EXHIBIT 10.16
AMENDMENT NO. 3 TO THERMAL SUPPLY
LEASE AGREEMENT
THIS AMENDMENT No. 3 TO THERMAL SUPPLY LEASE AGREEMENT (this
"Amendment No. 3"), dated as of February 28, 1995, is by and between THERMO
COGENERATION PARTNERSHIP, L.P., a Colorado limited partnership ("herein
sometimes Thermo") and ROCKY MOUNTAIN PRODUCE LIMITED LIABILITY COMPANY, a
Colorado limited liability company ("Rocky Mountain").
RECITALS
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A. Thermo and Rocky Mountain are parties to that certain Thermal
Supply Lease Agreement effective as of March 22, 1993, as amended by Amendment
No. 1 to Thermal Supply Lease Agreement dated as of December 29, 1994,
Commencement Date Notice and Agreement dated as of December 29, 1994, and
Amendment No. 2 to Thermal Supply Lease Agreement dated as of February 28, 1995
(the "Agreement"), pursuant to the terms of which Thermo leases to Rocky
Mountain, and Rocky Mountain leases from Thermo a commercial greenhouse located
in Ft. Xxxxxx, Colorado (the "Facility").
B. Rocky Mountain has entered into that certain Greenhouse Operation
and Management Agreement (the "O&M Agreement") dated as of December 29, 1994
with Colorado Greenhouse Limited Liability Company, a Colorado limited liability
company (the "Operator"), pursuant to the terms of which Rocky Mountain has
engaged the Operator to operate and manage the Greenhouse.
C. Rocky Mountain and Thermo desire to enter into this Amendment No.
3 to conform the requirements of the Agreement and the O&M Agreement regarding
the timing of calculations and payments of Base Rent, and other matters.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
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1. All capitalized terms used herein but not otherwise defined shall
have the meaning given to such terms in the Agreement.
2. Paragraph 4.1 of the Agreement is hereby amended by deleting the
third sentence thereof and replacing it with the following:
Installments of Base Rent shall be payable on the last day
of April, July, October, and January, beginning April 30,
1995 and continuing on each such day thereafter through and
including April 30, 2014. It is acknowledged that the
preceding sentence modifies the Commencement Date Notice and
Agreement dated as of December 29, 1994.
3. Paragraph 4.5 of the Agreement is hereby amended by deleting the
second sentence thereof and replacing it with the following:
Such calculations shall be made within twenty (20) days
after the end of each calendar quarter in the manner
provided below in this paragraph 4.5 from receipts and
disbursements during the "Calculation Period" ending on the
final day of such calendar quarter.
4. Paragraphs 3 and 4 of this Agreement No. 3 shall remain in effect
only so long as the O&M Agreement is in effect. Thereafter the amended
provisions of paragraphs 4.1 and 4.5 shall revert to read as they existed prior
to this Amendment No. 3.
5. With respect to the calculation of Additional Rent attributable
to real property and other property taxes for the calendar year 1994 payable in
1995, such taxes shall be apportioned 71% to Rocky Mountain and 29% to Thermo
based upon Rocky Mountain's date of possession of the Facility being April 15,
1994.
6. Except as amended or modified by this Amendment No. 3, the
Agreement remains in full force and effect and is hereby ratified and confirmed
in all respects.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
THERMO COGENERATION PARTNERSHIP,
L.P., a Colorado limited partnership
By: Thermo Ft. Xxxxxx, X.X.,
General Partner
By: Thermo Ft. Xxxxxx I, Inc.,
General Partner
By: [SIGNATURE ILLEGIBLE]
---------------------------
Name: ___________________________
Title: ___________________________
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By: CSW Ft. Xxxxxx, Inc.
General Partner
By: [SIGNATURE ILLEGIBLE]
---------------------------------
Name: _________________________________
Title: _________________________________
ROCKY MOUNTAIN PRODUCE LIMITED
LIABILITY COMPANY, a Colorado limited
liability company
By: _______________________________________
Name: Xxxxxx X. Xxxxxxxxx
Manager
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
--------------------------------------
Manager
ACKNOWLEDGEMENTS
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STATE OF COLORADO )
) SS:
COUNTY OF XXXXX )
The foregoing instrument was acknowledged before me this 24th day of
February, 1995, by [NAME ILLEGIBLE], as President of Thermo Ft. Xxxxxx I, Inc.,
General Partner of Thermo Ft. Xxxxxx, X.X., General Partner of Thermo
Cogeneration Partnership, L.P., a Colorado limited partnership, on behalf of
said partnership.
Witness my hand and official seal.
My commission expires: 02/28/97
/s/ Xxxxxxxx X Xxxxxxx
---------------------------------
[SEAL] Notary Public
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STATE OF ____________________ )
) SS:
COUNTY OF ___________________ )
The foregoing instrument was acknowledged before me this ______ day of
__________________, 1995, by _____________________, as
__________________________ of CSW Ft. Xxxxxx I, Inc., General Partner of Thermo
Cogeneration Partnership, L.P., a Colorado limited partnership, on behalf of
said partnership.
Witness my hand and official seal.
My commission expires: ____________________.
___________________________________
[SEAL] Notary Public
STATE OF COLORADO )
) SS:
COUNTY OF BOULDER )
The foregoing instrument was acknowledged before me this ______ day of
__________________, 1995, by Xxxxxx X. Xxxxxxxxx, Manager of Rocky Mountain
Produce Limited Liability Company, a Colorado limited liability company, on
behalf of said company.
Witness my hand and official seal.
My commission expires: ____________________.
___________________________________
[SEAL] Notary Public
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STATE OF COLORADO )
) SS:
COUNTY OF BOULDER )
The foregoing instrument was acknowledged before me this 24th day of
February, 1995, by Xxxxxxx X. Xxxxxxx, Manager of Rocky Mountain Produce Limited
Liability Company, a Colorado limited liability company, on behalf of said
company.
Witness my hand and official seal.
My commission expires: March 25, 1998.
Xxxxx Xxxxx Xxxxxx
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[SEAL] Notary Public
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