EXHIBIT 10.11
FIRST AMENDMENT
TO
GREENHOUSE OPERATION AND MANAGEMENT AGREEMENT
THIS FIRST AMENDMENT TO GREENHOUSE OPERATION AND MANAGEMENT AGREEMENT (this
"Amendment") is made as of this ___ day of September, 1996, between BRUSH
GREENHOUSE PARTNERS II, LLC, a Colorado limited liability company ("BGP II") and
COLORADO GREENHOUSE LLC, a Colorado limited liability company ("CG").
Recitals
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A. BGP II and CG have entered into that certain Greenhouse Operation and
Management Agreement dated December 29, 1994 to be effective January 1, 1994
(the "O&M Agreement"), whereby CG was engaged by BGP II to operate and manage
the greenhouse facility and related packing facility (collectively, the
"Greenhouse") located in Brush, Colorado.
B. BGP II and CG desire hereby to amend certain provisions of the O&M in
connection with an expansion of the Greenhouse and the consolidation of the
greenhouse facility located in Rifle, Colorado (the "Rifle Greenhouse") with the
Greenhouse and Other Greenhouses, as defined in, and pursuant to the terms of,
the O&M Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreement
herein contained, the parties hereby covenant and agree as follows:
1. The fourth and fifth lines of Recital A shall be amended by replacing
the phrase "an approximately 15-acre greenhouse facility and related packing
facility" with the phrase "an approximately 15-acre greenhouse facility, to be
expanded subsequently to an approximately 18.6-acre greenhouse facility".
2. The definition of "Other Greenhouses" in Section 2 is hereby deleted
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in its entirety and the following is inserted in lieu thereof:
"Other Greenhouses" mean, collectively, the BGP Greenhouse , the
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Ft. Xxxxxx Greenhouse and the Rifle Greenhouse (to the extent
that the above are being operated and managed by Colorado
Greenhouse), or such other greenhouses as Colorado Greenhouse may
operate or manage during the term of this Agreement with the
consent of BGP II and BCP.
3. The definition of "Primary Fee" in Section 2 is hereby deleted in its
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entirety and the following is inserted in lieu thereof:
"Primary Fee" means an amount, payable within 30 days after the
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end of each calendar quarter during the term of this Agreement,
equal to the Allocated Percentage of Net Revenue, which amount
shall not exceed (i) $500,000 for 1994, (ii) the Allocated
Percentage of $2,740,000 for 1995, (iii) the Allocated Percentage
of $3,240,000, for the period commencing as of January 1, 1996
through and including the second complete calendar quarter
following the completion date of the expansion of the Greenhouse,
and (iv) thereafter, the Allocated Percentage of $3,429,092.
4. The definition of "Primary Fee Deficiency" in Section 2 is hereby
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deleted in its entirety and the following is inserted in lieu thereof:
"Primary Fee Deficiency" means an amount, to be calculated by BGP
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II within 30 days after the end of each calendar quarter during
the term of this Agreement, equal to the amount, if any, by which
the Allocated Amount (as defined below) exceeds the aggregate
payments made on account of the Primary Fee for such calendar
year. "Allocated Amount" means, (i) for 1995, the Allocated
Percentage of $2,740,000, (ii) for the period commencing as of
January 1, 1996 through and including the second complete
calendar quarter following the completion date of the expansion
of the Greenhouse, the Allocated Percentage of $3,240,000, and
(iii) thereafter, the Allocated Percentage of $3,429,092.
5. The following definition shall be inserted after the definition of
"Reserve Amount" and before the definition of "Rocky Mountain" in Section 2:
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"Rifle Greenhouse" means the greenhouse leased to Wolf Creek Rifle LLC and
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to be operated by Colorado Greenhouse, located in Rifle, Colorado.
6. Exhibit B is hereby deleted in its entirety and the following is
inserted in lieu thereof:
A percentage, as the same may be modified from time-to-time, as in effect
on the dates set forth below:
Commencement Date 50.000%
Commencement of Operation
of the Ft. Xxxxxx Greenhouse 31.135%
Consolidation of the Rifle Greenhouse 26.330%
The Second Complete Calendar Quarter
Following the Completion Date of the
Greenhouse Expansion 30.392%
7. Except as expressly amended pursuant to Sections 1 through 6 above,
the terms and conditions of the O&M Agreement are unmodified and remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
BRUSH GREENHOUSE PARTNERS II, LLC, a
Colorado limited liability company
By: __________________________
Name: ________________________
Title: _______________________
COLORADO GREENHOUSE LLC, a Colorado
limited liability company
By: __________________________
Name: ________________________
Title: _______________________
BRUSH COGENERATION PARTNERS
0000 XXXXX XXXX XXXXXX, XXXXX 000
XXXXXXX, XXXXXXXX 00000-0000
July 31, 1996
The Prudential Insurance Company
of America, as Lead Agent
c/o Prudential Power Funding Associates
Four Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attn: Project Management Team
Credit Suisse, as Bank Agent
00 Xxxx 00xx Xxxxxx
Tower 49
New York, New York 10017
Attn: Project Finance
Re: Brush Cogeneration Partners; Construction and Term Loan Agreement
dated as of June 30, 1992
Ladies and Gentlemen:
Reference is made to that certain Construction and Term Loan Agreement (the
"Loan Agreement"), dated as of June 30, 1992, among Brush Cogeneration Partners
("Borrower"). The Prudential Insurance Company of America, Credit Suisse, and
the other parties named therein. Capitalized terms used herein but not otherwise
defined shall have the meaning given to such terms in the Loan Agreement.
Borrower and Brush Greenhouse Partners II, LLC ("BGP II") desire to enter
into the consent letter, in the form of Exhibit A attached hereto, in favor of
Colorado Greenhouse LLC ("Colorado Greenhouse") relating to certain amendments
to the Greenhouse Operation and Management Agreement (the "O&M Agreement") dated
as of December 29, 1994 between BGP II and Colorado Greenhouse. This consent
letter will allow Colorado Greenhouse to add as an Other Greenhouse that certain
greenhouse located in Rifle, Colorado, and used in connection with the American
Atlas cogeneration project.
The Prudential Insurance Company of America Page 2
Credit Suisse
July 31, 1996
In connection with the current expansion of the Greenhouse, Borrower and
BGP II also desire to (A) consent to (i) a change in the Allocation Percentage
under the O&M Agreement, (ii) a change in the definition of Reserve Amount under
the O&M Agreement, and (iii) an increase in the primary fee to be paid to BGP
II, as lessee of the Greenhouse, and (B) amend the Amended and Restated
Cogeneration and Greenhouse Lease (the "Greenhouse Lease") dated June 1, 1992
between Borrower and BGP II, by a First Amendment in the form of Exhibit B
attached hereto (the "Greenhouse Lease Amendment").
Section 9.5 of the Loan Agreement provides in part that Borrower will not,
without the prior written consent of the Agents, agree to any amendment,
supplement or modification of any Basic Document. Because the contemplated
amendments to the O&M Agreement will result in an amendment to the Greenhouse
Lease, a Basic Document, your consent to such amendments is required. In
addition, your consent to such amendments is required because, pursuant to
Section 15.5 of the O&M Agreement, the parties thereto have agreed that no
change in the terms or provisions of the O&M Agreement shall be made without
your consent. We also note that the O&M Agreement has been assigned to the
Agents pursuant to that certain Collateral Assignment dated as of December 29,
1994.
Borrower hereby requests that you consent to the execution of the attached
letter and the Greenhouse Lease Amendment by Borrower and BGP II.
The Prudential Insurance Company of America Page 3
Credit Suisse
July 31, 1996
Please confirm your agreement to the terms and provisions of this letter
agreement by signing where indicated below.
Sincerely,
BRUSH COGENERATION PARTNERS
By: Noah I Power Partners, L.P., a general partner
By: Noah I Power GP, Inc., its general partner
By: [SIGNATURE ILLEGIBLE]
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Name: [SIGNATURE ILLEGIBLE]
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Title: VP
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and
By: CTI Partners II, LLC, a general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Management Committee Member
Accepted and Agreed to this 31 day
of July, 1996.
THE PRUDENTIAL INSURANCE COMPANY CREDIT SUISSE,
OF AMERICA, as Lead Agent as Bank Agent
By: [SIGNATURE ILLEGIBLE] By: /s/ Xxxxx X. Xxxxx
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Title: V.P. Xxxxx X. Xxxxx
--------------------- Title: Associate
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