LEASE OPTION AGREEMENT WIND ENERGY LEASE
Exhibit
10.18
&
WIND
ENERGY LEASE
Page
1 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Page 2
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
This
Lease Option Agreement (“Option Agreement”) is entered into as of _____________,
20__
(the
“Effective Date”), by and between
_________________________________________________________________________________________________
(“Owner”),
and Crownbutte Wind Power, Inc., a Nevada corporation referred to herein as
(“Crownbutte”).
This
Option Agreement is entered into on the basis of the following facts,
understandings, and intentions of the parties.
Owner is
the owner of certain real property located in __________________________ County,
State of ____________________________, more particularly described in Exhibit
A attached to
the Option Agreement and incorporated herein by reference (the
“Property”).
Owner
desires to grant to Crownbutte, and Crownbutte desires to obtain from Owner, an
option to lease the Property on the terms and conditions contained in this
Agreement.
In
consideration of the premises, and of other good and valuable considerations,
the receipt and sufficiency of which are hereby acknowledged, Owner and
Crownbutte hereby agree as follows:
Page 3
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Page 4
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Page 5
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
OWNER:
|
|
|
111
– 0xx
Xxx XX
|
||
Xxxxxx,
XX 00000-0000
|
||
Owner
|
Phone:
(000)000-0000
|
|
FAX:
(000)000-0000
|
||
xxx.xxxxxxxxxx.xxx
|
||
Joint
Owner
|
||
Street
Address
|
||
Phone
|
||
SSN
or Fed ID#:
|
Page 6
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
IN WITNESS THEREOF, the
parties have executed this Agreement as of the Effective Date.
OWNER:
|
CROWNBUTTE:
|
|
|
|
|
Print
|
Print
|
|
|
|
|
Sign
|
Sign
|
|
|
||
SSN
or Fed ID#
|
||
|
||
Address
|
||
|
||
City,
State, ZIP
|
||
JOINT
OWNER:
|
||
|
||
Print
|
||
|
||
Sign
|
||
|
||
SSN
or Fed ID#
|
||
|
||
Address
|
City,
State, ZIP
|
[All
owners, such as both husband and wife, must sign and be listed as Owner(s) or
Joint Owners. Marital status, and any manner in which title is held, such as in
trust or by corporation or partnership, also must be stated.]
Page 7
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Notarization
of Landowner Signature(s)
STATE
OF ____________________________
)
)
COUNTY
OF ___________________________ )
On , 20 , before me, a
Notary Public in and for the said County and State, personally appeared
______________________________________________________________________ known to
me to be the person(s) whose name(s) is/are subscribed to the instrument within
as “Owner(s)”, and acknowledged to me that he/she/they executed the
same.
WITNESS
my hand and official seal:
|
Notary
Public
|
Notarization
of Authorized Crownbutte Signature
STATE
OF _ )
)
COUNTY
OF _ )
On _____________________,
20___, before me, a Notary Public in and for the said County and State,
personally appeared
_________________________________________________________________________________________________
known to
me to be the person whose name is subscribed to the instrument within as an
authorized representative of Crownbutte Wind Power, Inc. and acknowledged to me
that he/she/they executed the same.
WITNESS
my hand and official seal:
|
Notary
Public
|
Page 8
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Exhibit
A
Property
Description
Parcel 1
County
________________________.
State
____________________________.
Township
___________________. Range
_________________. Section _________________.
Portion
of Section:
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
Acres: _____________
more or less
Parcel 2
County
________________________.
State
____________________________.
Township
__________________. Range
_________________. Section _________________.
Portion
of Section:
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
_________________________________________________________________________________________________
Acres: _______________
more or less
Page 9
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Memorandum
of Option and Lease
Page
10 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Exhibit B
MEMORANDUM
OF OPTION AND LEASE
THIS
MEMORANDUM OF OPTION AND LEASE (“Memorandum of Option”) is made and entered into
as of ________________________,
20___, by and between
(referred
to herein as “Owner”) and Crownbutte Wind Power, Inc., a Nevada corporation
referred to herein as (“Crownbutte”).
A. On
the date hereof, the parties have entered into an Option Agreement for Easement
(the “Option Agreement”) which by its terms grants to Crownbutte an option to
acquire a wind park easement (the “Option”), and further grants to Crownbutte
present easements for wind and weather monitoring and access on and across
certain land which is more particularly described in Exhibit A attached hereto
and incorporated by this reference (the “Property”);
B. The
term of the Option is for a period beginning on the date hereof and expiring at
12:00 Noon, CST, on _________________________, 20__unless theretofore
exercised;
C. If
the Option is exercised by Crownbutte or its successors or assigns recording a
Notice of Exercise of Option in the Official Records of Real Property of the
county in which the Property is located, then Crownbutte or such successors or
assigns will have a wind-park easement for wind energy development across and
related rights over the Property for a period of forty (40) years, with possible
extensions or adjustments, as more specifically provided in the Option
agreement. Unless the period is extended, the Notice of Exercise must
be given within the term of the Option set forth above; and
D. The
parties desire to enter into this Memorandum of Option which is to be recorded
in order that third parties may have notice of the interest of Crownbutte in the
Property and of the existence of the Option to enter into a wind-park easement
covering the Property, as set forth in the Option Agreement, and of certain
easements and rights granted to Crownbutte in the Property as part of the Option
Agreement.
The Option evidenced by this Memorandum
of Option may be exercised by the execution and recording by Crownbutte, or its
successors, or assigns of a Notice of Exercise in the Official Records of Real
Property of the County in which the Property is located, whereupon all the
easements and rights that are the subject of the Option shall immediately become
effective and binding upon the Property and Owner,
all successive owners of the Property, and the successors and assigns of Owner,
all for the benefit of Crownbutte and its successors and assigns.
Page
11 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
IN WITNESS THEREOF, the
parties have executed this Agreement as of the Effective Date.
OWNER:
|
CROWNBUTTE:
|
|
|
|
|
Print
|
Print
|
|
|
|
|
Sign
|
Sign
|
|
|
||
SSN
or Fed ID#
|
||
|
||
Address
|
||
|
||
City,
State, ZIP
|
||
JOINT
OWNER:
|
||
|
||
Print
|
||
|
||
Sign
|
||
|
||
SSN
or Fed ID#
|
||
|
||
Address
|
City,
State, ZIP
|
[All
owners, such as both husband and wife, must sign and be listed as Owner(s) or
Joint Owners. Marital status, and any manner in which title is held, such as in
trust or by corporation or partnership, also must be stated.]
Page
12 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Notarization
of Landowner Signature(s)
STATE
OF ___________________________ )
)
COUNTY
OF __________________________ )
On _________________________________,
20___, before me, a Notary Public in and for the said County and State,
personally appeared
_________________________________________________________________________________________________
known to
me to be the person(s) whose name(s) is/are subscribed to the instrument within
as “Owner(s)”, and acknowledged to me that he/she/they executed the
same.
WITNESS
my hand and official seal:
|
Notary
Public
|
Notarization
of Authorized Crownbutte Signature
STATE
OF _ )
)
COUNTY
OF _ )
On _____________________,
20___, before me, a Notary Public in and for the said County and State,
personally appeared
_________________________________________________________________________________________________
known to
me to be the person whose name is subscribed to the instrument within as an
authorized representative of Crownbutte Wind Power, Inc. and acknowledged to me
that he/she/they executed the same.
WITNESS
my hand and official seal:
|
Notary
Public
|
Page
13 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Wind
Energy Lease Agreement
Page
14 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Exhibit
C
LEASE
AGREEMENT
THIS
LEASE AGREEMENT (“Lease”) is dated and effective as
of _______________, 20__ and is
made by and between
______________________________________________________________________(“Owner”),
and (“Lessee”). The
form of this Lease is attached to and made a part of that certain Lease Option
Agreement (the “Option Agreement”) dated as of ______________, 20__
by and between Owner and Crownbutte Wind Power, Inc., a Nevada corporation
referred to herein as (“Crownbutte”).
Owner is
the owner of certain real property located in________________ County, State of
____________________________, more particularly described in Exhibit A attached
to the option Agreement and incorporated herein by reference (the
“Property”).
Lessee
desires to lease all or portions of the Property from the Owner, and Owner
desires to lease all or portions of the Property to Lessee, for, among other
purposes, the operation of a wind-powered electrical generating
facility.
In
consideration of the mutual covenants and obligations of the parties contained
herein, and for the good and valuable consideration, the parties agree as
follows:
ARTICLE 1 LEASE
1.1 Lease and
Easement. Effective
(the “Effective Date”) upon the recording of a Notice of Exercise of Option in
the form attached as Exhibit D to the Option Agreement (the “Notice of
Exercise”) signed by the Lessee or its predecessor, successor, or assign, (i)
Owner hereby leases the Property, as hereinabove defined and as defined in the
Notice of Exercise, to Lessee; and (ii) Owner hereby grants and conveys to
Lessee an exclusive, irrevocable easement in gross on, over, under, and across
all or such portion of the Property for the Lease Term, as hereinafter defined,
hereof for wind resource evaluation, wind energy development, energy
transmission, and related wind energy development uses, all as described in
Section 1.2 below; and (iii) Lessee hereby leases the Property from Owner, all
on the terms and conditions contained in this Lease. A description of
the Property also is attached to the executed counterpart of this Lease as
Exhibit A for ready reference.
1.2 Permitted Uses of the
Property by
Lessee. The
exclusive irrevocable easements described above shall permit Lessee and its
successors and assigns to conduct the following activities on the Property
throughout the Lease Term, as hereinafter defined:
(a) Wind Resource and Other
Evaluations. Lessee may erect, relocate, maintain,
and operate anemometers and other wind and weather monitoring equipment, steel
towers, concrete slabs, fences, and buildings to properly operate, house,
protect, and otherwise facilitate Lessee’s wind and weather monitoring
activities. Lessee shall determine, at its sole discretion, the exact
location of this equipment and related facilities. Lessee also may
fly kites and balloons, conduct other meteorological studies, and conduct soil
and geological studies on and at the Property.
Page
15 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
(b) Wind
Energy Conversion
Systems. Lessee
may erect, relocate, maintain, and operate wind energy conversion systems of any
type and in such quantity as Lessee determines in its sole discretion, including
without limitation wind-powered electrical generating facilities for the
conversion of wind energy into electrical energy. Lessee shall
determine, in its sole discretion, the exact location of such wind energy
conversion systems, but Lessee shall not locate, position, or place any turbine
within one thousand (1,000) feet of any occupied residence as such residence
exists on the Effective Date hereof. The term “Wind Energy Conversion
Systems” includes all equipment and improvements necessary or useful for the
conversion of wind energy into electricity, including wind turbine generators
(“Turbines”), steel towers, foundations and concrete pads, footings, guy wires,
anchors, fences, and other fixtures and facilities, maintenance, security,
office and/or guest facilities, staging areas for the assembly of equipment,
required lines and substation facilities to transfer power from the generators
to power transmission lines, energy storage devices, and other power production
equipment. All Wind Energy Conversion Systems on the Property are and
shall remain the property of Lessee, and Lessee may remove all or any portion of
them from the Property at any time. Owner shall have no ownership or
other interest in any Wind Energy Conversion Systems or other facilities
installed on the Property by Lessee.
(c) Transmission
Facilities and
Roads. Lessee
may erect, maintain, and operate such underground power transmission lines,
collection and transmission grids, power conditioning equipment, transformers,
telecommunications equipment, poles, anchors, support structures, underground
cables, substations, and interconnection facilities, and associated roads for
access and for installation and maintenance, and other related facilities,
equipment, and improvements as Lessee in its sole discretion deems to be
necessary or appropriate to transmit power and transport workers, tools,
materials, equipment, and other necessary items to, from, or across the
Property.
(d) Waiver
of Setback
Requirements. Owner
consents to Lessee’s location of Wind Energy Conversion Systems at any location
upon the Property and any adjacent properties, including at or near the Property
lines. Furthermore, in the event that any private agreements or
restrictions or any laws, rules, or ordinances of any governmental agency impose
setback requirements or otherwise restrict the location of any element of any
Wind Energy Conversion systems to be placed upon the Property or any adjacent
properties along or near property lines, Owner shall cooperate with and assist
Lessee in obtaining waivers or variances from such requirements and shall
execute all further documents evidencing Owner’s agreement to the elimination of
such setback requirements. This Section 1.2 (d) shall survive the
termination of this Agreement.
(e) Meeting
with
Owner. Prior
to the construction of wind Energy Conversion Systems, access roads, and other
allowed uses as provided in Section 1.2 (a) through (d) above, Lessee will use
reasonable efforts to meet with Owner to discuss the proposed locations of any
turbines and/or access roads on the Property (“Proposed
Locations”). Lessee agrees to listen to, and give due consideration
to, Owner’s comments and/or concerns with regard to the Proposed Locations, and
Lessee shall use reasonable efforts to address such comments and/or concerns,
provided that doing so will not increase the cost to Lessee of designing,
constructing, or operating the Wind Energy Conversion Systems, or decrease the
amount of wind captured for conversion purposes; and provided further that
Lessee shall retain sole discretion as to the Proposed Locations and as to all
final location of Turbines, access roads, and other facilities.
1.3 Access
Easement. As of the
Effective Date, Owner also hereby grants to Lessee a non-exclusive easement in
gross on, over, and across any and all access routes to and from the Property
for purposes of ingress and egress to and from the Property for the duration of
the Lease Term. The easements and other rights granted by Owner in
this lease are easements in gross and are personal to Lessee for the benefit of
Lessee, its successors and assigns, as owner of such easements. The
easements and other rights granted by Owner in this Lease are independent of any
lands or estates or interest in lands. There is no outside real
property benefit for the easements granted in this Lease. As between
the Property and other tracts of property on which Lessee may locate Turbines,
no tract is considered dominant or servient to the other.
Page
16 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
1.4 No
Obstruction of Wind. Any obstruction by Owner, during the Lease Term, to
the free flow of the wind is prohibited throughout the entire area of the
Property, which shall consist of horizontally three hundred and sixty degrees
(360°) from any point where any Turbine is or may be located at any time or from
time to time (each such location referred to as a “Site”), and for a distance
from each Site to the boundaries of the Property, together vertically through
all space located above the surface of the Property, that is, one hundred eighty
degrees (180°) or such greater number or numbers of degrees as may be necessary
to extend from each point on and along a line drawn along the surface from each
point along the exterior boundary of the Property through each Site to each
point, and on and along such line to the opposite exterior boundary of Property,
provided, however, that trees, structures, and improvements located on the
Property as of the Effective Date shall be allowed to remain, and Owner shall be
allowed to use the Property in accordance with the terms set forth in Section
6.2 of this Lease. Crownbutte will provide written waivers of the
foregoing requirements of this Section 1.4 as appropriate and
feasible.
1.5 No
Obligation to Operate
Turbines. Nothing in
this Lease or otherwise shall be construed as requiring Lessee to install or
operate Turbines or any other Wind Energy Conversion Systems, or to conduct any
other business, or to use the Property.
ARTICLE 2 LEASE
TERM
2.1 Lease
Term. This
lease shall be effective throughout a term (the “Lease Term”) which commences on
the Effective date and ends on date which is four hundred and eighty (480)
months following the Effective Date, unless extended or terminated as provided
in this Lease. If an agreement to sell electrical power generated
from the Property is in effect on the date which otherwise would be the
termination of the Lease Term, the Lease Term shall be extended until such
agreement shall terminate. If the Effective Date is not the first day
of a calendar month, then the Lease Term shall begin and may end with partial
calendar months. As soon as the Effective Date and the initial Lease
Term have been determined, Owner and Lessee shall execute a memorandum setting
forth such dates, but failure to do so shall have no effect
hereunder.
The first “Lease Year” shall commence
on the Effective Date and end at midnight on the following December
31. Each successive “Lease Year” shall commence at 12:01 AM on
January 1 following the expiration of the previous “Lease Year” and shall end at
midnight on the following December 31. The final “Lease Year” shall end on the
expiration of the Lease Term. All times are located at the
Property.
2.2 Right
to
Terminate. Lessee
shall have the right to terminate this Lease as to all or any part of the
Property, at any time and from time to time, upon at least thirty (30) days
prior written notice to Owner without any additional liability to
Owner. Owner shall have the right to terminate this Lease as of any
date which is the end of a Lease Year and is more than three years after the
Effective Date, by giving at least thirty (30) days prior written notice to
Crownbutte, but only if no Turbines or Wind Energy Conversion Systems have been
erected on any part of the Property.
(a) A
Unit Payment of Two Thousand Five Hundred Dollars (US$2,500.00) per year for
each Turbine erected by Lessee on the Property, with such unit payment for each
such Turbine multiplied by a fraction, the denominator of which is 365 and the
numerator of which is the lesser of the number of days in such a Lease Year, or,
if such Turbine was commissioned during such Lease Year, the number of days in
such Lease Year following such commissioning.
Page
17 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
(b) The
Unit Payment for each turbine as stated in (a) above will increase by two
percent (2%) annually after the wind-powered electrical generating facility has
been operating for a period of twelve (12) consecutive months.
(c) In
addition to the Unit Payment, the land Owner shall receive One Thousand Dollars
(US$1000.00) per name-plate megawatt (MW) capacity (Capacity Payment) or portion
thereof for each turbine installed on the Property, with such Capacity Payment
multiplied by a fraction as indicated in the formula in (a) above.
(d) The
name-plate capacity payment as stated in (c) above will increase by two percent
(2%) annually after the wind-powered electrical generating facility has been
operating for a period of twelve (12) consecutive months.
(e) In
the event that more than one Turbine is erected by the Lessee on a single Land
Owner’s Property, the date of commissioning of the first turbine to be
commissioned shall be used to determine the Annual Rent for all of the turbines
erected on the Property.
(f) Unit
Payments and Capacity Payments (Total Annual Rent) shall be made by Lessee to
the Property Owner simultaneously.
(h) If
no improvements are constructed on owner’s property within one year of exercise
of the Option to Lease, Lessor shall pay to owner an annual rental payment of
$___________ to continue the Lease in force. If Lessor fails to pay
any annual rent payment, this Lease shall automatically terminate. If
Lessee begins receiving rental payments under Paragraphs 3.1(a), (c), or (f),
then this annual rental payment shall cease.
4.1 Taxes
Paid by
Lessee. Lessee
shall pay timely all real and personal property taxes for the Property
attributable to the value of improvements on the Property owned by, or under the
control of, Lessee, which improvements may include the Turbines, Wind Energy
Conversion Systems, interconnection systems, monitoring or maintenance facility,
and any other equipment owned by Lessee and located on the
Property. Lessee also will pay when due all charges for gas, water,
electricity, telephone services, and other utilities used by Lessee on the
Property. Lessee shall not be liable for any other type of taxes or
assessments levied or assessed against the Property, or for any increases in
taxes resulting from a reassessment of the Property due to a change in
ownership.
Page
18 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Page
19 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
5.7 Noxious
Weeds. Lessee shall be responsible for the control
of noxious weeds and Bull Thistle not native to the leased area and growing
within twenty-five (25) feet of any or all wind turbines, junction boxes,
transformers, and any other equipment, as well as all service and access roads
installed by the Lessee. Within seventy-two (72) hours after being
notified by the Owner that vegetation which is listed on the Noxious Weed and Bull Thistle
List of the State Department of Agriculture is present as described
above, Lessee shall physically remove or treat such vegetation with an
appropriate herbicide.
Page 20
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Owner promises, represents, and
warrants to Lessee as follows:
6.1 Title to
Property. Owner
owns the entire Property in fee simple, subject to no liens or encumbrances
except as disclosed in writing to Lessee or its predecessor in a title report or
other document delivered to Lessee or its predecessor on or prior to the
execution of the Option Agreement by Owner. Owner and each person
signing the Option Agreement on behalf of Owner have the full und unrestricted
power and authority to execute and deliver the entire Option agreement,
including this Lease, and to grant the easements and rights herein
granted. All persons having any ownership or possessory interest in
the Property (excluding tenants) have signed the Option Agreement and the
execution copies of this Lease. Owner shall cooperate with Lessee to
obtain a non-disturbance agreement from each holder of a lien with respect to
all or part of the Property (recorded or unrecorded) which provides that such
lien-holder shall not disturb the Lessee’s possession or rights under this Lease
or terminate this Lease so long as the Owner is not entitled to terminate this
Lease under its terms.
6.2 No Xxxxxxxxxxxx.Xx
long as Lessee is not in default under this Agreement, Lessee shall have the
quiet use and enjoyment of the Property in accordance with the terms of this
Lease without any suit, trouble, or interference of any kind by Owner or any
party claiming though Owner. Owner may use the Property for
agricultural purposes. Owner will not use Property for any use or
take any other action which interferes with or is incompatible with lessee’s use
of Property, or which in any way interferes with wind flow across the
Property. Owner may replace, rebuild, or reconstruct any improvements
in existence on the Property on the Effective Date in the same or substantially
the same form as such improvement existed on the Effective Date, and Owner may
build, construct, or locate new improvement(s) on the Property, provided that
any such improvement(s) will not (i) interfere with the wind flow across the
Property, (ii) interfere with or obstruct Lessee’s operations on the Property,
or (iii) impede or obstruct Lessee’s access to the Property. In no
event during the Lease Term shall Owner construct, build, or locate, or allow
parties other than Lessee or its successors or assigns to construct, build, or
locate, any Wind Conversion Systems, Wind Turbines, or similar projects on the
Property.
Owner may construct fences on the
Property provided Owner includes gated access for Lessee and its employees and
agents. Any fence Owner may construct on the Property must be
sufficient distance from all Turbine sites and roads to permit construction and
maintenance by Lessee of roads, turbines, and any related
equipment. In this regard, Owner acknowledges that Lessee will be
moving large construction machinery and heavy equipment, including but not
limited to earth movers and cranes, onto the Property and must have sufficient
access and areas to turn around. Lessee reserves the right to remove
any fence not in compliance with the above criteria which obstructs or
interferes with Lessee’s operations hereunder.
Owner will not sell, transfer, assign,
or encumber the Property, or grant any license, easement, lease, or other right
with respect to the Property, which could interfere with Lessee’s
operations. Lessee shall have the right (but no obligations) to
remedy any such interference by any appropriate means, and to deduct the cost
thereof from the next payments of Annual Rent due from Lessee to
Owner.
Page
21 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
6.3 Hazardous
Materials. As of the
Effective date, there are no Hazardous Materials, abandoned xxxxx, solid waste
disposal sites, or underground storage tanks located on the Property; the
Property is not in violation of any Environmental Law; and the Property is not
subject to, and the Owner has no notice of, any judicial or administrative
action, investigation, or order under any Environmental Law with respect to the
Property. Owner has done nothing to contaminate the Property with
Hazardous Materials. If Owner breaches any warranty or representation
set forth in this Section 6.3, or if a release of Hazardous Materials is caused
or permitted by Owner or its agents, employees, or contractors, and results in
contamination of the Property, then Owner shall indemnify, defend, protect, and
hold Lessee, and Lessee’s employees, agents, partners, members, officers, and
directors, harmless from and against any claims, actions, suits, proceedings,
losses, costs, damages, liabilities (including, without limitation, sums paid in
settlement of claims), deficiencies, fines, penalties, and expenses (including,
without limitation, reasonable attorneys’ fees and consultants’ fees,
investigation and laboratory fees, court costs, and litigation expenses) which
arise during or after the Lease Term as a result of such breach of
contamination. This indemnity shall include, without limitations, and
the Owner shall pay all costs and expenses relating to, any claim, action, suit
or proceedings for personal injury (including sickness, disease, or death),
property damage, nuisance, pollution, contamination, spill, or other effect on
the environment; and any investigation, monitoring, repair, clean-up, treatment
or detoxification of the Property; and the preparation and implementation of any
closure plan, redemption plan, or other required action in connection with the
Property.
7.1 Assignment and Subletting;
Easements and Licenses. Lessee may assign all or part of
Lessee’s interest in this Lease, the Wind Energy Conversion Systems, the
Property, and/or the easements and rights created by this Lease, or sublet all
or any part of the same, at any time and from time to time, without obtaining
the consent of the Owner. Without limiting the generality of the
foregoing, a foreclosure and sale by a lender pursuant to Article 9 below shall
be permitted assignment. In the event of an assignment of Lessee’s
entire interest in this Lease, Lessee shall be released of all further liability
under this Lease. If Lessee shall have subleased all or portion of
the Property or the Wind Energy Conversion Systems, no such sublease shall be
affected by a cancellation or termination of this Lease, and Owner shall
recognize the rights of the Sub-Lessee thereunder, provided only that such a
Sub-Lessee attorn to Owner upon its request. Owner shall enter into a
non-disturbance and attornment agreement, in form and substance reasonably
acceptable to Lessee, upon the request of the Sub-Lessee under any
sublease. Lessee also shall have the right to grant easements,
licenses, or similar rights (however denominated) with respect to the Property,
the Wind Energy Conversion Systems, and/or the easements and rights created by
this Lease, at any time and from time to time, to one or more persons or
entities, without obtaining the consent of the Owner.
7.2 Nearby Development
Activities. Lessee shall have a first right of refusal and
option, and Owner hereby grants such an exclusive and irrevocable first right of
refusal and option, to match the terms under which any third party seeks to
enter into a lease for wind power development of lands in which Owner has or
acquires an interest after Effective Date and which is located within one half
mile of the boundaries of the Property. Such option and first right
of refusal shall be effective as to any agreements which would take effect
during the Option Term. If Owner receives any such third party offer
to enter into an agreement, full particulars of the same shall be delivered to
Lessee, and Lessee shall have thirty (30) days within which to notify Owner that
Lessee elects to enter into an agreement on the specified terms and
conditions.
8.1 Right to
Encumber. Lessee
may, at any time and from time to time, mortgage, pledge, hypothecate, or
alienate to any entity (herein, a “Lender”) all or any part of Lessee’s interest
in, to, and under this Lease, the Wind Energy Conversion systems, the Property,
and/or the easements and rights created in this Lease, without consent of
Owner. A Lender or its assigns may enforce such lien and acquire
title to the leasehold estate in any lawful way, and upon lawful foreclosure of
such lien, after giving effect to the cure periods set forth herein, the Lender
may take possession of and operate the Wind Energy Conversion Systems and the
Property, performing all obligations performable by the Lessee. Upon
foreclosure of such lien by power of sale, judicial foreclosure, or acquisition
of the leasehold estate by deed in lieu of foreclosure, the Lender may, upon
notice to Owner, sell and assign the leasehold estate. The Lender
and/or person or entity acquiring the leasehold estate shall be liable to
perform the obligations imposed on Lessee by this Lease only to the extent
arising during the period during which such person or entity has ownership of
the leasehold estate, or possession of the Wind Energy Conversion Systems, or
the Property.
Page 22
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
8.2 Covenants for Lenders’
Benefit. Should Lessee mortgage any of its
interest as provided in Section 8.1 above, Lessee and Owner expressly agree
between themselves and for the benefit of any Lenders as follows:
(a) They
will not modify or change this Lease without the prior written consent of the
Lenders, which consent shall not be unreasonably withheld or
delayed.
(b) The
Lenders shall have the right to do any act or thing required to be performed by
Lessee under this Lease, and any such act or thing performed by a Lender shall
be as effective to prevent a default under this Lease and/or a forfeiture of any
of Lessee’s rights under this Lease as if done by Lessee itself.
(c) No
default, which requires the giving of notice to Lessee, shall be effective
unless a like notice is given to all Lenders. If Owner shall become
entitled to terminate this Lease due to an uncured default by Lessee, Owner will
not terminate this Lease unless it has first given written notice of such
uncured default and of its intent to terminate this Lease to each Lender and has
given each Lender at least thirty (30) days to cure the default to prevent such
termination of this Lease. Furthermore, if within such thirty (30)
day period, a Lender notifies Owner that it intends to foreclose on Lessee’s
interest or otherwise take possession of Lessee’s interest under this Lease in
order to cure the default, Owner shall not terminate this Lease and shall permit
such Lender a sufficient period of time as may be necessary for such Lender,
with the exercise of due diligence, to foreclose or acquire Lessee’s interest
under this Lease and to perform or cause to be performed all of the covenants
and agreements to be performed and observed by Lessee. Upon the sale
or other transfer of any interest in the easements and rights granted hereunder
by any Lender, such Lender shall have no further duties or obligations
hereunder.
(d) In
case of the termination of this Lease as a result of any default or the
bankruptcy, insolvency, or appointment of a receiver in bankruptcy for Lessee,
Owner shall give prompt notice to the Lenders. Owner shall, upon
written request of the first priority Lender made within forty (40) days after
notice to such Lender, enter into a new easement agreement with such Lender, or
its designee, within twenty (20) days after the receipt of such
request. Such new easement agreement shall be effective as of the
date of the termination of this Lease by reason of default by Lessee, upon the
same terms, covenants, conditions, and agreements as contained in this
Lease. Upon the execution of any such new easement agreement, the
Lender shall (i) pay Owner any amounts which are due Owner from Lessee, (ii) pay
Owner any and all amounts which would have been due under this Lease (had this
Lease not been terminated) from the date of the termination of this Lease to the
date of the new easement agreement, and (iii) agree in writing to perform or
cause to be performed all of the other covenants and agreements set forth in
this Lease to be performed by lessee to the extent that Lessee failed to perform
the same prior to the execution and delivery of the new easement
agreement.
8.3 Condemnation. Should
title or possession of all the Property be taken in condemnation proceedings by
a government agency or governmental body under the exercise of the right of
eminent domain, or should a partial taking render the remaining portion of the
Property wholly unsuitable for Lessee’s use, then this Lease shall terminate
upon the vesting of title or taking of possession. All payments made
on account of any taking by eminent domain shall be allocated such that (i)
Lessee receives any award made for the reasonable removal and relocation costs
of any removable property that Lessee has the right to remove, and for the loss
and damage to any such property that Lessee elects or is required not to remove,
and for the loss of use of the Property and the Wind Energy Conversion Systems
by Lessee, and (ii) Owner receives any award made for the reasonable value of
Property apart from the Wind Energy Conversion Systems. Lessee and
Owner each shall have the right to participate in any related settlement
proceedings.
Page 23
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
9.1 Defaults. Each
of the following events shall constitute an event of default by the respective
parties, and subject to Section 8.2 above, shall permit the non-defaulting party
to terminate this Lease and/or pursue all other appropriate
remedies:
(a) The
failure or omission by either party to pay amounts required to be paid hereunder
when due, and such failure or omission has continued for thirty (30) days after
written notice from the other party.
(b) The
failure or omission by either party to observe, keep, or perform any of the
other terms, agreements, or conditions set forth in this Lease, and such failure
or omission has continued for thirty (30) days (or such longer period required
to cure such failure or omission, not to exceed one hundred eighty (180) days,
if such failure or omission cannot reasonably be cured with a thirty (30) day
period) after written notice from the other party.
(c) A
party files for protection or liquidation under the bankruptcy laws of the
United States or any other jurisdiction, or has an involuntary petition in
bankruptcy or a request for the appointment of a receiver filed against it, and
such involuntary petition or request is not dismissed within sixty (60) days
after filing.
9.2 Surrender of
Property. On
the termination of the Lease Term, Lessee shall (i) upon written request by
Owner, execute and record a quitclaim deed of Lessee’s right title to and
interest in the Property, and (ii) peaceably and quietly leave, surrender, and
return the Property to Owner. Lessee agrees and hereby covenants to
dismantle and remove all equipment, improvements, fixtures, and other property
owned or installed by Lessee or its affiliates on the Property (provided that
all footings and foundations shall be removed to a depth of four (4) feet below
the surface of the ground and covered with soil) within one year from the date
of any such termination. In addition to any other remedies available
to Owner, should Lessee fail to remove such property within one year from the
date of termination of the Lease Term, any and all such property remaining on
the Property beyond such one year removal period shall be deemed abandoned to
Owner, and Lessee hereby agrees to relinquish any and all rights to such
property.
10.1 Force
Majeure. If performance of this Lease or of any
obligation hereunder is prevented or substantially restricted or interfered with
by reason of an event of “Force Majeure” (as defined below), the affected party,
upon giving notice to the other party, shall be excused from such performance to
the extent of and for the duration of such prevention, restriction, or
interference. The affected party shall use its reasonable efforts to
avoid or remove such cause of nonperformance and shall continue to perform as
soon as such causes are removed. “Force Majeure” means fire,
earthquake, flood, tornado, natural disaster, or other Acts of God; strikes,
lock-outs, or labor disputes; inability to secure materials; war, civil strife,
or other violence; any law, order, proclamation, regulation, ordinance, action,
demand, or requirement of any government agency, or utility; or any other act or
condition beyond the reasonable control of a party.
10.2 Confidentiality. Owner
shall maintain in the strictest confidence, for the sole benefit of Lessee, all
information pertaining to Lessee’s site design, product design, methods of
operation, methods of construction, and power production of the Wind Energy
Conversion Systems. Operator authorizes Owner to provide copies of the
Agreement and additional information and disclose the terms thereof to owner’s
family, attorney, accountant, financial advisor and any existing or prospective
mortgagee, lessee, or purchaser, so long as they likewise agree not to provide
copies of the agreement or additional information or disclose the terms thereof
to any unauthorized person or entity. A breach of this provision will
cause damages to the operator, for which you shall be responsible.
Page 24
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
10.3 Lease as Interest in Real
Property. The
parties intend that this Lease create a valid and present interest in the
Property in favor of Lessee. Therefore, this Lease and the rights
under this Lease shall be deemed an interest in and encumbrance upon the
Property which shall run with the land and shall be binding upon the Property,
and upon Owner and its heirs, successors, assigns, and legal representatives,
and shall inure to the benefit of Lessee and its successors, assigns, and legal
representatives.
10.4 Proof of Ownership.
After execution of the Lease Option Agreement, Crownbutte will update the
original abstract in order to verify clear land title and ownership
information. Crownbutte guarantees the safe return of the original
abstract(s) to the landowner when title verification and updating has been
completed. Crownbutte will pay the routine costs of verifying and updating
the abstract(s). If the original abstract for any parcel is not available,
the land title company must reconstruct (“rebuild”) the abstract. The cost
of this rebuilding will be divided evenly between Crownbutte and the landowner,
each paying fifty per cent (50%) of the total. If the landowner chooses,
his share of the cost of the new abstract can be deducted from the first annual
rental payment to be made by Crownbutte to the landowner.
10.5 Surrender of Unused
Premises. Lessee agrees that it shall, within ninety (90) days
after Lessor’s request at any time following the second anniversary of the
Commercial Operation Date (as defined below), terminate this Lease as to any
part of the Premises which at that time is not utilized for wind energy
development, including, without limitation, access, suitable setbacks and upwind
windshed protection, as reasonably determined by
Lessee. Notwithstanding the foregoing, however, the parties agree
that such surrender of unused portions of the Premises shall not thereby limit
or affect Lessee’s exclusive right to the free flow of wind across the Premises
for wind energy purposes.
10.6 Memorandum of
Lease. A Memorandum of Option and Lease and the Notice of
Exercise, already having been filed of record with respect to the Option
Agreement, shall remain in full force and effect. If requested by
Lessee, Owner and the Lessee shall execute in recordable form, and Lessee shall
record in the official records or land records of the county in which the
Property is located, a memorandum of this Lease satisfactory in form and
substance to Lessee. Owner consents to the recordation of the
interest of any Lender and/or any assignee of Tenant’s interest in this
Lease.
10.7 Tax
Credit If,
under applicable law, Lessee or its successors or assigns become ineligible for
any tax credit, benefit, or incentive for alternative energy established by any
local, state, or federal government, then, at the Lessee’s option, Owner and
Lessee shall amend this Lease or replace it with a different instrument so as to
convert the Lessee’s interest in the Property to a substantially similar
interest that makes the Lessee eligible for such tax credit, benefit, or
incentive.
10.8 Estoppel
Certificates. From
time to time, each party, within fifteen (15) days after written request from
the other party, shall execute and deliver an estoppel certificate certifying as
to the Status of this Lease and each party’s performance
thereunder.
10.9 Notices. All
notices pursuant to this Lease must be in writing and shall be personally
delivered or sent by United States Mail (registered or certified, return-receipt
requested) or by an overnight courier service which keeps records of deliveries,
addressed as follows or to such other address for itself as to which any party
may give notice hereunder:
Page 25
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
OWNER:
|
|
|
111
– 0xx
Xxx XX
|
||
Xxxxxx,
XX 00000-0000
|
||
Owner
|
Phone:
(000)000-0000
|
|
FAX:
(000)000-0000
|
||
xxx.xxxxxxxxxx.xxx
|
||
Joint
Owner
|
||
Street
Address
|
||
Phone
|
||
SSN
or Fed ID#:
|
10.9 Entire
Agreement. This
Lease and Option Agreement, and the attached exhibits, constitute the entire
agreement between the parties regarding the subject matter hereof, and supersede
all other agreements with respect thereto, whether written or
oral. This Option agreement shall not be modified or amended except
in a writing signed by both parties or their lawful successors in
interest. This Option Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.10 Interpretation.
Each party and its counsel have reviewed this Lease, and any rule of
construction holding that ambiguities are to be resolved against the drafting
party shall not apply in the interpretation of this Lease. The
captions in this Lease are for convenience and reference only, and shall in no
way be held to explain, modify, amplify, or aid in the interpretation,
construction, or meaning of the provisions of this Lease. Should any
provision of this Lease be held, in a final and unappealable decision by a court
of competent jurisdiction, to be invalid, void, or unenforceable, the remaining
provisions hereof shall remain in full force and effect, unimpaired by the
holding. Unless otherwise expressly stated to the contrary, the word “including”
as used herein shall be construed in its inclusive sense, and without
limitations, whether or not words of non-limitation such as “but not limited to”
or “without limitations” are used.
10.11
Governing
Law. This Lease shall be governed by and construed in
accordance with the laws of the State in which the majority of the Property by
acreage is located.
[signature
page follows]
Page 26
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
IN WITNESS THEREOF, the
parties have executed this Agreement as of the Effective Date.
OWNER:
|
CROWNBUTTE:
|
|
Print
|
Print
|
|
Sign
|
Sign
|
|
SSN
or Fed ID#
|
||
Address
|
||
City,
State, ZIP
|
||
JOINT
OWNER:
|
||
Print
|
||
Sign
|
||
SSN
or Fed ID#
|
||
Address
|
City,
State, ZIP
|
[All
owners, such as both husband and wife, must sign and be listed as Owner(s) or
Joint Owners. Marital status, and any manner in which title is held, such as in
trust or by corporation or partnership, also must be stated.]
Page
27 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Notarization
of Landowner Signature(s)
STATE
OF ____________________________
)
)
COUNTY
OF ___________________________ )
On ______________________________,
20___, before me, a Notary Public in and for the said County and State,
personally appeared
_________________________________________________________________________________________________
known to
me to be the person(s) whose name(s) is/are subscribed to the instrument within
as “Owner(s)”, and acknowledged to me that he/she/they executed the
same.
WITNESS
my hand and official seal:
|
Notary
Public
|
Notarization
of Authorized Crownbutte Signature
STATE
OF _ )
)
COUNTY
OF _ )
On _____________________,
20___, before me, a Notary Public in and for the said County and State,
personally appeared
_________________________________________________________________________________________________
known to
me to be the person whose name is subscribed to the instrument within as an
authorized representative of Crownbutte Wind Power, Inc. and acknowledged to me
that he/she/they executed the same.
WITNESS
my hand and official seal:
|
Notary
Public
|
Page 28
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
NOTICE
OF EXERCISE OF OPTION
Page
29 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
Exhibit D
NOTICE
OF EXERCISE OF OPTION
THIS
NOTICE OF EXERCISE OF OPTION (“Memorandum of Option”) is made and entered into
as of _________, 20___, by Crownbutte Wind Power, Inc., a Nevada
corporation referred to herein as (“Crownbutte”).
A. On
_______________, the parties entered into an Option Agreement for Easement (the
“Option Agreement”) which by its terms grants to Crownbutte an option to acquire
a wind-park easement (the “Option”), and further grants to Crownbutte present
easements for wind and weather monitoring and access on and across certain land
which is more particularly described in Exhibit A attached hereto and
incorporated by this reference (the “Property”);
B. The
term of the Option, still in effect as of the above date, expires at 12:00 Noon,
CST, on ,
20 ;
C. A
Memorandum of Option and Lease was recorded in the Official Records of Real
Property of the county in which the Property is located, giving Crownbutte or
its successors or assigns a right to a wind-park easement for wind energy
development across and related rights over the Property for a period of forty
(40) years, with possible extensions or adjustments, as more specifically
provided in the Option agreement; and
Upon the recording by Crownbutte, or
its successors, or assigns of this Notice of Exercise in the Official Records of
Real Property of the County in which the Property is located, all the
easements and rights that are the subject of the Option shall immediately become
effective and binding upon the Property and Owner, all successive owners of the
Property, and the successors and assigns of Owner, all for the benefit of
Crownbutte and its successors and assigns.
Page 30
of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|
IN WITNESS THEREOF, the
parties have executed this Agreement as of the Effective Date.
CROWNBUTTE:
Print
|
Sign
|
Notarization
of Authorized Crownbutte Signature
STATE
OF _ )
)
COUNTY
OF _ )
On _____________________,
20___, before me, a Notary Public in and for the said County and State,
personally appeared
_________________________________________________________________________________________________
known to
me to be the person whose name is subscribed to the instrument within as an
authorized representative of Crownbutte Wind Power, Inc. and acknowledged to me
that he/she/they executed the same.
WITNESS
my hand and official seal:
|
Notary
Public
|
Page
31 of 31
|
Landowner
Initials _______
|
|
Crownbutte
Initials _______
|