HomeMy WebLinkAboutSW6200303_BOYKIN-Site Lease Agreement-PXFAE-200414_Redacted_20200605FIRST AMENDMENT TO THE GROUND] LEASE AGREEMENT
This First Amendment to the Ground Lease Agreement (this "First A►nenthnenf'is made
effective as of March 17, 2020 (the "Effective Date', by and among M ARY DUANE GILLIAM HALT:
and MORTIS MAYNARD GILLIAM WORTH, AS CO -TRUSTEES OF THE J. DUANE GILLIAM
RESIDUARY TRUST, (SUCCESSOR TO J. DUANE GILLIAM, DECEASED) ("Landlord), and
FRESH AIR ENERGY XXXVIII, 1.1..C, a NORTH CAROL.INA LIMITED LIABILITY COMPANY
("Tenant'). Tenant and Landlord are sometimes referred to in this First Amendment individually as a
Party ("Party") and collectively as the Parties ("Parties').
RECITALS
A. On January 19, 2018, Landlord and Tenant entered into that certain Ground Lease
Agreement (collectively, the "Lease"} concerning certain real property located in Cumberland County,
North Carolina, and having a PIN of 0479-45-2358 (the "Property" }, and the Tenant's leasing of
Landlord's Property (the "Pr•entises' j in order to occupy, develop, design, engineer, construct, access,
monitor, install, own, operate, maintain, and remove a photovoltaic power system for the purpose of
generating and selling electricity (the "Facility' }.
B. The Parties desire to amend the Lease to A) replace Section 1.1 to cohfirrn the tax parcel,
leased acreage and legal description of the Leased Premises; B) extend the Due Diligence Period referred
to in Section 2; C) replace Section 3 to add the Construction Completion Period; D) replace Section 4 to
confirm. the Rent based on the acreage and the start of the Construction Completion Period; E) correct the
date of the Environmental Site Assessment in Section 11; and F) amend the notice provisions in Section
13.
NOW, THEREFOR, in consideration of the mutual covenants and conditions contained herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties
agree as follows:
A GR FRAItYNT
I.Ownership of Premises and Faciltt , Section I A of the Lease is hereby deleted and
replaced with the following;
1.1 Premises. Landlord owns certain real property located at 4000 Lee Road and having a tax parcel
number of 047945-2358 (the "Property"). The Property is more particularly described ill EXHIBIT A
annexed hereto. Subject to the provisions of Section 2 below, Landlord hereby [eases exclusively to
Tenant and Tenant leases from Landlord a minimum base acreage of 143.38 acres of the Property as more
particularly described in EXHIBIT B annexed hereto, including any and all access and/or utility
easements appurtenant or attendant to the Property as well as surface rights across the Property which are
necessary or desirable for the use of the leased area (the "Pr errrises'�, to occupy, develop, design;
engineer, construct, access, monitor, install, reinstall, own, operate, maintain, and remove a photovoltaic
power system for the purpose of generating and selling electricity (such improvements, installations and
all items and elements attendant thereto the "Facility"). ExHIBrt- B may be updated by Tenant, subject to
the consent of Landlord, which shall not be unreasonably withheld, from time to time, Landlord hereby
also grants to Tenant, for a period co -terminus with the Lease, an easement that is irrevocable during the
Lease Term (as defined in Section 3 below) for access, ingress, egress, placement of utilities, and related
rights in, through, over, around, and under the Property or any surrounding or nearby property owned or
leased by Landlord, passage through or usage of which is necessary or convenient to install or operate the
Facility or gain access to the Premises (the "Easements'/. The Easements, if any, shall run with the
Property and are generally depicted on E+XrrrErr is attached hereto and incorporated herein,
It is understood that the Landlord will need access for ingress and egress to their remaining Property that
is not part of the Leased Premises (the "Remaining Property"). The Parties agree that Landlord intends to
access their Remaining Property by way of (a) Landlord's claimed rights by prescription by use and
possession to James Dahl Road; (b) by way of a roadway leading frorn Lee Road and crossing an
adjoining parcel and having a PIN of 0479-44-9627; and (c) by way of Boykin Road. Said access for
ingress and egress will not interfere with the Facility and Tenant's rights in the Leased Premises.
Tenant and Landlord shall execute and have notarized a memorandum of lease that memorializes the
Premises and Easements, if any, in substantially identical form as EXHIBIT E (".+Y.temorandfun of Lease" },
which Tenant may record in the office where real estate records are customarily filed in the jurisdiction of
the Premises.
2. Effective DatelDue Diligence Period, Section 2 of the Lease is hereby arnended by
adding two (2) additional Due Diligence Extensions of three (3) months each and extendin the Due
Diligence Extension period to April 19, 2020. Tenant has provided to Landlord the stun of for
the additional Due Diligence Extension periods.
3. Lease Term. Section 3 of the Lease is hereby deleted and replaced with the following:
3. Lease Term, Immediately following the Due Diligence Extension period, Tenant will enter into the
("Construction Completion Period") as of April 20, 2020, during which time Tenant may continue to
perform the activities allowed during the Due Diligence Period and otherwise necessary for the Facility to
enter the Operations Period (as defined hereafter). The Operations Period ("Uperations Perimp') shall
commence upon full commercial operation of the Facility ("Operations Period Commencement Date")
and shall continue through the date that is fifteen (15) years after the Operations Period Commencement
Date, unless otherwise terminated as provided herein. Within thirty (30) days following the Operations
Period Commencement Date, Tenant shall provide Landlord with written notice that the Operations
Period Commencement Date has occurred and that the Operations Period has begun, The Due Diligence
Period, the Due Diligence Extensions, Construction Completion Period, and the Operations Period taken
together shall constitute the initial Term (".Initial Terns'D. Tenant shall have the Option to Extend
("option to E_wend") this Lease for one (1) successive twenty (20) year Renewal Term ("Renewal
Term'). The Option to Extend shall be exercisable at the sole and exclusive discretion of Tenant. Should
Tenant decide to exercise its Option to Extend., Tenant shall provide Landlord with written notice of such
decision within sixty (60) days prior to the conclusion of the initial Term. Notwithstanding the foregoing,
the Renewal Term shall commence automatically upon conclusion of the Initial Tenn, unless Lender (as
defined in Section 16) and Tenant consent in writing to the expiration or termination of the Lease. The
Initial Term and Renewal Term, if any, together shall constitute the Lease Term ( "Lease Term').
Rent. Section 4 of the Lease is hereby deleted and replaced with the following.
4. Rent. After the Effective Date and Due Diligence Extension period (provided Tenant has not
terminated this Lease in accordance with Section 2 above), Tenant shall enter into the Construction
Completion Period and commence construction of the facility and provide to Landlord written notice of
Tenant's desire to commence construction of the Facility ( "Construction Notice').
Within thirty (30) days after providing
The remaining Rent shall be payable in four quarterly installments per year of which each quarterly
("Rent'l will be payable upon the first Business Day within the applicable calendar quarter (tire start of
each calendar quarter occurring in January, April, July, October).
Rent shall increase at a rate of 1.5 percent of the previous year's rent (compounded). Said increase in rent
per acre and annual rent for the Initial Term shall be as follows:
Should Tenant elect to exercise Option to Extend the Lease through the Renewal Tenn, the rent shall
be based on a figure ❑er acre, per ycar, and an increase of 1.5 percent of the previous year's
rent (compounded), which rent per acre and annual rent for the Renewal Term shall be as follows:
All other terms and conditions set forth herein shall remain unchanged during the Renewal Terin. Tenant
shall pay Rent to Landlord on the first day of each calendar quarter during the Initial Tern and
subsequent Renewal Term, if any. Rent for any fractional month(s) occurring at the beginning or at the
end of the Initial Term or Renewal Term shall be prorated. All of Tenant's monetary obligations set forth
in this Lease are conditioned upon Tenant's receipt of an accurate and executed W-9 Form from
Landlord..
Late payment fee and returned check fees:
Tenant shall pay a late payment fee of the greater of $ 15.00 or five (5) percent of the Rent payment if any
Rent payment is not received by midnight of the fifth (day) after it is due. This late payment shall be due
immediately without demand and shall be added to and paid with the late Rent payment.
Tenant shall pay a returned check service fee of $25.00 for each check of Tenant that is returned by the
financial institution because of insufficient funds or because the Tenant did not have an account at the
financial institution.
5. Representations and Warranties. The Environmental Site Assessment referenced in
Section I 1 of the Lease is hereby clarified to mean that certain Phase I Environmental Site Assessment
performed by Pilot Environmental, LLC, dated June 18, 2018, and incorporated by reference herein,
6. Notices. Section 13 of tine Lease is hereby deleted and replaced with the following:
13. Notices. All notices, approvals, consents, demands, and requests that may be or are requested to be
given by one Party to the other Party shall be in writing and shall be deemed to have been properly given
if and when delivered either (i) personally, (h) three (3) days after being sent by registered or certified
mail, postage prepaid, or (iii) the next business day after sent by overnight courier service, addressed as
follows:
(a) If to Landlord:
J Duane Gilliam residuary Trust
Attn: Murtis Worth
2504 N. Edgewater Dr, Fayetteville, NC 28303
Phone: (800) 786-7368
Email: maryduanc@atlanticbeachrealty.itet
(b) If to Tenant:
Fresh Air Energy XXXVIII, LLC
Attu: Erik Stuebe
101 Second St, Suite 1250, San Francisco, CA
Phone: (4 l 5) 626- l 902
Email: eriks@ecoplexus.com
7. Certain Defined Terms. Each capitalized term set forth in this Fast Amendment that is
not otherwise defined herein shall have the meaning ascribed to it in the Lease.
8. Effect on Lease. This First Amendment modifies and amends the Lease, and the terms
and provisions of this First Amendment shall supersede and control over any contrary or conflicting terms
and provisions set forth in the Lease. The Lease, as amended by this First Amendment, remains in full
force and effect.
9. Successors and Assi ns. This First Amendment shall be binding on and inure to the
benefit of the Parties to it, their heirs, executors, administrators, successors in interest, and assigns.
to. Choice of Law and Forum. This First Amendment shall be construed by and governed
in accordance with the laws of the State of North Carolina, without giving effect to any choice of law or
conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than
the State of North Carolina.
it. Counterparts. This First Amendment may be exccuted in several facsimile
counterparts, each of which will be deemed an original and all of which, taken together, shall constitute
one and the sarne instrument. This First Amendment may be executed and delivered by facsimile or other
means of electronic transmission.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK FOR FORMATTING]
IN WITNESS WHEREOF, this First Amendment to a certain Lease as defined above is executed
effective as of the Effective Date.
LANDLORD
J. Duane Gilliam Residuary Trust
Mary DuaW Gilliam Hale
Co -Trustee
By: UYWA)T
Murtis Maynard Gilliam WortV
Co -Trustee
i
TENANT
i
FRESH AIR ENERGY XXXVIII, LL+C 3
a North Carolina limited liability company
By:
Erik Stuebe, Authorized Signatory
i
i
IN WITNESS WHEREOF, this First Amendment to a certain Lease as defined above is executed
effective as of the Effective Date.
1110I 171C�Ta17
J. Duane Gilliam Residuary Trust
iM
Mary Duane Gilliam Hale
Co -Trustee
Murtis Maynard Gilliam 'Worth
Co -Trustee
TENANT
FRESH AIR ENERGY XXXVM, LLC
a North Carolina limited liability company
Erik Stuebe, Authorized Signatory
Exhibit A
Legal Description of the Property
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the right cs3•ekay of huyiin R&A %ald p'tlnl 4e14t iit 11ec 3.eaarL f0X;* hecf_ay+ Clat, fterm IiM
t(44Mt6rfy )+'lrarVftl M. Mt.k lllutl. PIN 0 47942�1845. [X%-J 1" 4005, pogo 6 so.1hir1 imi� said
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460 02 rest (erL*miAg 4 5.3 2 feat w dir northem martin of "-kin Road and dim coMriving 414.70
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tik 019161Hoyk-is Izasil.
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HFIi` U the 111.4 ACrt* ststtlx tsr 1etl, tm't Cows[+ PIN (M70-0-4101 ],1W 171"M uml,
anscar ur kDF4 trai (Cutn1wr)artd C'sa[,rdy YIN 0479.1.4-9252). and the J, .'j germ more err bate, tra.A
t('antlsdria%d 4:auaty PT;%j, I14N4?-1134) C mt'uyo4 by a deed dmied I+z`INWllils) Ilnm I. C7traxic
Gi11lun ter 334 0 1 11%cminems'. 1.Lr' rnAxslas'1 in Fk)oti�7.� , M1e jZa.L i:'U"IK-;)And i'aui<ly
Retl1mry
Far tindstthist.ar! nflit3raxr;
11) Fired da&sd 0171gr'"15, raeutdtd #a Rook 6961, r*& 151. Cuti,6&t" Casanty 1Lcgisery. freuss
5,mis nN firak, Pcrsewl F1r1rl>tict, liva tsf Mtr R4ridlal t3'1Seitlt Pculvi I'*tvte ruxi irtm W J. 1)•amt,
Iil:ilM (31.S here, 104 *Ora Aral 173.7 wi# 1rvi1);
(2) Dow 4dwd 10 31 2001. rdwlded Its f3,vk 6126, PARu 167, Z't.414, foam Co my kvi MY. Own
t'riwvle i? M F amw C'rtret x ay. Inc k) RC641101d 0 i'rxrirt (3 J,.4 EK-M, 144 stir ati i 17'1,7 ncer. rrar. tsi;
(3)17eacd dotted 04A M0. rcxatrdcd in Flock 32Sfi.1ar 11, ['turitw4a sd CMRIa • ) qui y, ftom
Itithasd A. W a-rsr ri A- tas'I'riattoe lwva rimbaar c,*, x,ix, Inc, t13.3 awns, 101 arrt apd 173.7 acre
►Mi;
(4) tkod d=0 ".1 071 "U, ftwa3r4 lit PAA 3$7 i, Je 4$ 7. CumA Cdtad ('mast}• itagi54y, fr-o
I:eaicr R. Wulkiff ks Hug h *M . Walk orI11.1 dc:o. 104 $k'tc snaf 173-7 acre if*js? ).
Exhibit B
Legal Description of the .premises
Lease Area
Lying and being situated in Cumberland County, North Carolina and Toeing more particularly
described as follows.
Being that certain lease area in Eastover Township, Cumberland County, North Carolina and
being a portion of that property owned by the J. Duane Gilliam Heirs recorded in (Deed Book
8274, Page 656) at the Cumberland County Register of Deeds office, lying east of Interstate 95
and Poverty Flats Road (S.R. 1861), west of James Dail Road (S.R. 1828), north of Boykin Road
(S.R. 1876), and being more particularly described as follows:
Beginning at an existing concrete monument having N.C. Grid Coordinates (NAD 83/2011) of
North = 497,636.21 feet and East = 2,073,516.72 feet, said monument is a common corner with
property owned by Gail M. Blackmon (Deed Book 5038, Page 502) and Gary and Pamela E.
Beasley and Larry and Kimberley A. Beasley ET. AL. (Deed Book 9747, Page 755); thence North
85* 17' 06" East 1,169.20 feet to an axle which is a corner of the J. Duane Gilliam Heirs (Deed
Book 8274, Page 656); thence along the J. Duane Gilliam Heirs line South 63* 46' 08" East
1,192.89 feet to a point, thence leaving the J. Duane Gilliam Heirs line South 00' 03' 14" East
190.99 feet to a point; thence South 060 34' 39" West 197.30 feet to a point; thence South 67'
16' 16" West 96.95 feet to a point; thence South 330 12' 31" West 79.98 feet to a point; thence
South 06' 35' 09" East 97.24 feet to a point; thence South 26' 18' 31" East 174.49 feet to a
point; thence South 37` 08' 34" East 139.18 feet to a point; thence South 68' 14' 36" East
141.84 feet to a point; thence South 00° 00' 00" East 360.98 feet to a point on the line of the J.
Duane Gilliam Heirs (Deed Boob 8274, Page 656); thence along the J. Duane Gilliam Heirs line
South 40° 04' 30" West 401.96 feet to a point; thence leaving the J. Duane Gilliam Heirs line;
thence North 430 04' 14" West 34.08 feet to a point; thence North 64° 26' 53" West 48.38 feet
to a point; thence South 799 34' 58" West 92.19 feet to a point; thence North 62' 20' 22" West
126.77 feet to a point; thence North 63' 00' 11" West 129.79 feet to a point; thence North 83'
04' 04" West 29.97 feet to a point; thence North 63' 40' 26" West 109.95 feet to a point;
thence North 070 46' 27" West 191.72 feet to a point; thence North 010 13' 54" West 124.61
feet to a point; thence North 07' 11' 14" West 58.57 feet to a point; thence North 390 41' 10"
West 91.30 feet to a point; thence South 860 44' 52" West 85.12 feet to a point; thence South
88° 59' 44" West 53.22 feet to a point; thence North 75' 12' 36" West 97.19 feet to a point;
thence North 58' 14' 02" West 77.40 feet to a point; thence North 32' 59' 42" West 89.15 feet
to a point; thence North 07° 33' 25" East 59.09 feet to a point; thence North 28' 14' 33" West
88.01 feet to a point; thence North 45° 09' 31" West 64.83 feet to a point; thence North 44' 23'
53" West 87.42 feet to a point; thence North 34' 07' 53" West 66.74 feet to a point; thence
North 460 29' 59" West 86.40 feet to a point; thence South 49` 51' 57" West 81.79 feet to a
point; thence South 1V 46' 49" East 96.82 feet to a point; thence South 010 39' 25" East 123.48
feet to a point; thence South 0V 55' 14" West 234.23 feet to a point; thence South 060 34' 39"
West 197.30 feet to a point; thence South 49' 51' 57" West 85.80 feet to a point; thence South
35° 43' 26" West 123.78 feet to a point; thence South 08' 42' 49" West 172.46 feet to a point;
thence South 49' 51' 57" West 128.71 feet to a point; thence South 85° 33' 53" West 131.89
feet to a point; thence North 87" 28' 36" West: 85.96 feet to a point; thence North 50° 04' 07"
West 62.32 feet to a point; thence North 55' 59' 07" West 141.88 feet to a point; thence North
65' 09' 50" West 215.23 feet to a point; thence South 44' 03' 28" West 35.23 feet to a point;
thence South 27' 32' 24" East 63.77 feet to a point; thence South 33' 36' 25" East 52.98 feet to
a point; thence South 02' 26' 32" West 44.08 feet to a point; thence South 12° 23' 03" West
56.53 feet to a point; thence South 040 40' 06" East. 50.83 feet to a point; thence South 05° 02'
30" East 98.00 feet to a point; thence South 28' 18' 02" West 59.85 feet to a point; thence
South 44' 48' 32" West 74,53 feet to a point; thence South 87° 23' 15" East 64.19 feet to a
point; thence South 89' 34' 28" East 432.67 feet to a point; thence South 51' 09' 08" East
173.93 feet to a point; thence South 49' 17' 28" East 89.53 feet to a point; thence South 73° 05'
26" East 93.80 feet to a point; thence North 890 43' 45" East 322,11 feet to a point; thence
South 88' 50' 28" East 79.65 feet to a point; thence South 870 50' 04" East 237.29 feet to a
point; thence South 17' 29' 17" East 11.81 feet to a point; thence South 00' 00' 00" East 191.00
feet to a point; thence South 07' 39' 34" West 291.59 feet to a point on the J. Duane Gilliam
Heirs line (Deed Book 8274, Page 656); thence along the Gilliam Heirs line South 36' 23' 30"
West 253.72 feet to an existing iron pipe (bent); thence along the Gilliam Heirs line South 72'
32' 40" East 743.08 feet to an existing iron pipe; thence along the Gilliam Heirs line South 72'
43' 21" East 87.28 feet to a point; thence leaving the J. Duane Gilliam Heirs line South 00' 24'
15" West 571.70 feet to a point; thence South 24' 47' 43" West 352.45 feet to a point; thence
South 76° 53' 45" East 83.99 feet to a point; thence South 74' 55' 15" East 21.57 feet to a point
on the J. Duane Gilliam Heirs line (Deed Book 8274, Page 656); thence along the Gilliam Heirs
line South 22° 07' 46" West 56.43 feet to a point; thence leaving the Gilliam Heirs line North 74'
55' 15" West 13.95 feet to a point; thence North 760 54' 16" West 93.42 feet to a point; thence
South 100 30' 11" West 86.11 feet to a point; thence South 75' 18' 14" West 59.18 feet to a
point; thence South 74' 50' 14" West 49.90 feet to a point; thence South 82' 45' 34" West
54.48 feet to a point; thence North 70° 37' 54" West 638.56 feet to a point; thence !North 060
56' 28" West 197.71 feet to a point; thence North 00` 00' 00" West 721.24 feet to a point;
thence North 50° 56' 24" West 154.05 feet to a point, thence North 89` 40' 28" West 367.10
feet to a point; thence North 20' 54' 30" West 8.03 feet to a point; thence North 59' 45' 33"
West 75.68 feet to a point; thence North 56' 41' 42" West 128.43 feet to a point; thence North
61` 44' 51" West 74.77 feet to a point; thence North 80' 05' 38" West 106.78 feet to a point;
thence South 790 54' 00" West 248.66 feet to a point; thence South 76° 46' 08" West 133.17
feet to a point; thence South 67' 58' 19" West 337.23 feet to a point; thence South 77` 03' 16"
West 121,34 feet to a point; thence North 20' 53' 37" West 795.35 feet to a point on the line of
the J. Duane Gilliam Heirs (Deed Book 8274, Page 656); thence along the line of the Gilliam
Heirs North 27" 37' 01" East 118.05 feet to a point; thence leaving the line of the Gilliam Heirs
South 720 14' 30" East 78.40 feet to a point; thence North 70' 41' 28" East 121.57 feet to a
point; thence North 18° 44' 29" East 53.16 feet to a paint; thence North 48° 36' 39" East 98.19
feet to a point; thence North 19' 30' 19" East 97.36 feet to a point; thence North 37938' 49"
East 107.02 feet to a point; thence North 05' 46' 19" West 62.26 feet to a point; thence North
10' 04' 20" East 36.91 feet to a point; thence North 030 30' 01" East 47.99 feet to a point;
thence North 21' 38' 17" East 123.66 feet to a point; thence North 15037' 24" East 77.86 feet to
a point; thence North 120 54' 26" East 67.48 feet to a point; thence North 55' 28' 30" East 73.31
feet to a point; thence North 50' 48' 49" East 66.44 feet to a point; thence North 22' 01' 24"
East 101.50 feet to a point; thence North 01' 02' 59" East 185.46 feet to a point; thence North
06' 38' 44" East 70.36 feet to a point; thence north 25' 42' 54" East 82.06 feet to a point;
thence North 280 34' 13" East 142.92 feet to a point; thence North 34' 11' 54" East 114.76 feet
to a point; thence South 30' 18' 11" East 62.53 feet to a point; thence North 750 18' 40" East !
61.10 feet to a point; thence North 29° 57' 41" East 76.70 feet to a point; thence North 00° 09'
59" West 75.59 feet to a point; thence North 09' 13' 26" East 82.47 feet to a point; thence
North 460 30' 10" East 86.83 feet to a point; thence North 54° 17' 44" East 83,98 feet to a point;
thence North 81° 44' 25" East 84.60 feet to a point; thence North 17' 39' 54" East 87.84 feet to
a point; thence North 640 57' 02" East 68.42 feet to a point; thence North 39' 40' 52" East 46.20
feet to a point; thence North 37' 36' 19" East 54.91 feet to a point; thence South 88' 10' 53"
East 40.10 feet to a point; thence South BY 47' 26" East 63.15 feet to a point; thence South 56'
15' 59" East 63.22 feet to a point; thence South 44' 23' 46" East 48.79 feet to a point; thence
South 62°04' 34" East 53.63 feet to a point; thence South 31' 37' 08" East 68.14 feet to a point;
thence South 53' 00' 19" East 56.62 feet to a point; thence South 46' 30' 32" East 47.33 feet to
a point; thence South 40` 08' 03" East 138.14 feet to a point; thence North 49Q 51' 57" East
80.61 feet to a point; thence North 16' 21' 11" East 514.41 feet to a point; thence North 410 02'
22" East 60.06 feet to a point; thence North 27' 41' 46" East 217.98 feet to a point; thence
North 23' 51' 58" West 139.45 feet to a point; thence North 79` 20' 36" West 33.07 feet to a
point; thence South 850 17' 06" West 1,004.55 feet to a point; thence North 63' 06' 29" West
100.46 feet to the point of beginning and containing 143.38 acres or 6,245,420 square feet
more or less.
RECORDING REQUESTED BY
Fresh Air Energy XXXVIII, LLC
PREPARED BY AND WHEN
RECORDED PLEASE RETURN TO:
Fresh Air Energy XXXVIII, LLC
101 Second Street, Suite 1250
San Francisco, CA 94105
Attention: Erik Stuebe
NORTH CAROLINA
CUMBERLAND COUNTY
PIN: 0479-45-2358 and 0479-44-9527
EXHIBIT E
MEMORANDUM OF LEASE
This Memorandum of Lease ("Memorandum") is entered into on March U, 2020, by and between
MARY DUANE GILLIAM HALE and MURTIS MAYNARD GILLIAM WORTH, AS CO -TRUSTEES OF THE
J. DUANE GILLIAM RESIDUARY TRUST, (SUCCESSOR TO J. DUANE GILLIAM, DECEASED), having a
mailing address of 2504 N. Edgewater Drive, Fayetteville, NC 28303 ("Landlord % and FRESH AIR ENERGY
XXXVHI, LLC, a North Carolina limited liability company having a mailing address of 101 Second Street, Suite
1250, San Francisco, CA 94105 ("Te►ta►rt"j, collectively hereinafter referred to as the Parties (the "Parties").
1. Landlord and Tenant entered into that certain Ground Lease Agreement on January 19, 2018, and entered
into that certain First Amendment to the Ground Lease Agreement on Match _a, 2020 (collectively, the "Lease"].
Pursuant to the Lease, Landlord has leased to Tenant certain teal property of Landlord (the "Leased Property"]
located in Cumberland County, North Carolina, as more particularly described on the attached EXHIBIT A. Landlord
has also granted to Tenant, for a period co -terminus with the Lease, an easement that is in -evocable during the Lease
Term for access, ingress, egress, utilities, and related rights to the Leased Property and/or any surrounding or nearby
property owned or leased by Landlord, passage through which is necessary or convenicnt to install, operate, or gain
access to the Facility or the Leased Property (the "Easemenn'j. The Leased Property and the Easements are
generally depicted on EXHIBIT A attached hereto and incorporated herein. The Lease and EXHIBIT A are hereby
incorporated herein as if fully set forth in this Memorandum. Landlord and Tenant have executed and
acknowledged this Memorandum for the purpose of providing constructive notice of the Lease. Capitalized terms
not otherwise defined in this Memorandum shall have the meanings provided in the Lease.
2. Landlord grants and leases the Leased Property to Tenant an the tenns, covenants, and conditions stated in
the Lease. The Tenant shall have the exclusive right to use the Leased Property, together with certain other rights
related to the Leased Property as more fully granted and described in the Lease and in EXHIBIT A hereto. Reference
is hereby made to the Lease for a complete description of the respective rights and obligations of the Parties
regarding the Leased Property and the covenants, conditions, restrictions, and easements affecting the Leased
Property pursuant to the Lease.
3. The initia] lease term following construction is fifteen (15) years commencing from the operations Period
Commencement Date. Tenant has the right to extend the term of the Lease for one ( I ) additional twenty (20) year
term.
4. The Facility, as defined in the Lease, shall not be deemed a fixture. The Facility is Tenant's personal
property and Landlord has no right, title, or interest in or to the Facility. Furthcnnore, Landlord has waived any and
all rights it may have to place a lien on the Facility.
5. Tenant shall have a right of first refusal, should Landlord decide to sell, hold, or transfer any, all, or a
portion of the Leased Properly. Tenant's right of first refusal shall not apply to any transfers of the Leased Properly
made for bona fide estate planning purposes or in connection with any distributions frorn any trust.
6. In the event of any conflict or inconsistency between the provisions of this Memorandum and the
provisions of the Lease, the provisions of the Lease shall control. This Memorandum, the Lease, and any rights
granted Tenant therein, shall burden the Leased Property and shall rim with the land, The Lease and this
Memorandum shall inure to the benefit of and be binding upon Landlord and Tenant and, to the extent provided in
any pennitted assignment or other transfer under the Lease, any assignee and such assifinee's respective heirs,
transferees, successors, designees, assigns, and all persons clairning under them.
7. This Memorandum is not intended to amend or modify, and shall not be deemed or construed as amending
or modifying, any of the terms, conditions, or provisions of (he Lease, all of which are hereby ratified and affirmed.
8. This Memorandum may be executed by different parties on separate counterparts, each of which, when so
executed and delivered, shall be an original, but all such counterparts shall constitute one and the same instrument.
REMAINDER OF PAGE LEFT BLANK I,OR FORMATTING
I
i
IN WITNESS WHEREOF, the Parties have executed this Memorandum of Lease as of
the date first above written.
}
LANDLORD
1
J. Duane Gilliam Residuary Trust
t
-,`
Mary Digne Gilliam Hale
Co -Trustee
NA
By: uY1d tw tip'
Murtis Maynard Ofilliamo
Co -Trustee
TENANT
FRESH AIR ENERGY XXXVIII, LLC,
a North Carolina limited liability company
By;,
Erik Stuebe, Authorized Signatory
s
t
LANDLORD ACKNOWLEDGMENT
4
STATE OF e
COUNTY OF
r:
a Notary Public for County of do hereby
certify thatpersonally appeared before me this clay and acknowledged the
due,gxecution of e foregoing document for the purposes therein stated. Witness any hand and official seal, this the
Z �iay of , 20z
k
RV $
Q`Ytotary Public 1
x
VNotary's Printed Name:
i0�
-- -
MyCommission Expires: k
(Official Seal)
LANDLORD ACKNOWLEDGMENT
1
COUNTY OF
I, Lim a Notary Publicfor County of � , do hereby
certify that VAut Ardis personally appeared before me this day and acknowledged the
due
eehexecution of the Far going document for the purposes therein stated. Witness my hand and official seal, this the
4 —day of ftpj� 2019
>C�?n I A A LL t )4'A TV 1)4`7 �V'o
'4�- Notary Public
aT r��r
_ z_
M 100 Notary's Printed Name: UVA ft
My Commission Expires:
(Official Seal)
IN WITNESS WHEREOF, the Parties have executed this Memorandum of Lease as of the
date first above written.
LANDLORD
J. Duane Gilliam Residuary Trust
I�
Mary Duane Gilliam Hale
Co -Trustee
Murtis Maynard Gilliam Worth
Co -Trustee
TENANT
FRESH AIR ENERGY XXXVIII, LLC,
a North Carolina limited liability company
4-
By: _
Erik Stuebe, Authorized Signatory
TENANT ACKNOWLEDGMENT
A notan public or other officer completing this certificate verifies only the identity of the individual who signed the
documentto which this certificate isattached, and notthe truthfulness, accuracy. or validity ofthat document.
State of California }
County of San Francisco)
On 20'21; before me,
A'qeq k allotary Public, personally appeared Erik Stuebe, who proved
to me on le basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the instrument.
MARY K. DULAl.IA
COMW #2211247 x
Notary Public - California o
z San Francisco County
Comm. Expires Sep. 20. 2021
(Official Seal)
I certify under the PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
Signature
EXHIBIT A
Legal Description of Leased Property
Lease Area
Lying and being situated in Cumberland County, North Carolina and being more particularly
described as Follows:
Being that certain lease area in Eastover Township, Cumberland County, North Carolina and
being a portion of that property owned by the J. Duane Gilliam Heirs recorded in (Deed Book
8274, Page 656) at the Cumberland County Register of Deeds office, lying east of Interstate 95
and Poverty Flats Road (S.R. 1861), west of Jatnes Dail Road (S.R. 1828), north of Boykin Road
(S.R. 1876), and being more particularly described as follows:
Beginning at an existing concrete monument having N.C. Grid Coordinates (NAD 83/201 1) of
North = 497,636,21 feet and East = 2,073,516.72 feet, said monument is a common corner with
property owned by Gail M. Blackmon (Deed Boole 5038, Page 502) and Gary and Pamela E.
Beasley and Larry and Kimberley A. Beasley ET. AL. (Deed Book 9747, Page 755); thence
North 85' 17' 06" East 1,169.20 feet to an axle which is a corner of the J. Duane 0iIIiam Heirs
(Deed Book 8274, Page 656); thence along the J. Duane Gilliam Heirs line South 631, 46' 08"
East 1,192,89 feet to a point, thence leaving the J. Duane Gilliam Heirs line South 00' 03' 14"
East 190.99 feet to a point; thence South 06' 34' 39" West 197.30 feet to a point; thence South
67' 16' 16" West 96.95 feet to a point; thence South 33' 12' 3 1 " West 79.98 feet to a point;
thence South 06135' 09" East 97.24 feet to a point; thence South 26' 18' 3 1 " East 174.49 feet to
a point; thence South 371 08' 34" East 139,18 feet to a point; thence South 68' 14' 36" East
141.84 feet to a point; thence South 00' 00' 00" East 360.98 feet to a point on the line of the J.
Duane Gilliam Heirs (Deed Boole 8274, Page 656); thence along the J. Duane Gilliam Heirs line
South 40' 04' 30" West 401.96 feet to a point; thence leaving the J. Duane Gilliam Heirs line;
thence North 43' 04' 14" West 34.08 feet to a point; thence North 64' 26' 5 3 " West 48.38 feet to
a point; thence South 79' 34' 58" West 92.19 feet to a point; thence North 62' 20' 22" West
126.77 feet to a point; thence North 63' 00' 11" West 129.79 feet to a point; thence North 83"
04' 04" West 29.97 feet to a point; thence North 63' 40' 26" West 109.95 feet to a point; thence
North 07' 46' 27" West 191.72 feet to a point; thence North 01 ° 13' 54" West 124, 61 feet to a
point; thence North 0711 11' 14" West 58.57 feet to a point; thence North 39' 41' 10" West 91.30
feet to a point; thence South 86' 44' 52" West 85.12 feet to a point; thence South 88' 59' 44"
West 53.22 feet to a point; thence North 75" 12' 36" West 97.19 feet to a point; thence North 58'
14' 02" West 77.40 feet to a point; thence North 32' 59' 42" West 8% 15 feet to a point; thence
North 07" 33' 25" East 59.09 feet to a point; thence North 28' I4' 33" West 88.01 feet to a
point; thence North 451 09' 3 1 " West 64.83 feet to a point; thence North 440 23' 53" West 87.42
feet to a point; thence North 34' 07' 53" West 66.74 feet to a point; thence North 46" 29' 59"
West 86.40 feet to a point; thence South 49' 5 1 ' 57" West 81.79 feet to a point; thence South I5°
46' 49" East 96.82 feet to a point; thence South 01° 39' 25" East 123.48 feet to a point; thence
South 01' 55' 14" West 234.23 feet to a point; thence South 06' 34' 39" West 197.30 feet to a
point; thence South 49' 51' 57" West 85.80 feet to a point; thence South 35' 43' 26" West
123.78 feet to a point; thence South 08' 42' 48" West 172.46 feet to a point; thence South 49'
51' 57" West 128.71 feet to a point; thence South 85' 33' 53" West 131.89 feet to a point; thence
North 87' 28' 36" West 85.96 feet to a point; thence North 50' 04' 07" West 62.32 feet to a
point; thence North 55' 59' 07" West 141,88 feet to a point; thence North 65" 09' 50" blest
215.23 feet to a point; thence South 44' 03' 28" West 35.23 feet to a point; thence South 27' 32'
24" East 63,77 feet to a point; thence South 33' 36' 25" East 52.98 feet to a point; thence South
02' 26' 32" West 44.08 feet to a point; thence South 12' 23' 03" West 56.53 feet to a point;
thence South 04' 40' 06" East 50.83 feet to a point; thence South 05' 02' 30" East 98.00 feet to a
point; thence South 28' 19' 02" West 5 9.8 5 feet to a point; thence South 44' 48' 32" West 74.53
feet to a point; thence South 87' 23' 15" East 64.19 feet to a point; thence South 89' 34' 29"
East 432.67 feet to a point; thence South 51' 09' 09" East 173.93 feet to a point; thence South
49' 17' 28" East 89.53 feet to a point; thence South 73' 05' 26" East 93.80 feet to a point; thence
North 89' 43' 45" East 322.11 feet to a point; thence South 88' 50' 28" East 79.65 feet to a
point; thence South. 87' 50' 04" East 237.29 feet to a point; thence South 17129' 17" East 11.81
feet to a point; thence South 00' 00' 00" East 191.00 feet to a point; thence South 07' 39' 34"
West 291.59 feet to a point on the J. Duane Gilliam Heirs line (Deed Book 8274, Page 656);
thence along the Gilliam Heirs line South 36' 23' 30" West 253.72 feet to an existing iron pipe
(bent); thence along the Gilliam Heirs line South 72' 32' 40" East 743.08 feet to an existing iron
pipe; thence along the Gilliam Heirs line South 72' 43' 21" East 8T28 feet to a point; thence
leaving the J. Duane Gilliam Heirs line South 00' 24' 15" West 571.70 feet to a point; thence
South 24' 47' 43" West 352.45 feet to a point; thence South 76' 53' 45" East 83.99 feet to a
point; thence South 74' 55' 15" East 21.57 feet to a point on the J. Duane Gilliam Heirs line
(Deed Book 8274, Page 656); thence along the Gilliam Heirs line South 22' 07' 46" West 56.43
feet to a point; thence leaving the Gilliam Heirs line North 74' 55' 15" West 13.95 feet to a
point; thence North 76' 54' 16" West 93.42 feet to a point; thence South 10' 30' 11" West 86.11
feet to a point; thence South 75' 18' 14" West 59.18 feet to a point; thence South 74' 50' 14"
West 49.90 feet to a point; thence South 82' 45' 34" West 54.48 feet to a point; thence North 70'
37' 54" West 638.56 feet to a point; thence North 06' 56' 28" West 197.71 feet to a point; thence
North 00' 00' 00" West 721.24 feet to a point; thence North 50' 56' 24" West 154.05 feet to a
point; thence North 89' 40' 28" West 367.10 feet to a point; thence North 20' 54' 30" West 8.03
feet to a point; thence North 59' 45' 33" West 75.68 feet to a point; thence North 56' 41' 42"
West 129.43 feet to a point; thence North 61' 44' 51" West 74,77 feet to a point; thence North
80' 05' 38" West 106.78 feet to a point; thence South. 79' 54' 00" West 248.66 feet to a point;
thence South 76' 46' 08" West 133.17 feet to a point; thence South 67' 58' 19" West 337.23 feet
to a point; thence South 770 03' 16" West 121.34 feet to a point; thence North 201D 53' 37" West:
795.35 feet to a point on (lie line of the J. Duane Gilliam Heirs (Deed Book 8274, Page 656);
thence along the line of the Gilliam Heirs North 27' 37' 01" East 118.05 feet to a point; thence
leaving the line of the Gillian Heirs South 72' 14' 30" East 78.40 feet to a point; thence North
70' 41' 28" East 121.57 feet to a point; thence North IS' 44' 29" East 53.16 feet to a point;
thence North 08' 36' 39" East 98.19 feet to a point; thence North 19' 30' 19" East 97.36 feet to a
point; thence North 3738' 49" East 107.02 feet to a point; thence North 05' 46' 19" West 62.26
feet to a point; thence North 10' 04' 20" East 36.91 feet to a point; thence North 03' 30' 01"
East 47,99 feet to a point; thence North 21 ° 38' 17" East 123.66 feet to a point; thence North
15°37' 24" East 77.86 feet to a point; thence North 12' 54' 26" East 67.48 feet to a point; thence
North 55' 28' 30" East 73.31 feet to a point; thence North 500 48' 49" East 66.44 feet to a point;
thence North 221 01' 24" East 101.50 feet to a point; thence North 01' 02' 59" East 185.46 feet
to a point; thence North 060 39' 44" East 70.36 feet to a point; thence North 25' 42' 54" East
82.06 feet to a point; thence North 28' 34' 13" East 142.92 feet to a point; thence North 34' 1€'
54" East 114.76 feet to a point; thence South 30' 18' 11" East 62.53 feet to a point; thence North
75' 18' 40" East 61.10 feet to a point; thence North 29' 57' 41" East 76.70 feet to a point; thence
Notch 00' 09' 59" West 75.59 feet to a point; thence North 09' 13' 26" East 82.47 feet to a
point; thence North 46' 30' 10" East 86.83 feet to a point; thence North 64' 17' 44" East 83.99
feet to a point; thence North 81' 44' 25" East 84.60 feet to a point; thence North 17" 39' 54"
East 87.84 feet to a point; thence North 64' 57' 02" East 68.42 feet to a point; thence North 39'
40' 52" East 46.20 feet to a point; thence North 37' 36' 19" East 54,91 feet to a point; thence
South 88' €0' 53" East 40.10 feet to a point; thence South 33' 47' 26" East 63.15 feet to a point;
thence South 56' 15' 59" East 63.22 feet to a point; thence South 44' 23' 46" East 48.79 feet to a
point; thence South 62°04' 34" East 53.63 feet to a point; thence South 31' 37' 08" East 68,14
feet to a point; thence South 53" 00' 19" East 56.62 feet to a point; thence South 46' 30' 32"
East 47.33 feet to a point; thence South 40' 08' 03" East 138.14 feet to a point; thence North 49'
51' 57" East 80.61 feet to a point; thence North 16' 21' 11" East 514.41 feet to a point; thence
North 41' 02' 22" East 60.06 feet to a point; thence North 27' 41' 46" East 217.98 feet to a
point; thence North 23' 51' 58" West 139.45 feet to a point; thence North 79' 20' 36" West
33.07 feet to a point; thence South 85' 17' 06" West 1,004.55 feet to a point; thence North 63'
06' 29" West 100.46 feet to the point of beginning and containing 143.38 acres or 6,245,420
square feet more or less.