EXHIBIT 10.9
FIRST AMENDMENT
TO
AMENDED AND RESTATED
COGENERATION AND GREENHOUSE LEASE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED COGENERATION AND GREENHOUSE
LEASE AGREEMENT (this "Amendment") is made as of this ___ day of May, 1996,
between BRUSH COGENERATION PARTNERS, a Colorado general partnership
("Landlord"), and BRUSH GREENHOUSE PARTNERS II, LLC, a Colorado limited
liability company ("Tenant").
RECITALS
A. Landlord and Tenant have entered into that certain Amended and
Restated Cogeneration and Greenhouse Lease Agreement dated June 1, 1992, (the
"Original Lease"), whereby Landlord has leased to Tenant an 18-acre greenhouse
facility (the "Greenhouse") located on Landlord's real property in Brush,
Colorado.
B. Landlord and Tenant amended the Original Lease by that certain
Amendment to Amended and Restated Cogeneration and Greenhouse Lease Agreement
dated December 29, 1994 (the "Lease Amendment; together with the Original Lease,
the "Lease")
C. Landlord and Tenant desire hereby to amend certain provisions of the
Lease in connection with an expansion of the Greenhouse.
NOW, THEREFORE, in consideration of the mutual covenants and agreement
herein contained, the parties hereby covenant and agree as follows:
1. The first sentence of Recital B of the Lease Amendment is hereby
deleted in its entirety and the following is inserted in lieu thereof:
B. BGP II and Colorado Greenhouse LLC ("Colorado Greenhouse") have
entered into a Greenhouse Operation and Management Agreement dated December
29, 1994, as amended by a First Amendment to Operation and Management
Agreement dated May __, 1996 (as so amended, the "O&M Agreement"), a copy
of which is attached hereto as Exhibit A.
2. The first sentence of Section 1(c) of the Lease is hereby deleted in
its entirety and the following is inserted in lieu thereof:
"The Premises shall consist of an approximately 18.6-acre greenhouse
facility."
3. Except as expressly amended pursuant to Sections 1 and 2 above, the
terms and conditions of the Lease 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 COGENERATION PARTNERS, a
Colorado general partnership
By: Noah I Power Partners, L.P.,
a general partner
By: Noah I Power GP, Inc.,
its general partner
By: [SIGNATURE ILLEGIBLE]
-----------------------------
Name: [SIGNATURE ILLEGIBLE]
---------------------------
Title: _________________________
and
By: CTI Partners II, LLC,
a general partner
By: /s/ Xx Xxxxxxxxx
----------------------------------
Management Committee Member
BRUSH GREENHOUSE PARTNERS II, LLC, a
Colorado limited liability company
By: /s/ Xx Xxxxxxxxx
---------------------------------------
Name: Xx Xxxxxxxxx
-------------------------------------
Title: Management Committee Member
------------------------------------
BRUSH GREENHOUSE PARTNERS II, LLC
and
BRUSH COGENERATION PARTNERS
May ___, 1996
Colorado Greenhouse LLC
X.X. Xxx 000
Xxxx Xxxxxx, Xxxxxxxx 00000
Re: Greenhouse Operation and Management Agreement dated as of
December 29, 1994; Rifle Greenhouse
Ladies and Gentlemen:
Reference is made to the following documents:
1. Greenhouse Operation and Management Agreement (the "O&M Agreement")
dated as of December 29, 1994, between Brush Greenhouse Partners II,
LLC ("BGP II") and Colorado Greenhouse LLC ("Colorado Greenhouse");
and
2. Amended and Restated Cogeneration and Greenhouse Lease Agreement dated
June 1, 1992, as amended (the "Greenhouse Lease"), between Brush
Cogeneration Partners ("BCP"), as Lessor, and BGP II, as Lessee.
Capitalized terms used but not otherwise defined herein shall have the
meaning set forth in the O&M Agreement.
You have informed us that you desire to consolidate the operations of the
Greenhouse, the BGP Greenhouse and the Ft. Xxxxxx Greenhouse with that certain
greenhouse (the "Rifle Greenhouse") located in or near Rifle, Colorado and
operated in connection with the American Atlas cogeneration project, and in that
connection that you be allowed to treat the Rifle Greenhouse as an Other
Greenhouse for all purposes of the O&M Agreement. We acknowledge that the Rifle
Greenhouse is that greenhouse referenced in the last three lines of paragraph
3.3(d) of the O&M Agreement.
BGP II and BCP hereby consent to the treatment of the Rifle Greenhouse as
an Other Greenhouse.
You acknowledge that as of January 1, 1996, the Greenhouse Lease and the
O&M Agreement will be amended to reflect an increase in the size of the
Greenhouse and an increase in the amount of rent payable under the Greenhouse
Lease.
In connection with such matters, Colorado Greenhouse, BGP II and BCP
each agree that the Allocation Percentage set forth on Exhibit B to the O&M
Agreement will be modified, as follows: (i) as of January 1, 1996, to reflect
the consolidation of the Rifle Greenhouse with the operations of the Greenhouse
and the Other Greenhouses, from 31.135% to 26.330%, and (ii)
Colorado Greenhouse LLC
May _____, 1996
Page 2
after the second complete calendar quarter following the completion of the
expansion described above, from 26.330% to 30.392%.
In addition, Colorado Greenhouse, BGP II and BCP each agree that the
definitions of both the Primary Fee and the Primary Fee Deficiency in the O&M
Agreement shall be amended as follows: (i) as of January 1, 1996, in connection
with the consolidation of the Rifle Greenhouse with the operations of the Green
house and the other Greenhouses, substitute $3,240,000 for $2,740,000, and (ii)
after the second complete calendar quarter following the completion date of the
BGP II Greenhouse expansion described above, substitute $3,429,092 for
$3,240,000.
Very truly yours,
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]
-------------------------
Name:[SIGNATURE ILLEGIBLE]
-----------------------
Title:______________________
and
By: CTI PARTNERS II, LLC.
a general partner
By: /s/ Xx Xxxxxxxxx
----------------------------
Management Committee Member
BRUSH GREENHOUSE PARTNERS II, LLC
By: /s/ Xx Xxxxxxxxx
-----------------------------------
Management Committee Member
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Management Committee Member
Accepted and agreed to this ______ day of May, 1996.
COLORADO GREENHOUSE LLC
By: /s/ X. X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------- ----------------------------
Management Committee Member Management Committee Member
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 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 indicate 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]
------------------------
Name:[SIGNATURE ILLEGIBLE]
----------------------
Title: V.P.
---------------------
and
By: CTI Partners II, LLC a general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxxx
Management Committee Member
Accepted and Agreed to this 31 day
of July, 1996.
THE PRUDENTIAL INSURANCE COMPANY CREDIT SUISSE
OF AMERICAN, as Lead Agent as Bank Agent
By: [SIGNATURE ILLEGIBLE] By: /s/ Xxxxx X. Xxxxx
--------------------------- ---------------------
Title: V.P. Title: XXXXX X. XXXXX
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Associates
