CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
Exhibit 10.4.31
AMENDMENT TO LEASE
(Resource Sublease)
THIS AMENDMENT TO LEASE ("Lease Amendment") is made as of the 9th
day of July, 1990, by KAPOHO LAND PARTNERSHIP, a Hawaii limited partnership
whose mailing address is X.X. Xxx 000, Xxxx, Xxxxxx 00000 ("Lessor"), and PUNA
GEOTHERMAL VENTURE, a Hawaii general partnership, whose business address is 000
Xxxxxx Xxxxxx, Xxxxx 0000-X, Xxxx0 Xxxxxx 00000 ("Lessee"), for the benefit of
CREDIT SUISSE, a bank organized and existing under the laws of Switzerland,
acting through its New York Branch ("CS"), whose business address is 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 10005, ATTN: Project Finance (CS as Agent
and Collateral Agent for the account of CS and for the account of such other
lenders as may participate in the funding and other risks associated with the
Loan, as defined below, are referred to herein as "Lenders") and Lenders.
WITNESSETH:
WHEREAS, Kapoho Land and Development Company, Limited, a Hawaii
corporation ("Master Lessor"), is the owner in fee simple of that certain real
property consisting of approximately 815 acres located in the County, on the
Island and in the State of Hawaii, more particularly described in Exhibit "A"
("Land") attached hereto and incorporated by this reference; and
WHEREAS, pursuant to that certain Quitclaim Deed and Assignment of
Occupier's Rights, dated February 18, 1981, recorded in the Bureau of
Conveyances of the State of Hawaii ("Bureau") in Liber l5455, Page 735
("Quitclaim"), Master Lessor, as "grantor" therein, quitclaimed to Lessor, as
"grantee" therein, all of the Master Lessor's right, title and interest in and
to the geothermal and mineral rights in and to the Land and assigned to Lessor
all of Master Lessor's occupier's rights; and
WHEREAS, pursuant to that certain unrecorded Surface Lease, dated
February 18, 1981, a short form of which was recorded in the Bureau in Liber
15455, Page 738 ("Master Lease"), Master Lessor, as lessor therein, has leased
to Lessor, as lessee therein, the surface rights in and to the Land; and
WHEREAS, pursuant to that certain unrecorded Geothermal Resources
Mining Lease No. R-2, dated February 20, 1981, a short form of which has been or
will be recorded in the Bureau on a substantially even date with the recording
of the short form memorandum of this Lease Amendment ("State Lease"), the State
of Hawaii, as lessor therein, leased to Lessor, as lessee therein (and as the
assignee of Master Lessor's occupier's rights in the Land pursuant to the
Quitclaim), the right to develop geothermal resources and geothermal by-products
in and under the Land; and
WHEREAS, pursuant to that certain unrecorded Lease and Agreement,
dated March 1, 1981, a short form of which was recorded in the Bureau in Liber
16267, Page 466, ("Resource Sublease"), Lessor, as lessor therein, leased to
Xxxxxxxxxx Corporation, a Hawaii corporation, and Thermal Power Company, a
California corporation, together as lessees therein
("Xxxxxxxxxx and Thermal"), (i) the right, inter alia, to develop "Leased
Substances" (as defined in the Resource Sublease) in and under the Land, and
(ii) Lessor's interest in the State Lease; and
WHEREAS, by that certain Consent to Sublease, dated February 26,
1981, which has been or will be recorded in the Bureau on a substantially even
date with the recording of the short form memorandum of this Lease Amendment,
the State of Hawaii consented to such sublease of the State Lease from Lessor to
Xxxxxxxxxx and Thermal pursuant to the Resource Sublease; and
WHEREAS, pursuant to that certain Assignment of Lease and
Agreement, made effective May 3, 1982, recorded in the Bureau in Liber 17122,
Page 70 ("Assignment of Resource Sublease"), Xxxxxxxxxx and Thermal assigned all
of their right, title and interest in the Resource Sublease to Lessee, (then
consisting of Xxxxxxxxxx Geothermal, Inc., Thermal and Amfac Energy, Inc.) with
consent thereto being given by (i) Lessor in that certain letter consent dated
March 10, 1983, and (ii) by the State of Hawaii in that certain Consent to
Assign Geothermal Resources Mining Lease No. R-2, dated May 16, l983, recorded
in the Bureau in Liber 17122, Page 77; and
WHEREAS, pursuant to the terms of, inter alia, paragraph 8, pages
37-51, of the Resource Sublease, Lessor and Lessee have entered into that
certain Delivery System Grant of Easements, dated July 9, 1990, a short form of
which has been or will be recorded in the Bureau on a substantially even date
with the recording of the short form memorandum of this Lease Amendment,
pursuant to which Lessor has granted to Lessee certain surface easements over an
area constituting the "Delivery Premises" for use by Lessee as part of its
delivery system ("Delivery System Easements'"); and
WHEREAS, pursuant to the terms of, inter alia, paragraph 8, pages
37-51, of the Resource Sublease, Lessor and Lessee have entered into that
certain Power Plant Sublease, dated July 9, 1990, a short form of which has been
or will be recorded in the Bureau on a substantially even date with the
recording of the short form memorandum of this Lease Amendment, pursuant to
which Lessor subleased to Lessee a portion of the surface rights in the Land
constituting the "Power Plant Premises" for use by the Lessee for a geothermal
electric power generating plant ("Power Plant Sublease") (together, the Delivery
Premises, the Power Plant Premises and the interest in the Land demised pursuant
to the Resource Sublease are referred to as the "Premises"); and
WHEREAS, Lenders have loaned, or are about to loan, to Lessee an
aggregate amount not exceeding the amount specified ("Loan") in that certain
Real Property Mortgage, Security Agreement, Assignment of Rents, and Financing
Statement, dated July 9, 1990, which encumbers, among other things, Lessee's
interest and estate in the Resource Sublease, the Power Plant Sublease and the
Delivery System Easements ("Mortgage"); and
WHEREAS, the Lessee contemplates using the Loan proceeds to build
certain improvements on the Land;
and
WHEREAS, Lenders have required certain amendments to the Resource
Sublease as set forth herein.
2
NOW, THEREFORE, in consideration. of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
A. Lease Amendment
For the benefit the parties hereto and Lenders, their respective
successors and assigns, the Resource Sublease is hereby amended in each and all
of the following respects:
1. Paragraph 2, pages 2-8, of the Resource Sublease is hereby
amended by replacing the original legal description of the "Leased Land"
contained in Exhibit A of the Resource Sublease with the new legal description
contained in Exhibit "A" of this Lease Amendment which is attached hereto and
incorporated herein by this reference.
2. The Resource sublease is hereby amended by inserting the
following as a second paragraph to paragraph 14:
"The parties hereto agree that Lessor's breach, termination or
rejection of the terms,] covenants and conditions of the lease
between KLDC, as lessor thereunder, and Lessor, as lessee
thereunder, dated February 18, 1981 ("Master Lease"), for any
reason whatsoever, including but not limited to a termination or
rejection of the Master Lease in any Bankruptcy Case or Supervised
Proceeding, whether by a debtor, trustee, custodian, receiver,
operation of law, or otherwise, shall be deemed a breach by Lessor
of the terms, covenants and conditions of this lease."
3. The Resource Sublease is hereby amended by deleting in its
entirety paragraph 28, pages 75-76 thereof, and substituting therefor the,
following:
"28. Notices.
All notices, demands, requests, consents, directions, and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been given (i) upon receipt, (ii) when transmitted by telex to
the number specified below and the proper answer back is received, or (iii) ten
(10) Banking Days after being deposited in a regularly maintained receptacle for
the United States Postal Service, postage prepaid, registered or certified,
return receipt requested, addressed to the respective party, as the case may be,
at the following address, or such other address as any party may from time to
time designate by written notice to the others as herein required. The telecopy
(facsimile) numbers provided below are for convenience of the parties only.
Transmission by telecopy shall constitute provision of notice under this lease
only if receipt thereof is acknowledged by the recipient.
A "Banking Day" is defined as one day that is not a Saturday, Sunday or a local
holiday in the State of Hawaii or a day on which banking institutions chartered
by the State of Hawaii or the United States and located in the State of Hawaii
are legally required or authorized to close.
3
If to Lessor: Kapoho Land Partnership
X.X. Xxx 000
Xxxx, Xxxxxx 00000
with a copy to: Kapoho Land Partnership
c/o Xxxxxx Xxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxxx 00000
If to Lessee: Puna Geothermal Venture
000 Xxxxxx Xxxxxx
Xxxxx 0000-X
Xxxx, Xxxxxx 00000
Attention: Regional
Development Manager
Telecopy: (000) 000-0000
with copies to: Ormat Energy Systems, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxx 0000-0000
Attention: President
Telecopy: (000) 000-0000
Xxxxxxx Coie
0000 Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Anything in this lease to the contrary notwithstanding, since
Lessee is by the terms hereof obligated to perform in Lessor's behalf all
of Lessor's obligations under the State Lease, and since Lessee has no
direct contractual relationship with the State, Lessor hereby covenants
and agrees that it will promptly provide to Lessee a copy of any written
notice or other written communication received from the State which
relates to the obligations under the State Lease and, until and unless
the State formally substitutes Lessee thereunder for Lessor, insofar as
notices are concerned under the State Lease, Lessor will hold Lessee
harmless from any damages Lessee may suffer by reason of Lessor's failure
to so provide Lessee with a copy of any written notice or other written
communication from the State within sufficient time to allow Lessee to
take such action as is required by such notice.
Lessee agrees promptly to provide Lessor with a copy of any
written notice or other written communication which it receives from the
State under the State Lease, and will hold Lessor harmless from any
damages Lessor may suffer by reason of Lessee's failure to so provide
Lessor with a copy of any written such notice or written communication
from
4
the State within sufficient time to allow Lessor to take such action as
is required of Lessor by such notice."
4. The Resource Sublease is hereby amended by deleting paragraph
20(f)(3), pages 65-67, of the Resource Sublease in its entirety and substituting
the following therefor:
"(f) (3) Hypothecation of Leasehold.
(i) Notwithstanding anything to the contrary contained in
paragraph 20 hereof, Lessee shall have the right at all times during the term of
this lease, with the consent of Lessor, which consent shall not be unreasonably
withheld, to obtain bonafide loans from a recognized lending institution, the
Federal government, State of Hawaii and/or the County of Hawaii and to secure
such loans by encumbering the leasehold estate created by this lease by one or
more mortgages, deeds of trust or other security instruments, including, without
limitation, assignments of the rents, issues and profits from the Leased Land or
any portion thereof; provided, however, that the proceeds of such loans are to
be used in the development of Leased Substances on or from the Pooled Lands. As
used herein, the "development of Leased Substances" shall refer to the
exploration, development and procuring of the Leased Substances, the design,
planning, purchase, construction, maintenance and operation of the power plant,
xxxxx, gathering and delivery systems, equipment and other related equipment,
personal property, fixtures and improvements necessary or desirable in the
operation of a geothermal power plant.
(ii) As used herein, "Leasehold Mortgage" shall mean any mortgage,
deed of trust or other security instrument permitted by the terms hereof,
including, without limitation, an assignment of the rents, issues and profits
from the land, which constitutes a lien on all or any portion of the leasehold
estate created by the lease. "Leasehold Lender" shall mean an owner and holder
of a Leasehold Mortgage.
(iii) Lessor's obligations under paragraph 20(f) (3) hereof to
transmit notices to obtain consents from and accept performance by the Leasehold
Lender shall be subject to Lessor's consent to proposed Leasehold Mortgage.
(iv) During the continuance of each and every Leasehold Mortgage
and until such time as the lien of each and every Leasehold Mortgage has been
extinguished:
/a/ Lessor shall not agree to any mutual termination nor accept
any surrender or relinquishment of this lease, including, without
limitation, any surrender resulting from a termination or purported
termination or diminution of this lease pursuant to paragraph 8, pages
37-51, or paragraph 17, pages 58-61, hereof, it being expressly
acknowledged and agreed by Lessor that any such termination or purported
termination or diminution shall be of no force and effect whatsoever in
the absence of an express written consent thereto by the Leasehold Lender
under the Leasehold Mortgage then in existence, neither shall Lessor
consent to the diminution of the Leased Land, except as otherwise
provided for in this lease, nor to any amendment or modification of this
lease, without the prior written consent of the Leasehold Lender.
/b/ Notwithstanding any default by Lessee in the performance or
observance of any agreement, covenant or condition of this lease on the
part of Lessee to be performed or
5
observed, Lessor shall have no right to terminate this lease or exercise
any other rights set forth herein or arising under applicable law in the
context of a default by Lessee, unless an event of default shall have
occurred and be continuing, Lessor shall have given the Leasehold Lender
written notice of such event of default certifying that the Lessee has
not cured or commenced to cure such default prior to expiration of the
applicable cure period set forth in this lease, and the Leasehold Lender
shall have failed to remedy such default or acquire Lessee's leasehold
estate created hereby or commence foreclosure or other appropriate
proceedings in the nature thereof, all as set forth in, and within the
time specified by, this paragraph 20(f)(3).
/c/ The Leasehold Lender shall have the right, but not the
obligation, at any time prior to termination of this lease, to pay all of
the rents due hereunder, to effect any insurance, to pay any taxes and
assessments, to make any repairs and complete or install any
improvements, to do any other act or thing required of Lessee hereunder,
and to do any act or thing which may be necessary and proper to be done
in the performance and observance of the agreements, covenants and
conditions hereof to prevent termination of this lease. All payments so
made and all things so done and performed by the Leasehold Lender shall
be as effective to prevent a termination of this lease as the same would
have been if made, done and performed by Lessee instead of by the
Leasehold Lender.
/d/ Should any event of default under this lease occur, the
Leasehold Lender shall have sixty (60) days after receipt of notice from
Lessor setting forth in particular the nature of such event of default,
and certifying that Lessee has not cured or commenced to cure such
default prior to expiration of the applicable cure period set forth in
the lease, and, if the default is such that possession of the land may be
reasonably necessary to remedy the default, a reasonable time after the
expiration of such sixty (60) day period, within which to remedy such
default, provided that (i) the Leasehold Lender shall have fully cured
any default in the payment of any monetary obligations of Lessee under
this lease within such sixty (60) day period and shall continue to pay
currently such monetary obligations as and when the same are due and (ii)
the Leasehold Lender shall have acquired Lessee's leasehold estate
created hereby or shall have commenced foreclosure or other appropriate
proceedings in the nature thereof within such period, or prior thereto,
and is diligently prosecuting any such proceedings. All right of Lessor
to terminate this lease as a result of the occurrence of any such event
of default shall be subject to, and conditioned upon, Lessor having first
given the Leasehold Lender written notice of such default and opportunity
to cure after the expiration of Lessee's cure period, if any, contained
in this lease, and the Leasehold Lender having failed to remedy such
event of default or acquire Lessee's leasehold estate created hereby or
commence foreclosure or other appropriate proceedings in the nature
thereof as set forth in and within the time specified by this paragraph
20 (f)(3)(iv)/d/.
/e/ Any event of default under this lease which in the nature
thereof cannot be remedied by the Leasehold Lender shall be deemed to be
remedied if (i) within sixty (60) days after receiving written notice
from Lessor (such notice to be given by Lessor after the expiration of
Lessee's cure period, if any, contained in this lease) setting forth the
nature of such event of default and certifying that Lessee has not cured
or commenced to cure such default prior to expiration of the applicable
cure periods pursuant to the lease, or prior
6
thereto, the Leasehold Lender shall have acquired Lessee's leasehold
estate created hereby or shall have commenced foreclosure or other
appropriate proceedings in the nature thereof, (ii) the Leasehold Lender
shall diligently prosecute any such proceedings to completion, and (iii)
the Leasehold Lender shall have fully cured any default in the payment of
any monetary obligations of Lessee hereunder which do not require
possession of the Leased Land within such sixty (60) day period and shall
thereafter continue to faithfully perform all such monetary obligations
which do not require possession of the Leased Land, and (iv) after
gaining possession of the Leased Land, the Leasehold Lender performs all
other obligations of Lessee hereunder (excepting however the cure or
remedy of such event or events of defaults which in the nature thereof
cannot be remedied by the Leasehold Lender) as and when the same are due.
/f/ If the Leasehold Lender despite diligent and prudent efforts
is prohibited by any process or injunction issued by any court or by
reason of applicable law or any action by any court having jurisdiction
of any bankruptcy, reorganization, receivership, or insolvency proceeding
involving Lessee from commencing or prosecuting foreclosure or other
appropriate proceedings in the nature thereof the times specified in
paragraph 20 (f) (3) (iv) /d/ and /e/ above for commencing or prosecuting
such foreclosure or other proceedings shall be extended for the period of
such prohibition; provided that the Leasehold Lender shall have fully
cured any default in the payment of any monetary obligations of Lessee
under this lease and shall continue to pay currently such monetary
obligations as and when the same fall due.
/g/ Lessor shall mail or deliver to the Leasehold Lender a copy of
any and all notices which Lessor may from time to time give to or serve
upon Lessee pursuant to the provisions of this lease. No notice by Lessor
to Lessee hereunder shall be deemed to have been given unless and until a
copy thereof shall have been mailed or delivered to the Leasehold Lender
as herein set forth.
/h/ Notwithstanding anything to the contrary contained herein,
foreclosure of a Leasehold Mortgage, or any sale thereunder, whether by
judicial proceedings or by virtue of any power of sale contained in the
Leasehold Mortgage, or any conveyance of the leasehold estate created
hereby from Lessee to the Leasehold Lender through, or in lieu of
foreclosure or other appropriate proceedings in the nature thereof, shall
not require the consent or approval of Lessor or constitute a breach of
any provision of or a default under this lease, or entitle the Lessor to
any additional compensation, rental or royalty, and upon such
foreclosure, sale or conveyance Lessor shall recognize the Leasehold
Lender, or any other foreclosure sale purchaser or any other transferee
in lieu of foreclosure (collectively "Purchaser"), as Lessee hereunder.
In the event the Leasehold Lender becomes Lessee under this lease or any
new lease obtained pursuant to subsection /i/ below, or in the event the
leasehold estate hereunder is purchased by the Leasehold Lender, the
Leasehold Lender shall be personally liable for the obligations of Lessee
under this lease or such new lease only for the period of time that the
Leasehold Lender remains lessee thereunder, and the Leasehold Lender's
right to sell, transfer or assign this lease or such new lease shall not
be subject to any restriction whatsoever. Notwithstanding the foregoing,
in the event Leasehold Lender proposes to sell, transfer or assign this
lease or such new lease, and should Lessor in such case reasonably
believe in good faith that the Leasehold Lender's
7
proposed purchaser or assignee is not sufficiently qualified,
experienced, or financially able to undertake the obligations and
responsibilities of Lessee hereunder, then Lessor shall be entitled to
propose, for the Leasehold Lender's consideration only, one or more
alternative purchasers or assignees who (i) are as well or better
qualified financially as Lessee was at the commencement of this lease,
and (ii) have the technical expertise and experience as a geothermal
developer to undertake the obligations and responsibilities of Lessor
hereunder. Following such proposal by Lessor, the Leasehold Lender shall
consider in good faith substituting such alternative purchasers or
assignees in lieu of its proposed purchaser or assignee, provided,
however, that the Leasehold Lender shall in no event be obligated to
accept or otherwise substitute such alternative purchasers or assignees
in lieu of its own or another proposed purchaser or assignee, and shall
be allowed to complete any such sale, transfer or assignment without
delay to any purchaser or assignee selected in the Leasehold Lender's
sole and absolute discretion. If the Leasehold Lender subsequently
assigns or transfers its interest under this lease to a Purchaser after
acquiring the same by foreclosure or deed in lieu of foreclosure or
subsequently assigns or transfers its interest under any new lease
obtained pursuant to subparagraph /i/, and in connection with any such
assignment or transfer the Leasehold Lender takes back a mortgage or deed
of trust encumbering such leasehold interest to secure a portion of the
purchase price given to the Leasehold Lender for such assignment or
transfer, then such mortgage or deed of trust shall be considered a
Leasehold Mortgage as contemplated under this paragraph 20 (f) (3) and
the Leasehold Lender shall be entitled to receive the benefit of and
enforce the provisions of paragraph 20 (f) (3) hereof and any other
provisions of this lease intended for the benefit of the holder of a
Leasehold Mortgage.
/i/ Should this lease be terminated by Lessee, or as a result of
any rejection or termination by a trustee acting on behalf of Lessee, or
by Lessor, or as a result of any rejection or termination by a trustee
acting on behalf of Lessor, or otherwise, including without limitation, a
rejection or termination in any case or proceeding under the Bankruptcy
Code or any successor statute thereto, any other bankruptcy or insolvency
law involving the appointment of a receiver, custodian or other official
for such entity, any law for the winding up of a corporation or other
entity, and any law otherwise involving the liquidation or rehabilitation
of entities for financial or other reasons (hereinafter referred to as a
"Bankruptcy Case or Supervised Proceeding"), Lessor shall, within thirty
(30) days after receipt by Lessor of written request by any Leasehold
Lender given within sixty (60) days after receipt by said Leaseholder
Lender of Notice of such termination, execute and deliver a new lease of
the Leased Land to be prepared by the Leasehold Lender and reviewed by
Lessor and Lessor's counsel at the Leasehold Lender's sole cost and
expense, to such Leasehold Lender or its nominee, purchaser, assignee or
transferee, for the remainder of the term of this lease with the same
agreements, covenants and conditions (except for any requirements which
have been fulfilled by Lessee prior to termination) as are contained
herein and with priority equal to that hereof to the extent such priority
is within Lessor's control; provided, however, that the Leasehold Lender
shall promptly cure any defaults of Lessee susceptible to cure by the
Leasehold Lender, within thirty (30) days following the execution and
delivery of a new lease of the Leased Land pursuant to this paragraph 20
(f) (3) (iv) /i/.
8
/j/ Lessor and Lessee shall cooperate in including in this lease
by suitable amendment or other instrument, from time to time, any
provision which may be reasonably requested by the Leasehold Lender for
the purpose of implementing the mortgagee protection provisions contained
in this lease and allowing the Leasehold Lender reasonable means to
protect or preserve the lien of the Leasehold Mortgage on the occurrence
of a default under the terms of this lease or termination or rejection in
any Bankruptcy Case or Supervised Proceeding. Lessor and Lessee each
agree, at Lessee's expense, to execute, deliver and acknowledge any
agreement necessary to effect any such amendment or other instrument;
provided, however, that Lessor shall have no obligation to execute such
amendment or other instrument which in any way affects the term hereof,
or rent or royalties payable under this lease or otherwise in Lessor's
reasonable opinion materially adversely affects any rights of Lessor
under this lease.
/k/ There shall be no merger of this lease, of any interest in
this lease, or of the leasehold estate created thereby with the fee
estate in the Leased Land or any other leasehold estate in the Leased
Land, for any reason including but not limited to a merger by reason of
the fact that this lease or such interest therein or such leasehold
estate may be directly or indirectly held by or for the account of any
person who shall hold the fee estate in the Leased Land or any other
leasehold estate in the Leased Land, nor shall there be such a merger by
reason of the fact that all or any part of the leasehold estate created
hereby may be conveyed or mortgaged in a Leasehold Mortgage to a
Leasehold Lender who shall hold the fee estate in the Leased Land or any
other leasehold estate in the Leased Land".
5. The Resource Sublease is hereby amended by adding the following
provision thereto as new paragraph 39 thereof:
"39. Estoppel Certificates. Lessee or Lessor, as the case may be,
shall execute, acknowledge and deliver to the other and/or to the Leasehold
Lender, promptly upon request, its certificate certifying (a) that this lease is
unmodified and in full force and effect (or, if there have been modifications,
that this lease is in full force and effect, as modified, and stating the
modifications), (b) the dates, if any, to which all rental and royalties due
hereunder have been paid, (c) whether there are then existing any charges,
offsets or, to Lessor's knowledge, defenses against the enforcement by Lessor of
any agreement, covenant or condition hereof on the part of Lessee to be
performed or observed (and, if so, specifying the same), and (d) whether there
are then existing any defaults by Lessee in the performance or observance by
Lessee of any agreement, covenant or condition hereof on the part of Lessee to
be performed or observed and whether any notice has been given to Lessee of any
default which has not been cured (and, if so, specifying the same) and such
other matters as may be reasonably requested including but not limited to the
matters requested pursuant to Section A of that certain Lessor's Consent to
Mortgage of Lease and Estoppel Certificate dated July 9, 1990 executed by
Lessor. Any such certificate may be relied upon by a prospective purchaser,
mortgagee or trustee or beneficiary under a deed of trust constituting or
intended to constitute a Leasehold Mortgage.
6. The Resource Sublease is hereby amended by adding the following
provision thereto as paragraph 40, thereof:
"40. TAXING.
9
40.01 Lessee Notice, Etc. In case of a transfer of all or any part
of the Land or the interests of Lessor and/or Lessee under this lease as the
result of condemnation or eminent domain ("Taking") or the commencement of any
proceedings or negotiations which might result in such Taking, Lessee will
promptly give written notice thereof to Lessor generally describing the nature
and extent of such Taking or the nature of such proceedings and negotiations and
the nature and extent of the Taking which might result therefrom, as the case
may be. Lessor and Lessee may thereafter each file and prosecute their
respective claims for an award in the appropriate court having jurisdiction over
such matter.
40.02 Total Taking. In case of a Taking of the interests of Lessor
and/or Lessee under this lease, this lease shall terminate as of the date title
vests in the condemning authority or the date the condemning authority is
entitled to possession of the interests of Lessor or those of Lessee under the
lease, whichever first occurs (the "Date of Taking"). In case of a Taking of
such a substantial part of the interests of Lessor and/or Lessee under the lease
as shall result in the remaining interests being unsuitable for Lessee's use as
contemplated in this lease, as determined by the parties, or if the parties are
unable to agree, as determined by arbitration, then this lease shall terminate
as of the Date of Taking. Any Taking of the interests of Lessor and/or Lessee of
the character referred to in this paragraph 40.02 is referred to as a "Total
Taking."
40.03 Partial Taking. In case of a Taking of the interests of
Lessor and/or Lessee other than a Total Taking or "Temporary Taking" (as
hereinafter defined) (a "Partial Taking") this lease shall retain in full force
and effect as to the portion of such interests remaining immediately after such
Taking, without any abatement or reduction of rent, or any other sum payable
hereunder, except as provided in paragraph 40.05. Any Taking of such interest
for temporary use, i.e. other than a Total Taking or a Partial Taking, shall be
referred to as a "Temporary Taking."
40.04 Application of Awards and Other Payments. Awards and other
payments on account of a Taking ("Awards and Payments") shall be applied as
follows subject to the leases executed and delivered pursuant to paragraph 8
hereof:
(a) Awards and Payments received on account of a Partial Taking or
a Total Taking shall be allocated between Lessor and Lessee as provided
in Exhibits D-1 and E-l attached hereto and further provided that Awards
and Payments on account of other interests of Lessor and Lessee
hereunder, including but not limited to the ownership of the Leased
Substances, shall be allocated as follows:
(i) To Lessee, all compensation and damages payable for or
on account of Lessee's interest in the Leased Substances and such
other damages as Lessee is able to establish, including but not
limited to its ongoing business and associated contractual rights
created with respect thereto as determined by the appropriate
court having jurisdiction over such matter, and
(ii) to Lessor, all compensation and damages for or on
account of Lessor's interest in the Leased Substances and such
other damages as Lessor is able to establish including but not
limited to damages to its ongoing business and contractual
10
rights created with respect thereto, and severance damages, as
determined by the appropriate court having jurisdiction over such
matter, and
(iii) Lessor and Lessee agree to request that the
condemning authority specify the amount to be awarded to Lessor
and Lessee, respectively. ,
(b) In the event of a Temporary Taking, this Lease shall not
terminate nor shall Lessee be excused from full performance of its
covenants for the payment of money or any other obligations hereunder
capable of performance by Lessee, but in such case Lessee or those
claiming under Lessee may claim and recover from the condemning authority
any and all Awards and Payments made with respect thereto, provided that,
if any portion of any such award or payment is made by reason of any
damage, destruction or diminution of the Property, such portion shall be
held and applied as provided in paragraph 40.04 (a), provided that, if
any portion of any such award or payment is made by reason of any damage,
destruction or diminution of the geothermal resources and Leased
Substances, such portion shall be held and applied as provided in
paragraph 40.04(a).
40.05 Reduction of Rent. In the event of a Partial Taking, each
installment of rent commencing with the first rent payment date following the
Date of Taking shall be reduced by an amount representing the product of the
number of acres taken times the then current rent payable per acre."
7. Notwithstanding anything to the contrary contained in paragraph
13, pages 55-56, of the Resource Sublease, the Leasehold Lender (in the event
that Leasehold Lender becomes the Lessee under the Lease), shall not be
obligated to perform those obligations of Lessee which relate to the furnishing
of certain data recited in paragraph 13 which are contingent upon a surrender of
the Leased Land.
8. Paragraph 35, pages 80-81, of the Resource Sublease is hereby
amended to delete the language within the parenthesis commencing on page 80 and
ending on page 81 and substituting therefor the following:
"other than the president or vice president of the corporation which is
the managing partner of the Lessor or the Lessee, in the event that
Lessee is a partnership or the president or vice president of the
corporation in the event that Lessor or the Lessee is a corporation."
9. The Resource Sublease is hereby amended by deleting Exhibits D
and E thereto and substituting therefor Exhibits "D-l" and "E-1" attached,
hereto and incorporated herein by this reference.
10. Paragraph 20 of the Resource Sublease is amended by adding a
new paragraph 20(i) to read as follows:
(i) If Lessee is a corporation, partnership or trust, the
term "assignment" herein shall include one or more sales or
transfers by operation of law or otherwise by which an aggregate
of more than 50% of the total capital stock of a corporate lessee
or of the total partnership interests of a partnership lessee or
of the total beneficial
11
interests of a trust lessee shall become vested in one or more
individuals, firms or corporations who or which are not
stockholders, partners or beneficiaries thereof, either legally or
equitably, as of the date of this lease or of Lessee's subsequent
acquisition of this lease by assignment, it being understood that
ownership of such capital stock, partnership interests and
beneficial interests shall be determined in accordance with the
principles anunciated in Section 544 of the Internal Revenue
Service Code of 1986; provided, however, that the foregoing
definition shall not apply with respect to a corporate lessee
whose capital stock is listed on a recognized stock exchange.
11. Except as amended herein all provisions of the Resource
Sublease shall remain in full force and effect without impairment or
modification. It is understood that with respect to the Resource Sublease, as
amended herein, should there be any conflict between the terms of the Resource
Sublease and the terms of the Mortgage, the former shall control.
12. The amendments to the Resource Sublease set forth herein shall
become effective upon the execution and delivery of this Lease Amendment by
Lessor and Lessee, and except with respect to Sections A.1 and A.10 hereof,
shall terminate and shall be of no further force and effect and the provisions
of the Resource Sublease which had been amended by the provisions of this Lease
Amendment shall be in full force and effect as if this Lease Amendment had not
been executed, in the event that all of the obligations under the Loan and any
subsequent loan made in connection with a workout or foreclosure of the Loan are
fully satisfied. Immediately following such execution and delivery, Lessor and
Lessee shall duly execute and acknowledge a memorandum of this Lease Amendment
in the form set forth as Exhibit B to this Lease Amendment and Lessee shall
cause such memorandum to be recorded in the Bureau.
B. Rights of Lenders.
1. KLP Mortgage. The obligations of the Lessor contained in the
Resource Sublease, the Delivery System Easements and the Power Plant Sublease
are secured by a mortgage executed by Lessor as "Mortgagor" for the benefit of
Lessee as "Mortgagee," encumbering all of Lessor's right title and interest in
the Master Lease ("KLP Mortgage"). Lessee's interest in the KLP Mortgage has
been assigned to CS as further security for the Loan ("Assignment of Beneficial
Interest in KLP Mortgage").
2. Power of Attorney. Lessor and Lessee acknowledge that (i) CS is
a beneficiary of this Lease Amendment; (ii) pursuant to the Assignment of
Beneficial Interest in KLP Mortgage, CS is the assignee of Lessee's rights
pursuant to the KLP Mortgage; and (iii) pursuant to a Special Power of Attorney
executed by Lessee in favor of CS, CS is the attorney-in-fact for Lessee.
Accordingly, Lessor and Lessee acknowledge that CS is entitled to, among other
things, exercise all of the rights and remedies of Lessee pursuant to the
Resource Sublease, the Delivery System Easements and the Power Plant Sublease,
including this Lease Amendment, including but not limited to the right to demand
and obtain new Resource Sublease, Power Plant Sublease and Delivery System
Easements.
C. Miscellaneous.
12
1. Notices. For the purpose of paragraph 20 (f) (3) of the
Resource Sublease as set forth in this Lease Amendment the address for notices
to the Leasehold Lender is as follows:
Credit Suisse
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Project Finance
Telex: 232491
Telecopy: (000) 000-0000
2. Binding Upon Successors. All agreements, covenants, conditions
and provisions of this Lease Amendment shall be binding upon and inure to the
benefit of Lenders, the parties hereto and their respective successors and
permitted assigns.
3. Captions. The captions or headings at the beginning of each
Section are for convenience only and are not a part of the contents of this
Lease Amendment.
4. Governing Law. This Lease Amendment shall be governed by and
construed in accordance with the laws of the State of Hawaii.
5. Amendment. This Lease Amendment may be modified, amended or
rescinded only by a writing expressly referring to this Lease Amendment and
signed by CS and the parties hereto.
6. Severability. Every provision of this Lease Amendment, is
intended to be severable. If any term or provision hereof is declared by a court
of competent jurisdiction to be illegal, invalid or unenforceable for any reason
whatsoever, such illegality, invalidity or unenforceability shall not affect the
other terms and provisions hereof, which terms and provisions shall remain
binding and enforceable, and to the extent possible all of such other provisions
shall remain in full force and effect.
7. Warranty of Authority. Each of the parties warrants to the
other that its legal capacity is correctly stated below, and that the person or
persons and entities executing this Lease Amendment on behalf of the warranting
party are correctly named in their legal capacities, are correctly described,
and are authorized to bind the warranting party to this Lease Amendment.
8. No Waiver. A waiver by the Lenders or any other party hereto of
a breach of any of the covenants, conditions or agreements hereof to be
performed by the other shall not be construed as a waiver of any succeeding
breach of the same or other covenants, agreements, restrictions or conditions
hereof.
9. Exhibits. All Schedules and Exhibits described in this Lease
Amendment are attached hereto and are incorporated herein by this reference.
13
10. Reliance. Lessor and Lessee understand and acknowledge that
Lenders are relying, and are entitled to rely, upon this Lease Amendment in
making the Loan secured by the Mortgage referred to herein.
11. Counterparts. This Lease Amendment may be executed in any
number of counterparts, each of which shall be an original and all of which
shall constitute one and the same instrument, with the same effect as if the
signatures were upon the same instrument.
14
IN WITNESS WHEREOF, the parties hereto have duly executed this
Lease Amendment as of the date first above written.
LESSOR:
KAPOHO LAND PARTNERSHIP, a Hawaii
limited partnership
By: KAPOHO MANAGEMENT CO., INC.,
a Hawaii corporation,
Its General Partner
By:_________________________________
Its: President
By:_________________________________
Its: President
By:_________________________________
Its: Secretary and Treasurer
LESSEE:
PUNA GEOTHERMAL VENTURE, a Hawaii
general partnership
By: AMOR VIII CORPORATION, a Delaware
corporation, general partner
By:_________________________________
Its: Vice President
15
By: AMOR VI CORPORATION, a Delaware
corporation, general partner
By:_________________________________
Its: Vice President
LESSOR:
KAPOHO LAND PARTNERSHIP, a Hawaii limited
partnership
By: KAPOHO MANAGEMENT CO., INC.,
a Hawaii corporation,
Its General Partner
By:_________________________________
Its: Chairman
By:_________________________________
Its: President
By:_________________________________
Its: Vice President
16
EXHIBIT "A"
-----------
(1) Lot 1 {Power Plant), being a portion of L.P. 8177 and R.P. 4497, L.C. Aw.
8559, Apana 5 to C. Kanaina, Kapoho, Puna, Island of Hawaii, Hawaii, more
particularly described as follows:
Beginning at the northwest corner of this parcel of land and on the
southerly side of Kapoho-Pahoa Road, the coordinates of said point of
beginning referred to Government Survey Triangulation Station "KALIU" being
11,468.94 feet North and 8,724.33 feet East and running by azimuths
measured clockwise from True South:
1. 241(degree) 46' 24" 71.21 feet along Kapoho-Pahoa Road;
Thence along Lot 2, the remainder of
L.P. 8177 and R.P. 4497, L.C. Aw. 8559,
Apana 5 to C. Kanaina for the next
thirty-five (35) courses, the azimuths
and distances between points being:
2. Following along a curve to the left having a radius of 20.00 feet, the
chord azimuth and distance being:
11(degree) 28' 45" 30.77 feet;
3. 321(degree) 11' 1234.51 feet;
4. Thence along a curve to the left having a radius of 1985.00 feet, the
chord azimuth and distance being:
315(degree) 53' 30" 366.14 feet;
PAGE 1 OF 13
5. 310(degree) 36' 258.68 feet;
6. 302(degree) 52' 413.75 feet;
7. 305(degree) 20' 30" 29.52 feet;
8. 6(degree) 11' 30" 149.78 feet;
9. 256(degree) 34' 30" 173.94 feet;
10. 305(degree) 20' 30" 45.58 feet;
11. 215(degree) 20' 30" 35.00 feet;
12. 305(degree) 20' 30" 208.56 feet;
13. 245(degree) 48' 52.93 feet;
14. 335(degree) 48' 186.32 feet;
15. 245(degree) 48' 100.00 feet;
16. 335(degree) 48' 288.68 feet;
17. 65(degree) 48' 164.00 feet;
18. 335(degree) 48' 150.00 feet;
19. 65(degree) 48' 200.00 feet;
20. 155(degree) 48' 150.00 feet;
21. 65(degree) 48' 412.78 feet;
22. 67(degree) 50' 04" 250.00 feet;
23. 155(degree) 48' 49.10 feet;
24. 68(degree) 18' 50" 114.52 feet;
25. 155(degree) 48' 50.00 feet;
26. 248(degree) 18' 50" 296.32 feet;
27. 155(degree) 48' 191.00 feet;
28. 245(degree) 48' 124.00 feet;
29. 155(degree) 48' 219.00 feet;
30. 245(degree) 48' 28.81 feet;
31. 186(degree) 11' 30" 412.91 feet;
Page 2 of 13
32. 122(degree) 52' 232.94 feet;
33. 130(degree) 36' 409.32 feet;
34. Thence along a curve to the left having a radius of, 2015.00 feet, the
chord azimuth and distance being:
135(degree) 53' 30" 371.67 feet;
35. 141(degree) 11' 1247.59 feet;
36. Thence along a curve to the left having a radius of 20.00 feet, the
chord azimuth and distance being:
101(degree) 28' 42" 25.55 feet to the
point of beginning and containing an
area of 13.709 acres.
(2) Lot 2, being a portion of L.P. 8177 and R.P. 4497, L.C. Aw. 8559, Apana 5
to C. Kanaina, Kapoho, Puna, Island of Hawaii, Hawaii,
Beginning at a point at the southwest corner of this parcel of land on the
east side of Pohoiki Road being also the northwest corner of Hawaii
Geothermal Research Project Site, the coordinates of said point of
beginning referred to Government Survey Triangulation Station "KALIU" being
7,328.44 feet North and 8,606.67 feet East and running by azimuths measured
clockwise from True South:
1. 160(degree) 03' 24" 251.79 feet along the easterly side of Pohoiki Road;
2. Thence along the easterly side of Pohoiki Road, along a curve to the
right having a radius of 432.00 feet,
the chord azimuth and distance being:
178(degree) 16' 24" 270.10 feet;
3. 196(degree) 29' 24" 249.92 feet along the easterly side of Pohoiki
Road;
4. Thence along the easterly side of Pohoiki Road, along a curve to the
left having a radius of 182.00 feet,
the chord azimuth and distance being:
158(degree) 55' 54" 221.88 feet;
5. 121(degree) 22' 24" 2031.38 feet along the easterly side of Pohoiki
Road;
Page 3 of 13
6. 126(degree) 06' 54" 1404.95 feet along the easterly side of Pohoiki
Road;
7. 141(degree) 35' 04" 113.00 feet along the easterly side of Pohoiki
Road;
8. 211(degree) 55' 54" 75.32 feet along the southerly side of Kapoho-
Pahoa Road;
9. 256(degree) 55' 54" 1010.01 feet along the southerly side of Kapoho-
Pahoa Road;
10. 346(degree) 55' 54" 100.00 feet along HELCO sub-station site;
11. 256(degree) 55' 54" 150.00 feet along HELCO sub-station site;
12. 166(degree) 55' 54" 100.00 feet along HELCO sub-station site;
13. 256(degree) 55' 54" 303.02 feet along the southerly side of Kapoho-
Pahoa Road (Proj. No. A-132-01-60);
14. Thence along the southerly side of Kapoho-Pahoa Road (Proj.
No. A-132-01-60), along a curve to the
left having a radius of 2321.83 feet,
the chord azimuth and distance being:
249(degree) 21' 09" 612.48 feet;
15. 241(degree) 46' 24" 1273.36 feet along the southerly side of Kapoho-
Pahoa Road (Proj. No. A-132-01-60);
16. Thence along Lot 1. the remainder of L.P. 8177 and R.P. 4497, L.C.
Aw. 8559, Apana 5 to C. Kanaina, along
a curve to the right having a radius of
20.00 feet, the chord azimuth and
distance being:
281(degree) 28' 42" 25.55 feet;
Thence along Lot 1, the remainder of
L.P. 8177 and R.P. 4497, L.C. Aw. 8559.
Apana 5 to C. Kanaina for the next
thirty four (34) courses, the azimuths
and distances being:
Page 4 of 13
17. 321(degree) 11' 1247.59 feet;
18. Thence along a curve to the left having a radius of 2015.00 feet, the
chord azimuth and distance being:
315(degree) 53' 30" 371.67 feet;
19. 310(degree) 36' 409.32 feet;
20. 302(degree) 52' 232.94 feet;
21. 6(degree) 11' 30" 412.91 feet;
22. 65(degree) 48' 28.81 feet;
23. 335(degree) 48' 219.00 feet;
24. 65(degree) 48' 124.00 feet;
25. 335(degree) 48' 191.00 feet;
26. 68(degree) 18' 50" 296.32 feet;
27. 335(degree) 48' 50.00 feet;
28. 248(degree) 18' 50" 114.52 feet;
29. 335(degree) 48' 49.10 feet;
30. 247(degree) 50' 04" 250.00 feet;
31. 245(degree) 48' 412.78 feet;
32. 335(degree) 48' 150.00 feet;
33. 245(degree) 48' 200.00 feet;
34. 155(degree) 48' 150.00 feet;
35. 245(degree) 48' 164.00 feet;
36. 155(degree) 48' 288.68 feet;
37. 65(degree) 48' 100.00 feet;
38. 155(degree) 48' 186.32 feet;
39. 65(degree) 48' 52.93 feet;
40. 125(degree) 20' 30" 208.56 feet;
41. 35(degree) 20' 30" 35.00 feet;
42. 125(degree) 20' 30" 45.58 feet;
Page 5 of 13
43. 76(degree) 34' 30" 173.94 feet;
44. 186(degree) 11' 30" 149.78 feet;
45. 125(degree) 20' 30" 29.52 feet;
46. 122(degree) 52' 413.75 feet;
47. 130(degree) 36' 258.68 feet;
48. Thence along a curve to the right having a radius of 1985.00 feet, the
chord azimuth and distance being:
135(degree) 53' 30" 366.14 feet;
49. 141(degree) 11' 1234.51 feet;
50. Thence along a curve to the right having a radius of 20.00 feet, the
chord azimuth and distance being:
191(degree) 28' 45" 30.77 feet;
51. 241(degree) 46' 24" 411.07 feet along Kapoho-Pahoa Road;
52. 331(degree) 46' 24" 5.00 feet along a jog in Kapoho-Pahoa Road (Proj.
No. A-132-01-60);
53. 241(degree) 46' 24" 75.00 feet along the southerly side of Kapoho-
Pahoa Road (Proj. No. A-132-01-60);
54. 151(degree) 46' 24" 5.00 feet along a jog in Kapoho-Pahoa Road (Proj.
No. A-132-01-60);
55. 241(degree) 46' 24" 105.65 feet along the southerly side of Kapoho-
Pahoa Road (Proj. No. A-132-01-60);
56. Thence along the southerly side of Kapoho-Pahoa Road: (Proj.
No. A-132-01-60), along a curve to the
left having a radius of 2321.83 feet,
the chord azimuth and distance being:
235(degree) 16' 24" 525.68 feet;
57. 228(degree) 46' 24" 224.35 feet along the southerly side of Kapoho-
Pahoa road (Proj. NO. A-132-01-60);
Page 6 of 13
58. 228(degree) 46' 24" 279.17 feet along the southerly side of Kapoho-
Pahoa road (Proj. No. S-0132(L)).
59. Thence along the southerly side of Kapoho-Pahoa Road (Proj.
No. S-0132(1)), along a curve to the
right having a radius of 1607.02 feet,
the chord azimuth and distance being:
236(degree) 46' 24" 447.31 Feet;
60. 244(degree) 46' 24" 2650.28 feet along the southerly side of Kapoho-
Pahoa Road (Proj. No. S-0132(1));
61. Thence along the southerly side of Kapoho-Pahoa Road (Proj.
No. 5-0132(1)), along a curve, to the
right having a radius of 1498.15 feet
the chord azimuth and distance being:
248(degree) 31' 24" 195.97 feet;
62. Thence continuing along the southerly side of Kapoho-Road (Proj.
No. S-0132(1)), along a curve to the
right having a radius of 1115.92 feet,
the chord azimuth and distance being:
259(degree) 35' 24" 284.23 feet;
63. Thence continuing along the southerly side of Kapoho-Pahoa Road (Proj.
No. 5-0132(1)), along a curve to the
right having a radius of 1498.15 feet,
the chord azimuth and distance being:
269(degree) 04' 13" 113.12 feet;
64. 277(degree) 15' 54" 450.36 feet along the southerly side of Kapoho-
Pahoa Road (Proj. No. S-0132(1));
65. Thence along the remainder of L.P. 8177 and R.P. 4497, L.C. Aw. 8559.
Apana 5 to C. Kanaina, along a curve to
the right having a radius of 40.00
feet, the chord azimuth and distance
being: 7(degree) 20' 04" 34.24 feet;
Thence along the remainder of L.P. 8177
and R.P. 4497,
Page 7 of 13
L.C. Aw. 8559, Apana 5 to C. Kanaina for
the next thirty nine (39) courses, the
azimuths and distances being:
66. 302(degree) 40' 24" 5.00 feet;
67. 32(degree) 40' 24" 26.67 feet;
68. 52(degree) 37' 24" 135.95 feet;
69. 38(degree) 26' 24" 225.17 feet;
70. 54(degree) 45' 24" 36.60 feet;
71. 31(degree) 45' 24" 252.93 feet;
72. 15(degree) 05' 24" 6.79 feet;
73. 77(degree) 02' 24" 350.29 feet;
74. 83(degree) 45' 24" 132.20 feet;
75. 74(degree) 49' 24" 97.93 feet;
76. 41(degree) 26' 24" 65.32 feet;
77. 27(degree) 14' 24" 546.76 feet;
78. 306(degree) 32' 24" 343.25 feet;
79. 61(degree) 23' 24" 958.61 feet;
80. 64(degree) 54' 24" 354.14 feet;
81. 62(degree) 49' 24" 285.05 feet;
82. 64(degree) 32' 24" 197.17 feet;
83. 344(degree) 04' 54" 816.37 feet;
84. 55(degree) 17' 24" 68.36 feet;
85. 18(degree) 50' 24" 23.76 feet;
86. 342(degree) 23' 24" 428.66 feet;
87. 322(degree) 39' 24" 121.88 feet;
88. 304(degree) 14' 24" 180.13 feet;
89. 294(degree) 18' 24" 291.64 feet;
Page 8 of 13
90. 270(degree) 59' 24" 235.52 feet;
91. 266(degree) 59' 24" 234.48 feet;
92. 210(degree) 11' 24" 209.22 feet;
93. 221(degree) 37' 24" 75.90 feet;
94. 235(degree) 37' 24" 84.79 feet;
95. 248(degree) 41' 24" 92.41 feet;
96. 263(degree) 16' 24" 164.85 feet;
97. 258(degree) 40' 24" 240.44 feet;
98. 249(degree) 45' 24" 154.26 feet;
99. 254(degree) 20' 24" 124.75 feet;
100. 245(degree) 20' 24" 119.50 feet;
101. 253(degree) 52' 24" 114.86 feet;
102. 5(degree) 26' 24" 157.53 feet;
103. 343(degree) 45' 24" 196.61 feet;
104. 6(degree) 20' 57" 1108.69 feet
105. 60(degree) 30' 00" 700.65 feet along Lot 3-A-3, portion of Grant
3209 to Xxxxxx Xxxxxxx;
106. 60(degree) 42' 20" 2187.60 feet along Lots B-2 and B-1 and Lanipuna
Gardens, Increment 1 (File Plan 1340);
107. 73(degree) 10' 00" 1942.14 feet along Lanipana Gardens, Increment 1
(File Plan 1340);
108. 163(degree) 10' 00" 342.45 feet along Hawaii Geothermal Research
Project Site;
109. 73(degree) 10' 00" 610.52 feet along Hawaii Geothermal Research
Project Site to the point of beginning
and containing an Area of 557.18 Acres.
Page 9 of 13
(3) Being a portion of L.P. 8177 and R.P. 4497, L.C. Aw. 8559. Apana 5 to C.
Kanaina, Kapoho, Puna. Hawaii,
Beginning at the southwest corner of this parcel of land, being also the
northeast corner of Grant 3209 to Xxxxxx Xxxxxxx and the west corner of
Grant 6845 to Xxxxxx Xxxxxxxxxxx, the coordinates of said point of
beginning referred to Government Survey Triangulation Station "KALIU" being
9,155.29 feet North and 13,666.78 feet East and running by azimuths
measured clockwise from True South:
1. 186(degree) 20' 57" 1108.69 feet along the remainder of L.P. 8177
and R.P. 4497, Apana 5 to C. Kanaina;
2. 242(degree) 04' 24" 694.21 feet along the southeasterly side of
20 feet road;
3. 235(degree) 34' 24" 676.73 feet along the southeasterly side of
20 feet road;
Thence along the remainder of L.P. 8177
and R.P. 4497. Apana 5 to C. Kanaina
for the next ten (10) courses, the
azimuths and distances being:
4. 296(degree) 41' 24" 89.16 feet;
5. 290(degree) 49' 24" 265.76 feet;
6. 264(degree) 10' 24" 372.80 feet;
7. 198(degree) 23' 54" 1150.00 feet;
8. 273(degree) 29' 24" 451.14 feet;
9. 240(degree) 22' 24" 240.00 feet;
10. 182(degree) 02' 24" 100.00 feet;
11. 243(degree) 53' 54" 483.40 feet;
12. 233(degree) 48' 24" 226.80 feet;
13. 223(degree) 02' 24" 648.90 feet;
14. 163(degree) 07' 24" 259.15 feet along the northeast side of road;
15. 146(degree) 57' 24" 415.75 feet along the northeast side of
20 feet road;
Page 10 of 13
16. 121(degree) 57' 54" 307.04 feet along the northeast side of 20 feet
road;
17. Thence along the southeast side of Kapoho-Pahoa Road (Project No. ERP
ER 3(1)), along a curve to the left
having a radius of 2894.79 feet, the
chord azimuth and distance being:
256(degree) 55' 48.2" 224.46 feet;
Thence along the remainder of L.P. 8177
and X.X. 0000, Xxxxx 5 to C. Kanaina
for the next seven (7) courses, the
azimuths and distances being;
18. 289(degree) 01' 24" 107.97 feet;
19. 281(degree) 27' 24" 705.00 feet;
20. 302(degree) 47' 24" 966.82 feet;
21. 354(degree) 37' 24" 233.00 feet;
22. 328(degree) 07' 24" 66.00 feet;
23. 281(degree) 32' 24" 292.00 feet;
24. 263(degree) 00' 24" 88.00 feet;
25. 34(degree) 12' 24" 381.63 feet along the westerly side of 20 feet
road;
26. 32(degree) 08' 24" 120.81 feet along the westerly side of 20 feet
road;
27. 25(degree) 39' 24" 88.76 feet along the westerly side of 20 feet
road;
28. 18(degree) 18' 24" 82.03 feet along the westerly side of 20 feet
road;
29. Thence along the westerly side of 00 xxxx xxxx, xxxxx a curve to the
right having a radius of 20.00 feet,
the chord azimuth and distance being:
61(degree) 27' 24" 27.36 feet;
30. 104(degree) 36' 24" 250.78 feet along the northerly side of 20 feet
road;
Page 11 of 13
31. 90(degree) 28' 54" 123.58 feet along the northerly side of 20 feet
road;
32. 21(degree) 44' 24" 71.08 feet along the westerly side of 20 feet
road;
33. 359(degree) 55' 24" 410.82 feet along the westerly side of 20 feet
road;
34. 352(degree) 32' 24" 137.09 feet along the westerly side of 20 feet
road;
35. 318(degree) 05' 24" 521.10 feet along the westerly side of 20 feet
road;
36. 346(degree) 25' 24" 93.15 feet along the westerly side of 20 feet
road;
37. 9(degree) 59' 24" 284.02 feet along the westerly-side of 20 feet
road;
38. 6(degree) 43' 24" 140.76 feet along the westerly side of 20 feet
road;
39. 73(degree) 44' 04" 5556.04 feet along Grant 6845 to
Xxxxxx Xxxxxxxxxxx to the point of
beginning and containing an area of
240.76 Acres.
(4) Being portions of L.P. 8177 and R.P. 4497, L.C. Aw. 8559, Apana 5 to C.
Kanaina, Kapoho, Puna. Island of Hawaii, Hawaii,
Beginning at the northerly corner of this parcel of land on the southwest
side of Pohoiki Road, the coordinates of said point of beginning referred
to Government Survey Triangulation Station "KALIU" being 10,013.20 feet
North and 5,757.20 feet East and running by azimuths measured clockwise
from True South:
1. 306(degree) 06' 54" 1086.26 feet along Pohoiki Road to a 1/2" pipe
(found);
2. 36(degree) 06' 54" 300.00 feet along the remainder of L.P. 8177
and R.P. 4497, L.C: Aw. 8559, Apana 5
to C. Kanaina;
3. 141(Degree) 33' 14" 1126.93 feet along grant 13156 to Kapoho Land
Development Company, Limited to the
point of beginning and containing an
area of 3.741 Acres.
Page 12 of 13
The previous legal description is subject to the covenants, conditions,
rights, rights-of-way, easements and encumbrances now of record, and to
unrecorded easements which have been acquired by prescription, right-of-entry,
custom and usage or otherwise for public utilities, roads, highways, such
reservation in favor of the State of Hawaii of mineral and metallic mines as
there may be, and any claims based on native rights including roads and trails.
Exhibit "A"
-----------
EXHIBIT B
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LAND COURT | REGULAR SYSTEM
--------------------------------------------------------------------------------
Return by Mail (X) Pickup ( ) To:
Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx Xxxxxx, Esq.
--------------------------------------------------------------------------------
MEMORANDUM OF AMENDMENT TO LEASE
(RESOURCE SUBLEASE)
THIS MEMORANDUM OF AMENDMENT TO LEASE (RESOURCE SUBLEASE)
dated this __________day of July, 1990, is made by KAPOHO LAND PARTNERSHIP, a
Hawaii limited partnership whose mailing address is X.X. Xxx 000, Xxxx, Xxxxxx
00000 ("lessor"), and PUNA GEOTHERMAL VENTURE, a hawaii general partnership,
whose business address is 000 Xxxxxx Xxxxxx, Xxxxx 0000-x, Xxxx, Xxxxxx 00000
("Lessee"), for the benefit of CREDIT SUISSE, a bank organized and existing
under the laws of Switzerland, acting through its New York branch ("CS"), whose
business and mailing address is 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention: Project Finance, as agent and collateral agent for the account
of CS and for the account of such other lenders as may participate in the
funding and other risks associated with the Loan, as defined in the Lease
Amendment, certain other lenders (CS and such other lenders as referred to
herein as "Lenders") and lenders.
WITNESSETH:
-----------
That certain unrecorded Lease and Agreement, dated March 1, 1981, a
short form of which was recorded in the Bureau of Conveyances of the State of
Hawaii in Liber 16267, Page 466, as amended by those certain letter agreements
all dated March 1, 1981, made by Lessor and Lessee, covering certain interests
described therein with respect to that certain real property described in
Exhibit "A" attached thereto, which Exhibit "A" is hereby deleted from said
unrecorded Lease and Agreement and recorded short form thereof and replaced in
its entirety by Exhibit "A" attached hereto and incorporated herein by
reference, and which is further amended by that certain AMENDMENT TO LEASE
(RESOURCE SUBLEASE), dated July ___, 1990 (hereinafter "Lease Amendment"), made
by Lessor and Lessee, which Lease Amendment is by this reference incorporated
herein and made a part hereof as fully and completely in all respects as though
the same were fully set forth herein.
The Lease Amendment and all of its terms, conditions and stipulations
shall extend to and be binding upon the heirs, executors, administrators,
successors and assigns of Lenders and the parties hereto.
IN WITNESS WHEREOF., the parties hereto have executed this Memorandum
of Amendment to Lease (Resource Sublease) as of the date and year first above
written.
LESSOR:
KAPOHO LAND PARTNERSHIP, a Hawaii
limited partnership
By: KAPOHO MANAGEMENT CO., INC., a
Hawaii corporation,
Its General Partner
By:__________________________________________
Its: President
By:__________________________________________
Its: Vice President
By:__________________________________________
Its: Secretary and Treasurer
-2-
LESSEE:
PUNA GEOTHERMAL VENTURE,
a Hawaii general partnership
By: AMOR VIII CORPORATION, a Delaware
corporation, general partner
By:____________________________________
Its:______________________________
By:____________________________________
Its:______________________________
By: AMOR VI CORPORATION, a Delaware
corporation, general partner
By:____________________________________
Its:______________________________
By:____________________________________
Its:______________________________
-3-
CITY AND COUNTY OF HONOLULU )
) SS.
STATE OF HAWAII )
On this__________________ day of___________________________,
1990, before me personally appeared ______________________and
________________________________________, to me known, who, being by me duly
sworn, did say that they are the______________________________________________
_________________________and________________________________________________,
respectively, of KAPOHO MANAGEMENT CO., INC., a Hawaii corporation, the General
Partner of KAPOHO LAND PARTNERSHIP, a Hawaii limited partnership; that the seal
affixed to the foregoing instrument is the corporate seal of said corporation;
that said instrument was signed and sealed on behalf of said corporation by
authority of its Board of Directors; and said officers acknowledged said
instrument to be the free act and deed of said corporation and said partnership.
_______________________________________
Notary Public, State of Hawaii
My commission expires:
STATE OF HAWAII )
) SS.
CITY AND COUNTY OF HONOLULU )
On this__________________ day of____________________________,
19____________, before me appeared____________________________________
and_____________________________, to me personally known, who, being by me duly
sworn, did say that they are the President and Secretary, respectively, of AMOR
VI CORPORATION, a Delaware corporation, one of the general partners of PUNA
GEOTHERMAL VENTURE, a Hawaii general partnership, that the seal affixed to the
foregoing instrument is the corporate seal of said corporation and that said
instrument was signed and sealed in behalf of said corporation by authority of
its Board of Directors and in behalf of said general partnership, and said
officers acknowledged said instrument to be the free act and deed of said
corporation and said general partnership.
____________________________________
Notary Public, State of Hawaii
My commission expires:_________
-0-
XXXXX XX XXXXXX )
) SS.
CITY AND COUNTY OF HONOLULU )
On this__________________ day of__________________________,
19___________, before me appeared_______________________________________
and___________________________, to me personally known, who, being by me duly
sworn, did say that they are the President and Secretary, respectively, of AMOR
VIII CORPORATION, a Delaware corporation, one of the general partners of PUNA
GEOTHERMAL VENTURE, a Hawaii general partnership, that the seal affixed to the
foregoing instrument is the corporate seal of said corporation and that said
instrument was signed and sealed in behalf of said corporation by authority of
its Board of Directors and in behalf of said general partnership, and said
officers acknowledged said instrument to be the free act and deed of said
corporation and said general partnership.
____________________________________
Notary Public, State of Hawaii
My commission expires:_________
-5-
EXHIBIT C
(Intentionally Left Blank)
SUBLEASE NO. TAX MAP KEY:
---------------- ----------------
POWER PLANT SUBLEASE
Table of Contents Page
----
1. DEMISE AND TERM ................................................... la
2. ANNUAL RENT ....................................................... 2
3. QUIET ENJOYMENT ................................................... 3
4. RENT .............................................................. 3
5. TAXES AND ASSESSMENTS ............................................. 4
6. ADDITIONAL RENT ................................................... 4
7. GENERAL EXCISE TAX ................................................ 5
8. RATES AND OTHER CHARGES ........................................... 5
9. COMPLIANCE WITH LAWS .............................................. 5
10. CONDITION OF PREMISES; GOVERNMENTAL APPROVAL ...................... 6
11. RESTORATION, REPAIR AND MAINTENANCE ............................... 6
12. INSPECTION ........................................................ 7
13. USE AND TYPE OF BUILDINGS ......................................... 7
14. CONSTRUCTION OF BUILDINGS ......................................... 7
15. LANDSCAPING ....................................................... 8
16. BONDS ............................................................. 8
17. SETBACK LINES ..................................................... 9
18. FIRE AND OTHER CASUALTY INSURANCE ................................. 9
19. INDEMNITY ......................................................... 10
20. EXPENSES OF LESSOR AND LESSEE ..................................... 10
i.
EXHIBIT D-1
22. LIABILITY INSURANCE ............................................... 11
23. ASSIGNMENT ........................................................ 12
24. SUBLETTING ........................................................ 13
25. AIR AND OTHER RIGHTS. ............................................. 13
26. PROTECTION OF MORTGAGEE ........................................... 13
27. ARBITRATION ....................................................... 19
28. ARCHAEOLOGICAL STUDIES ............................................ 21
29. CONDUCT OF OPERATIONS ............................................. 21
30. NONWAIVER ......................................................... 22
31. FORCE MAJEURE ..................................................... 23
32. DESTRUCTION OF FACILITIES ......................................... 24
33. SAVINGS CLAUSE .................................................... 24
34. NOTICE ............................................................ 24
35. APPLICABLE LAW .................................................... 26
36. CONDEMNATION ...................................................... 26
37. SURRENDER ......................................................... 28
38. NO TRANSFER OF RESOURCE ........................................... 29
39. DEFAULT AND DEFEASANCE ............................................ 29
40. AMENDMENTS; FURTHER DOCUMENTS ..................................... 29
41. JOINT AND SEVERAL LIABILITY ....................................... 30
42. DEFINITIONS ....................................................... 30
ii.
SUBLEASE NO. TAX MAP KEY:
----------------- ---------------------
POWER PLANT SUBLEASE
THIS SUBLEASE, made this 9th day of July, 1990, by and between KAPOHO
LAND PARTNERSHIP, a Hawaii limited partnership, whose business and post office
address is X.X. Xxx 000, Xxxx, Xxxxxx 00000 ("Lessor"), and PUNA GEOTHERMAL
VENTURE, a Hawaii general partnership, whose business and post office address is
000 Xxxxxx Xxxxxx, Xxxxx 0000-X, Xxxx, Xxxxxx 00000 ("Lessee").
WHEREAS, Lessor, as lessor therein, and Xxxxxxxxxx Corporation, a
Hawaii corporation, and Thermal Power Company, a California corporation,
collectively as lessee therein, had previously entered into that certain Lease
and Agreement dated March 1, 1981, a short form of which was recorded in the
Bureau of Conveyances of the State of Hawaii in Liber 16267, Page 466
("Resource Lease"), which provides for the development of Leased Substances (as
defined in the Resource Lease) from and under the land described in and covered
by the Resource Lease (said land being hereinafter called the "Leased Land");
and
WHEREAS, the Resource Lease is a sublease of the surface rights leased
to Lessor under that certain Surface Lease, dated February 18, 1981, a Short
Form of which, dated July 9, 1990, was recorded in the
Bureau as Document No. ____________, entered into between Kapoho Land
Development Company, Limited, as lessor, and Kapoho Land Partnership, as lessee,
which sublease was assigned to Lessee as of May 3, 1982 (as hereinafter referred
to); and
WHEREAS, pursuant to that certain Assignment of Lease and Agreement,
made effective May 3, 1982, and recorded in said Bureau in Liber 17122, Page 70,
Xxxxxxxxxx Corporation and Thermal Power Company assigned all of their right,
title and interest in the Resource Lease to Lessee, consent thereto by Lessor
being granted by letter consent, dated March 10, 1983; and
WHEREAS, the Resource Lease provides that a ground lease shall be
issued by Lessor to Lessee whenever a portion of the Leased Land is desired for
use by Lessee as a site for an electric power generating plant; and
WHEREAS, Lessor and Lessee have agreed to enter into this ground lease
("Lease") pursuant to the provisions of the Resource Lease, and in particular of
paragraph 8(p)(1)(c)(ii) thereof.
NOW, THEREFORE, this indenture WITNESSETH:
1. DEMISE AND TERM
Lessor hereby demises and leases, and Lessee hereby accepts and rents,
that certain parcel of real property, comprising a subdivided portion of the
Leased Land and consisting of approximately 13.709 acres, situate at Kapoho,
District of Puna, County and State of Hawaii, more particularly described in
Exhibit A and shown on Exhibit B attached hereto and made parts hereof
("premises"), subject to all reservations and rights of Lessor set forth in the
Resource Lease and reserving to Lessor and its licensees the nonexclusive right
to use and cross, the portion of the premises designed and intended for road and
access purposes, with the right to install utility lines, connecting roads and
driveways so long as the same do not unreasonably interfere with Lessee's use
and enjoyment of the premises.
Excepting and reserving therefrom all Leased Substances underlying the
premises and all rights under the Resource Lease, which shall remain vested at
all times in the lessor and lessee under the Resource Lease with the intent that
such Leased
1a.
Substances shall remain subject to the terms, covenants and conditions of the
Resource Lease.
TO HAVE AND TO HOLD the same, together with the rights, easements,
privileges and appurtenances thereunto belonging or appertaining, unto Lessee
for the term commencing from the 9th day of July, 1990, and ending the 28th of
February, 2046, and continuing thereafter for so long as said premises shall be
used, or shall be required to be demised, for the purposes set forth in
paragraph 13 of this lease; subject, however, to extension or earlier
termination as hereinafter provided, but in no event beyond the term provided in
paragraph 3 of the Resource Lease.
SUBJECT, HOWEVER, to the covenants, conditions, rights, rights-of-way,
easements and encumbrances now of record, and to unrecorded easements which have
been acquired by prescription, right-of-entry, custom and usage or otherwise for
public utilities, roads, highways, such reservation in favor of the State of
Hawaii of mineral and metallic mines as there may be, and any claims based on
native rights including roads and trails.
2. ANNUAL RENT
Lessee shall yield up and pay to Lessor for each and every year during
the continuance of this lease, in annual payments in advance on or before the
first day of each and every year, prorated as necessary, net over and above all
taxes, assessments and other charges hereunder payable by Lessee, annual rent as
follows:
A. $*** per annum for and during the first five years of said term;
B. For each successive five (5) year period of said term such annual
rent as shall be determined by written agreement of Lessor and Lessee or, if
they fail to reach such agreement at least ninety (90) days before the
commencement of such period, as shall be equal to the product of (1) a rate of
return comprising the higher of (a) eight and one-half percent (8 1/2%) or (b)
the then prevailing rate of return as charged under then new leases of
comparable real property for commercial/industrial use in the County of Hawaii
in which said demised premises is located, and (2) the then fair market value of
said demised premises based on commercial/industrial use, exclusive of any
improvements thereon and free and clear of all encumbrances, including but not
limited to this lease, the Resource Lease and all subleases and tenancies
hereunder, but excepting those encumbrances set forth in Exhibit A attached
hereto, which rate of return and fair market value shall be
*** Confidential material redacted and filed separately with the Commission.
2.
determined by agreement of the parties, or failing such agreement, by
arbitration as hereinafter provided in paragraph 27, provided that the
arbitrators shall be qualified real estate appraisers doing business in Hawaii,
but in no event shall the annual rent as so determined be less than the annual
rent for the last lease year preceding such period. Until such rent is
determined, Lessee shall pay on account thereof rent to Lessor in the same
amount and at the same time and manner as were payable for the last lease year
preceding the period in question, and Lessee shall within fifteen (15) days
after such determination pay to Lessor the amount of any increase in rent which
shall have accrued since the expiration of the preceding rental period;
provided, however, that if such rent shall have been determined by arbitration
but either party shall choose to dispute the amount thereof, whether by way of
court action or otherwise, and shall thereby delay the final determination of
such rent, Lessee shall pay to Lessor the rent as determined by arbitration (and
not the prior rent) at the same time and manner as herein provided for the
payment of rent and, upon the final determination of such rent, either (a)
Lessee shall pay to Lessor the amount of any increase in rent over the rent that
had been determined by arbitration which shall have accrued since the expiration
of the preceding rental period, together with interest thereon at the rate of
twelve percent (12%) per annum for the period from the date such rent had been
determined by arbitration to the date of such final determination, or (b) Lessor
shall pay to Lessee the amount of any decrease in rent under the rent which had
been determined by arbitration which shall have accrued since the expiration of
the preceding rental period and which shall have been paid to Lessor, together
with interest thereon at the rate of twelve percent (12%) per annum from the
date or dates of payment by Lessee to Lessor to the date of such final
determination; either such payment shall be made within fifteen (15) days after
the date of such final determination.
3. QUIET ENJOYMENT
Lessor hereby covenant with Lessee that upon payment by Lessee of the
rent as aforesaid and upon observance and performance of the covenants by Lessee
hereinafter contained, Lessee shall peaceably hold and enjoy said premises for
the term hereby demised without hindrance or interruption by Lessor or any other
person or persons lawfully claiming by, through or under it except as herein
expressly provided.
4. RENT
Lessee will pay said rent in lawful money of the United States of
America at the times and in the manner
3.
aforesaid, without deduction and without any notice or demand, at the office of
Lessor in Hilo, Hawaii.
5. TAXES AND ASSESSMENTS
Lessee will also pay to Lessor as additional rent, at least ten days
before the same become delinquent, all real property taxes and assessments of
every description to which said premises or any part thereof or improvement
thereon, or Lessor or Lessee in respect thereof, are now or may during said term
be assessed or become liable, whether assessed to or payable by Lessor or
Lessee; provided, however, that with respect to any assessment made under any
betterment or improvement law which may be payable in installments, Lessee shall
be required to pay only such installments of principal together with interest on
unpaid balances thereof as shall become due and payable during said term, and
that such taxes shall be prorated as of the dates of commencement and expiration
respectively of said term. If at any time during said term there shall be
assessed against said demised premises or any part thereof or any improvement
thereon or any rents payable to Lessor therefor or against Lessor in respect
thereof any new taxes (other than federal or state net income taxes or any other
taxes existing at the commencement of said term) which are in substitution for
real property taxes or are in lieu of increases thereof, Lessee will also pay to
Lessor as additional rent, at least ten days before the same become delinquent,
all such new taxes. Anything in this paragraph 5 to the contrary
notwithstanding, any payment of such taxes and assessments made under the
Resource Lessee shall be deemed to be a payment under this lease to the extent
that such payment would duplicate a payment otherwise due under this lease.
Lessee will also pay all conveyance taxes imposed by the State of Hawaii in
respect to this lease.
6. ADDITIONAL RENT
Lessee will also pay to Lessor, as additional rent and within ten (10)
days after the date of mailing or personal delivery of statements therefor, all
costs and expenses paid or incurred by Lessor and required to be paid by Lessee
under any provisions hereof. If Lessee shall become delinquent in the payment of
any annual rent, additional rent (which does not constitute interest), or other
payments required hereunder to be made by Lessee to Lessor, Lessee will also pay
to Lessor as additional rent interest thereon from the respective due dates
thereof until fully paid at the rate of twelve percent (12%) per year or such
higher rate as shall equal the maximum rate of interest then allowed by law.
4.
7. GENERAL EXCISE TAX
Lessee will pay to Lessor as additional rent, at the time and together
with each payment of annual rent, additional rent, or other charge required
hereunder to be made by Lessee to Lessor which is subject to the Hawaii general
excise tax on gross income or any successor or similar tax, an amount which,
when added to said annual rent, additional rent, or other charge (whether
actually or constructively received by Lessor), shall yield to Lessor, after
deduction of all such taxes payable by Lessor with respect thereto, a net amount
equal to that which Lessor would have realized therefrom had no such taxes been
imposed. Anything in this paragraph 7 to the contrary notwithstanding, any such
payment made under the Resource Lease shall be deemed to be a payment under this
lease to the extent any such payment would duplicate a payment otherwise due
under this lease.
8. RATES AND OTHER CHARGES
Lessee will pay directly before the same become delinquent all utility
charges, water and sewer rates, garbage rates and other charges and outgoing of
every description to which said premises or any part thereof or improvement
thereon, or Lessor or Lessee in respect thereof, may during said term be
assessed or become liable, whether assessed to or payable by Lessor or Lessee.
9. COMPLIANCE WITH LAWS
Lessee and Lessor each shall, at its own respective cost and expense,
promptly and properly observe, comply with and execute all present and future
orders, regulations, directions, rules, laws, ordinances and requirements of all
governmental agencies (including, but not limited to, State, Municipal, County
and Federal Governments and their departments, divisions, bureaus, boards, and
officials) and, if applicable, the Public Utilities Commission of the State of
Hawaii and similar organizations as the same may apply to each of Lessor and
Lessee. Lessee and Lessor shall each have the right to contest or review, by
legal procedures or in such other manner as each may deem suitable, at its own
respective expense, any order, regulation, direction, rule, law, ordinance or
requirement, and if able, may have the same cancelled, removed, revoked, or
modified, provided that Lessor is not, by Lessee's contest thereof, subject to
criminal prosecution and Lessor's title to said demised premises is not impaired
and Lessee indemnifies and holds Lessor harmless from and against any civil
liability as a result of such contest or review by Lessee. Any such proceeding
shall be conducted promptly and
5.
shall include, if the contesting party so decides, appropriate appeals. Whenever
the requirements become final after a contest, the party bound thereby shall
diligently comply with the same. Without limiting the generality of the
foregoing, Lessee will at its own expense during the whole of said term make,
build, maintain and repair all structures, facilities and improvements,
including without limitation sumps, fences, drains, roads, curbs, sidewalks and
parking areas which may be required by law to be made, built, maintained and
repaired upon or adjoining or in connection with or for the use of said premises
or any part thereof.
10. CONDITION OF PREMISES; GOVERNMENTAL APPROVAL
Lessee has examined and accepts said premises in the existing
condition thereof and shall be solely responsible for the adequate design,
construction and repair of all structures and improvements whatsoever now or
hereafter made thereon, and for obtaining all necessary utility services and
connections, and Lessee agrees that Lessor shall have no liability whatsoever
for such condition, or for the suitability or lack of suitability for the
purposes contemplated therefor, or any repair of any private roads serving said
premises except as expressly provided in paragraph 29 hereof. Lessee, at its
sole cost and expense, shall obtain all approvals and meet all governmental
requirements for or in connection with said premises or any improvement thereon
or use thereof, including but not limited to permits, zoning, classification,
consents, environmental statements and requirements, and other requirements.
11. RESTORATION, REPAIR AND MAINTENANCE
Lessee will at its own expense from time to time and at all times
during said term well and substantially restore, repair, maintain, amend, and
keep all buildings and other improvements now or hereafter built or made on said
demised premises with all necessary reparations and amendments whatsoever in
good and safe repair, order and condition, reasonable wear and tear and
destruction by unavoidable casualty not herein required to be insured against
excepted. Lessee will also at all times keep said premises together with all
adjacent land between any street boundary of said premises and the established
curb line in a strictly safe, clean, orderly and sanitary condition. Lessee will
cause periodic inspections to be made by qualified persons of such buildings and
other improvements for the purpose of ascertaining and curing infestation
thereof by termites, rodents and other pests, and thereafter take all measures
as may be required to prevent or cure any damage or destruction by such
infestation.
6.
12. INSPECTION
Lessee will permit Lessor and its agents at all reasonable times
during said term to enter said premises and examine the state of repair and
condition thereof, and will commence to repair and make good at its own expense
all defects required by the provisions of this lease to be repaired by Lessee of
which notice shall be given by Lessor or its agents within sixty (60) days after
the giving of such notice and will thereafter diligently prosecute the same to
completion. If for any reason Lessee shall fail to commence such repairs within
sixty (60) days after the giving of such notice and/or fail to complete the same
in diligent and workmanlike manner, Lessor may, but shall not be obligated to,
make or cause to be made such repairs and shall not be responsible to Lessee or
anyone claiming by, through or under it for any loss or damage to the occupancy,
business or property of any of them by reason thereof, and Lessee will pay to
Lessor on demand and as additional rent all costs and expenses paid or incurred
by Lessor in connection with such repairs.
13. USE AND TYPE OF BUILDINGS
Lessee will use said premises solely for the construction,
installation and operation of a geothermal electrical generating facility and
all related improvements, and will not at any time make or suffer any strip or
waste or unlawful, improper or offensive use of said premises. Lessee will at
its own expense, during the first three (3) years of said term grade said
demised premises to final grade and construct and complete thereon, in
accordance with the provisions of paragraph 14 hereof, the aforesaid facility
and all related improvements.
14. CONSTRUCTION OF BUILDINGS
Lessee will not construct or place any buildings or structures,
including fences and walls, or other improvements on said demised premises, nor
make or suffer any additions to or structural alterations of the basic structure
of any buildings thereon, nor change the grading or drainage thereof, except
under the supervision of a licensed architect or engineer and (except for
non-material modifications made during the course of construction) in accordance
with complete plans, specifications and detailed plot plants therefor prepared
by, or under the supervision of, such an architect or engineer and first
approved in writing by Lessor. Lessor shall act upon any request for approval
within thirty (30) days after its receipt thereof, and Lessor fails to act
within such thirty (30) day
7.
period, such request shall be deemed to have been approved. No such approval by
Lessor shall be deemed a warranty or other representation on its part that such
plans, specifications or detailed plot plans or the building or buildings or
other improvements therein described are legal, safe or sound.
15. LANDSCAPING
Lessee will at its own expense, within ninety (90) days after
completion of construction of any buildings and other improvements on said
demised premises, landscape said premises in accordance with plans prepared or
reviewed and approved by a professional landscape architect, and will at all
times during the remainder of said term at its own expense maintain such
landscaping of said premises and all adjacent land between any street boundary
of said premises and the established curb line in a safe, neat and attractive
condition. Except during period of construction, Lessee will to the extent
practicable screen from view from any public street, by means of fences, walls
or other landscaping approved by Lessor in writing, all equipment, materials and
supplies kept in open storage on said demised premises.
16. BONDS
Lessee will before commencing construction of any improvement on said
premises costing more than $50,000 deposit with Lessor (a) written evidence
satisfactory to Lessor that Lessee has or is entitled to sufficient funds
comprised of an unconditional loan commitment by a recognized lending
institution and/or evidence of a bank deposit in a total sum not less than an
amount equal to the total estimated cost thereof, or other proof satisfactory to
Lessor of Lessee's ability to complete the proposed improvements, together with
an executed copy of a construction loan agreement or other financing arrangement
acceptable to Lessor by and between Lessee and such institution or bank which
provides for the orderly disbursement of such funds ratably according to the
work completed less only a reasonable retainage, (b) a fully executed copy of
the contract therefor, and (c) copies of the contractor's performance bond and
labor and material payment bond, if Lessee contracts out such work, naming
Lessor as an additional obligee in an amount equal to the total estimated cost
thereof and in form and with surety satisfactory to Lessor, guaranteeing the
completion of such work free and clear of all mechanic's and materialmens' liens
by whomever claimed.
8.
17. SETBACK LINES
Lessee will observe any setback lines affecting said premises as now
or hereafter established by any governmental authority having jurisdiction, or
any other more restrictive setback lines as shown on the map hereto attached or
herein mentioned in the description of said premises, and will not erect, place
or maintain any building or structure whatsoever except approved fences or
walls, or maintain any hedge of a greater height than four (4) feet above the
ground level, between any street boundary of said premises and the setback line
along such boundary.
18. FIRE AND OTHER CASUALTY INSURANCE
Lessee will at its own expense at all times during said term keep all
buildings on said demised premises insured against loss or damage by fire with
extended coverage and an inflation guard endorsement in an insurance company
authorized to do business in Hawaii and in time of war against war damage to the
extent such governmental insurance is obtainable at reasonable cost, in an
amount as near as practicable to the full insurable value thereof (which amount
Lessee will review as to sufficiency at least annually and, if insufficient,
will increase), naming Lessor and any leasehold mortgagee as additional
insureds, as their interests may appear, payable in case of loss to such trust
company qualified under the laws of Hawaii and having its principal office in
Honolulu (unless Lessor, Lessee and any mortgagee shall otherwise agree) as
Lessee shall designate as trustee for the custody and disposition as herein
provided of all proceeds of such insurance and will pay all premiums on such
insurance when due and all fees and expenses of such trustee in connection with
its services, and will from time to time deposit promptly with Lessor current
certificates of such insurance and upon request therefor true copies of such
insurance policies. In every case of loss or damage to said buildings all
proceeds of such insurance (excluding the proceeds of any rental value or use
and occupancy insurance of Lessee) shall be used with all reasonable speed by
Lessee for rebuilding, repairing or otherwise reinstating the same buildings in
a good and substantial manner according to the original plan and elevation
thereof or such modified plan conforming to laws and regulations then in effect
as shall be first approved in writing by Lessor and any leasehold mortgagee, and
Lessee will make up from its own funds any deficiency in the insurance proceeds.
Lessee will, at its own expense, at all times during said term after completion
of any buildings on said demised premises, effect and maintain rent or business
interruption (use and occupancy) insurance against loss or damage by fire
9.
with extended coverage in respect to said premises in an insurance company
authorized to do business in Hawaii, in an amount equal to not less than one (1)
year's annual rent and real property taxes hereunder payable, in the joint names
of and payable in the case of loss to Lessor, Lessee and any leasehold
mortgagee, as their interests may appear, and Lessee will from time to time
deposit promptly with Lessor current certificates of such insurance and upon
request therefor true copies of such insurance policies. Lessee will at its own
expense effect and maintain such other casualty insurance with respect to said
premises or said rent as Lessor may from time to time require with due regard to
prevailing prudent business practice as reasonably adequate for Lessor's
protection.
19. INDEMNITY
Lessee will indemnify and hold Lessor harmless from and against all
claims and demands for loss or damage, including property damage, personal
injury and wrongful death, arising out of or in connection with the use or
occupancy of said premises by Lessee or any other person under Lessee, or any
accident or fire on said premises or any nuisance made or suffered thereon, or
any failure by Lessee to keep said premises or any adjacent sidewalks in a safe
condition, and will reimburse Lessor for all their costs and expenses including
reasonable attorneys' fees incurred in connection with the defense of any such
claims, and will hold all goods, materials, furniture, fixtures, equipment,
machinery and other property whatsoever on said premises at the sole risk of
Lessee and save Lessor harmless from any loss or damage thereto by any cause
whatsoever.
20. EXPENSES OF LESSOR AND LESSEE
Except as otherwise expressly provided in this lease, Lessee will pay
to Lessor, within ten (10) days after the date of mailing or personal delivery
of statements therefor, (a) all costs and expenses including reasonable
attorneys' fees paid or incurred by Lessor but required to be paid by Lessee
under any covenant herein contained or paid or incurred by Lessor in enforcing
any of Lessee's covenants herein contained, in protecting itself (Lessor)
against any breach thereof, in remedying any breach thereof, in recovering
possession of said premises or any part thereof, in collecting or causing to be
paid any delinquent rent, taxes or other charges hereunder payable by Lessee, or
in connection with any litigation (other than condemnation proceedings)
commenced by or against Lessee to which Lessor shall without fault be made a
party, and (b) a reasonable fee for reviewing and processing any request by
Lessee for Lessor's consent or approval, which fee shall be a
10.
flat-rate service charge as established by the policy of Lessor then in effect
or a sum equal to all costs and expenses paid or incurred by Lessor, including
without limitation reasonable fees of attorneys and other consultants retained
by Lessor and the costs of Lessor's regular salaried staff in connection
therewith, whichever is greater. All such costs, expenses and fees shall
constitute additional rent and shall bear interest as provided in paragraph 6
hereof.
Except as otherwise expressly provided in this lease, Lessor will pay
to Lessee within ten (10) days after the date of mailing or personal delivery of
statements therefor, all costs and expenses including reasonable attorneys' fees
paid or incurred by Lessee but required to be paid by Lessor under any covenant
herein contained or paid or incurred by Lessee in enforcing any of Lessor's
covenants herein contained, in protecting itself (Lessee) against any breach
thereof, in remedying any breach thereof, in collecting or causing to be paid
any delinquent charges hereunder payable by Lessor, or in connection with any
litigation (other than condemnation proceedings) commenced by or against Lessor
to which Lessee shall without fault be made a party. All such costs and expenses
shall bear interest at the same rate as provided in paragraph 6 hereof.
21. LIENS
Lessee will not commit or suffer any act or neglect whereby said
premises or any improvement thereon or the estate of Lessee therein shall at any
time during said term become subject to any attachment, judgment, lien, charge
or encumbrance whatsoever, except as herein expressly provided, and will
indemnify and hold Lessor harmless from and against all loss, cost and expense
with respect thereto. Lessee will not incur any cost or expense in excess of
$50,000 in respect of said premises, including without limitation contractors',
materialmen's, architects' and engineers' charges, which, if unpaid, would give
rise to a lien against said premises or any improvement thereon, or the estate
of Lessee or Lessor therein, until Lessee has given to Lessor written evidence
satisfactory to Lessor that Lessee has or is entitled to sufficient funds to pay
such costs or expenses in full.
22. LIABILITY INSURANCE
Lessee will at its own expense effect and maintain during the whole of
said term comprehensive general liability insurance with respect to said
premises, under policies naming Lessor as an additional insured in an insurance
company authorized to do business in Hawaii with minimum limits of not
11.
less than $3,000,000 or such higher limits as Lessor may from time to time
establish, with due regard to prevailing prudent business practice as reasonably
adequate for its protection, and will from time to time deposit with Lessor
current certificates of such insurance and upon request therefor true copies of
such insurance policies.
23. ASSIGNMENT
Lessee will not without the prior written consent of Lessor, except as
expressly provided in paragraph 25 hereof, assign or mortgage this lease, it
being understood that Lessor will not consent to any assignment of this lease
except by way of mortgage prior to completion of all buildings and other
improvements hereinbefore required to be constructed, if any, nor to any such
assignment by way of mortgage if the amount thereby secured exceeds the fair
market value of this lease and all buildings and other improvements built on the
land hereby demised or to be built and paid for with the proceeds of such
mortgage; provided, however, that Lessor shall not require the payment of any
moneys or other consideration for the giving of such consent other than a
reasonable fee as hereinbefore provided in paragraph 20; provided, further, that
if an assignment of this lease is part of a transaction which includes an
assignment of the Resource Lease, the provisions of paragraph 20, entitled
"Assignment", of the Resource Lease shall be applicable to such an assignment of
this lease and, for such purpose, the provisions of said paragraph 20 of the
Resource Lease are hereby incorporated herein by reference to the same force and
effect as if the same had been set forth herein in full.
If Lessee is a corporation, partnership or trust, the term
"assignment" herein shall include one or more sales or transfers by operation of
law or otherwise by which an aggregate of more than 50% of the total capital
stock of a corporate lessee or of the total partnership interests of a
partnership lessee or of the total beneficial interests of a trust lessee shall
become vested in one or more individuals, firms or corporations who or which are
not stockholders, partners or beneficiaries thereof, either legally or
equitably, as of the date of this lease or of Lessee's subsequent acquisition of
this lease by assignment, it being understood that ownership of such capital
stock, partnership interests and beneficial interests shall be determined in
accordance with the principles enunciated in Section 544 of the Internal Revenue
Code of 1986; provided, however, that the foregoing definition shall not apply
with respect to a corporate lessee whose capital stock is listed on a recognized
stock exchange.
12.
24. SUBLETTING
Lessee will not without the prior written consent of Lessor rent,
sublet or part with possession of said demised premises or any part thereof and,
prior to granting such approval for subletting said premises only, Lessor shall
have the right to review and approve the proposed subrent and to revise the rent
herein reserved (which shall in no event be reduced) on the basis of such
proposed subrent, the increase in the amount of rent hereunder payable on
account of such subletting to be not less than one-half of the amount by which
such subrent for land exceeds that portion of the rent herein reserved for the
same rental period fairly allocable to the sublet land; provided, however, that
Lessee may without such consent and payment of additional rent sublet space in
any buildings on said demised premises so long as the purpose of such sublease
is not the avoidance of the provisions of this paragraph.
25. AIR AND OTHER RIGHTS
Lessee will not at any time during said term sublet, assign, surrender
or otherwise transfer any air rights or other rights whatsoever on, over, under
or in respect to said land, other than easements for drains, sewers, water,
electricity or other utilities with the approval in writing of Lessor.
26. PROTECTION OF MORTGAGEE
(a) Lessee shall have the right at all times during the term hereof,
with the consent of Lessor, which consent shall not be unreasonably withheld, to
obtain bonafide loans (including through special purpose revenue bonds) from a
recognized lending or financial institution (including insurance companies), the
Federal government, the State of Hawaii and/or the County of Hawaii, and to
secure such loans by encumbering the leasehold estate created by this lease by
one or more mortgages, deeds of trust or other security instruments, including,
without limitation, assignments of the rents, issues and profits from the Leased
Land or any portion thereof; provided, however, that the proceeds of such loans
are to be used for the design, planning, purchase, construction, maintenance and
operation of the power plant and other related equipment, personal property,
fixtures and improvements necessary or desirable in the operation of a
geothermal power plant.
(b) As used herein, "Leasehold Mortgage" shall mean any permitted
mortgage, deed of trust or other security
13.
instrument, including, without limitation, an assignment of the rents, issues
and profits from said premises, which constitutes a lien on all or any portion
of the leasehold estate created by the lease. "Leasehold Lender" shall mean an
owner and holder of a Leasehold Mortgage.
(c) Lessor's obligations under this paragraph 26 to transmit notices
to obtain consents from and accept performance by Leasehold Lender shall be
subject to Lessor's receipt of written notice from Leasehold Lender setting
forth its name and address and enclosing a copy of the Leasehold Mortgage
recorded in its favor.
(d) During the continuance of each and every Leasehold Mortgage and
until such time as the lien of each and every Leasehold Mortgage has been
extinguished:
(1) Lessor shall not agree to any mutual termination nor accept
any surrender or relinquishment of this lease, it being expressly
acknowledged and agreed by Lessor that any such termination or purported
termination or surrender shall be of no force and effect whatsoever in the
absence of an express written consent thereto by Leasehold Lender under the
Leasehold Mortgage then in existence, and Lessor shall not consent to any
amendment or modification of this lease, without the prior written consent
of Leasehold Lender.
(2) Notwithstanding any default by Lessee in the performance or
observance of any agreement, covenant or condition of this lease on the
part of Lessee to be performed or observed, Lessor shall have no right to
terminate this lease or exercise any other rights set forth herein or
arising under applicable law in the context of a default by Lessee, unless
an event of default shall have occurred and be continuing, Lessor shall
have given Leasehold Lender written notice of such event of default
certifying that the Lessee has not cured or commenced to cure such default
prior to expiration of the applicable cure period set forth in the lease,
and Leasehold Lender shall have failed to remedy such default or acquire
Lessee's leasehold estate created hereby or commence foreclosure or other
appropriate proceedings in the nature thereof, all as set forth in, and
within the time specified by, this paragraph 26.
(3) Leasehold Lender shall have the right, but not the
obligation, at any time prior to termination of this lease, to pay all of
the rents due hereunder, to effect any insurance, to pay any taxes and
assessments, to
14.
make any repairs and complete or install any improvements, to do any other
act or thing required of Lessee hereunder, and to do any act or thing which
may be necessary and proper to be done in the performance and observance of
the agreements, covenants and conditions hereof to prevent termination of
this lease. All payments so made and all things so done and performed by
Leasehold Lender shall be as effective to prevent a termination of this
lease as the same would have been if made, done and performed by Lessee
instead of by Leasehold Lender.
(4) Should any event of default under this lease occur, Leasehold
Lender shall have sixty (60) days after receipt of notice from Lessor
setting forth in particular the nature of such event of default and
certifying that Lessee has not cured or commenced to cure such default
prior to expiration of the applicable cure period set forth in the lease,
and, if the default is such that possession of said premises may be
reasonably necessary to remedy the default, a reasonable time after the
expiration of such sixty (60) day period within which to remedy such
default, provided that (i) Leasehold Lender shall have fully cured any
default in the payment of any monetary obligations of Lessee under this
lease within such sixty (60) day period and shall continue to pay currently
such monetary obligations as and when the same are due and (ii) Leasehold
Lender shall have acquired Lessee's leasehold estate created hereby or
shall have commenced foreclosure or other appropriate proceedings in the
nature thereof within such period, or prior thereto, and is diligently
prosecuting any such proceedings. All right of Lessor to terminate this
lease as a result of the occurrence of any such event of default shall be
subject to, and conditioned upon, Lessor having first given Leasehold
Lender written notice of such default and opportunity to cure after the
expiration of Lessee's cure period, if any, contained in the lease, and
Leasehold Lender having failed to remedy such event of default or acquire
Lessee's leasehold estate created hereby or commence foreclosure or other
appropriate proceedings in the nature thereof as set forth in and within
the time specified by this paragraph 26(d)(4).
(5) Any event of default under this lease which in the nature
thereof cannot be remedied by Leasehold Lender shall be deemed to be
remedied if (i) within sixty (60) days after receiving written notice from
Lessor (such notice to be given by Lessor after the expiration of Lessee's
cure period, if any, contained in this lease) setting forth the nature of
such event of
15.
default and certifying that Lessee has not cured or commenced to cure such
default prior to expiration of the applicable cure periods pursuant to the
lease, or prior thereto, Leasehold Lender shall have acquired Lessee's
leasehold estate created hereby or shall have commenced foreclosure or
other appropriate proceedings in the nature thereof, (ii) Leasehold Lender
shall diligently prosecute any such proceedings to completion, and (iii)
Leasehold Lender shall have fully cured any default in the payment of any
monetary obligations of Lessee hereunder which do not require possession of
said premises within such sixty (60) day period and shall thereafter
continue to faithfully perform all such monetary obligations which do not
require possession of said premises, and (iv) after gaining possession of
said premises, Leasehold Lender performs all other obligations of Lessee
hereunder (excepting however the cure or remedy of such event or events of
defaults which in the nature thereof cannot be remedied by Leasehold
Lender) as and when the same are due.
(6) If Leasehold Lender despite diligent and prudent efforts is
prohibited by any process or injunction issued by any court or by reason of
applicable law or any action by any court having jurisdiction of any
bankruptcy, reorganization, receivership or insolvency proceeding involving
Lessee from commencing or prosecuting foreclosure or other appropriate
proceedings in the nature thereof, the times specified in paragraphs
26(d)(4) or (5) above for commencing or prosecuting such foreclosure or
other proceedings shall be extended for the period of such prohibition;
provided that Leasehold Lender shall have fully cured any default in the
payment of any monetary obligations of Lessee under this lease and shall
continue to pay currently such monetary obligations as and when the same
fall due.
(7) Lessor shall mail or deliver to Leasehold Lender a copy of
any and all notices which Lessor may from time to time give to or serve
upon Lessee pursuant to the provisions of this lease. No notice by Lessor
to Lessee hereunder shall be deemed to have been given unless and until a
copy thereof shall have been mailed or delivered to Leasehold Lender as
herein set forth.
(8) Notwithstanding anything to the contrary contained herein,
foreclosure of a Leasehold Mortgage, or any sale thereunder, whether by
judicial proceedings or by virtue of any power of sale contained in the
Leasehold Mortgage, or any conveyance of the leasehold estate
16.
created hereby from Lessee to Leasehold Lender through, or in lieu of
foreclosure or other appropriate proceedings in the nature thereof, shall
not require the consent or approval of Lessor or constitute a breach of any
provision of or a default under this lease, or entitle the Lessor to any
additional compensation, rental or royalty, and upon such foreclosure, sale
or conveyance Lessor shall recognize Leasehold Lender, or any other
foreclosure sale purchaser or any other transferee in lieu of foreclosure
(collectively "Purchaser"), as Lessee hereunder. If Leasehold Lender
becomes Lessee under this lease or any new lease obtained pursuant to
paragraph 26(d)(9) below, or if the leasehold estate hereunder is purchased
by Leasehold Lender, Leasehold Lender shall be personally liable for the
obligations of Lessee under this lease or such new lease only for the
period of time that Leasehold Lender remains lessee thereunder, and
Leasehold Lender's right to sell, transfer or assign this lease or such new
lease shall not be subject to any restriction whatsoever. Notwithstanding
the foregoing, in the event Leasehold Lender proposes to sell, transfer or
assign this lease or such new lease, and should Lessor in such case
reasonably believe in good faith that the Leasehold Lender's proposed
purchaser or assignee is not sufficiently qualified, experienced or
financially able to undertake the obligations and responsibilities of
Lessee hereunder, then Lessor shall be entitled to propose, for the
Leasehold Lender's consideration only, one or more alternative purchasers
or assignees who (i) are as well or better qualified financially as Lessee
was at the commencement of this lease, and (ii) have the technical
expertise and experience as a geothermal developer to undertake the
obligations and responsibilities of Lessor hereunder. Following such
proposal by Lessor, the Leasehold Lender shall consider in good faith
substituting such alternative purchasers or assignees in lieu of its
proposed purchaser or assignee, provided, however, that the Leasehold
Lender shall in no event be obligated to accept or otherwise substitute
such alternative purchasers or assignees in lieu of its own or another
proposed purchaser or assignee, and shall be allowed to complete any such
sale, transfer or assignment without delay to any purchaser or assignee
selected in the Leasehold Lender's sole and absolute discretion. If
Leasehold Lender subsequently assigns or transfers its interest under this
lease to a Purchaser after acquiring the same by foreclosure or deed in
lieu of foreclosure or subsequently assigns or transfers its interest under
any new lease obtained pursuant to paragraph 26(d)(9) below, and in
connection with any such assignment or transfer Leasehold Lender takes
back a
17.
mortgage or deed of trust encumbering such leasehold interest to secure a
portion of the purchase price given to Leasehold Lender for such assignment
or transfer, then such mortgage or deed of trust shall be considered a
Leasehold Mortgage as contemplated under this paragraph 26 and Leasehold
Lender shall be entitled to receive the benefit of and enforce the
provisions of this paragraph 26 hereof and any other provisions of this
lease intended for the benefit of the holder of a Leasehold Mortgage.
(9) Should this lease be terminated by Lessee as a result of any
rejection or termination by a trustee acting on behalf of Lessee or by
action of Lessor, or as a result of any rejection or termination by a
trustee acting on behalf of Lessor, or otherwise, including, without
limitation, a rejection or termination of such grant of easements in any
case or proceeding under the Bankruptcy Code or any successor statute
thereto, any other bankruptcy or insolvency law, any law involving the
appointment of a receiver, custodian or other official for such entity, any
law for the winding up of corporations or other entities, and any law
otherwise involving the liquidation or rehabilitation of entities for
financial or other reasons (hereinafter referred to as a "Bankruptcy Case
or Supervised Proceeding"), Lessor shall, within thirty (30) days after
receipt by Lessor of written request by Leasehold Lender given within sixty
(60) days after receipt by Leasehold Lender of notice of such termination,
execute and deliver a new lease of said premises, to be prepared by
Leasehold Lender and reviewed by Lessor and Lessor's counsel at Leasehold
Lender's sole cost and expense, to Leasehold Lender or its nominee,
purchaser, assignee or transferee, for the remainder of the term of this
lease with the same agreements, covenants and conditions (except for any
requirements which have been fulfilled by Lessee prior to termination) as
are contained herein and with priority equal to that hereof to the extent
such priority is within Lessor's control; provided, however, that Leasehold
Lender shall promptly cure any defaults of Lessee susceptible to cure by
Leasehold Lender within thirty (30) days following the execution and
delivery of a new lease of the Leased Land pursuant to this paragraph
26(d)(9).
(10) Lessor and Lessee shall cooperate in including in this lease
by suitable amendment or other instrument, from time to time, any
provision which may be reasonably requested by Leasehold Lender for the
purpose of implementing the mortgagee protection provisions contained in
this lease and allowing Leasehold Lender
18.
reasonable means to protect or preserve the lien of the Leasehold Mortgage
on the occurrence of a default under the terms of this lease or
termination or rejection in any Bankruptcy Case or Supervised Proceeding.
Lessor and Lessee each agree to execute, deliver and acknowledge any
agreement necessary to effect any such amendment or other instrument;
provided, however, that Lessor shall have no obligation to execute such
amendment or other instrument which in any way affects the term hereof, or
rent or royalties payable under this lease or otherwise in Lessor's
reasonable opinion materially adversely affects any rights of Lessor under
this lease.
(11) There shall be no merger of this lease, of any interest in
this lease, or of the leasehold estate created thereby with the fee estate
in said premises or any other leasehold estate in said premises, for any
reason including but not limited to a merger by reason of the fact that
this lease or such interest therein or such estate may be directly or
indirectly held by or for the account of any person who shall hold the fee
estate in said premises or any other estate in said premises, nor shall
there be such a merger by reason of the fact that all or any part of the
estate created hereby may be conveyed or mortgaged in a Leasehold Mortgage
to a Leasehold Lender who shall hold the fee estate in said premises or
any other estate in said premises.
27. ARBITRATION
In the event of a dispute or controversy between the parties
concerning any provision of this lease, such dispute or controversy shall be
submitted to arbitration pursuant to the following procedure:
(a) Either party may demand arbitration by giving written notice of
same to the other party.
(b) In the event the parties can agree on the appointment of a single
arbitrator within fifteen (15) days after the giving of the notice required by
subparagraph (a) next above, then the dispute shall be determined by a single
arbitrator.
(c) In the event the parties hereto cannot mutually agree on a single
arbitrator within the time period set forth in subparagraph (b) next above, the
dispute shall be determined by three (3) arbitrators, and each party shall
within thirty (30) days after the giving of the notice required by subparagraph
(a) next above, appoint its arbitrator and notify
19.
the other party thereof, and if a party should fail to name an arbitrator within
said 30-day period, then the other party may apply to a judge of the Circuit
Court of the First Circuit, State of Hawaii, requesting that such judge appoint
a second arbitrator and the two arbitrators who have been so appointed shall
appoint a third arbitrator and shall give notice of said appointment to the
parties hereto; provided, however, if the two arbitrators appointed by the
parties fail to appoint a third arbitrator within fifteen (15) days after the
appointment of the second arbitrator, either party may apply to said judge
requesting him to appoint a third arbitrator.
(d) The parties shall have the right to use all of the methods of
discovery set forth in the Hawaii Rules of Civil Procedure, as amended from time
to time, and the arbitrator(s) shall have all the powers and authority of a
Circuit Court judge under said rules including, without limitation, the power to
grant relief, make appropriate orders, assess costs and attorneys' fees, and the
power to impose other sanctions against a party. Said rules on discovery, as
amended from time to time, are hereby incorporated in this lease. In addition,
the arbitrator(s) shall have the power to shorten time periods so as to expedite
the arbitration proceedings.
(e) The arbitration proceedings shall be heard in Honolulu, Hawaii.
The arbitration hearings shall be concluded within thirty (30) days of the
appointment of the single arbitrator or of the appointment of the third
arbitrator, unless otherwise ordered by the arbitrator(s), and the award thereon
shall be made within thirty (30) days after the close of the submission of
evidence.
(f) The fees of a single arbitrator shall be borne equally by the
parties. In the event of three arbitrators, each party shall pay the fees of the
arbitrator appointed by it and the fees of the third arbitrator shall be borne
equally by the parties. All other costs and expenses incurred by the arbitrators
shall be borne equally by the parties. Except for the foregoing, each party
shall bear its own arbitration costs and expenses.
(g) The award may include costs and attorney's fees to the prevailing
party. Subject to Chapter 658, Hawaii Revised Statutes, the award rendered by
the single arbitrator or by a majority of the arbitrators, as the case shall be,
shall be final and binding on all parties to the proceedings and judgment on
such award may be entered by either party in the Circuit Court of the First
Circuit, State of Hawaii.
20.
(h) The parties agree that the provisions hereof shall be a complete
defense to any suit, action or proceeding instituted in any court or before any
administrative tribunal with respect to any dispute or controversy within the
scope of the provisions of this paragraph.
(i) Nothing herein contained shall be deemed to give the arbitrators
any authority, power or right to alter, change, amend or modify any of the
provisions of this lease and agreement, except as to the specific issues and
matters that may be altered, changed, amended or modified by arbitration
pursuant to the provisions of this lease.
28. ARCHAEOLOGICAL STUDIES
Except insofar as the same shall have been performed under the
Resource Lease, Lessee will cause to be performed at its expense, prior to
commencement of any work on said demised premises, archaeological studies by the
Xxxxxx Museum Staff, and will set aside and not disturb all sites determined to
have significant archaeological value. Lessor hereby excepts and reserves from
this demise all objects of historical interest and all antiquities including all
specimens of Hawaiian or other ancient art or handicraft which may be on said
demised premises. Lessee will, forthwith after the finding or discovery of
same, deliver up to Lessor all such objects and antiquities.
29. CONDUCT OF OPERATIONS
(a) Lessee will conduct its operations in a manner that will not
unreasonably interfere with the enjoyment of the Leased Land by persons residing
thereon, or of adjacent land owners. Noise levels occurring in Lessee's normal
operations will not exceed those established by appropriate governmental
authority, Lessee using due diligence to comply therewith.
(b) Lessee shall take such steps at Lessee's own expense as are
reasonably necessary to insure that its roads and other operation areas will be
kept as dust free as is reasonably practicable and in any event so that dust
will not decrease the market value of adjacent growing crops.
(c) Lessee agrees to fence all sump holes and excavations and all
other improvements, works, or structures which might unreasonably interfere with
or be detrimental to the activities of Lessor or its tenants, and to build sumps
and to take all reasonable measures to prevent pollution of surface or
subsurface waters on or in the Leased Land.
21.
(d) If a buffer zone has been included within said premises and
despite the setting aside of such buffer zone and in the course of Lessee's
activities on said premises it becomes necessary for Lessors' tenants to apply
agricultural chemicals on adjacent lands which are toxic in nature or the use of
which is restricted but necessary for the continued production of crops in
connection with Lessors' tenants' farming activities on such adjacent lands, and
Lessor's tenants, its agents or independent contractors are unable to make a
required application of agricultural chemicals because of Lessee's presence, or
because of the presence of Lessee's personnel, then notice shall be given to
Lessee's supervisory personnel in the field as soon as it is reasonably possible
to do so, including in such notice the approximate time when and the place where
such application will be made, and Lessee will cooperate with Lessor's tenants
in scheduling their respective activities in order to permit such application to
be made.
(e) In the event any buildings or personal property shall be destroyed
or required to be removed or crops shall be damaged or destroyed because of
Lessee's operations on said premises, then Lessee shall be liable for all
damages occasioned thereby. Lessee in its operations on said premises shall at
all times have due and proper regard for the rights and convenience, and the
health, welfare and safety of Lessor and all of tenants and persons lawfully
occupying the Leased Land.
(f) Lessee will use existing roads where such are available and
practical for its operations. All roads, bridges and culverts used by Lessee
will be maintained by it and roads surfaced or treated in a manner that will
prevent dust from unreasonably interfering with agricultural or residential use
of the Leased Land. Lessee shall be responsible for the reasonable maintenance
of the roads and reasonable repair of damages caused to roads used by Lessee.
Lessor and its licensees shall have reasonable use of roads constructed by
Lessee but shall be responsible for the reasonable repair of any unusual damage
caused to such roads by their use. In constructing roads, Lessee shall install
necessary culverts or bridges so as not to interfere with the irrigation or
drainage of the Leased Land.
30. NONWAIVER
The use of paragraph headings in this lease is for the purpose of
convenience and the same may be disregarded in the construction of this lease.
Time is hereby expressly declared to be of the essence of this lease and of each
and every provision hereof. The waiver by Lessor of any breach by
22.
Lessee of any provision hereof shall not be deemed a waiver of such provision or
a waiver of any other prior or subsequent breach thereof or a waiver of any
breach of any other provision of this lease. Neither the acceptance of rent
after notice or knowledge of a breach of any provision hereof nor any other
action of Lessor hereunder, except an express waiver in writing, shall be
deemed a waiver by Lessors of any breach of any provision hereof by Lessee.
31. FORCE MAJEURE
Any obligation of Lessee hereunder shall be suspended, while Lessee is
prevented from complying therewith, in whole or in some material part, by a
situation or condition beyond the control of Lessee (including but not limited
to acts of God, strikes, lockouts, riots, inability to secure labor or materials
in the open market, action of the elements, earthquakes, volcanic eruptions,
laws, rules or regulations of any Federal, State, Municipal or other
governmental agency, authority or representative having jurisdiction, litigation
or administrative proceedings) which occurs and continues to exist despite
Lessee's timely, diligent and good faith efforts to rectify such situation or
condition. If Lessee is prevented from performing an obligation under this lease
by reason of force majeure and by reason thereof Lessee is unable to perform
some obligation which is a pre-requisite to or condition of the continuance of
the term of this grant of easements, then the term shall be likewise extended,
but not beyond the term provided in paragraph 3 of the Resource Lease and, if
applicable, the State Lease. To qualify for a suspension of such obligation,
Lessee must notify Lessor within ninety (90) days after the occurrence of the
condition of force majeure to the extent it is known or should have been known
to a reasonable person and must give Lessor the full particulars of the delay or
failure to act on the part of Lessee that is caused by reasons of force majeure.
In addition, Lessee must take diligent, affirmative action to remedy the delay
or failure to act with all reasonable dispatch, but shall not be required to
settle any labor disputes upon terms which Lessee shall find unacceptable, and
within thirty (30) days of the day that the aforementioned situation or
condition is cured, Lessee shall give Lessor written notice of such curative
action. Notwithstanding the foregoing, Lessee will comply with the provisions;
of this lease which Lessee is not prevented from performing including but not
limited to the payment of annual rent (as the same may be reduced as provided in
paragraph 32 hereof) provided for in this lease.
23.
32. DESTRUCTION OF FACILITIES
If at any time or times during said term, the equipment, buildings or
other improvements on the demised premises are so damaged or the level of use of
Leased Substances ceases or is diminished by reason of lava flows, volcanic
disturbances, eruptions, or seismic actions so as to interrupt the level of use
of Leased Substances, the annual rent payable hereunder shall be reduced
(calculated to the nearest dollar) in the proportion which the sustained level
of use after such event bears to the sustained level of use before such event.
Such proportion shall be determined by mutual agreement of the parties hereto
or, in the event the parties hereto shall fail to reach agreement within sixty
(60) days after such event, the matter shall be determined by arbitration as
provided in paragraph 27 hereof. As the level of use of Leased Substances
increases, the annual rent shall be proportionately increased until such rent
reaches the level which would otherwise be payable but for such interruption.
33. SAVINGS CLAUSE
In the event any part or portion or provision of this lease shall be
found or declared to be null, void or unenforceable for any reason whatsoever by
any court of competent jurisdiction or any governmental agency having
authority thereover (and such determination shall be upheld on appeal, if an
appeal is sought), then and in such event only such part, portion or provision
shall be affected thereby, and such finding, ruling or decision shall not in any
way affect the remainder of this lease or any of the other terms or conditions
hereof, which said remaining terms and conditions shall remain binding, valid
and subsisting and in full force and effect between the parties hereto, it being
specifically understood and agreed that the provisions hereof are severable for
the purposes of the provisions of this paragraph.
34. NOTICE
All notices, demands, requests, consents, directions and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been given (i) upon receipt, (ii) when transmitted by telex to
the number specified below and the proper answerback is received, or (iii) five
(5) Banking Days after being deposited in a regularly maintained receptacle for
the United States Postal Service, postage prepaid, registered or certified,
return receipt requested, addressed to the respective party, as the case may be,
at the following address, or such other address as any party may from
24.
time to time designate by written notice to the others as herein required. The
telecopy (facsimile) numbers provided below are for convenience of the parties
only. Transmission by telecopy shall constitute provision of notice under this
lease only if receipt thereof is acknowledged by the recipient.
A "Banking Day" is defined as one day that is not a Saturday, Sunday
or a local holiday in the State of Hawaii or a day on which banking institutions
chartered by the State of Hawaii or the United States and located in the State
of Hawaii are legally required or authorized to close.
If to Lessor: Kapoho Land Partnership
P. X. Xxx 000
Xxxx, Xxxxxx 00000
with a copy to: Xxxxxx Xxxx Xxxxx
P. O. Xxx 0000
Xxxx, Xxxxxx 00000
If to Lessee: Puna Geothermal Venture
000 Xxxxxx Xxxxxx
Xxxxx 0000-X
Xxxx, Xxxxxx 00000
Attention: Regional Development
Manager
Telecopy: (000) 000-0000
with copies to: Ormat Energy Systems, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000-0000
Attention: President
Telecopy: (000) 000-0000
Xxxxxxx Coie
0000 Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Anything in this lease to the contrary notwithstanding, since Lessee
is by the terms hereof obligated to perform in Lessor's behalf all of Lessor's
obligations under the State Lease and since Lessee has no direct contractual
relationship with the State, Lessor hereby covenants and agrees that it will
promptly provide to Lessee a copy of any written notice or other written
communication received from the State.
25.
which relates to the obligations under the State Lease and, until and unless the
State formally substitutes Lessee hereunder for Lessor, in so far as notices are
concerned under the State Lease, Lessor will hold Lessee harmless from any
damages Lessee may suffer by reason of Lessor's failure to so provide Lessee
with a copy of any notice from the State within sufficient time to allow Lessee
to take such action as is required by such notice. Lessee agrees promptly to
provide Lessor with a copy of any such written notice or other written
communication which it receives directly from the State under the State Lease
and will hold Lessor harmless from any damages Lessor may suffer by reason of
Lessee's failure to so provide Lessor with a copy of any such notice or
communication from the State within sufficient time to allow Lessor to take such
action as is required by such notice.
35. APPLICABLE LAW
This lease shall be deemed to have been made and shall be construed
and interpreted in accordance with the laws of the State of Hawaii.
36. CONDEMNATION
(a) Lessee Notice, Etc. In case of a transfer of all or any part
of the demised premises or any leasehold or other interest therein or right
accruing thereto, as the result of condemnation or eminent domain
("Taking") or the commencement of any proceedings or negotiations which
might result in such Taking, Lessee will promptly give written notice
thereof to Lessor generally describing the nature and extent of such Taking
or the nature of such proceedings and negotiations and the nature and
extent of the Taking which might result therefrom, as the case may be.
Lessor and Lessee may thereafter each file and prosecute their respective
claims for an award in the appropriate court having jurisdiction over such
matter.
(b) Total Taking. In case of a Taking of the total interests of
Lessor and Lessee under this lease, this lease shall terminate as of the
date that title vests in the condemning authority or the date that the
condemning authority is entitled to possession of the interests of Lessor
and Lessee, under the lease, whichever first occurs (the "Date of Taking").
In case of a Taking of such a substantial part of the interests of Lessor
and Lessee, under the lease as shall result in the remaining interests of
Lessee being unsuitable for Lessee's use as contemplated in this lease, as
determined by the parties,
26.
or if the parties are unable to agree, as determined by arbitration, this
lease shall terminate as of the Date of Taking. Any Taking of the interests
of Lessor and Lessee of the character referred to in this paragraph 36(b)
is referred to as a "Total Taking."
(c) Partial Taking. In case of a Taking of the interests of
Lessor and Lessee, other than a Total Taking or "Temporary Taking" (as
hereinafter defined) (a "Partial Taking"), this lease shall remain in full
force and effect as to the portion of such respective interests remaining
immediately after such Taking, without any abatement or reduction of rent,
or any other sum payable hereunder, except as provided in paragraph 36(e).
Any Taking of such interest for temporary use, i.e. other than a Total
Taking or a Partial Taking, shall be referred to as a "Temporary Taking."
(d) Application of Awards and Other Payments. Awards and other
payments on account of a Taking ("Awards and Payments") shall be applied as
follows:
(1) Awards and Payments received on account of a Partial Taking
or a Total Taking shall be allocated between Lessor and Lessee as follows:
(i) To Lessee and Lessor all compensation and damages
payable for or on account of any improvements erected on the demised
premises by Lessee during said term, divided between Lessor and Lessee
as of the date when Lessee loses the right to possession thereof
according to the ratio that the then expired and unexpired portions
respectively of said term (which for this purpose shall be deemed to
be sixty-five (65) years), after the date of original completion of
such improvements, bear to the sum of such portions; provided,
however, Lessee shall be entitled to all compensation and damages
payable on account of such improvements to the extent required to pay
off and discharge any Leasehold Mortgage consented to by Lessor.
(ii) To Lessee, such other damages as Lessee is able to
establish, including but not limited to damages to its ongoing
business and associated contractual rights created with respect
thereto as determined by the appropriate court having jurisdiction
over such matter.
27.
(iii) To Lessor, all compensation and damages payable for or
on account of the land, and buildings, structures, lines or other
improvements erected by Lessor, and such other damages as Lessor may
be able to establish, including but not limited to severance damages
and damages to its ongoing business and contractual rights created
with respect thereto, as determined by the appropriate court having
jurisdiction over such matter; and
(iv) Lessor and Lessee agree to request that the condemning
authority specify the amount to be awarded to Lessor and Lessee,
respectively.
(2) In the event of a Temporary Taking, this lease shall not
terminate nor shall Lessee be excused from full performance of its
covenants for the payment of money or any other obligations hereunder
capable of performance by Lessee, but in such case Lessee or those claiming
under Lessee may claim and recover from the condemning authority any and
all Awards and Payments made with respect thereto; provided that, if any
portion of any such award or payment is made by reason of any damage,
destruction or diminution of the property interests of Lessor and Lessee,
respectively, of and/or covered by the lease, such portion shall be held
and applied as provided in paragraph 36(d)(l).
(e) Reduction of Rent. In the event of a Partial Taking, each
installment of rent commencing with the first rent payment date following
the Date of Taking shall be reduced by an amount representing the product
of the number of acres taken multiplied by the current rent payable per
acre.
37. SURRENDER
At the end of said term or other sooner determination of this lease
Lessee will peaceably deliver up to Lessor possession of the premises hereby
demised and, except as otherwise expressly provided herein, will at its own
expense raze and remove from said demised premises all improvements then
standing thereon, and Lessee shall repair promptly to Lessor's satisfaction all
damage caused by such removal; provided, however, that if this lease is
terminated by Lessor for breach of covenant by Lessee or if Lessor so requires
Lessee in writing within sixty (60) days after the expiration of said term,
Lessee will peaceably deliver up to Lessor said demised premises, together with
all buildings and other improvements upon or belonging to the same, by
whomsoever made,
28.
in good and safe repair, order and condition except as otherwise expressly
provided in paragraph 11 hereof; provided, further, that if not then in default
hereunder Lessee may thereupon remove any equipment and trade fixtures installed
on said premises during said term but shall repair promptly to Lessors'
satisfaction all damage caused by such removal. The foregoing covenant of Lessee
shall survive the expiration of this lease.
38. NO TRANSFER OF RESOURCE
In the event of the assignment or other transfer of this lease to any
party other than lessee under the Resource Lease, the assignee shall not acquire
any interest in the Leased Substances, or other rights under the Resource Lease.
39. DEFAULT AND DEFEASANCE
This demise is upon the express condition that if Lessee shall fail to
pay said rent or any part thereof within fifteen (15) days after written notice
to Lessee, or shall fail to begin to remedy the violation or breach of any of
its other covenants or agreements herein within sixty (60) days after written
notice thereof given by Lessor to Lessee and/or fail to complete the same in
diligent and workmanlike manner, or shall abandon said premises, or if this
lease or any estate or interest of Lessee hereunder shall be sold under any
attachment or execution, Lessor may at once re-enter said premises or any part
thereof in the name of the whole and, upon or without such entry, at its option
terminate this lease, without further service of notice or legal process and
without prejudice to any other remedy or right of action for arrears of rent or
for any preceding or other breach of contract. If this lease is recorded in the
Hawaii Bureau of Conveyances or filed in the Office of the Assistant Registrar
of the Land Court of Hawaii, such termination may but need not necessarily be
made effective by recording or filing in such place an affidavit thereof by
Lessor or a judgment thereof by a court of competent jurisdiction. If Lessee
shall fail to observe or perform any of its covenants herein contained, Lessor
at any time thereafter may, but shall not be obligated to, observe or perform
such covenant for the account and at the expense of Lessee, and all costs and
expenses incurred by Lessor in observing and performing such covenant shall
constitute additional rent and shall bear interest as provided in paragraph 6
hereof.
40. AMENDMENTS; FURTHER DOCUMENTS
29.
Neither this lease nor any of its terms may be amended, waived or
altered in any way except by a formal written agreement executed by both Lessor
and Lessee.
Lessor and Lessee agree to promptly execute and deliver such other
documents, certificates, agreements or other written instruments as may be
necessary or deemed useful by either party to evidence the agreements contained
herein or to carry out the provisions hereof.
If either party is required or desires to place this lease on the
public record and desires to use for such purpose a short form of lease which
shall be in form sufficient to convey public notice of this lease but shall not
contain any of the details and economics herein contained, the parties shall
promptly execute and deliver such short form of lease.
The party making any such request shall prepare such instrument and
shall bear the cost therefor and, if desired, for placing the same on the public
record, but each of the parties shall otherwise bear their own costs for
processing the same.
41. JOINT AND SEVERAL LIABILITY
If more than one person or entity signs this lease, the liability of
such persons shall be joint and several.
42. DEFINITIONS
(a) The term "premises" herein shall be deemed or taken to include
(except where such meaning would be clearly repugnant to the context) all
structures, facilities and other improvements now or at any time hereafter
erected or placed on the land hereby demised.
(b) The term "Lessor" herein or any pronoun used in place thereof
shall mean and include Lessor, its successors and assigns.
(c) The term "Lessee" herein or any pronoun used in place thereof
shall mean and include the masculine or feminine, the singular or plural number,
and jointly and severally individuals, firms or corporations, and their and each
of their respective heirs, successors, personal representatives and permitted
assigns, according to the context hereof.
(d) The term "Resource Lease" herein shall mean and refer to that
certain unrecorded Lease and Agreement dated March 1, 1981, by and between
Kapoho Land Partnership, as
30.
lessor, and Xxxxxxxxxx Corporation and Thermal Power Company, as lessee, a short
form of which was recorded in the Bureau of Conveyances of the State of Hawaii
in Liber 16267, page 466, which, by Assignment of Lease and Agreement, made
effective May 3, 1982, and recorded in said Bureau in Liber 17122, Page 70, was
assigned to Lessee, the consent of Lessor thereto being given by letter consent,
dated March 10, 1983, as the Resource Lease may be further amended from time to
time.
(e) The term "State Lease" herein shall mean that certain unrecorded
Geothermal Resources Mining Lease No. R-2, dated February 20, 1981, by the State
of Hawaii, as lessor, and Lessor, as lessee, which is referenced in paragraph 1
of the Resource Lease.
(f) The term "Leased Land" herein shall mean all of that certain land
described in paragraph 2 and in Exhibit "A" of the Resource Lease.
(g) Except as herein otherwise defined, all other terms common to this
lease and the Resource Lease shall have the same meaning as such terms are used
and defined in the Resource Lease.
(h) This lease, although separate from the Resource Lease, is an
integral part of Lessee's operations under the Resource Lease and all of the
provisions, terms and conditions herein contained shall be so construed and
enforced. In case of conflict between this lease and the Resource Lease, the
latter will control.
(i) Whenever this lease requires the consent or approval of either
Lessor or Lessee, such consent or approval not be unreasonably or arbitrarily
withheld.
31.
IN WITNESS WHEREOF, the parties hereto have executed these presents
the day and year first above written.
LESSOR:
KAPOHO LAND PARTNERSHIP, a Hawaii limited
partnership
By: KAPOHO MANAGEMENT CO., INC., a Hawaii
corporation,
Its General Partner
By: /s/ Illegible
-----------------------------------
Its: Chairman
By: /s/ Illegible
-----------------------------------
Its: President
By: /s/ Illegible
-----------------------------------
Its: Vice President
LESSEE:
PUNA GEOTHERMAL VENTURE,
a Hawaii general partnership
By: AMOR VIII Corporation, a Delaware
corporation, general partner
By: /s/ Illegible
-----------------------------------
Its: Assistant Secretary
By: AMOR VI Corporation, a Delaware
corporation, general partner
By: /s/ Illegible
-----------------------------------
Its: Assistant Secretary
32.
GRANT OF EASEMENTS
NO. TAX MAP KEY:
------------------- ------------------
DELIVERY SYSTEM GRANT OF EASEMENTS
TABLE OF CONTENTS
Page
----
1. GRANT AND TERM .................................................... 2
2. ANNUAL RENT ....................................................... 2
3. RENT .............................................................. 3
4. TAXES AND ASSESSMENTS ............................................. 3
5. ADDITIONAL RENT ................................................... 4
6. GENERAL EXCISE TAX ................................................ 4
7. RATES AND OTHER CHARGES ........................................... 5
8. USE ............................................................... 5
9. XXXXX ............................................................. 6
10. CONDUCT OF OPERATIONS ............................................. 7
11. BUILDINGS AND LANDSCAPING ......................................... 9
12. CONDITION OF EASEMENT AREA; GOVERNMENTAL APPROVAL ................. 10
13. COMPLIANCE WITH LAWS .............................................. 10
14. COMPLIANCE WITH STATE LEASE ....................................... 11
15. RENEWAL OR EXTENSION .............................................. 11
16. INSPECTION AND REPAIR ............................................. 13
17. BONDS ............................................................. 14
18. LIABILITY INSURANCE ............................................... 14
19. INDEMNITY AND LIABILITY ........................................... 14
20. LIENS ............................................................. 15
EXHIBIT E-1
21. EXPENSES OF GRANTOR AND GRANTEE ................................... 15
22. ASSIGNMENT ........................................................ 16
23. CONSENT TO MORTGAGE ............................................... 16
24. AIR AND OTHER RIGHTS .............................................. 23
25. SURRENDER ......................................................... 23
26. REMOVAL OF EQUIPMENT .............................................. 24
27. CONDEMNATION ...................................................... 24
28. ARBITRATION ....................................................... 26
29. FORCE MAJEURE ..................................................... 28
30. DESTRUCTION OF FACILITIES ......................................... 29
31. ARCHAEOLOGICAL STUDIES ............................................ 30
32. NOTICE ............................................................ 30
33. SAVINGS CLAUSE .................................................... 32
34. AMENDMENTS; FURTHER DOCUMENTS ..................................... 32
35. NONWAIVER ......................................................... 33
36. DEFAULT AND DEFEASANCE ............................................ 33
37. JOINT AND SEVERAL LIABILITY ....................................... 34
38. APPLICABLE LAW .................................................... 34
39. DEFINITIONS ....................................................... 34
NO. TAX MAP KEY:
------------------- ------------------
DELIVERY SYSTEM GRANT OF EASEMENTS
THIS GRANT OF EASEMENTS, made this 9th day of July, 1990, by and
between KAPOHO LAND PARTNERSHIP, a Hawaii limited partnership, whose business
and post office address is P. X. Xxx 000, Xxxx, Xxxxxx 00000 ("Grantor"), and
PUNA GEOTHERMAL VENTURE, a Hawaii general partnership, whose business and post
office address is 000 Xxxxxx Xxxxxx, Xxxxx 0000-X, Xxxx, Xxxxxx 00000
("Lessee");
WHEREAS, Grantor, as lessor therein, and Xxxxxxxxxx Corporation, a
Hawaii corporation, and Thermal Power Company, a California corporation,
collectively as lessee therein, had previously entered into that certain Lease
and Agreement dated March 1, 1981, a short form of which was recorded in the
Bureau of Conveyances of the State of Hawaii ("Bureau") in Liber 16267, Page 466
("Resource Lease"), which provides for the development of the Leased Substances
(as defined in the Resource Lease) from and under the land situate in Kapoho,
District of Puna, Island, County and State of Hawaii and described in and
covered by the Resource Lease (said land being hereinafter called the "Leased
Land"); and
WHEREAS, the Resource Lease is a lease of the geothermal resource
rights in the Leased Land and a sublease of the surface leased to Grantor as
lessor under that certain Surface Lease, dated February 18, 1981, a Short Form
of which, dated July 9, 1990, was recorded in the Bureau as Document No.
________________, which sublease was assigned to Lessee as of May 3, 1982 (as
hereinafter referred to); and
WHEREAS, the Resource Lease is also a sublease of geothermal resource
rights claimed by the State of Hawaii and leased to Grantor as lessee under that
certain Geothermal Resources Mining Lease No. R-2, dated February 20, 1981, a
Short Form of which, dated July 9, 1990, was recorded in the Bureau as Document
No. ________________, entered into by the State of Hawaii, as lessor therein,
and Grantor, as lessee therein, which sublease, was assigned to Grantee as
Lessee as of May 3, 1982 (as hereinafter referred to); and
WHEREAS, pursuant to that certain Assignment of Lease and Agreement,
made effective May 3, 1982, and recorded in said Bureau in Liber 17122, Page
70, Xxxxxxxxxx Corporation and Thermal Power Company assigned all of their
right, title and Interest in the Resource Lease to Lessee (then consisting of
Xxxxxxxxxx Geothermal, Inc., Thermal Power Company and Amfac Energy, Inc.),
consent thereto by Grantor being granted by letter consent dated March 10, 1983;
and
WHEREAS, the Resource Lease has been amended by that certain
Amendment of Lease, dated July 9, 1990, a short form of which was recorded
in the Bureau as Document No. ___________________; and
WHEREAS, the Resource Lease provides that a ground lease shall be made
by Grantor to Lessee whenever a portion of the Leased Land is desired for use by
Lessee as a part of its Delivery System, or is adversely affected or rendered
substantially unusable by operations of Grantee under the Resource Lease; and
WHEREAS, Grantor and Grantee have determined to use a grant of
easements, in lieu of a ground lease, for the Grantee's Delivery System, and
have agreed that for this purpose the references in the Resource Lease to a
"ground lease" for the Delivery System shall be deemed to refer to a "grant of
easements" therefor; and
WHEREAS, such grant of easements shall be a part of and supplemental
to the Resource Lease, and Grantor and Grantee have agreed to enter into this
grant of easements, hereinafter called the "grant of easements" or "easements",
pursuant to the provisions of the Resource Lease and in particular of paragraph
8(p)(l)(c)(i) thereof.
1a.
NOW, THEREFORE, this indenture WITNESSETH:
1. GRANT AND TERM
Grantor hereby grants and rents, and Grantee hereby accepts and rents,
those certain easements and rights of way, all of which are appurtenant to and
for the benefit of the geothermal electrical generating facility and related
improvements ancillary thereto, over, across, on and under the Leased Land more
particularly described in Exhibit A and shown on Exhibit B attached hereto and
made parts hereof, hereinafter called the "Easement Area", which rights are
specifically granted pursuant to the Resource Lease, subject to the reservations
and rights of Grantor set forth in the Resource Lease and reserving the right to
obtain rights of way and easements for the use of Grantor and its licensees
which do not unreasonably interfere with Grantee's use of the Easement Area, and
further grants, the rights to request from time to time, further and other
easement dedications for additional development pursuant to the Resource Lease.
TO HAVE AND TO HOLD the same, together with the rights, privileges and
appurtenances thereunto belonging or appertaining, unto Grantee for the term
commencing as of and from the date of this grant of easements and continuing
thereafter for so long as the Easement Area shall be used, or shall be required
for the purposes set forth in paragraph 8 of this grant of easements; subject,
however, to extension or earlier termination as hereinafter provided, but in no
event beyond the term provided in paragraph 3 of the Resource Lease; and
subject, further, to the covenants, conditions, rights, rights-of-way, easements
and encumbrances now of record, and to unrecorded easements which have been
acquired by prescription, right-of-entry, custom and usage or otherwise for
public utilities, roads, highways, such reservation in favor of the State of
Hawaii of mineral and metallic mines as there may be, and any claims based on
native rights including roads and trails.
Grantor hereby covenants with Grantee that upon payment by Grantee of
the rent herein reserved and upon observance and performance of the covenants by
Grantee hereinafter contained, Grantee shall peaceably hold and enjoy the
easements and Easement Area for the term hereby demised without hindrance or
interruption by Grantor or any other person or persons lawfully claiming by,
through or under Grantor except as herein expressly provided.
2. ANNUAL, RENT
Grantee shall yield up and pay to Grantor for each and every year
during the continuance of this grant of easements, net over and above all taxes,
assessments and other charges hereunder payable by Grantee, and in addition to
the
2.
rents, royalties and other charges payable under the Resource Lease, annual rent
as follows:
A. $21,439.05 per annum for and during the first five (5) years of
said term in accordance with the schedule of rents attached as Exhibit C hereto;
B. For each successive five-year period of said term, such annual rent
as shall be determined by written agreement of Grantor and Grantee or, if they
fail to reach such agreement at least ninety (90) days before the commencement
of such period, the rent will be determined in accordance with paragraphs
8(p)(l)(c)(i) and 8(p)(l)(d) of the Resource Lease. With respect to portions
of the Easement Area occupied by Grantee not used for the purposes described in
paragraph 8(p)(l)(c)(i) of the Resource Lease, the rent will be determined in
accordance with paragraph 8(p)(l)(c)(ii) and 8(p)(l)(d) of the Resource Lease.
In no event shall the annual rent as so determined be less than the annual rent
for the last grant of easements year preceding such period.
C. All such annual rent shall be payable annually in advance the
first such payment shall be made on or before the execution and delivery hereof
and each subsequent payment shall be made on or before the next anniversary
date.
3. RENT
Grantee will pay said rent in lawful money of the United States
of America at the times and in the manner aforesaid, without any notice
or demand, at the office of Grantor in Hilo, Hawaii.
4. TAXES AND ASSESSMENTS
Grantee will also pay to Grantor as additional rent, at least ten (10)
days before the same become delinquent, all real property and other ad valorem
taxes and assessments of every description to which the Easement Area or any
part thereof or improvement of Grantee thereon, or Grantor or
3.
Grantee in respect thereof, are now or may during said term be assessed or
become liable, whether assessed to or payable by Grantor or Grantee; provided,
however, that with respect to any assessment made under any betterment or
improvement law which may be payable in installments, Grantee shall be required
to pay only such installments of principal together with interest on unpaid
balances thereof as shall become due and payable during said term, and that such
taxes shall be prorated as of the dates of commencement and expiration
respectively of said term. If at any time during said term there shall be
assessed against the easements and/or the Easement Area or any part thereof or
any improvement of Grantee thereon or any rents hereunder payable to Grantor
therefor or against Grantor in respect thereof any new taxes (other than
federal or state net income taxes or any other taxes existing at the
commencement of said term) which are in substitution for real property taxes or
are in lieu of increases thereof, Grantee will also pay to Grantor as additional
rent, at least ten (10) days before the same become delinquent, all such new
taxes. Anything in this paragraph 4 of the contrary notwithstanding, any payment
of such taxes and assessments made under the Resource Lease shall be deemed to
be a payment under this grant of easements, to the extent that such payment
would duplicate a payment otherwise due under the grant of easements. Grantee
will also pay all conveyance taxes imposed by the State of Hawaii in respect to
this grant of easements.
5. ADDITIONAL RENT
Grantee will also pay to Grantor, as additional rent and within ten
(10) days after the date of mailing or personal delivery of statements therefor,
all costs and expenses paid or incurred by Grantor and required to be paid by
Grantee under any provision hereof. If Grantee shall become delinquent in the
payment of any annual rent, additional rent (which does not constitute
interest), or other payments required hereunder to be made by Grantee to
Grantor, Grantee will also pay to Grantor as additional rent interest thereon
from the respective due dates thereof until fully paid at the rate of 12% per
year or such higher rate as shall equal the maximum rate of interest then
allowed by law.
6. GENERAL EXCISE TAX
Grantee will pay to Grantor as additional rent, at the time and
together with each payment of annual rent, additional rent, or other charge
required hereunder to be made by Grantee to Grantor, an amount equal to the
amount, if any, payable by Grantor pursuant to the Hawaii General Excise Tax Law
or any successor or substitute law based on gross income
4.
actually or constructively received by Grantor under or in connection with this
grant of easements, including, without limiting the generality of the foregoing,
payment of any amount constructively received (to the extent so taxed) by reason
of payment by Grantee to others of property taxes, insurance premiums, or any
other rents, charges or costs required to be paid by Grantee hereunder. Anything
in this paragraph 6 to the contrary notwithstanding, any such payment made under
the Resource Lease shall be deemed to be a payment of the same under this grant
of easements, to the extent that such payment would duplicate a payment
otherwise due under the grant of easements.
7. RATES AND OTHER CHARGES
Grantee will pay directly before the same become delinquent all
utility charges, water and sewer rates, garbage rates and other charges and
outgoings of every description to which the easements and/or the Easement Area
or any part thereof or improvement of Grantee thereon, or Grantor or Grantee in
respect thereof, may during said term be assessed or become liable, whether
assessed to or payable by Grantor or Grantee.
8. USE
Grantee will use the Easement Area to explore for (by such methods as
Grantee may desire which are not inconsistent with the terms and conditions of
the Resource Lease and this grant of easements), drill for, produce, extract,
take, remove, deliver, use and sell Hot Water, Steam and Thermal Energy and
Extractable Minerals ("Leased Substances") from and under the Leased Land, and
to deliver Leased Substances to any electrical power generating plant and to
transmit electricity generated therefrom, and to inject or reinject fluids from
any source for the purposes of production, reservoir maintenance, subsidence
prevention, and similar operations requirements all on the Easement Area or from
and under the Leased Land, including the construction, use and maintenance on
the Easement Area, ingress and egress to and from the improvements located
thereon, and the removal therefrom of structures, facilities, installations,
roads, ponds, sumps, water xxxxx, pipelines, utility lines, power and
transmission lines, and ditches. Grantee will, within the first twelve (12)
months of said term, commence to use the Easement Area or portions thereof for
the purposes set forth above, and will thereafter diligently complete the work
or use therein set forth; provided, however, that if this grant of easements was
granted because a portion of the Leased Land was adversely affected or rendered
unusable by operations of Grantee, Grantee need not commence any work thereon
except as
5.
it shall deem necessary to cure the adverse effect or to restore that portion of
the Easement Area to usable condition.
9. XXXXX
(a) No well shall be drilled within five hundred (500) feet of any
residence or building on the Leased Land or adjacent lands without first
obtaining the consent of Grantor, its tenants and any adjacent land owners who
may be affected.
(b) In any well drilled by Grantee hereunder sufficient casing shall
be set and cemented so as to seal off surface and subsurface waters, any of
which would be harmful to agricultural operations.
(c) To the extent such matters are within the control of Grantee, no
Leased Substances which may be produced from any well drilled upon the Easement
Area shall be blown, flowed, or allowed to escape into the open air or on the
ground in such a manner as to create a nuisance, in which event Grantee will
utilize Best Available Control Technology (BACT) to eliminate or alleviate the
cause thereof and will further comply with any corrective court orders
applicable thereto, which shall specifically include but not be limited to
noise, air or other pollution, and other activities which unreasonably disturb
those who occupy adjacent land or Grantor's use of the Leased Land. Subject to
the foregoing, Grantee may bleed Leased Substances to the atmosphere from xxxxx
drilled upon the Easement Area and Grantee, during drilling and testing
operations hereunder, may blow Leased Substances, air and cuttings to the
atmosphere so long as such operations are lawfully and prudently conducted in
accordance with good geothermal drilling and production practices and are not
otherwise violative of the provisions of this grant of easements.
(d) Unless governmental approval therefor has been denied or
technological considerations will not permit, preference will be given to
drilling xxxxx directionally in order to minimize the number of drill sites
required, provided, however, that nothing herein contained shall be construed to
require Grantee to drill any well directionally where the cost thereof would
exceed one hundred twenty percent (120%) of the cost of a vertically drilled
well. Well sites and facility sites will be shaped and located to the extent
reasonably practicable to interfere as little as possible with Grantor's or its
tenants' operations including the spacing, location and operation of drainage
systems and roads.
6.
(e) Upon abandonment of any well on the Easement Area, or on the
termination of this grant of easements, or upon the surrender of a portion of
the Easement Area by Grantee, then as to all or such portion of the Easement
Area Grantee shall plug any xxxxx to be abandoned or surrendered, shall level
and fill all sump holes and excavations, shall remove all debris, and shall
leave those areas of the Easement Area used by Grantee basically in the same
condition as the same were in immediately prior to Grantee's use and if farm
land then Grantee will return the same to a Farmable Condition, and shall pay
Grantor and/or its tenants for all damages to buildings, structures or other
property caused by Grantee in effecting such removal.
(f) Grantee shall have free use, for operations hereunder and under
the Resource Lease and solely upon the Leased Land, of water on or from the
Easement Area, except water from Grantor's xxxxx or from ponds, lakes or
reservoirs located upon the Easement Area. Grantee shall not drill or operate
water xxxxx or take water in such ways as to injure existing water xxxxx of
Grantor or interfere with or restrict the supply of water to Grantor or its
tenants for commercial, domestic, livestock or agricultural use. Upon
abandonment, Grantee agrees to turn over to Grantor at Grantor's option, all
water xxxxx drilled by it upon the Easement Area, and Grantor shall pay Grantee
therefor the salvage value calculated at the top of the ground, less the cost of
removal from the well bore, of the material and equipment in and on said well or
xxxxx. In drilling geothermal xxxxx, Grantee shall advise Grantor of any fresh
water bearing formations encountered and shall upon request furnish Grantor any
and all logs made by Grantee from the surface of the ground to the bottom of the
surface casing. Upon abandonment of any geothermal well drilled which may be
converted to a water well Grantee shall turn it over to Grantor, at Grantor's
option to be exercised within a reasonable time after written notice from
Grantee, with the hole in suitable condition to be completed as a water well in
a fresh water formation and if additional expenses will be incurred in
completing such well as a water well, Grantee will advise Grantor as to the
projected cost before Grantor exercises such option and the costs shall be borne
by Grantor in the event Grantor exercises such option. Grantor shall thereafter
be solely responsible for such well.
10. CONDUCT OF OPERATIONS
(a) Grantor and Grantee hereby commit themselves to a cooperative
course of action under which Grantee will be assured of the use of the easements
and the Easement Area for the purposes of this grant of easements. Grantee will
conduct
7.
its operations in a prudent and workmanlike manner and in a manner that will not
unreasonably interfere with the enjoyment of the Leased Land by persons lawfully
occupying the same or of adjacent land owners.
(b) Grantee in its operations on the Easement Area shall at all times
have due and proper regard for the rights and convenience, and the health,
welfare and safety of Grantor and of all tenants and other persons lawfully
occupying the Leased Land. Noise levels occurring in Grantee's normal operations
will not exceed those established by appropriate governmental authority, Grantee
using due diligence to comply therewith.
(c) Grantee shall take such steps at Grantee's own expense as are
reasonably necessary to insure that its roads, well sites and other operation
areas will be kept as dust free as is reasonably practicable and in any event so
that dust will not decrease the market value of adjacent growing crops.
(d) Grantee agrees to fence all sump holes and excavations and all
other improvements, works, or structures which might unreasonably interfere with
or be detrimental to the activities of Grantor or its tenants, and to build
sumps and, to take all reasonable measures to prevent pollution of surface or
subsurface waters on or in the Leased Land.
(e) If it becomes necessary for Grantor's tenants to apply
agricultural chemicals on adjacent lands which are toxic in nature or the use of
which is restricted but necessary for the continued production of crops in
connection with Grantor's tenants' farming activities on such adjacent lands,
and Grantor's tenants, their agents or independent contractors are unable to
make a required application of agricultural chemicals because of Grantee's
presence, or because of the presence of Grantee's personnel, then notice shall
be given to Grantee's supervisory personnel in the field as soon as it is
reasonably possible to do so, including in such notice the approximate time when
and the place where such application will be made, and Grantee will cooperate
with Grantor's tenants in scheduling their respective activities in order to
permit such application to be made.
(f) In the event any buildings or personal property shall be destroyed
or required to be removed or crops shall be damaged or destroyed because of
Grantee's operations on the Easement Area, then Grantee shall be liable for all
damages occasioned thereby.
8.
(g) Grantee will use existing roads where such are available and
practicable for its operations. All roads, bridges and culverts used by Grantee
will be maintained by it and roads surfaced or treated in a manner that will
prevent dust from unreasonably interfering with agricultural or residential use
of the Leased Land. Grantee shall be responsible for the reasonable maintenance
of and reasonable repair of damages caused to roads used by Grantee. Grantor and
its licensees shall have reasonable use of roads constructed by Grantee but
shall be responsible for the reasonable repair of any unusual damage caused to
such roads by their use. In constructing roads, Grantee shall install necessary
culverts or bridges so as not to interfere with the irrigation or drainage of
the Leased Land.
11. BUILDINGS AND LANDSCAPING
Grantee will not construct or place any buildings or other permanent
structures, other than the Delivery System, on the Easement Area, nor make or
suffer any additions to or structural alterations of the basic structure of any
of them, except in accordance (except for non-material modifications made during
the course of construction) with complete plans, specifications and detailed
plot plans therefor prepared by, or under the supervision of, a licensed
architect or engineer and first approved in writing by Grantor. Grantor shall
act upon any request for approval within thirty (30) days after its receipt
thereof, and if Grantor fails to act within such thirty (30) day period, such
request shall be deemed to have been approved. No such approval by Grantor shall
be deemed a warranty or other representation on their part that such plans,
specifications or detailed plot plans or the building or buildings or other
structures therein described are legal, safe or sound. Grantee will observe any
setback lines affecting the Easement Area as now or hereafter established by any
governmental authority having jurisdiction, or any other more restrictive
setback lines as shown on the map hereto attached or herein mentioned in the
description of the Easement Area, and will not erect, place or maintain any
building or structure whatsoever except approved fences or walls between any
street boundary of the Easement Area and the setback line along such boundary.
Except during drilling operations and periods of construction, Grantee will
screen from public view to the extent reasonably practical, by means of fences,
walls or other landscaping approved by Grantor in writing, all operating sites
and all equipment, materials and supplies kept in open storage on the Easement
Area.
9.
12. CONDITION OF EASEMENT AREA; GOVERNMENTAL APPROVAL
Grantee has examined and accepts the Easement Area in the existing
condition thereof and shall be solely responsible for the adequate design,
construction and repair of all structures and improvements whatsoever now or
hereafter made thereon, and for obtaining all necessary utility services and
connections, and Grantee agrees that Grantor shall have no liability whatsoever
for such condition, or for the suitability or lack of suitability for the
purposes contemplated therefor, or any further improvement or development
thereof, or any repair of any private roads serving the Easement Area except as
expressly provided in paragraph 10 hereof. Grantee at its sole cost and expense
shall obtain all approvals and meet all governmental requirements for or in
connection with the Easement Area or any improvement thereon or use thereof
including but not limited to permits, zoning, classification, consents,
environmental statements and requirements, and other requirements.
13. COMPLIANCE WITH LAWS
Grantee and Grantor each shall, at its own respective cost and
expense, promptly and properly observe, comply with and execute all present and
future orders, regulations, directions, rules, laws, ordinances and requirements
of all governmental agencies (including, but not limited to, State, Municipal,
County and Federal Governments and their departments, divisions, bureaus,
boards, and officials) and in particular the Department of Land and Natural
Resources of the State of Hawaii and similar organizations as the same may apply
to each of Grantor and Grantee. Grantee and Grantor shall each have the right to
contest or review, by legal procedures or in such other manner as each may deem
suitable, at its own respective expense, any order, regulation, direction, rule,
law, ordinance or requirement, and if able, may have the same cancelled,
removed, revoked, or modified, provided that Grantor is not, by Grantee's
contest thereof, subject to criminal prosecution and Grantor's title to the
Easement Area, the Leased Land, Leased Substances or State Lease is not impaired
and Grantee indemnifies and holds Grantor harmless from and against any civil
liability as a result of such contest or review by Grantee. Any such proceeding
shall be conducted promptly and shall include, if the contesting party so
decides, appropriate appeals. whenever the requirements become final after a
contest, the party bound thereby shall diligently comply with the same. Without
limiting the generality of the foregoing, Grantee will at its own expense during
the whole of said term make, build, maintain and repair all structures,
10.
facilities and improvements, including without limitation sumps, fences, drains,
roads, curbs, sidewalks and parking areas which may be required by law to be
made, built, maintained and repaired upon or adjoining or in connection with or
for the use of the easements, the Easement Area or any part thereof.
14. COMPLIANCE WITH STATE LEASE
This grant of easements is made subject to all the terms, covenants
and conditions of the State Lease and Geothermal Regulations and is made upon
the express condition that, pending the determination of ownership of the Leased
Substances and thereafter if the State is successful in its claim of ownership
to the Leased Substances, Grantee shall assume all of the obligations and comply
with each and every provision of the State Lease. Grantee shall save and hold
Grantor harmless with respect to claims made by the State of Hawaii arising out
of the performance, non-performance or breach of any terms or conditions of the
State Lease. As a further condition of this grant of easements, Grantee agrees
that a breach of the provisions of the State Lease shall be deemed to be a
breach of the provisions of this grant of easements. Neither Grantor, in its
capacity as grantee under the State Lease, nor Grantee shall take any
action with respect to the State Lease, including any surrender, termination,
extension or renewal thereof, that may adversely affect the other party without
the prior written consent of the other party.
Grantee agrees to obtain the prior consent or approval of the State of
Hawaii in all cases required under the State Lease and/or Geothermal
Regulations, and Grantor shall obtain any prior consent or approval needed to
enable it to enter into this grant of easements.
Notwithstanding the foregoing, Grantee shall comply with the terms,
covenants and conditions of the Resource Lease and this grant of easements.
15. RENEWAL OR EXTENSION
A. Upon the expiration or sooner termination of the State Lease,
Grantor shall have the first right as between Grantor and Grantee to apply for
and to obtain any renewal or extension of the State Lease. In the event the
Resource Lease shall be renewed or extended, the parties agree to renew or
extend this grant of easements for a term equivalent to the term of the renewal
or extension of the Resource Lease subject to the following conditions:
11.
(i) Grantee is not then in default in performance of its
obligations under the terms and conditions of the State Lease, the Resource
Lease, and this grant of easements.
(ii) Beginning with the commencement of the renewed or extended
term of this grant of easements and every five (5) years thereafter during the
continuance of the term hereof, the annual rent shall be adjusted by determining
the prevailing rate of return utilized in determining rent in Hawaii for
commercial/industrial projects and multiplying it by the then fair market value
of the Easement Area based on Grantee's use of the surface but without regard to
the encumbrance of the leasehold interest under the Resource Lease and this
grant of easements and exclusive of improvements made by Grantee. If the parties
are unable to agree on the prevailing rate of return or on the fair market value
of the Easement Area at least ninety (90) days before the commencement of each
five (5) year period, the matter shall be submitted to arbitration as provided
in paragraphs 2B and 28 hereof.
(iii) All other provisions of the Resource Lease and this grant
of easements shall apply to and bind both Grantor and Grantee during the renewed
or extended term of this grant of easements.
B. In the event that Grantor has been determined to be the owner of
the Leased Substances, then the maximum term of up to sixty-five (65) years of
this grant of easements shall be extended for so long thereafter as Leased
Substances, or any of them, be derived or produced in Commercial quantities from
the Leased Land and for so long, as well as Grantee is prevented from producing
same, or the obligations of Grantee hereunder and/or under the Resource Lease
and/or the Power Plant Sublease are suspended for the causes herein set forth
and/or for so long as Continuous Drilling or Reworking Operations on the
Easement Area are diligently prosecuted by Grantee as provided in the Resource
Lease; provided, however, that, except as expressly provided in subparagraphs C
and D of this paragraph 15, this grant of easements shall terminate concurrently
with the termination of the Resource Lease.
C. If Grantee is not then in default under the Resource Lease and/or
this grant of easements; and the Resource Lease shall terminate because of
inability to produce Leased Substances from the Leased Land, the term of this
grant of easements shall continue for so long as the roads, ponds, sumps,
pipelines, utility lines, power and transmission lines, facilities and
installations on the Easement Area are being
12.
used by Grantee for geothermal operations on lands located in the vicinity of
the Leased Land.
D. If the Resource Lease shall expire or be terminated, surrendered or
quitclaimed, and notwithstanding any default under the Resource Lease and/or
this grant of easements, the term of this grant of easements (if this grant of
easements had been made because the Easement Area had been adversely affected or
rendered unusable by reason of Grantee's operation thereon) shall continue for
so long as the Easement Area shall continue to be adversely affected or be
substantially unusable.
E. In any such event, except for references to the State Lease and to
renewed or extended terms, all of the provisions of subparagraph A of this
paragraph 15 shall continue to apply during the period of the indeterminate
extension of the term of this grant of easements.
16. INSPECTION AND REPAIR
Grantee will permit Grantor and its agents, at their sole risk, at all
reasonable times during said term to enter and examine the Easement Area and the
workings, installations and structures thereon and the operations of Grantee
thereon. Grantee will commence to repair and make good at its own expense all
defects required by the provisions of this grant of easements to be repaired by
Grantee of which notice shall be given by Grantor or its agents within sixty
(60) days after the giving of such notice and will thereafter diligently
prosecute the same to completion. If for any reason Grantee shall fail to
commence such repairs within sixty (60) days after the giving of such notice
and/or fail to complete the same in diligent and workmanlike manner, Grantor
may, but shall not be obligated to, make or cause to be made such repairs and
shall not be responsible to Grantee or anyone claiming by, through or under it
for any loss or damage to the occupancy, property or operations of any of them
by reason thereof, and Grantee will pay to Grantor on demand and as additional
rent all costs and expense paid or incurred by Grantor in connection with such
repairs. Grantee will at its own expense from time to time and at all times
during said term well and substantially restore, repair, maintain, amend and
keep all buildings, structures and other improvements now or hereafter built or
made on the Easement Area with all necessary reparations and amendments
whatsoever in good and safe repair, order and condition, except as herein
expressly provided.
13.
17. BONDS
Grantee will before commencing construction of any improvement or any
drilling operations or laying any pipelines or doing any other work on or within
the Easement Area, deposit with Grantor a bond or certificate thereof naming
Grantor as obligee in an amount equal to the total estimated cost thereof and in
form and with surety satisfactory to Grantor, guaranteeing the completion of
such work free and clear of all mechanic's and materialmen's liens by whomever
claimed.
18. LIABILITY INSURANCE
Grantee will at its own expense effect and maintain during the whole
of said term comprehensive general liability insurance with respect to the
Easement Area (or to all of the Leased Land including the Easement Area), under
policies naming Grantor as an additional insured in an insurance company
authorized to do business in Hawaii with minimum limits of not less than the
reasonable amounts specified by Grantor's insurance consultant, such amounts
being for injury to one or more persons in any one accident or occurrence and
for property damage, respectively, or such higher limits as Grantor may from
time to time establish, with due regard to prevailing prudent business
practice, as reasonably adequate for Grantor's protection, and will from time to
time deposit with Grantor current certificates of such insurance and upon
request therefor true copies of such insurance policies.
19. INDEMNITY AND LIABILITY
(a) Grantee will protect, indemnify, defend and hold Grantor harmless
from and against all loss, damages, and claims of every kind and character
(including but not limited to Worker's Compensation claims and claims of third
parties), arising out of or in connection with the use or occupancy of the
Easement Area by Grantee or any person under Grantee, or any accident or fire on
the Easement Area, or any failure by Grantee to keep the Easement Area or any
adjacent sidewalks in a safe condition, or which may be occasioned by reason of
the operations or workings of Grantee, its employees, agents or independent
contractors upon the Easement Area, including but not limited to the pollution
or flooding of the surface or subsurface waters affecting adjacent or nearby
property. Grantee will hold all goods, materials, furniture, fixtures,
14.
equipment, machinery and other property whatsoever on the Easement Area at the
sole risk of Grantee and save Grantor harmless from any loss or damage thereto
by any cause whatsoever.
(b) Grantee shall remain responsible and liable for any costs,
expenses and liabilities arising out of or in any way connected with xxxxx
drilled by Grantee on the Easement Area (other than xxxxx taken over by Grantor
pursuant to paragraph 9 hereof), whether abandoned or not, during the term of
the Resource Lease, and any extensions or renewals thereof, and thereafter
Grantee will indemnify Grantor for any costs, expenses and liabilities in
connection therewith for a period of twenty (20) years. Notwithstanding the
foregoing, Grantee shall remain responsible and liable for such xxxxx beyond
said period of twenty (20) years in the event such costs, expenses and
liabilities arise from or are connected in any way with the negligence of
Grantee, or Grantee's failure to conduct its operations in a prudent and
workmanlike manner, or its failure to comply with the Geothermal Regulations.
20. LIENS
All the labor to be performed and materials to be furnished in the
operations of Grantee hereunder shall be at the cost and expense of Grantee, and
Grantor shall not be chargeable with, or liable for, any part thereof. Grantee
will not commit or suffer any act or neglect whereby the Easement Area or any
improvement thereon or the estate or interest of Grantee therein shall at any
time during said term become subject to any attachment, judgment, lien, charge
or encumbrance whatsoever, except as herein expressly provided, and will
indemnify and hold Grantor harmless from and against all loss, cost and expense
with respect thereto. The provisions hereof shall not operate to preclude the
right of Grantee to contest the validity of any such attachment, judgment lien
charge or encumbrance.
21. EXPENSES OF GRANTOR AND GRANTEE
Except as otherwise expressly provided in this grant of easements,
Grantee will pay to Grantor, within ten (10) days after the date of mailing or
personal delivery of statements therefor, all costs and expenses including
reasonable attorneys' fees paid or incurred by Grantor but required to be paid
by Grantee under any covenant herein contained or paid or incurred by Grantor in
enforcing any of Grantee's covenants herein contained, in protecting itself
(Grantor) against any breach thereof, in remedying any breach thereof, in
recovering possession of the Easement Area or any part thereof and/or of
15.
Grantee's interests and rights therein and thereto, in collecting or causing to
be paid any delinquent rent, taxes or other charges hereunder payable by
Grantee, or in connection with any litigation (other than condemnation
proceedings) commenced by or against Grantee to which Grantor shall without
fault be made a party. Except as otherwise expressly provided in this grant of
easements, Grantor will pay to Grantee within ten (10) days after the date of
mailing or personal delivery of statements therefor, all costs and expenses
including reasonable attorneys' fees paid or incurred by Grantee but required to
be paid by Grantor under any covenant herein contained or paid or incurred by
Grantee in enforcing any of Grantor's covenants herein contained, in protecting
itself (Grantee) against any breach thereof, in remedying any breach thereof, in
collecting or causing to be paid any delinquent charges hereunder payable by
Grantor, or in connection with any litigation (other than condemnation
proceedings) commenced by or against Grantor to which Grantee shall without
fault be made a party.
22. ASSIGNMENT
Grantee shall not sell, convey, transfer, sublet or assign, in whole
or in part, or deal with in any manner, its rights under this grant of easements
or in the Easement Area, or the Leased Substances, or pledge or mortgage the
same, except concurrently with and to the same party as any sale, conveyance,
transfer, subletting, assignment, pledge or mortgage of the same interest and/or
rights under the Resource Lease and the Leased Land. To this end, all of the
rights, benefits, obligations and provisions of paragraph 20, entitled
"Assignment", of the Resource Lease are hereby incorporated herein by reference
to the same force and effect as if the same had been set forth herein in full.
23. CONSENT TO MORTGAGE
(a) Grantee shall have the right at all times during the term hereof,
with the consent of Grantor, which consent shall not be unreasonably withheld,
to obtain bonafide loans (including through special purpose revenue bonds) from
a recognized lending or financial institution (including insurance companies),
the Federal government, the State of Hawaii and/or the County of Hawaii, and to
secure such loans by encumbering the easement estate created by this grant of
easements by one or more mortgages, deeds of trust or other security
instruments, including, without limitation, assignments of the rents, issues and
profits from the Easement Area or any portion thereof; provided, however, that
the proceeds of such loans are to be used in the development of
16.
Leased Substances on or from the Leased Land. As used herein, the "development
of the Leased Substances" shall refer to the exploration, development and
procuring of the Leased Substances, the design, planning, purchase,
construction, maintenance and operation of the power plant, xxxxx, gathering and
delivery systems, equipment and other related equipment, personal property,
fixtures and improvements necessary or desirable in the operation of a
geothermal power plant.
(b) As used herein, "Mortgage" shall mean any permitted mortgage, deed
of trust or other security instrument, including, without limitation, an
assignment of the rents, issues and profits from such easements, which
constitutes a lien on all or any portion of the easements created by this grant
of easements. "Mortgagee" shall mean an owner and holder of a Mortgage.
(c) Grantor's obligations under this paragraph 23 to transmit notices
to obtain consents from and accept performance by Mortgagee shall be subject to
Grantor's receipt of written notice from Mortgagee setting forth its name and
address and enclosing a copy of the Mortgage recorded in its favor.
(d) During the continuance of each and every Mortgage and until such
time as the lien of each and every Mortgage has been extinguished:
(1) Grantor shall not agree to any mutual termination nor accept
any surrender or relinquishment of this grant of easements, it being
expressly acknowledged and agreed by Grantor that any such termination
or purported termination or surrender shall be of no force and effect
whatsoever in the absence of an express written consent thereto by
Mortgagee under the Mortgage then in existence, and Grantor shall not
consent to any amendment or modification of this grant of easements,
without the prior written consent of Mortgagee.
(2) Notwithstanding any default by Grantee in the performance or
observance of any agreement, covenant or condition of this grant of
easements on the part of Grantee to be performed or observed, Grantor
shall have no right to terminate this grant of easements or exercise
any other rights set forth herein or arising under applicable law in
the context of a default by Grantee, unless an event of default shall
have occurred and be continuing, Grantor shall have given Mortgagee
written notice of such event of default certifying that the Grantee
has not cured or commenced to cure such default prior to expiration of
17.
the applicable cure period set forth in the grant of easements, and
Mortgagee shall have failed to remedy such default or acquire
Grantee's easements created hereby or commence foreclosure or other
appropriate proceedings in the nature thereof, all as set forth in,
and within the time specified by, this paragraph 23.
(3) Mortgagee shall have the right, but not the obligation, at
any time prior to termination of this grant of easements, to pay all
of the rents due hereunder, to effect any insurance, to pay any taxes
and assessments, to make any repairs and complete or install any
improvements, to do any other act or thing required of Grantee
hereunder, and to do any act or thing which may be necessary and
proper to be done in the performance and observance of the agreements,
covenants and conditions hereof to prevent termination of this grant
of easements. All payments so made and all things so done and
performed by Mortgagee shall be as effective to prevent a termination
of this grant of easements as the same would have been if made, done
and performed by Grantee instead of by Mortgagee.
(4) Should any event of default under this grant of easements
occur, Mortgagee shall have sixty (60) days after receipt of notice
from Grantor setting forth in particular the nature of such event of
default, and certifying that Grantee has not cured or commenced to
cure such default prior to expiration of the applicable cure period
set forth in the grant of easements, and, if the default is such that
possession of such easements may be reasonably necessary to remedy the
default, a reasonable time after the expiration of such sixty (60) day
period within which to remedy such default, provided that (i)
Mortgagee shall have fully cured any default in the payment of any
monetary obligations of Grantee under this grant of easements within
such sixty (60) day period and shall continue to pay currently such
monetary obligations as and when the same are due and (ii) Mortgagee
shall have acquired Grantee's easements created hereby or shall have
commenced foreclosure or other appropriate proceedings in the nature
thereof within such period, or prior thereto, and is diligently
prosecuting any such proceedings. All right of Grantor to terminate
this grant of easements as a result of the occurrence of any such
event of default shall be subject to and conditioned
18.
upon, Grantor having first given Mortgagee written notice of such
default and opportunity to cure after the expiration of Grantee's cure
period, if any, contained in the grant of easements, and Mortgagee
having failed to remedy such event of default or acquire Grantee's
easements created hereby or commence foreclosure or other appropriate
proceedings in the nature thereof as set forth in and within the time
specified by this paragraph 23(d)(4).
(5) Any event of default under this grant of easements which in
the nature thereof cannot be remedied by Mortgagee shall be deemed to
be remedied if (i) within sixty (60) days after receiving written
notice from Grantor (such notice to be given by Grantor after the
expiration of Grantee's cure period, if any, contained in this grant
of easements) setting forth the nature of such event of default and
certifying that Grantee has not cured or commenced to cure such
default prior to expiration of the applicable cure periods pursuant to
the grant of easements, or prior thereto, Mortgagee shall have
acquired Grantee's easements created hereby or shall have commenced
foreclosure or other appropriate proceedings in the nature thereof,
(ii) Mortgagee shall diligently prosecute any such proceedings to
completion, and (iii) Mortgagee shall have fully cured any default in
the payment of any monetary obligations of Grantee hereunder which do
not require possession of such easements within such sixty (60) day
period and shall thereafter continue to faithfully perform all such
monetary obligations which do not require possession of such
easements, and (iv) after gaining possession of such easements,
Mortgagee performs all other obligations of Grantee hereunder
(excepting however the cure or remedy of such event or events of
defaults which in the nature thereof cannot be remedied by Mortgagee)
as and when the same are due.
(6) If Mortgagee despite diligent and prudent efforts is
prohibited by any process or injunction issued by any court or by
reason of applicable law or any action by any court having
jurisdiction of any bankruptcy, reorganization, receivership or
insolvency proceeding involving Grantee from commencing or prosecuting
foreclosure or other appropriate proceedings in the nature thereof,
the times specified in paragraphs 23(d)(4) and (5) above for
commencing or prosecuting such foreclosure or
19.
other proceedings shall be extended for the period of such
prohibition; provided that Mortgagee shall have fully cured any
default in the payment of any monetary obligations of Grantee under
this grant of easements and shall continue to pay currently such
monetary obligations as and when the same fall due.
(7) Grantor shall mail or deliver to Mortgagee a copy of any and
all notices which Grantor may from time to time give to or serve upon
Grantee pursuant to the provisions of this grant of easements. No
notice by Grantor to Grantee hereunder shall be deemed to have been
given unless and until a copy thereof shall have been mailed or
delivered to Mortgagee as herein set forth.
(8) Notwithstanding anything to the contrary contained herein,
foreclosure of a Mortgage, or any sale thereunder, whether by judicial
proceedings or by virtue of any power of sale contained in the
Mortgage, or any conveyance of such easements created hereby from
Grantee to Mortgagee through, or in lieu of foreclosure or other
appropriate proceedings in the nature thereof, shall not require the
consent or approval of Grantor or constitute a breach of any provision
of or a default under this grant of easements, or entitle the Grantor
to any additional compensation, rental or royalty, and upon such
foreclosure, sale or conveyance Grantor shall recognize Mortgagee, or
any other foreclosure sale purchaser or any other transferee in lieu
of foreclosure (collectively "Purchaser"), as Grantee hereunder. If
Mortgagee becomes Grantee under this grant of easements or any new
grant of easements obtained pursuant to paragraph 23(d)(9) below, or
if such easements hereunder are purchased by Mortgagee, Mortgagee
shall be personally liable for the obligations of Grantee under this
grant of easements or such new grant of easements only for the period
of time that Mortgagee remains holder of this grant of easements
thereunder, and Mortgagee's right to sell, transfer or assign this
grant of easements or such new grant of easements shall not be subject
to any restriction whatsoever. Notwithstanding the foregoing, in the
event Mortgagee proposes to sell, transfer or assign this grant of
easements or such new grant of easements, and should Grantor in such
case reasonably believe in good faith that the Mortgagee's proposed
purchaser or assignee is not sufficiently qualified, experienced or
financially
20.
able to undertake the obligations and responsibilities of Grantee
hereunder, then Grantor shall be entitled to propose, for the
Mortgagee's consideration only, one or more alternative purchasers or
assignees who (i) are as well or better qualified financially as
Grantee was at the commencement of this grant of easements, and (ii)
have the technical expertise and experience as a geothermal developer
to undertake the obligations and responsibilities of Grantor
hereunder. Following such proposal by Grantor, the Mortgagee shall
consider in good faith substituting such alternative purchasers or
assignees in lieu of its proposed purchaser or assignee, provided,
however, that the Mortgagee shall in no event be obligated to accept
or otherwise substitute such alternative purchasers or assignees in
lieu of its own or another proposed purchaser or assignee, and shall
be allowed to complete any such sale, transfer or assignment without
delay to any purchaser or assignee selected in the Mortgagee's sole
and absolute discretion. If Mortgagee subsequently assigns or
transfers its interest under this grant of easements to a Purchaser
after acquiring the same by foreclosure or deed in lieu of foreclosure
or subsequently assigns or transfers its interest under any new grant
of easements obtained pursuant to paragraph 23(d)(9) below, and in
connection with any such assignment or transfer Mortgagee takes back a
mortgage or deed of trust encumbering such easements to secure a
portion of the purchase price given to Mortgagee for such assignment
or transfer, then such mortgage or deed of trust shall be considered a
Mortgage as contemplated under this paragraph 23 and Mortgagee shall
be entitled to receive the benefit of and enforce the provisions of
this paragraph 23 and any other provisions of this grant of easements
intended for the benefit of the holder of a Mortgage.
(9) Should this grant of easements be terminated by Grantee as a
result of any rejection or termination by a trustee acting on behalf
of Grantee or by action of Grantor, or as a result of any rejection or
termination by a trustee acting on behalf of Grantor, or otherwise,
including, without limitation, a rejection or termination of such
grant of easements in any case or proceeding under the Bankruptcy
Code or any successor statute thereto, any other bankruptcy or
insolvency law, any law involving the appointment of a receiver,
custodian or other
21.
official for such entity, any law for the winding up of corporations
or other entities, and any law otherwise involving the liquidation or
rehabilitation of entities for financial or other reasons (hereinafter
referred to as a "Bankruptcy Case or Supervised Proceeding"), Grantor
shall, within thirty (30) days after receipt by Grantor of written
request by Mortgagee given within sixty (60) days after receipt by
Mortgagee of notice of such termination, execute and deliver a new
grant of easements of such easements, to be prepared by Mortgagee and
reviewed by Grantor and Grantor's counsel at Mortgagee's sole cost,
and expense, to Mortgagee or its nominee, purchaser, assignee or
transferee, for the remainder of the term of this grant of easements
with the same agreements, covenants and conditions (except for any
requirements which have been fulfilled by Grantee prior to
termination) as are contained herein and with priority equal to that
hereof to the extent such priority is within Grantor's control;
provided, however, that Mortgagee shall promptly cure any defaults of
Grantee susceptible to cure by Mortgagee within thirty (30) days
following the execution and delivery of a new grant of easements of
such easements pursuant to this paragraph 23(d)(9).
(10) Grantor and Grantee shall cooperate in including in this
grant of easements by suitable amendment or other instrument, from
time to time, any provision which may be reasonably requested by
Mortgagee for the purpose of implementing the mortgagee protection
provisions contained in this grant of easements and allowing Mortgagee
reasonable means to protect or preserve the lien of the Mortgage on
the occurrence of a default under the terms of this grant of easements
or termination or rejection in any Bankruptcy Case or Supervised
Proceeding. Grantor and Grantee each agree to execute, deliver and
acknowledge any agreement necessary to effect any such amendment or
other instrument; provided, however, that Grantor shall have no
obligation to execute such amendment or other instrument which in any
way affects the term hereof, or rent or royalties payable under this
grant of easements or otherwise in Grantor's reasonable opinion
materially adversely affects any rights of Grantor under this grant of
easements.
(11) There shall be no merger of this grant of easements, of any
interest in this grant of
22.
easements, or of such easements created thereby with the fee estate in
the Easement Area or any other estate in the Easement Area, for any
reason including but not limited to a merger by reason of the fact
that this grant of easements or such interest therein or such
easements may be directly or indirectly held by or for the account of
any person who shall hold the fee estate in the Easement Area or any
other estate in the Easement Area, nor shall there be such a merger by
reason of the fact that all or any part of such easements created
hereby may be conveyed or mortgaged in a Mortgage to a Mortgagee who
shall hold the fee estate in the Easement Area or any other estate in
the Easement Area.
24. AIR AND OTHER RIGHTS
Anything herein contained to the contrary notwithstanding, Grantee
will not at any time during said term sublet, assign, surrender or otherwise
transfer any air rights or other rights whatsoever on, over, under or in respect
to said land, other than easements for drains, sewers, water, electricity or
other utilities with the approval in writing of Grantor.
25. SURRENDER
Grantee may, at anytime or times during said term, surrender this
grant of easements or any portion or portions of the Easement Area by giving to
Grantor not less than sixty (60) days' written notice thereof, provided that:
(a) Grantee is not then in default hereunder;
(b) Any surrendered portion shall be a legally subdivided lot if
required by applicable subdivision ordinances, rules and
regulations;
(c) Grantee has complied with all applicable provisions of the
Resource Lease and this grant of easements in respect to the
surrendered area, including without limitation removal of its
structures and facilities, restoration of the surrendered area,
and satisfaction in full of all valid damage claims;
(d) The surrendered area is free of any claims by, through, under or
against Grantee; and
23.
(e) If a buffer zone had been included within the Easement Area and a
portion of the Easement Area is surrendered, the remaining
Easement Area shall include a similar or other appropriate buffer
zone.
In the event of such surrender, and if the surrendered area had been previously
withdrawn from a surface tenant's lease, and if Grantor is unable to lease such
area to others, Grantee shall pay to Grantor proportionate rentals and real
property taxes in respect thereto in accordance with the provisions of paragraph
8(p)(l)(g) of the Resource Lease. Except as expressly provided in paragraph 15D
hereof, any surrender, quitclaim or other termination under the Resource Lease
of that portion of the Leased Land of which the Easement Area comprises a part
shall be deemed to be a concurrent surrender, quitclaim or termination of the
portion of this grant of easements affected thereby.
26. REMOVAL OF EQUIPMENT
Except as provided in the State Lease and so long as Grantee is not in
default under this grant of easements or the Resource Lease, and prior to
termination or surrender by Grantee as to the Easement Area affected, Grantee
shall have the right at any time and from time to time to remove from the
Easement Area any and all casing, machinery, equipment, structures,
installations and property of every kind and character placed upon the Easement
Area by or pursuant to permission of Grantor. In the event that Grantor's
property or that of its tenants are damaged by the removal of Grantee's
property, then Grantee agrees to compensate Grantor and its tenants for such
damages. If the Easement Area is damaged, Grantee shall restore such land to
substantially the same condition or quality in which it was before Grantee used
it, and if farm land then Grantee will return the same to a Farmable Condition.
If Grantee fails to do so, Grantor shall so restore the land at Grantee's
expense. In such event, the reasonable costs thereof incurred by Grantor shall
be paid by Grantee within thirty (30) days of notice thereof.
27. CONDEMNATION
(a) Grantee Notice, Etc. In case of a transfer of all or any part of
the Easement Area, the improvements thereon and/or the interests of Grantor and
Grantee under this grant of easements as the result of condemnation or eminent
domain ("Taking") or the commencement of any proceedings or negotiations which
might result in such Taking, Grantee will promptly give written notice thereof
to Grantor generally
24.
describing the nature and extent of such Taking or the nature of such
proceedings and negotiations and the nature and extent of the Taking which might
result therefrom, as the case may be. Grantor and Grantee may thereafter each
file and prosecute their respective claims for an award in the appropriate court
having jurisdiction over such matter. In case of any Taking hereunder, Grantee
shall not by reason thereof be entitled to any claim against Grantor or Kapoho
Land Development Company, Limited, its successors or assigns, for compensation
or indemnity for leasehold interest.
(b) Total Taking. In case of a Taking of the interests of Grantor and
Grantee under this grant of easements, this grant of easements shall terminate
as of the date that title vests in the condemning authority or the date that the
condemning authority is entitled to possession of the interests of Grantor and
Grantee under the grant of easements, whichever first occurs (the "Date of
Taking"). In case of a Taking of such a substantial part of the interests of
Grantor and Grantee under the grant of easements as shall result in the
remaining interests of Grantee being unsuitable for Grantee's use as
contemplated in this grant of easements, as determined by the parties, or if the
parties are unable to agree, as determined by arbitration, this grant of
easements shall terminate as of the date of Taking. Any Taking of the interests
of Grantor and Grantee of the character referred to in this paragraph 27(b) is
referred to as a "Total Taking."
(c) Partial Taking. In case of a Taking of the interests of Grantor
and Grantee other than a Total Taking or "Temporary Taking" (as hereinafter
defined) (a "Partial Taking"), this grant of easements shall remain in full
force and effect as to the portion of such respective interests remaining
immediately after such Taking, without any abatement or reduction of rent, or
any other sum payable hereunder, except as provided in paragraph 27(e). Any
Taking of such interest for temporary use, i.e. other than a Total Taking or a
Partial Taking, shall be referred to as a "Temporary Taking."
(d) Application of Awards and Other Payments. Awards and other
payments on account of a Taking ("Awards and Payments") shall be applied as
follows:
(1) Awards and Payments received on account of a Partial Taking
or a Total Taking shall be allocated between Grantor and Grantee as
follows:
(i) To Grantee, all compensation and damages payable for or
on account of any buildings, structures, lines and other improvements
erected by
25.
Grantee on the Easement Area and such other damages as Grantee is able
to establish, including but not limited to damages to its ongoing
business and associated contractual rights created with respect
thereto as determined by the appropriate court having jurisdiction
over such matter; and
(ii) To Grantor, all compensation and damages payable for or
on account of any land or buildings, structures, lines or other
improvements thereon except those erected by Grantee and the fair
market value of Grantor's reversionary interest and such other damages
as Grantor may be able to establish, including but not limited to
severance damages and damages to its ongoing business and contractual
rights created with respect thereto, as determined by the appropriate
court having jurisdiction over such matter; and
(iii) Grantor and Grantee agree to request that the
condemning authority specify the amount to be awarded and paid to
Grantor and Grantee, respectively.
(2) In the event of a Temporary Taking, this grant of easements
shall not terminate nor shall Grantee be excused from full performance of
its covenants for the payment of money or any other obligations hereunder
capable of performance by Grantee, but in such case Grantee or those
claiming under Grantee may claim and recover from the condemning authority
any and all Awards and Payments made with respect thereto; provided that,
if any portion of any such award or payment is made by reason of any
damage, destruction or diminution of the property interests of Grantor and
Grantee, respectively, of and/or covered by the grant of easements, such
portion shall be held and applied as provided in paragraph 27(d)(l).
(e) Reduction of Rent. In the event of a Partial Taking, each
installment of rent commencing with the first rent payment date following the
Date of Taking shall be reduced by an amount representing the product of the
number of acres taken multiplied by the current rent payable per acre.
28. ARBITRATION
In the event of a dispute or controversy between the parties
concerning any provision of this grant of easement which specifically requires
arbitration, such dispute or
26.
controversy shall be submitted to arbitration pursuant to the following
procedure:
(a) Either party may demand arbitration by giving written notice of
same to the other party.
(b) In the event the parties can agree on the appointment of a single
arbitrator within fifteen (15) days after the giving of the notice required by
subparagraph (a) next above, then the dispute shall be determined by a single
arbitrator.
(c) In the event the parties hereto cannot mutually agree on a single
arbitrator within the time period set forth in subparagraph (b) next above, the
dispute shall be determined by three (3) arbitrators, and each party shall,
within thirty (30) days after the giving of the notice required by subparagraph
(a) next above, appoint its arbitrator and notify the other party thereof, and
if a party should fail to name an arbitrator within said 30-day period, then the
other party may apply to a judge of the Circuit Court of the First Circuit,
State of Hawaii, requesting that such judge appoint a second arbitrator and the
two arbitrators who have been so appointed shall appoint a third arbitrator and
shall give notice of said appointment to the parties hereto; provided, however,
if the two arbitrators appointed by the parties fail to appoint a third
arbitrator within fifteen (15) days after the appointment of the second
arbitrator, either party may apply to said judge requesting him to appoint a
third arbitrator.
(d) The parties shall have the right to use all of the methods of
discovery set forth in the Hawaii Rules of Civil Procedure, as amended from time
to time, and the arbitrator(s) shall have all the powers and authority of a
Circuit Court judge under said rules including without limitation, the power to
grant relief, make appropriate orders, assess costs and attorneys' fees, and the
power to impose other sanctions against a party. Said rules on discovery, as
amended from time to time, are hereby incorporated in this grant of easements.
In addition, the arbitrator(s) shall have the power to shorten time periods so
as to expedite the arbitration proceedings.
(e) The arbitration proceedings shall be heard in Honolulu, Hawaii.
The arbitration hearings shall be concluded within thirty (30) days of the
appointment of the single arbitrator or of the appointment of the third
arbitrator, unless otherwise ordered by the arbitrator(s), and the award thereon
shall be made within thirty (30) days after the close of the submission of
evidence.
27.
(f) The fees of a single arbitrator shall be borne equally by the
parties. In the event of three arbitrators, each party shall pay the fees of the
arbitrator appointed by it and the fees of the third arbitrator shall be borne
equally by the parties. All other costs and expenses incurred by the arbitrators
shall be borne equally by the parties. Except for the foregoing, each party
shall bear its own arbitration costs and expenses.
(g) The award may include costs and attorney's fees to the prevailing
party. Subject to Chapter 658, Hawaii Revised Statutes, the award rendered by
the single arbitrator or by a majority of the arbitrators, as the case, shall
be, shall be final and binding on all parties to the proceedings and judgment on
such award may be entered by either party in the Circuit Court of the First
Circuit, State of Hawaii.
(h) The parties agree that the provisions hereof shall be a complete
defense to any suit, action or proceeding instituted in any court or before any
administrative tribunal with respect to any dispute or controversy within the
scope of the provisions of this paragraph.
(i) Nothing herein contained shall be deemed to give the arbitrators
any authority, power or right to alter, change, amend or modify any of the
provisions of this grant of easements, except as to the specific issues and
matters that may be altered, changed, amended or modified by arbitration
pursuant to the provisions of this grant of easements.
29. FORCE MAJEURE
Any obligation of Grantee hereunder shall be suspended, while Grantee
is prevented from complying therewith, in whole or in some material part, by a
situation or condition beyond the control of Grantee (including but not limited
to acts of God, strikes, lockouts, riots, inability to secure labor or materials
in the open market, action of the elements, earthquakes, volcanic eruptions,
laws, rules or regulations of any Federal, State, Municipal or other
governmental agency, authority or representative having jurisdiction, litigation
or administrative proceedings) which occurs and continues to exist despite
Grantee's timely, diligent and good faith efforts to rectify such situation or
condition. If Grantee is prevented from performing an obligation under this
grant of easements by reason of force majeure and by reason thereof Grantee is
unable to perform some obligation which is a pre-requisite to or condition of
the continuance of the term of this grant of easements, then the term shall be
likewise extended, but not beyond the term provided in paragraph 3 of the
Resource Lease
28.
and, if applicable, the State Lease. To qualify for a suspension of such
obligation, Grantee must notify Grantor within ninety (90) days after the
occurrence of the condition of force majeure to the extent it is known or should
have been known to a reasonable person and must give Grantor the full
particulars of the delay or failure to act on the part of Grantee that is caused
by reasons of force majeure. In addition, Grantee must take diligent,
affirmative action to remedy the delay or failure to act with all reasonable
dispatch, but shall not be required to settle any labor disputes upon terms
which Grantee shall find unacceptable, and within thirty (30) days of the day
that the aforementioned situation or condition is cured, Grantee shall give
Grantor written notice of such curative action. Notwithstanding the foregoing,
Grantee will comply with the provisions of this grant of easements which Grantee
is not prevented from performing including but not limited to the payment of
annual rent (as the same may be reduced as provided in paragraph 30 hereof)
provided for in this grant of easements.
If the force majeure event is applicable to extend the terms of the
State Lease and Resource Lease, Grantee's reasons for application of force
majeure must also qualify Grantor to obtain approval thereof under the State
Lease.
30. DESTRUCTION OF FACILITIES
If at any time or times during said term, the xxxxx, pipelines or
facilities on the Easement Area designed for the production, delivery or use of
Leased Substances are so damaged or the production of Leased Substances on or
from the Easement Area to such facilities on or off the Easement Area ceases or
is diminished by reason of lava flows, volcanic disturbances, eruptions, seismic
actions so as to interrupt the sale, delivery or use of Leased Substances, the
annual rent payable hereunder shall be reduced (calculated to the nearest
dollar) in the proportion which the sustained capability of production after
such event bears to the sustained capability of production before such event.
Such proportion shall be determined by mutual agreement of the parties hereto
or, in the event the parties hereto shall fail to reach agreement within sixty
(60) days after such event, the matter shall be determined by arbitration as
provided in paragraph 28 hereof. As the xxxxx, pipelines and facilities for the
production, sale or use of Leased Substances are restored to service and the
sale or use of Leased Substances increases, the annual rent shall be
proportionately increased until such rent reaches the level which would
otherwise be payable but for such interruption.
29.
31. ARCHAEOLOGICAL STUDIES
Except insofar as the same shall have been performed under the
Resource Lease, Grantee will cause to be performed at its expense, prior to
commencement of any work on the Easement Area, archaeological studies by the
Xxxxxx Museum Staff, and will set aside and not disturb all sites determined to
have significant archaeological value. Grantor hereby excepts and reserves from
this grant of easements all objects of historical interest and all antiquities
including all specimens of Hawaiian or other ancient art or handicraft which may
be on the Easement Area. Grantee will, forthwith after the finding or discovery
of same, deliver up to Grantor all such objects and antiquities.
32. NOTICE
All notices, demands, requests, consents, directions and other
communications required or permitted hereunder shall ___________________________
________________________________________________________________________________
be in writing and shall be deemed to have been given (i) upon receipt, (ii)
when transmitted by telex to the number specified below and the proper
answerback is received, or (iii) five (5) Banking Days after being deposited in
a regularly maintained receptacle for the United States Postal Service, postage
prepaid, registered or certified, return receipt requested, addressed to the
respective party, as the case may be, at the following address, or such other
address as any party may from time to time designate by written notice to the
others as herein required. The telecopy (facsimile) numbers provided below are
for convenience of the parties only. Transmission by telecopy shall constitute
giving of notice under this grant of easements only if receipt thereof is
acknowledged by the recipient.
A "Banking Day" is defined as one day that is not a Saturday, Sunday
or a local holiday in the State of Hawaii or a day on which banking institutions
chartered by the State of Hawaii or the United States and located in the State
of Hawaii are legally required or authorized to close.
If to Grantor: Kapoho Land Partnership
X.X. Xxx 000
Xxxx, Xxxxxx 00000
with a copy to: Xxxxxx Xxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxxx 00000
30.
If to Grantee: Puna Geothermal Venture
000 Xxxxxx Xxxxxx
Xxxxx 0000-X
Xxxx, Xxxxxx 00000
Attention: Regional Development Manager
Telecopy: (000) 000-0000
with copies to: Ormat Energy Systems, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000-0000
Attention; President
Telecopy: (000) 000-0000
Xxxxxxx Coie
0000 Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Anything in this grant of easements to the contrary notwithstanding,
since Grantee is by the terms hereof obligated to perform in Grantor's behalf
all of Grantor's obligations under the State Lease and since Grantee has no
direct contractual relationship with the State, Grantor hereby covenants and
agrees that it will promptly provide to Grantee a copy of any written notice or
other written communication received from the State which relates to the
obligations under the State Lease and, until and unless the State formally
substitutes Grantee thereunder for Grantor, insofar as notices are concerned
under the State Lease, Grantor will hold Grantee harmless from any damages that
Grantee may suffer by reason of Grantor's failure to so provide Grantee with a
copy of any notice from the State within sufficient time to allow Grantee to
take such action as is required by such notice.
Grantee agrees promptly to provide Grantor with a copy of any written
notice or other written communication which it receives from the State under the
State Lease, and will hold Grantor harmless from any damages that Grantor may
suffer by reason of Grantee's failure to so provide Grantor with a copy of any
such notice or communication from the State within sufficient time to allow
Grantor to take such action as is required of Grantor by such notice.
31.
33. SAVINGS CLAUSE
In the event any part or portion or provision of this grant of
easements shall be found or declared to be null, void or unenforceable for any
reason whatsoever in any final determination by any court of competent
jurisdiction or any governmental agency having authority thereover (and such
determination shall be upheld on appeal, if an appeal is sought), then and in
such event only such part, portion or provision shall be affected thereby, and
such finding, ruling or decision shall not in any way affect the remainder of
this grant of easements or any of the other terms or conditions hereof, which
said remaining, terms and conditions shall remain binding, valid and subsisting
and in full force and effect between the parties hereto, it being specifically
understood and agreed that the provisions hereof are severable for the purposes
of the provisions of this paragraph. In this connection, this grant of easements
shall not in any event extend beyond such term as may be legally permissible
under present applicable laws, and should any such applicable law limit the
term hereof to less than that herein provided, then this grant of easements
shall not be void but shall be deemed to be in existence for such term and no
longer.
34. AMENDMENTS; FURTHER DOCUMENTS
Neither this grant of easements nor any of its terms may be amended,
waived or altered in any way except by a formal written agreement executed by
both Grantor and Grantee.
Grantor and Grantee agree to promptly execute and deliver such other
documents, certificates, agreements or other written instruments as may be
necessary or deemed useful by either party to evidence the agreements contained
herein or to carry out the provisions hereof.
If either party is required or desires to place this grant of
easements on the public record and desires to use for such purpose a short form
of grant of easements which shall be in form sufficient to convey public notice
of this grant of easements but shall not contain any of the details and
economics herein contained, the parties shall promptly execute and deliver such
short form of grant of easements.
The party making any such request shall prepare such instrument and
shall bear the cost therefor and, if desired, for placing the same on the public
record, but each of the parties shall otherwise bear their own costs for
processing the same.
32.
35. NONWAIVER
The use of paragraph headings in this grant of easements is for the
purpose of convenience and the same may be disregarded in the construction of
this grant of easements. Time is hereby expressly declared to be of the essence
of this grant of easements and of each and every provision hereof. The waiver by
Grantor of any breach by Grantee of any provision hereof shall not be deemed a
waiver of such provision or a waiver of any other prior or subsequent breach
thereof or a waiver of any breach of any other provision of this grant of
easements. Neither the acceptance of rent after notice or knowledge of a breach
of any provision hereof nor any other action of Grantor hereunder, except an
express waiver in writing shall be deemed a waiver by Grantor of any breach of
any provision hereof by Grantee.
36. DEFAULT AND DEFEASANCE
This grant of easements is upon the express condition that if Grantee
shall fail to pay said rent or any part thereof within fifteen (15) days after
written notice to Grantee or shall fail to begin to remedy the violation or
breach of any of its covenants or agreements herein within sixty (60) days after
written notice thereof given by Grantor to Grantee and/or fail to complete the
same in diligent and workmanlike manner, or shall abandon the Easement Area, or
if this grant of easements or any interest of Grantee hereunder shall be sold
under any attachment or execution, Grantor may at once reenter the Easement Area
or any part thereof in the name of the whole and, upon or without such entry, at
its option terminate this grant of easements, without further service of notice
or legal process and without prejudice to any other remedy or right of action
for arrears of rent or for any preceding or other breach of contract. If this
grant of easements is recorded in the Hawaii Bureau of Conveyances or filed in
the Office of the Assistant Registrar of the Land Court of Hawaii, such
termination may but need not necessarily be made effective by recording or
filing in such place an affidavit thereof by Grantor or a judgment thereof by a
court of competent jurisdiction. If Grantee shall fail to observe or perform any
of its covenants herein contained, Grantor at any time thereafter may, but shall
not be obligated to, observe or perform such covenant for the account and at the
expense of Grantee, and all costs and expenses incurred by Grantor in observing
and performing such covenant shall constitute additional rent and shall bear
interest as provided in paragraph 5 hereof.
33.
37. JOINT AND SEVERAL LIABILITY
If more than one person or entity signs this grant of easements as
Grantee, the liability of such persons or entities shall be joint and several.
38. APPLICABLE LAW
This grant of easements shall be deemed to have been made and shall be
construed and interpreted in accordance with the laws of the State of Hawaii.
39. DEFINITIONS
(a) The term "Easement Area" herein shall be deemed or taken to
include (except where such meaning would be clearly repugnant to the context)
all structures, facilities and other improvements now or at any time hereafter
erected or placed on the portion of the Leased Land covered by the Easement Area
and this grant of easements.
(b) The term "Grantor" herein or any pronoun used in place thereof
shall mean and include Grantor, its successors and assigns.
(c) The term "Grantee" herein or any pronoun used in place thereof
shall mean and include the masculine or feminine, the singular or plural number,
and jointly and severally individuals, firms or corporations, and their and each
of their respective heirs, successors, personal representatives and permitted
assigns, according to the context hereof.
(d) The term "Resource Lease" herein shall mean and refer to that
certain unrecorded Lease and Agreement dated March 1, 1981, by and between
Kapoho Land Partnership, as lessor, and Xxxxxxxxxx Corporation and Thermal Power
Company, as lessee, a short form of which was recorded in the Bureau of
Conveyances of the State of Hawaii in Liber 16267, page 466, which, by
Assignment of Lease and Agreement, made effective May 3, 1982, and recorded in
said Bureau in Liber 17122, Page 70, was assigned to Grantee (then consisting of
Xxxxxxxxxx Geothermal, Inc., Thermal Power Company and Amfac Energy, Inc.), the
consent of Grantor thereto being given by letter consent dated March 10, 1983,
as the Resource Lease may be further amended from time to time.
(e) The term "State Lease" herein shall mean that certain unrecorded
Geothermal Resources Mining Lease No. R-2, dated February 20, 1981, by the State
of Hawaii, as lessor, and
34.
Lessor, as lessee, which is referenced in paragraph 1 of the Resource Lease.
(f) The term "Leased Land" herein shall mean all of that certain land
described in paragraph 2 and in Exhibit "A" of the Resource Lease.
(g) This grant of easements, although separate from the Resource
Lease, is an integral part of Grantee's overall operations under the Resource
Lease and all of the provisions, terms and conditions herein contained shall be
so construed and enforced. In case of conflict between this grant of easements
and the Resource Lease, the latter will control.
(h) Except as herein otherwise defined, all other terms common to this
grant of easements and the Resource Lease shall have the same meaning as such
terms are used and defined in the Resource Lease.
(i) Whenever this grant of easements requires the consent or approval
of either Grantor or Grantee, such consent or approval shall not be unreasonably
or arbitrarily withheld.
IN WITNESS WHEREOF the parties hereto have executed these presents the
day and year first above written.
KAPOHO LAND PARTNERSHIP, PUNA GEOTHERMAL VENTURE,
a Hawaii limited partnership a Hawaii general partnership
By: Kapoho Management Co., Inc., By: AMOR VIII Corporation,
a Hawaii corporation a Delaware corporation,
Its General Partner general partner
By: Illegible By: Illegible
--------------------------------- --------------------------------
Its: ______________ Its: ASSISTANT SECRETARY
By: Illegible By: AMOR VI Corporation,
--------------------------------- a Delaware corporation,
Its: President general partner
By: Illegible By: Illegible
--------------------------------- --------------------------------
Its: Vice President Its: ASSISTANT SECRETARY
Lessor Lessee
35.
DESCRIPTION
WELL PAD A SITE
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the northeast corner of this parcel of land, the coordinates of
said point of beginning referred to Government Survey Triangulation Station
"KALIU" being 9,149.15 feet North and 9,882.35 feet East and running by azimuths
measured clockwise from True South:
1. 335 DEG. 48' 300.00 feet;
2. 55 DEG. 48' 450.00 feet along Easement S-1;
3. 155 DEG. 48' 300.00 feet along Easement S-4;
4. 245 DEG. 48' 450.00 feet to the point of beginning and
containing an area of 3.099 Acres.
April 13, 1990 (Revised) ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
----------------------------------------
TMK: 0-0-00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx 0000-X
Exhibit "A" 1 of 20
DESCRIPTION
WELL PAD B SITE
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the northwest corner of this parcel of land, the coordinates of
said point of beginning referred to Government Survey Triangulation Station
"KALIU" being 9,672.29 feet North and 10,788.58 feet East and running by
azimuths measured clockwise from True South:
1. 245 DEG. 48' 450.00 feet;
2. 335 DEG. 48' 230.00 feet;
3. 65 DEG. 48' 350.00 feet;
4. 65 DEG. 48' 100.00 feet along Easement S-3;
5. 155 DEG. 48' 186.32 feet along Power Plant Site;
6. 155 DEG. 48' 43.58 feet to the point of beginning and
containing an area of 2.376 Acres.
April 13, 1990 (Revised) ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobochika
----------------------------------------
TMK: 0-0-00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx 0000-X
Exhibit "A" 2 of 20
DESCRIPTION
WELL PAD D SITE
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the south corner of this parcel of land, the coordinates of
said point of beginning referred to Government Survey Triangulation Station
"KALIU" being 10,374.52 feet North and 10,304.00 feet East and running by
azimuths measured clockwise from True South:
1. 000 XXX. 36' 30.16 feet along Easement N-3;
2. 130 DEG. 36' 294.84 feet;
3. 220 DEG. 36' 300.00 feet;
4. 310 DEG. 36' 325.00 feet;
5. 40 DEG. 36' 300.00 feet to the point of beginning and
containing an area of 2.238 Acres.
April 13, 1990 (Revised) ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
----------------------------------------
TMK: 0-0-00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx 0000-X
Exhibit "A" 3 of 20
DESCRIPTION
WELL PAD E SITE
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the northeast corner of this parcel of land, the coordinates of
said point of beginning referred to Government Survey Triangulation Station
"KALIU" being 8,471.28 feet North and 9,453.90 feet East and running by azimuths
measured clockwise from True South:
1. 337 DEG. 24' 310.00 feet;
2. 67 DEG. 24' 470.00 feet;
3. 157 DEG. 24' 310.00 feet;
4. 000 XXX. 24' 470.00 feet along Easement S-1 to the point of
beginning and containing an area of
3.345 Acres.
March 6, 1990 ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
-------------------------------
TMK: 0-0-00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx 0000-X
Exhibit "A" 4 of 20
DESCRIPTION
WELL PAD E SITE
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the northwest corner of this parcel of land, the coordinates of
said point of beginning referred to Government Survey Triangulation Station
"KALIU" being 8,403.40 feet North and 10,575.21 feet East and running by
azimuths measured clockwise from True South:
1. 242 DEG. 58' 20" 108.20 feet;
2. 242 DEG. 58' 20" 30.13 feet along Easement S-2;
3. 242 DEG. 58' 20" 211.67 feet;
4. 332 DEG. 58' 20" 300.00 feet;
5. 62 DEG. 58' 20" 350.00 feet;
6. 152 DEG. 58' 20" 300.00 feet to the point of beginning and
containing an area of 2.410 Acres.
March 6, 1990 ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
-------------------------------
TMK: 0-0-00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx 0000-X
Exhibit "A" 5 of 20
DESCRIPTION
EASEMENT A-1
(Storage Purpose)
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the southeast corner of this parcel of land, the coordinates of
said point of beginning referred to Government Survey Triangulation Station
"KALIU" being 10,696.76 feet North and 9,327.99 feet East and running by
azimuths measured clockwise from True South:
1. 51 DEG. 11' 70.00 feet;
2. 141 DEG. 11' 300.00 feet;
3. 231 DEG. 11' 70.00 feet;
4. 321 DEG. 11' 300.00 feet along Lot 1 to the point of
beginning and containing an area of
0.482 Acre.
April 13, 1990 (Revised) ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
-------------------------------
TMK: 0-0-00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx 0000-X
Exhibit "A" 6 of 20
DESCRIPTION
EASEMENT B
(Storage Purposes)
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the south corner of this parcel of land, the coordinates of said
point of beginning referred to Government Survey Triangulation Station "KALIU"
being 10,734.37 feet North and 9,374.73 feet East and running by azimuths
measured clockwise from True South:
1. 141 DEG. 11' 300.00 feet along Easement N-1;
2. 231 DEG. 11' 470.00 feet;
3. 321 DEG. 11' 300.00 feet;
4. 51 DEG. 11' 470.00 feet to the point of beginning and containing an
area of 3.237 Acres.
March 6, 1990 ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
-----------------------------------
TMK: 0-0-00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx 0000-X
Exhibit "A" 7 of 20
DESCRIPTION
EASEMENT N-3
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the northeast corner of this parcel of land, the south corner of
Well Pad "D", the coordinates of said point of beginning referred to Government
Survey Triangulation Station "KALIU" being 10,374.52 feet North and 10,304.00
feet East and running by azimuths measured clockwise from True South:
1. 34 DEG. 46' 409.87 feet;
2. 000 XXX. 52' 30.02 feet along Xxx 0 (Xxxxx Xxxxx);
0. 000 XXX. 46' 413.93 feet;
4. 000 XXX. 36' 30.16 feet along Well Pad "D" to the point of beginning
and containing an area of 0.284 Acre.
April 13, 1990 (Revised) ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
-----------------------------------
TMK: 0-0-00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx 0000-X
Exhibit "A" 8 of 20
DESCRIPTION
EASEMENT P-1
(Powerline Cable Access)
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the northeast corner of this parcel of land and the northwest
corner of Power Plant Site, the coordinates of said point of beginning referred
to Government Survey Triangulation Station "KALIU" being 9,409.81 feet North and
10,225.71 feet East and running by azimuths measured clockwise from True South:
1. 000 XXX. 48' 15.01 feet along Power Plant Site;
2. 67 DEG. 18' 15" 400.17 feet;
3. 000 XXX. 48' 15.01 feet along Sub-station Site;
4. 247 DEG. 18' 15" 400.17 feet to the point of beginning and containing an
area of 6,004 Square Feet.
March 22, 1990 ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
-----------------------------------
TMK: 0-0-00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx 0000-X
Exhibit "A" 9 of 20
DESCRIPTION
EASEMENT S-I
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the northwest corner of this parcel of land and on the east side of
Pohoiki Road, the coordinates of said point of beginning referred to Government
Survey Triangulation Station "KALIU" being 8,223.04 feet North and 8,563.30 feet
East and running by azimuths measured clockwise from True South:
1. 283 DEG. 56' 29" 146.57 feet;
2. 249 DEG. 13' 85.26 feet;
3. 243 DEG. 34' 101.26 feet;
4. 242 DEG. 05' 144.24 feet;
5. 247 DEG. 24' 439.99 feet;
6. 157 DEG. 24' 98.64 feet;
7. 245 DEG. 48' 244.70 feet;
8. 000 XXX. 48' 450.00 feet along Well Pad A;
9. 000 XXX. 48' 50.00 feet along Easement S-2;
10. 57 DEG. 54' 34" 675.06 feet;
11. 67 DEG. 24' 470.00 feet along Well Pad E;
12. 157 DEG. 24' 13.12 feet;
13. 62 DEG. 05' 141.84 feet;
14. 68 DEG. 34' 103.12 feet;
15. 69 DEG. 13' 86.74 feet;
16. 57 DEG. 21' 50" 157.48 feet;
17. Thence along Pohoiki Road along a curve to the left having a radius of
182.00, the chord azimuth and distance being:
Exhibit "A" 10 of 20
172 DEG. 12' 40" 149.67 feet to the point of
beginning and containing an area of 2.485
Acres.
April 13, 1990 (Revised) ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
----------------------------------------
TMK: 0-0-00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx 0000-X
Exhibit "A" 11 of 20
DESCRIPTION
EASEMENT S-2-A
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8558, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the northeast corner of this parcel of land, and on the southerly
side of Power Plant Site, the coordinates of said point of beginning referred to
Government Survey Triangulation Station "KALIU" being 8972.24 feet North and
10,494.23 feet East and running by azimuths measured clockwise from True South:
1. 338 DEG. 13' 544.89 feet;
2. 62 DEG. 58' 20" 30.13 feet along Well Pad F;
3. 158 DEG. 13' 546.38 feet;
4. 000 XXX. 48' 30.03 feet along Power Plant Site to the point of
beginning and containing an area of 0.376
Acre.
May 16, 1990 ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
----------------------------------------
Nobuchika Santo
Registered Land Surveyor 1360-S
Exhibit "A" 12 of 20
DESCRIPTION
EASEMENT S-4
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the southwest corner of this parcel of land, on the northerly side
of Easement S-1, the coordinates of said point of beginning referred to
Government Survey Triangulation Station "KALIU" being 8,494.29 feet North and
9,157.06 feet East and running by azimuths measured clockwise from True South:
1. 155 DEG. 48' 355.00 feet;
2. 245 DEG. 48' 180.00 feet;
3. 000 XXX. 48' 30.00 feet along HELCO SWITCHING YARD;
4. 65 DEG. 48' 150.00 feet;
5. 335 DEG. 48' 25.00 feet;
6. 335 DEG. 48' 300.00 feet along Well Pad "A";
7. 65 DEG. 48' 30.00 feet along Easement S-1 to the point of beginning
and containing an area of 0.348 Acre.
April 16, 1990 ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
--------------------------------
TMK: 0-0-00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx 0000-X
Exhibit "A" 13 of 20
DESCRIPTION
SUB-STATION SITE
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the northeast corner of this parcel of land, the coordinates of
said point of beginning referred to Government Survey Triangulation Station
"KALIU" being 9,316.97 feet North and 9,828.86 feet East and running by
azimuths measured clockwise from True South:
1. 335 DEG. 48' 67.50 feet;
2. 335 DEG. 48' 15.01 feet along Easement P-1;
3. 335 DEG. 48' 67.49 feet;
4. 65 DEG. 48' 120.00 feet;
5. 155 DEG. 48' 150.00 feet along Helco Switch Yard;
6. 245 DEG. 48' 120.00 feet to the point of beginning and containing an
area of 18,000 Square Feet.
April 13, 1990 (Revised) ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
--------------------------------
TMK: 0-0-00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx 0000-X
Exhibit "A" 14 of 20
DESCRIPTION
HELCO SWITCHING YARD SITE
Affecting Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
Kapoho, Puna, Island of Hawaii, Hawaii
Beginning at the northwest corner of this parcel of land, the coordinates of
said point of beginning referred to Government Survey Triangulation Station
"KALIU" being 9,231.40 feet North and 9,516.49 feet East and running by azimuths
measured clockwise from True South:
1. 245 DEG. 48' 125.00 feet;
2. 155 DEG. 48' 50.00 feet;
3. 245 DEG. 48' 75.00 feet;
4. 335 DEG. 48' 100.00 feet;
5. 000 XXX. 48' 150.00 feet along Sub-Station Site;
6. 65 DEG. 48' 200.00 feet;
7. 000 XXX. 48' 30.00 feet along Easement S-4;
8. 155 DEG. 48' 170.00 feet to the point of beginning and containing an
area of 43,750 Square Feet.
April 13, 1990 (Revised) ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
--------------------------------
TMK: 0-0-00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx Xxxxxxxx 0000-X
Exhibit "A" 15 of 20
DESCRIPTION
MONITORING STATION 1-A
Being a Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
At Kapoho, Puna, Hawaii
Beginning at the southwest corner of this parcel of land, the coordinates of
said point of beginning referred to Government Survey Triangulation Station
"KALIU" being 7,527.06 feet North and 8,944.19 feet East and running by azimuths
measured clockwise from True South:
1. 163 DEG. 10' 15.00 feet;
2. 253 DEG. 10' 15.00 feet;
3. 343 DEG. 10' 15.00 feet;
4. 73 DEG. 10' 15.00 feet to the point of beginning and
containing an area of 225 Square Feet.
April 2, 1990 ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
----------------------------------------
TMK: 1-4-01: 02 portion Nobuchika Santo
Registered Land Surveyor 1360-S
Exhibit "A" 16 of 20
[LOGO] ISLAND SURVEY. INC.
DESCRIPTION
MONITORING STATION 1-B
Being a Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
At Kapoho, Puna, Hawaii
Beginning at the southeast corner of this parcel of land, the coordinates of
said point of beginning referred to Government Survey Triangulation Station
"KALIU" being 7,515.34 feet North and 8,927.89 feet East and running by azimuths
measured clockwise from True South:
1. 73 DEG. 10' 28.00 feet;
2. 163 DEG. 10' 20.00 feet;
3. 253 DEG. 10' 28.00 feet;
4. 343 DEG. 10' 28.00 feet to the point of beginning and
containing an area of 784 Square Feet.
April 2, 1990 ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
----------------------------------------
TMK: 1-4-01: 02 portion Nobuchika Santo
Registered Land Surveyor 1360-S
Exhibit "A" 17 of 20
[LOGO] ISLAND SURVEY. INC.
[GRAPHIC]
PLAN SHOWING MONITORING STATION 1-A AND 1-B
BEING PORTIONS OF L.P. 8177 and R.P. 4497
L.C. AW. 8559; APANA 5 to C. KANAINA
KAPOHO, PUNA, HAWAII
Survey and Plan by Island Survey_ Inc.
Xx. Xxx 000 Xxxx, Xxxxxx 00000
April 2, 1990
[SEAL]
/s/ Illegible
-------------
Exhibit "A" 18 of 20
DESCRIPTION
MONITORING STATION 2
Being a Portion of L.P. 8177 and R.P. 4497,
L.C. Aw. 8559, Apana 5 to C. Kanaina
At Kapoho, Puna, Hawaii
Beginning at the southwest corner of this parcel of land, the coordinates of
said point of beginning referred to Government Survey Triangulation Station
"KALIU" being 8,290.33 feet North and 12,043.17 feet East and running by
azimuths measured clockwise from True South:
1. 150 DEG. 42' 20" 20.00 feet:
2. 240 DEG. 42' 20" 20.00 feet:
3. 330 DEG. 42' 20" 20.00 feet:
4. 60 DEG. 42' 20" 20.00 feet to the point of beginning and containing an
area of 560 Square feet.
April 2, 1990 ISLAND SURVEY, INC.
Hilo, Hawaii
/s/ Nobuchika Santo
-----------------------------------
TMX: 1-4-01: 19 portion Nobuchika Santo
Registered Land Surveyor 1360-S
Exhibit "A" 19 of 20
[LOGO] ISLAND SURVEY, INC. P.O. BOX ___
____________
[GRAPHIC]
[GRAPHIC]
PLAN SHOWING
MONITORING STATION 2
BEING PORTION OF L.P. 8177 AND R.P. 4497
L.C. AW. 0000, XXXXX 0 XX X. XXXXXXX
XXXXXX, XXXX, XXXXXX
[SEAL]
Survey and Plan by Island Survey, Inc.
X.X. Xxx 000 Xxxx, Xxxxxx 00000
April 2, 1990
/s/ Illegible
-------------
Exhibit "A" 20 of 20
[MAP]
SCHEDULE OF RENTS
1. GATHERING SYSTEM AND TRANSMISSION LINES
Well Pad A 3.099 acres
B 2.376 acres
D 2.238 acres
E 3.345 acres
F 2.410 acres
Easements N-3 .284 acres
P-1 .138 acres
S-1 2.485 acres
S-2-A .376 acres
S-4 .348 acres
PGV Substation
HELCO Switching Yard 1.413 acres
TOTAL 18.512 acres
Annual Rent: $***
(*** acres x $*** x *** = $***)
2. MONITORING STATIONS
Three Monitoring
station 1569 sq. ft.
Annual Rent: $***
(*** sq. ft. x $***/sq. ft. x *** = $***)
3. TEMPORARY CONSTRUCTION STAGING AND LAYDOWN AREAS
Eastment A .689 acres
B 3.237 acres
TOTAL 3.926 acres
Annual Rent: $***
(*** sq. ft. x $***/sq. ft. x *** = $***)
TOTAL ANNUAL RENT: $***
EXHIBIT C
*** Confidential material redacted and filed separately with the Commission.
