EXHIBIT 10.13
SUPPLEMENTAL AGREEMENT
AND CONSENT TO ASSIGNMENT
THIS SUPPLEMENTAL AGREEMENT AND CONSENT TO ASSIGNMENT ("Supplemental
Agreement"), effective as of the 7th day of April 1993, by and between THERMO
COGENERATION PARTNERSHIP, L.P., a Delaware limited partnership ("Thermo"), and
ROCKY MOUNTAIN PRODUCE LIMITED LIABILITY COMPANY, a Colorado limited liability
company ("Rocky Mountain"), and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, as
a lender (hereinafter, together with any successors or assigns in such capacity,
referred to as "Prudential") and as lead agent (hereinafter, with any successors
and assigns in such capacity, referred to as the "Lead Agent") for the Secured
Parties under the Construction and Term Loan Agreement dated as of April 7,
1993, among Thermo, Prudential, and CSW Energy, Inc., and the other financial
institutions named therein as lenders, the Lead Agent and CSW Energy, Inc., as
Bank Agent (as amended from time to time, the "Loan Agreement").
RECITALS:
A. On March 22, 1993, Rocky Mountain entered into with Thermo
Cogeneration Partnership, a Colorado partnership, a Thermal Supply Lease
Agreement (the "Assigned Agreement"), which Assigned Agreement contains, among
other things, the agreement of the parties as to (i) the construction of a
twenty (20) acre (more or less) commercial greenhouse (the "Facility") on
certain real property (the "Land") owned by Thermo
in Fort Xxxxxx, Colorado, (ii) the leasing of such Land and the Facility by
Thermo to Rocky Mountain, (iii) the operation of the Facility by Rocky Mountain
for the commercial production of agriculture products, and (iv) the agreement by
Thermo to supply, and Rocky Mountain to utilize, Rocky Mountain's thermal energy
requirements for such agricultural production at the Facility from Thermo's
cogeneration plant (the "Plant") to be constructed on the site (the "Project
Site") of which the Land is part:
B. In order to facilitate financing and construction of the Plant and
the Facility, Thermo Cogeneration Partnership has assigned the Assigned
Agreement to Thermo, and Thermo, acting in the capacity of borrower, has entered
into the Loan Agreement. Thermo has also, in accordance with the requirements
of the Loan Agreement, collaterally assigned all of its right, title and
interest in, to and under the Assigned Agreement to Lead Agent pursuant to the
Collateral Assignment dated as of April 7, 1993 (the "Collateral Assignment").
It is a condition precedent to the initial funding by Lenders under the Loan
Agreement that Rocky Mountain execute and deliver this Supplemental Agreement.
C. Pursuant to that certain Project Management Agreement dated as of
December 21, 1992 (the "Project Management Agreement") between Thermo Project
Management, Inc., a Colorado corporation ("Project Manager"), and Thermo (as
assignor or successor to Thermo Cogeneration Partnership), Thermo has appointed
Project Manager as its agent to carry out and enforce the Assigned Agreement
within the scope of Project Manager's obligations under the Project Management
Agreement.
D. The Loan Agreement contains certain terms and conditions that, during
its term, will impact not only Thermo, but also Rocky Mountain as lessee and
Facility Operator under
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the Assigned Agreement, and will place certain restrictions and impose certain
obligation on Thermo as lessor and owner and Rocky Mountain as lessee and
operator with respect to the construction, leasing, and operation of the
Facility and the Plant; and
E. By entering into this Supplemental Agreement, the parties desire to
(i) acknowledge the existence of such terms and conditions in the Loan
Agreement, (ii) supplement the terms of the Assigned Agreement in certain
instances in which the Loan Agreement contains additional or more detailed terms
and conditions dealing with similar subjects as dealt with in the Assigned
Agreement, and (iii) provide in certain instances that the terms and conditions
of this Supplemental Agreement and the Loan Agreement shall, to the extent
specifically expressed herein, supersede and prevail over any conflicting
provisions of the Assigned Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained in this Supplemental Agreement, the parties agree as
follows:
1. Definitions. Capitalized terms used herein (including in the
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schedules attached hereto) have the meanings set forth herein, or if not
defined herein the meanings set forth in the Assigned Agreement, and if not
defined herein or in the Assigned Agreement, in the Loan Agreement. The Secured
Parties (as defined in the Loan Agreement) are sometimes referred to herein as
"Assignee."
2. Term. This Supplemental Agreement shall remain in full force and
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effect for the benefit of Lead Agent and the lenders under the Loan Agreement,
and their respective successors and assigns, until the earlier of expiration or
earlier termination of all obligations of Rocky Mountain under the Assigned
Agreement, or until such time as all loans, commitments, and obligations
incurred by Thermo under the Loan Agreement, the Notes, or any collateral or
other documents
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entered into in connection therewith (the "Obligations") have been duly paid and
performed ("Termination"); provided, however, that the provisions of section 6
of this Supplemental Agreement shall survive the expiration or complete
termination of the Assigned Agreement; and, provided further, that is the Lead
Agent or the lenders shall initiate action because of an Event of Default by
Thermo under the Loan Agreement, and as a result of such action the rights of
Thermo in the Facility, the Land, the Plant, or the Project Site shall be
terminated by foreclosure or otherwise, any assignee or any transferee of the
rights of Thermo in the Facility, the Land, the Plant, or the Project Site shall
also be entitled to enjoy the benefits of, and to exercise the rights conferred
on, the Lead Agent and the lenders under such section 6. From and after the time
of Termination, the matters covered by this Supplemental Agreement shall be
governed solely as provided in the Assigned Agreement, as the same may have been
amended in the interim, and this Supplemental Agreement shall automatically
become null and void and be of no further force and effect, except as is
otherwise, provided in the preceding sentence. Any extension of time for payment
or performance of the Obligations, whether by amendment, modification or
supplementation of the Loan Agreement or otherwise, shall extend the time for
Termination. After Termination, neither the prior effectiveness of this
Supplemental Agreement nor the text of any provision herein which does not
expressly survive such termination shall have any effect whatsoever on the
construction or interpretation of the Assigned Agreement.
3. Representations and Warranties. Rocky Mountain hereby represents and
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warrants to Thermo and to Prudential as follows:
3.1 Duly Organized, Etc. (a) Rocky Mountain is a limited liability
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company duly organized, validly existing, and in good standing under the laws of
the State of Colorado. Rocky Mountain is not engaged in any business except the
business of developing.
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constructing, and operating the Facility pursuant to the Assigned Agreement.
Rocky Mountain shall not become engaged in any other business unless it shall
first have obtained the prior written consent of Thermo.
(b) Rocky Mountain has the power, authority and legal right to
execute, deliver and perform the Assigned Agreement and this Supplemental
Agreement, and the execution and delivery by Rocky Mountain of the Assigned
Agreement and this Supplemental Agreement and the performance of its obligations
hereunder and thereunder have been duly authorized by all necessary action and
do not and will not (i) require any consent or approval of any member of Rocky
Mountain except for those approvals which have been duly obtained and are in
full force and effect, (ii) violate the articles of organization of Rocky
Mountain or any provision of any law, rule, regulation, or any order, writ,
judgment, injunction, decree, determination or award presently in effect having
applicability to Rocky Mountain, (iii) result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other agreement,
lease or instrument to which Rocky Mountain is a party or by which it or its
properties may be bound or affected, or (iv) result in, or require, the creation
or imposition of any lien, security interest, charge or encumbrance upon or with
respect to any of the properties now owned or hereafter acquired by Rocky
Mountain. The members of Rocky Mountain have approved the Assigned Agreement
and, consequently, the condition referred to in paragraph 21.3 of the Assigned
Agreement has been satisfied.
(c) Each of the Assigned Agreement and this Supplemental
Agreement has been duly executed and delivered and constitutes a valid and
binding obligation of Rocky Mountain, enforceable against Rocky Mountain in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally.
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(d) Except as set forth in Section XX hereof, no consent or
approval of, or other action by or any notice or filing with, any court or
administrative or governmental body or any other person (except those previously
obtained) is required in connection with the execution and delivery of the
Assigned Agreement or this Supplemental Agreement or the performance by Rocky
Mountain of its obligations hereunder or thereunder. Rocky Mountain has obtained
all permits, licenses, approvals, consents and exemptions with respect to the
performance of its obligations under the Assigned Agreement and this
Supplemental Agreement required by applicable laws, statutes, rules and
regulations in effect as of the date hereof.
(e) Rocky Mountain is not in default with respect to the
Assigned Agreement and has no knowledge, as of the date of execution hereof, of
any claims or rights of set-off by Rocky Mountain or by any of its affiliates or
parent against Thermo.
(f) There are no proceedings pending or, to the best of Rocky
Mountain's knowledge after due inquiry, threatened against or affecting Rocky
Mountain in any court or before any governmental authority or arbitration board
or tribunal (whether or not purportedly on behalf of Rocky Mountain) which may
result in a material adverse effect upon the property, business, prospects,
profits or condition (financial or otherwise) of Rocky Mountain, or the ability
of Rocky Mountain to perform its obligations under the Assigned Agreement or
this Supplemental Agreement; and Rocky Mountain is not in default with respect
to any order of any court, governmental authority or arbitration board or
tribunal.
3.2 Governmental Approvals and Other Consents and Approvals. Except
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as set forth on Schedule 3.2 attached hereto, no Governmental Approvals or other
consents or approvals are required to be obtained by Rocky Mountain in
connection with (a) the participation by Rocky Mountain in the transactions
involved in the Assigned Agreement or the execution, delivery,
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or performance by Rocky Mountain of the Assigned Agreement, the Supplemental
Agreement or any documents related to the Assigned Agreement, or (b) the use,
ownership, lease, operation, or maintenance of the Facility in accordance with
the applicable provisions of any such documents and in compliance with all
applicable laws, including Environmental Laws. Each of the Governmental
Approvals and other consents and approvals listed in Part A of Schedule 3.2 has
been duly obtained or made, validly issued, is in full force and effect and is
not subject to appeal or judicial, governmental, or other review, except as
disclosed on such Schedule. None of the Governmental approvals and other
consents and approvals listed in Part B of Schedule 3.2 is required to be
obtained in order to be in compliance in all respects with all requirements of
law as of the date hereof. Rocky Mountain has no reason to believe that any of
the Governmental Approvals and other consents and approvals listed in Part B of
Schedule 3.2 cannot or will not be obtained or made in the normal course of
business as and when required (as set forth in Schedule 3.2) and without
significant expense. All contracts, Governmental Approvals, entitlements and
other property owned by Rocky Mountain and used in connection with the Facility
shall, upon the Commencement Date of the Lease Term under the Assigned
Agreement, be held by Rocky Mountain free and clear of any Lien, other than (a)
liens incurred by Rocky Mountain in the ordinary course of business to secure
lines of credit for working capital, (b) liens for personal property taxes, the
payment of which is not then due, (c) carrier's, warehousemen's, repairmen's and
other like liens arising in the ordinary course of business or incidental to the
operation of the Greenhouse which secure payment of sums which are not
delinquent, and (d) liens (other than any lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security
payments. Rocky Mountain shall not create any Lien on any property of Thermo or
suffer to exist any Lien on such property of Thermo which arises as a result of
any action or inaction of Rocky Mountain or any of its Affiliates. Any such Lien
shall
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be discharged by Rocky Mountain to the same extent and in the same manner as is
required under paragraph 8.8 of the Assigned Agreement.
3.3 No Proceeding or Litigation. No litigation, investigation, or
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proceeding of or before, or any inquiry by, any arbitrator or Governmental
Authority is pending or, to the knowledge of Rocky Mountain, threatened, against
or affecting Rocky Mountain, any Greenhouse Affiliate of Rocky Mountain or
against or affecting any of the properties, rights, revenues, assets, or
facilities of Rocky Mountain or any such Greenhouse Affiliate.
3.4 Agreements and Licenses. No licenses, trademarks, patents,
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copyrights, or agreements with respect to the usage of technology or other
permits (other than those constituting Governmental Approvals referred to in
Schedule 3.2) are required to be obtained by Rocky Mountain for the
construction, development, ownership, operation, or maintenance of the Facility.
4. Option to Purchase Suspended. Anything in the Assigned Agreement to
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the contrary notwithstanding, Rocky Mountain shall not be entitled to exercise
the rights conferred under section 5 or be deemed to have exercised such rights
under section 12 of the Assigned Agreement to purchase the Facility (or the
Land) at any time there remains unpaid any indebtedness under the Loan Agreement
unless, at the time of such exercise, Thermo shall have obtained Prudential's
approval (which approval may be withheld in Prudential's sole discretion) of
alternative thermal use arrangements, including all appropriate regulatory and
administrative approvals and filings, for thermal energy produced by the Plant.
Thermo shall from time to time inform Rocky Mountain upon inquiry whether any
such indebtedness is outstanding. Upon receipt of a notice by Rocky Mountain of
its intention to exercise its rights under section 5 of the Thermal Supply
Agreement,
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Thermo shall notify Rocky Mountain whether Thermo shall have obtained
Prundential's approval of alternative thermal use arrangements and, if so, the
purchase price payable by Rocky Mountain. Such price shall be the "Option
Purchase Price," determined in the manner provided in paragraph 5.2 of the
Assigned Agreement, plus such additional sum as may be payable pursuant to
paragraph 5.5 of the Assigned Agreement should Rocky Mountain also purchase the
Land as provided in such paragraph. At the closing of such sale, Thermo shall
obtain from Lead Agent and deliver to Rocky Mountain a Release by Lead Agent
from the lien of any mortgage(s), deeds of trust, and other security agreements
encumbering the Facility (and the Land if purchased) to secure repayment of the
indebtedness of Thermo under the Loan Agreement and Rocky Mountain shall deliver
to Thermo and Lead Agent a ratification and reaffirmation of all thermal supply
provisions of the Assigned Agreement in such form as Thermo or Lead Agent may
reasonably request. Nothing herein all be construed to relieve Rocky Mountain of
its obligations under paragraph 5.8 of the Thermal Supply Agreement. Under no
circumstances shall Rocky Mountain be entitled to exercise the Purchase Option
at any time while Thermo is in default under the Assigned Agreement or this
Supplemental Agreement or while an Event of Default is continuing under the Loan
Agreement. Should the lenders, the Lead Agent or their nominee exercise any
remedies arising because of an Event of Default by Thermo under the Loan
Agreement whereby Thermo's rights in the Facility, the Land, the Plant or the
Project Site shall be terminated, assumed, or transferred, the Purchase Option,
effective as of the time of such exercise, shall permanently lapse and become
void and shall no longer be binding upon Thermo, the Lead Agent, any lender
under the Loan Agreement or any transferee of the Facility, the Land, the Plant
or the Project Site in connection with such exercise of rights or remedies
because of such Event of Default.
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5. Reports, Information and Approvals. At all times while indebtedness
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is outstanding under the Loan Agreement:
5.1 Lead Agent shall have the same rights as Thermo to receive
reports and information as shall be available to Thermo, and to exercise other
rights with respect to receipt of information as are conferred on Thermo under
paragraphs 8.11 and 8.12 of the Assigned Agreement. Rocky Mountain shall
deliver all such reports and information to Lead Agent at the address set forth
in paragraph 14 hereof, or such other address as Lead Agent may have specified
pursuant to such paragraph.
5.2 Notwithstanding paragraphs 14.1 and 14.2 of the Assigned
Agreement, Rocky Mountain shall not make or agree to make any proposed
assignment, sublease or subcontract under the Assigned Agreement without the
prior written consent of Thermo, which consent may be withheld in Thermo's sole
discretion.
6. Environmental Matters. Supplementary to and not in lieu of Rocky
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Mountain's obligations under paragraph 10.1 and certain other provisions of the
Assigned Agreement:
6.1 Rocky Mountain shall at all times comply fully with all laws,
rules, regulations, and ordinances of any public authority having jurisdiction
with respect to the storage, use or release at the Facility and on the Land of
hazardous or toxic substances, and shall not treat, store, transport or release
any Materials of Environmental Concern on or from the Facility or the Land in
any manner or quantity which may result in any clean-up obligation or liability
under any Environmental Law; shall keep the Facility free of any lien imposed
pursuant to Environmental Laws because of acts or omissions of Rocky Mountain or
its Affiliates, agents, employees, contractors,
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sublessees, successors or assigns; and shall pay or cause to be paid when due
any and all costs of complying with Environmental Laws and responding to the
presence, release, or threatened release of Materials of Environmental Concern
because of acts or omissions of Rocky Mountain or its agents, employees,
contractors, sublessees successors or assigns (including without limitation all
damages, liabilities, expenses and costs of all third-party claims). If Rocky
Mountain fails to do any of the foregoing, then to the extent that Thermo, Lead
Agent or any lender under the Loan Agreement and their respective partners,
shareholders, directors, officers, agents, employees, successors or assigns
sustains any liability, loss, cost, damage, or expense (including attorneys' and
consultants' fees and expenses) arising out of the presence, release, or
threatened release by Rocky Mountain or its Affiliates, agents, employees,
contractors, sublessees, successors or assigns of Materials of Environmental
Concern on or from the Facility or the Land, Thermo, Prudential or Lead Agent
may, upon such prior written notice to Rocky Mountain as is reasonable under the
circumstances, take any action necessary, in the reasonable judgment of such
responding party, to respond to such presence, release or threatened release,
and the cost of such response action shall be borne by Rocky Mountain. Rocky
Mountain shall give to Thermo, to Prudential and to Lead Agent, and to their
respective officers, agents, employees and contractors, access to the Facility
and the Land, and Rocky Mountain hereby specifically grants to Thermo, to
Prudential and to Lead Agent a license to respond to such presence, release, or
threatened release of such Materials of Environmental Concern.
6.2 In addition to the requirements of paragraph 10.1 of the Thermal
Supply Agreement, Rocky Mountain shall indemnify and hold Thermo, Lead Agent,
Prudential and each other lender under the Loan Agreement and their respective
partners, shareholders, directors, officers, agents or employees free and
harmless from and against all liability, loss, cost. damage,
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and expense (including without limitation attorneys' and consultants' fees and
expenses) incurred in connection with the environmental compliance, clean-up and
other response obligations imposed under any Environmental Laws or in connection
with third-party claims relating to or in connection with any violation by Rocky
Mountain or its Affiliates, agents, employees, contractors, sublessees,
successors or assigns of any Environmental Law or in connection with any
Materials of Environmental Concern used, generated, treated, stored, or
otherwise located on, or released by Rocky Mountain or threatened to be released
in, on, under, from or affecting the Facility or the Land, except to the extent
resulting from such Indemnitee's negligence or intentionally tortious acts or
omissions. For purposes of this Supplemental Agreement, the definition of
Environmental Laws is further particularized to include, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C.
(S)9601 et seq.), the Resource Conservation and Recovery Act (42 U.S.C: (S)6901
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et seq.), the National Environmental Policy Act (42 U.S.C. (S)4321 et seq.), the
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Hazardous Materials Transportation Act (49 U.S.C. (S)1801 et seq.), the Toxic
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Substances Control Act (15 U.S.C. (S)2601 et seq.), the Clean Air Act (42 U.S.C.
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(S)7401 et seq.), the Federal Water Pollution Control Act (33 U.S.C. (S)1251 et
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seq.), the Safe Drinking Water Act (42 U.S.C. (S)300(f) et seq.), the Colorado
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Hazardous Waste Management Act (Colo. Rev. Stat. Title 25, Article 15), the
Colorado Water Quality Control Act (Colo. Rev. Stat. Title 25, Article 8), the
Colorado Air Quality Control Act (Colo. Rev. Stat. Title 25, Article 7), the
Colorado Hazardous Materials Transportation Act of 1987 (Colo. Rev. Stat. Title
43, Article 6), the Colorado Hazardous Waste Cleanup Act (Colo. Rev. Stat. Title
25, Article 16), the Colorado Underground Storage Tanks Law (Colo. Rev. Stat.
Title 25, Article 18), Colorado Solid Waste Disposal Sites and Facilities Law
(Colo. Rev. Stat. Title 30, Article 20), Colorado Land Use Act (Colo. Rev. Stat.
Title 24, Article 65), and any common law theory of liability, in any case
relating to pollution or protection of human health or the environment
(including without limitation ambient air, surface water, ground water,
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land surface, or subsurface strata), all as currently in effect or as shall be
promulgated, issued and amended or ordered in the future, including, without
limitation, laws and regulations relating to emissions, discharges, releases, or
threatened releases of Materials of Environmental Concern, or otherwise relating
to the manufacture, processing, refining, distribution, use, treatment, storage,
disposal, transport, recycling, reporting, or handling of Materials of
Environmental Concern.
6.3 Rocky Mountain shall notify Thermo, Lead Agent, and Prudential
promptly of any notice, advice, or communication from any Governmental Authority
or any other source with respect to Materials of Environmental Concern which may
be in, on, under, or released from or affecting the Facility or the Land. Rocky
Mountain shall also maintain at the Facility, and keep available for inspection
during ordinary business hours and following reasonable notice by Thermo, Lead
Agent, and Prudential, accurate and complete records of all investigations,
studies, sampling, and testing conducted, and any and all response actions
taken, by Rocky Mountain or, to its knowledge, by any Governmental Authority or
other person in respect of Materials of Environmental Concern which may be in,
on, under, migrating from, or affecting the Facility or the Land.
The obligations of this section 6 shall survive Termination of this Supplemental
Agreement.
7. Repairs and Maintenance. Supplementary to and not in lieu of the
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requirements of paragraphs 8.4 and 8.5 of the Assigned Agreement, Rocky Mountain
shall, at its expense, (a) keep the Facility in good working order and
condition, (b) perform the periodic overhauls and maintenance as recommended by
any manufacturers or vendors of component parts of the Facility or related
equipment, and make all repairs, replacements, renewals, and additions which are
necessary for the Facility to satisfy the terms of the Assigned Agreement and
all
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requirements of law affecting the Facility, and (c) cause the Facility to be
operated and maintained with appropriate spare parts, inventories, and
redundancies, in a safe manner and in accordance with normal industry practice.
All repairs, replacements, and renewals shall be at least equal in quality and
class to the original work. Rocky Mountain shall comply with such repair,
service, and maintenance standards as are required to enforce guaranty and
warranty claims and to satisfy standards imposed by any applicable insurance
policy.
8. Delivery of Financial Statements and Other Information.
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Supplementary to and not in lieu of the requirements of paragraphs 8.11 and 8.12
of the Assigned Agreement, and without limitation of paragraph 5.1 of this
Supplemental Agreement, Rocky Mountain shall furnish or cause to be furnished,
to Thermo and to Lead Agent certain periodic reports and information required by
the Loan Agreement and more fully described in Schedule 8 attached hereto.
Annual financial statements delivered pursuant to section (a) of Schedule 8
shall be delivered appended to the following certification:
Attached hereto are true, correct and complete copies of (a) the
financial statements of the company; (b) the company's balance
sheet fairly presents its financial position as of the date
thereof and has been approved in accordance with generally accepted
accounting principles consistently applied except as otherwise
specifically noted therein; (c) there has been no material change
in the company's financial position from that set forth in the
balance sheet prepared as at the date thereof, and (d) all liabilities,
contingent or otherwise, are disclosed by, or reserved against in,
such financial statements or the footnotes thereto to the extent
required by generally accepted accounting principles consistently
applied.
9. Notice of Certain Events. Rocky Mountain shall give prompt and
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simultaneous Notice to Thermo and to Lead Agent of the occurrence of certain
events required by the Loan Agreement and more fully described in Schedule 9
attached hereto. Each Notice delivered pursuant to this paragraph 9 shall be
accompanied by a statement of a manager of Rocky Mountain
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setting forth details of the occurance referred to and stating what action Rocky
Mountain proposes to take with respect to such occurrence. Notices to Thermo
shall be given in the manner provided in the Assigned Agreement. Notices to Lead
Agent shall be given in the manner, provided in paragraph 14 of this
Supplemental Agreement.
10. Insurance Proceeds in Event of Casualty or Condemnation. Anything in
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section 11, section 12 or any other provision of the Assigned Agreement to the
contrary notwithstanding:
(a) all proceeds in respect of any condemnation, appropri-
ation or other taking or any insurance policy relating
to the Facility or the Land which are received by
Rocky Mountain shall be promptly paid over to Thermo
in the same form as received (with any necessary
endorsement);
(b) Rocky Mountain shall provide such information as Thermo
may reasonably request relating to the costs and
expenses necessary to repair, replace or restore the
Facility or the Land and the feasibility of such
repair, replacement or restoration;
(c) Thermo shall notify Rocky Mountain if all or any of
proceeds received by Rocky Mountain (or by Thermo or
any other person) shall be applied to the repair,
restoration or replacement of the Facility or the
Land;
(d) Rocky Mountain shall apply any proceeds received
from Thermo for the sole purpose of paying the
necessary costs of repair, restoration or replace-
ment of the Facility or the Land; and
(e) all such proceeds which are not applied to repair,
restore or replace the Facility or the Land shall be
returned to, and/or retained by, Thermo.
The foregoing notwithstanding, should Rocky Mountain have purchased the Facility
(and if applicable the Land), this paragraph shall not require the payment of
insurance or condemnation proceeds to
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Thermo to the extent that such proceeds are XXX to any portion of the Facility
or the Land so purchased by Rocky Mountain. With respect to any such portion not
purchased, the provisions of this paragraph 10 shall apply.
11. Cooperation with Loan Agreement Closing. Supplementary to and not
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in lieu of Rocky Mountain's obligations under paragraph 21.2 of the Assigned
Agreement, Rocky Mountain's cooperation in connection with the closing of the
Loan Agreement shall include, but shall not be limited to, (i) executing and
delivering a reasonable estoppel certificate and statement of then current facts
with respect to performance by Thermo and rocky Mountain of the Assigned
Agreement and this Supplemental Agreement, (ii) causing counsel for Rocky
Mountain to deliver the opinions reasonably requested by Lead Agent under the
Loan Agreement, (iii) delivering the evidence of corporate (or equivalent
limited liability company) proceedings evidencing the authorization for
execution and performance by Rocky Mountain of the Assigned Agreement and this
Supplemental Agreement, (iv) delivering certain financial statements as required
by the Loan Agreement, (described in Schedule 8 hereto), and (v) cooperating
with Thermo and Lend Agent to the same extent in connection with conversion of
Construction Loans to Term Loans under the Loan Agreement.
12. Certain Consents. Rocky Mountain hereby irrevocably consents to
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(a) the appointment of Project Manager as agent of Thermo to carry out and
enforce the Assigned Agreement within the scope of Project Manager's obligations
under the Project Management Agreement and (b) the collateral assignment of all
of Thermo's right, title and interest in the Assigned Agreement by Thermo to
Lead Agent for the benefit of Assignee under the Loan Agreement as security
pursuant to the Collateral Assignment, and Rocky Mountain shall, at Thermo's or
Lead Agent's request, as the case may be, in the exercise of its respective
rights as
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Thermo or Lead Agent, continue performance under the Assigned Agreement in
accordance with its terms and the terms of this Supplemental Agreement.
References herein to Thermo shall include, without limitation, Project Manager
acting as agent of Thermo under the Project Management Agreement.
13. No Present Defaults. Rocky Mountain acknowledges that (a) the
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Assigned Agreement is in full force and effect and there are no amendments,
modifications or supplements thereto, either oral or written, (b) Rocky Mountain
has not assigned, transferred or hypothecated the Assigned Agreement or any
interest therein, except as described herein, (c) Rocky Mountain has no
knowledge of any default or breach by Thermo in any respect in the performance
of any provision of the Assigned Agreement, and (d) Rocky Mountain has agreed to
and hereby ratifies prior assignments to Thermo of the Assigned Agreement
whereby Thermo has acquired rights under the Assigned Agreement and releases all
prior assignors of the Assigned Agreement from their obligations as parties to
the Assigned Agreement.
14. Notice of Thermo's Defaults and Termination. Anything in the
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Assigned Agreement notwithstanding, Rocky Mountain shall not claim prevention of
or interference with performance of its obligations pursuant to the Assigned
Agreement or the suspension or termination of its obligations under the Assigned
Agreement as the result of any default of Thermo without first giving a copy of
any notice of default or termination to Lead Agent, such notice to be coupled
with a request to Lead Agent to cure any defaults which are susceptible of being
corrected by Lead Agent, within a cure period as provided to Thermo in the
Assigned Agreement plus a period of ninety (90) days (thirty (30) days in the
case of a monetary default) thereafter (or, with respect to any defaults not
susceptible of being cured within such cure period, such longer cure period as
shall be required to cure such default provided that Lead Agent is diligently
pursuing such cure), such cure period to
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commence upon such notice to Lead Agent, or, with respect to any defaults which
are not susceptible of being corrected by Lead Agent, to rectify to Rocky
Mountain's reasonable satisfaction the effect upon Rocky Mountain of such
default by Thermo within such period. Such notice shall be in writing and shall
be deemed to have been given (a) when presented personally or by Federal Express
or other courier, (b) when transmitted by telecopy to the number specified
below, or (c) when received, if deposited in a regularly maintained receptacle
for the United States Postal Service, postage prepaid, registered or certified
mail, return receipt requested, addressed to Lead Agent and Prudential at the
address indicated below (or such other address as Lead Agent or Prudential may
have specified by written notice delivered in accordance herewith). The telecopy
(facsimile) numbers provided below are for the convenience of Rocky Mountain
only. Transmission by telecopy shall constitute provision of notice under this
Supplemental Agreement only if receipt thereof is acknowledged in writing by
Prudential or Lead Agent, as the case may be, within such period. The address
for notices to Prudential and Lead Agent is as follows:
The Prudential Insurance Company of America
c/o Prudential Power Funding Associates
Four Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Project Management Team
Facsimile No.: (000) 000-0000
No claim of rescission or termination of the Assigned Agreement by Rocky
Mountain shall be binding upon Prudential or Lead Agent without such notice and
the lapsing of the applicable cure period. Any dispute that may arise under the
Assigned Agreement notwithstanding, Rocky Mountain shall continue performance
under the Assigned Agreement and resolve any such dispute without discontinuing
such performance until the lapse of the notice and the applicable cure periods
or extension periods. Lead Agent may, but shall be under no obligation to, make
any payment or perform any act required thereunder to be made or performed by
Thermo, with the same effect as
18
if made or performed by Thermo. If Lead Agent or Prudential fails to cure a
default within the same cure period as provided to Thermo in the Assigned
Agreement plus a period of ninety (90) days (thirty (30) days in the case of a
monetary default) thereafter (or, with respect to any defaults not susceptible
of being cured within such cure period, such longer cure period as shall be
required to cure such default provided that Lead Agent is diligently pursuing
such cure), such cure period to commence upon such notice to Lead Agent and
Prudential, Rocky Mountain shall have all its rights and remedies with respect
to such default or right of termination as set forth in the Assigned Agreement.
15. No Previous Assignment. Rocky Mountain warrants and represents to
----------------------
Assignee that it has not previously consented to any assignment, transfer or
hypothecation of the Assigned Agreement, except as specified herein.
16. Payments to Project Control Account. Rocky Mountain hereby agrees
-----------------------------------
that, so long as any Obligations are outstanding under the Loan Agreement, the
Notes or any document executed in connection therewith and until the same have
been terminated or satisfied in full, as the case may be, all payments to be
made by Rocky Mountain with respect to the Assigned Agreement shall be in lawful
money of the United States of America, in immediately available funds at the
location set forth in Schedule 16, directly to the Disbursement Agent designated
in and for deposit as specified in part one of Schedule 16, attached hereto, or
to such other person and/or at such other address as Lead Agent may from time to
time specify in writing to Rocky Mountain. Thermo agrees that promptly after
receipt by Thermo of a written request from Rocky Mountain, Thermo shall confirm
in writing to Rocky Mountain whether any loans, commitments or Obligations are
outstanding under the Loan Agreement, the Notes or any such documents. For
purposes of
19
paragraph 4.7 of the Assigned Agreement, applicable requirements of the Loan
Agreement are as set forth in part two Schedule 16 hereto.
17. Protection of Lead Agent. In the event that either (a) Thermo's
------------------------
interest in the Project Site, the Project, the Facility (also referred to in the
Loan Agreement as the Greenhouse) and/or the Project Reserves shall be sold,
assigned or otherwise transferred pursuant to the exercise of any right, power
or remedy by Assignee or Lead Agent or pursuant to judicial proceedings, or (b)
Thermo rejects the Assigned Agreement under Xxxxx 00, Xxxxxx Xxxxxx Code, or
other similar Federal or state statute and such rejection is approved by the
appropriate bankruptcy court, and in either case (i) no funds payable under the
Assigned Agreement shall then be due and payable to Rocky Mountain at the time
of such transfer or rejection, (ii) Lead Agent shall have arranged for the
curing of any default susceptible of being corrected by Lead Agent or by a
purchaser at any judicial or non-judicial sale, (iii) the Assigned Agreement
shall have been terminated pursuant to the terms thereof by reason of a default
or a rejection by Thermo or a trustee in bankruptcy under Xxxxx 00, Xxxxxx
Xxxxxx Code, or other similar Federal or state statute, and (iv) the effect upon
Rocky Mountain of any default not susceptible of being corrected shall have been
rectified to Rocky Mountain's reasonable satisfaction, Rocky Mountain shall,
within fifteen (15) days after receipt of written request therefor, execute and
deliver an agreement to Lead Agent or its nominee, purchaser, assignee or
transferee, as the case may be, for the remainder of the term of the Assigned
Agreement, and with the same terms as are contained therein, whereupon such
agreement shall be an Assigned Agreement hereunder.
18. Acknowledgment of Assignee's Obligations and Rights. None of the
---------------------------------------------------
Secured Parties under the Loan Agreement has any obligation hereunder to extend
credit to Rocky Mountain or any contractor to Rocky Mountain at any time for any
purpose. Assignee shall have no obligation
20
to Rocky Mountain under the Assigned Agreement until such time as Assignee
notifies Rocky Mountain in writing of Assignee's election to exercise its rights
hereunder. If Thermo defaults in the performance of its covenants to the Secured
Parties in, or an Event of Default shall have occurred and be continuing under,
the Loan Agreement, Assignee shall have the right, inter alia, to (i) declare
----- ----
all amounts due under the Loan Agreement, the Notes and any of the Collateral
Security documents executed in connection therewith to the Secured Parties under
the Loan Agreement immediately due and payable, (ii) take possession of the
Project Site, the Project, Thermo's rights in and with respect to the Greenhouse
and/or the Gas Reserves and complete the same, (iii) sell the Project, the
Project Site, Thermo's rights in and with respect to the Greenhouse and/or the
Gas Reserves and any purchaser at such sale shall succeed to Assignee's rights
hereunder, (iv) cause Lead Agent or its nominee, purchaser, assignee or
transferee to assume all of Thermo's right, title and interest in, to and under
the (subject to the terms of this Supplemental Agreement) Assigned Agreement,
and (v) exercise any other remedies provided under the Loan Agreement or
otherwise available at law or in equity; subject to Assignee's compliance with
the provisions of the Assigned Agreement and the terms of this Supplemental
Agreement, Rocky Mountain shall cooperate with Assignee in Assignee's exercise
of such rights.
19. Incorporation by Reference. The provisions of sections 20, 22, 24.
--------------------------
and 25 of the Assigned Agreement are incorporated herein by reference.
20. Limitation of Liability. Except as otherwise expressly provided
-----------------------
herein, it is hereby agreed and acknowledged that Rocky Mountain shall not have
any direct contractual obligations to Assignee, and Assignee hereby acknowledges
that it has not relied upon any direct representations of Rocky Mountain, in
connection with lending arrangements with Thermo except as provided herein and
in the Assigned Agreement. In addition, Assignee agrees that, except as
21
otherwise expressly provided herein in the event shall Rocky Mountain be liable
to Assignee for any claims, losses, expenses or damages whatsoever other than
liability Rocky Mountain may have to Thermo and its successors and permitted
assigns, including Assignee, under the Assigned Agreement or to Lead Agent,
Prudential or to Assignee, their successors and assigns.
IN WITNESS WHEREOF, the parties have caused this Supplemental
Agreement to be executed by their duly authorized officers or agents as of the
date of acknowledgement of their signatures, set forth below.
THERMO COGENERATION PARTNERSHIP, LP.
By: Thermo Ft. Xxxxxx, XX., a general partner
By: Thermo Ft. Xxxxxx I, Inc.,
its general partner
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxx III
--------------------------------- ----------------------------------
Xxxxx Xxxxxx, III
Printed Name: Xxxxxxx X. Xxxxxxx President
--------------------
Assistant Secretary
22
(as to Rocky Mountain Produce ROCKY MOUNTAIN PRODUCE LIMITED
Limited Liability Company) LIMITED COMPANY
[ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------- ---------------------------------
Printed Name: [ILLEGIBLE] Printed Name: XXXXXXX X. XXXXXXX
------------------------ -----------------------
Title: MANAGER
------------------------------
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxx
Printed Name: Xxxxxx X. Xxxxx Manager
------------------------
(as to the Prudential Insurance) THE PRUDENTIAL INSURANCE COMPANY
Company of America) OF AMERICA, as Lead Agent
[ILLEGIBLE] By: /s/ W. Xxxx Xxxxxxx
------------------------------------- ---------------------------------
Printed Name: [ILLEGIBLE] Printed Name: W. XXXX XXXXXXX
------------------------ -----------------------
Title: V.P.
------------------------------
[ILLEGIBLE]
-------------------------------------
Printed Name: [ILLEGIBLE]
------------------------
00
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
--------
On this 3rd day of April, 1993, before me personally came Xxxxx Xxxxxx,
--- -----
III, to me known, who, being by me duly sworn, did depose and say that he
resides at 0000 Xxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000; that he is President of
Thermo Ft. Xxxxxx I, Inc., the corporation described in and which executed the
foregoing instrument; which corporation is the general partner of Thermo Ft.
Xxxxxx, X.X.; which limited partnership is a general partner of Thermo
Cogeneration Partnership, L.P., the partnership described in and which executed
the foregoing instrument; that the execution of the instrument was duly
authorized according to the Partnership Agreement, and that the general partner
executed the instrument on behalf of the said partnership pursuant to said
authorization; and that he signed his name thereto by order of the board of
directors of said corporation.
/s/ Xxxxxxx X. Xxxxxx
----------------------
Notary Public
My commission expires:
[Seal] XXXXXXX X. XXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in New York County
Commission Expires December 31, 1994
--
24
---------------------------------------------
Notary Public
My commission expires:
-----------------------
25
State of Colorado )
CITY AND ) SS:
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 26th day of
March, 1993, by Xxxxxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxx the Manager of Rocky
Mountain Produce Limited Liability Company, a Colorado limited liability
company, on behalf of the company.
Witness my hand and official seal.
/s/ Xxxxxx Love
-----------------------------------------
Notary Public
My commission expires: 06-10-94
-------------------
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 7 day
of April, 1993, by W. Xxxx Xxxxxxx as Vice President of The Prudential Insurance
Company of America, as lead agent for the Secured Parties identified in the Loan
Agreement.
Witness my hand and official seal. XXXXX XXXXX
NOTARY PUBLIC, State of New York
No. 31-47X9715
Qualified in New York County
My commission expires: Commission Expires December 31, 1994
----------------------------
/s/ Xxxxx Xxxxx
-----------------------------------------
Notary Public
( S E A L )
SCHEDULE 3.2
------------
Governmental Approvals Required by Rocky Mountain:
Part A (Prior to execution of Supplemental Agreement).
------
None.
Part B (Subsequent to execution of Supplemental Agreement).
------
None.
27
From time to time Rocky Mountain shall deliver to Thermo:
(a) as soon as is available, but not late than 90 days after the
end of each fiscal year of Rocky Mountain, a profit and loss statement, a
statement of retained earnings and a statement of cash flows for such year,and a
balance sheet as at the end of such year, in each case setting forth in
comparative form the figures for the previous fiscal year, certified as
presented in accordance with generally accepted accounting principles, the
profit and loss position, retained earnings, cash flows, and balance sheet as of
the date thereof, without qualification or exception as to the scope of its
audit, by independent certified public accountants of national standing
reasonably acceptable to Prudential:
(b) as soon as is available, but not later than 45 days after
the end of each quarterly period of each fiscal year of Rocky Mountain, a profit
and loss statement, a statement of cash flows and statement of retained
earnings, and a balance sheet as at the end of each such period, in each case
setting forth in comparative form the figures for the corresponding period of
the previous fiscal year, certified by an officer of Rocky Mountain as fairly
presenting in all material respects the profit and loss position, retained
earnings, cash flows, and balance sheet as of the date thereof (subject to
normal year-end audit adjustments and footnote disclosures), such financial
statements to be prepared in reasonable detail and in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved except as otherwise specifically noted therein, and shall be complete
and correct in all material respects (subject to normal year end audit
adjustments and to footnote disclosures);
(c) promptly after receipt thereof, copies of each Governmental
Approval (and copies of any correspondence referred to in any such approval) or
any other material consent or approval obtained or made by Rocky Mountain
pursuant to the Assigned Agreement; and
(d) promptly after receipt of request in writing, such
supplemental financial information with respect to Rocky Mountain or the
Facility as Thermo or its lenders may from time to time reasonably request
and as is reasonably available to Rocky Mountain.
28
Schedule 9
----------
From time to time Rocky Mountain shall give immediate and simultaneous
Notice to Thermo and to Lead Agent if:
(a) any representation or warranty made by Rocky Mountain herein or in
the Assigned Agreement or in any certificate, financial statement, or other
document furnished to Thermo hereunder or under the Assigned Agreement shall
prove to have been false or misleading in any material respect as of the time
made or deemed made;
(b) Rocky Mountain shall have failed to comply with or shall be in
default of any of Rocky Mountain's covenants or obligations contained herein or
in the Assigned Agreement beyond any applicable cure period following Notice, if
required;
(c) Rocky Mountain shall make an assignment for the benefit of creditors
or shall generally not be paying its debts as such debts become due unless such
debts are the subject of a bona fide dispute;
(d) (i) any decree or order for relief in respect of Rocky Mountain shall
be entered under any bankruptcy, reorganization, compromise, arrangement
insolvency, readjustment of debt, dissolution or liquidation or similar law,
whether now or hereafter in effect (herein called "Bankruptcy Law") of any
jurisdiction, (ii) any petition or application of the types described in clause
(e), below, of this paragraph 9 shall be filed, or any such proceeding shall be
commenced, against Rocky Mountain and Rocky Mountain, by any act, shall indicate
its approval, consent thereto or acquiescence therein, or an order, judgment, or
decree shall be entered appointing any such trustee, receiver, custodian,
liquidator, or similar official, or approving the petition in any such
proceedings, or (iii) any order, judgment, or decree shall be entered in any
proceedings against Rocky Mountain decreeing the dissolution of Rocky Mountain;
(e) Rocky Mountain shall petition or apply to any tribunal for, or shall
consent to, the appointment of, or taking possession by, a trustee, receiver,
custodian, liquidator, or similar official of Rocky Mountain or of any
substantial part of its assets, or shall commence a voluntary case under the
Bankruptcy Law of the United States or any proceedings relating to Rocky
Mountain under the Bankruptcy Law of any other jurisdiction;
(f) (i) any order or decree is entered by any court of competent
jurisdiction directly or indirectly enjoining the construction or
(cumulatively) operation of the Facility, or (ii) a judgment (or judgments) in
excess of $100,000 (cumulatively) shall be rendered against Rocky Mountain and
remain unsatisfied whether or not such order, judgment, or decree is stayed
pending appeal;
(g) any of the Governmental Approvals required to be obtained by Rocky
Mountain in connection with the Facility and its full performance under the
Assigned Agreement or this Supplemental Agreement shall be rejected or otherwise
denied or shall expire (without being timely renewed) or be revoked, rescinded,
suspended, held invalid or otherwise limited in effect, and such rejection,
denial, expiration, revocation, rescission, suspension, holding, or other
limiting
29
materially affects Rocky Mountain's ability to achieve or maintain operation of
the Facility or the ability of Rocky Mountain to make any payments under this
Agreement or the ability of Thermo to receive payments hereunder when and as
due;
(h) there shall exist at any time any litigation, investigation, inquiry,
or proceeding between Rocky Mountain and any Governmental Authority which
concerns the status of the Plant as a Qualifying Facility, or which could have
a material adverse effect on the properties, business, prospects, operations, or
other condition of the Plant or of Thermo;
(i) any material adverse change shall have occurred in the properties,
business, operations, or financial condition of Rocky Mountain from the
condition refected in the most recent financial information delivered to Thermo,
and of any change of law, rule, or regulation which has caused or could
reasonably be expected to cause such a material adverse change;
(j) there shall have occurred any loss or damage to the Facility in
excess of $250,000; and
(k) there shall have occurred an Event of Loss or there shall have
occurred any other damage or destruction to the Facility that has a material
adverse effect on the viability of the operation of the Facility, and such
damage or destruction is not adequately covered by insurance.
30
SCHEDULE 16
-----------
Part one:
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
ABA No. 00-000-0000
Project Control Account No. FF757
Part two:
(h) Greenhouse Rent Reserve. The Borrower shall cause
-----------------------
70% of "Available Net Cash" (as such term is defined in the
Greenhouse Lease*) up to an aggregate amount equal to one
year's rental payments under the Greenhouse Lease which is not
applied to current rental payments under the Greenhouse Lease
to be deposited by the Thermal Energy Purchaser** into the
Greenhouse Rent Reserve Account.
* Hereunder the "Assigned Agreement"
** Hereunder Rocky Mountain
