EXHIBIT 10.18
FIRST AMENDMENT
TO
GREENHOUSE OPERATION AND MANAGEMENT AGREEMENT
THIS FIRST AMENDMENT TO GREENHOUSE OPERATION AND MANAGEMENT AGREEMENT (this
"Amendment") is made as of this ___ day of September, 1996, between ROCKY
MOUNTAIN PRODUCE LLC, a Colorado limited liability company ("RMP") and COLORADO
GREENHOUSE LLC, a Colorado limited liability company ("CG").
Recitals
--------
A. RMP and CG have entered into that certain Greenhouse Operation and
Management Agreement dated December 29, 1994 to be effective January 1, 1994
(the "O&M Agreement"), whereby CG was engaged by RMP to operate and manage the
greenhouse facility (the "Greenhouse") located in Ft. Xxxxxx, Colorado.
B. RMP and CG desire hereby to further amend certain provisions of the
O&M in connection with an expansion of the Greenhouse and the consolidation of
the greenhouse facility located in Rifle, Colorado (the "Rifle Greenhouse") with
the Greenhouse and Other Greenhouses, as defined in, and pursuant to the terms
of, the O&M Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreement
herein contained, the parties hereby covenant and agree as follows:
1. The definition of "Other Greenhouses" in Section 2 is hereby deleted
-----------------
in its entirety and the following is inserted in lieu thereof:
"Other Greenhouses" mean, collectively, the BGP Greenhouse, the BGP II
-----------------
Greenhouse and the Rifle Greenhouse (to the extent that the above are being
operated and managed by Colorado Greenhouse), or such other greenhouses as
Colorado Greenhouse may operate or manage during the term of this Agreement
with the consent of RMP and Thermo.
2. The definition of "Primary Fee" in Section 2 is hereby deleted in its
-----------
entirety and the following is inserted in lieu thereof:
"Primary Fee" means an amount, payable within 30 days after the end of each
-----------
calendar quarter during the term of this Agreement, equal to the Allocated
Percentage of Net Revenue, which amount shall not exceed (i) $500,000 for
1994, (ii) the Allocated Percentage of $2,740,000 for 1995, (iii) the
Allocated Percentage of $3,240,000, for the period commencing as of January
1, 1996 through and including the second complete calendar quarter
following the completion date of the expansion of the Greenhouse, and (iv)
thereafter, the Allocated Percentage of $3,429,092.
3. The definition of "Primary Fee Deficiency" in Section 2 is hereby
----------------------
deleted in its entirety and the following is inserted in lieu thereof:
"Primary Fee Deficiency" means an amount, to be calculated by BGP II within
----------------------
30 days after the end of each calendar quarter during the term of this
Agreement, equal to the amount, if any, by which the Allocated Amount (as
defined below) exceeds the aggregate payments made on account of the
Primary Fee for such calendar year. "Allocated Amount" means, (i) for
1995, the Allocated Percentage of $2,740,000, (ii) for the period
commencing as of January 1, 1996 through and including the second complete
calendar quarter following the completion date of the expansion of the
Greenhouse, the Allocated Percentage of $3,240,000, and (iii) thereafter,
the Allocated Percentage of $3,429,092.
4. The following definition shall be inserted after the definition of
"Reserve Amount" and before the definition of "Services" in Section 2:
-------------- --------
"Rifle Greenhouse" means the greenhouse leased to Wolf Creek Rifle LLC and
----------------
to be operated by Colorado Greenhouse, located in Rifle, Colorado.
5. Exhibit C is hereby deleted in its entirety and the following is
inserted in lieu thereof:
A percentage, as the same may be modified from time-to-time, as in effect
on the dates set forth below:
Commencement Date 37.730%
Consolidation of the Rifle Greenhouse 31.907%
The Second Complete Calendar Quarter
Following the Completion Date of the
Greenhouse Expansion 30.147%
6. Except as expressly amended pursuant to Sections 1 through 5 above,
the terms and conditions of the O&M Agreement are unmodified and remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
ROCKY MOUNTAIN PRODUCE LLC, a Colorado limited
liability company
By: __________________________
Name: ________________________
Title: _________________________
COLORADO GREENHOUSE LLC, a Colorado limited
liability company
By: __________________________
Name: ________________________
Title: _________________________
THERMO COGENERATION PARTNERSHIP, L.P.
0000 00xx Xxxxxx
XXXXXX, XX 00000
JULY __, 1996
The Prudential Insurance Company Credit Local de France
of America, as Lead Agent and as Lender 000 Xxxx Xxxxxx, 0xx Xxxxx
c/o Prudential Power Funding Associates Xxx Xxxx, Xxx Xxxx 00000
Four Gateway Center Attn.: Xxxx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attn.: Project Management Team Credit Lyonnais
Credit Xxxxxxxx Xxxxxxxx
Xxx Xxxx Xxxx, Xxxxxxx, 0000 Avenue of the Americas
as Bank Agent and as a Lender Xxx Xxxx, Xxx Xxxx 00000
1221 McKinney, Suite 4100 Attn.: Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attn.: Xxxxx Xxxxxxxx
Mellon Bank, N.A. The Sanwa Bank, Limited
One Mellon Bank Center 00 Xxxx 00xx Xxxxxx
000 Xxxxx Xxxxxx, Xxxx 0000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-000 Attn.: Xxxxx Xxxxx
Attn.: Xxxxxxx Xxxxx
Campagnie Financiere de CIC et
de L'Union Europeene
0, Xxx Xxxxxxx
00000 Xxxxx Cedex 02 France
Attn.: Xxxx Xxxxxx
RE: THERMO COGENERATION PARTNERSHIP, L.P.; AMENDED AND RESTATED
CONSTRUCTION AND TERM LOAN AGREEMENT DATED AS OF FEBRUARY 28, 1995
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Construction and
Term Loan Agreement (the "Loan Agreement") dated as of February 28, 1995, as
amended, among Thermo Cogeneration Partnership, L.P. ("Borrower"). The
Prudential Insurance Company of America, The Fuji Bank, Limited and the other
parties named therein. Capitalized terms used herein but not otherwise defined
shall have the meaning given to such terms in the Loan Agreement.
Section 9.5 of the Loan Agreement provides in part that Borrower will not,
without the prior written consent of the Agents and Required Lenders, agree to
any amendment, supplement or modification of any Basic Document. Borrower and
Rocky Mountain Produce LLC ("RMP") desire to enter into the consent letter, in
the form of Exhibit A attached hereto, in favor of Colorado Greenhouse LLC
("CG"). This consent letter will allow CG to add as an Other Greenhouse that
certain greenhouse located in Rifle, Colorado and used in connection with the
American Atlas cogeneration project. In connection with the current expansion of
the BGP II
July ___, 1996
Page 2
Greenhouse, Borrower and RMP also desire to consent to (i) a change in the
Allocated Percentage under the Greenhouse Operation and Management Agreement
(the "O&M Agreement") dated as of December 29, 1994 between RMP and CG, (ii) a
change in the definition of Reserve Amount under the O&M Agreement, and (iii) an
increase in the primary fee to be paid to Brush Greenhouse Partners II, LLC, the
lessee of the BGP II Greenhouse (as defined in the O&M Agreement). Because the
contemplated amendments to the O&M Agreement will result in an amendment to the
Greenhouse Lease, a Basic Document, your consent to such amendments is required.
In addition, your consent to such amendments in also required because, pursuant
to Section 15.5 of the O&M Agreement, the parties thereto have agreed that no
change in the terms of provisions of the O&M Agreement shall be made without
your consent. We also note that the O&M Agreement has been assigned to the Agent
pursuant to that certain Collateral Assignment dated as of December 29, 1994,
and that your consent to any amendment to the O&M Agreement is required under
the Collateral Assignment.
Borrower hereby requests that you consent to the execution of the attached
letter by Borrower and RMP.
Please confirm your agreement to the terms and provisions of this letter
agreement by signing where indicated below.
Very truly yours,
THERMO COGENERATION PARTNERSHIP, L.P.
By: Thermo Ft. Xxxxxx, X.X.,
a general partner
By: Thermo Ft. Xxxxxx I, Inc.,
its general partner
By:__________________________
Xxxxx Xxxxxx, III
President
and
By: CSW Ft. Xxxxxx, Inc., a general partner
By: ___________________________
Xxxxx Xxxxxx
President
July ______, 1996
Page 3
Accepted and Agreed to this
______ day of July, 1996:
THE PRUDENTIAL INSURANCE THE FUJI BANK, LIMITED,
COMPANY OF AMERICA, as Bank Agent and as a Lender
as Lead Agent and as a Lender
By:__________________________ By:___________________________
Title:_______________________ Title:________________________
CREDIT LOCAL DE FRANCE CREDIT LYONNAIS
By:___________________________ By:___________________________
Title:________________________ Title:________________________
MELLON BANK, N.A. THE SANWA BANK, LIMITED
By:___________________________ By:___________________________
Title:________________________ Title:________________________
CAMPAGNIE FINANCIERE DE CIC ET
DE L'UNION EUROPEENE
By:___________________________
Title:________________________
