EXHIBIT 10.20
GREENHOUSE LEASE AGREEMENT
THIS GREENHOUSE LEASE AGREEMENT is made and entered into as of the 15th day of
April, 1993, by and between AMERICAN ATLAS #1, LTD., a Colorado limited
partnership ("AA #1") hereinafter referred to as "Landlord" and WOLF CREEK RIFLE
LIMITED LIABILITY COMPANY, a Colorado limited liability company, hereinafter
referred to as "Tenant."
Recitals
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A. Landlord operates the American Atlas No. 1 Cogeneration Project in
Garfield County, Colorado (the "Project"). Approximately twelve (12) acres of
greenhouse and warehouse space (the "Greenhouse") is part of the Project.
B. Tenant is in the business of operating greenhouses associated with
cogeneration projects. The parties now desire set forth their agreement pursuant
to which Tenant will lease and operate the Greenhouse.
C. Both A.A.#1 and Tenant acknowledge the obligations owed to, and the
rights of Westinghouse Credit Corporation ("WIC") as described in, without
limitation, that certain Restructured Participation Agreement ("Participation
Agreement) , dated as of January 1, 1993, by and between AA#1 and WCC, that
certain Facility and Site Lease ("Facility and Site Lease") , dated as of
January 1, 1993, by and between AA #1 and WCC, and all Financing and Related
Documents therein referenced, incorporated and/or described (collectively the
"WCC" Lease Documents").
Agreement
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1. Premises. Landlord hereby leases to Tenant and Tenant leases from
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Landlord for the term, at the rental and upon all the conditions set forth
herein, all that certain real property located in the County of Garfield, State
of Colorado, more particularly described on Exhibit "All (the "Premises" and/or
"Leased Premises") attached hereto and made a part hereof. Said real property,
including the land, structures buildings and all appurtenances, hereditaments,
and easements thereon together with all equipment located thereon and more
particularly described, on Exhibit "B" attached hereto and in the WCC Lease
Documents are herein called the: "Leased Property."
Subject to and limited by the WCC Lease Documents, Landlord warrants
that it and no other person or corporation has the right to lease the Leased
Property herein demised, and that so long as Tenant is not in default hereunder,
Tenant shall have peaceful and quiet use and possession of the Leased Property,
subject to all matters of record or other agreements to which this Lease is or
hereafter may be subordinated.
The Leased Property shall consist of the Greenhouse consisting of
approximately 512,716 square feet, and the Greenhouse warehouse consisting of
approximately 10,004 square feet situated on the real property described on
Exhibit "All attached hereto and the equipment described on Exhibit "B" attached
hereto.
2. Term. The term of this Lease (the "Term") and Tenant's possession
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of the Premises shall commence on the date of this Agreement (the "Commencement
Date") and continue so long as AA #1 is Lessee under the Facility and Site
Lease. This Lease shall be subject to the WCC Lease Documents and shall be
subject to termination by either Tenant or WCC upon 30 days notice following
termination of the Facility and Site Lease and/or up % on the exercise by WCC of
its other rights contained in or described by the WCC Lease Documents. Landlord
and, upon the failure of Landlord to exercise its rights hereunder after thirty
(30) days written notice to Landlord, WCC may terminate this Lease or exercise
other remedies provided or allowed herein in the event of default as defined
hereinafter. Tenant may terminate the Lease upon twelve (12) months prior
written notice to Landlord and WCC, if, to the satisfaction of Landlord, Tenant
demonstrates that it is no longer economically feasible to operate the
Greenhouse.
3. Termination. Except as otherwise terminated in ACCORDANCE WITH
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paragraphs 2 and 17, this Lease shall expire and/or terminate at the end of the
Term without the necessity of any notice from either Landlord or Tenant of the
same, and Tenant hereby waives notice to vacate or quit the Premises and return
the equipment, and agrees that Landlord shall be entitled to the benefit of all
provisions of the law respecting summary recovery or possession of any of the
Leased Property from Tenant holding over to the same extent as if statutory
notice had been given.
4. Holding Over. If Tenant shall be in possession of the Leased
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Property at the end of the Term with the consent or permission of Landlord, the
tenancy under this Lease shall become month-to-month upon all of the terms and
conditions contained in this Lease and such tenancy shall be terminable by
either party upon thirty (30) days' notice to the other party.
5. Use. Use of the Leased Property shall be exclusively for the use of
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growing and marketing greenhouse products.
6. Rental.
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a. Tenant shall pay directly to Norwest Bank Denver, N.A., as
escrow agent ("Escrow Agent") during the Term of this. Lease as rent for the
Leased Property, without any prior demand, set-off or abatement, the sum of
Three Hundred Thousand Dollars ($300,000.00) per year, payable quarterly in
arrears in equal installments of Seventy-Five Thousand Dollars ($75,000.00)
which installments shall commence on January 1, 1994 for the quarter
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ended December 31, 1993, and shall be due and payable on the quarterly
anniversary date of each and every calendar quarterly thereafter for the balance
of the Term. The rent for the final short period of the Term shall be pro rated
for the actual number of days remaining in the Term and shall be payable within
sixty (60) days after the end of the Term.
b. TENANT SHALL pay all rental when due and payable, without any set-
off, deduction, or prior demand therefor whatsoever. In addition, any rental
which is not paid within tan (10) days after the same is due shall bear interest
at the default rate of eighteen percent (18%) from the first day due until paid.
Rental, including any interest due thereon, required of Tenant shall be paid to
the Escrow Agent at 0000 Xxxxxxxx, Xxxxxx, XX 00000, or at such other place as
Landlord and WCC may jointly direct in writing. Statements required of Tenant
shall be delivered to Landlord at the offices of Landlord at 0000 Xxxxx Xxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, or at such other place as Landlord may,
from time to time, designate in a notice to Tenant. Any, payment by Tenant or
acceptance by Escrow Agent of a lesser amount than shall be due from Tenant to
Landlord shall be treated as a payment on account. The acceptance by Escrow
Agent of a check for a lesser amount with an endorsement or statement thereon,
or upon any letter accompanying such check, that such lesser amount is payment
in full, shall be given no effect, and Escrow Agent may accept such check
without prejudice to any other rights or remedies to which Landlord may have
against Tenant.
7. Met Lease. It is the intention of the parties to this Lease that
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all rents reserved herein shall be a net return to Landlord and all expenses or
charges with respect to the Leased Property including, by way of example,
maintenance, landscaping, repairs, remodeling or alteration of the building,
structures or improvements , utilities, repair and/or replacement of the
equipment, and the like shall be borne by Tenant and not Landlord, except as
follows:
a. Landlord shall provide capital improvements to the Greenhouse as
approved by both Landlord and Tenant not to exceed the following amounts:
Year Maximum Amount
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1993 $150,000
1994 100,000
1995 50,000
Tenant shall provide, at its own expense, all other capital improvements
necessary to the prudent operation of the Greenhouse.
b. Landlord shall assign to Tenant all outstanding accounts
receivable arising from and after June 9, 1992, from the
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prior operation of the Greenhouse. Landlord shall pay and hold Tenant harmless
from all outstanding accounts payable from prior operation of the Greenhouse
arising prior to the effective date of this Lease.
c. Landlord shall provide, at no cost to Tenant, fresh water for the
operation of the Greenhouse, domestic water for employees of Tenant situated at
the Greenhouse location, and all equipment necessary to operate the Greenhouse.
d. Landlord shall provide, at no cost to Tenant, emergency power
capability. However, Landlord shall not be liable for any power failure to the
Greenhouse and ancillary structures, through the failure to provide emergency
service. Any increase in cost. to Landlord of actually providing emergency
service shall be borne by Tenant as additional rent.
e. Landlord shall pay all real property taxes on the real, property on
which the Greenhouse and storage facility are located, and the Greenhouse
structure, fixtures, storage tanks, pumps, piping and standby boilers, and
Tenant will pay all taxes on the equipment and personal property used on the
Premises by Tenant in the operation of a Greenhouse and warehouse facility as
hereinafter further defined.
f. Landlord. shall be responsible for the payment and maintenance of
"All-Risk" casualty insurance with respect to the Greenhouse and Greenhouse
warehouse, which insurance may be carried at the discretion of Landlord in such
amounts and with such companies as Landlord shall determine. Tenant shall be
solely responsible for insurance on the content and operations of the
Greenhouse.
g. Landlord shall be responsible for any costs of expanding the
Greenhouse to maintain FERC compliance.
Except as provided above, Tenant shall be responsible for all costs of
operating and maintaining the Greenhouse and warehouse facilities and shall
agree to operate and maintain the Greenhouse in accordance with accepted
industry standards throughout the Term of this Lease.
8. TAXES.
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a. Landlord shall pay in each tax year during the Term all real estate
taxes, ad valorem taxes and assessments, general and special, including taxes
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levied against the buildings, structures, fixtures, storage tanks, pumps, piping
and/or standby boilers assessed by the taxing authority.
b. Tenant shall be responsible for all taxes payable to the
appropriate taxing authority for any sales, excise, personal
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property or other tax (not including real property tax) levied, imposed or
assessed in the State of Colorado or any other political subdivision thereof or
other taxing authority for Tenant's inventory, furniture, appurtenant apparatus,
equipment, leasehold improvements owned or installed by Tenant or by Landlord
and utilized in the greenhouse operation, and any other property of Tenant.
Tenant shall provide proof of payment of such taxes to Landlord annually by
providing a receipt marked "paid" for the taxes assessed, and any failure to pay
such taxes when due shall be considered a default under this Lease.
9. Repairs and Alterations. All repairs to the Premises or any
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installations, equipment or facilities therein are to be made by Tenant at its
expense. Without limiting the generality of the foregoing, Tenant shall keep the
structure of the building in good repair and shall promptly replace the same
when damaged, together with all electrical, plumbing and other mechanical
installations thereon. Tenant will make any and all replacements from time to
time required for the Premises at its expense including, by way of example, the
roofs on the Greenhouse and Greenhouse warehouse. Tenant will surrender the
Premises at the expiration of the Term or at such other time as it may vacate
the Premises in as good condition as when received, excepting depreciation
caused by ordinary wear and tear, including damage by casualty not caused or not
avoided due to the negligent acts or omissions of Tenant.
Tenant will repair promptly, at its expense, any damage to the
Premises regardless of fault or by whom such damage shall be caused, unless
caused by Landlord or its agent, employees or contractors. If Tenant shall fail
to commence such repairs within five (5) days after notice to do so, Landlord
may take or cause the same to be made, and Tenant agrees to pay Landlord
promptly upon Landlord's demand the cost thereof with interest thereon at the
default rate of eighteen percent (18%) until paid.
10. Alterations by Tenant. Tenant shall not make any alterations,
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renovations, improvements or other installations in or about any part of the
Premises unless and until Tenant shall cause plans and specifications therefor
to have been reviewed by Landlord and shall have obtained Landlord's written
approval thereof. If approval is granted, Tenant shall cause the work described
in such plans and specifications to be performed, at its expense, promptly,
efficiently, competently and in a good and workmanlike manner by duly qualified
or licensed persons or entities. All such work shall comply with all applicable
codes, rules, regulations and ordinances. Ordinary and customary repairs and
replacements in and an the Greenhouse and Greenhouse warehouse shall be promptly
undertaken and promptly completed and need not have Landlord's prior approval.
11. Mechanics' Liens. No work performed by Tenant pursuant to this
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Lease, whether in the nature of erection, construction,
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alteration or repair shall be deemed to be made for the immediate use and
benefit of landlord so that no mechanics' or other liens shall be allowed
against the estate of Landlord by reason of any consent given by Landlord to
Tenant to improve the Premises. Tenant shall pay promptly all persons furnishing
labor and/or materials with respect to any work performed by Tenant or its
contractors on or about the Premises. If any mechanics, or other liens shall at
any time be filed against the Premises by reason of work, labor, services or
materials performed or furnished, or alleged to have been performed or
furnished, to Tenant or to anyone holding the Premises through or under Tenant,
Tenant shall forthwith cause the same to be discharged of record or bonded to
the satisfaction of Landlord. If Tenant shall fail to cause such lien forthwith
to be so discharged or bonded after being notified of the filing thereof, then
in addition to any other right or remedy of Landlord, Landlord may bond or
discharge the same by paying the amount claimed to be due. In such event, Tenant
shall be liable to Landlord in an amount so paid by Landlord including any
reasonable attorneys' fees incurred by Landlord either in defending against such
lien or procuring the bonding or discharge of such lien, together with interest
thereon at the default rate of eighteen percent (18%) , due and payable by
Tenant to Landlord within ten (10) days of receiving notice thereof.
12. Operations. The Greenhouse and storage structure shall be used by
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tenant exclusively for the growing and marketing of greenhouse produce, using
the thermal heat available from the power plant as required. it is agreed and
understood that it is Landlord's paramount concern that continuous production or
greenhouse produce be undertaken so as to continuously qualify the Landlord's
cogeneration facility for the cogeneration benefits pursuant to Landlord's
permit granted by the Federal Energy Regulation Commission, as the same may be
amended from time to time. Tenant shall continuously operate the Greenhouse
facilities for the production of produce and any failure to have crops in place
which failure jeopardizes the "QF" status of the Project shall be considered a
default under this Lease. Tenant warrants that it will promptly pay all of its
bills, including labor costs, operating expenses, repair and maintenance
expenses, other expenses due hereunder, and any judgments, liens, or the like
which may threaten the shutdown of the Greenhouse facility on the repossession
of equipment and/or inventory necessary to the greenhouse operation. Any failure
by Tenant to promptly pay such bills, judgments, liens or like charges shall be
considered a default by Tenant under this Lease. Landlord may pay any such
claims upon ten (10) days' notice to Tenant, and any claims paid by Landlord on
behalf of Tenant will become immediately due and owing to Landlord and Landlord
may collect such sums paid with a default interest rate of eighteen percent
(18%).
Tenant shall, at all times, keep the Premises in a neat and orderly
condition. Specifically by way of example only, Tenant
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shall keep any garbage, trash, rubbish, refuse, disassembled equipment or
vehicles out of public view within containers or structures and shall provide
for the timely removal of any such garbage, trash, rubbish, refuse, disassembled
equipment or vehicles from the site at Tenant's expense.
13. Utilities; Thermal Commitment.
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a. Landlord shall provide at no additional cost to Tenant (except as
provided herein) , all thermal heat available from the power plant in the form
of hot water to be used to satisfy the heating requirements of the Greenhouse,
fresh water for the operations of the Greenhouse, and domestic water for the
employees of Tenant situated at the Greenhouse, and shall provide emergency
power capability for the Greenhouse. Tenant shall be responsible for paying for
all electrical service and telephone service charges used on the Premises.
b. In the event Landlord shall fail to supply hot water sufficient to
satisfy the reasonable heating requirements of the Greenhouse, Tenant may make
use of any supplemental heating source supplied by or available to it, and
Landlord shall reimburse Tenant for the incremental cost (i.e., fuel costs or
equivalent) of providing such supplemental heat.
14. Indemnity and Insurance.
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a. To the extent permitted by law, Tenant shall and does hereby
indemnify Landlord and save it harmless and, at Landlord's option, defend it
from and against any and all claims, actions, damages, liabilities and expenses
including attorneys' fees or professional fees, in connection with the loss of
life, personal injury and/or damage to the Leased Property and adjacent
cogeneration facility arising from and out of the occupancy or use by TENANT OF
the Premises occasioned wholly or in part by any act or omission of Tenant, its
officers, agents, directors, employees or invitees.
b. At all times during the Term, Tenant will carry and
maintain, at its expense:
(i) public liability insurance including insurance AGAINST assumed
or contractual liability under this Lease, with respect to the Premises to
afford protection with limits, for each occurrence, of not less than One
Million Dollars ($1,000,000-00) with respect to personal injury or death
and Five Hundred Thousand Dollars ($500,000.00) with respect to property
damage;
(ii) all-risk casualty insurance including theft, written at
replacement cost value and replacement cost endorsement covering all of
Tenant's and Landlord's personal
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property on the Premises including, without limitation, equipment,
furniture and other property removable by Tenant under the provisions of
this Lease installed in the Premises by or on behalf of Tenant;
(iii) if and to the extent required by law, worker's compensation
or similar insurance in form and amounts required by law; and
(iv) crop damage insurance in an amount of not less than Five
Hundred Thousand Dollars ($500,000).
At the request of Tenant, Landlord shall carry any insurance listed above, and
Tenant shall be obligated promptly to reimburse Landlord for any cost incurred
by Landlord related to such insurance.
c. The company or companies writing any insurance which Tenant is
required to carry and maintain or cause to be carried or maintained pursuant to
this Lease, as well as the form of such insurance shall at all times be subject
to Landlord's approval and any such company or companies shall be licensed to do
business in the State of Colorado. Public liability, all-risk casualty, and crop
insurance policies evidencing such insurance shall name Landlord or its designee
and WCC as additional insureds, shall be primary and non-contributory, and shall
also contain a provision by which the insurer agrees that such policy shall not
be canceled except after thirty (30) days' written notice. to Landlord, its
designee and WCC. None of the insurance which Tenant is required to carry and
maintain or cause to be carried or maintained pursuant to this Lease shall
contain any deductible provisions except to the extent approved by Landlord.
Each such policy, or a certificate thereof, shall be deposited with Landlord by
Tenant promptly upon commencement of Tenant's obligation to procure the same. If
Tenant shall fail to perform any of its obligations under the insurance
provisions of this Lease, Landlord may perform the same and the cost of same
shall be charged to Tenant and Tenant agrees, upon five (5) days' written
notice, to pay Landlord promptly the cost thereof with default interest at the
rate of eighteen percent (18%) until paid.
15. Condemnation. If the whole or any part of the Leased premises
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shall be taken under the power of eminent domain, this Lease shall terminate as
to the part so taken on the date Tenant is required to yield possession thereof
to the condemning authority. Landlord shall make such repairs and alterations as
may be necessary in order to restore the part not taken to useful condition and
all rental shall be reduced in the same proportion as the portion of the square
footage of the Premises so taken bears to Tenant's total square footage of the
Greenhouse. If the aforementioned taking renders the remainder of the Premises
unsuitable for the Permitted Use, either party may terminate this Lease as of
the date when Tenant is required to yield possession by
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giving notice to that affect within ninety (go) days after such date.
All compensation awarded for any taking of the Premises or any interest
therein shall belong to and be the property of Landlord, Tenant hereby assigning
to Landlord all rights with respect thereto; provided, however, nothing
contained herein shall prevent TENANT FROM applying for reimbursement from the
condemning authority (if permitted by law) for moving expenses, loss of crops,
the expense of removal of Tenant's trade fixtures, or loss of Tenant's business
goodwill, but only if such action shall not reduce the amount of the award or
other compensation otherwise recoverable from the condemning authority by
Landlord.
16. Assignments and Subletting. Tenant shall not assign, transfer or
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encumber this Lease in whole or in part or sublet all or any part of the
Premises nor license concessions or leases without first obtaining the consent
of Landlord and WCC, which consent shall not be unreasonably withheld. This
prohibition includes any sublease or assignment which would otherwise occur by
operation of law, merger, consolidation, reorganization, transfer or other
change of Tenant's corporate or proprietary structure or an assignment or
subletting to or by a receiver or trustee in federal or state bankruptcy,
insolvency, or similar proceeding. Consent by Landlord or WCC to any assignment
or subletting shall not constitute a waiver of the requirement for such consent
to any subsequent assignment or subletting.
17. Default.
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a. Any one or more of the following events shall constitute an event
of default:
(i) the sale of Tenant's interest in the Premises under
attachment, execution or similar legal process or, if Tenant is adjudicated
a bankrupt or insolvent and such adjudication is not vacated within ten
(10) days;
(ii) the filing of a voluntary or involuntary petition proposing
the adjudication of Tenant or any guarantor of Tenant's obligations
hereunder as a bankrupt or insolvent, or the reorganization of Tenant or
any such guarantor, or any arrangement by Tenant or any such guarantor with
its creditors, whether pursuant to the Federal Bankruptcy Act or any
similar federal or state proceedings, unless such petition is filed by a
party other than Tenant or any such guarantor and is not withdrawn or
dismissed within thirty (30) days after the date of filing;
(iii) admission in writing by Tenant or any such guarantor of its
inability to pay its debts when due;
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(iv) the appointment of a receiver or trustee for the business or
property of tenant or any such guarantor, unless such appointment shall be
vacated within ten (10) days of its entry;
(v) the making by Tenant or any such guarantor of an assignment
for the benefit of its creditors, or in any other manner Tenant's interests
in this Lease shall pass to another by operation of law;
(vi) failure of Tenant, without further notice, demand, or
opportunity to cure, to pay any rental or any other sum of money due
hereunder including, without limitation, taxes, insurance and operation and
maintenance expenses, within thirty (30) days after the same is due
hereunder;
(vii) default by Tenant in the performance or observance of any
covenant or agreement of this Lease (other than a default involving the
payment of money), which default is not cured within thirty (30) days after
the giving of notice thereof by Landlord or by WCC, unless such default is
of such a nature that it cannot be cured within such period, in which case
no event of default shall occur so long as Tenant shall commence; the
curing of the default within such period and shall thereafter diligently
prosecute the curing of same and the existence of such default does not
adversely affect the greenhouse operation and/or the status of the adjacent
cogeneration facility; and
(viii) the vacating or abandonment. of the Premises by Tenant at
any time during the Term of this Lease, which vacation or abandonment shall
include, but not be limited to, the failure to have planted crops in place
which failure jeopardizes the "QF" status of the Project.
b. Upon the occurrence and continuance of an event of default,
Landlord, without notice, demand or opportunity to cure to Tenant in any
instance, which notice, demand or opportunity is expressly waived by Tenant to
the greatest extent allowed by law in any instance (except where expressly
provided for below or by applicable law), may do any one of the following:
(i) Sell at public or private sale all or any part of the goods,
chattels, fixtures and other personal property belonging to Tenant which
are or may be put into the Premises during the Term, whether exempt or not
from sale under execution or attachment (it being agreed that said property
shall at all times be bound with a lien in favor of Landlord and shall be
chargeable for all rental and other monetary obligations and for the
fulfillment of the other covenants and agreement herein contained) and
apply the proceeds of such sale, first, to the payment of all costs and
expenses of
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conducting the sale or caring for or storing said property (including
attorneys' fees), second, toward the payment of any indebtedness,
including (without limitation) indebtedness for rental, which is or would
become due from Tenant to Landlord during the Term hereof absent
termination and which is not otherwise mitigated by a subsequent tenant,
and third, to pay Tenant, on demand in writing, any surplus remaining after
all indebtedness of Tenant to Landlord has been fully paid;
(ii) perform, on behalf and at the expense of Tenant, any obligation of
Tenant under this Lease which Tenant has failed to perform and of which
Landlord shall have given Tenant notice as required herein, the cost of
which performance by Landlord, together with interest thereon at the
default rate from the date of such expenditures, shall be deemed additional
rental and shall be payable by Tenant to Landlord upon demand;
(iii) elect to terminate this Lease and the tenancy created hereby by
giving notice of such election to Tenant, and re-enter the Premises, by
summary proceedings or otherwise, and remove Tenant and all other persons
and property from the Premises, and store such property in a public
warehouse or elsewhere at the cost of and for the account of Tenant without
resort to legal process and without Landlord being deemed guilty of
trespass or becoming liable for any loss or damage occasioned thereby;
(iv) elect to take over the management and operation of the Greenhouse
facility using the trade fixtures and equipment of Tenant which Tenant has
used in operation of the Greenhouse and ancillary facilities and structures
as if owned by Landlord in its own right, and continue the operation of the
Greenhouse in its own right or through some additional party, which
operation may be done without legal liability or obligation to Tenant. If
this provision of default is invoked, Landlord shall have the right to
inspect and copy all of the Tenant's accounting records relating to the
operation of the Greenhouse and all customer lists relating to the
Greenhouse; or
(v) exercise any other legal or equitable right or remedy which
it may have.
Notwithstanding the provisions of clause (b) (ii) above and regardless of
whether an event of default shall have occurred, Landlord may exercise the
remedies described in clauses (b) (ii) or (b) (iv) above without any notice to
Tenant if Landlord, in its good faith judgment, believes it would be materially
injured by failure to take rapid action or if the unperformed obligation of
Tenant constitutes an emergency.
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Any costs and expenses incurred by Landlord (including, without limitation,
reasonable attorneys' fees) in enforcing any of its rights or remedies under
this Lease shall be deemed to be additional rental and shall be repaid to
Landlord by Tenant upon demand.
18. Damages. If this Lease is terminated by Landlord or by WCC pursuant to
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the default provisions of this Lease, Tenant nevertheless shall remain liable
for any rental and damages which may be due or sustained prior, to such
termination and all reasonable costs, fees and expenses including, but not
limited to, reasonable attorneys' fees, costs and expenses incurred by Landlord
or by WCC in pursuit of its remedies hereunder, or in renting the Premises to
others from time to time, and all rental due after termination but otherwise
within the Term hereof not mitigated by the receipt of sales proceeds from the
sale of Greenhouse products or Tenant's property or by the receipt of rent from
a subsequent tenant.
19. Force Majeure. A party shall be excused from performance hereunder for
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a period of time during which the ability of such party to perform its
obligations is materially and adversely affected by the occurrence of any event
beyond the reasonable control of the party affected, and occurring without any
negligence on the part of such party, including, but not limited to, flood,
earthquake, tornado, epidemic, war, riot, volcanic eruption, storm, fire,
lightning, civil disturbance or disobedience, strike, labor dispute, labor or
material shortage, sabotage, withholding of approval by applicable authority
of restraint by court order or public authority, which by exercise of prudent
engineering practice by Colorado standards, due diligence and foresight, such
party could not reasonably have been expected to avoid and which by due
diligence it has been unable to overcome.
20. Subordination and Assignment. Tenant agrees that its rights under this
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Lease are and shall remain subject and subordinate to the WCC Lease Documents.
Further, if Landlord falls to enforce its rights hereunder after thirty (30)
days written notice to Landlord, WCC may enforce such rights. This Lease,
together with all of Landlord's right, title and interest therein has been
assigned to WCC as security for all of Landlord's obligations to WCC under the
WCC Lease Documents.
21. Notices.
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a. Any notice, request, demand, approval or consent given or required
to be given under this Lease shall be in writing and shall be deemed to have
been given on the third (3rd) day following the day on which the same shall have
been mailed by United States registered or certified mail, return receipt
requested, with all postage charged prepaid and addressed, if intended for
Landlord, to AMERICAN ATLAS #I, LTD., 0000 Xxxxx Xxxx
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Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, and to WESTINGHOUSE CREDIT CORPORATION,
Xxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, or if intended for Tenant, to Tenant at
WOLF CREEK RIFLE LLC, 000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000.
Either party may, at any time, change its address for the above purposes by
sending notice to the other party stating the change and setting forth the new
address.
b. If any mortgagee or lessor shall notify Tenant that it is the
holder of a mortgage or lease affecting the Premises, no notice, request or
demand thereafter sent by Tenant to Landlord shall be effective unless and until
a copy of the same shall also be sent to such mortgagee or lessor in the manner
prescribed above and to such address as such mortgagee or lessor shall
designate.
22. FERC Requirement Compliance. Tenant, by the execution hereof, hereby
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covenants and agrees that the annual thermal useful output available from the
power plant provided by Landlord will be used by Tenant to heat the Greenhouse
facility, and that Tenant shall use its best efforts to comply with the terms of
the annual thermal usage and output requirements required under that certain
Order Granting Application for Certificate as a Qualifying Cogeneration Facility
("FERC Order") issued June 7, 1985, by the Federal Energy Regulatory Commission
of the United States of America, Docket No. QF85-284-000, and in compliance with
the description of greenhouse operations contained in that certain Application
of Cogeneration and Technology Development Company Ear Amendment of Certificate
of Qualifying Status of a Cogeneration Facility (the "FERC Application") . In
the event the FERC Order is amended, Tenant agrees to use its bet efforts to
comply with all reasonable requests of Landlord, at Landlord's cost, to assure
compliance with the FERC requirements relating to greenhouse operations set
forth in such amended FERC Order and the Application made by AA#1 in connection
therewith. Landlord shall have the right to monitor Tenant's compliance with the
FERC requirements described herein.
23. Merger and Modification. Subject to the provisions in the WCC
-------------------------
Lease Documents, which are hereby incorporated herein and which describe the
rights of WCC and its assigns, the parties hereto understand and agree that this
Agreement, with amendments, if any, constitutes the entire agreement of the
parties hereto, respecting the subject matter hereof and that the parties have
not Entering into this relied upon any representations or warranties in entering
into this Agreement, except as provided herein. This Lease may, not be modified
or amended without the express written consent of WCC, which consent shall not
be unreasonably withheld.
24. Greenhouse Personnel. Tenant agrees to engage or employ personnel
----------------------
in the operation of the Greenhouse consistent with Section 6.1(i) of that
certain Restructured Participation Agreement
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between WCC and Landlord and further agrees to engage or employ a Greenhouse
manager acceptable to and approved by WCC, which acceptance and approval shall
not be unreasonably withheld. WCC hereby approves the appointment of Xxxxxxx
Xxxxxx as the initial Greenhouse manager.
25. Audits. Tenant agrees to a semi-annual audit by an Independent
Engineer in accordance with Section 17(e) of the Facility and Site Lease and to
comply with all reasonable recommendations submitted by the Independent Engineer
or by the Landlord.
26. Miscellaneous.
-------------
a. At any time and from time to time, within ten (10) days after
Landlord shall request the same, Tenant will execute, acknowledge and deliver to
Landlord and to such mortgagee or other party as may be designated by Landlord
an estoppel certificate in the form furnished by Landlord, with respect to the
matters relating to this Lease or the status of performance of obligations of
the parties hereunder as may be reasonably requested by Landlord. If Tenant
fails to provide such certificate within ten (10) days after request by Landlord
therefor, Tenant shall be deemed to have approved the contents of any such
certificate submitted to Tenant by Landlord and Landlord is hereby authorized to
so certify.
b. Tenant will permit Landlord, WCC and the Independent Engineer,
together with their agents, employees and contractors to enter all parts of the
Premises during Tenant's business hours to inspect the same and to enforce or
carry out any provision of this Lease including, without limitation, any access
necessary for the making of any repairs which are Landlord's obligation
hereunder.
c. The parties hereby agree that, upon the request of either party,
each will execute, acknowledge and deliver a short form of memorandum of this
Lease in recordable form. Recording, filing and like charges and any stamp,
charge for recording, transfer or other tax shall be paid by the party
requesting execution of same. In the event of termination of this Lease, within
thirty (30) days after written request from Landlord, Tenant agrees to execute,
acknowledge and deliver to Landlord an agreement removing such short form of
lease from record. If Tenant fails to execute such agreement within said 30-
day period or fails to notify Landlord within said 30-day period of its reasons
for refusing to execute such agreement, Landlord is hereby authorized to execute
and record such agreement. removing the short form of lease from record. The
provisions of this Section shall survive any termination of this Lease.
d. No reference to any specific right or remedy shall
preclude landlord or wcc from exercising any other right or from
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having any other remedy or from maintaining any action to which it may otherwise
be entitled at law or in equity. No failure by Landlord to insist upon the
strict performance of any agreement, term, covenant or condition hereof, or to
exercise any right of remedy consequent upon a breach thereof, and no acceptance
of full or partial rent during the continuance of any such breach, shall
constitute a waiver of any such breach, agreement, term, covenant or condition.
No waiver by Landlord of any breach by Tenant under this Lease or of any breach
by any other tenant under any other lease of any portion of the Premises shall
affect or alter this Lease in any way whatsoever.
e. This Lease and the covenants and conditions herein contained shall
inure to the benefit of and be binding upon Landlord, its successors and
assigns, and shall be binding upon Tenant, its successors and assigns and shall
inure to the benefit of Tenant and only such assigns of Tenant to whom the
assignment of this Lease by Tenant has been consented to in writing by Landlord
and WCC. Upon the sale or other transfer by Landlord of its interest in the
Premises, and assumption of possession of the Premises by the assignee, only the
assignee shall be responsible for all obligations under this Lease occurring
thereafter.
f. Tenant, at its sole costs and expense, shall comply, and shall
cause the Premises to comply with (i) all federal, state, county, municipal and
other governmental statutes, laws, rules, orders, regulations and ordinances
affecting any part of the Premises, or the use thereof, including, but not
limited to, those which require the making of any structural, unforeseen or
extraordinary changes, whether or not any such statutes, laws, rules, orders,
regulations or ordinances which may be hereafter enacted involve a change of
policy on the part of the governmental body enacting the same, and (ii) all
rules, orders and regulations of the National Board of Fire Underwriters,
Landlord's casualty insurer(s) and other applicable insurance rating
organizations or other bodies exercising similar functions in connection with
the prevention of fire or the correction of hazardous conditions which apply to
the Premises.
g. The Table of Contents and the paragraph captions are for
convenience of reference only and in no way shall be used to construe or modify
the provision set forth in this Lease.
h. Any intention to create a joint venture or partnership relation
between the parties hereto is hereby expressly disclaimed.
i. Subject to the WCC Lease Documents which are incorporated herein by
reference, this writing is intended by the parties as a final expression of
their agreement and as a complete and exclusive statement of the terms thereof,
all negotiations, considerations and representations between the parties having
been
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incorporated herein. No course of prior dealings between the PARTIES OR THEIR
officers, employees, agents or affiliates shall be relevant or admissible to
supplement, explain, or vary any of the terms of this Lease unless determined
to be ambiguous without reference to the same. Acceptance of, or acquiescence
in, a course of performance rendered under this or any prior agreement between
the parties or their affiliates shall not be relevant or admissible to determine
the meaning of any of the terms of this Lease. No representations,
understandings, or agreements have been made or relied upon in the making of
this Lease other than those specifically set forth herein. This Lease can be
modified only by a writing signed by the party against whom the modification is
enforceable and consented to by WCC, which consent shall not be unreasonably
withheld.
j. If any portion of any term or provision of this Lease, or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be a valid and be enforced to the fullest
extent permitted by law.
k. The persons executing this Lease on behalf of Tenant hereby
covenant and warrant that: Tenant is a duly constituted limited liability
company qualified to do business in Colorado; and the persons signing this
Lease are duly authorized to execute and deliver this Lease on behalf of the
Tenant.
l. Subject to the WCC Lease Documents, nothing contained in this Lease
shall be construed so as to confer upon any other party the rights of a third-
party beneficiary except rights contained herein for the benefit of a mortgagee
or a lessor.
m. This Lease and the rights and obligations of the parties hereunder
shall be construed in accordance with the laws of the State of Colorado.
n. Tenant shall accept performance of any of Landlord's obligations
hereunder by any mortgagee or lessor.
o. Landlord and Tenant hereby mutually waive any and all rights (only
pertaining to Landlord and Tenant with regard to this Lease) which either may
have to request a jury trial in any proceeding at law or in equity in any court
of competent jurisdiction.
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AGREED TO as of the day and year first above written.
LANDLORD:
AMERICAN ATLAS 11, LTD.
By:
Title:
TENANT:
WOLF CREEK RIFLE LIMITED
LIABILITY COMPANY
By:
Title: ________________________________
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EXHIBIT A
---------
GREENHOUSE DESCRIPTION
----------------------
The greenhouse building and warehouse located on a portion of the following
described real property:
A parcel of land situated in the Northwest one-quarter (NW1/4) of
Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 00 Xxxx xx xxx Xxxxx Xxxxxxxxx Xxxxxxxx
(X0X, X00X of the 6th P.M.), Garfield County, Colorado, more particularly
described as follows:
Beginning at the Northwest corner of said Section 24; thence N. 89
degrees 51' 14" E. along the North line of said Section 24 a distance of
917.18 feet to the True Point of Beginning; thence N. 14 degrees 21' 14"
E. a distance of 273.71 feet to a point on the South Right of Way line of
County Road 352; thence along said lin S. 74 degrees 56' 06" E. a distance
of 93.36 feet to a point of curve to the left; thence along said curve
having a radius of 7,417.42 feet and a central angle of 03 degrees 06' 36"
an arc length of 402.62 feet to a point of tangent; thence S. 78 degrees
02' 42" E. a distance of 546.16 feet thence S. 60 degrees 10' 30" R. a
distance of 1,187.61 feet; thence S. 82 degrees 25' 17" W. a distance of
2,214.24 feet; thence N. 14 degrees 21" 14" E. a distance of 1,394.20 feet
to the True Point of Beginning; containing 41.333 acres, more or less.
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EXHIBIT B
---------
EQUIPMENT
---------
Bobcat
Three Wheel Electric Cart
Pallet Jacks
Xxxxxx Forklift
Case Tractor
Sorter and Miscellaneous
B.E. Delier Irrigation Machine
Wrapping Machines
60 Ft. Roller Skate Conveyor Stands
Tractor Forks
Scraper
Plow
Mower
200 Gallon Sprayer
Arc Welder
Portable Gas Welder
Hand Trucks
10 Ft. Aluminum Step Ladder
6 Ft. Wooden Step Ladder
16 Ft. Extension Ladder
Xxxxx Computer
Q-Com, Computer System with Sensors
Bench Grinder
Xxxxxxx Xxxxxx Hot Water Boiler
2-Ray Hot Water Boilders
Floor Pallet Scale
Electric Cart
3-Trailers 4x8
Soil Bin
ESS Sprayer
Electric Generator
Electric Air Compressor
High Pressure Wash Down Gun
Phone Equipment
XTC 8088 Computer with Samsung Screen
Okidata 292 Printer
Copier
Typewriter
Calculators
Files
Samsung CRT
Okidata 193 Plus Printer
Compaq Computer
Citizen 120D Printer
Desks and Chairs
Xxxxxx Sonachron Time Clock System
Sensaphone Alarm System
Desks and Chairs
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Credenzas
Conference Room Table and Chairs
Refrigerator
Miscellaneous Table and Chairs
8x600 Ft. Propagation
500 Gal. Plastic Tank
Drum Stands
Drum Hand Truck
Surplus Motors
Remote Radios with Chargers
Bag Sealer
Picking Trays and Carts
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