EXHIBIT 10.5
FIRST AMENDMENT
TO
GREENHOUSE OPERATION AND MANAGEMENT AGREEMENT
THIS FIRST AMENDMENT TO GREENHOUSE OPERATION AND MANAGEMENT AGREEMENT (this
"Amendment") is made as of this 30 day of April, 1996, between BRUSH GREENHOUSE
PARTNERS, a Colorado general partnership ("BGP") and COLORADO GREENHOUSE LLC, a
Colorado limited liability company ("CG").
Recitals
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A. BGP 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 to operate and manage the
greenhouse facility (the "Greenhouse") located in Brush, Colorado.
B. CG has entered into a Loan Agreement dated as of December 29, 1995,
pursuant to which CG may borrow funds in the amount of up to $3,000,000 (the
"Revolving Credit Loan") from Cooperative Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland", New York Branch ("Rabobank").
C. In connection with the Revolving Credit Loan, BGP and CG desire
hereby to amend certain provisions of the O&M Agreement, as hereinafter set
forth.
NOW, THEREFORE, in consideration of the above Recitals and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Section 3.4 of the O&M Agreement is hereby amended by adding the
following subsection (d) thereto:
(d) Colorado Greenhouse agrees that if Colorado Greenhouse uses any
portion of the Revolving Credit Loan for repayment to Brush Greenhouse
Partners II, LLC for working capital advances (a "BGP II Repayment"), then,
after paying the Primary Fees required under Section 3.4(a) above for any
calendar year, and after paying any primary fees required in connection
with any Other Greenhouse for such calendar year, Colorado Greenhouse shall
use any remaining Colorado Greenhouse Gross Margin for such calendar year
to pay the then-outstanding principal balance on the Revolving Credit Loan
relating to funds borrowed for the sole purpose of making a BGP II
Repayment, together with any accrued and unpaid interest thereon, prior to
making any distributions of profits or other sums to the members of
Colorado Greenhouse pursuant to the Colorado Greenhouse operating
agreement; provided, however, that Colorado Greenhouse shall be permitted
to make distributions to its members, at any time and from time to time,
for the sole purpose of paying such member's personal taxes arising in
connection
with such member's interest in, or any items of income as gain of, Colorado
Greenhouse.
2. Except as expressly amended pursuant to Section 1 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 a Colorado general
partnership
By: /s/ ▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇ ▇▇▇▇▇▇▇▇▇
Title: Management Committee Member
COLORADO GREENHOUSE LLC, a Colorado limited
liability company
By: /s/ ▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇ ▇▇▇▇▇▇▇▇▇
Title: Manager
and
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager
ACCEPTED AND AGREED to this 7 day
of May 1996.
THE PRUDENTIAL INSURANCE PRUCO LIFE INSURANCE COMPANY
COMPANY OF AMERICA
By: /s/ ▇▇▇ ▇. ▇▇▇▇ By: /s/ [SIGNATURE ILLEGIBLE]
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Name: /s/ ▇▇▇ ▇. ▇▇▇▇ Name:__________________________
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Title: Vice President Title:_________________________
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