HomeMy WebLinkAboutSunEdison - Landfill Solar ProjectOPTION TO LEASE AGREEMENT
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THIS OPTION TO LEASE RL PROPERTY AGREEMENT ("Agreement") is
made and entered into and effective as 0 2014 (the "Effective Date"). This Agreement is by
and between Town of Southold with an address of 53095 Main Road, Southold, NY 11971,
("Owner "), and SunEdison Origination) LLC, and/or its assigns, ("Optionee " and, together
with Owner, each, a "Party" and together, the "Parties"). Owner represents it has sole and
exclusive authority for all matters concerning the Property and sole and exclusive authority to
enter into this Agreement.
WHEREAS, Owner owns a parcel of land, any improvements located thereon and rights
and casements appurtenant to the parcel (the "Property ") situated in Suffolk County, New York,
known by assessor parcel SCTM #1000-96-1-17.5. in the Suffolk County Assessor's Office in
Suffolk County, New York and commonly referred to as 6155 Cox Lane, Cutchogue, NY. The
dimensions of the Property are more particularly described in Exhibit A attached hereto and
incorporated herein, and
WHEREAS, Owner desires to grant to Optionce, and Optionce desires to accept from
Owner, an exclusive option to lease a portion of the Property, together with all appurtenant rights
and easements such leased area to be substantially in accordance with the site plan delineating
the leased area as set forth on Exhibit C attached hereto (referred to herein as the "Premises").
If necessary, Owner will work with Optionee to lease additional land under Owner's control for
the purpose of constructing and operating a solar array (the "Project"), to perform at optimal
efficiency.
NOW, THEREFORE, in consideration of the Patties' mutual promises contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency of which is
acknowledged, the Parties agree as follows:
L Option. Owner hereby grants to Optionce the exclusive right and option (the "Option")
to enter into a lease agreement (the "Lease ") between Owner and Optionce for the
Premises. The Lease shall be in the form of Exhibit 13 attached to the Agreement. During
the "Option Period" (as set forth in Section 3 below), Owner shall not sell, lease, develop,
nor offer to sell or lease or otherwise encumber the Property. During the Option Period,
(i) the Option shall be exercisable in Optionee's sole discretion, and (ii) Optionce may
unilaterally terminate this Option, at any time, for any reason or no reason, by written
notice to the Owner. Unless specifically provided otherwise herein, in the event
Optionce terminates this Agreement at any point after the expiration of the Due Diligence
Period (as defined below), Owner shall be entitled to retain the any Option Payment (as
set forth in Article 3 below) received as of such date.
2. Premises.
a. Estimated Buildable Acres and Location. Subject to its exercise of the Option,
Optionce has the right to lease the Premises pursuant to the Lease. The initial
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estimate of the size of the Premises is approximately 9 acres/not to exceed 14
acres and is more particularly shown on the site plan in Exhibit Q provided
however, if necessary, Owner will work with Optionee to lease additional land or
revise the boundaries of the Premises within the Property for the purpose of
achieving an approximately two (2) megawatt solar array so long as the lease of
such additional land or revisions to boundary areas does not unreasonably
interfere with the daily operations of the Owner. It is hereby acknowledged and
agreed by the parties hereto that portions of the Property contain an active landfill
and that the dimensions and location of the Premises may need to be adjusted
based upon Optionee's review of the Property and the Premises. As such, Owner
agrees to such adjustments to the location and dimensions of the Premises as
Optionce shall reasonably determine so long as such siting does not materially
interfere with Owner's existing operations. Upon determination by Optionee of
the specific size and location of the Premises within the Property, a detailed
description of such location shall be substituted for Exhibit C and shall become
the final description of the Premises.
b. Easements. Owner shall use commercially reasonable efforts to grant such
casements or other rights, at no additional cost to Optionce, that are necessary for
the successful completion of the Project, across, over, under or through land
owned by or under the control of Owner and not leased by Optionee, including,
without limitation, pedestrian and vehicular access, construction lay down and
staging, electric and any other utility and communication easement. Upon
determination by Optionce of such easements as may be necessary or convenient
for successful completion of the Project during the Option Period, a detailed
description of such easements or separate standalone casements shall be
established by the parties. Upon request by Optionce therefor, Owner shall
thereafter execute such easements and permit and does hereby authorize Optionee
to record the same in the Suffolk County land records,
c. Aelmowledgement. Owner and Optionee acknowledge that the general depiction
of the Premises attached to this Agreement on the Effective Date may be legally
insufficient. Owner and Optionee confirm that, notwithstanding any insufficiency,
the Parties desire to enter this Agreement. Therefore, Owner and Optionee agree
that each Party waives any and all claims or defenses of an insufficient legal
description in a cause of action for specific performance hereunder,
d. Property Documents. Owner shall deliver to Optionce within ten (10) days after
request therefor to the extent the following documents exist, a complete set of all
the following documents Final Closure Plan, Post Closure Use Permit (if one has
been prepared) and Landfill Reclamation Reports affecting the Property or any
improvements on the Property (collectively, the "Property Documents") in
Owner's possession or control. Owner hereby represents and warrants that it has,
and hereby grants Optionee, use of the Property Documents and agrees to furnish
such other documents in Owner's possession or control as may be reasonable
requested by Optionce from time to time within five (5) days of request therefor,
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3. Option Payment & Option Period From and after the Effective Date and during the
first ninety (90) days of the Option Period (as may be further extended herein),
Optionee agrees to use commercially reasonable efforts to investigate and determine
the feasibility of developing the Property or Premises for solar power development
(the "Due Diligence Period"), During such Due Diligence Period, Optionee shall have
no obligation to make any Option Payments and shall have the right to terminate this
Agreement at any time prior to the expiration thereof, whereupon this Agreement
shall terminate and neither patty shall have any further obligation to the other except
those obligations which expressly survive termination or expiration hereof
Optionee's failure to give notice of approval of the condition of the Property or
Premises during the Due Diligence Period shall be deemed Optionee's disapproval of
the condition thereof and shall operate to terminate this Agreement. If Optionee shall,
via written notice to Owner, approve the Property or Premises prior to the end of the
Due Diligence Period, Optionce shall deliver the Option Payment within two business
days after expiration of the Due Diligence Period, If the Property or Premises has
been approved by Optionce, upon the expiration of the Due Diligence Period (as may
be extended herein), Optionee shall pay to Owner the option payment of Eighteen
Thousand & no/100 Dollars ($18,000.00), which, except as otherwise expressly
provided herein, is nonrefundable to Optionee. Optionee shall have a three (3) year
Option Period that shall begin to run from the Effective Date. At any time within the
three (3) years, Optionce shall have the right, at its sole discretion, to terminate this
Agreement and the Option.
4. Memorandum of Option. Contemporaneously with the execution of this Agreement
or after the Effective Date, at Optionee's sole discretion, the Parties shall execute,
acknowledge, deliver and record with the Suffolk County Clerk's Office, a
memorandum of option agreement (the "MOA ") with respect to this Agreement,
This Agreement shall not be recorded. The MOA shall be in the form of Exhibit E
attached hereto and incorporated herein. Optionee shall pay for the costs of recording
the MOA.
S. Intentionally Omitted.
6. Right of Entry. During the term of the Option (as the same may be extended from
time to time), Optionee, its employees, agents and independent contractors, at no
additional charge, shall have full and complete access to the Property to evaluate,
conduct, perform field inspections, preconstruction work, invasive soil and water
testing, environmental audits, engineering and boundary surveys, topographical,
structural and geo-technical tests, and such other tests and inspections (collectively
"Tests and Investigations ") of the Property which Optionce may deem necessary or
advisable. Optionce shall have the right to use for ingress and egress the Property and
any other land or easement rights owned by or under the control of Owner to access
the Property. In furtherance of the foregoing, the Patties agree as follows:
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(i) Subject to the provision of reasonable advance notice to Owner that
Optionee will be performing Tests and Investigations, Optionce and
Optionce's employees, agents and independent contractors shall have
access to the Property twenty-four (24) hours a day, seven (7) days a
week; it being hereby understood however, that prior to access to the
Property and Premises outside of the hours of 7:30 to 5:15 PM daily
except public holidays, Optionce shall contact the Southold police
department and inform them of their intent to access the Property and
Premises. Optionee agrees to use commercially reasonable efforts to
obtain any necessary permits required for the Tests and Investigations,
including, without limitation, any permits required by the New York
Department of Environmental Conservation (collectively, the "Permits"),
If Optionee shall not be able to obtain necessary Permits to investigate the
Property or Premises on or before the date that is thirty (30) days prior to
the Due Diligence Period, Optionee shall have the right to extend the Due
Diligence Period for an additional ninety (90) day period or such
additional time as shall be reasonably necessary to obtain such Permits.
(ii) Optionee agrees to be responsible for any and all cost related to the
permitted activities, including installation on and operation and removal of
equipment on the Property.
(iii) Owner consents and agrees that Optionee may make and file applications,
at Optionee's sole cost and expense, on Owner's behalf to any such public
or quasi -public authority having jurisdiction whose approval may be
necessary or advisable to enter the Property to perform said activities, and
to take any actions in furtherance of Optionee's ability to proceed with
timely implementation of the Project. Owner shall, within five (5) days
after Optionee's request, execute any such application or other
documentation and attend hearings, as required by such authority or as
would reasonably assist Optionee. In the event Owner fails to execute such
documentation within such time, Owner hereby constitutes and appoints
Optionee as Owner's attorney-in-fact to execute any such documentation.
7. Indemnification.
a. Owner Indemnification. Owner shall indemnify, defend, and hold Optionee,
its employees, agents and independent contractors harmless from any and all
claims, actions, causes of action, suits, proceedings, costs, expenses
(including, without limitation, reasonable attorneys' fees and costs), liabilities,
damages, demands, rights and/or liens of any type, whether known or
unknown, direct or indirect, absolute or contingent, relating to: (i) claims by a
party, who is asserting a right to possession or ownership of the Property, that
Optionee, its employees, agents or independent contractors are trespassing on
the Property or otherwise on the Property illegally; or (ii) any Pre-existing
Environmental Conditions. This provision shall survive the expiration or
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termination of this Agreement. This provision shall survive the expiration or
termination of this Agreement. "Pre-existing Environmental Conditions"
means any actual or alleged: (i) violation of, breach of or non-compliance
with any Environmental Laws (as defined below) or Environmental Permits
(as defined below) with respect to the Property or Premises that first existed,
arose or occurred on or prior to the Closing Date; and (ii) the presence,
Release (as defined below) or threatened Release of or exposure to any
Hazardous Materials at, to, on, in, under or from the Property or Premises that
first existed, arose or occurred on or prior to the Closing Date.
b. Optionee Indemnification. Optionce shall defend, indemnify and hold
Owner harmless from and against any and all liabilities, damages, losses, costs
or expenses (including, without limitation, reasonable attorney fees and court
costs) arising from the entry upon, or any inspections, tests or examinations
performed on the Property by Optionee, its employees or agents in connection
with any Tests and Investigations, unless caused by the acts or omissions of
Owner, its employees or agents. Notwithstanding the foregoing or anything to
the contrary in this Agreement, Optionee shall have no liability or obligations
in connection with any pre-existing or latent defects or conditions with respect
to the Property or Pre-existing Environmental Conditions. This provision shall
survive the expiration or termination of this Agreement.
8. Surrender Upon Termination, If Optionce elects to cancel this Agreement, within
thirty (30) days of Optionce's notice to Owner of cancellation, Optionee shall, at its
sole cost and expense, remove all of its equipment and any materials or rubbish
incidental to its Tests and Investigations, surrender the Property and restore the
Property in a manner reasonably satisfactory to Owner, reasonable wear and tear and
damage by casualty excepted. This provision shall survive the expiration or
termination of this Agreement.
9. Taxes and Utilities. Owner represents and warrants that as of the execution of this
Agreement, no real property taxes or assessments are levied, assessed, charged or
imposed against the Property any portion thereof. Owner hereby acknowledges and
agrees that during the Option Period, payment of taxes and utilities at the Property
shall be the sole responsibility Owner. Owner agrees that within fifteen (15) days
after request therefor by Optionee, Owner shall fully complete and file the New York
State Department of Taxation & Finance — Office of Real Property Tax Services
Application for Tax Exemption of Solar or Wind Energy Systems or Farm Waste
Energy Systems for the Property with the appropriate city or town assessor, and as
applicable, village assessor. Optionce shall assist and cooperate with such filing and
shall pay all expenses, if any, in connection with the completion and filing thereof.
Owner shall promptly provide Optionce with any material notices it receives
regarding such application for exemption, including any approval or disapproval
thereof.
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10. Notice of Exercise ofd tion. The Option may be exercised by Optionee, in its sole
discretion, during the Option Period. Optionce shall give Owner a minimum of five
(5) days written notice of its intention to exercise this Option at any time during the
Option Period. Such notice of exercise shall a) state that Optionce is exercising this
Option, b) contain the date, time and place of closing, which closing must occur no
later than five (5) days after the expiration of the Option Period and c) be sent to
Owner at:
Office of the Town Clerk of the Town of Southold
53095 Main Road
P.O. Box 1179
Southold, New York 11971
With a copy to:
Martin D. Finnegan, Town Attorney, Town of Southold
Southold Town Hall Annex
54375 Route 25 (Main Road),
P.O. Box 1179
Southold, NY 11971-0959
or at such other address as shall be designated by Owner in writing by notice to
Optionce. Notices to the Optionce shall be delivered to Optionce at:
OPTIONEE
c/o SunEdison
1515 Wazee Street, Suite 380
Denver, CO 80202
Attention: Director, Land Acquisition and Development
(970) 315-0357 fax
with one copy to:
SunEdison
12500 Baltimore Avenue
Beltsville, MD 20705
Attention: General Counsel
and one copy to:
SunEdison
44 Montgomery Street, Suite 2200
San Francisco, CA 94104
Attention: Legal Department, Utilities
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or at such other address as shall be designated by Optionee in writing by notice to
Owner. All notices, requests, demands or other communications which may be or are
required or permitted to be served or given under this Lease shall be in writing and
shall be sent by personal delivery, by commercial air or land delivery service, or by
registered or certified mail, return receipt requested, first class postage prepaid, at the
above listed addresses or at any other address that may be given by one party to the
other by notice pursuant to this Section. Such notices shall be deemed to have been
given at the time of receipt. Rejection or refusal to accept delivery of any notice shall
be deemed to be in receipt of any such notice as of the date of rejection or refusal.
Each party shalt make an ordinary, good faith effort to ensure that it will accept or
receive notices that are given in accordance with this section and that any person to
be given notice actually receives such notice.
11. Closing. Upon notice of Optionce to Owner in accordance with paragraph 10 above,
the execution of the Lease (the "Closing") by Owner and Optionee shall take place at
the place and on the date and time designated by Optionee. Notwithstanding the
foregoing, Owner acknowledges and agrees that the following shall be express
conditions precedent to Optionee's obligation to close the transaction contemplated
herein: (a) Owner's representations and warranties contained in this Agreement shall
be true and correct, (b) Owner shall not otherwise be in default of the terms and
conditions of this Agreement, and (c) a nationally recognized title insurance company
of Optionee's choosing, ("Title Coinpany") shall issue a "date down" endorsement to
the Title Commitment subject only to those Exceptions approved by Optionee
pursuant to Section 13, below, and (d) Optionee shall have received the Permits
required under Section 6 above. In the event the conditions precedent to Closing set
forth in this Agreement are not satisfied as a result of an act or omission of Owner,
Optionee, at its sole discretion with written notice to Owner, may extend the current
Option Period on a day -for -day basis (for no additional consideration from Optionee)
until such condition precedent is satisfied.
12. Closing Costs, Optionce shall pay for the cost of any survey, examination of title
and title insurance. Each Patty shall be responsible for its own attorneys and
consultants fees and any other closing costs incurred solely by such Party.
13. Condition of Title, At Optionce's cost, Optionee shall obtain a preliminary report
(the "Title Report") of the condition of title to the Property, as well as copies of each
document underlying any matters set forth in said report (each matter, an
"Exception"). If Optionee, in its sole discretion, determines that the existence, use,
operation, implementation or exercise of any Exception could delay, interfere with,
impair or prevent Optionee's development, operation or financing of the Project, then
Optionee shall notify Owner in writing of such issues ("Exception Notice "), and
Owner shall seek in good faith to obtain a release, subordination, non -disturbance
agreement, consent or other agreement (in a form and containing provisions
reasonably acceptable to Optionee) (together the "Cure Document") from the
holder(s) of the rights of such Exception that will eliminate such issue for the benefit
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of Optionce within thirty (30) business days (the "Cure Period") of Optionce's
delivery of the Exception Notice to Owner. If Owner is unable to deliver the Cure
Document within the Cure Period, Owner shall be in default under this Agreement,
provided that, at Optionee's option and upon written notice to Owner by the
expiration of the Cure Period, the Cure Period shall be extended thirty (30) business
days (the "Extended Cure Period") for the purpose of Owner obtaining and
delivering the Cure Document to Optionce. In the event the Optionce grants an
Extended Cure Period, the Option Period shall be tolled and Option Payment(s)
which become due during the Extended Cure Period shall be placed in escrow with
the Title Company or its agent, for the length of the Extended Cure Period or until
delivery of the Cure Document, whichever is shorter. Failure of Owner to deliver the
Cure Document within the Extended Cure Period shall, at the option of Optionee, be a
default under this Agreement and all Option Payment(s) placed in escrow by
Optionce or delivered to Owner shall be immediately returned to Optionce.
Notwithstanding the foregoing, return of these Option Payment(s) to Optionce shall
not affect or be indicative of the remedy that Optionee shall demand for Owner's
default.
14. Force Majeure.
a. Definition. "Force Majeure Event" means any act or event that prevents the
affected Party from. performing its obligations or due diligence in accordance with
the Agreement, other than payment of the Option Payment, if such act or event is
beyond the reasonable control, and not the result of the fault or negligence, of the
affected Party and such Party had been unable to overcome such act or event with
the exercise of due diligence (including the expenditure of reasonable sums). A
Force Majeure Event shall not be based on the economic hardship of either Party,
b. Excused Performance, Except as otherwise specifically provided in the
Agreement, neither Party shall be considered in breach of the Agreement or liable
for any delay or failure to comply with the Agreement (other than the failure to
pay amounts due hereunder), if and to the extent that such delay or failure is
attributable to the occurrence of a Force Majeure Event; provided that the Party
claiming relief under this Article 14 shall promptly (i) notify the other Party in
writing of the existence of the Force Majeure Event, (ii) exercise all reasonable
efforts necessary to minimize delay caused by such Force Majeure Event, (iii)
notify the other Party in writing of the cessation or termination of said Force
Majeure Event and (iv) resume performance of its obligations or due diligence
hereunder as soon as practicable thereafter.
c. Option Period. Anything to the contrary in this Agreement notwithstanding, the
Option Period shall be tolled during a Force Majeure Event until the Parties
resume performance of their obligations or due diligence hereunder as provided in
this Article 14.
15. Default Provisions.
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a. Default by Optionee — Liquidated Damages. ANYTHING TO THE
CONTRARY IN THIS AGREEMENT NOTWITHSTANDING, PROVIDED
OPTIONEE HAS NOT TERMINATED THIS AGREEMENT, IF THE LEASE
OF THE PREMISES IS NOT CONSUMMATED FOLLOWING DELIVERY
OF THIS AGREEMENT AS A RESULT OF A MATERIAL DEFAULT BY
OPTIONEE WITHOUT FAULT BY OWNER, OWNER SHALL BE
ENTITLED TO DETAIN TIME OPTION PAYMENT, AS IT HAS THEN
RECEIVED, AS LIQUIDATED DAMAGES FOR SUCH DEFAULT OF
OPTIONEE, AND IN SUCH EVENT, OPTIONEE SHALL HAVE NO
FURTHER RIGHT WHATSOEVER TO LEASE THE PREMISES AND
OWNER SHALL .HAVE NO RIGHT TO SEEK. ANY FURTHER DAMAGES
OR REMEDY, AT LAW OR IN EQUITY. T%IE PARTIES AGREE THAT IT
WOULD BE IMPRACTICAL AND/OR EXTREMELY DIFFICULT TO
ASCERTAIN THE ACTUAL DAMAGES THAT WOULD BE SUFFERED BY
OWNER AS A RESULT OF ANY SUCH DEFAULT BY OPTIONEE, AND
THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF
THIS AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR IN
THIS SECTION REPRESENT A REASONABLE ESTIMATE OF THE
DAMAGES WHICH OWNER WILL INCUR AS A RESULT OF ANY SUCH
DEFAULT BY OPTIONEE.
1,
Owner's Initials Optionee's Initials
b. Default by Owner. If the closing hereunder does not occur because of Owner's
breach or default under this Agreement, then Optionee shall be entitled to pursue
any remedies to which Optionee may be entitled under this Agreement, at law
and/or in equity, including without limitation, the right to specifically enforce this
Agreement, to record a notice of pendency of action against any of the Property
and/or to terminate this Agreement, have the Option Payment returned and pursue
an action for damages. In no event shall the Optionee be put to an election of
remedies, but instead, may cumulatively pursue available remedies,
I6.Ownez° Representations, Owner hereby represents, warrants, agrees and covenants to
Optionee that, to the best of its knowledge;
a. Owner owns fee simple title to the Property and has good, merchantable and
insurable title to the Property, free and clear of all liens, encumbrances, claims,
options, leases, rights of first refusals, or judgments. Owner will not, without the
prior written consent of Optionee, convey any interest in the Property or assign
any right, title and interest in this Agreement to any third party or change the
ownership, operation or control of Owner. Owner will not subject the Property to
any additional liens, encumbrances, covenants, conditions, easements, rights-of-
way, or similar matters after the Effective Date. Owner represents and warrants to
Optionee that, other than matters of record which would be disclosed by a search
I
H
of the public records, there are no other persons or entities having legal or
beneficial title or ownership interests or possessor rights to the Property, whether
the same purports to create an interest in ownership, use or access to, from, across
or through the Property.
b. The person executing this Agreement on behalf of Owner has full power and
authority to bind Owner to the obligations of Owner set forth herein, and upon
execution and delivery of the same, this Agreement will constitute valid and
binding instruments enforceable in accordance with their terms. The entry into
and performance of Owner's obligations under this Agreement will not violate or
result in a breach of any contract, agreement or any law, administrative
regulation, or court decree by which Owner or the Property is bound, the
consequence of which violation would be to prevent the performance of Owner's
obligations under this Agreement. No consent of any other patty is required for
the performance by Owner of its obligations hereunder.
c. Owner has not received notice of or been served with any pending or threatened
litigation, condemnation, foreclosure or sale in lieu thereof with respect to any
portion of the Property relating to or arising out of the ownership of the Property
by any person, company or governmental instrumentality, and the Premises has
lawful and valid access from the Premises to existing public highways and roads,
and sewer, electrical or other utility services, and all utilities which serve the
Premises enter the Premises through adjoining public streets or, if they pass
through an adjoining private tract, do so in accordance with valid public
easements, which casement(s) shall be sufficient for the -purposes of Optionee.
d, Owner has no knowledge (1) if any of the Property is within any area determined
to be flood prone or within a flood zone under Federal designation; (fl) of the
severance of any mineral rights and access rights related thereto; or (iii) of the
existence of any archeological materials, graves, burial sites, buildings,
foundations, wetlands or endangered or protected species.
e. Except as set forth on Schedule 16(c): (i) no underground storage tanks for
petroleum or any other substance, or underground piping or conduits are or have
previously been located on the Property; (ii) there have been no Releases of or
contamination by Hazardous Materials on, at, in, under to or from the Property;
(iii) Owner has provided Optionee with all environmental studies, records and
reports in its possession or control conducted by independent contractors, Owner
or any other person and all correspondence with any public or quasi -public
authority having jurisdiction concerning environmental conditions of the
Property, or which identify underground storage tanks or otherwise relate to
contamination of the soil or groundwater of the Property or effluent or emissions
into the air; (iv) the Property is in compliance with Environmental Laws; and (v)
Owner holds and is in compliance with all Environmental Permits required for the
ownership and any current operations or activities conducted at the Property. As
used herein, "Hazardous Materials" means petroleum, petroleum hydrocarbons or
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petroleum products, petroleum by-products, radioactive materials, asbestos or
asbestos -containing materials, gasoline, diesel fuel, pesticides, radon, urea
formaldehyde, mold, lead or lead -containing materials, polychlorinated biphenyls;
and any other chemicals, materials, substances or wastes in any amount or
concentration which are regulated under or for which liability can be imposed
under any Environmental Law; "Environmental Law" means any and all federal,
state, local, provincial and foreign, civil and criminal laws, statutes, ordinances,
orders, common law, codes, rules, regulations, judgments, decrees, injunctions
relating to the protection of health and the environment, worker health and safety,
and/or governing the handling, use, generation, treatment, storage, transportation,
disposal, manufacture, distribution, formulation, packaging, labeling, or Release
of or exposure to Hazardous Materials; "Environmental Permit" means any
federal, state, local, provincial, or foreign permits, licenses, approvals, consents or
authorizations required or issued by any governmental authority under or in
connection with any Environmental Law, including without limitation, any and all
orders, consent orders or binding agreements issued by or entered into with a
governmental authority under any applicable Environmental Law; "Release"
means any spilling, leaking, pumping, pouting, emitting, emptying, discharging,
injecting, escaping, migrating, leaching, dumping, or disposing of a Hazardous
Material into the environment.
f. If Owner is not a natural person, Owner is a duly formed and validly existing
entity and is qualified to do business in and in good standing under the laws of the
State. There is no litigation or injunctive action or proceeding pending or, to the
best of Owner's knowledge, threatened against Owner which would prevent the
performance of Owner's obligations under this Agreement.
g. Owner is not bankrupt or insolvent under any applicable federal or state standard,
and Owner has not filed for protection or relief under any applicable bankruptcy
or creditor protection statute and has not been threatened by creditors with an
involuntary applicable of any applicable bankruptcy or creditor protection statute.
h. Owner is not entering into the transactions described in this Agreement with an
intent to defraud any creditor or prefer the rights of one creditor over any other.
Owner and Optionee have negotiated this Agreement at arms' length and the
consideration paid represents fair value for the assets to be transferred.
17. Optionee Representations. Optionee hereby represents, warrants, agrees and
covenants to Owner that to the best of its knowledge:
a. Optionee is a limited liability company duly formed, validly existing in Delaware
and having authority to carry on business in the State in which the Property is
located. Optionee has the full legal right, power and authority, without the
consent of additional parties or patty, to enter into this Agreement and to perform,
its obligations hereunder and execute and deliver this Agreement.
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b. Optionee is not bankrupt or insolvent under any applicable federal or state
standard, and Optionee has not filed for protection or relief under any applicable
bankruptcy or creditor protection statute and has not been threatened by creditors
with an involuntary applicable of any applicable bankruptey or creditor protection
statute.
c. Optionce is not entering into the transactions described in this Agreement with an
intent to defraud any creditor or prefer the rights of one creditor over any other.
Owner and Optionee have negotiated this Option at arms' length and the
consideration paid represents fair value for the Option.
d. During the Option Term, Optionee shall, at all times, conduct its activities at the
Property in a lawful manner and in compliance with all laws, statutes, codes,
ordinances, orders, judgments, decrees, injunctions, rules, regulations, permits
and licenses which now or at any time hereafter may be applicable to the
Property, or any part thereof, any of the adjoining sidewalks, streets or ways, any
condition of the Property, or any part thereof, or the operation or use of the
Property, or any part thereof.
18. Insurance.
a. Owner and Optionee shall each maintain the following insurance coverage in full
force and effect throughout the Terms of this Agreement either through insurance
policies or acceptable self-insured retentions: Commercial General Liability
Insurance with limits of not less than $2,000,000 general aggregate, $1,000,000
per occurrence.
b. Optionee shall carry (i) adequate property loss insurance on any property of
Optionce, its employees, agents and contractors, and (ii) worker's compensation
and employer's liability insurance with a nationally recognized insurance carrier,
covering all persons employed by Optionce in connection with the permitted
activities of Optionee under this Agreement at the Property satisfying the
requirements of the worker's compensation statutes of the State in which the
Property is located. The amount and terms of insurance coverage will be
determined at Optionee's sole discretion. Optionce may, at its option, bring its
obligations to insure under this Article within the coverage of a "blanket" policy
of insurance which it may now or hereafter carry, by appropriate amendment,
rider, endorsement, or otherwise.
c. Each Party's insurance policy shall be written on an occurrence basis and shall
include the other Party as an additional insured as its interest may appear. Each
party shall provide copies of the foregoing insurance coverages prior to or
contemporaneous with the execution of this Agreement.
19. Preservation of Positions. Pending the Closing, Owner shall operate and maintain
the Property in the manner in which it is currently operated and maintained. Owner
DB2( 25183652.3
-12-
shall not take any action or enter into any contract affecting the Property without
Optionee's consent, which consent Optionce may withhold in Optionee's sole
discretion for any reason.
_.Loss, Damage or Condemnation. Loss or damage to the Property by fire or fi-om an
act of God shall be at the risk of the Owner until the Closing, and in the event that
such loss or damage occurs, the Optionce may, in its sole discretion, elect to accept
conveyance, in which case there shall be an equitable adjustment of the Option
Payment. If before the Closing, proceedings are commenced or threatened by
exercise of a power of eminent domain of the Property, or any portion thereof, (the
"Condemnation Proceedings") Optionce shall have the right, in its sole discretion, to
terminate this Agreement by delivering written notice thereof to Owner, and the
Option Payment shall be returned to Optionce within ten (10) days of notice to Owner
of said termination. If Optionee elects not to terminate this Agreement in the event of
such Condemnation Proceedings, then the Option Payment shall be pro -rated based
upon the portion of the land that is not subject to the Condemnation Proceedings,
21. Assignment. Each Party may sell, transfer or assign (collectively, an "Assignment")
this Agreement or any interest therein, with the prior written consent of the other
Party, which shall not be unreasonably withheld, conditioned or delayed; nrovided,
however,that, without the prior consent of Owner, Optionee may (a) assign this
Agreement to any other company directly or indirectly controlling, controlled by or
under common control with Optionee or to an affiliate, subsidiary or parent of
Optionee or a subsidiary or affiliate of Optionee's parent; (b) assign, mortgage,
pledge, hypothecate or otherwise transfer this Agreement in connection with any
financing of the acquisition or development of the property (including, without
limitation, pursuant to a sale-leaseback transaction); it being hereby understood that
Optionee shall have no right to assign, mortgage, pledge, hypothecate or otherwise
transfer any interest in Owner's fee title to the Property; or (c) assign this Agreement
to any other company, provided that such company shall use the Property in
accordance with the Permitted Use (as defined in the Lease) and has experience or
shall engage a service provider with experience operating systems similar to the
Project. Owner shall have thirty (30) days within which to approve or disapprove any
assignment requiring Owner's approval as set forth herein, and the failure of Owner
to approve or disapprove within said period shall be deemed an approval of the
assignment. In the case of a valid assignment made in accordance herewith, Optionce
shall be relieved of its obligations hereunder provided that the assignee assumes all of
the obligations of Optionce under this Agreement.
22. Attorneys' Fees,If any Party employs counsel to enforce or interpret this Agreement
against the other Party, including the commencement of any legal proceeding
whatsoever, the prevailing party shall be entitled to recover its reasonable attorneys'
fees and court costs (including the service of process, filing fees, court and court
reporter costs, investigative fees, expert witness fees, and the costs of any bonds,
whether taxable or not) and shall include the right to recover such fees and costs
DB2/ 25183652.3
-13-
incurred in any appeal and/or efforts to collect or otherwise enforce any judgment in
its favor in addition to any other remedy it may obtain or be awarded,
23. Intentionally Omitted..
24. Intentionally Omitted.
25. Counterparts. This Agreement may be executed in multiple counterparts and
delivered as an original document in hard copy or by electronic transmission in a
portable document format, each of which when taken together shall constitute but one
and the same original.
26. Further Assurances. The Parties shall at their own cost and expense execute and
deliver such further documents and instruments and shall take such other actions as
may be reasonably required or appropriate to carry out the intent and purposes of this
Agreement.
27. Governing Law. This Agreement shall be governed by the laws of the State without
giving effect to its choice of law or conflict of law principles.
28. Integrated Agreement; Modifications. This Agreement together with all exhibits
attached hereto contains all the agreements of the parties concerning the subject
hereof and cannot be amended or modified except by a written instrument executed
and delivered by the parties.
29. Interpretation. This Agreement has been negotiated at arm's length and each party
has been represented or has had the opportunity to be represented by independent
legal counsel in this transaction. Accordingly, each party hereby waives any benefit
under any rule of law or legal decision that would require interpretation of any
ambiguities in this Agreement against the patty drafting it.
M. Severability. If any term or provision of this Agreement is determined to be illegal,
unenforceable, or invalid in -whole or in part for any reason, such illegal,
unenforceable, or invalid provisions or part thereof shall be stricken from this
Agreement, any such provision shall be not affect the legality, enforceability, or
validity of the remainder of this Agreement.
31. Successors. This Agreement, and the rights and obligations of the Parties hereto,
shall be binding upon and inure to the benefit of the Parties and their respective
successors, successors -in -interest, purchasers, heirs, executors, administrators and
assigns.
32. Survival. Those provisions in this Agreement which by their terms are intended to
be or must be performed in whole or in part after the Closing or after termination of
this Agreement shall survive Closing and the termination of this Agreement.
DB2/ 251836523
-14-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year hereinabove first written,
dwq
s.
FAIM
SunEdison Originationl LLC
By
Name Marc Fioravanti
16 December 2014
Date
DB2/251836523
-15-
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Property Description:
(The Property includes parcel number 1000-096.00.01-017.005. A metes and bounds description
of the Property will be provided when available)
DB2/ 251836523
-16-
EXHIBIT B
FORM OF LEASE
See attached.
DB2/ 25I83652.3
-17-
GROUND LEASE
THIS GROUND LEASE (this "Lease') is dated as of , 2014. This
Lease is by and between Town of Southold which has an address of 53095 Main Road,
Southold, NY 11971 (together with its successors and assigns, "Landlord") and SunEdison
Originatioril LLC, a Delaware limited liability company, and/or its assigns (together with its
successors and assigns, "SunE" and, together with Landlord, each, a "Par'" and together, the
"Parties ").
Landlord owns a parcel of land, any improvements located thereon and rights and
casements appurtenant to the parcel (the "Property") situated in Suffolk County, New York,
known by assessor parcel SCTM #1000-96-1-17.5. in the Suffolk County Assessor's Office in
Suffolk County, New York and commonly referred to as and commonly referred to 6155 Cox
Lane, Cutchogue, New York and more fully and legally described on Exhibit "A-111 attached
hereto. Landlord, for and in consideration of the rents, covenants and agreements contained in
this Agreement on the part of SunE, agrees to and does hereby lease to SunE, and SunE agrees to
and does hereby lease from Landlord, subject to the terms and conditions of this Lease, a
leasehold estate in the Property or portion thereof and any Improvements located thereon situate
in Suffolk County, SCTM #1000-96-1-17.5, which is more fully and legally described on
Exhibit "A-211 attached to this Lease and incorporated herein by reference (the "Premises ") for
the purposes of installing, operating, maintaining and removing a solar electric generating
facility, which includes all photovoltaic solar panels, mounting systems, inverters, transformers,
integrators, all electrical lines and conduits required to generate, collect, distribute and transmit
electrical energy and such additional utility lines, cables, conduits, transformers, wires, meters,
monitoring equipment, and other necessary and convenient equipment and appurtenances
common to such a facility ("Solar FaciliU ").
TOGETHER with all right, title and interest of Landlord in and to all casements, rights,
privileges and appurtenances to the same belonging or in any wise appertaining thereto, and all
right, title and interest, if any, of Landlord in any land lying in the bed of any street, avenue or
alley adjoining the parcel of land described above to the center line thereof.
TO HAVE AND TO HOLD the aforesaid Premises and appurtenant interests unto SunE
for the Term,
1. Definitions. All capitalized terms not defined in the body of this Lease shall have the
meaning as set forth in Exhibit "B" attached hereto.
2. Term of Lease. The lease Term shall be as follows:
a. An Initial Term commencing on the Effective Date and expiring upon the
Commercial Operation Date (the "Initial Terin"). SunE and Landlord agree to
execute a memorandum confirming the date that is the COD.
DB2/ 25183826.3
b, The Primary Term shall be for twenty (20) years commencing on the COD (the
"Priniga Term").
c, A Final Term commencing upon expiration of the Primary Term, to allow for
SunE's decommissioning and removal of the Solar Facility (the "Final Term"),
but which shall last no longer than six (6) months, unless extended per mutual
written agreement of the Parties. If the Lease is extended, then this Final Term to
allow for decommissioning and removal of the Solar Facility shall likewise be
applicable.
d. SunE shall have the right to elect to extend the lease for up to four (4) five (5)
year extensions by providing Landlord written notice of its election to extend on
or before 30 days prior to the expiration of the Term then in effect.
3. Rent. As consideration for Landlord leasing real property to SunE, SunE agrees to
pay Landlord rent as follows:
b. SunE covenants and agrees to pay to Landlord, in lawful money of the United
States of America, during the Term rent in the amount of the Basic Rent, which
shall be $22,000 per annum. The Basic Rent shall be due and payable on the first
day of the applicable calendar month. The first full month's Basic Rent and ru""t
I
for any partial calendar month during the Initial Term, if applicable, shall be ph'144C,
within ten (10) days of the Effective Date. Thereafter Tenant shall pay to
Landlord the Basic Rent in twelve (12) equal monthly installments during each
lease year in the amount of $1,833.33 on the first day of each succeeding month
until the expiration or termination of the Term. SunE, at its option, shall have the
right to prepay any portion of the Basic Rent.
c. SunE covenants and agrees to pay as additional rent all Impositions, costs,
expenses, liabilities, obligations, and other payments of whatever nature which
SunE has agreed to pay or assume under the provisions of this Lease or which
SunE agrees are to be at the expense of SunE,
— I I
At all times while this Lease is in force and effect, all rights to, title to and possession of the
Solar Facility (including without limitation, all additions, alterations, and improvements thereto
or replacenients thereof, all appurtenantfixtures, machinery and equipment installed therein), all
electrical output from the Solar Facility, Environmental Attributes and Solar Incentives belong
solely to SunE and shall remain the personal property of SunE and shall not attach to or be
deemed a part of, or fixture to, the Premises or Property. The Solar Facility shall
at all times retain the legal status of personal property as defined under Article 9
of the Uniform Commercial Code, as adopted in the State. "Environmental
Attributes" shall mean, without limitation, carbon trading credits, renewable
energy credits or certificates, emissions reduction credits, emissions allowances,
green tags, tradable renewable credits, or Green -e® products. "Solar Incentives"
includes, without limitation, any federal, state or local accelerated depreciation,
installation or production -based incentives, investment tax credits and subsidies.
S. Impositions.
a. Except as set forth below, throughout the Term, SunE shall pay, or cause to be
paid, all Impositions assessed against the Property as a result of the installation of
the Solar Facility at the Property, and further provided that Impositions assessed
for fiscal periods of the taxing authority which extend beyond the Term shall be
apportioned between Landlord and SunE at the expiration of the Term. Landlord
shall promptly forward to SunE all notices, bills or other statements received by
Landlord concerning any Imposition. SunE shall pay all such Impositions
associated with the Solar Facility directly to the taxing authority as the same
become due and payable and before any fine or penalty is added thereto for the
nonpayment thereof, but SunE may pay any Imposition (including any interest
accrued on the unpaid balance of such Imposition) in installments if so payable by
law, whether or not interest accrues on the unpaid balance. Notwithstanding
anything to the contrary contained in the foregoing, if the Town of Southold shall
elect to opt -out, withdraw, suffer to permit or otherwise fail to maintain any
effective and approved solar or wind energy systems exemption or other tax
exempt status, including, without limitation, the real property tax exemption
relating to solar or wind energy systems set forth in N.Y. Real Prop. Tax Law §
487, and such opt -out, withdrawal, suffering to permit or failure to maintain said
status results in any Imposition of taxes becoming owing by SunE with respect to
the Solar Facility at the Premises, SunE shall be entitled to a dollar for dollar
reduction in rent due hereunder equal to the amount of such tax owing or payable
by SunE for each period during the term, and any extension hereof, that any such
tax is assessed against SunE. The Landlord agrees that within fifteen (15) days
after request therefor by SunE, Landlord shall fully complete and file the New
York State Department of Taxation & Finance — Office of Real Property Tax
Services Application for Tax Exemption of Solar or Wind Energy Systems or
Farm Waste Energy Systems for the Property with the appropriate city or town
assessor, and as applicable, village assessor. SunE shall assist and cooperate with
such filing and shall pay all expenses, if any, in connection with the completion
DB2/ 25183826.3 and filing thereof. Landlord shall promptly provide SunE with any material
3
notices it receives regarding such application for exemption, including any
approval or disapproval thereof.
b. SunE shall have the right in its own name to contest the validity or amount, in
whole or in pail, of any Imposition (including a reduction in the assessed
valuation of the Premises or Property) by appropriate proceedings timely
instituted, provided such contest and at all times effectively stays or prevents any
official or judicial sale of the Premises or Property or any part thereof by reason
of nonpayment of any Imposition. Other than with respect to Impositions
imposed or assessed by the Town of Southold, Landlord shall, at SunE's request
and expense, fully cooperate with SunE in all reasonable ways to contest any
Imposition. SunE shall hold Landlord harmless from any costs and expenses
related to any such contest and SunE shall promptly pay any valid final
adjudication enforcing any Imposition. Any refund of Real Estate Taxes or other
Impositions payable or paid by SunE as a result of any such proceedings
attributable to a period of time during the Term shall be the property of SunE.
6. Insurance.
a. Landlord and SunE shall each maintain the following insurance coverage in full
force and effect throughout the Term of this Lease either through insurance
policies or acceptable self-insured retentions: Commercial General Liability
Insurance with limits of not less than $2,000,000 general aggregate, $1,000,000
per occurrence. Landlord insurance coverage may be within the coverage of a
blanket policy it has in effect at the time of this agreement or may hereafter place
in effect,
b. SunE shall carry (i) adequate property loss insurance on any property of SunE, its
employees, agents and contractors, and (ii) worker's compensation and employer's
liability insurance with a nationally recognized insurance carrier, covering all
persons employed by SunE in connection with the permitted activities of SunE
under this Lease at the Premises satisfying the requirements of the worker's
compensation statutes of the State in which the Premises is located. The amount
and terms of insurance coverage will be determined at Landlord's sole discretion.
Landlord may, at its option, bring its obligations to insure under this Article
within the coverage of a "blanket" policy of insurance 'which it may now or
hereafter carry, by appropriate amendment, rider, endorsement, or otherwise.
DB2/ 251838263
4
7. Alterations.
a. SunE may at any time, or from time to time, at its sole cost and expense and
without obtaining the consent of Landlord but in compliance with all Legal
Requirements (including obtaining and complying with any required permits in
connection therewith) construct Improvements, make changes, alterations or
modifications (collectively, the "Alterations") (including reconstruction) to the
Improvements, or any part thereof and (ii) remove or demolish the Solar Facility
or any other structures hereafter located on the Premises. In furtherance, but not
in limitation, of the foregoing, Landlord acknowledges that SunE intends to
construct a photovoltaic solar energy generation and transmission facility on the
Premises,
b. SunE shall, within 30 days after demand by Landlord, discharge, by the filing of a
bond or otherwise, any mechanic's, materialman's or other lien asserted against
the Premises or Property by reason of the making of any Alterations.
8. Repairs, Maintenance, Damage or Destruction of the Premises. Landlord shall not be
required to furnish any services or facilities or to make any repairs or alterations in or to
the Premises or the Improvements. SunE hereby assumes the full and sole responsibility
for the condition, operation, repair, replacement, maintenance and management of the
Premises and the Improvements throughout the Term (including any repairs or
reconstruction as a result of dainage or destruction due to casualty), provided that SunE
shall have no obligation to construct or reconstruct any Improvements or to maintain the
Improvements in any particular condition or state of repair so long as the Improvements
comply with Legal Requirements. All insurance proceeds paid on account of any damage
or destruction under the insurance policies maintained by SunE shall be paid to the SunE.
9. Use of Premises; Access; Compliance with Legal Requirements.
a. SunE shall have the right during the Term to exclusively use and occupy, lease
and sublease the Premises, including without limitation, the construction,
operation, maintenanc and removal of the Solar Facility and any other business or
activity incidental or related thereto (the "Permitted Use ").
b. SunE shall have reasonable access for pedestrians, vehicles and utility lines to the
premises over the main access road to the Town of Southold transfer station.
SunE and SunE's employees, agents and independent contractors shall have
access to the Property twenty-four (24) hours a day, seven (7) days a -week; it
DB2/251838263
5
being hereby understood however, that prior to access to the Property and
Premises outside of the hours of 7:30 to 5:15 PM daily except public holidays,
SuneE shall contact the Southold police department and inform them of their
intent to access the Property and Premises. Sun E represents that whichever
agents, employees or contractor enter the Premises will lock and secure the access
gate upon departure; provided, however that a failure to do so shall not be
constitute a default hereunder. SunE shall have a non-exclusive casement for
access to the Premises through, on, over and under any Private Roads whether the
Private Roads are currently existing or constructed after the Effective Date. If for
any reason caused solely by Landlord's action or failure to act, SunE is prevented
from reasonable access to the Premises for the purposes set forth in this Lease,
Landlord shall take all necessary and reasonable steps to remove any such
impediment to access and, if required by SunE, Landlord shall promptly provide
an alternate means of access to the Premises that is reasonably acceptable to
SunE.
c. SunE shall, throughout the Term, promptly comply with all Legal Requirements
now or hereafter applicable to the Premises and the Solar Facility. SunE shall,
however, have the right to contest any of the foregoing and postpone compliance,
provided such contest shall be prosecuted with due diligence, except that SunE
shall not so postpone compliance therewith as to subject Landlord to any fine or
penalty or to prosecution for a criminal act, or to cause the Premises, or any part
thereof, to be subject to the imposition of any liens or to be condemned or
vacated. Notwithstanding anything to the contrary herein, in no event shall Tenant
have any liability or obligation with respect to any Pre-existing Environmental
Condition, any uses of the Premises prior to the Effective Date or in connection
with any other pre-existing or latent defects or conditions with respect to the
Premises. Landlord, shall be solely responsible for compliance with all Legal
Requirements, that relate to the conditions or uses of the Premises prior to the
Effective Date, including without limitation, use of the Premises as a landfill and
all Pre-existing Environmental Conditions. In no event shall SunE be responsible
for compliance with any Legal Requirements relating to any conditions or uses of
the Premises prior to the Effective Date, including without limitation, the use of
the Premises as a landfill or the presence of any Pre-existing Environmental
Conditions.
10. Condemnation.
DB2/ 25183826.3
6
a. If, at any time during the Term, the whole of the Premises or Property is taken for
any lawful power or authority by the exercise of the right of condemnation or
eminent domain, including any such taking by "inverse condemnation," then this
Lease shall terminate at SunE's option. If this Lease terminates, it shall terminate
as of the earlier of the date that title vests in the condemnor or the date that the
condemnor takes possession of the property so taken ("Date of Taking"). In such
event, Rent and all other charges payable hereunder shall be prorated and paid to
the date of termination.
b. If, at any time during the Term, a portion of the Premises or Property, or other
access way which is reasonably necessary for access to the Premises or Property,
is taken for the purposes set forth in subparagraph (a), above, and Landlord
cannot provide an alternative access, and such taking materially, adversely affects
the operation of the Solar Facility on the Premises, SunE shall have the right to
elect to terminate this Lease. If SunE so elects to terminate this Lease, it shall
terminate as of the Date of Taking and SunE shall give written notice of such
termination to Landlord within ninety (90) days after the date of SunE's receipt of
notice of such taking. In such event, Rent and all other charges payable hereunder
shall be prorated and paid to the date of termination.
c. If the whole or a part of the Premises or Property is taken by condemnation,
Landlord shall have the unqualified right to pursue its remedies against the
condemnor for the full value of Landlord's fee interest and other property
interests in and to the Premises or Property. Similarly, SunE shall have the
unqualified right to pursue its remedies against the condemnor for the full value
of SunE's leasehold interest, the Solar Facility and other property interests of
SunE in and to the Premises or Property. If the laws of the State allow or require
the recovery or award from the condemnor to be paid into a common fund or to be
paid to Landlord only, and if such recovery or award is so paid into a common
fund or to Landlord only, then the recovery or award so paid shall be apportioned
between the Parties according to the value of their respective property interests as
they existed on the date of the condemnation, giving due consideration for the
number of years remaining in the Term and the condition of the Solar Facility and
Improvements comprising the Premises. If the recovery or award from the
condemnor is paid into a common fund or paid to Landlord only, then the SunE
shall be entitled to that portion of such award given for the value of the Solar
Facility, SunE's relocation expenses and other expenses of SunE included within
such recovery or award. Except for SunE's leasehold interest in the Premises (that
DB2J25183826.3 will be apportioned in accordance with this Section), SunE shall not be entitled to
7
share in any separate award made to Landlord for the value of any land owned by
Landlord, which is the subject of the taking. Landlord shall not be entitled to
share in any separate award made to SunE for the value of the Solar Facility,
SunE's relocation expenses, and SunE's other expenses. The provisions of this
subparagraph (c) shall survive any termination of this Lease pursuant to the
provisions of subparagraphs (a) or (b).
d. If, at any time during the Term, a part of the Premises or is taken by
condemnation and SunE is not entitled to or does not exercise its right to
terminate, this Lease shall continue in full force and effect, except that Rent shall
be reduced as of the Date of Taking, so that for the remainder of the Term, SunE
shall pay only such portion of the Rent as the rental value of the part remaining
after condemnation bears to the rental value of the entire Premises at the date of
condemnation. SunE shall perform the construction, repair, alteration or
restoration of the remaining part of the Premises and Solar Facility so that they
are suitable for the use made by SunE immediately prior to the condemnation;
provided, however, that the condemnation award shall be made available to pay
for such repairs and SunE shall not be obligated to expend an amount greater than
the amount awarded to Landlord and SunE on account of the taking of a portion
of the Solar Facility, exclusive of that portion of the award attributable to real
property taken. If the amount awarded to Landlord and SunE on account of the
taking is not sufficient to permit SunE to so alter, repair, and restore the Premises
and Solar Facility, SunE shall notify Landlord of such deficiency within thirty
(30) days after the Date of Taking and Landlord may elect to contribute the
amount of the deficiency to the cost of the repair and restoration or to terminate
this Lease. Landlord shall notify SunE of its election within thirty (30) days after
the date on which Landlord receives the notice of deficiency from SunE. If
Landlord elects to terminate the Lease, the termination shall be effective as of the
Date of Taking and all Rent, Additional Rent and other charges payable hereunder
shall be prorated and paid to the date of termination. The condemnation award
received by Landlord and SunE shall be allocated as set forth in subparagraph (c)
above.
11. Easements and Encumbrances.
a. In the event requested by SunE and subject to compliance with all legal
requirements, Landlord shall use commercially reasonable efforts to (i) grant such
easements, rights of way, or other rights or encumbrances necessary for the
DB2/25183826.3 completion, maintenance, operation or removal of the Solar Facility, across, over,
8
under or through any property adjacent to the Premises or Property, owned or
controlled by Landlord or any Landlord affiliate (collectively, the "Sula].oundhlg
Property") and (ii) deliver such easements, rights of way and other rights or
encumbrances within fifteen (15) days of request by SunE.
b. Landlord hereby grants SunE the right, but not the obligation subject to all
permits and legal requirements, from time to time to trim and to cut down and
clear away or otherwise destroy any and all trees, vegetation and brush now or
hereafter on the Surrounding Property which now or hereafter in the reasonable
opinion of SunE may be a hazard to the Solar Facility, overshadow or otherwise
block or interfere with access of sunlight to the Solar Facility and/or interfere with
the exercise of SunE's rights hereunder.
c. Landlord shall not construct buildings or structures, initiate or conduct activities
or plant trees or vegetation of any type or allow any trees or other vegetation on
the Surrounding Property which now or hereafter in the reasonable opinion of
SunE may be a hazard to the Solar Facility, overshadow or otherwise block or
interfere with access of sunlight to the Solar Facility and/or interfere with the
exercise of SunE's rights hereunder. Landlord and SunE hereby acknowledge
that SunE shall have the right (but shall not be obligated) to remove, at Landlord's
cost, any such buildings or other structures in violation of the preceding sentence
if the same shall not have been removed by Landlord within five (5) days after
request therefor by SunE. Notwithstanding anything contained to the contrary
herein, SunE shall be permitted to a reimbursement of such costs as an abatement
of Basic kept.
& Landlord grants to SunE a non-exclusive easement to be located at a mutually
acceptable location on a portion of the Surrounding Property to be used for
temporary (i) storage and staging of tools, materials and equipment, (ii)
construction laydown, (iii) parking of construction crew vehicles and temporary
construction trailers, (iv) vehicular and pedestrian access and access for rigging
and material handling, and (v) other facilities reasonably necessary to construct,
erect, install, expand, modify or remove the Solar Facility, Upon determination by
SunE, of such easements as may be necessary or convenient for successful
completion of the Project during the Option Period (including those set forth in
Section (I I (a) and 11(d) hereof), a detailed description of such easements or
separate standalone easements shall be established by the parties. Upon request by
SunE, Landlord shall thereafter execute such easements and permit and does
DB2/251838263 hereby authorize SunE to record the same in the Suffolk County land records.
9
e. In the event Landlord sells, conveys or otherwise transfers ownership of any of
the Surrounding Property, Landlord shall contain a description of the aforesaid
easements and prohibitions in any instrument evidencing such transfer,
12. Mortgages; Assignment and Subletting.
a. SunE shall have the right, from time to time and at any time, without the prior
consent of Landlord, (i) hypothecate, mortgage, pledge or alienate the Solar
Facility equipment, the Solar Facility, SunE's leasehold, beneficial easements
and/or the rights granted to SunE under this Lease, and (ii) to sell, assign, transfer
or otherwise dispose of this Lease as a whole or sublet the Premises or the
Improvements, or both, or any part thereof. Except as provided in Section 11
above, in no event whatsoever shall SunE have the right to encumber Landlord's
fee simple interest in the Premises or Property without Landlord's consent,
b. In the event of an assignment of this Lease pursuant to Section 12(a), all liabilities
and obligations of the assignor (including a Leasehold Mortgagee which acquires
the leasehold estate pursuant to a foreclosure and sale) accruing after such
assignment shall terminate and be released and discharged provided the assignee
shall have assumed each and every one of the terms, covenants and provisions
contained in this Lease by an instrument of assumption recorded among the land
records.
c. For the benefit of the holder of any Leaschold Mortgage who shall have become
entitled to notice as hereinafter provided in this Section 12, Landlord agrees not to
accept a voluntary surrender of this Lease at any time while such Leasehold
Mortgage shall remain an encumbrance on the leasehold estate or Solar Facility or
both; and Landlord and SunE further agree for the benefit of any such Leasehold
Mortgagee that, so long as any such Leasehold Mortgage shall remain an
encumbrance on the leasehold estate, without the prior written consent of such
Leasehold Mortgagee, Landlord and SunE will not subordinate this Lease to any
mortgage which may hereafter be placed on the fee of the Premises or Property or
amend or alter any terms or provisions of this Lease or consent to any prepayment
of any Basic Rent,
d. If any Leasehold Mortgagee shall have given to Landlord, before any default shall
have occurred under this Lease, a notice specifying the name and address of such
Lcaschold Mortgagee, Landlord shall send to such Leasehold Mortgagee a copy
DB2/251838263
10
of each notice of default at the same time as and whenever any such notice of
default shall thereafter be given by Landlord to SunE, addressed to such
Leasehold Mortgagee at the address last furnished to Landlord. No notice of
default by Landlord shall be deemed to have been given unless and until a copy
thereof shall have been so given to such Leasehold Mortgagee. SunE irrevocably
directs that Landlord accept, and Landlord agrees to accept, performance and
compliance ("Performance") by any such Leasehold Mortgagee of and with any
term, covenant or condition on SunE's part to be kept, observed or performed
under this Lease with the same force and effect as though kept, observed or
performed by SunE. Notwithstanding such Performance by Leasehold
Mortgagee, Lcasehold Mortgagee shall have no obligation to undertake such
Performance and if having kept, observed or performed under this Lease,
Leaschold Mortgagee shall not have any obligation to continue such Performance.
e. In case of the termination of this Lease by reason of the happening of an Event of
Default, Landlord shall give notice thereof to any Leasehold Mortgagee who shalt
have notified Landlord of its name and address pursuant to Section 12(d). If,
within 30 days after the delivery of such notice, such Leasehold Mortgagee shall
notify Landlord that such Leaschold Mortgagee desires to enter into a lease of the
Premises with Landlord shall join with the Leasehold Mortgagee, or its nominee,
in executing and delivering a new lease of the Premises to such Leasehold
Mortgagee, or its nominee, for the remainder of the Term, at the Basic Rent and
upon the terms, covenants and conditions contained in this Lease.
f. SunE shall have the right to sublet all or portions of the Premises or the
Improvements, or both, provided that each such sublease shall be subject and
subordinate to this Lease and to the rights of Landlord hereunder. Upon the
written request of SunE and as long as an Event of Default shall not have
occurred and be continuing, Landlord agrees to enter into a non -disturbance and
attornment agreement with a subtenant of the Premises or the Improvements, or
both, which agreement shall provide in substance that, so long as such subtenant
complies with all the terms, covenants and conditions of its sublease, Landlord, in
the exercise of any of its rights or remedies under this Lease, shall not deprive the
subtenant of possession, or the right of possession, of its subleased portion of the
Premises or the Improvements, or both, during the term of such sublease, or join
the subtenant as an adverse or defendant patty in any action or proceeding to
enforce or terminate this Lease or to obtain possession of the premises demised in
such space lease for any reason other than a breach by the subtenant of the
DB2/25183826,3 covenants contained in its sublease.
11
13. Liens.
a. Landlord hereby waives any and all rights it may have to any lien rights, whether
statutory or otherwise, on SunE's personal property, including without limitation,
the Solar Facility, SunE's inventory, trade fixtures, and removable equipment and
fixtures located within or on the Premises, whether or not any part of the Solar
Facility becomes so related to the Premises that an interest therein would
otherwise arise under applicable law. Landlord agrees to (i) take no action to
impede or interfere with Leaschold Mortgagee's remedies under a security
interest in said personal property of SunE and (ii) execute, upon request, a
confirmation of such waiver in a form reasonably satisfactory to SunE and its
lenders. Notwithstanding the foregoing, nothing contained in the foregoing shall
prohibit Landlord from enforcing, in conformity with the terms of this Lease, a
valid, final, non -appealable judgment obtained from a court of competent
jurisdiction against Tenant arising out of matters pertaining to this Lease.
b. Landlord expressly acknowledges and agrees that any contractual statutory or
common law lien rights in favor of Landlord or any mortgage or deed of trust
granted by Landlord subsequent to the date of this Lease are and shall be
expressly made subordinate and inferior to SunE's right, title and interest in this
Lease, any sublease permitted hereunder and/or the Easements granted by this
Lease and to any liens and security interests granted by SunE in favor of any
Leasehold Mortgagee. Landlord agrees to execute or cause its mortgagee to
execute any further documentation that may be requested by SunE or a Leasehold
Mortgagee of any of the foregoing to evidence such subordination.
c. In the event Landlord receives a default notice or notice of lien from any of its
lenders or other party holding a mortgage, deed of trust or security interest in the
Premises, Landlord agrees to promptly (i) provide SunE, the Leaschold
Mortgagee and subtenant, if any, with a copy of such notice, and (ii) take such
actions necessary to cure such default and release any monetary encumbrances
(i.e. mechanics' liens, judgment liens, tax liens, etc.).
d. If Landlord fails to pay any of its obligations secured by a mortgage, deed of trust
or security interest, including, but not limited to, mechanics' liens, judgment liens,
tax liens, in the Premises when due, SunE may at its sole option, pay such amount
and deduct it from the amount owed to the Landlord under this Lease.
DB2/ 25183826.3
12
14. Default Provisions.
a. If any one or more of the following events (hei-einafter sometimes referred to as
"Events of Default") shall happen:
if SunE shall default in the due and punctual payment of the Basic Rent or
any other monetary sums payable by SunE under this Lease, when and as
the same shall become due and payable, and such default shall continue
for more than 20 days after a notice thereof shall have been given by
Landlord to SunE; or
ii. if SunE shall default in keeping, observing or performing any of the non -
monetary terms, covenants or conditions contained in this Lease on SunE's
part to be kept, performed or observed, and if such default is not remedied
by SunE (i) within 30 days after Landlord shall have given SunE a notice
specifying such default, or (ii) in the case of any such default which
cannot with due diligence and in good faith be cured within 30 days,
within such additional period as may be reasonably required to cure such
default with due diligence and in good faith; or
iii. if a default shall occur under SunE's indebtedness secured by a Leaschold
Mortgage in the granting of which Landlord has joined pursuant to Section
12, which entitles the holder thereof to accelerate the maturity of the
unpaid balance; then, and in any such event, Landlord shall have the right,
at any time thereafter while such Event of Default shall be continuing, to
give notice to SunE and to any Leasehold Mortgagee, specifying such
Event(s) of Default and stating that this Lease and the term hereby
demised shall expire and terminate on the date specified in such notice,
subject to the provisions of Section 14(b), which shall be at least 15 days
after the giving of such notice, and on the date specified in such notice this
Lease and all rights of SunE under this Lease shall expire and terminate
unless the default shall have been cured prior to the expiration date
specified in such notice.
b. Upon the occurrence of any default by SunE hereunder, Landlord agrees, within
five (5) days of such default and prior to taking any action to terminate this Lease,
to send written notice of such default to any Leasehold Mortgagee and the trustee
under any Leasehold Mortgage. If SunE fails to cure any default under this Lease
DB2/ 25183826.3 within any applicable grace and cure periods, then Landlord shall afford to
13
Leasehold Mortgagee an additional thirty (30) days within which Leasehold
Mortgagee shall have the right, but not the obligation, to cure such default. If
Leasehold Mortgagee elects to cure, but cannot remedy the default completely
within this additional thirty (30) day period, then Landlord shall give Leasehold
Mortgagee a reasonable extension of time so to do, provided that Leasehold
Mortgagee continues to pursue such remedies with reasonable diligence.
Landlord agrees that, so long as Leasehold Mortgagee shall have the right to cure
any default by SunE under this Lease, as provided herein, Landlord shall not take
any action to terminate this Lease. In the event that the default under this Lease is
a result of the bankruptcy of SunE or is otherwise incapable of being cured by
Leasehold Mortgagee, within ten (10) days after a request from Leasehold
Mortgagee, which request has been made within thirty (30) days following
Leasehold Mortgagee's receipt of written notice of such default, Landlord agrees
that it will, at Leasehold Mortgagee's sole option, enter into a new ground lease
with Leasehold Mortgagee or its nominee for the remaining portion of the Term,
and upon the terms and conditions that would have been applicable for such
period under this Lease had the default not occurred. In the event that Leasehold
Mortgagee does not elect to cure any default by SunE under this Lease or does not
elect to enter into a new ground lease with Landlord, the Leasehold Mortgage
shall be and remain a first priority lien against the fee simple interest of Landlord
in the Premises and Leaschold Mortgagee shall be entitled to foreclose against
Landlord's fee simple interest in the Premises and to exercise any other remedies
it may have under the Leasehold Mortgage or under any other documents
evidencing or securing repayment of the Leasehold Mortgagee.
c. Each right or remedy of Landlord provided for in this Lease shall be cumulative
and shall be in addition to every other right or remedy provided for in this Lease
or now or hereafter existing at law or in equity or by statute or otherwise,
15. Surrender of Possession. On the expiration or earlier termination of this Lease, title
to all Improvements located at the Premises shall continue to be the property of SunE. In
accordance with the foregoing, SunE shall, on or before the last day of the Term, or upon
the earlier termination of this Lease, peaceably and quietly leave, Surrender and yield up
to Landlord the Premises, free of subtenancies. In addition to the foregoing, Tenant
hereby agrees to decommission the Solar Facility in conformity with applicable Southold
Legal Requirements regarding same.
DB2/ 251838263
14
16. Indemnification. a. SunE hereby agrees to indemnify and hold harmless Landlord from
and against any and all claims, costs and expenses, including reasonable attorney's fees,
that (i) arise from or are connected with the possession, use, occupancy, management,
repair, maintenance or control of the Premises and the Improvements, or any portion
thereof, or any work or thing done in, on or about the Premises or the Improvements by
SunE or anyone claiming under or through SunE, or (ii) arise from or are connected with
any act or omission of SunE or SunE's agents, employees or invitees, or (iii) result from
any default, breach, violation or nonperformance of this Lease or any provision therein
by SunE, except if caused by Landlord's, or its agents, contractors' invitees' or
employees' negligence or willful misconduct. SunE shall, at its own cost and expense,
defend any and all actions, suits and proceedings which may be brought against Landlord
with respect to the foregoing or in which Landlord may be impleaded. SunE shall pay,
satisfy and discharge any and all final judgments, orders and decrees which may be
recovered against Landlord in connection with the foregoing. Notwithstanding anything
to the contrary herein, SunE shall have no obligation to indemnify or hold harmless
Landlord with respect to any Pre-existing Environmental Conditions or any other
conditions that existed or uses that occurred prior to the Effective Date.
b. Landlord hereby agrees to indemnify and hold harmless SunE and its
successors and assigns from and against any and all claims, costs and expenses, including
reasonable attorney's fees, that arise from or are related to conditions (including Pre-
existing Environmental Conditions) that existed prior to the Effective Date or uses of the
Premises prior to the Effective Date.
17. Quiet Enjoyment; Nuisance; Conveyance by Landlord.
a. Landlord agrees that SunE shall quietly and peaceably have, hold, possess and
enjoy the Premises pursuant to the terms of this Lease and for the Term of this
Lease, and any extension thereof, without hindrance, ejection or molestation by
Landlord or any patty claiming by, under or through Landlord. Landlord shall
defend title to the Premises or Property, and the use and occupancy of the same,
against the claims of all persons, except those claiming by or through SunE.
Landlord shall not enter into or modify any documents, including any
declarations, easements, restrictions or other similar instruments, which may
materially affect the Premises or Property, or the rights and/or obligations of
SunE hereunder, without first obtaining the prior written consent of SunE, which
DB2/ 25183826.3 consent shall not be unreasonably withheld.
15
b. In the event of a default by Landlord under this Lease, Tenant shall have such
remedies as prescribed hereunder or otherwise available at law or in equity or by
statute or otherwise.
c. Landlord has been informed by SunE and understands that the presence and
operations of the improvements on the Land will potentially result in some
nuisance to Landlord, such as higher noise levels than currently occur at the
Premises and Property and the surrounding area and visual impact.
d. If Landlord, or any successor to Landlord's interest in the Premises or Property,
shall convey or otherwise dispose of such interest, then upon such conveyance or
other disposition all liabilities and obligations on the part of Landlord, or such
successor owner, as Landlord under this Lease, accruing after such conveyance or
disposition, shall cease and terminate and each successor owner shall, without
further agreement, be bound by Landlord's covenants and obligations, but only
during the period of such successor's ownership.
18. Inspection by Landlord. SunE shall permit Landlord, or its authorized representatives,
to enter the Premises and the Improvements at all reasonable times during usual business
hours, upon at least ten (10) days' prior notice from Landlord, for the purposes of
inspecting the Premises. SunE shall have the right to have SunE's representatives
accompany Landlord and/or its authorized representatives during all or any part of such
inspection,
19. Limitation on SunE's Liability. Landlord agrees that any claim, judgment or decree of
any court or arbitrator(s) against SunE and in favor of Landlord as a result of any default
or breach of any of the terms, covenants, conditions or limitations contained in this Lease
on SunFs part to be kept, observed and performed, shall not be satisfied by the assets of
SunE's officers, directors, employees, shareholders, members, partners, other equity
owners, and Landlord shall not have the right to seek or obtain a personal judgment
against SunE's officers, directors, employees, shareholders, members, partners, other
equity owners for any damages.
DB2/ 251838263
16
20. Landlord's Covenants. Landlord hereby covenants and agrees to give SunE possession
of the Premises on the Effective Date, free and clear of all tenants and occupants. In
addition, on the Effective Date, Landlord shall have removed all of its personal property
and equipment from the Premises, it being understood that Landlord shall have no right
to enter onto the Premises from and after the Effective Date except pursuant to Section 18
hereof. Subject to the foregoing and the other representations, warranties and covenants
contained in this Lease, the Premises shall be delivered to SunE on the Effective Date in
its "as is, where is" condition. Except for entry by SunE under the terms of this Lease,
Landlord agrees, for itself and for parties under its control, not to allow entry upon the
Premises except for the purpose of inspection, and shall not interfere with or handle any
of SunE's equipment or the Solar Facility without written authorization from the SunE,
provided that Landlord will provide SunE with 48 hours notice, except in the event of an
emergency, in which case Landlord will give such notice as is practicable under the
circumstances to promptly notify SunE upon the discovery of an emergency condition at
or in the Solar Facility.
21. Representations of Landlord. The representations and warranties of Landlord set forth
in the Option Agreement are incorporated herein by reference with respect to this Lease
and the Property and Premises and are deemed to be remade by Landlord to SunE
hereunder,
22. SunE's Purchase Rights.
23. Certificates. Either party agrees, at any time and from time to time upon not less than 20
days' prior notice by the other party, to execute, acknowledge and deliver to the other
party, or to any person designated by the other party, a statement in writing certifying that
this Lease is unmodified and in full force and effect (or, if there have been modifications,
that the Lease is in full force and effect as modified and stating the modifications), and
the dates to which the rent has been paid, and stating whether or not the other party is in
default in keeping, observing or performing any term, covenant or condition contained in
this Lease on the other party's part to be kept, observed or performed and, if in default,
specifying each such default, and any other factual matters pertaining to this Lease
reasonably requested by the other Patty, it being intended that any such statement
delivered pursuant to this Section may be relied upon by the other party or any
D132/ 25183826.3
17
prospective purchaser of the Premises or Property or any Mortgagee thereof or any
purchaser of Landlord's interest in the Premises or Property,
24. Non -Merger of Estates. The interests of Landlord and SunE in the Premises shall at all
times be separate and apart, and shall in no event be merged, notwithstanding the fact that
this Lease or the leasehold estate created hereby, or any interest therein, may be held
directly or indirectly by or for the account of any person who shall own the fee title to the
Leaschold, or any portion thereof; and no such merger of estates shall occur by operation
of law, or otherwise, unless and until all persons at the time having any interest in the
Premises, including any Leasehold Mortgagee, shall join in the execution of a written
instrument effecting such merger of estates.
25. Miscellaneous Provisions.
a. All notices, requests, demands or other communications which may be or are
required or permitted to be served or given under this Lease shall be in writing
and shall be sent by personal delivery, by commercial air or land delivery service,
or by registered or certified mail, return receipt requested, first-class postage
prepaid, (i) if to Landlord, at Office of the Town Clerk of the Town of Southold,
53095 Main Road, POB 1179, Southold, NY 11971, with a copy to Martin D.
Finnegan, Town Attorney, Town of Southold, Southold Town Hall Annex, 54375
Route 25 (Main Road), P.O. Box 1179 Southold, NY 11971-0959, and (ii) if to
SunE at SunEdison, Land Acquisition and Development,
, with a copy to SunEdison, General Counsel,
12500 Baltimore Rd., Beltsville, MD 20705, or at any other address that may be
given by one party to the other by notice pursuant to this Section. Such notices
shall be deemed to have been given at the time of receipt. Rejection or refusal to
accept delivery of any notice shall be deemed to be in receipt of any such notice
as of the date of rejection or refusal. Each party shall make an ordinary, good
faith effort to ensure that it will accept or receive notices that are given in
accordance with this section and that any person to be given notice actually
receives such notice.
b. For purposes of this Lease, "commercially reasonable efforts" means with respect
to both Landlord and SunE, actions conducted in good faith and in accordance
with commonly accepted commercial practice.
DB2/ 25183826.3
18
c. This Lease is made pursuant to, and shall be construed and enforced in
accordance with, the laws of the State of New York.
d. The parties hereto covenant and agree that all of the conditions, covenants,
agreements, rights, privileges, obligations, duties, specifications and recitals
contained in this Lease shall be construed as covenants running with the land and
as extending to, inuring to the benefit of, and being binding upon, Landlord and
SunE, and their respective successors and assigns, to the same extent as if such
successors and assigns were named as original parties to this Lease, all to the end
that this Lease shall always bind the owner and holder of any fee or leasehold
interest in or to the Premises or Property.
e. This Lease, together with all exhibits, schedules and attachments hereto, contains
the entire agreement between the parties and is intended by the parties to set forth
their entire agreement in respect of the Premises with respect to the subject matter
hereof, and any agreement hereafter made shall be ineffective to change, modify
or discharge this Lease, in -whole or in part, unless such agreement is in writing
and signed by the party against whom enforcement of the change, modification or
discharge is sought.
f. Notwithstanding anything to the contrary contained in this Lease, neither party
shall have any liability to the other for any consequential, punitive, special or
indirect damages arising from or relating to this Lease.
DB2/ 25183826.3
19
IN WITNESS WHEREOF, Landlord and SunE have executed this Lease on the date first
above written.
TOWN OF SOUTHOLD
M
Its:
Date:
SUNE: SunEdison Originationl LLC, a Delaware
limited liability company
By:
Its:
DB2/25183826.3
20
I!:._ 1.111 P. as
THE PREMISES
(The Property includes up to 14 acres of Suffolk County Assessor parcel numbers 1000-
096.00,01-017.005 as indicated in yellow. Image to be replaced with metes and bounds
description and/or Exhibit A from Title Report at a later date)
DB2/ 251838263
MOWN
For purposes of this Lease, the following terms shall have the following meanings:
"Additional Rent" shall mean all payment obligations of SunE to Landlord hereunder, in
addition to the obligation to pay Basic Rent.
"Alterations" shall have the meaning set forth in Section 7(a).
"Basic Rent" shall be Tiventy Wo Thousand & "'1100 Dollars ($22,000) per annum for
the Term, payable in monthly installments pursuant to Section 3.
F-10011
""Commercial Operation Date" or "COD" shall mean the first day of the calendar month
immediately following that date on which SunE notifies Landlord in writing that (a) completion
of the construction and successful testing of the Solar Facility has occurred, and (b) the Solar
Facility has obtained final approval for interconnected operation by the local electric utility.
"County" shall mean Suffolk County, New York.
"Environmental Law" means any and all federal, state, local, provincial and foreign, civil
and criminal laws, statutes, ordinances, orders, common law, codes, rules, regulations,
judgments, decrees, injunctions relating to the protection of health and the environment, worker
health and safety, and/or governing the handling, use, generation, treatment, storage,
transportation, disposal, manufacture, distribution, formulation, packaging, labeling, or Release
of or exposure to Hazardous Materials.
"Environmental Permit" means any federal, state, local, provincial, or foreign permits,
licenses, approvals, consents or authorizations required or issued by any governmental authority
under or in connection with any Environmental Law, including without limitation, any and all
orders, consent orders or binding agreements issued by or entered into with a governmental
authority under any applicable Environmental Law.
"Effective Date" shall be the date of the last signature set forth in the signature page of
this Lease.
"Exempt Transferee" shall have the meaning set forth in Section 23.
"Governmental Authorities" shall mean any board, bureau, commission, department or
body of any municipal, county, state or federal governmental unit or subdivision thereof, having
or acquiring jurisdiction over the Premises or the use and improvement thereof, including any
Board of Fire Underwriters having jurisdiction over the Premises.
"Hazardous Materials" means petroleum, petroleum hydrocarbons or petroleum products,
petroleum by-products, radioactive materials, asbestos or asbestos -containing materials, gasoline,
diesel fuel, pesticides, radon, urea formaldehyde, mold, lead or lead containing materials,
polychlorinated biphenyls; and any other chemicals, materials, substances or wastes in any
amount or concentration which are regulated under or for which liability can be imposed under
any Environmental Law.
"Impositions" shall mean all Real Estate Taxes, water and sewer charges, rates and rents,
excises, levies, license and permit fees, utility charges and other charges, general and special,
ordinary and extraordinary, foreseen and unforeseen, of any kind and nature whatsoever, which
shall or may during the Term be assessed, levied, charged, confirmed or imposed upon or
become payable out of or become a lien on the Premises, or any part thereof, the appurtenances
thereto or the sidewalks, streets or vaults adjacent thereto or for any use or occupation of the
Premises, and such franchises, licenses and permits as may be appurtenant to the use of the
Premises, this transaction or any documents to which SunE is a party, creating or transferring an
interest or estate in the Premises. This shall be limited to the land leased by SunE.
"Improvements" shall mean any and all improvements located on the Promises as of the
Effective Date, or at any later date during the Term, including without limitation the Solar
Facility.
"Leasehold Mortgage" shall mean any instrument including, but not limited to, a
Mortgage, mortgage, agreement for sale, lease in a sale/leaseback or "synthetic lease"
transaction, or other security device which is delivered by SunE to a Leasehold Mortgagee and
which creates an encumbrance on SunE's or any sublessee's interest in the Premises or Solar
Facility,
"Leasehold Mortgagee" shall mean the beneficiary or holder of a Leasehold Mortgage.
"Legal Requirements" shall mean all laws, statutes, ordinances, orders, rules, regulations
and requirements of all Governmental Authorities, and the appropriate agencies, offices,
departments, boards and commissions thereof, whether now or hereafter in force, applicable to
the Premises, or any part thereof, as to the manner of use or occupancy or the maintenance,
repair or condition of the Premises, or any pail thereof.
"Lender" shall mean a bank, savings bank, trust company, insurance company, pension or
profit sharing trust, retirement or welfare fund, real estate investment trust or any other party
providing financing to the SunE.
"Memorandum of Lease" shall mean the memorandum attached hereto as Exhibit 111)"
attached hereto, which Memorandum of Lease shall be executed by Landlord and Sunp, on or as
of the Effective Date, and shall be recorded among the County land records by SunE, at SunE's
expense.
"Option Agreement" shall mean that certain Option Agreement dated as of
between Landlord and SunE.
DB2/ 25183826.3
B-2
"Pre-existing Environmental Conditions" means any actual or alleged: (i) violation of,
breach of or non-compliance with any Environmental Laws or Environmental Permits with
respect to the Premises that first existed, arose or occurred on or prior to the Closing Date; and
(ii) the presence, Release or threatened Release of or exposure to any Hazardous Materials at, to,
on, in, under or from the Premises that first existed, arose or occurred on or prior to the Closing
Date.
"Private Roads" shall mean any roads, including, without limiting, two -tracks, driveways
and appurtenant casements, either appurtenant to the Premises or Property or appurtenant to
other property owned or controlled by Landlord or any Landlord affiliate, which property is
adjacent to the Premises,
"Real Estate Taxes" shall mean all real property taxes, assessments, vault rentals and
other charges, if any, general, special or otherwise, levied or assessed upon or with respect to the
ownership of the Premises imposed by any public or quasi -public authority having jurisdiction.
Except for taxes, fees, charges and impositions described in the next succeeding sentence, Real
Estate Taxes shall not include any municipal, state or federal income, income profits or revenue
tax imposed on rent, inheritance, estate, succession, transfer, gift, franchise, corporation, income
or profit tax or capital levy.
"Release" means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, migrating, leaching, dumping, or disposing of a Hazardous
Material into the environment.
"Solar Facility" shall have the meaning set forth in the second paragraph of this Lease.
"State" shall have the meaning set forth in the second paragraph of this Lease.
"Surrounding Property" shall have the meaning set forth in Section 11.
"Term" shall mean Initial Term, Primary Term and Final Term.
DB2/ 25183826.3
B-3
MEMORANDUM OF LEASE
This MEMORANDUM OF LEASE is made and entered into as of 2014,
by and by and between Town of Soutthold which has an address of 53095 Main Road, Southold,
New York 11971 ("Landlord" and "Grantor" for indexing purposes), and SunEdison
Origination) LLC, a Delaware limited liability company ("SunE" and "Grantee" for indexing
purposes).
WITNESSETH
WHEREAS, pursuant to that certain Ground Lease (the "Lease") of even date herewith
by and between Landlord and SunE, SunE leases from Landlord the land more particularly
described in Exhibit A attached hereto and made a part hereof, together with all appurtenances
thereto (collectively, the "Premises").
WHEREAS, the parties hereto desire to enter into this Memorandum of Lease for the
purpose of recording a document in the Land Records of Suffolk County, New York (the "Land
Records") that will provide public notice of the existence of the Lease and certain of its terms
and conditions.
NOW, THEREFORE, the parties hereto do hereby certify and agree as follows:
1. Lease of Premises. Landlord leases to SunE, and SunE leases fi-om Landlord, for
the Term (as defined below) and subject to the provisions of the Lease, to each of which
Landlord and SunE mutually agree, the Premises.
2. Term. The term of the Lease (the "Term") commenced on or about 5
2014, and shall terminate on or about 5 201. The Lease contains SunE's option to
extend the Lease by four (4) periods of five (5) years each.
D132/251838263
-4-
3, Successors and Assigns. The Lease provides that the provisions of the Lease are
binding upon and inure to the benefit of Landlord and SunE and each of their respective
representatives, successors and assigns, subject to certain limitations.
4. Purchase Option, SunE has the option to purchase the Premises on the terms and
conditions set forth in the Lease.
S. Purpose of Memorandum of Lease. This Memorandum of Lease, when recorded
in the Land Records is intended to serve as public notice of the existence of the Lease and of
certain of its terms and conditions, including casements and restrictions affecting land adjacent to
the Premises. This Memorandum of Lease does not describe or refer to all of the terms or
conditions contained in the Lease, nor is this Memorandum of Lease intended to modify, amend
or vary any of the terms or conditions set forth in the Lease.
IN WITNESS WHEREOF, the parties have caused this Memorandum of Lease to be duly
executed under seal and delivered as of the date first written above.
LANDLORD: Town of Southold
By:
Its:
Date:
SUNED: SunEdison Originationl LLC, a Delaware
limited liability company
M
Its:
Wo
D132/ 25183826.3
-5-
COUNTY OF
[Notarial Seal]
COUNTY OF
[Notarial Seal]
DB2/ 25183826.3
ss:
[Insert correctform of acknowledgment for recording purposes]
NOTARY PUBLIC
My Commission Expires:
[Insert correctforin of acknowledgmentfor recording purposes/
NOTARY PUBLIC
My Commission Expires:
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To be determined.
DB2/ 251938263
EXHIBIT A
LEGAL DESCRIPTION OF THE PREMISES
N
EXHIBIT C
PREMISES
(The Property includes up to 14 acres of Suffolk County Assessor parcel numbers 1000-096.00.01-017.005 as
indicated in yellow. Image to be replaced with metes and bounds description and/or Exhibit A from Title Report at
a later date)
DB2/251836523
EXHIBIT E
P M
-1
Valluk"Ing-'aKel,
Malmo
SunEdison
12500 Baltimore Avenue
Beltsville MD 20705
Attn: General Counsel
Space Above This Line Reserved For Recorder's Use
PLEASE REFER ALL QUESTIONS REGARDING THIS MEMORANDUM TO:
Block , Lot
MEMORANDUM OF OPTION AGREEMENT
THIS MEMORANDUM OF OPTION AGREEMENT (the "Memorandum") is made
as of by TOVTN OF SOUTHOLD ("Owner"),
a Delaware limited liability company
("Optionee").
PRELIMINARY STATEMENT
A. Pursuant to that certain Option Agreement, dated as of 2014 (the
"Agreement"), Owner has granted to Optionce an option to lease from Owner its interest in the
real property (the "Property") described in Exhibit 1 attached hereto.
B. The patties are executing and recording this Memorandum so that third parties shall have
notice of Optionee's option to lease the Property from Owner, and of the rights and obligations
of Optionee and Owner under the Agreement.
NOW, THEREFORE, in consideration of the Agreement and for other good and
valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
DB2/25183652.3
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1. Owner agrees to grant an option to lease to Optionee, and Optionee agrees to accept an
option to lease from Owner, the Property in accordance with the terms and provisions of the
Agreement.
2. This Memorandum shall be governed by the laws of the State in which the Property is
located.
signature page(s) follow
DB2/25183652.3
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IN WITNESS WHEREOF, the parties have executed this Memorandum as of the date
first above written.
W
Delaware limited liability company
By:
Its:
TOWN OF SOUTHOLD
By:
Its:
DB2/25183652.3
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STATE OF
ss
COUNTY OF
MIA
The foregoing instrument was acknowledged before me this day of 20
Notary Public
My commission expires:
STATE OF
ss
COUNTY OF
The foregoing instrument was acknowledged before me this
2012 by 5
liability company, on behalf of said limited liability company,
Notary Public
My commission expires:
DB2/25183652.3
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day of
a Delaware limited
EXHIBIT I TO MEMORANDUM OF OPTION AGREEMENT
LEGAL DESCRIPTION OF PROPERTY
Property Description:
(The Property includes up to 14 acres of Suffolk County Assessor parcel numbers 1000-
096.00.01-017,005 as indicated in yellow. A metes and bounds description and/or Exhibit A
from Title Report will be inserted at a later date)
DB2/25183652.3
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Schedule 16(e)
T"Y",T4-'UPOATE.'J
DB2/25183652,3
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