SWA000071_Lease Agreement_20200727

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Type: CONSOLIDATED REAL PROPERTY
Recorded: 6/25/2020 9:08:27 AM
Fee Amt: $26.00 Page 1 of 11
Nash County North Carolina
Anne J. Melvin Register of Deeds
BK 3057 PG 829 - 839
Return to: Blanco Tackabery & Matamoros, P.A.
110 South Stratford Road, Suite 500
Winston-Salem, NC 27104
Attn: Andrew S. Felts
STATE OF NORTH CAROLINA AMENDED AND RESTATED
MEMORANDUM is
COUNTY OF NASH•O:-! LEASE AGREEMENT
(Cross Reference.- Book 2835, Page 29)
THIS AMENDED AND RESTATED MEMORANDUM OF GROUND LEASE
AGREEMENT ("Memorandum") is entered into this 24th day of June ,
2020, by and between DONNA R. FAULKNER, unmarried ("Landlord'), and CASK SOLAR,
LLC, a North Carolina limited liability company ("Tenant;" Landlord and Tenant are sometimes
referred to individually as a "Par " and, collectively, as the "Parties").
0�
A. Landlord and Sunlight Partners, LLC, a Nevada limited liability company ("Original
Tenan(") entered into that certain Ground Lease Agreement dated March 6, 2013, as
amended by that certain First Amendment to Ground Lease Agreement, by and between
Landlord and Original Tenant, dated March 31, 2015, as assigned from Original Tenant to
Tenant pursuant to that certain Assignment and Assumption of Ground Lease Agreement,
dated March 1, 2016, as amended by that certain Second Amendment to Ground Lease
Agreement, by and between Landlord and Tenant, dated March 6, 2016, as amended by that
certain Third Amendment to Ground Lease Agreement, by and between Landlord and
Tenant, dated March 6, 2017, as amended by that certain Fourth Amendment to Ground
-LeaseAgreement, by and betweem tandiord and tenant, 9 ,
as aTIRMUCU
by that certain Fifth Amendment to Ground Lease Agreement, by and between Landlord and
Tenant, dated March 7, 2019, as amended by that Sixth Amendment to Ground Lease
Agreement, by and between Landlord and Tenant, dated March 6, 2019, as amended by that
certain Seventh Amendment to Ground Lease Agreement, by and between Landlord and
Tenant, dated December 16, 2019, and as amended by that certain Eighth Amendment to
Ground Lease Agreement, by and between Landlord and Tenant, dated
June 24 , 2020 (collectively, the "Lease"), for certain real property located in
Nash County, North Carolina, as more particularly described below.
submitted electronically by "Blanco Tackabery & Matamoros, P.A."
in compliance with North Carolina statutes governing recordable documents
and the terms of the submitter agreement with the Nash county Register of Deeds.
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B. Landlord and Tenant provided record notice of the Lease pursuant to that certain
Memorandum of Lease recorded on July 21, 2016, in Book 2835, Page 29, Nash County
Registry (the "Original MOL").
C. Landlord and Tenant desire to amend and restate the Original MOL as set forth below.
NOW, THEREFORE, for and in consideration the promises, covenants and agreements
of the Parties and for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties hereby amend and restate the Original MOL in its entirety as
follows:
1. Capitalized terms used herein, and not otherwise defined, shall have the same
meanings assigned to them in the Lease. All of the terms and conditions of the Lease are
incorporated herein by this reference.
2. The Initial Term of the Lease commences on the Rent Commencement Date and
shall continue for fifteen (15) years following the Placed in Service Date. Tenant has the right to
extend the Lease for five (5) successive Renewal Terms of five (5) years each as set forth in the
Lease.
3. Pursuant to the Lease, Landlord leases to Tenant a portion of that certain real
property in Nash County, North Carolina, said leased premises being legally described as set
forth on Exhibit A, attached hereto and incorporated herein, together with all personal property,
improvements, and fixtures located thereupon, together with all other appurtenances, tenements,
hereditaments, rights, and easements pertaining to the Premises (collectively referred to as the
"Premises"), to be occupied and used upon the terms and conditions set forth in the Lease.
4. The solar photovoltaic power generating facility, all related equipment and all
other improvements installed, owned, and operated by Tenant, its affiliates or equipment lessors,
and located from time to time upon the Premises is referred to herein as the "Tenant's Property_"
or the "Facility." Tenant's Property shall not be deemed to be permanent fixtures. Tenant's
Property shall be deemed to be Tenant's personal property and Landlord shall have no right, title
or interest in Tenant's Property. Landlord has waived any and all rights it may have to place a
lien on Tenant's Property.
5. Landlord has granted to Tenant the right of first refusal to purchase the Premises
and eondifio
9
incorporated herein by this reference in their entirety.
6. Landlord has granted to Tenant the right of first refusal to Lease the Premises
upon the terms and conditions contained in the Lease, the terms and conditions of which are
incorporated herein by this reference in their entirety.
7. Pursuant to the Lease, Tenant possesses exclusivity to conduct and engage in the
solar power generation business, and/or a use similar to Tenant's Intended Use, within a radius
of one (1) mile of the Premises.
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8. Landlord has granted to Tenant certain easements and rights during the Term of
the Lease, which include:
a. 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;
b. 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;
c. a non-exclusive license to access the Premises for a period of ten (10)
years from and after the date of expiration or termination of the 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;
9. The Landlord has also granted Tenant additional easement rights, which are stated
in the Lease as follows:
"Without limiting the foregoing, Landlord hereby grants to Tenant a non-
exclusive easement (the "Easement") on, over, under, and across a fifty
foot (50') wide portion of the Property, as generally depicted on Exhibit B
attached hereto and made a part hereof (the "Easement Area") for (a)
vehicular and pedestrian access, ingress and egress, which vehicular
access shall include trucks and other heavy construction equipment,
including, without limitation, the right to install, improve, construct,
reconstruct, replace, remove, maintain, operate, and use from time to time
in the Easement Area the following: streets, roads, pavement, gravel, and
other access improvements, fixtures and facilities for use in connection
with said vehicular and pedestrian access, ingress and egress rights
(collectively, the "Access Improvements"), and (b) the installation,
improvement, construction, reconstruction, replacement, removal,
maintenance, operation, and use from time to time in the Easement Area
of the following: a single system of underground and/or above -ground
wires, Cui equipment for in ansmission i electricat vmgy
and/or for communication purposes, and all necessary and proper poles,
structures, foundations, footings, guy wires, anchors, cross arms and other
appliances, fixtures and facilities for use in connection with said wires,
cables and equipment (collectively, the "Utility Improvements", and
together with the Access Improvements, collectively referred to as the
"Improvements" as defined in Section 26). Tenant and its successors or
assigns shall be responsible for the maintenance, repair, and replacement,
of the Easement Area and keeping the Easement Area in usable condition.
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Provided, however, Landlord shall not be responsible for repairing any
damage that is caused by the willful or negligent misconduct of Landlord.
Under no circumstances shall Landlord build on or otherwise obstruct the
Easement Area. The Easement shall commence on the date hereof and
continue for so long as Tenant, its successors or assigns, continue to utilize
the Easement in connection with the operation of a solar power generation
business on the Premises or otherwise. This Easement shall expire
automatically in connection with the termination of the Lease. The
foregoing rights, privileges, and Easement are intended to be, and shall be,
construed as appurtenant to, and for the benefit of the Property and the
Premises, and shall run with the land for each property.
Further, Landlord acknowledges and agrees that access to sunlight
("Sunlight") is essential to the value to Tenant of the rights granted in this
``Lease and is a material inducement to Tenant in entering into this Lease.
Accordingly, Landlord hereby grants to Tenant an exclusive sunlight
easement to convert the all of the solar resources above the Property, the
Premises and any adjacent land owned or controlled by Landlord, to
electricity, together with a non-exclusive access easement (collectively,
the "Sunlight Easement") to enter upon the Property, the Easements, and
any adjacent property owned or controlled by Landlord in order to trim or
otherwise remove any foliage or any other improvement that impairs the
ability of Sunlight to reach the Facility from time to time located on the
Premises. Landlord shall not engage in or permit others to engage in
activities on the Property, Premises, Easements, or any adjacent property
owned or controlled by Landlord that could adversely affect Sunlight
reaching the Facility, including but not limited to allowing the growth of
foliage or the construction of any structures. If Landlord becomes aware of
any potential activity on any Property, Premises, Easements, or any
adjacent property that could diminish the Sunlight at the Premises,
Landlord shall use its best efforts both to timely advise Tenant of such
information and, with respect to any adjacent property owned or
controlled by Landlord, to reasonably cooperate with Tenant in taking
measures to preserve the levels of Sunlight at the Premises, which exist as
of the Effective Date except as otherwise provided above. Tenant shall be
entitled to seek all remedies available at law and in equity, including but
not limited to, specific performance, to compel compliance with this
intended to be, and shall be, construed as appurtenant to, and for the
benefit of the Property, the Premises, and any adjacent property owned or
controlled by Landlord, and shall run with the land for each property.
This Sunlight Easement and the foregoing rights granted under this
Section shall expire automatically in connection with the termination of
the Lease."
10. The Lease also provides that when giving notice to Tenant of any default by
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Tenant under the Lease, Landlord shall also provide a copy of such notice to Celtic Bank
Corporation, Firstar Development, LLC, and USB RETC Fund 2020-14, LLC, together with
their respective successors and assigns (each a Leasehold Mortgagee as defined in Section 13 of
the Lease and each shall have all of the rights afforded to a Leasehold Mortgagee as set forth in
Section 13 of the Lease (such rights collectively being referred to as the "Third Party
Protections")). The Leasehold Mortgagees are third party beneficiaries of the Third Party
Protections and are relying on the Third Party Protections to protect their respective interests in
Tenant, in the Facility, in Tenant's leasehold and/or in the use, operation and/or leasing of the
Facility and all other of the Leasehold Mortgagees' rights related thereto. Subject to Section 13
of the Lease, each of the Leasehold Mortgagees are entitled to the rights and benefits of the Third
Party Protections and may enforce such Third Party Protections as if it were a party to the Lease.
The notice described above shall not be effective against a Leasehold Mortgagee unless and until
received by such Leasehold Mortgagee. Notice to each of the Leasehold Mortgagees identified
above shall be delivered to:
Firstar Development, LLC
c/o U.S. Bancorp Community
Development Corporation
1307 Washington Avenue, Suite 300
St. Louis, MO 63103
Attention: Director of ITC Asset
Management, Project No. 26834
Email: with copies to:
usbcdc.renewabIgne bank.coin
USB RETC Fund 2020-14, LLC
c/o U.S. Bancorp Community
Development Corporation
1307 Washington Avenue, Suite 300
St. Louis, MO 63103
Attention: Director of ITC Asset
Management, Project No. 26834
Email:
tJSBCDCSvndicatioiiL,,,--,iusbank.com
Nixon Peabody LLP
799 Ninth Street NW, Suite 500
Washington, DC 20001
Attention: Michael J. Goldman
Email:ffljgqjdmqq�r nixon cabcxlv.c<>m
Celtic Bank Corporation with copies to:
ZOO 3. 3LULe 3L., 3UIW.3VV
Salt Lake City, Utah 84111 Brodnan & Budd, LLC
Attention: Justin Fuller 999 Peachtree Street NE, Suite 1105
Atlanta, GA 30309
Attn: Matt Brodnan
or such other address as such Leasehold Mortgagee may hereafter designate in writing to the
other Leasehold Mortgagee(s) and Landlord and Tenant. All notices by Landlord and by Tenant
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shall also be delivered to each of the Leasehold Mortgagees. All notices, elections, demands,
requests, payments and other communications sent to a Leasehold Mortgagee shall be in writing,
signed by the party making the notice and shall be sent by (i) certified or registered United States
mail, pre -postage paid or (ii) national overnight courier service that provides tracking and receipt
acknowledgment.
11. Pursuant to the terms of the Lease, Tenant is permitted to mortgage its interest in
the Lease and/or collaterally assign Tenant's interest in the Lease to a finance party without the
Landlord's prior consent.
12. Nothing contained herein shall modify the Lease, and in the event of a conflict
between the provisions of the Lease and the provisions of this Memorandum, the provisions of
the Lease shall control.
[SEPARATE SIGNATURE PAGES ATTACHED]
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IN WITNESS WHEREOF, the undersigned have executed this Memorandum by
authority duly given and effective as of it first written a{ove.
LANDLORI"ID:
By:
j
DONNA R. FAULKNER
STATE OF L-ca(z) � , A 6111-
COUNTY OF _jjLS}j_
I certify that the following persons personally appeared before me this day,
acknowledging to me that he/she signed the foregoing instrument: Donna R. Faulkner.
qNlj�- =202- �q
[AFFIX NOTARIAL STAMP OR SEAL]
MACON REID
NOTARY PUBLIC
Nash County, North Carolina
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IN WITNESS WHEREOF, the undersigned has executed this Memorandum by authority
duly given and effective as of the date first written above.
TENANT:
CASK SOLAR, LLC,
a North Carolina limited liability company
By: Signature USB Manager 9, LLC,
a North Carolina limited liability company, its Manager
By: USB Signature Fund 1 Sponsor, LLC,
a North Carolina limited liability company, its Manager
By: PGR Signature Fund 1, LLC,
a Delaware limited liability company, its Manager
By: PGR Signature Fund 1 Manager, LLC,
a North Carolina limited liability company, its Managing
Member
By: Pine Gate Renewables, LLC,
a N Caro 'na limited liability company, its Manager
By:
Name: Ray on Shem
Title: Ch of F' ancial Officer
STATE OF t
COUNTY OF
I certify that the following person personally appeared before me this day,
acknowledging to me that he signed the foregoing instrument: Raymond Shem, the Chief
Financial Officer of Pine Gate Renewables, LLC, a North Carolina limited liability company, the
Manager of PGR Signature Fund 1 Manager, LLC, a North Carolina limited liability company,
the Managing Member of PGR Signature Fund 1, LLC, a Delaware limited liability company,
the Manager of USB Signature Fund 1 Sponsor, LLC, a North Carolina limited liability
company, the Manager of Signature USB Manager 9, LLC, a North Carolina limited liability
company, the Manager of CASH SOLAR, LLC, a North Carolina limited liability company.
WITNESS my hand and official stamp or seal, this Vday of uy1 52020.
[AFFIX NOTARIAL STAMP OR SEAL] ®-
Notary Public
Printed Name: Mok c,5kvjevt�
My Commission Expires:
:tee SAY COMMISSION# GG019367 �
EXPIRES August 08, 2020
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Being located in Red Oak Township, Nash County, North Carolina and being part of the
property of Donna R. Faulkner as described in Deed Book 958, Page 65 and in Land Division
Book 193, Page 488 and in Plat Book 2, Page 86; and being more particularly described as
follows:
Beginning, for reference, at an existing railroad spike in the center of Loop Road (SR 1438) at
Lizzie Faulkner's southeast comer having North Carolina State Plane Coordinates N=831009.67'
E=2318363.07' (NAD83-2011) and being located S 62'20'18" W 6,353.17' ground distance
(6352.92' grid distance, CGF=0.9999610) from NCGS "Red Oak" having North Carolina State
Plane Coordinates N=833959.02' E=2323989.88' (NAD83-201 1);
Thence N 171 V33" E 465.53' along Lizzie Faulkner's east line to an existing iron pipe;
Thence N 3 5'40'18 " E 1094.80' along Lizzie Faulkner's east line to an existing pinch top pipe at
Donna Faulkner's southeast comer;
Thence N 68'22'13 " W 275.3 9' along Lizzie Faulkner's north line to an existing iron pipe;
Thence N 89'32'17" W 166.10' across Donna Faulkner to the TRUE POINT AND PLACE OF
BEGINNING, the southeast comer of the lease site;
Thence N 90'00'00" W 944.66'to an iron pipe set;
Thence N 16'12'15" W 648.33'to an iron pipe set;
Thence N 16'3 1'25 " W 212.53'to an iron pipe set;
Thence N 009 3'51 " E 411.71to an iron pipe set;
Thence N 89'5953" E 245.77'to an iron pipe set;
Thence S 00'00'00" E 199.02'to an iron pipe set;
Thence N 90'00'00" W 337.37'to an iron pipe set;
Thence S 00'00'00" W 206.94'to an iron pipe set;
Thence N 90'00'00" E 67.45'to an iron pipe set;
Thence S 00'00'00" W 341.42'to an iron pipe set;
Thence S 48'45'50" E 89.69'to an iron pipe set;
Thence S 66' 15'5 1 " E 2 5 2.44' to an iron pipe set;
Thence N 90'00'00" W 333.1 V to an iron pipe set;
Thence N 01'26'34" E 293.5 I'to an iron pipe set;
Thence N 42'57'56" W 245.33 to an iron pipe set;
Thence N 15'16'09" W 233.66'to an iron pipe set;
Thence N 41'56'12" W 446.54'to an iron pipe set;
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Thence N 90'00'00" W 256.40'to an iron pipe set;
Thence N 00'00'00" W 630.74'to an iron pipe set;
Thence N 90'00'00" E 451.18'to an iron pipe set;
Thence S 00'00'00" W 206.94'to an iron pipe set;
Thence N 90'00'00" E 7 3.90' to an iron pipe set;
Thence S 00'00'00" E 5 72,73' to an iron pipe set;
Thence N 90'00'00" E 71.15'to an iron pipe set;
Thence N 29'56'18" E 28.60'to an iron pipe set;
Thence S 89'40'32" E 183.81to an iron pipe set;
Thence N 00'00'00" W 41.94'to an iron pipe set;
Thence N 90'00'00" W 376.56'to an iron pipe set;
Thence S 00'00'0 1 " W 227.06' to an iron pipe set;
Thence S 89'59'56" W 374.24'to an iron pipe set;
Thence S 00'00'00" E 212.64'to an iron pipe set;
Thence N 90'00'00" E 27.80'to an iron pipe set;
Thence S 01 '3 5'21 " W 5 21.66' to an iron pipe set;
Thence S 26'36'45" W 172.14'to an iron pipe set;
Thence S 35'07'32" W 94.75'to the TRUE POINT AND PLACE OF BEGINNING, containing
31.30 acres, more or less.
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Being located in Red Oak Township, Nash County, North Carolina, and being bounded on the south by
Loop Road (SR 1438); following the west line of Lizzie Faulkner, Et. Al. as described in Deed Book
903, Page 540 and Deed Book 958, Page 65 and Plat Book 2, Page 86; and crossing Donna Faulkner as
described in Deed Book 1021, Page 129 and Deed Book 2199, Page 16 and Deed Book 958, Page 65
and Plat Book 2, Page 86 and Plat Book 13, Page 5 and Land Division Book 193, Page 488; and being
more particularly described as follows:
BEGINNING at an existing railroad spike in the center of Loop Road (SR 1438) at Lizzie Faulkner's
southeast comer having North Carolina State Plane Coordinates N=831009.67' E=2318363.07'
(NAD83-201 1) and being located S 62'20'18" W 6,353.17' ground distance (6352.92' grid distance,
CGF=0.9999610) from NCGS "Red Oak" having North Carolina State Plane Coordinates
N=833959.02' E=2323989,88' (NAD83-201 1);
Thence N 171 F33" E 465.53'along Lizzie Faulkner's east line to an existing iron pipe;
Thence N 35'40'18" E 1094.80' along Lizzie Faulkner's east line to an existing iron pinch top pipe at
Donna Faulkner's southeast comer as described in Deed Book 958, Page 65;
Thence N 35'46'59" E 14.33'along Donna Faulkner's line to a point;
Thence N 54'00'12" W 197.08'across Donna Faulkner to a point;
Thence N 873 F33 " W 108.87' across Donna Faulkner to a point;
Thence N 81 '2 V45" W 129.44' across Donna Faulkner to a point in the east line of the lease site;
Thence N 35'07'32" E 35.16' along the east line of the lease site to a point;
Thence N 26'36'45" E 19.48' along the east line of the lease site to a point;
Thence S 81 '2 1'45" E 105.05' across Donna Faulkner to a point;
Thence S 873 V33" E 121.24'across Donna Faulkner to a point;
Thence S 54'00'12" E 261,83' across Donna Faulkner to a point;
Thence S 3 5'40'18 " W 1150.7 V across Donna Faulkner to a point;
Thence S 171 V33" W 457.39'across Donna Faulkner to a point in the center of Loop Road;
400 �111
a 50 wide access easement. I
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