SWA000071_9. Redacted Lease agreement_20200617

GROUND LEASE AGREEMENT
THIS GROUND LEASE AGREEMENT (this "Lease") made and entered into this
day of q , 2013, by and between Donna R. Faulkner, ("Landlord") and Sunlight
Partners, LLC, a N ada limited liability company ("Tenant").
1. DESCRIPTION.
A. Premises. Landlord owns that certain real property located in Nash County, North
Carolina, identified as Assessor's Tax Parcel Number 022671, together with all buildings and
improvements thereon (collectively, the "Property"). Landlord hereby leases to Tenant and
Tenant hires from Landlord the "Premises", more particularly described in Exhibit "A"
attached hereto. The Premises constitutes all or a portion of the Property. The Premises is
leased together with, and includes, (i) the non-exclusive right to use all of Landlord's
easement rights and rights appurtenant to the Property where reasonably necessary for
Tenant's conduct of the Intended Use on the Premises; and (ii) an easement for light, solar
energy resources, ingress, egress, and utility access over, under and across the Property as
reasonably necessary for Tenant's conduct of the Intended Use on the Premises.
B. Right to Reduce Premises. At any time prior to the "Rent Commencement Date"
(defined below), Tenant may reduce the size of the Premises by giving written notice to
Landlord of its election to reduce the Premises, which notice shall include a new description,
including acreage, of the Premises in the form of a new Exhibit A. Such notice shall, upon
delivery, constitute an amendment to this Lease and the Exhibit A attached to said notice
shall automatically replace the then existing Exhibit A to this Lease. If Tenant elects to
reduce the Premises as provided in this Section, Tenant may reserve easements over the
remainder of the Property for access and utilities to serve the Premises. Tenant shall not be
permitted to reduce the Premises to less than ten (10) acres.
2. APPROVAL PERIOD.
A. Documents to be Supplied by Landlord. Within five (5) days following the date of
execution of this Lease, if already in Landlord's possession, Landlord shall deliver to Tenant
copies of all reports, title information, surveys, tax bills, contracts, easements, encumbrances,
restrictions, restrictions, approvals, leases, trust certifications, incorporation documents and
operating agreements that relate to the Property and ownership vesting and authority related
thereto.
B. Approval Period. Tenant shall have a period of up to twenty four (24) months (the
"Approval Period") from the execution of this Lease in which to (i) inspect the Property,
including with respect to title, to evaluate the feasibility of the Premises for the "Facility"
(defined below); and (ii) obtain all permits, variances, subdivisions, re -zonings and any other
utility, municipal and private approvals (collectively, the "Approvals") deemed by Tenant to be
necessary for Tenant to develop the Premises for Tenant's installation, maintenance and use of
the Facility. Tenant's satisfactory inspection of the Property and Tenant obtaining all the
Approvals are each a condition precedent to Tenant's obligations under this Lease. If Tenant is
unsatisfied with the results of the inspection, in Tenant's sole and absolute discretion, or if
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Tenant is unable to obtain all of the Approvals in form and substance acceptable to Tenant, in
Tenant's sole and absolute discretion prior to the end of the Approval Period, then Tenant may
terminate this Lease at any time prior to the expiration of the Approval Period, in which event
the termination shall he effective when the notice is given, and the parties shall be released from
further liability pursuant this Lease. Notwithstanding the foregoing, Tenant shall have the right
at any time during the Approval Period upon written notice to Landlord to waive the remaining
term of the Approval Period and cause the occurrence of the "Rent Commencement Date" (as
defined below). The "Facility" is a solar power generation facility.
In consideration of the Approval Period, Tenant shall pay Landlord_within 30
days of the execution of this Lease as compensation for the six (6) month period beginning on
first day of the first full month of the Approval Period. Starting on the first day of the seventh
full month of the Approval Period, and continuing on the first of each consecutive month until
termination of this Lease or the Rent Commencement Date, whichever happens first, Tenant
shall pay to Landlord -
During the Approval Period, Tenant shall have the right to examine the title to the
Property, and if the title to the property is unsatisfactory to Tenant, in Tenant's sole and
absolute discretion, Tenant may terminate this Lease at any time prior to the expiration of the
Approval Period, in which event the termination shall be effective when the notice is given, and
the parties shall be released from further liability pursuant this Lease. During the Approval
Period and the Term, Landlord shall not, except in accordance with Section 15 of this Lease,
grant any additional liens, leases, or encumbrances against the Property without Tenant's prior
written consent, which Tenant may withhold in Tenant's sole discretion. Landlord
acknowledges that Tenant may obtain, at Tenant's expense (except as necessary in fulfillment
of Landlord's obligations under Section 15 below), a title insurance policy insuring Tenant's
leasehold interest in the Premises. Landlord agrees to assist Tenant in obtaining such title
policy, including the execution of affidavits, delivery of evidence of authority, and supply of
information as reasonably requested by the title insurance company as a condition for issuing a
title policy insuring Tenant's interest in the Premises with such endorsements and coverage
limits as Tenant may choose in its sole discretion.
During the Approval Period, Landlord hereby grants to Tenant, its agents and contractors.
the right to enter upon the Property to conduct surveys, assessments, soil tests, and other
reasonable studies in order to confirm Tenant's ability to construct the Improvements in accord
with applicable law, and generally satisfy itself as to the feasibility of the Premises for Tenant's
use. Tenant shall indemnify and hold Landlord harmless from any liens, claims or liability that
may arise out of Tenant's and/or Tenant's agent's entry and/or inspection of the Property.
3. TERM. The initial Term shall commence on the Rent Commencement Date (as defined
below), and end on the last day of the fifteenth (15th) Lease Year thereafter (the "Initial Term").
The first Lease Year shall be for a period of twelve (12) consecutive calendar months from the
Rent Commencement Date, except that if the Rent Commencement Date shall be other than the
first day of a calendar month, the first Lease Year shall be the period from the Rent
Commencement Date to the end of the calendar month in which it shall occur, plus the following
twelve (12) calendar months. Each Lease Year after the first Lease Year shall be a successive
period of twelve (12) calendar months. The Initial Term and any Renewal Term(s) under
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Section 19 shall be collectively known w the "Term", unless the context clearly otherwise
requires.
When the Term of this Lease is fixed, or otherwise agreed to by Landlord and Tenant, Landlord
and Tenant shall execute a letter agreement which shall specify the actual date for the expiration
of the Initial Term of this Lease and the Renewal Temn(s), if any, and a memorandum of lease
shall be executed reflecting the start of the Term (or if a memorandum of lease has already been
recorded, a revised memorandum of lease may be recorded reflecting the start of the Term).
4. RENT. Tenant, in consideration of the covenants made by Landlord, covenants and
agrees to pay to Landlord rent ("Base Rent") for the Premises from and after that date which is
the earlier to occur of. (i) the date that Tenant begins construction of the Facility on the Premises,
or (ii) the day which is the first full day of the first full month following the Approval Period (the
"Rent Commencement Date") The Base Rent to be paid by Tenant during the first Lease Year
shall be calculated by multi 1 in the acreage of the Premises, rounded to the nearest .01 acre,
by per acre, per year, paid in advance in monthly installments.
The initial installment shall be due on or before the Rent Commencement Date, and the Base
Rent shall increase byMach anniversary of the Rent Commencement Date during the balance
of the Term, or any extension thereof. All such rent payments shall be payable in advance on the
Rent Commencement Date, and the first of each succeeding month, without notice, demand or
offset (except as allowed herein). All other sums due from Tenant to Landlord under this Lease
during the Term shall be defined as "Rent".
5. USE OF PREMISES.
A. Intended Use. It is understood and agreed that the Premises are intended to be used
initially by Tenant for a solar power generation business and such other uses as may be necessary
or incidental thereto (the `Intended Use"); and/or any other lawful use.
B. Compliance With Laws. In the event any public authority shall require correction of
violations of any statute, ordinance, regulation or building code, corrections shall he made by
Tenant at Tenant's expense. Tenant shall comply with all ordinances and regulations of
government authorities relating to keeping Premises in an orderly condition and relating to the
method of conducting Tenant's business thereon.
C. Laws Interfering With Intended Use. If any law or zoning ordinance (or
interpretation thereof) presently enacted (or rendered) or subsequently enacted (or rendered) after
the date of this Lease is executed by a properly constituted governmental authority and
materially restricts Tenant's ability to utilize the Premises for the Intended Use (an "Adverse
Legal Change"), then Landlord shall cooperate with Tenant in connection with such challenges
as Tenant, in its sole and absolute discretion may pursue concerning the applicability of such law
or zoning ordinance to the Premises and Tenant's use thereof including, without limitation, court
action, lobbying efforts or legislative initiative for such period of time as Tenant chooses, in
Tenant's sole and absolute discretion. At any time when Tenant's Intended Use is restricted by
such Adverse Legal Change, Tenant shall have the right to terminate this Lease upon thirty (30)
days prior written notice to Landlord. Landlord may elect, by written notice sent to Tenant
within seven (7) days after receiving Tenant's termination notice, to challenge, at Landlord's
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sole cost and expense, the applicability of such law or zoning ordinance to the Premises and
Tenant's use thereof, whether by court action, lobbying efforts or legislative initiative for a
period of time, not to exceed sixty (60) days. If prior to the end of such sixty (60) day period
Landlord is able to obtain relief for the Premises and Tenant which will allow Tenant to operate
the Intended Use at the Premises for the remainder of the Term, then this Lease will remain in
full force and effect. If Landlord does not obtain such relief within such sixty (60) day period,
then this Lease shall terminate as of the end of said sixty (60) day period. Base Rent, additional
rent and all other charges payable by Tenant hereunder shall abate as of the date that Tenant's
use of the Premises is materially interfered with.
D. Recorded Restriction Interfering With Intended Use. If any recorded restriction
affecting the Premises (or interpretation thereof) materially restricts Tenant's ability to utilize the
Premises for the Intended Use, then, in addition to any remedies available to Tenant in this
Lease, at law or in equity, Tenant shall have the right to terminate this Lease upon thirty (30)
days prior written notice to Landlord.
E. Tenant's Exclusive. Landlord covenants that it will not (i) use or lease or (ii) permit
any tenant to use or lease or (iii) permit any occupant or subtenant or assignee of a tenant or
occupant to use any portion of the Property outside of the Premises, or any other property located
within a radius of one (1) mile of the Premises in which Landlord has an interest, for the purpose
of conducting a business that is engaged in the solar power generation business and/or a use
similar to the Intended Use ("Tenant's Exclusive"). Upon breach of Tenant's Exclusive, Tenant
shall have all remedies given to it at law and in equity, including, without limitation, the right to
injunctive relief and damages. In the event that any person or entity other than Landlord shall
violate Tenant's Exclusive, or shall indicate that it intends to violate any of said provisions,
Tenant shall have the right to elect to conduct and prosecute such legal proceedings in its own or
the Landlord's name, but at the expense of Tenant. Tenant's Exclusive shall be included in the
Memorandum of Lease recorded pursuant to Section 24 below.
6. UTILITIES. Tenant shall pay all charges imposed for water, sewerage, electric current,
gas and other utilities used or consumed by Tenant on the Premises during Tenant's occupancy
of the Premises. Landlord agrees to grant to Tenant over Landlord's adjacent property such
utility easements which are reasonably necessary to accommodate Tenant's use and for
development of the Premises.
7. TAXES. Commencing on the Rent Commencement Date except as otherwise provided
in this Article, Tenant shall pay in accordance with the terms hereof all general real estate taxes,
assessed and payable at any time during the Term of this Lease, upon or against the
Improvements (defined below in Section 26), lawfully assessed either in the name of the
Landlord or Tenant. Tenant shall be responsible only for those installments accruing during the
Term of this Lease, and a pro rata adjustment shall be made with respect to the commencement
and ending of Tenant's tax liability if the commencement or ending of Tenant's liability does not
coincide with the tax year. Landlord shall promptly, and in all events at least 30 days before
delinquency pay all other real estate taxes assessed against the Property, the Premises, any
improvements other than the "Improvements" (as defined in Section 26) thereon or any part
thereof. In addition to other remedies provided at law, equity or elsewhere in this Lease, should
Landlord fail to pay its share of any property taxes at least 30 days before delinquency, then
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Tenant may, without notice to Landlord, pay such property taxes, and deduct the amount of such
payment from any future payments of rent until Tenant has been fully reimbursed, plus interest at
the rate of 10% per annum or the maximum amount allowable under applicable law, whichever
is less.
Tenant shall pay its share of real estate taxes no later than thirty (30) days before payment
is due to the taxing jurisdiction, or thirty (30) days after Landlord notifies Tenant of the amount
thereof and furnishes Tenant with a copy of the receipted tax bill and the calculations by which
Tenant's share has been determined, whichever is later. Landlord shall pay the tax bill when
due. Landlord agrees to submit said notice and paid tax bills within six (6) months after payment
of such taxes by Landlord and Landlord's failure to submit to Tenant such requests for
reimbursement within said six (6) months shall nullify Landlord's right to collect from Tenant
any taxes for that particular year.
Tenant shall have the right in its own name or in the name of Landlord, to make and
prosecute application(s) for abatement of taxes or appeals for correction of assessments which
relate to the Property, the Premises or the Improvements, and Landlord agrees to cooperate fully
with Tenant in this regard. Landlord agrees to sign all necessary instruments in connection with
such application or appeal and, in addition, hereby appoints Tenant its agent -in -fact for purposes
of such signature, which shall be an agency coupled with an interest, all at no cost to Landlord.
Landlord shall not settle any such application or appeal without Tenant's prior written approval
in each instance.
Notwithstanding anything contained in this Lease, Tenant shall not be under obligation to
pay any part of any franchise, excise, estate, inheritance, income or similar tax which is or may
become payable by Landlord or which may be imposed against Landlord or against the rents
payable under the Lease or upon the income or profits of Landlord by reason of any law now in
force or later enacted. If the Base Rent abates or is apportioned for any reason pursuant to this
Lease, the amounts due pursuant to this Lease shall similarly abate or be apportioned.
Notwithstanding anything to the contrary contained in this Lease relating to the payment
of taxes and assessments, Landlord and Tenant each agree that in the event the Premises are re-
assessed for tax purposes because of transfer of ownership during the Term of this Lease, the
Tenant shall not be responsible for payment of any increase in taxes, charges and assessments
attributable to such re -assessment, which increase shall be the sole responsibility of Landlord.
The parties hereto acknowledge that, if the Property is currently qualified for deferred taxes
(agricultural, horticultural or forestry use) under Article 12 of Chapter 105 of the North Carolina
General Statutes, the entering into of this Lease may trigger an event of disqualification for
deferred taxes and require that the previous three years of taxes at market value be paid to the
County tax collector. Landlord shall take such steps as required by N.C.G.S. Section 105-277.5
to furnish the tax assessor with such information as may be required regarding the change in use
of the Property. Tenant agrees to pay to Landlord, or on Landlord's behalf, the deferred taxes
resulting from the change of use. Furthermore, if during the Term of this Lease, the Property
may be reconverted to agricultural, horticultural or forestry use at a later time, Tenant will take
such steps as may be reasonably requested of it (including the payment of reasonable costs) to
assist Landowner in returning the Property to such use.
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8. MAINTENANCE. Subject to the provisions of this Lease dealing with damage,
destruction, and condemnation, Tenant shall, at Tenant's sole cost and expense and at all times
during the Term of this Lease, keep the Improvements and the Premises in reasonably safe and
attractive condition in accord with applicable law, provided that Tenant may, but shall have no
liability to make changes or repairs to the Premises with respect to any conditions in place on the
Premises on or before the Rent Commencement Date or which arise out of Landlord's use of the
Property. Tenant shall, at Tenant's sole cost and expense, comply with all "Applicable Law,'
which term as used in this Lease shall mean all federal, state and local statutes, laws,
governmental rules and regulations, and ordinances, which are applicable to the Premises or the
Improvements.
9. ALTERATIONS. Tenant may make, from time to time and at its sole expense,
alterations, removals, demolition, or additions, structural or otherwise, to the Premises or the
Improvements or any parts thereof as may in Tenant's sole discretion be desirable for the
conduct, improvement or expansion of the Intended Use conducted upon the Premises.
10. INSURANCE/DAMAGE.
A. Tenant's Liability Insurance. Subject to Tenant's right to self insure, Tenant, at its
own cost and expense, agrees to secure and keep in force from and after the Rent
Commencement Date and throughout the Term, commercial general liability insurance in the
amount ofiiiiiiiiiiiii,�rn umbrella liability insurance
policy with a limit of not less thus er occurrence for claims
arising out of the activities of Tenant at the Premises, naming Landlord as an additional insured.
Tenant shall have the right to carry this insurance under "blanket policies" covering the Premises
and other locations it owns or leases.
B. Casualty to Improvements. If the Improvements or Premises shall be damaged or
destroyed, in whole or in part, by fire, earthquake, the elements, Act of God or any other
casualty, Tenant shall either (1) restore or rebuild the Improvements to a complete and
presentable condition and appearance as Tenant desires, although not necessarily of the same
size, arrangement or architectural appearance, or (2) place the Premises in a condition such that
any remaining improvements or structures shall not represent an unreasonable risk of personal
injury or property damage to Landlord or members of the public, nor shall the same constitute a
nuisance, or in any way be left in a condition that is contrary to Applicable Law. In the event
that Tenant elects not to restore or rebuild the Premises, Tenant shall have the right to either
sublet or assign the Premises in accordance with Tenant's rights pursuant to Section 13 below,
provided that if Landlord withholds Landlord's consent to any sublet or assignment after the
Tenant has elected not to rebuild or restore, Tenant may terminate this Lease at any time
thereafter.
C. Waiver of Subrogation. Any All Risk or Casualty Insurance Policy maintained by
Landlord or Tenant covering property at the Property shall include a clause or endorsement
denying the insurer any rights of subrogation against the other party. Landlord and Tenant each
waive any rights of recovery against the other for damage to property at the Property due to
hazards covered by a typical All Risk or Casualty Insurance Policy.
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11. DEFAULT.
A. Acts of Default by Tenant.
"Default" is defined as a failure by the
terms, covenants or conditions under this Lease.
more of the following Defaults, and the failu
applicable grace period:
Tenant to comply with or perform any of the
"Breach" is defined as the occurrence of one or
e of Tenant to cure such Default within any
i. The failure of Tenant to make any payment required to be made by Tenant hereunder,
whether to Landlord or to a third party, when due, where such failure continues for a period of
fifteen (15) days after such payment is due and then thirty (30) days following receipt by Tenant
of written notice from Landlord that such payment is past due.
ii. The commission of waste, act or acts constituting public or private nuisance on the
Premises by Tenant, where such actions continue for a period of thirty (30) days following
receipt by Tenant of written notice from Landlord that such Default has occurred and is
continuing provided, however, that if the nature of Tenant's Default is such that more than
thirty (30) days are reasonably required for its cure, then such Default shall not be deemed to be
a Breach hereunder if Tenant commences such cure within said thirty (30) day period and
thereafter diligently prosecutes such cure to completion. In no event will the operation of the
Premises for the Intended Use be considered to be a public or a private nuisance.
iii. A Default by Tenant as to any other material term, covenant, condition or provision
of this Lease, where such default continues for a period of thirty (30) days after receipt by
Tenant of written notice from Landlord of such Default; provided, however, that if the nature of
Tenant's Default is such that more than thirty (30) days are reasonably required for its cure,
then such Default shall not be deemed to be a Breach hereunder if Tenant commences such cure
within said thirty (30) day period and thereafter diligently prosecutes such cure to completion.
iv. The occurrence of any of the following events: (i) the making of any general
arrangement or assignment for the benefit of creditors; (ii) becoming a "debtor" as defined in
I I U.S.C. Section 101 or any successor statute thereto (unless, in the case of a petition filed
against Tenant, the same is dismissed within one hundred twenty (120) days); (iii) the
appointment of a trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession is not restored to
Tenant within one hundred twenty (120) days; or (iv) the attachment, execution or other judicial
seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest in
this Lease, where such seizure is not discharged within one hundred twenty (120) days;
provided, however, in the event that any provision of this Subsection 11.A.iv is contrary to any
Applicable Law; such provision shall be of no force or effect, and not affect the validity of the
remaining provisions.
B. Acts of Default by Landlord.
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Landlord shall be in Default of this Lease if Landlord shall, at any time, breach or fail
to completely observe or perform any of the covenants and agreements required to be performed
and observed by Landlord hereunder, and such failure continues for a period of thirty (30) days
after notice thereof is given by Tenant to Landlord. Landlord shall also be in Default of this
lease if Landlord fails to perform any of its covenants, agreements and obligations to third
parties, including but not limited to payment of governmental prro % taxes and assessments,
and principal and interest payments on mortgage or o er in ncing obligaflSns owed to lenders.
C. Remedies upon a Breach by Tenant.
In the event that Tenant commits a Breach under this Lease, Landlord shall have the following
remedies:
i. Terminate Tenant's right to possession of the Premises by any lawful means, in
which case this Lease shall terminate and Tenant shall immediately surrender possession to
Landlord. In such event, Landlord shall be entitled to recover from Tenant: (i) the unpaid
Rent which had been earned at the time of termination though the date of termination; (ii) the
Worth at the Time of the Award of the amount by which the unpaid rent which would have
been earned from the date of termination through the end of the Term to the extent such
amount exceeds the amount of such rental loss that Landlord could have reasonably avoided;
and (iii) any other amount necessary to compensate Landlord for the cost incurred by Landlord
in recovering possession of the Premises, reasonable expenses of reletting the Premises for the
remainder of the Term, including necessary renovation and alteration of the Premises,
reasonable attorneys' fees, and that portion of any leasing commission paid by Landlord in
connection with this Lease applicable to the unexpired Term of this Lease. The "Worth at the
Time of Award" of the amount referred to in provision (ii) of the immediately preceding
sentence shall be computed by discounting such amount at the discount rate of the Federal
Reserve Bank of the District within which the Premises are located at the time of award plus
three percent (3%). If termination of this Lease is obtained through the provisional remedy
under Chapter 42 of the North Carolina General Statutes, Landlord shall have the right to
recover in such proceeding any unpaid Rent and damages as are recoverable therein, or
Landlord may reserve the right to recover all or any part thereof in a separate suit. If a notice
and grace period required under Section 11.A was not previously given, a notice to pay rent or
quit, or to perform or quit properly given to Tenant under Chapter 42 of the North Carolina
General Statutes shall also constitute the notice required by Section 11.A. In such case, the
applicable grace period required by Section MA and Chapter 42 of the North Carolina
General Statutes shall run concurrently, and the failure of Tenant to cure the Default within the
greater of the two (2) such grace periods shall constitute both an unlawful detainer (if meeting
the requirements of Chapter 42 of the North Carolina General Statutes) and a Breach of this
Lease entitling Landlord to the remedies provided for in this Lease and/or by said statute.
ii. Continue the Lease and Tenant's right to possession and recover the Rent as it
becomes due, in which event Tenant may sublet or assign, subject only to reasonable
limitations. Acts of maintenance, efforts to relet, and/or the appointment of a receiver to protect
the Landlord's interests, shall not constitute a termination of the Tenant's right to possession.
iii. Pursue any other remedy now or hereafter available under the laws or judicial
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decisions of the State of North Carolina. Expiration of the Term or termination of this Lease
and/or termination of Tenant's right to possession shall not relieve Tenant or Landlord from
liability under any indemnity provisions of this Lease as to matters occurring or accruing
during the Term of this Lease or by reason of Tenant's occupancy of the Premises.
D. Tenant's Remedies for a Default by Landlord. Upon any default of this Lease by
Landlord as defined in this Section 11, Tenant shall have all rights and remedies available to it
by law or in equity, including, without limitation, the right, but not the obligation, to:
i. terminate this Lease without waiving its rights to damages for Landlord's default;
ii. pay the taxes, assessments, interest, principal costs and other charges and cure such
defaults, all on behalf of and at the expense of the Landlord, and do all necessary work and
make all necessary payments in connection therewith, including, without limitation, the
payment of any fees, costs and charges of or in connection with any legal action that may
have been brought;
iii. bring suit for the collection of any amounts for which Landlord may be in default,
for the performance of any other covenant or agreement devolving upon Landlord, or for
other damages incurred by Tenant due to Landlord's default, without terminating this Lease;
and/or;
iv. deduct all amounts for which Landlord may be in default from any sums due or to
become due from Tenant to Landlord until such time as Tenant has been fully compensated.
If under any provision of this Lease Tenant make any payment or cures any Landlord Default
which payment or cure would allow offsets against, or application to, the payment of any
sums due or to become due from Tenant to Landlord, then Landlord agrees, upon request by
Tenant, to evidence the same in writing to Tenant.
In addition to Tenant's other rights hereunder, in the event this Lease is terminated by
Tenant as a result of Landlord's default or by a termination right exercised by Tenant pursuant to
Sections 5.D or 5.E, Landlord shall pay to Tenant, upon such termination, an amount equal to
the unamortized portion (as of the date of such termination) of the total sums expended by
Tenant in constructing the Improvements and making any other alterations, additions or
improvements to the Premises, which amortization is to be on a straight line basis over fifteen
(15) years. The total sums so expended by Tenant shall be reflected in a written itemization
certified by an officer or controller of Tenant.
E. Self -Help. Landlord and Tenant shall each have rights of self-help, as follows:
i. If either party defaults in the performance of any obligation imposed on it by this
Lease and does not cure such default within thirty (30) days after written notice from the
other party specifying the default (or does not, within said period, commence and diligently
proceed to cure such default), then the other party, without waiver of or prejudice to any
other right or remedy it may have, shall have the right at any time thereafter to cure such
default for the account of the defaulting party, and the defaulting party shall reimburse the
other party for any amount paid and any expense or contractual liability so incurred upon
invoice. In the event Tenant is not reimbursed for its expenses within thirty (30) days after
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sending an invoice to Landlord, then Tenant shall have the option, at its sole discretion, of
offsetting such expenses against any rent or any other payment(s) next due to the Landlord,
until such time as Tenant has been completely reimbursed for its expenses; and/or;
ii. In the event of emergencies, or where necessary to prevent injury to persons or
damage to property, either party may cure a breach, failure or default by the other before the
expiration of the waiting period but after giving notice to the other party. For the purposes of
this Subsection 11.E only, oral notice shall be satisfactory, but only when followed by notice
pursuant to Section 29.D.
F. Duty to Mitigate Danines. Notwithstanding any of the terms and provisions herein
contained to the contrary, Landlord and Tenant shall each have the duty and obligation to
mitigate, in every commercially reasonable manner, any and all damages that may or shall be
caused or suffered by virtue of the other's defaults under, or violation of, any of the terms and
provisions of this Lease. Nothing in this Section 11.F shall be construed as altering the burden
of proof concerning the calculation of either party's liability to the other for a default under this
Lease, from that which is specified under North Carolina Law.
12. HOLDING OVER. Unless Landlord and Tenant otherwise agree in writing, any
holdover by Tenant after the expiration of this Lease, or any written extension thereof, shall
constitute a tenancy from month to month, at a rental rate of one hundred two percent (102%) of
the Base Rent for the last month of the Term of this Lease prior to holdover.
13. ASSIGNMENT AND SUBLETTING.
A. Except as provided below, Tenant covenants and agrees not to assign its interest in
this Lease or sublet the Premises, or any part of same, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. It shall be
unreasonable for the landlord to withhold consent for a transfer to a successor Tenant which has
experience in operating commercial solar power generating facilities or has otherwise made
reasonably adequate provision, whether by capitalization or a coherent business plan for its
operations on the Premises, to ensure its ability to satisfy the Base Rent obligations to come due
over the balance of the then applicable Lease term. Upon Landlord's approval of an assignment,
Tenant shall be relieved of all further liability under this lease, except to the extent of liability
arising out of events or circumstances occurring before the effective date of such assignment.
Notwithstanding any subletting, Tenant shall continue to be liable for the prompt and full
payment of all Rent and other payments required hereunder throughout the term of the Lease.
B. Tenant shall be permitted to assign this Lease or sublet all or any part of the Premises
without the consent of Landlord to a parent, subsidiary or affiliated corporation, partnership or
other affiliated business entity (which shall be an entity which, directly or indirectly, controls or
is controlled by Tenant or Tenant's parent company or which is under common control with
Tenant, Tenant's parent or any other affiliate of Tenant) or to a franchisee or dealer of Tenant or
a franchisee or dealer of an affiliate of Tenant, or to a purchaser of all or substantially all of the
assets of Tenant. A sale of any or all of the shares of Tenant (or its parent, if applicable) shall
not be considered an assignment of this Lease and shall not require the consent of Landlord.
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C. Dissolution, merger, consolidation or other reorganization of Tenant or any transfer
of a controlling percentage of stock or ownership of Tenant shall not constitute an assignment of
this Lease and shall be permitted without the consent of Landlord, provided that the successor
corporation assumes all obligation and responsibilities under this Lease.
D. Tenant shall be entitled to encumber its interest in the Premises and Improvements as
follows:
i. Tenant shall at all times have the right to encumber by deed to secure debt, deed
of trust, or other instrument in the nature thereof as security for any debt, all of Tenant's
leasehold interest in the premises, together with its rights and interests in and to all buildings,
improvements, and fixtures now or hereafter placed on the Premises by Tenant (a "Leasehold
Mortgage"), provided however, that any such Leasehold Mortgage shall be subordinate and
inferior to Landlord's rights, title, privileges, liens and interests in the Property as provided in
this Lease, and provided that Tenant shall, in no event, have the right to, in any way, encumber
Landlord's fee simple title and reversionary interest in and to the Premises. The right to
mortgage set forth herein shall include the right to mortgage Tenant's leasehold interest in the
Premises in connection with a "sale -leaseback" of said leasehold interest.
ii. If, at any time after the execution of any bona fide deed to secure debt, mortgage,
deed of trust, or other instrument in the nature thereof encumbering Tenant's right, title and
interest hereunder, the grantee, mortgagee, or trustee (a "Leasehold Mortgagee"), therein shall
notify the Landlord in writing that any such deed to secure debt, mortgage, deed of trust or other
instrument in the nature thereof has been given and executed by Tenant and shall at the same
time furnish Landlord with the address to which it desires copies of notice to be mailed,
Landlord hereby agrees that it will mail to such person or entity at the address so given, duplicate
copies of any and all suits fled by Landlord against Tenant and duplicate copies of any and all
written notices of default which Landlord may, from time to time, give or serve upon Tenant
under the terms of this Lease or otherwise related hereto. Landlord shall not be in default for
failure to give notices to a Leasehold Mortgagee, and such failure shall not affect the validity of
notices properly given to Tenant.
iii. To the extent that Tenant may grant the right to any such Leasehold Mortgagee,
such Leasehold Mortgagee may, at its option, at any time before this Lease shall have been
terminated, pay any amount or do any act or thing required of Tenant by the terms of this Lease;
and all payments so made and all acts or things so done and performed by any such grantee,
mortgagee, or trustee, shall be as effective to prevent any termination of the rights of Tenant
hereunder as the same would have been if done and performed by Tenant instead of any such
Leasehold Mortgagee. If any event of a termination of this Lease because of a default of Tenant
that is of such a nature that it cannot be cured by any bona fide Leasehold Mortgagee prior to
ripening into a default hereunder or because of rejection or other termination under the
bankruptcy laws that cannot reasonably be prevented by any such Leasehold Mortgagee,
Landlord shall grant to such bona fide Leasehold Mortgagee the right to enter into a new lease
with Landlord, the provisions of which shall be identical to this Lease and with a lease term to
expire at the time that the term of this Lease would have expired had it not been terminated, such
right to be communicated by Landlord to said bona fide Leasehold Mortgagee prior to or within
one (1) week after such termination ("Mortgagee Termination Notice"), with said Leasehold
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Landlord Lease

Mortgagee having ten (10) days after receipt of such notice to give notice to Landlord that it will
exercise its right to enter into such a new lease (and if such notice has not been given within that
period, it shall be conclusively deemed that said grantee, mortgagee or trustee has declined to
enter into such a new lease) and provided that said Leasehold Mortgagee shall
contemporaneously pay to Landlord any and all sums owed by Tenant and unpaid to Landlord
pursuant to this Lease through and including the date of commencement of such new lease, and
perform all other unperformed obligations of Tenant that are capable of being performed. Said
Leasehold Mortgagee shall prepare, execute and deliver said new lease to Landlord within thirty
(30) days after it has exercised its right therefore by notice to Landlord; provided, however, that
the tenant's obligation to pay rent thereunder shall be effective as of the date of receipt of the
Mortgagee Termination Notice.
iv. Any deed to secure debt, mortgage, deed of trust, or instrument in the nature
thereof given by Tenant may, if Tenant so desires, be so conditioned as to provide that as
between any such Leasehold Mortgagee and Tenant, said Leasehold Mortgagee, on making good
any such default or defaults on the part of Tenant, shall be thereby subrogated to any and all of
the rights of Tenant under the terms and provisions of this Lease.
v. No termination, surrender, or material amendment of this Lease shall be binding
upon a Leasehold Mortgagee, if any, without the prior written consent of such party or as
otherwise permitted herein. Notwithstanding the preceding sentence, nothing set forth in this
paragraph shall be deemed to limit Landlord's rights or remedies hereunder, including
termination of this Lease with respect thereto, after providing the notices and opportunities to
cure provided for herein.
A. This Lease may be assigned or transferred to any party as a result of foreclosure
or transfer in lieu of foreclosure. Any such Leasehold Mortgagee or transferee of the leasehold
estate of Tenant hereunder pursuant to foreclosure, assignment in lieu of foreclosure or other
proceedings may, upon such acquisition, without further consent of Landlord, sell and assign the
Lease on such terms and to such persons and organizations as are acceptable to such Leasehold
Mortgagee, provided that such assignee has delivered to Landlord its written agreement to be
bound by all of the provisions of this Lease. In case of an assignment or transfer under this
Subsection 13.D.vi, Tenant shall remain liable under this Lease only to the extent specified in
Section 13.A, above. Nothing in this Subsection 13.D.vi or in any other provision of this Lease
shall be deemed in any way to impair the right of Landlord to pursue its remedies by reason of a
default of Tenant or any successor -in -interest to Tenant, notwithstanding that such default may
have been committed prior to the then -current tenant's acquisition of the leasehold interest.
Notwithstanding the foregoing, any such assignment shall be subject to all of the terns of this
Lease.
14. NO WAIVER, ENFORCEMENT. The failure by either party to insist upon strict
performance of any covenant, warranty or condition or to enforce any of its rights under this
Lease in any one or more instances shall not be construed as a waiver in any subsequent instance
of any such covenant, warranty, condition or rights, but the same shall be and remain in full force
and effect.
15. TITLE; OUIET ENJOYMENT, LANDLORD'S RIGHT OF ACCESS.
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A. Authority of Landlord. Landlord covenants and warrants that Landlord has full
right and lawful authority to enter into this Lease for the full Term hereof, and for any extensions
herein provided, and that Landlord is lawfully seized of the Premises in fee simple and has good
title thereto free and clear of all tenancies, liens and encumbrances.
B. Quiet Enjoyment. Tenant shall have and enjoy under this Lease the quiet
enjoyment, including maximal economic benefit from the conduct of the Intended Use or any
other permitted use, and undisturbed possession of the Premises throughout the Term, without
any interference or restriction by Landlord or any other person, whether such interference or
restriction is the result of activities, events or circumstances arising on the Premises or elsewhere
and subject to Landlord's ownership, possession or control.
C. Zonin . All of the Premises is subject to the zoning ordinances of governmental
authorities having jurisdiction, and Tenant shall at all times be restricted to using the Premises in
accordance with Applicable Law. Landlord represents to Tenant that, to the best of Landlord's
knowledge, the use of the Premises for the Intended Use is not materially restricted by
Applicable Laws.
D. Restrictions. The Premises may also be subject to certain restrictive and exclusive
agreements, previously entered into by Landlord with local governmental authorities having
jurisdiction with respect to the Premises. Landlord warrants and represents that the uses set forth
in this Lease and all other provisions of this Lease are not in violation of any such restrictive or
exclusive agreements, and all such restrictive or exclusive agreements shall be disclosed to
Tenant during the Approval Period.
E. Liens. The parties hereto acknowledge that Premises consist of land only. Nothing
contained in this Lease shall authorize Landlord to do or refrain from doing any act, nor shall
said title and interest of Tenant therein be in any way subject to any claim by way of lien or
encumbrance, whether arising by operation of law or by virtue of any express or implied contract
by Landlord prior to or during the Term. Any claim to a lien or encumbrance upon the Premises,
arising from any act or omission of Landlord, shall accrue only against the real estate owned by
Landlord, and not against any improvement erected by Tenant, and shall be subject to this Lease.
If any such lien or encumbrance shall be filed against the Improvements as a result of Landlord's
actions, Landlord shall, without cost or expense to Tenant, promptly and within a reasonable
time, either cause the same to be: (a) discharged of record by payment, statutory lien release
bond, court order or otherwise as provided by law; or (b) contested, provided that Landlord shall
either provide a title indemnity over any such claim or post a statutory lien release bond in the
amount of the lien or such other amount specified by statute which will release the Premises and
any improvements from the claim of lien, and further provided that any judgment in favor of the
lien holder arising out of such contest is paid and satisfied before execution thereof. Landlord
shall not permit any sale, foreclosure or forfeiture of the Premises by reason of nonpayment of a
lien caused by Landlord or anyone claiming by or through Landlord, and on final determination
of the lien, Landlord will immediately pay any judgment rendered with all proper costs and
charges, and shall have the lien released or judgment satisfied at Landlord's expense. Landlord
shall immediately notify Tenant of, and send Tenant a copy of, any notice Landlord receives
claiming that Landlord is late or in default regarding any obligation Landlord has to pay money
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to any lender or third party holding a mortgage or other lien affecting the Property or the
Premises.
F. Existine Encumbrances. Notwithstanding the foregoing Section ME, Landlord
need not discharge any mortgages or deeds of trust securing loans against the Property provided
Landlord, at its sole cost and expense, shall procure a Subordination, Non -Disturbance and
Attornment Agreement (the "SNDA") in form and substance acceptable to Tenant executed on
behalf of any and all mortgagee(s) or beneficiaries of deeds of trust securing such a loan. The
SNDA shall be commercially reasonable in form and substance and shall in all events provide
that,_so long as Tenant is not in Breach of this Lease,_(i) such mortgagee(s) or beneficiaries shall
recognize Tenant's rights under the Lease; (ii) Tenant shall continue to enjoy the uninterrupted
possession of the Premises and such other rights as are granted hereunder; (iii) such mortgagees
or beneficiaries shall have no right to receive any proceeds of insurance for condemnation made
payable to Tenant of the terms of this Lease; (iv) such mortgagees or trustees shall have no rights
to succeed as Landlord under this Lease without expressly assuming all obligations of Landlord
under this Lease. Landlord shall cause such SNDA to be recorded in the appropriate county
Register of Deeds office, and deliver a recorded copy to Tenant.
G. Future Encumbrances. Notwithstanding the foregoing Sections 15.E and 15.F,
Landlord may encumber its interest in the Property with a mortgage or deed of trust to secure
Landlord's obligations on a loan, provided that Landlord, at its sole cost and expense, shall cause
an SNDA in form and substance acceptable to Tenant (as set forth in Section 15.F), to be
executed on behalf of any and all mortgagee(s) or beneficiaries of deeds of trust securing such a
loan. Nothing herein shall permit Landlord to grant any easements, rights, or other leases with
respect to any portion of the Premises.
H. Access to Premises by Landlord. Landlord shall have the right of access to the
Premises upon reasonable advance notice to Tenant during normal business hours for the
purposes of repairs, environmental testing or remediation under Section 22, or displaying the
Premises to prospective mortgagees or purchasers or, during the last six (6) months of the Term,
to prospective tenants. Landlord shall exercise such right in a manner that does not disrupt
Tenant's business operations on the Premises.
16. CONDEMNATION. In the event that the whole or any part of the Premises shall be
taken by any governmental agency or utility under the power of eminent domain, both parties
shall pursue their own damage awards with respect to any such taking, provided, however, that
Tenant shall be entitled to the award in connection with any condemnation insofar as the same
represents compensation for or damage to the Improvements, fixtures paid for or installed by
Tenant, equipment, or other property on the Premises, moving expenses, alteration expenses, and
the loss of Tenant's leasehold interest (the unexpired balance of the Term immediately prior to
the taking). Landlord shall be entitled to the entirety of any award insofar as same represents
compensation for or damage to Landlord's fee title to the Premises. Tenant's rights to a
condemnation award shall survive the termination of this Lease.
17. FIXTURES, SURRENDER OF PREMISES.
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It is understood that the Premises consist of unimproved land only and that any alterations or
Improvements placed or made to the Premises by the Tenant are not intended to be fixtures and
shall be and remain the property of Tenant, Tenant may, upon vacating the Premises, or at any
time during the Term, remove all or any part of the Improvements. Tenant shall repair any
damage to the Premises caused by such removal and shall leave the Premises free from any
improvements or structures at the end of operations. Tenant shall at its sole cost and expense
remove all of the Improvements from the Premises, including any foundations, pads, poles,
pedestals, and similar ground -mountain structures to a depth of no less than 36 inches below
grade (without adding topsoil above surrounding grade), and shall rough grade the Premises to
the same condition of level as existed at the Rent Commencement Date, and otherwise leave the
Premises in a condition consistent with Applicable Law and the conditions of its permitting,
andfree of any conditions which present a current unreasonable risk of harm to Landlord or
members of the public, but Tenant shall otherwise have no obligations to restore the Premises to
its condition existing on the Rent Commencement Date.
At the expiration of this Lease or at the earlier termination of this Lease as herein provided,
Tenant will peaceably and quietly leave the Premises and surrender possession thereof to
Landlord. Tenant's failure to demolish any improvements as required shall not subject tenant to
incidental of consequential damages and shall not be deemed Tenant's continued possession of
the Premises.
18. INDEMNITY.
A. Commencing on the Rent Commencement Date, Tenant agrees that it will indemnify
and save Landlord harmless from any and all liability, damage, expense, cause of action, suits,
claims or judgments resulting from injury to person or property of others that arises or is claimed
to arise out of any act of Tenant, or Tenant's failure to act, in connection with Tenant's use of the
Premises, or negligence of Tenant, its agents, licensees or employees or from events or
circumstances occurring on or under the Property other than the Premises. Landlord agrees that
in the event any claim is asserted or any action brought to recover any such damage, Landlord
shall give immediate notice thereof in writing to Tenant and shall cooperate in every way in the
investigation and defense of any such claim or action, and that the handling and settlement of
any such action shall be performed and concluded by Tenant.
Tenant shall have the sole and exclusive right to retain counsel of its choice, to determine
all litigation issues including, without limitation, trial strategy, trial preparation, discovery
techniques and strategy, right of appeal, and settlement decisions all at Tenant's expense. in the
event of an adverse judgment against Landlord on such claims, the judgment having become
final, and the time for all appeals having expired, Tenant agrees to cause such judgment to be
satisfied within thirty (30) days, and agrees to indemnify and hold Landlord harmless from and
against any and all losses, costs, expenses, damages, liabilities or attorney's fees that arise if such
judgment is not so satisfied.
Landlord agrees to notify Tenant in writing by delivery to Tenant within ten (10) days,
and by telephone immediately after Landlord receives any such complaint or claim. The
delivery of written notification shall include a copy of all pleadings if a complaint is filed, or of
all correspondence and exhibits if a claim is filed.
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B. Commencing on the Rent Commencement Date, Landlord agrees that it will
indemnify and save Tenant harmless from any and all liability, damage, expense, cause of action,
suits, claims or judgments resulting from injury to person or property of others that arises or is
claimed to arise out of any act of Landlord, or Landlord's failure to act, or negligence of
Landlord, its agents, licensees or employees, or from events or circumstances occurring on or
under the real property owned or controlled by Landlord. Tenant agrees that in the event any
claim is asserted or any action brought to recover any such damage, Tenant shall give immediate
notice thereof in writing to Landlord and shall cooperate in every way in the investigation and
defense of any such claim or action, and that the handling and settlement of any such action shall
be performed and concluded by Landlord.
Landlord shall have the sole and exclusive right to retain counsel of its choice, to
determine all litigation issues including, without limitation, trial strategy, trial preparation,
discovery techniques and strategy, right of appeal and settlement decisions all at Landlord's
expense. In the event of an adverse judgment against Tenant on such claims, the judgment
having become final, and the time for all appeals having expired, Landlord agrees to cause such
judgment to be stayed immediately upon entry and satisfied within thirty (30) days, and agrees to
indemnify and hold Tenant harmless from and against any and all losses, costs, expenses,
damages, liabilities or attorney's fees that arise if such judgment is not so satisfied.
19. EXTENSION OF TERM.
A. Tenant shall have the right to renew or extend the Lease for three (3) periods of five
(5) years (Each period, a "Renewal Term"), under the same terms and conditions of the Lease,
except that Base Rent in each year of a Renewal Term shall be 102% of the rent due for the prior
year, payable in advance in equal monthly installments. In the event Tenant exercises this option
to renew or extend, written notice thereof shall be given Landlord at least one hundred twenty
(120) days prior to the commencement of the Renewal Term.
B. Notwithstanding the preceding, in the event that Tenant elects not to exercise any or
all of the Renewal Terms and upon written notice at least one hundred twenty (120) days prior to
the end of the then -current Term, Tenant shall have the right to continue the Lease, as may be
needed to fulfill Tenant's obligations to Landlord or other parties, for a period of between one
(1) and twelve (12) months after the end of the then -current Term. In this case, Base Rent shall
be 102% of the rent due for the prior year, payable in advance in equal monthly installments,
prorated for the number of months Tenant elects to continue.
C. In the event Tenant does not notify Landlord of the exercise of any option to renew
hereunder prior to the notice date set forth herein, Tenant's option to renew shall nevertheless
remain in full force and effect until the fifth (5th) business day after Tenant's receipt of written
notice from Landlord setting forth the expiration date of the Lease and advising Tenant that
notice of renewal has not been received. Landlord shall be obligated to provide such a notice to
Tenant prior to leasing the Premises to another tenant or declaring that the Term has ended. The
options contained in this Section 19 shall not be affected or terminated by the receipt or rejection
of any offers relating to other options, including, but not limited to, rights of first refusal to
purchase or lease, if any, contained in this Lease.
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20. FIRST REFUSAL TO LEASE. Subject to and not limiting Tenant's rights to renew or
extend as set forth in this Lease, if any, Landlord hereby grants to Tenant a right of first refusal
to lease the Premises for a term commencing at the expiration or termination of this Lease, as
extended, and/or any premises owned by Landlord located adjacent to the Premises at any time
during the Term, as extended, only upon the terms and conditions as contained in any valid,
acceptable, bona fide lease offer Landlord or any subsequent Landlord may receive prior to the
cancellation or termination of this Lease, as extended. Tenant shall have fifteen (15) days after
receipt from Landlord of written notice of such offer, with a certified full written statement of
such offer and copy of the proposed lease (the "Proposed Lease"), within which time to exercise
its options to lease and accept any such lease terms. Landlord agrees to promptly notify Tenant
of receipt of any such acceptable offer to lease. Tenant shall exercise such right of first refusal
by delivery of notice to Landlord pursuant to Section 29.E below, accepting such offer.
Thereafter, Tenant shall be deemed to have extended this Lease upon the economic terms of the
Proposed Lease (i.e. rent, payment of taxes and Common Area charges, tenant improvement
allowance, options to extend). Tenant and Landlord shall be bound by all of the economic terms
of the Proposed Lease. Landlord and Tenant shall enter into an amendment of this Lease
extending the Term and incorporating the other economic terms of the Proposed Lease.
Notwithstanding Tenant's failure to exercise such right of first refusal on a single occasion, such
right of first refusal shall be a continuing right throughout the balance of the Term and Landlord
shall be obligated to submit any future offers to Tenant.
21. FIRST REFUSAL TO PURCHASE. Subject to and not limiting Tenant's rights to
renew or extend as set forth in this Lease, if any, beginning on the date of final execution of this
Lease and continuing during Tenant's occupancy under this Lease, or any extension or renewal
thereof, Tenant shall have first refusal option to purchase the Property, the Premises, or any
portion thereof, upon the same terns and conditions as contained in any bona fide sales
agreement ("Sales Agreement") fully executed by Landlord, or its successors and assigns, and
the purchaser (third party). Landlord shall promptly send to Tenant a certified copy of the Sales
Agreement within five (5) days of its full execution and Tenant shall have ten (10) days after
receipt of the Sales Agreement from Landlord within which time to exercise said option to
purchase. Tenant shall exercise such option of first refusal by delivering notice of its exercise to
Landlord in accordance with Section 29.E below. By delivery of such notice of election to
exercise its option of first refusal, Tenant shall be deemed to have executed the Sales Agreement
in place of the purchaser, and shall be bound by all terms and conditions of the Sales Agreement.
If Tenant exercises its option, and irrespective of the terms of the Sales Agreement, Landlord
shall deliver to Tenant a current commitment for owners title insurance policy issued by a title
company acceptable to Tenant committing to insure Tenant in the amount of the purchase price
and showing title to be good and marketable fee simple, free and clear of all liens, reservations,
easements, encumbrances, restrictions of record, and encroachments, except as described on
Exhibit A attached hereto and made a part hereof and such other matters as are approved by
Tenant as part of the Sales Agreement. Irrespective of the terms of the Sales Agreement, transfer
of title by Landlord to Tenant shall be effected by warranty deed conveying such title; further,
Tenant shall not be obligated to give back or assume any mortgage or trust deed, but instead shall
have the right to pay the entire purchase price in cash. Tenant shall have no obligations for
payment of any brokerage fee in connection with the purchase and if any such payment is due to
any party it shall be paid by Landlord. Notwithstanding Tenant's failure to exercise such right of
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first refusal on a single occasion, such right of first refusal shall be a continuing right throughout
the balance of the Term and Landlord shall be obligated to submit any future offers to Tenant.
22. ENVIRONMENTAL COMPLIANCE.
A. Definitions.,
The following terms, whenever set forth in initial capitals in this Lease,
shall have the meaning set forth in this Article, unless otherwise expressly provided in this
Lease:
"Environmental Law" means any applicable federal, state or local statute, law,
ordinance, rule, regulation, code, license, permit, authorization, approval, consent, order,
judgment, decree, injunction, directive, requirement by, of, or agreement with any
governmental agency, existing as of the date this Lease is fully executed and as amended
thereafter, relating to: (a) the protection, preservation or restoration of the environment
(including, without limitation, air, water, vapor, surface water, ground water, drinking water
supply, surface land, subsurface land, plant and animal life, or any other natural resource), or
to human health and safety; (b) the exposure to, or the use, storage, recycling, treatment,
generation, transportation, processing, handling, labeling, production, release or disposal of,
Hazardous Substances; (c) any common law or equitable doctrine (including, without
limitation, injunctive relief and tort doctrines such as negligence, nuisance, trespass and strict
liability) that may impose liability or obligations for injuries or damages related or incidental
to, or threatened as a result of, the presence of or exposure to any Hazardous Substance.
"Hazardous Substance" means any substance, whether liquid, solid, or gas, that is
listed, defined, designated, or classified as toxic, hazardous, radioactive, or dangerous under
any Environmental Law, whether by type or by quantity.
"Release" means any release, spill, emission, leaking, pumping, pouring, emptying,
escaping, dumping, injection, deposit, disposal, discharge, dispersal, leaching or migration
into the environment or into, onto, beneath or from the Premises, including, without
limitation, the movement of Hazardous Substances through or in the air, soil, surface water,
ground water of the Premises.
B. Tenant Compliance. Commencing on the Rent Commencement Date, Tenant, at
Tenant's expense, shall comply with all Environmental Laws pertaining to Tenant's operations
in the Premises. Tenant shall indemnify, defend, protect and hold Landlord harmless from and
against any and all liability, obligations, penalties, clean-up costs, fines, claims, civil penalties
and actions, suits, and expenses (including, without limitation, reasonable legal fees) (each, an
"Environmental Claim") imposed on, incurred by, or reserved against Landlord directly arising
out of the existence or presence of Hazardous Substances on, under or from the Premises, from
and after the Rent Commencement Date, in violation of any applicable Environmental Law
resulting from Tenant's activities on the Premises.
C. Landlord Compliance. Commencing on the Rent Commencement Date, Landlord,
at Landlord's expense, shall comply with all Environmental Laws pertaining to the Property with
the exception of Tenant's operations on the Premises. Landlord shall indemnify, defend, protect
and hold Tenant harmless from and against any and all Environmental Claims imposed on,
incu by, or reserved against Tenant directly arising out of the existence or presence of
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Hazardous Substances on, under or from the Property, except to the extent such Environmental
Claims arise from Tenant's operations on the Premises.
D. Landlord Reuresentations. Landlord represents, warrants and covenants to Tenant:
i. the Property is in compliance with all applicable Environmental Laws;
ii. the Property is not the subject of any existing, pending or threatened investigation,
action, claim or proceeding by any governmental agency or third party pursuant to any
Environmental Law;
W. no permits or licenses to construct or operate any improvements, fixtures or
equipment forming a part of the Premises are required by any Environmental Law;
iv. Landlord's use of the Property, both past and present, including without limitation
the use by Landlord's past and present tenants of the Property, has not resulted and does not
now result in the Release of any Hazardous Substances on, to or from the Property;
V. Landlord has not installed, used or operated, and has no knowledge of the
presence or existence, both past and present, of, any underground storage tanks on, under or
around the Property;
vi. Landlord has no knowledge of and has not received any notice, whether written or
unwritten, formal or informal, of any violation of any Environmental Laws at the Property;
vii. any use, storage, treatment, generation, disposal or transportation of Hazardous
Substances during Landlord's ownership in, on or under the Property, prior to the date hereof,
has been in compliance with all applicable Environmental Laws; and
viii. Landlord shall continue to comply with all applicable Environmental Laws.
E. Undersround Storage Tanks. If one or more underground storage tanks (whether
or not abandoned in place) exist on or under the Premises, then such tanks and the pumps and all
other equipment used in connection with the operation of same shall be removed by Landlord in
accordance with all applicable Environmental Laws, at Landlord's sole expense, prior to the Rent
Commencement Date. If such underground storage tanks are discovered after the Rent
Commencement Date, Landlord shall remain responsible for their removal in accordance with all
applicable Environmental Laws. Such underground tanks and equipment shall be and remain the
exclusive property of Landlord, and Tenant shall not be required to take any actions with regard
thereto. Landlord shall promptly deliver to Tenant records documenting proper closure of the
tanks (e.g., a certificate of proper closure and/or approval of cleanup and removal by any
governmental agency having jurisdiction with respect to the tanks).
F. Landlord Default. If Landlord defaults in any of the provisions set forth in this
Article, then Tenant shall have the right to terminate this Lease and all of its obligations
hereunder by giving written notice to Landlord, reserving, however, in the event of such
termination, Tenant's right to collect damages as a result of such breach by Landlord and to seek
indemnification from the Landlord under subsections (C) and (H). Further, in the event of such
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Lease termination, Landlord shall reimburse Tenant for its costs and expenses incurred in
connection with this Lease, including, without limitation, legal fees and construction and
engineering fees and expenses.
G. Discovery of a Hazardous Substance. In the event that Hazardous Substances that
reasonably may be deemed to be dangerous to the health of Tenant's employees, agents or
invitees or are in violation of applicable Environmental Laws, are found within, on or under the
Premises other than solely as a result of the acts of Tenant, its agents, contractors or employees,
Tenant shall have the option to (a) terminate this Lease by written notice to Landlord, or (b)
require Landlord immediately to remove the Hazardous Substances. Landlord covenants to
perform any such removal work with a minimum of interference with Tenant's use of the
Premises. In the event that Tenant's use of the Premises shall be disturbed due to the presence of
a Hazardous Substance or any cleanup, repair or similar action required by any governmental
agency or third party as a result of storage, treatment or Release of Hazardous Substances by
Landlord, its agents, contractors, current or prior tenants, or predecessors in interest to the
Premises at any time, Landlord shall in addition to any other remedies available at law or equity
to Tenant on account of any breach by Landlord of its obligations under this Lease abate the
Rent for the Premises during the period that Tenant's use of the Premises is disturbed.
H. Landlord Indemnity. Unless the Hazardous Substances are present solely as a result
of the acts of Tenant, its contractors or employees, Landlord hereby agrees and does indemnify
and holds Tenant, its directors, officers, employees and agents harmless from and against (a) any
and all liability, obligations, losses, damages, penalties, claims, demands, settlements,
Judgments, environmental response, remedial or inspection costs, fines, civil penalties and
actions, suits, costs, taxes, charges, expenses and disbursements, including, without limitation,
reasonable legal fees and expenses of whatever kind or nature (hereinafter called "Claims"),
imposed on, incurred by, or reserved against Tenant in any way relating to or arising out of the
existence or presence of any Hazardous Substance or underground storage tank(s) on, under or
from the Premises, and (b) any and all Claims in any way related to or arising out of the removal,
treatment, storage, disposal, disposition, mitigation, cleanup or remedying of the Hazardous
Substances on the Premises. This indemnification shall include, without limitation, Claims
arising out of any violations of applicable Environmental Laws, regardless of any actual or
alleged fault, negligence, willful misconduct, gross negligence, breach of warranty or strict
liability on the part of Landlord. Without limitation, this indemnification shall also include any
and all Claims incurred due to any investigation or remediation of the Premises mandated by
Environmental Laws or any governmental agency. The foregoing indemnity shall survive the
expiration or termination of this Lease and/or any transfer of all or any portion of the Premises,
and/or any transfer of all or any portion of any interest in this Lease and shall be governed by the
laws of the state in which the Premises are located. This indemnity is in addition to the other
indemnities by Landlord contained in this Lease.
I. Tenant Indemnity. In addition to Tenant's obligations set forth in Section 18 above,
Tenant hereby indemnifies and holds Landlord, its directors, officers, employees and agents
harmless from and against (i) any and all liability, obligations, losses, damages, penalties, claims,
demands, settlements, judgments, environmental response, remedial or inspection costs, fines,
civil penalties and actions, suits, costs, taxes, charges, expenses and disbursements, including,
without limitation, reasonable legal fees and expenses of any kind or nature (hereinafter called
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"Claims"), imposed on, incurred by, or reserved against Landlord in any way relating to or
arising out of the existence or presence of any Hazardous Substance or underground storage
tank(s) on, under or from the Premises solely as a result of the acts of Tenant, its contractors or
employees; and (ii) any and all Claims in any way related to or arising out of the removal,
treatment, storage, disposal, disposition, mitigation, cleanup or remedying of the Hazardous
Substances on the Premises solely as a result of the acts of Tenant, its contractors or employees;
provided, however, that to the extent any Claim under (i) and (ii) pertains to a condition existing
or threatened as of the Rent Commencement Date, Tenant's indemnification obligation under
this subsection (I) shall apply solely to the extent such Claim relates to or arises out of the
negligence or intentional misconduct of Tenant, its contractors or employees. This
indemnification shall include, without limitation, Claims arising out of any violations of
applicable Environmental Laws, regardless of any actual or alleged fault, negligence, willful
misconduct, gross negligence, breach of warranty or strict liability on the part of Tenant, except
as otherwise set forth in this subsection (I). Without limitation, this indemnification shall also
include any and all Claims incurred due to any investigation or remediation of the Premises
mandated by Environmental Laws or any governmental agency solely as a result of the acts of
Tenant, its contractors or employees. The foregoing indemnity shall survive the expiration or
termination of this Lease and/or any transfer of all or any portion of the Premises, and/or any
transfer of all or any portion of any interest in this Lease and shall be governed by the laws of the
state in which the Premises are located.
J. Access License. In consideration for Tenant's performance of its obligations under
this Lease (including, without limitation, Tenant's performance of its obligations under this
Section 22), Landlord hereby grants to Tenant a non-exclusive license ("Access License") to
access the Premises for a period of ten (10) years from and after the date of the expiration or
termination of this Lease for the sole purpose of investigating, remediating, cleaning up or
otherwise responding to any environmental condition existing on the Premises to the extent that
Tenant is so required by any governmental agency or the terms of this Lease to investigate,
remediate, clean up or otherwise respond to such environmental condition on the Premises. In
the exercise of its rights pursuant to this Access Easement, Tenant shall use commercially
reasonable efforts to minimize any interference with Landlord's or the then current occupant's
use of the Premises. This Section 22.J shall survive the termination of this Lease or expiration
of the Term, and Tenant's exercise of this Access License shall be subject to Tenant's indemnity
obligations under Sections 18 and 22.I, as well as the Tenant's insurance obligations under
Section 10 of this Lease.
23. LANDLORD'S WARRANTIES.
A. In addition to Landlord's representations and warranties set forth elsewhere in this
Lease, and not in any limitation thereof, Landlord hereby represents and warrants to Tenant that:
i. This Lease constitutes the legal, valid and binding obligation of Landlord,
enforceable against Landlord in accordance with its terms.
ii. There are no outstanding written or oral leases, purchase or sale agreements or other
agreements or restrictions encumbering, or in any way affecting the Property or Premises, and no
person or entity has any right with respect to the Property or Premises, whether by option to
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purchase, contract or otherwise, that would prevent or interfere with any of Tenant's rights under
this Lease.
iii. The execution of this Lease will not constitute a violation of nor be in conflict with
nor constitute a default under any term or provision of any agreement or instrument to which
Landlord is a party or by which the Property or Premises or any part thereof is bound.
iv. Landlord has no knowledge of any pending or threatened proceedings in eminent
domain, or for a sale in lieu thereof, affecting the Property or Premises or any portion thereof, or
of any plans for a possible widening of the streets abutting the Property or Premises.
v. To the best of Landlord's knowledge, neither the Property or Premises nor any part
thereof violates any pollution, health, safety, fire, environmental, sewage, zoning, building or
other federal, state or local law, code, ordinance or regulation. Without limiting the foregoing,
no toxic, hazardous or radioactive materials or products of any kind have been disposed of on the
Property or Premises and no toxic, hazardous or radioactive materials or products of any kind
have been accumulated or burned on the Property or Premises. No part of the Property or
Premises or any improvements thereon contain asbestos or asbestos -containing materials
(including, without limitation, acoustical plaster, fireproofing, pipe and boiler insulation or
similar materials). There are no underground storage tanks located on or under the Property or
Premises.
vi. Landlord has not received any notice of proposed curtailment of utility services to
the Property or Premises.
B. The provisions of this Section will survive the termination or expiration of this Lease.
All of Landlord's representations and warranties contained in this Lease shall be true as of the
date of final execution of this Lease and shall be subject to any state of facts arising during the
Term of this Lease without the direct or indirect, active or passive, involvement of Landlord.
24. MEMORANDUM OF LEASE. The parties agree not to record this Lease. From the
date of execution of this Lease, each party hereto agrees, at the request of the other, to execute,
from time to time, a memorandum of lease in recordable form. Each memorandum of lease shall
reflect the then current parties and terms of the Lease. The party requesting the memorandum of
lease shall be responsible for the cost of recording the memorandum of lease.
25. BROKERAGE FEES. Landlord and Tenant each shall pay in full any commission
amounts due, if any, in connection with this Lease, pursuant to any applicable commission
and/or listing agreement to which either Landlord or Tenant is a party. Landlord and Tenant
agree to indemnify, defend and hold harmless the other party from any claim by for a
commission or fee in connection with this Lease based on any agreement existing, or alleged to
be existing, between such claimant and Landlord or Tenant. Landlord and Tenant represent and
warrant to each other that they have disclosed to each other if they have any agreements or
obligations to any broker(s) or finder(s) with regard to the subject matter of this Lease. Landlord
and Tenant agree to indemnify and hold each other harmless from any claim for a brokerage
commission or finder's fee as a result of allegedly effectuating this Lease asserted by any other
person or entity claiming to have been engaged by the indemnifying party.
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26. IMPROVEMENTS. Tenant may, from time to time during the Term, erect, maintain,
improve, repair and replace on the Premises such buildings, structures and other improvements
as in Tenant's opinion may be necessary or desirable for the uses and purposes hereinbefore
stated including reasonable signage. The improvements constructed on the Premises by Tenant
are referred to herein as the "Improvements". All construction shall in all respects be in
accordance with good construction practice, and good materials, workmanship and design shall
be used, and the Improvements shall be constructed in accordance with Applicable Law.
If any mechanics' liens are filed against the fee of Premises, or against Tenant's
leasehold interest therein, by reason of work, labor, services or materials, provided or supplied or
claimed to have been provided or supplied to Tenant, or anyone holding Premises, or any part
thereof, through or under Tenant, Tenant shall promptly and within a reasonable time following
Landlord's written demand, either cause the same to be: (a) discharged of record by payment,
statutory lien release bond, court order or otherwise as provided by law; or (b) contested,
provided that Tenant shall either provide a title indemnity over any such claim or post a statutory
lien release bond in the an amount of the lien or such other amount specified by statute which
will release the Premises and any improvements from the claim of lien, and further provided that
any judgment in favor of the lien holder arising out of such contest is paid and satisfied before
execution thereof. Tenant shall not permit any sale, foreclosure or forfeiture of the Premises by
reason of nonpayment of a lien caused by Tenant or anyone claiming by or through Tenant, and
on final determination of the lien, Tenant will immediately pay any judgment rendered with all
proper costs and charges, and shall have the lien released or judgment satisfied at Tenant's
expense.
27. ESTOPPEL CERTIFICATE. Either party agrees within thirty (30) days after written
request, to be given no more frequently than once per calendar year, by the other party delivered
pursuant to Section 29.E below, to execute and deliver to the requesting party a statement,
certifying to its actual knowledge (a) whether or not this Lease is in full force and effect, (b) the
date of commencement and termination of the Lease term, (c) the date to which rental and all
other charges hereunder are paid currently without any offset or defense thereto (or stating any
such offset or defense), (d) the amount of rental and all other charges hereunder, if any, paid in
advance, (e) whether or not this Lease has been modified and, if so, identifying the
modifications, (f) that there are no uncured defaults by the other party or describing the claimed
defaults and (g) such other matters as the requesting party shall reasonably request. Nothing in
any such estoppel statement shall be deemed to modify or amend this Lease.
28. PARTIES. Except as herein otherwise expressly provided, the covenants, conditions
and agreements contained in this Lease shall bind and inure to the benefit of Landlord and
Tenant and their respective heirs, successors administrators and assigns.
29. GENERAL PROVISIONS.
A. Entire Aereement, etc. This Lease contains the entire agreement between the parties
relating to the subject matter. This Lease supersedes all prior contracts, proposals,
representations and commitments, oral, written or otherwise. Except as set forth in Section 1.11,
this Lease may only be amended by an instrument signed by the authorized representatives of
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both parties. If any provision of this Lease shall be declared invalid or unenforceable, the
remainder of this Lease shall continue in full force and effect.
B. Advisors. Landlord and Tenant have each had adequate opportunity to consult with
independent advisors of their choice such as attorneys, accountants, tax advisors, real estate
professionals and other consultants as each deems appropriate.
C. Successors in Interest. The covenants, terms, conditions, provisions and
undertakings in this Lease or any renewals thereof shall extend to and be binding upon the heirs,
executors, administrators, successors and assigns of the respective parties hereto, as if they were
in every case named and expressed, and should be construed as covenants running with the land;
wherever reference is made to either of the parties hereto, it shall be held to include and apply
also to the heirs, executors, administrators, successors and assigns of such party, as if in each and
every case so expressed.
D. Waiver. Failure of either party to insist upon strict performance of any covenant or
condition or enforce any of its rights under this Lease in any one or more instances shall not be
construed as a waiver in any subsequent instance of any such covenant, condition or rights, but
the same shall be and remain in full force and effect.
E. Notices. Any notice provided for herein shall be deemed to have been served only
when in writing and when delivered, or the date on which delivery is refused, by registered or
certified mail, or when delivered by a nationally recognized overnight mail delivery service
addressed to the party for whom it is intended. Any notice to Landlord may be sent to
Landlord's address shown below or to the party to whom rent was last paid. Any notice to
Tenant may be sent to the address shown below, or to such other party or at such other place as
Tenant may from time to time in writing designate. Any such notice to Tenant delivered to any
other department, office, or city shall be of no force and effect.
If to Landlord: If to Tenant:
F. Captions. The captions appearing at the beginning of each of the Articles of this
Lease are for reference only and are not be considered part of this Lease.
G. Governine Law, This Lease shall be governed by the law of the state in which the
Premises are located.
H. Legal Fees. In any action or proceeding hereunder, the prevailing party shall be
entitled to recover from the other the prevailing party's reasonable costs and expenses in such
action or proceeding, including, without limitation, reasonable attorneys' fees. In the event either
party
nis sued by a third party as a result of a violation of a covenant or warranty herein contained
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by the other party hereto, then the party who has violated the covenant or warranty shall be
responsible for the reasonable costs and expenses in such action or proceeding against the non -
violating party, including, without limitation, reasonable attorneys' fees.
I. Costs. In connection with this Lease, Tenant shall pay all reasonable and customary
costs, including but not limited to (i) the premium cost of an ALTA extended coverage Title
Insurance Policy; (ii) recording fees for the Memorandum of Lease; (iii) any reasonable courier,
wire, and processing fees.
J. Waiver of Security Interest. LANDLORD DOES NOT HAVE ANY INTEREST,
INCLUDING WITHOUT LIMITATION, A SECURITY INTEREST, IN THE
IMPROVEMENTS, TENANT'S PERSONAL PROPERTY OR TRADE FIXTURES.
NEITHER THE IMPROVEMENTS NOR ANY OF TENANT'S PERSONAL PROPERTY OR
TRADE FIXTURES WILL BE DEEMED FIXTURES BY LANDLORD, AND LANDLORD
WAIVES ANY RIGHT OF DISTRAINT OR EXECUTION AGAINST TENANT'S
PERSONAL PROPERTY OR TRADE FIXTURES OR ANY CLAIM TO IT WHICH
LANDLORD MAY HAVE BY COMMON LAW, STATUTE OR OTHERWISE.
K. Counteraarts. This Agreement may be executed in two or more counterparts, each
of which together shall be deemed an original, but all of which together shall constitute one and
the same instrument. In the event that any signature is delivered by facsimile transmission or by
e-mail delivery of a ".pdf' format data file, such signature shall create a valid and binding
obligation of the party executing with the same force and effect as if such facsimile were an
original thereof.
TO INDICATE THEIR AGREEMENT, the parties have executed this Lease by their
respective signatures below.
LANDLORD:
By: Lokl��-
DONNA R. FAULKNER
TENANT:
SUNLIGHT PARTNERS, LLC
a Nevada I' 'ted liability company
By:
J ON ELLSWORTH
PRESIDENT
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EXHIBIT A
to Ground Lease Agreement dated �k' h , 2013
among
Donna R. Faulkner, as "Landlord"
and
Sunlight Partners, LLC, a Nevada limited liability company as "Tenant"
Description of the Premises
Real property in the County of Nash, State of North Carolina, described as follows:
All or a portion of Assessor's Tax Parcel Number 022671 to be further defined upon receipt of a
valid Title Report.
AYIV
A
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