing with, any
court or administrative or governmental body or any other person (except those
previously obtained) is required in connection with the execution and delivery
of the Assigned Agreement or this Supplemental Agreement or the performance by
Rocky Mountain of its obligations hereunder or thereunder. Rocky Mountain has
obtained all permits, licenses, approvals, consents and exemptions with respect
to the performance of its obligations under the Assigned Agreement and this
Supplemental Agreement required by applicable laws, statutes, rules and
regulations in effect as of the date hereof.
(e) Rocky Mountain is not in default with respect to
the Assigned Agreement and has no knowledge, as of the date of execution
hereof, of any claims or rights of set-off by Rocky Mountain or by any of its
affiliates or parent against Thermo.
(f) There are no proceedings pending or to the best of
Rocky Mountain's knowledge after due inquiry, threatened against or affecting
Rocky Mountain in any court or before any governmental authority or arbitration
board or tribunal (whether or not purportedly on behalf of Rocky Mountain) which
may result in a material adverse effect upon the property, business, prospects,
profits or condition (financial or otherwise) of Rocky Mountain, or the ability
of Rocky Mountain to perform its obligations under the Assigned Agreement or
this Supplemental Agreement; and Rocky Mountain is not in default with respect
to any order of any court, governmental authority or arbitration board or
tribunal.
3.2 Governmental Approvals and Other Consents and Approvals.
-------------------------------------------------------
Except as set forth on Schedule 3.2 attached hereto, no Governmental Approvals
or other consents or approval are required to be obtained by Rocky Mountain in
connection with (a) the participation by Rocky Mountain in the transactions
involved in the Assigned Agreement or the execution, delivery,
6
or performance by Rocky Mountain of the Assigned Agreement, the Supplemental
Agreement or any documents related to the Assigned agreement, or (b) the use,
ownership, lease, operation, or maintenance of the Facility in accordance with
the applicable provisions of any such documents and in compliance with all
applicable laws, including Environmental Laws. Each of the Governmental
Approvals and other consents and approvals listed in Part A of Schedule 3.2 has
been duly obtained or made, validly issued, is in full force and effect and is
not subject to appeal or judicial, governmental, or other review, except as
disclosed on such Schedule. None of the Governmental Approvals and other
consents and approvals listed in Part B of Schedule. None of the Governmental
Approvals and other consents and approvals listed in Part B of Schedule 3.2 is
required to be obtained in order to be in compliance in all respects with all
requirements of law as of the date hereof. Rocky Mountain has no reason to
believe that any of the Governmental Approvals and other consents and approvals
listed in Part B of Schedule 3.2 cannot or will not be obtained or made in the
normal course of business as and when required (as set forth in Schedule 3.2)
and without significant expense. All contracts, Governmental Approvals,
entitlements and other property owned by Rocky Mountain and used in connection
with the Facility shall, upon the Commencement Date of the Lease Term under the
Assigned Agreement, be held by Rocky Mountain free and clear of any Lien, other
than (a) liens incurred by Rocky Mountain in the ordinary course of business to
secure lines of credit for working capital, (b) liens for personal property
taxes, the payment of which is not then due, (c) carrier's, warehousemen's,
repairmen's and other like liens arising in the ordinary course of business or
incidental to the operation of the Greenhouse which secure payment of sums
which are not delinquent, and (d) liens (other than any lien imposed by ERISA)
incurred or deposits made in the ordinary course of business in connection with
worker's compensation, unemployment insurance and other types of social security
payments. Rocky Mountain shall not create any Lien on any property of Thermo or
suffer to exist any Lien on such property of Thermo which arises as a result of
any action or inaction of Rocky Mountain or any of its Affiliates. Any such
Lien shall
7
be discharged by Rocky Mountain to the same extent and in the same manner as is
required under paragraph 8.8 of the Assigned Agreement.
3.3 No Proceeding or Litigation. No litigation, investigation, or
---------------------------
proceeding of or before, or any inquiry by, any arbitrator or Governmental
Authority is pending or, to the knowledge of Rocky Mountain, threatened, against
or affecting Rocky Mountain, any Greenhouse Affiliate of Rocky Mountain or
against or affecting any of the properties, rights, revenues, assets
or facilities of Rocky Mountain or any such Greenhouse Affiliate.
3.4 Agreements and Licenses. No licenses, trademarks, patents,
-----------------------
copyrights or agreements with respect to the usage of technology or other
permits (other than those constituting Governmental Approvals referred to in
Schedule 3.2) are required to be obtained by Rocky Mountain for the
construction, development, ownership, operation, or maintenance of the Facility.
4. Option to Purchase Suspended. Anything in the Assigned Agreement to
----------------------------
the contrary notwithstanding, Rocky Mountain shall not be entitled to exercise
the rights conferred under section 5 or be deemed to have exercised such rights
under section 12 of the Assigned Agreement to purchase the Facility (or the
Land) at any time there remains unpaid any indebtedness under the Loan Agreement
unless, at the time of such exercise, Thermo shall have obtained Prudential's
approval (which approval may be withheld in Prudential's sole discretion) of
alternative thermal use arrangements, including all appropriate regulatory and
administrative approvals and filings, for thermal energy produced by the Plant.
Thermo shall from time to time inform Rocky Mountain upon inquiry whether any
such indebtedness is outstanding. Upon receipt of a notice by Rocky Mountain
of its intention to exercise its rights under section 5 of the Thermal Supply
Agreement,
8
Thermo shall notify Rocky Mountain whether Thermo shall have obtained
Prudential's approval of alternative thermal use arrangements and, if so,
the purchase price payable by Rocky Mountain. Such price shall be the "Option
Purchase Price," determined in the manner provided in paragraph 5.2 of the
Assigned Agreement, plus such additional sum as may be payable pursuant to
paragraph 5.5 of the Assigned Agreement should Rocky Mountain also purchase the
Land as provided in such paragraph. At the closing of such sale, Thermo shall
obtain from Lead Agent and deliver to Rocky Mountain a Release by Lead Agent
from the lien of any mortgage(s), deeds of trust, and other security agreements
encumbering the Facility (and the Land if purchased) to secure repayment of the
indebtedness of Thermo under the Loan Agreement and Rocky Mountain shall deliver
to Thermo and Lead Agent a ratification and reaffirmation of all thermal supply
provisions of the Assigned Agreement in such form as Thermo or Lead Agent may
reasonably request. Nothing herein shall be construed to relieve Rocky Mountain
of its obligations under paragraph 5.8 of the Thermal Supply Agreement. Under no
circumstances shall Rocky Mountain be entitled to exercise the Purchase Option
at any time while Thermo is in default under the Assigned Agreement or this
Supplemental Agreement or while an Event of Default is continuing under the Loan
Agreement. Should the lenders, the Lead Agent or their nominee exercise any
remedies arising because of an Event of Default by Thermo under the Loan
Agreement whereby Thermo's rights in the Facility, the Land, the Plant or the
Project Site shall be terminated, assumed or transferred, the Purchase Option,
effective as of the time of such exercise, shall permanently lapse and become
void and shall no longer be binding upon Thermo, the Lead Agent, any lender
under the Loan Agreement or any transferee of the Facility, the Land, the Plant
or the Project Site in connection with such exercise of rights or remedies
because of such Event of Default.
9
5. Reports, Information and Approvals. At all times while indebtedness is
----------------------------------
outstanding under the Loan Agreement:
5.1 Lead Agent shall have the same rights as Thermo to receive
reports and information as shall be available to Thermo, and to exercise other
rights with respect to receipt of information as are conferred on Thermo under
paragraphs 8.11 and 8.12 of the Assigned Agreement. Rocky Mountain shall deliver
all such reports and information to Lead Agent at the address set forth in
paragraph 14 hereof, or such other address as Lead Agent may have specified
pursuant to such paragraph.
5.2 Notwithstanding paragraphs 14.1 and 14.2 of the Assigned
Agreement, Rocky Mountain shall make or agree to make any proposed assignment,
sublease or subcontract under the Assigned Agreement without the prior written
consent of Thermo, which consent may be withheld in Thermo's sole discretion.
6. Environmental Matters. Supplementary to and not in lieu of Rocky
---------------------
Mountain's obligations under paragraph 10.1 and certain other provisions of the
Assigned Agreement:
6.1 Rocky Mountain shall at all times comply fully with all laws,
rules, regulations, and ordinances of any public authority having jurisdiction
with respect to the storage, use or release at the Facility and on the Land of
hazardous or toxic substances, and shall not treat, store, transport or release
any Materials of Environmental concern on or from the Facility or the Land in
any manner or quantity which may result in any clean-up obligation or liability
under any Environmental Law; shall keep the Facility free of any lien imposed
pursuant to Environmental Laws because of acts or omissions of Rocky Mountain or
its Affiliates, agents, employees, contractors,
10
sublessees, successors or assigns: and shall pay or cause to be paid when due
any and all costs of complying with Environmental Laws and responding to the
presence, release, or threatened release of Materials of Environmental Concern
because of acts or omissions of Rocky Mountain or its agents, employees,
contractors, sublessees, successors or assigns (including without limitation all
damages, liabilities, expenses and costs of all third-party claims). If Rocky
Mountain fails to do any of the foregoing, then to the extent that Thermo, Lead
Agent or any lender under the Loan Agreement and their respective partners,
shareholders, directors, officers, agents, employees, successors or assigns
sustains any liability, loss, cost, damage, or expense (including attorneys' and
consultants' fees and expenses) arising out of the presence, release, or
threatened release by Rocky Mountain or its Affiliates, agents, employees,
contractors, sublessees, successors or assigns of Materials of Environmental
Concern on or from the Facility or the Land, Thermo, Prudential or Lead Agent
may, upon such prior written notice to Rocky Mountain as is reasonable under the
circumstances, take any action necessary, in the reasonable judgement of such
responding party, to respond to such presence, release or threatened release,
and the cost of such response action shall be borne by Rocky Mountain. Rocky
Mountain shall give to Thermo, to Prudential and to Lead Agent, and to their
respective officers, agents, employees and contractors, access to the Facility
and the Land, and Rocky Mountain hereby specifically grants to Thermo, to
Prudential and to Lead Agent a license to respond to such presence, release, or
threatened release of such Materials of Environmental Concern.
6.2 In addition to the requirements of paragraph 10.1 of the Thermal
Supply Agreement, Rocky Mountain shall indemnify and hold Thermo, Lead Agent,
Prudential and each other lender under the Loan Agreement and their respective
partners, shareholders, directors, officers, agents or employees free and
harmless from and against all liability, loss, cost, damage,
11
and expense (including without limitation attorneys' and consultants' fees and
expenses) incurred in connection with the environmental compliance, clean-up and
other response obligations imposed under any Environmental Laws or in connection
with third-party claims relating to or in connection with any violation by Rocky
Mountain or its Affiliates, agents, employees, contractors, sublessees,
successors or assigns of any Environmental Law or in connection with any
Materials of Environmental Concern used, generated, treated, stored, or
otherwise located on, or released by Rocky Mountain or threatened to be released
in, on, under, from or affecting the Facility or the Land, except to the extent
resulting from such indemnitee's negligence or intentionally tortious acts or
omissions. For purposes of this Supplemental Agreement, the definition of
Environmental Laws is further particularized to include, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C.
/s/s/9601 et seq.), the Resource Conservation and Recovery Act
-- ---
U.S.C. /s/s/6901 et seq.), the National Environmental Policy Act (42 U.S.C.
-- ---
/s/s/4321 et seq.), the Hazardous Materials Transportation Act (49 U.S.C.
-- ---
/s/s/1801 et seq.), the Toxic Substances Control Act (15 U.S.C. /s/s/2601
------
et seq.), the Clean Air Act (42 U.S.C. /s/s/7401 et seq.), the Federal Water
-- --- -- ---
Pollution Control Act (33 U.S.C. /s/s/1251 et seq.), the Safe Drinking Water Act
-------
(42 U.S.C. /s/s/ 300(f) et seq.), the Colorado Hazardous Waste Management Act
-- ---
(Colo. Rev.Stat. Title 25, Article 15), the Colorado Water Quality Control Act
(Colo. Rev. Stat. Title 25, Article 8), the Colorado Air Quality Control Act
(Colo. Rev. Stat. Title 25, Article 7), the Colorado Hazardous Materials
Transportation Act of 1987 (Colo. Rev. Stat. Title 43, Article 6), the Colorado
Hazardous Waste Cleanup Act (Colo. Rev. Stat. Title 25, Article 16), the
Colorado Underground Storage Tanks Law (Colo. Rev. Stat. Title 25, Article 18),
Colorado Solid Waste Disposal Sites and Facilities Law (Colo. Rev. Stat. Title
30, Article 20), Colorado Land Use Act (Colo. Rev. Stat. Title 24, Article 65),
and any common law theory of liability, in any case relating to pollution or
protection of human health or the environment (including without limitation
ambient air, surface water, ground water,
12
land surface, or subsurface strata), all as currently in effect or as shall be
promulgated, issued and amended or ordered in the future, including, without
limitation, laws and regulations relating to emissions, discharges, releases, or
threatened releases of Materials of Environmental Concern, or otherwise relating
to the manufacture, processing, refining, distribution, use, treatment, storage,
disposal, transport, recycling, reporting, or handling of Materials of
Environmental Concern.
6.3 Rocky Mountain shall notify Thermo, Lead Agent, and Prudential
promptly of any notice, advice, or communication from any Governmental Authority
or any other source with respect to Materials of Environmental Concern which may
be in, on, under, or released from or affecting the Facility or the Land. Rocky
Mountain shall also maintain at the Facility, and keep available for inspection
during ordinary business hours and following reasonable notice by Thermo, Lead
Agent, and Prudential, accurate and complete records of all investigations,
studies, sampling, and testing conducted, and any and all response actions
taken, by Rocky Mountain or to its knowledge, by any Governmental Authority or
other person in respect of Materials of Environmental Concern which may be in,
on, under, migrating from, or affecting the Facility or the Land.
The obligations of this section 6 shall survive Termination of this Supplemental
Agreement.
7. Repairs and Maintenance. Supplementary to and not in lieu of the
-----------------------
requirements of paragraphs 8.4 and 8.5 of the Assigned Agreement, Rocky Mountain
shall, at its expense, (a) keep the Facility in good working order and
condition, (b) perform the periodic overhauls and maintenance as recommended by
any manufacturers or vendors of component parts of the Facility or related
equipment, and make all repairs, replacements, renewals, and additions which are
necessary for the Facility to satisfy the terms of the Assigned Agreement and
all
13
requirements of law affecting the Facility, and (c) cause the Facility to be
operated and maintained with appropriate spare parts, inventories, and
redundancies, in a safe manner and in accordance with normal industry practice.
All repairs, replacements, and renewals shall be at least equal in quality and
class to the original work. Rocky Mountain shall comply with such repair,
service, and maintenance standards as are required to enforce guaranty and
warranty claims and to satisfy standards imposed by any applicable insurance
policy:
8. Delivery of Financial Statements and Other Information. Supplementary
------------------------------------------------------
to and not in lieu of the requirements of paragraphs 8.11 and 8.12 of the
Assigned Agreement, and without limitation of paragraph 5.1 of this Supplemental
Agreement, Rocky Mountain shall furnish or cause to be furnished, to Thermo and
to Lead Agent certain periodic reports and information required by the Loan
Agreement and more fully described in Schedule 8 attached hereto. Annual
financial statements delivered pursuant to section (a) of Schedule 8 shall be
delivered appended to the following certification:
Attached hereto are true, correct and complete copies of (a) the
financial statements of the company; (b) the company's balance sheet
fairly presents its financial position as of the date thereof and has
been prepared in accordance with generally accepted accounting
principles consistently applied except as otherwise specifically
noted therein; (c) there has been no material change in the company's
financial position from that set forth in the balance sheet prepared
as at the date thereof, and (d) all liabilities, contingent or
otherwise, are disclosed by, or reserved against in, such financial
statements or the footnotes thereto to the extent required by
generally accepted accounting principles consistently applied.
9. Notice of Certain Events. Rocky Mountain shall give prompt and
------------------------
simultaneous Notice to Thermo and to Lead Agent of the occurrence of certain
events required by the Loan Agreement and more fully described in Schedule 9
attached hereto. Each Notice delivered pursuant to this paragraph 9 shall be
accompanied by a statement of a manager of Rocky Mountain.
14
setting forth details of the occurrence referred to and stating what action
Rocky Mountain proposes to take with respect to such occurrence. Notices to
Thermo shall be given in the manner provided in the Assigned Agreement. Notices
to Lead Agent shall be given in the manner provided in paragraph 14 of this
Supplemental Agreement.
10. Insurance Proceeds in Event of Casualty or Condemnation. Anything
-------------------------------------------------------
in section 11, section 12 or any other provision of the Assigned Agreement to
the contrary notwithstanding:
(a) all proceeds in respect of any condemnation, appropriation or
other taking or any insurance policy relating to the Facility
or the Land which are received by Rocky Mountain shall be
promptly paid over to Thermo in the same form as received
(with any necessary endorsement);
(b) Rocky Mountain shall provide such information as Thermo may
reasonably request relating to the costs and expenses
necessary to repair, replace or restore the Facility or the
Land and the feasibility of such repair, replacement or
restoration;
(c) Thermo shall notify Rocky Mountain if all or any of proceeds
received by Rocky Mountain (or by Thermo or any other person)
shall be applied to the repair, restoration or replacement of
the Facility or the Land;
(d) Rocky Mountain shall apply any proceeds received from Thermo
for the sole purpose of paying the necessary costs of repair,
restoration or replacement of the Facility or the Land; and
(e) all such proceeds which are not applied to repair, restore or
replace the Facility or the Land shall be returned to, and/or
retained by, Thermo.
The foregoing notwithstanding, should Rocky Mountain have purchased the Facility
(and if applicable the Land), this paragraph shall not require the payment of
insurance or condemnation proceeds to
15
Thermo to the extent that such proceeds are allocable to any portion of the
Facility or the Land so purchased by Rocky Mountain. With respect to any such
portion not purchased, the provisions of this paragraph 10 shall apply.
11. Cooperation with Loan Agreement Closing. Supplementary to and not
---------------------------------------
in lieu of Rocky Mountain's obligations under paragraph 21.2 of the Assigned
Agreement, Rocky Mountain's cooperation in connection with the closing of the
Loan Agreement shall include, but shall not be limited to, (i) executing and
delivering a reasonable estoppel certificate and statement of then current facts
with respect to performance by Thermo and Rocky Mountain of the Assigned
Agreement and this Supplemental Agreement, (ii) causing counsel for Rocky
Mountain to deliver the opinions reasonably requested by Lead Agent under the
Loan Agreement, (iii) delivering the evidence of corporate (or equivalent
limited liability company) proceedings evidencing the authorization for
execution and performance by Rocky Mountain of the Assigned Agreement and this
Supplemental Agreement, (iv) delivering certain financial statements as required
by the Loan Agreement, (described in Schedule 8 hereto), and (v) cooperating
with Thermo and Lead Agent to the same extent in connection with conversion of
Construction Loans to Term Loans under the Loan Agreement.
12. Certain Consents. Rocky Mountain hereby irrevocably consents to (a)
----------------
the appointment of Project Manager as agent of Thermo to carry out and enforce
the Assigned Agreement within the scope of Project Manager's obligations under
the Project Management Agreement and (b) the collateral assignment of all of
Thermo's right, title and interest in the Assigned Agreement by Thermo to Lead
Agent for the benefit of Assignee under the Loan Agreement as security pursuant
to the Collateral Assignment, and Rocky Mountain shall, at Thermo's or Lead
Agent's request, as the case may be, in the exercise of its respective rights as
16
Thermo or Lead Agent, continue performance under the Assigned Agreement in
accordance with its terms and the terms of this Supplemental Agreement.
References herein to Thermo shall include, without limitation, Project Manager
acting as agent of Thermo under the Project Management Agreement.
13. No Present Defaults. Rocky Mountain acknowledges that (a) the
-------------------
Assigned Agreement is in full force and effect and there are no amendments,
modifications or supplements thereto, either oral or written, (b) Rocky Mountain
has not assigned, transferred or hypothecated the Assigned Agreement or any
interest therein, except as described herein, (c) Rocky Mountain has no
knowledge of any default or breach by Thermo in any respect in the performance
of any provision of the Assigned Agreement, and (d) Rocky Mountain has agreed to
and hereby ratifies prior assignments to Thermo of the Assigned Agreement
whereby Thermo has acquired rights under the Assigned Agreement and releases all
prior assignors of the Assigned Agreement from their obligations as parties to
the Assigned Agreement.
14. Notice of Thermo's Defaults and Termination. Anything in the
-------------------------------------------
Assigned Agreement notwithstanding, Rocky Mountain shall not claim prevention of
or interference with performance of its obligations pursuant to the Assigned
Agreement or the suspension or termination of its obligations under the Assigned
Agreement as the result of any default of Thermo without first giving a copy of
any notice of default or termination to Lead Agent, such notice to be coupled
with a request to Lead Agent to cure any defaults which are susceptible of being
corrected by Lead Agent, within a cure period as provided to Thermo in the
Assigned Agreement plus a period of ninety (90) days (thirty (30) days in the
case of a monetary default) thereafter (or, with respect to any defaults not
susceptible of being cured within such cure period, such longer cure period as
shall be required to cure such default provided that Lead Agent is diligently
pursuing such cure), such cure period to
17
commence upon such notice to Lead Agent, or, with respect to any defaults which
are not susceptible of being corrected by Lead Agent, to rectify to Rocky
Mountain's reasonable satisfaction the effect upon Rocky Mountain of such
default by Thermo within such period. Such notice shall be in writing and shall
be deemed to have been given (a) when presented personally or by Federal Express
or other courier, (b) when transmitted by telecopy to the number specified
below, or (c) when received, if deposited in a regularly maintained receptacle
for the United States Postal Service, postage prepaid, registered or certified
mail, return receipt requested, addressed to Lead Agent and Prudential at the
address indicated below (or such other address as Lead Agent or Prudential may
have specified by written notice delivered in accordance herewith). The telecopy
(facsimile) numbers provided below are for the convenience of Rocky Mountain
only. Transmission by telecopy shall constitute provision of notice under this
Supplemental Agreement only if receipt thereof is acknowledged in writing by
Prudential or Lead Agent, as the case may be, within such period. The address
for notices to Prudential and Lead Agent is as follows:
The Prudential Insurance Company of America
c/o Prudential Power Funding Associates
Four Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Project Management Team
Facsimile No.: (000) 000-0000
No claim of rescission or termination of the Assigned Agreement by Rocky
Mountain shall be binding upon Prudential or Lead Agent without such notice and
the lapsing of the applicable cure period. Any dispute that may arise under the
Assigned Agreement notwithstanding, Rocky Mountain shall continue performance
under the Assigned Agreement and resolve any such dispute without discontinuing
such performance until the lapse of the notice and the applicable cure periods
or extension periods. Lead Agent may, but shall be under no obligation to, make
any payment or perform any act required thereunder to be made or performed by
Thermo, with the same effect as
18
if made or performed by Thermo. If Lead Agent or Prudential fails to cure a
default within the same cure period as provided to Thermo in the Assigned
Agreement plus a period of ninety (90) days (thirty (30) days in the case of a
monetary default) thereafter (or, with respect to any defaults not susceptible
of being cured within such cure period, such longer cure period as shall be
required to cure such default provided that Lead Agent is diligently pursuing
such cure), such cure period to commence upon such notice to Lead Agent and
Prudential, Rocky Mountain shall have all its rights and remedies with respect
to such default or right of termination as set forth in the Assigned Agreement.
15. No Previous Assignment. Rocky Mountain warrants and represents to
----------------------
Assignee that it has not previously consented to any assignment, transfer or
hypothecation of the Assigned Agreement, except as specified herein.
16. Payments to Project Control Account. Rocky Mountain hereby agrees
-----------------------------------
that, so long as any Obligations are outstanding under the Loan Agreement, the
Notes or any document executed in connection therewith and until the same have
been terminated or satisfied in full, as the case may be, all payments to be
made by Rocky Mountain with respect to the Assigned Agreement shall be in lawful
money of the United States of America, in immediately available funds at the
location set forth in Schedule 16, directly to the Disbursement Agent designated
in and for deposit as specified in part one of Schedule 16, attached hereto, or
to such other person and/or at such other address as Lead Agent may from time to
time specify in writing to Rocky Mountain. Thermo agrees that proptly after
receipt by Thermo of a written request from Rocky Mountain, Thermo shall confirm
in writing to Rocky Mountain whether any loans, commitments or Obligations are
outstanding under the Loan Agreement, the Notes or any such documents. For
purposes of
19
paragraph 4.7 of the Assigned Agreement, applicable requirements of the Loan
Agreement are as set forth in part two Schedule 16 hereto.
17. Protection of Lead Agent. In the event that either (a) Thermo's
------------------------
interest in the Project Site, the Project, the Facility (also referred to in the
Loan Agreement as the Greenhouse) and/or the Project Reserves shall be sold,
assigned or otherwise transferred pursuant to the exercise of any right, power
or remedy by Assignee or Lead Agent or pursuant to judicial proceedings, or (b)
Thermo rejects the Assigned Agreement under Xxxxx 00, Xxxxxx Xxxxxx Code, or
other similar Federal or state statue and such rejection is approved by the
appropriate bankruptcy court, and in either case (i) no funds payable under the
Assigned Agreement shall then be due and payable to Rocky Mountain at the time
of such transfer or rejection, (ii) Lead Agent shall have arranged for the
curing of any default susceptible of being corrected by Lead Agent or by a
purchaser at any judicial or non-judicial sale, (iii) the Assigned Agreement
shall have been terminated pursuant to the terms thereof by reason of a default
or a rejection by Thermo or a trustee in bankruptcy under Xxxxx 00, Xxxxxx
Xxxxxx Code, or other similar Federal or state statute, and (iv) the effect upon
Rocky Mountain of any default not susceptible of being corrected shall have been
rectified to Rocky Mountain's reasonable satisfaction, Rocky Mountain shall,
within (15) days after receipt of written request therefor, execute and deliver
an agreement to Lead Agent or its nominee, purchaser, assignee or transferee, as
the case may be, for the remainder of the term of the Assigned Agreement, and
with the same terms as are contained therein, whereupon such agreement shall be
an Assigned Agreement hereunder.
18. Acknowledgement of Assignee's Obligations and Rights. None of the
----------------------------------------------------
Secured Parties under the Loan Agreement has any obligation hereunder to extend
credit to Rocky Mountain or any contractor to Rocky Mountain at any time for any
purpose. Assignee shall have no obligation
20
to Rocky Mountain under the Assigned Agreement until such time as Assignee
notifies Rocky Mountain in writing of Assignee's election to exercise its rights
hereunder. If Thermo defaults in the performance of its covenants to the Secured
Parties in, or an Event of Default shall have occurred and be continuing under,
the Loan Agreement, Assignee shall have the right inter alia to (i) declare all
----------
amounts due under the Loan Agreement, the Notes and any of the Collateral
Security documents executed in connection therewith to the Secured Parties under
the Loan Agreement immediately due and payable, (ii) take possession of the
Project Site, the Project, Thermo's rights in and with respect to the
Greenhouse and/or the Gas Reserves and complete the same, (iii) sell the
Project, the Project Site, Thermo's rights in and with respect to the Greenhouse
and/or the Gas Reserves and any purchaser at such sale shall succeed to
Assignee's rights hereunder, (iv) cause Lead Agent or its nominee, purchaser,
assignee or transferee to assume all of Thermo's right, title and interest in,
to and under the (subject to the terms of this Supplemental Agreement) Assigned
Agreement, and (v) exercise any other remedies provided under the Loan Agreement
or otherwise available at law or in equity; subject to Assignee's compliance
with the provisions of the Assigned Agreement and the terms of this Supplemental
Agreement. Rocky Mountain shall cooperate with Assignee in Assignee's exercise
of such rights.
19. Incorporation by Reference. The provisions of sections 20,22,24 and
--------------------------
25 of the Assigned Agreement are incorporated herein by reference.
20. Limitation of Liability. Except as otherwise expressly provided
-----------------------
herein, it is hereby agreed and acknowledged that Rocky Mountain shall not have
any direct contractual obligations to Assignee, and Assignee hereby acknowledges
that it has not relied upon any direct representations of Rocky Mountain, in
connection with lending arrangements with Thermo except as provided herein and
in the Assigned Agreement. In addition, Assignee agrees that, except as
21
otherwise expressly provided herein, in no event shall Rocky Mountain be liable
to Assignee for any claims, losses, expenses or damages whatsoever other than
liability Rocky Mountain may have to Thermo and its successors and permitted
assigns, including Assignee, under the Assigned Agreement or to Lead Agent,
Prudential or to Assignee, their successors and assigns.
IN WITNESS WHEREOF, the parties have caused this Supplemental Agreement
to be executed by their duly authorized officers or agents as of the date of
acknowledgement of their signatures, set forth below.
Signed and acknowledged in the THERMO COGENERATION PARTNERSHIP
presence of: By: Thermo Industries, Ltd., a partner
(as to all signatures on behalf of By: Thermo Industries, Inc., of
Thermo Cogeneration Partnership) Colorado, General Partner
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxx, III
-------------------------------- -----------------------------
Xxxxx Xxxxxx, III
Printed Name: XXXXXXX X. XXXXXXX President
------------------
By: Thermo Carbonic Inc., a partner
[SIGNATURE APPEARS HERE] By: /s/ Xxxxx Xxxxxx, III
-------------------------------- -----------------------------
Xxxxx Xxxxxx, III
Printed Name: [ILLEGIBLE] President
------------------
By: Thermo Fuels, Inc., a partner
By: /s/ Xxxxx Xxxxxx, III
-----------------------------
Xxxxx Xxxxxx, III
President
22
(as to Rocky Mountain Produce ROCKY MOUNTAIN PRODUCE LIMITED
Limited Liability Company) LIMITED COMPANY
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------- ---------------------------------
Printed Name: Xxxxxxx X. Xxxxxxx Printed Name: XXXXXXX X. XXXXXXX
------------------------ -----------------------
Title: MANAGER
------------------------------
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxx
Printed Name: Xxxxxx X. Xxxxx Manager
------------------------
(as to the Prudential Insurance) THE PRUDENTIAL INSURANCE COMPANY
Company of America) OF AMERICA, as Lead Agent
By:
------------------------------------- ---------------------------------
Printed Name: Printed Name:
------------------------ -----------------------
Title:
------------------------------
-------------------------------------
Printed Name:
------------------------
23
STATE OF COLORADO )
CITY and ) SS:
COUNTY OF Denver )
The foregoing instrument was acknowledged before me this 25th day of March,
1993, by Xxxxx Xxxxxx, III, the President of Thermo Industries, Inc., of
Colorado, a Colorado corporation and a general partner of Thermo Industries,
Ltd., a Colorado limited partnership, on behalf of the limited partnership, and
in the limited partnership's capacity as a partner of Thermo Cogeneration
Partnership.
Witness my hand and official seal.
[SEAL OF NOTARY PUBLIC APPEARS HERE]
/s/ Lansing X. Xxxxxxx
--------------------------------------
Notary Public
My commission expires: 9-30-95
----------------
STATE OF COLORADO )
CITY and ) SS:
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 25th day of March,
1993, by Xxxxx Xxxxxx, III, the President of Thermo Carbonic, Inc., a Colorado
corporation, on behalf of the corporation and in the corporation's capacity as a
partner of Thermo Cogeneration Partnership.
Witness my hand and official seal.
/s/ Lansing X. Xxxxxxx
--------------------------------------
Notary Public
My commission expires: 9-30-95
----------------
[SEAL OF NOTARY PUBLIC APPEARS HERE]
24
STATE OF COLORADO )
CITY and ) SS:
COUNTY OF Denver )
The foregoing instrument was acknowledged before me this 25th day of March,
1993, by Xxxxx Xxxxxx, III, the President of Thermo Fuels, Inc., a Colorado
corporation, on behalf of the corporation and in the corporation's capacity as a
partner of Thermo Cogeneration Partnership.
Witness my hand and official seal.
[SEAL OF NOTARY PUBLIC APPEARS HERE]
/s/ Lansing X. Xxxxxxx
----------------------------------------
Notary Public
My commission expires: 9-30-95
------------------
25
STATE OF COLORADO )
CITY AND ) SS:
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 25th day of
March, 1993, by Xxxxxxx X. Xxxxxxx and XXXXXXXXXXX, the Managers of Rocky
Mountain Produce Limited Liability Company, a Colorado limited liability
company, on behalf of the company.
Witness my hand and official seal.
/s/ Xxxxxx Love
-----------------------------------------
Notary Public
My commission expires: 06-10-94
-------------------
STATE OF ____________________)
) SS:
COUNTY OF ___________________)
The foregoing instrument was acknowledged before me this ____ day of
_____, 1993, by _________________________________________, the _________________
_____________ of the Prudential Insurance Company of America, a New Jersey
mutual insurance company, on behalf of the company.
Witness my hand and official seal.
-----------------------------------------
Notary Public
My commission expires:
-------------------
26
SCHEDULE 3.2
------------
Governmental Approvals Required by Rocky Mountain:
Part A (Prior to execution of Supplemental Agreement).
------
None.
Part B (Subsequent to execution of Supplemental Agreement).
------
None.
27
SCHEDULE 8
----------
From time to time Rocky Mountain shall deliver to Thermo:
(a) as soon as is available, but not later than 90 days after
the end of each fiscal year of Rocky Mountain, a profit and loss statement, a
statement of retained earnings and a statement of cash flows for such year, and
a balance sheet as at the end of such year, in each case setting forth in
comparative form the figures for the previous fiscal year, certified as
presented in accordance with generally accepted accounting principles, the
profit and loss position, retained earnings, cash flows, and balance sheet as of
the date thereof, without qualification or exception as to the scope of its
audit, by independent certified public accountants of national standing
reasonably acceptable to Prudential;
(b) as soon as is available, but not later than 45 days after
the end of each quarterly period of each fiscal year of Rocky Mountain, a profit
and loss statement, a statement of cash flows and statement of retained
earnings, and a balance sheet as at the end of each such period, in each case
setting forth in comparative form the figures for the corresponding period of
the previous fiscal year, certified by an officer of Rocky Mountain as fairly
presenting in all material respects the profit and loss position, retained
earnings, cash flows, and balance sheet as of the date thereof (subject to
normal year-end audit adjustments and footnote disclosures), such financial
statements to be prepared in reasonable detail and in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved except as otherwise specifically noted therein, and shall be complete
and correct, in all material respects (subject to normal year end audit
adjustments and to footnote disclosures);
(c) promptly after receipt thereof, copies of each Governmental
Approval (and copies of any correspondence referred to in any such approval) or
any other material consent or approval obtained or made by Rocky Mountain
pursuant to the Assigned Agreement; and
(d) promptly after receipt of request in writing, such
supplemental financial information with respect to Rocky Mountain or the
Facility as Thermo or its lenders may from time to time reasonably request and
as is reasonably available to Rocky Mountain.
28
SCHEDULE 9
From time to time Rocky Mountain shall give immediate and
simultaneous Notice to Thermo and to Lead Agent if:
(a) any representation or Warranty made by Rocky Mountain herein or
in the Assigned Agreement or in any certificate, financial statement, or other
document furnished to Thermo hereunder or under the Assigned Agreement shall
prove to have been false or misleading in any material respect as of the time
made or deemed made:
(b) Rocky Mountain shall have failed to comply with or shall be in
default of any of Rocky Mountain's covenants or obligations contained herein or
in the Assigned Agreement beyond any applicable cure period following Notice, if
required:
(c) Rocky Mountain shall make an assignment for the benefit of
creditors or shall generally not be paying its debts as such debts become due
unless such debts are the subject or a bona fide dispute;
(d) (i) any decree or order for relief in respect of Rocky Mountain
shall be entered under any bankruptcy, reorganization, compromise, arrangement
insolvency, readjustment of debt, dissolution or liquidation or similar law,
whether now or hereafter in effect (herein called "Bankruptcy Law") of any
jurisdiction, (ii) any petition or application of the types described in clause
(e), below, of this paragraph 9 shall be filed, or any such proceeding shall be
commenced, against Rocky Mountain and Rocky Mountain, by any act, shall indicate
its approval, consent thereto or acquiescence therein, or an order, judgment, or
decree shall be entered appointing any such trustee, receiver, custodian,
liquidator, or similar official, or approving the petition in any such
proceedings, or (iii) any order, judgment, or decree shall be entered in any
proceedings against Rocky Mountain decreeing the dissolution of Rocky Mountain;
(e) Rocky Mountain shall petition or apply to any tribunal for, or
shall consent to, the appointment of, or taking possession by, a trustee,
receiver, custodian, liquidator, or similar official of Rocky Mountain or of any
substantial part of its assets, or shall commence a voluntary case under the
Bankruptcy Law of the United States or any proceedings relating to Rocky
Mountain under the Bankruptcy Law of any other jurisdiction;
(f) (i) any order or decree is entered by any court of competent
jurisdiction directly or indirectly enjoining the construction or (cumulatively)
operation of the Facility, or (ii) a judgment (or judgments) in excess of
$100,000 (cumulatively) shall be rendered against Rocky Mountain and remain
unsatisfied whether or not such order, judgment, or decree is stayed pending
appeal;
(g) any of the Governmental Approvals required to be obtained by
Rocky Mountain in connection with the Facility and its full performance under
the Assigned Agreement or this Supplemental Agreement shall be rejected or
otherwise denied or shall expire (without being timely renewed) or be revoked,
rescinded, suspended, held invalid or otherwise limited in effect, and such
rejection, denial, expiration, revocation, rescission, suspension, holding, or
other limiting
29
action, in the judgment of Thermo, materially adversely affects Rocky Mountain's
ability to achieve or maintain operation of the Facility or the ability of Rocky
Mountain to make any payments under this Agreement or the ability of Thermo to
receive payments hereunder when and as due;
(h) there shall exist at any time any litigation, investigation,
inquiry, or proceeding between Rocky Mountain and any Governmental Authority
which concerns the status of the Plant as a Qualifying Facility, or which could
have a material adverse effect on the properties, business, prospects,
operations, or other condition of the Plant or of Thermo;
(i) any material adverse change shall have occurred in the
properties, business, operations, or financial condition of Rocky Mountain from
the condition reflected in the most recent financial information delivered to
Thermo, and of any change of law, rule, or regulation which has caused or could
reasonably be expected to cause such a material adverse change;
(j) there shall have occurred any loss or damage to the Facility in
excess of $250,000; and
(k) there shall have occurred an Event of Loss or there shall have
occurred any other damage or destruction to the Facility that has a material
adverse effect on the viability of the operation of the Facility, and such
damage or destruction is not adequately covered by insurance.
30
SCHEDULE 16
-----------
Part one:
[Information re Disbursement Agent to be
inserted upon finalization]
Part two:
[Loan Agreement paragraph 8.17(h) to be
inserted upon finalization]
31
