EXHIBIT 10.7
AMENDED AND RESTATED
COGENERATION AND GREENHOUSE LEASE AGREEMENT
THIS AMENDED AND RESTATED COGENERATION AND GREENHOUSE LEASE AGREEMENT,
dated as of this 1st day of June, 1992, is between BRUSH COGENERATION PARTNERS,
a Colorado general partnership ("Landlord") and BRUSH GREENHOUSE PARTNERS II
Limited Liability Company, a Colorado limited liability company ("Tenant").
RECITALS
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A. Landlord and Tenant have entered into Cogeneration and Greenhouse
Lease Agreement dated as of March 19, 1992, and desire hereby to amend and
restate such agreement in its entirety.
B. Landlord is the owner of the real property described on Exhibit A
attached hereto (the "Project Property"). Landlord is constructing a net 68
megawatt cogeneration facility on the Project Property, consisting of an
electrical generating facility (the "Power Plant"), an approximately 18-acre
greenhouse facility, an adjacent packing facility and certain related
facilities.
C. Tenant has entered into a Greenhouse Management Agreement (the
"Greenhouse Management Agreement"), dated January 22, 1992 with Spring Gardens,
Inc. pursuant to which Tenant will retain Spring Gardens, Inc. as a consultant
to assist in the construction and operation of the greenhouse facility.
D. Landlord and Tenant desire to enter into this Lease in order for
Tenant to lease the greenhouse and packing facility from Landlord and to provide
for the purchase by Tenant of the thermal output of Landlord's Power Plant for
use in heating the greenhouse. The greenhouse, the packing facility and
Landlord's Power Plant and appurtenant facilities are collectively referred to
herein as the "Project."
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereby covenant and agree as follows:
1. Premises.
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a. Landlord hereby leases to Tenant and Tenant leases from
Landlord a portion of the Project Property,
consisting of that certain real property depicted on the Plot Plan attached
hereto as Exhibit A-1, and all structures, buildings and all appurtenances,
hereditaments, and easements thereon, including the greenhouse and packing
facility to be constructed thereon (collectively, the "Premises").
b. In addition, Landlord hereby grants Tenant a nonexclusive
easement for the Term of this Lease for the use of the auxiliary equipment
building located on the Project Property and depicted on the Plot Plan attached
hereto as Exhibit A-1 (the "Auxiliary Building") for the purpose of access to
and repair, maintenance and replacement of the emergency boilers, the
fertilizer/irrigation system and any other equipment under the control of Tenant
relating to the operation of the Premises and located in the Auxiliary Building,
provided that such use does not interfere with Landlord's use of the Project
Property.
c. The Premises shall consist of an approximately 18-acre
greenhouse facility and an approximately 12,000 square feet packing facility
(which facility will include packing, storage and office facilities). It is the
parties' intention that the Premises consist of the greenhouse and the packing
facility to be constructed on the Project Property approximately in the location
depicted on Exhibit A-1 attached hereto and that this Lease and the definition
of "Premises" herein shall cover all such facilities, even if not constructed in
the exact location depicted on Exhibit A-1 attached hereto. It is also the
parties' intention that the easement to use the Auxiliary Building granted
pursuant to paragraph 1b. above cover such building even if not constructed in
the exact location depicted on Exhibit A-1 attached hereto. At such time as the
greenhouse facility, packing facility and Auxiliary Building have been
constructed, Landlord and Tenant shall enter into an amendment to this Lease
incorporating the description of the greenhouse facility and packing facility
set forth on such survey as the description of the Premises and the description
of the auxiliary building set forth on such survey as the description of the
Auxiliary Building.
d. Landlord warrants that so long as Tenant is not in default
hereunder, Tenant shall have peaceful and quiet use and possession of the
Premises, subject to any mortgage and all matters of record or other agreements
to which this Lease is or hereafter may be subordinated.
2. Term. The term (the "Term") of this Lease shall commence on the
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earlier of (i) the date specified by Landlord in a written notice from Landlord
to Tenant (the date which
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Landlord specifies the Term of the Lease is to commence is referred to herein as
the "Commencement Date") or (ii) the date on which Landlord notifies Tenant that
the greenhouse facility is completed and available for use. The Commencement
Date specified by Landlord in such notice must be on or before July 15, 1994.
Landlord may terminate this Lease in the event of default as defined
hereinafter. The Term of the Lease shall expire (unless earlier terminated as
provided elsewhere herein) upon the earlier of (i) at the election of Landlord
with the consent of Lender (as hereinafter defined), the expiration or
termination of the Category Number 4A On-System Power Purchase Agreement, dated
August 29, 1988, between CTI Partners and Public Service Company of Colorado
(the "Power Purchase Agreement") (relating to Landlord's Power Plant adjacent to
the Premises), (ii) 15 years after the Date of Commercial Operation (as such
term is defined in the Power Purchase Agreement), (iii) the date mutually agreed
to in writing by the Landlord and Tenant, with the consent of Lender, or (iv) at
the option of Lender, its successors or assigns or the holder(s) of any mortgage
or deed of trust encumbering the Premises (collectively "Lender"), upon the
declaration of a default and the acceleration of indebtedness to any Lender of
its security interest in the Premises. The provisions of this paragraph 2(iv)
were made for the express benefit of the Lender as a third party beneficiary,
and subject to the terms and conditions of this paragraph 2(iv), the Lender
shall have the right to exercise and enforce the rights granted to it herein.
3. Termination. This Lease shall terminate as provided in paragraph
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2(ii) above without the necessity of any notice from either Landlord or Tenant
to terminate the same. This Lease shall terminate as provided in paragraph 2(i)
or 2(iv) above ten days after receipt by Tenant of written notice from the
Landlord (with respect to paragraph 2(i)) or Lender (with respect to paragraph
2(iv)). To the extent permitted by law, Tenant hereby waives notice to vacate
or quit the Premises except as expressly provided above and agrees that Landlord
shall be entitled to the benefit of all provisions of the law respecting summary
recovery of possession of the Premises 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 Premises
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at the end of the Term, with the consent or permission of Landlord and Lender,
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 30 days' notice to the other party. If Tenant shall be in
possession of the Premises at
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the end of the Term without the consent or permission of the Landlord and
Lender, Tenant shall pay rent in an amount equal to twice the rental due
pursuant to paragraph 6 below for the time that Tenant holds over. Payment of
such amount by Tenant or receipt of such amount by Landlord shall not be
construed as consent by Landlord to Tenant's holding over.
5. Use. Tenant agrees to promptly plant the first crop as soon as
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is reasonably practicable at a time mutually agreed upon by the parties. Use of
the Premises shall be exclusively for the growing, processing, packaging and
marketing of tomatoes and other greenhouse products and related uses incident
thereto. Tenant agrees to use no less than 90% of the usable growing space in
the Premises for the growing of tomatoes. Tenant may use the remaining 10% of
the usable growing space in the Premises for growing such other crops as Tenant
desires. Tenant may not use more than 10% of the usable growing space in the
Premises for growing any crop other than tomatoes without the prior written
consent of Landlord and Lender. Landlord and Lender shall not unreasonably
withhold their consent to such growing of other crops provided that Tenant
establishes to Landlord's and Lender's reasonable satisfaction that such crops
are as economically viable as tomatoes under the projections presented as part
of the Application (as defined in paragraph 7(i) (below) and that the growing of
such crops will require the Greenhouse to be heated in a manner requiring the
useful application of thermal energy from the Power Plant into quantities
sufficient to maintain the Power Plant's status as a "qualifying cogeneration
facility" under the Federal Public Utility Regulatory Policies Act of 1978 and
the regulations promulgated thereunder by FERC (collectively "PURPA").
Notwithstanding the foregoing, in the event that Landlord determines that
Tenant's growing of any crops, including tomatoes in any way would fail to
require the Greenhouse to be heated in a manner requiring the useful application
of thermal energy from the Power Plant in quantities sufficient to maintain the
Power Plant's status as a qualifying cogeneration facility under PURPA, Tenant
shall immediately cease growing such crops and shall commence growing such crop
or crops as may be necessary for the Project to be a qualifying facility under
PURPA.
6. Rental.
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a. Rental Amount. Tenant shall pay during the Term of this
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Lease as rent for the Premises, without any prior demand, setoff, counterclaim,
deduction or abatement whatsoever, the sum of $850,000 per year, payable in
equal monthly installments of $70,833.33 each, which installments
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shall commence on the Commencement Date, and shall be due and payable in advance
on the first day of each and every month thereafter during the entire Term of
this Lease, except to the extent Tenant elects to defer up to the first four
monthly installments of rent as provided in paragraph 6b. below. Tenant shall
not be obligated for any rent hereunder with respect to its occupancy and use of
the greenhouse facility prior to the Commencement Date.
b. Deferral of Rent. Tenant may, at Tenant's option, defer
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payment of up to but not more than the first four monthly installments of rent
due under this Lease as set forth below. In the event that Tenant elects to
defer any monthly installments of rent hereunder, Tenant shall provide Landlord
with a notice of its intention to defer payment of such monthly installment of
rent prior to the first due date of such rental payment. Tenant may exercise
such option only if Tenant is unable to pay the rent provided hereunder out of
cash flow to Tenant from its operation of the greenhouse facility. The total
amount of monthly rent deferred in accordance with this subparagraph b. is
referred to herein as the "Deferred Rental Amount." The number of months that
payment of rental is deferred in accordance with this subparagraph b. is
referred to herein as the "Deferral Period." The Deferred Rental Amount plus
interest thereon (at the rate equal to the greater of (i) two percent per annum
above the rate of interest publicly announced or published from time to time by
Bank of America NT and SA as its "reference rate" (such reference rate being
referred to herein as the "Prime Rate") or (ii) ten percent per annum) shall be
payable in equal monthly installments commencing on the first day of the month
following the Deferral Period. If the Deferral Period is one or two months, the
Deferred Rental Amount plus interest shall be payable in nine equal monthly
installments. If the Deferral Period is three or four months, the Deferred
Rental Amount plus interest shall be payable in 18 equal monthly installments.
Tenant may, at Tenant's option, prepay all or any part of the Deferred Rental
Amount at any time, on the condition the amount of any such prepayment must be
at least $25,000.
c. Payment of Rental. Tenant shall pay all rental (including
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any Deferred Rental Amount) when due and payable, without any setoff,
counterclaim, abatement, deduction or prior demand therefor whatsoever. In
addition, any rental (other than the Deferred Rental Amount to the extent that
it is not yet due and payable) which is not paid within ten days after the same
is due shall bear interest at a default rate equal to the Prime Rate plus six
percent per annum from the first day due until paid. Unless otherwise
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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 Central Bank Denver, National Association. The payment of rent and
all other sums due hereunder is independent of each and every other covenant and
agreement contained in this Lease.
d. Limitation on Distributions. Tenant agrees that prior to
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making any distributions of profits or other sums to the partners of Tenant
pursuant to Tenant's partnership agreement, Tenant shall have (1) deposited and
there shall then be on deposit in an escrow account for the benefit of Landlord
an amount equal to one year's rental under this Lease and (2) paid the entire
Deferred Rental Amount plus all interest thereon. Such account shall be
maintained in the name of Brush Cogeneration Partners/Brush Greenhouse Partners
II LLC at Central Bank Denver, National Association or such other financial
institution as may be designated by Landlord and reasonably acceptable to
Lender; and Tenant, Landlord and Central Bank or such other financial
institution designated by Landlord and reasonably acceptable to the Lender,
shall enter into an escrow agreement acceptable to Landlord and Lender providing
that in the event Tenant fails to make any payment of rent hereunder, 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 between Landlord, Lender and Central
Bank Denver, National Association or other bank acting as escrow agent) all
amounts necessary to pay any rent and any other sums that Tenant fails to pay
hereunder. Tenant shall have no obligation to establish such account unless and
until Tenant desires to make a distribution of profit or other sums to the
partners of Tenant.
e. Payment for Additional Heat. It is the parties' intention
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that Landlord provide only the amount of thermal energy set forth in paragraph
7a.(i) below. If (i) the Landlord is operating the Power Plant in excess of the
Base Operating Level (as defined below and determined on a monthly basis) solely
for the purpose of supplying additional thermal energy to the greenhouse in
excess of the Thermal Requirement (as defined below and determined on a monthly
basis) or (ii) Lender reasonably determines that Landlord is operating the Power
Plant in excess of the Base Operating Level (determined on a monthly basis)
solely for the purpose of supplying additional thermal energy to the greenhouse
in excess of the Thermal Requirement (determined on a monthly basis), then
Tenant shall pay Landlord as additional rent an amount equal to Landlord's
cumulative marginal cost of
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operating the Power Plant above the Base Operating Level, less the cumulative
marginal revenue generated from operating the Power Plant above the Base
Operating Level, as reasonably determined by Landlord and reasonably approved by
Lender, to the extent that such amount is directly attributable to providing
such additional thermal energy in excess of the Thermal Requirement for such
month. Base Operating Level means the Power Plant thermal energy and electrical
energy output rate (determined on a monthly basis) set forth on Table 2a to the
Application (as defined below), a copy of which Table is attached hereto as
Exhibit C, as such level may be adjusted upward from time to time by the
Landlord, due to increased requirements of Public Service Company of Colorado
under the Power Purchase Agreement, such adjustment to be with the consent of
Lender.
7. Net Lease.
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a. It is the intention of the parties to this Lease that all
rents provided for herein during the Term shall be a net return to Landlord and
all expenses or charges with respect to the Premises including, by way of
example, irrigation water, maintenance, landscaping, repairs, remodeling or
alteration of the building, structures or improvements, utilities, and the like
shall be borne by Tenant and not Landlord, except as follows:
(i) As part of the rental being paid by Tenant to
Landlord hereunder, Tenant is purchasing thermal energy from the Power
Plant in such quantities as may be available to operate Tenant's
greenhouse operations in accordance with the parameters set forth in
that certain Application for a Certification of Qualifying Status as a
Cogeneration Facility (the "Application") submitted on behalf of
Landlord to the Federal Energy Regulatory Commission ("FERC"), Docket
No. QF 89-7-000. For all purposes of this Agreement, the term
Application shall include all filings, supplements and requests for
amendments and recertifications made with respect to the Project
whether or not under such docket number and whether made by or on
behalf of Landlord or any other party. Table 2a attached to the
Application (a copy of which Table is attached hereto as Exhibit C)
sets forth the amount of greenhouse heat required on a monthly basis.
The amount of greenhouse heat required set forth in Table 2a is
referred to herein as the "Thermal Requirement." For
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purposes of this Section 7(i), the Thermal Requirement shall be
determined on a weekly basis by dividing the monthly amount set forth
on Table 2a by 4.33. If the Landlord fails on a weekly basis to
provide thermal energy in an amount equal to 80% of the Thermal
Requirement for such week, and Tenant is reasonably required to
operate the emergency boilers in order to heat the greenhouse,
Landlord shall reimburse Tenant for the actual cost to Tenant of
natural gas required to operate the emergency boiler to provide
thermal energy in an amount equal to the difference between 80% of the
Thermal Requirement for such week and the actual output of thermal
energy from the Power Plant during such week. In no event shall such
reimbursement from Landlord to Tenant in any month exceed $25,000 even
if the actual gas cost incurred by Tenant exceeds that amount.
Notwithstanding the foregoing, Landlord shall have no obligation to
provide thermal energy prior to the Commencement Date. At all times
when Landlord is providing thermal energy from the Power Plant in an
amount equal to or greater than 80% of the Thermal Requirement,
Landlord will not be liable for any gas cost incurred by Tenant even
if 80% of the Thermal Requirement does not provide adequate thermal
heat for the greenhouse;
(ii) To the extent it may do so under its contractual
arrangements with the City of Brush, Landlord shall provide, at no
cost to Tenant, domestic water for employees of Tenant situated on the
Premises in amounts no greater than those customarily used in similar
greenhouse operations. As set forth in paragraph 13 below, Landlord
shall not be required to and shall not provide any water to Tenant for
irrigating the greenhouse crops;
(iii) Pursuant to paragraph 13 below, Tenant is responsible
for arranging for and paying the cost of all electrical and similar
utility service to the Premises. However, Landlord shall use
reasonable efforts to provide Tenant emergency backup electrical power
service utilizing electricity produced from the Power Plant except
that Landlord shall have no obligation to provide any such service if
to do so would (a) jeopardize its ability to meet, or
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be in conflict with, its obligation to supply power pursuant to the
Power Purchase Agreement or any replacement or successor agreement, or
to meet its own internal demand, (b) jeopardize the Project's status
as a qualifying facility under PURPA, (c) subject Landlord to rate or
other regulation as an electric company or utility, or (d) cause
Landlord to incur any cost for equipment, services or fuel not
otherwise required to operate the Power Plant. Landlord is agreeing to
attempt to provide such emergency backup electrical power to Tenant as
an accommodation to Tenant and if Landlord is unable for any reason to
provide such emergency backup service to Tenant, Tenant agrees to hold
harmless Landlord from any and all claims, demands, costs, liabilities
or damages of any nature whatsoever arising out of Landlord's failure
to provide such emergency backup electrical service for any reason. In
the event that Landlord provides emergency backup electrical service
to Tenant, Tenant shall, immediately upon demand, pay Landlord an
amount equal to the amount that Tenant would have paid its primary
provider of electrical service for such amount of electrical power;
and
(iv) Landlord shall be responsible for maintenance (but
not the cost) of "All-Risk" casualty insurance with respect to the
Premises, which insurance may be carried at the discretion of Landlord
in such amounts and with such companies as Landlord shall determine,
on the condition that Tenant shall within 15 days after written notice
from Landlord reimburse Landlord for the cost of such insurance
attributable to the Premises. Tenant shall be solely responsible for
insurance on the contents and operations of the greenhouse.
8. Taxes. Tenant shall pay in each tax year during the Term all
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real estate taxes, ad valorem taxes and assessments, general and special,
including taxes levied against the buildings or structures comprising any part
of the Premises assessed by the taxing authorities. In the event that the
Premises is taxed as a part of the Project Property, Landlord shall make a fair
and equitable apportionment of the total taxes among the remainder of the
Project Property and the Premises. Landlord shall advise Tenant, in writing, of
the amount of the taxes reasonably apportioned to the Premises
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and Tenant shall tender such amount to Landlord within 15 days of receipt of
written request from Landlord. In addition, Tenant shall be responsible for all
taxes payable to the appropriate taxing authorities for any sales, excise 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 crops, inventory, furniture, trade fixtures, improvements
installed by Tenant or by Landlord on behalf of Tenant and any other property of
Tenant. Tenant shall, upon request of Landlord, 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. Maintenance, Repairs and Alterations.
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a. Except as provided in Section 7 above, Tenant shall be
responsible for all costs of operating and maintaining the Premises and (i) all
equipment and facilities used in connection with the Premises, (ii) the
emergency boilers, (iii) the fertilizer and irrigation system, (iv) all other
equipment under the control of Tenant relating to the operation of the Premises
and located in the Auxiliary Building, (v) all piping used exclusively for the
discharge of heat from the thermal storage system (any piping used jointly for
the charge and discharge of heat from the thermal storage system shall be
maintained by Landlord), (vi) the irrigation water storage tank located on the
Project Property and (vii) pumps, piping and similar facilities associated with
any irrigation well serving the Premises and the transporting of water from such
irrigation well to the Premises (collectively, the "Related Facilities") during
the Term and Tenant hereby agrees to operate and maintain the Premises and the
Related Facilities in good condition, reasonable wear and tear excepted, and to
operate the Premises and the Related Facilities in accordance with this
Agreement and accepted industry standards throughout the Term of this Lease.
Without limiting the foregoing, Tenant shall conduct its operations so as not to
contaminate or to damage any steam, water or equipment used in the Project's
cogeneration process. Landlord shall maintain the Auxiliary Building.
b. All repairs to the Premises and the Related Facilities or
any installations of equipment or facilities therein are to be made by Tenant at
its expense. Without limiting the generality of the foregoing, Tenant shall keep
all improvements comprising a part of the Premises and the Related Facilities in
good repair and shall promptly replace the same when damaged, together with all
electrical, plumbing
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and other mechanical installations thereon. Tenant will make any and all
replacements from time to time required for the Premises and the Related
Facilities at its expense including, by way of example, the roofs on all
improvements comprising a part of the Premises. Tenant shall not make any
repairs to the Premises and the Related Facilities in excess of $25,000 (other
than emergency repairs to protect the Premises and the Related Facilities)
unless and until Tenant shall have caused the plans and specifications therefor
to have been reviewed by Landlord and shall have obtained Landlord's written
approval thereof and shall have obtained the reasonable consent of Lender. 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.
c. Tenant will surrender the Premises and the Related
Facilities 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.
d. Tenant will repair promptly, at its expense, any damage to
the Premises and the Related Facilities regardless of fault or by whom such
damage shall be caused, unless caused by Landlord or any agents, employees or
contractors in the exclusive employment of Landlord (and not the joint
employment of Landlord and Tenant).
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 in excess of $25,000 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 and the reasonable consent of
Lender. 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 on the Premises or to the Related Facilities shall be
promptly undertaken and promptly completed and need not have Landlord's prior
approval, unless such repairs or replacements materially decrease the value or
usefulness of the Premises, the Related Facilities or the Project Property.
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11. Mechanics' Liens. The Landlord's title is and always shall be
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paramount to the title of the Tenant and nothing in this Lease shall empower the
Tenant to do any act which can, shall or may encumber the title of the Landlord.
No work performed by Tenant pursuant to this Lease, whether in the nature of
erection, construction, 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 Premises or the estate of Landlord by reason of any
consent given by Landlord to Tenant to improve, alter or repair 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 lien 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 and Lender.
12. Operations.
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a. Subject to the limitations set forth in paragraph 5 above,
the Premises shall be used by Tenant exclusively for the growing and marketing
of greenhouse fruits and vegetables, using the thermal heat available from the
Power Plant. It is agreed and understood that it is Landlord's paramount
concern that continuous production of greenhouse fruits and vegetables be
undertaken so as to continuously qualify the Landlord's cogeneration facility
for the cogeneration benefits pursuant to Landlord's FERC Order, as the same may
be amended from time to time. Tenant shall continuously operate the greenhouse
facilities for the production of fruits and vegetables, and any failure to have
planted crops allowed hereunder in place, and under production for a period in
excess of 90 consecutive days in any calendar year or for a total number of days
in any calendar year greater than 120 shall be considered an event of default
under this Lease. Tenant warrants that it will promptly pay all of its bills,
including labor costs, and any judgments, liens, or the like which may threaten
Tenant's performance of its obligations under this Lease or the continued
operation and maintenance of the Premises or the status of the cogeneration
facility as a qualifying facility under Landlord's FERC Order. 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 days' notice to Tenant, and any claims paid by Landlord on
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behalf of Tenant will become immediately due and owing to Landlord and Landlord
may collect such sums paid together with default interest at the Prime Rate plus
six percent per annum.
b. Tenant shall, at all times, keep the Premises in a neat and
orderly condition. Specifically by way of example and not by way of limitation,
Tenant 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 Premises at Tenant's expense.
13. Utilities. Except as set forth in paragraph 7 above with respect
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to thermal water from the Power Plant and certain domestic water for use in the
Premises, Tenant shall be responsible for providing and paying for all utilities
of any nature whatsoever used in connection with the Premises, including but not
limited to the following:
a. Tenant shall pay for all costs associated with irrigation
water required in connection with the operation of the Premises including all
costs and expenses required in connection with the maintenance, repair or
operation of the irrigation system supplying water to the Premises, the
treatment of the water produced by such well or xxxxx and any other cost or
expense of Landlord under the Water Lease Agreement dated as of November 1, 1991
(as amended from time to time), among Landlord, Colorado Power Partners and
Xxxxxxxxx Farms Company, or such replacement water lease as Landlord may obtain.
Tenant shall also take and use quantities of water pursuant to such lease as may
be necessary to maintain the validity and priority of the permit or decree
associated with such lease.
b. Tenant shall pay the cost of wastewater discharge to the
City of Brush from the Premises. Landlord does not currently intend to
separately meter Tenant's discharge of wastewater from the Premises.
Accordingly, Landlord shall reasonably apportion the total charges imposed by
the City of Brush for the discharge of wastewater from the Premises and the
Project Property between Landlord and Tenant based upon the amount of wastewater
discharged to the City of Brush by each party.
c. Tenant shall be responsible for arranging for and paying for
all electrical service to the Premises.
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14. Indemnity and Insurance.
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a. Indemnity by Tenant. To the extent permitted by law, Tenant
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shall and does hereby agree to indemnify Landlord and Lender and the officers,
directors, employees, representatives, invitees and agents of each
(collectively, the "Indemnified Parties") and save the Indemnified Parties
harmless and, at the Indemnified Parties' option, defend the Indemnified Parties
from and against any and all claims, actions, damages, liabilities and expenses
including attorneys' fees or professional fees and expenses, in connection with
the loss of life, personal injury and/or damage to property and any other claim
arising from and out of the occupancy or use by Tenant of the Premises or the
Related Facilities occasioned wholly or in part by any act or omission of
Tenant, its officers, agents, directors, employees or invitees.
b. Tenant Insurance. At all times after the Commencement Date,
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Tenant will carry and maintain, at its expense:
(i) public liability insurance including insurance
against assumed or contractual liability under this Lease, in such
amounts as Landlord may reasonably request;
(ii) all-risk casualty insurance covering all of Tenant's
personal property on the Premises including all leasehold improvements
installed in the Premises by or on behalf of Tenant in such amounts as
Landlord may reasonably request;
(iii) if and to the extent required by law, worker's
compensation or similar insurance in form and amounts required by law;
and
(iv) such other insurance as Landlord may require,
including but not limited to insurance that Landlord is required to
provide pursuant to the terms of any applicable credit agreement
between Landlord and Lender.
c. Insurance Provisions: The company or companies writing such
--------------------
insurance, as well as the form of such insurance shall at all times be subject
to Landlord's and Lender's approval. Public liability and all-risk casualty
insurance policies evidencing such insurance shall name
-14-
Landlord or its designee and Lender as additional insured, and shall contain
such other provisions and endorsements as Landlord may request.
d. Evidence of Insurance. Before the date on which such
---------------------
insurance first is required to be carried by Tenant, and thereafter, at least 30
days before the effective date of renewal of any such policy, Tenant will
deliver to Landlord either a duplicate original of the aforesaid policy or a
certificate evidencing such insurance.
15. Performance by Landlord. If Tenant shall fail to perform any of
-----------------------
its obligations under this Lease, Landlord may perform the same and the cost of
same shall be charged to Tenant and Tenant agrees, upon five days' written
notice, to pay Landlord promptly the cost thereof with default interest at the
Prime Rate plus six percent per annum until paid.
16. Condemnation.
------------
a. If the whole or any part of the Premises 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 may, but shall have no obligation to make such
repairs and alterations as may be necessary in order to restore the part not
taken to useful condition. If Landlord elects to make such repairs, this Lease
shall remain in full force and effect and Landlord shall make an equitable
adjustment in the rent to reflect the reduction, if any, in Tenant's ability to
utilize the Premises for greenhouse operations resulting from such taking. If
the aforementioned taking renders the remainder of the Premises unsuitable for
the permitted use and Landlord does not elect to make repairs necessary to
restore the part not taken to useful condition, either party may terminate this
Lease as of the date when Tenant is required to yield possession by giving
notice to that effect within thirty (30) days after such date. In the event that
Tenant remains in possession of the Premises after such taking, Tenant shall
continue to pay rent through the date of termination of this Lease.
b. All compensation awarded for any taking of the Premises or
any interest therein shall belong to and be the property of Landlord, and Tenant
hereby assigns 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, or the
expense of removal of Tenant's trade fixtures, or loss of Tenant's business
-15-
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.
17. Assignments and Subletting; Landlord's Consent Required. Tenant
-------------------------------------------------------
shall not assign, transfer or encumber this Lease in whole or in part or sublet
all or any part of the Premises without first obtaining the consent of Landlord
and Lender, which consent shall be in the sole and absolute discretion of
Landlord and Lender.
18. Compliance with Laws and Regulations and Certain Agreements.
-----------------------------------------------------------
Tenant, at its sole cost and expense, shall comply with, shall operate and
maintain the Premises and Related Facilities in compliance with and shall cause
the Premises and the Related Facilities to comply with (i) all federal, state,
county, municipal and other governmental statutes, laws, rules, orders,
regulations and ordinances and any permits affecting any part of the Premises or
the Related Facilities, 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 those relating to disposal of any
hazardous waste generated by the Premises or the Related Facilities and the
obtaining of any permits required for a small quantity waste generator or
otherwise, (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 or the Related Facilities, and (iii) the terms and
conditions of the Wastewater Agreement (insofar as such agreement regulates and
limits wastewater discharges from the Premises) so as not to jeopardize
Landlord's wastewater disposal rights thereunder (as reasonably determined by
Landlord) and the Grant Agreement (insofar as such agreement requires the hiring
of certain numbers of moderate and low-income workers), both dated August 12,
1991, between the City of Brush and CTI Partners, Landlord's predecessor in
interest.
19. Default.
-------
a. Event of Default Defined. 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
-16-
similar legal process or, if Tenant is adjudicated a bankrupt or
insolvent and such adjudication is not vacated within ten days;
(ii) the filing of a voluntary or involuntary bankruptcy
or insolvency petition of Tenant or any guarantor, 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 withdrawn or dismissed within 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;
(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 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 to pay any rental or any other sum
of money due hereunder within ten days after the same is due
hereunder;
(vii) failure by Tenant to observe or perform any of the
covenants in respect of assignment and subletting;
(viii) failure by Tenant to cure forthwith, immediately
after the earlier of actual knowledge by Tenant or receipt of notice
from Landlord, any hazardous condition which Tenant has created or
allowed to exist in violation of law or of this Lease;
(ix) default by Tenant in the performance or observance of
any other covenant or agreement of this Lease (other than a default
involving the payment of money or as listed above
-17-
in paragraph 19(i) through (viii)), which default is not cured within
30 days after the giving of notice thereof by Landlord, unless such
default is of such a nature that it cannot be cured within such 30-day
period, in which case no event of default shall occur so long as (A)
Landlord shall determine that the status of the Power Plant as a
qualifying cogeneration facility under PURPA is not jeopardized by
such delay, and (B) Tenant shall promptly commence the curing of the
default within such 30-day period and shall thereafter diligently
prosecute the curing of same but in no event shall such 30-day period
be extended for more than a total of 90 days;
(x) 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 allowed hereunder in place for the production of fruit
or vegetables for a period greater than 90 consecutive days in any
calendar year or for a total number of days in any calendar year
greater than 120;
(xi) default by Tenant under the Working Capital Credit
Agreement, Security Agreement and Financing Statement (the "Credit
Agreement") of even date herewith between Landlord and Tenant, a copy
of which agreement is attached hereto as Exhibit B, unless such
default is cured within any applicable cure period as set forth in the
Credit Agreement; and
(xii) default by Tenant under the Greenhouse Management
Agreement, unless such default is cured within any applicable cure
period as set forth in the Greenhouse Management Agreement.
b. Remedies. Upon the occurrence and continuance of an event
--------
of default, Landlord, without notice to Tenant in any instance (except where
expressly provided for below or by applicable law) shall have any one or more of
the following rights in addition to all other rights and remedies provided
elsewhere herein or at law or in equity;
(i) perform, on behalf and at the expense of Tenant, any
obligation of Tenant under this Lease which Tenant has failed to
perform and
-18-
of which Landlord shall have given Tenant notice, the cost of which
performance by Landlord, together with interest thereon at the default
rate equal to the Prime Rate plus six percent per annum from the date
of such expenditures, shall be deemed additional rental and shall be
payable by Tenant to Landlord upon demand;
(ii) elect to terminate this Lease and the tenancy created
hereby by giving notice of such election to Tenant, and reenter 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;
(iii) after giving notice to Tenant, elect to terminate
Tenant's right of possession and immediately repossess the Premises by
legal proceedings, force or otherwise, without terminating this Lease
and reenter 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 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 records relating to the
operation of the greenhouse including, without limitation, all
customer lists and marketing plans relating to the greenhouse and
ancillary facilities and the Related Facilities; or
-19-
(v) exercise any other legal or equitable right or remedy
which it may have.
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. If this Lease is terminated pursuant
to this Section 19(b), then, if requested by Landlord or its assigns, Tenant
shall assign to Landlord or its assigns Tenant's rights under the Greenhouse
Management Agreement.
20. Damages. If this Lease is terminated by Landlord pursuant to the
-------
default provisions of this Lease, Tenant nevertheless shall remain liable for
any rental and any other additional sums or damages which may be due or for
which Tenant is liable, or in respect of which Tenant has agreed to indemnify
Landlord under any of the provisions of this Lease or sustained by Landlord
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 in pursuit of its remedies hereunder, or in renting the
Premises to others from time to time (all such rental, other sums, damages,
costs, fees and expenses being referred to herein collectively as "Termination
Damages"). In addition to Termination Damages and all other damage remedies
available to Landlord under any applicable law, Tenant agrees that, at the
election of Landlord, Landlord shall be entitled to either of the following
damage remedies:
a. An amount equal to the rental which, but for termination of
this Lease, would have become due during the remainder of the Term, less the
amount of rental, if any, which Landlord shall receive during such period from
others to whom the Premises may be rented, which such damages shall be computed
and payable in monthly installments, in advance, on the first day of each
calendar month following termination of the Lease and continuing until the date
on which the Term would have expired but for such termination; any suit or
action brought to collect any such damages for any month shall not in any manner
prejudice the right of Landlord to collect any similar damages for any
subsequent month by a similar proceeding; or
b. An amount equal to the present value (as of the date of such
termination and discounted at the rate of 10% per annum) of rental which, but
for termination of this Lease, would have become due during the remainder of the
Term, less the fair rental value of the Premises for the remainder of the Term
(discounted at the same rate) as determined by an
-20-
independent real estate appraiser named by Landlord (the cost of which appraiser
shall be borne equally by Landlord and Tenant), in which case such damages shall
be payable to Landlord in one lump sum on demand and shall bear default interest
at the Prime Rate plus six percent per annum until paid.
21. Subordination and Attornment.
----------------------------
a. Tenant agrees that its rights under this Lease are and shall
remain subject and subordinate to the operation and effect of any mortgage, deed
of trust or security agreement given by Landlord for the benefit of Lender, and
to any other mortgage, indenture, deed of trust or other encumbrance, together
with any conditions, renewals, extensions, modifications, consolidations or
replacements thereof, now or hereinafter affecting or placed, charged or
enforced against all or any portion of the Premises. This clause shall be self-
operative and no further instruments or subordination shall be required in order
to effectuate it. Nevertheless, Tenant shall execute, acknowledge and deliver
to Landlord at any time and from time to time, upon demand of Landlord, such
documents as may be requested by Landlord or such mortgagee or trustee to
confirm or effectuate any subordination hereunder.
b. Tenant agrees that if Lender obtains title to the Premises,
or if Lender notifies the Tenant that Landlord is in default thereunder, Tenant
will pay to Lender or Lender's designees all rent subsequently payable
hereunder. Further, Tenant agrees that in the event Lender obtains title to the
Premises, Tenant will, upon request of any such party, automatically become the
Tenant of and attorn to such successor in interest without changing the terms
and provisions of the Lease.
22. Notices.
-------
Notices and other communications with respect to this Lease shall
be in writing and shall be delivered by hand or overnight courier service,
mailed or sent by telecopy. Unless other addresses or telecopy numbers are
specified in writing pursuant to this Section 21 to each other party to this
Lease, such notices or other communications shall be sent to the following
addresses or telecopy numbers, as the case may be:
-21-
(a) if to Landlord, at:
Brush Cogeneration Partners
0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxxx
with a copy to:
Xxxx X. Power Partners, L.P.
c/o Ark Energy, Inc.
00000 Xxxxx Xxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
(b) if to Tenant, at:
Brush Greenhouse Partners II Limited
Liability Company
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Esq.
(c) if to Lender, at such address as Landlord shall notify Tenant
from time-to-time:
All notices and other communications given to the parties hereto shall be deemed
to have been given on the date of receipt.
23. FERC Requirement Compliance. Tenant, by the execution hereof,
---------------------------
covenants and agrees that the annual useful thermal output available from the
Power Plant provided by Landlord will be used by Tenant to heat the greenhouse
facility, and that Tenant shall take and consume for useful purposes such
amounts of thermal energy as are required by, and shall otherwise comply with,
the terms of the annual thermal usage and output requirements required under
PURPA to maintain the Power Plant's status as a qualifying cogeneration facility
and to comply with that certain Order Granting Application for Certification as
a Qualifying Cogeneration Facility ("FERC Order") issued February 21, 1992, by
FERC, Docket No. QF 89-7-000, and in compliance with the description of
greenhouse operations contained in the Application, a copy of which has
previously been furnished to Tenant. In the event the FERC Order is amended or
that operating conditions in the Power Plant require that Tenant change its
thermal energy consumption rates, Tenant agrees to comply with all requests of
Landlord to assure maintenance of the Power Plant's status as a qualifying
cogeneration facility under
-22-
PURPA whether the requirements for the maintenance of such status are set forth
in such amended FERC Order, any application made by Landlord in connection
therewith, or otherwise, provided that if in order to take and consume for
useful purposes thermal energy in excess of what is practicable using the
greenhouse structure then in place, any enlargement or material alteration to
the greenhouse is necessary, the cost of such enlargement or alteration shall be
borne by Landlord. Landlord shall have the right to monitor Tenant's compliance
with the requirements described herein.
24. Miscellaneous.
-------------
a. Estoppel Certificates. At any time and from time to time,
---------------------
within ten days after Landlord or any Lender shall request the same, Tenant will
execute, acknowledge and deliver to Landlord and to such Lender or such other
party as may be designated by Landlord an estoppel certificate and consent to
collateral assignment 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 or such Lender.
If Tenant fails to provide such certificate within ten days after request by
Landlord therefor, Tenant shall be deemed to have approved the contents of any
such certificate submitted to Tenant by Landlord or such Lender and Landlord is
hereby authorized to so certify.
b. Inspections and Access by Landlord. Tenant will permit
----------------------------------
Landlord, its agents, employees and contractors and Lender and its
representative to enter all parts of the Premises during Tenant's business hours
to inspect the same and to enable Landlord to enforce or carry out any provision
of this Lease including, without limitation, any access necessary for the making
of any repairs that are Landlord's obligation hereunder.
c. Right of Access by Tenant. Tenant shall have the right to
-------------------------
use areas reasonably designated by the Landlord for ingress and egress to the
Premises and for loading and unloading operations directly related to the
Premises. Tenant shall be responsible for and agrees to immediately repair any
damage to such areas and indemnify and hold harmless the Indemnified Parties
from any damage resulting from Tenant's use of such areas and to hold harmless
the Indemnified Parties from any and all claims of any nature whatsoever arising
out of Tenant's use of such areas.
d. Remedies Cumulative. No reference to any specific right or
-------------------
remedy shall preclude Landlord from
-23-
exercising any other right or from 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 or 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 shall affect or alter this Lease in any way whatsoever.
e. Successors and Assigns. 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 Lender. 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
Landlord's obligations under this Lease occurring thereafter. The Lender shall
not be deemed such a purchaser, successor or assignee hereunder.
f. No Joint Venture. Any intention to create a joint venture
----------------
or partnership relation between the parties hereto is hereby expressly
disclaimed.
g. No Modification. 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. 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.
h. Severability. 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 valid and be
enforced to the fullest extent permitted by law.
-24-
i. Applicable Law. This Lease and the rights and obligations
--------------
of the parties hereunder shall be construed in accordance with the laws of the
State of Colorado.
j. Waiver of Jury Trial. Landlord and Tenant hereby mutually
--------------------
waive any and all rights (only pertaining to Landlord and Tenant with regard to
this Lease) that either may have to request a jury trial in any proceeding at
law or in equity in any court of competent jurisdiction.
k. Non-recourse. Notwithstanding anything to the contrary
------------
contained in this Lease, in the event of any claim, demand, cause of action or
judgment against Landlord, Tenant shall have no recourse against any of the
partners of Landlord (or any of the partners of such partners) or against any of
the assets of any of the partners of Landlord (or any of the partners of such
partners), except to the extent that such assets are also assets of Landlord.
l. Representations of Tenant. Tenant represents and warrants
-------------------------
to Landlord that this Lease constitutes the valid and binding obligation of
Tenant and each and every partner of Tenant. The execution and delivery of this
Lease has been duly authorized by all necessary action by Tenant and the person
executing this Lease on behalf of Tenant is duly authorized and has all
necessary power and authority to act on behalf of Tenant.
m. Delivery and Possession. If the Landlord shall be unable to
-----------------------
give possession of the Premises to Tenant on the date of the Commencement Date
for any reason, Landlord shall not be subject to any liability for failure to
give possession to Tenant. Under such circumstances, the rent reserved and
covenanted to be paid herein shall not commence until the Premises are available
for occupancy, and no such failure to give possession on the date of
commencement of the Term shall affect the validity of this Lease or the
obligations of the Tenant hereunder, nor shall the same be construed to extend
the Term. The Premises shall not be deemed to be unready or unavailable for
Tenant's possession or occupancy or incomplete if only minor or insubstantial
details of construction, decoration or mechanical adjustments remain to be done
in the Premises or any part thereof, or if the delay in the availability of the
Premises for occupancy shall be due to special work, changes, alterations or
additions required or made by Tenant in the layout or finish of the Premises or
any part thereof, or shall be caused in whole or in part by Tenant through the
delay of Tenant in submitting plans, supplying information, approving plans,
specifications or estimates, giving authorizations or otherwise, or shall be
-25-
caused in whole or in part by delay or default on the part of Tenant.
n. Lender Protection. Tenant agrees to give any Lender by
-----------------
registered or certified mail, a copy of any notice or claim of default served
upon the Landlord by Tenant, provided that prior to such notice Tenant has been
notified in writing (by way of service on Tenant of a copy of an assignment of
Landlord's interests in leases, or otherwise) of the address of such Lender.
Tenant further agrees that if Landlord shall have failed to cure such default
within 20 days after such notice to Landlord (or if such default cannot be cured
or corrected within that time, then such additional time as may be necessary if
Landlord has commenced within such 20 days and is diligently pursuing the
remedies or steps necessary to cure or correct such default), then any Lender
shall have an additional 30 days within which to cure or correct such default
(or if such default cannot be cured or corrected within that time, then such
additional time as may be necessary if such Lender has commenced within such 30
days and is diligently pursuing the remedies or steps necessary to cure or
correct such default, including the time necessary to obtain possession if
possession is necessary to cure or correct such default).
o. Entire Agreement. This Lease sets forth the entire
----------------
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes and replaces all prior written agreements,
negotiations and oral understandings, if any, with respect thereto.
p. Landlord's Liability. Tenant hereby agrees that neither
--------------------
Landlord nor its agents, employees or invitees shall be liable for injury to
Tenant's business or any loss of income therefrom or for damage to the goods,
wares, merchandise or other property of Tenant, Tenant's employees, invitees,
customers or any other person in or about the Premises, nor shall Landlord, its
agents, employees or invitees be liable for injury to the person of Tenant,
Tenant's employees, agents or contractors whether such damage or injury is
caused by or results from fire, steam, electricity, gas, water or rain, or from
the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from any other
cause of whatsoever nature, unless the damage or injury is proximately caused by
or due to the negligence of Landlord, its agents, employees or invitees, whether
the said damage or injury results from conditions arising upon the Premises or
upon other portions of the
-26-
Project Property of which the Premises are a part, or from other sources or
places and regardless of whether the cause of such damage or injury or the means
of repairing the same is inaccessible to Tenant. Landlord shall not be liable
for any damages arising from any act or neglect of any other tenant, if any, of
the building in which the Premises are located.
IN WITNESS WHEREOF, the parties hereto intending to be legally bound
hereby have executed this Lease as of the day and year first above written.
LANDLORD:
BRUSH COGENERATION PARTNERS
By: [SIGNATURE ILLEGIBLE]
----------------------------------
Management Committee Member
TENANT:
BRUSH GREENHOUSE PARTNERS II
LIMITED LIABILITY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Manager
-27-
EXHIBIT A
---------
(Description of the BCP Parcel)
That part of the Northeast Quarter (NE1/4) of Section 10, Township 3 North,
Range 56 West of the Sixth Principal Meridian, Xxxxxx County, Colorado,
described as commencing at a point on the East side of said NE1/4, said point
being 1327.3 feet south of said NE corner of the NE1/4 and considering the east
side of said NE1/4 as bearing N 00 degrees 00 minutes 00 seconds E with all
other bearings relative thereto; thence N 89 degrees 36 minutes W and parallel
with the south side of the Platte and Beaver Improvement Company's Addition to
the Town of Brush, Colorado 750.0 feet; thence N 00 degrees 00 minutes 00
seconds E 238.3 feet to the south line of said Platte and Beaver Addition;
thence N 89 degrees 36 minutes W along the south line of said Platte and Beaver
Addition 1916.9 feet to the West line of said NE1/4 of Section 10; thence S 00
degrees 20 minutes W along the West line of said NE1/4 1126.S feet; thence N 90
degrees 00 minutes 00 seconds E 675.3 feet; thence N 00 degrees 00 minutes 00
seconds E 370.41 feet; thence N 90 degrees 00 minutes 00 seconds E 1998.1 feet
to a point on the east side of said NE1/4; thence N 00 degrees 00 minutes 00
seconds E along said east side 499.24 feet to the point of beginning.
EXHIBIT A-1
[GRAPHS APPEARS HERE]
XXXXX DESCRIPTION -TO COME-