EXHIBIT 10.8
AMENDMENT TO AMENDED AND RESTATED COGENERATION
AND GREENHOUSE LEASE AGREEMENT
THIS AMENDMENT TO AMENDED AND RESTATED COGENERATION AND GREENHOUSE LEASE
AGREEMENT (this "Amendment"), dated as of December 29, 1994, is between BRUSH
COGENERATION PARTNERS, a Colorado general partnership ("BCP") and BRUSH
GREENHOUSE PARTNERS II LIMITED LIABILITY COMPANY, a Colorado limited liability
company ("BGP II").
RECITALS
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A. BCP and BGP II have previously entered into that certain Amended and
Restated Cogeneration and Greenhouse Lease Agreement dated as of June 1, 1992
(the "Greenhouse Lease"), which amended and restated that certain Cogeneration
and Greenhouse Lease Agreement dated as of March 19, 1992.
B. Contemporaneously with this Amendment, BGP II is entering into a
Greenhouse Operation and Management Agreement (the "O&M Agreement") with
Colorado Greenhouse Limited Liability Company ("Colorado Greenhouse"), a copy of
which agreement is attached hereto as Exhibit A. Pursuant to the O&M Agreement,
Colorado Greenhouse will manage the Premises and will make payments (including
Primary Fees and Contingent Fees) to BGP II out of proceeds from the greenhouse
facility.
C. BCP and BGP II desire to further amend the Greenhouse Lease in the
manner hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
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1. All capitalized terms used herein but not otherwise defined shall have
the meanings given to such terms in the Greenhouse Lease or the O&M Agreement as
appropriate. The definitions of terms incorporated from the O&M Agreement by the
preceding sentence may not be amended in the O&M Agreement without the prior
written consent of BCP.
2. Recital C is hereby deleted and Recital D is amended to be Recital C.
3. All references in the Greenhouse Lease to the phrase "an approximately
18-acre greenhouse facility" are hereby
deleted and replaced with the phrase "an approximately 15-acre greenhouse
facility."
4. The first and second sentences of Section 2 are hereby deleted in
their entirety and replaced with the following sentence:
"The term (the "Term") of this Lease shall commence on March 1, 1994
(the "Commencement Date").
5. Paragraph 6 a. is hereby deleted and replaced in its entirety with the
following:
a: Rental Amount. All rents otherwise due prior to January 1, 1995
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have been restructured and satisfied. Beginning on or before April 30,
1995 and thereafter by the 30th day after the end of each calendar
quarter Tenant shall pay to Landlord as rent an amount equal to the
Primary Fee. As additional contingent rent, Tenant shall pay to
Landlord within ten business days of receipt thereof by Tenant any
other amount owed to Tenant pursuant to the O&M Agreement including,
without limitation, amounts paid with respect to a Primary Fee
Deficiency or the Primary Fee Deficiency Balance.
6. Paragraph 6 b. is hereby deleted in its entirety.
7. Paragraph 6 c. is hereby amended to read in its entirety as follows:
b. Payment of Rental. Tenant shall pay all rental when due and
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payable, without any setoff, counterclaim, abatement, deduction or
prior demand therefor whatsoever. In addition, any rental which is not
paid within ten days after the same is due shall bear interest at a
default rate equal to the rate of interest (the "Prime Rate") publicly
announced or published from time to time by Bank of America NT and SA
as its "reference rate" plus six percent per annum from the first day
due until paid. Unless otherwise directed in writing by Landlord and
consented to by Lender, payment of rent shall be made to Landlord in
immediately available funds at its account maintained at Colorado
National Bank. The payment of rent and all other sums due hereunder is
independent of each and every other covenant and agreement contained
in this Lease.
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8. Paragraph 6 d. is hereby deleted and replaced in its entirety
with the following:
c. Limitation on Distributions. Tenant agrees that prior to making
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any distributions of profits or other sums to the members of Tenant
pursuant to Tenant's operating agreement, Tenant shall have deposited
and there shall then be on deposit in an escrow account for the
benefit of Landlord an amount equal to the Reserve Amount. Such
account shall be maintained in the name of Brush Cogeneration
Partners/Brush Greenhouse Partners II LLC at Colorado National Bank or
such other financial institution as may be designated by Landlord and
reasonably acceptable to Lender; and Tenant, Landlord and Colorado
National Bank or such other financial institution designated by
Landlord and reasonably acceptable to Lender, shall enter into an
escrow agreement acceptable to Landlord and Lender providing that in
the event the Primary Fee payable with respect to any calendar quarter
is less than one-quarter of the Allocated Percentage of $2,740,000
(such difference, if any, being known herein as the "Deficiency"),
Landlord shall be entitled to withdraw from such escrow account by
transferring from such account to the Revenue Account (as such term
may be defined in a Deposit and Disbursement Agreement or similar
agreement among Landlord, Lender and Colorado National Bank, or other
bank acting as escrow agent) an amount equal to the Deficiency.
9. Paragraph 6 e. is hereby amended by changing "6 e." to "6 d."
10. Paragraph 22 is hereby amended by replacing the addresses for Noah I
Power Partners, L.P. and BGP II with the following:
Noah I Power Partners, L.P.
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxxx
Brush Greenhouse Partners II Limited
Liability Company
0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
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11. Except as amended or modified by this Amendment, the Greenhouse
Lease remains in full force and effect and is hereby ratified and confirmed in
all respects.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
BRUSH COGENERATION PARTNERS
By: /s/ Xxxxxx X. Xxxxxxxxx
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Management Committee Member
BRUSH GREENHOUSE PARTNERS II LIMITED
LIABILITY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, Manager
and
By:_____________________________
___________________, Manager
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ACKNOWLEDGEMENTS
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STATE OF COLORADO )
) ss.
COUNTY OF BOULDER )
The foregoing instrument was acknowledged before me this 28th day of
December, 1994, by Xxxxxx X. Xxxxxxxxx, as a Member of the Management Committee
of BRUSH COGENERATION PARTNERS, a Colorado General Partnership, on behalf of
said partnership.
Witness my hand and official seal.
/s/ Xxxxx Xxxxx Xxxxxx
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[SEAL] Notary Public
My commission expires: March 25, 0000
XXXXX XX XXXXXXXX )
) ss.
COUNTY OF BOULDER )
The foregoing instrument was acknowledged before me this 28th of
December, 1994, by Xxxxxx X. Xxxxxxxxx __________ ____________, as a Manager of
BRUSH GREENHOUSE PARTNERS II LIMITED LIABILITY COMPANY, a Colorado limited
liability company, on behalf of said company.
Witness my hand and official seal.
/s/ Xxxxx Xxxxx Xxxxxx
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[SEAL] Notary Public
My commission expires: March 25, 1998.
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