BP Wind Lease Document Cape Vincent Wind farm

8/4/2019 BP Wind Lease Document Cape Vincent Wind farm

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W IN D EN ER GY L EA SE AG REE ME NT

This Wind Energy Lease Agreement (this ~ is made, dated and effective as of, 20 (:the "Effective Date"), by and between

,- '-~~---.- .and BP Wind Energy North America Inc., aVirginia corporation {"Grantee") . . Owner: and Grantee agree as follows:

). !&!!g. For good and valuable consideration, the receipt and sufficiency of wbichis hereby acknowledged by Owner, Owner hereby leases ro Grantee, and Grantee he reby leasesfrom Owner that certain teal property, including all ai r space thereof (the "~j of Ownerlocated in Jefferson County, N'?WYork. The Property consists of approximately acres ofland and is funh,e.!descr ibed in Exhibit. A attached here to and incorpora ted herein. ]0 the eventof inaccuracies or insufficiencies in the legal description in Exhibit A, this Lease shall beamended to correct the inaccuracies or insufficiencies.

2. Purpose of Lege; Permitted Uses. This Lease is. fO T wind energy purposes,including conve rting wind energy into electrical ene rgy, colle cting and transmitting elec trica lenergy, and related ac tivities (collectively, die "Grantee Ac tivities"). The Grantee Ac tivitiesinc lude, but are not limited to: (a ) determining the fea sibility of wind energy conve rsion 00 theProperty. including without limitation studies of wind speed, wind direction and othermeteorological data, and performing engineering, environmental and wildlife studies andIorsurveys;(b) const ruct ing, ins ta ll ing, using, replac ing, re locating and removing from time to t ime,and maintaining and operating, wind turbines and the ir foundations, underground and overheadelect rica l t ransmiss ion and communicat ions l ines , e lect ric t ransformers, energy storage fac il it ies,tele communications equipment, power generation facilitie s to be operated in conjunction withlarge wind turbine installations, roads, fences and gates, meteorological towers and windmeasurement equipment, control buildings, maintenance yards, and related facilities andequipment (collectively, the ' 'Windpower .Facilities") 011 the Property; and (c) undertaking anyother activities, whether accomplished by Grantee or a third party authorized by Grantee, thatGrantee reasonably detennines are necessary, useful or appropriate to accomplish any of theforegoing. Grantee shall have the exclusive right to convert all of the wind resources of theProperty. The Wmdpower Facil it ies IIIJjYbe opera ted in conjunction wish Windpower Facil it iesinstalled on otber nea rby properties that are part of the same wind energy project (collectively,the "Project"). Grantee will pay Owner the fait market value of caliche, gravel, or water fromt h e P roper typurchased by Grantee with the consent of Owner. Owner reserves all rights to usethe Property except to the extent Owner's use interferes with Grantee's use of the Property inaccordance with this Lease or violates the provisions of this Lease, including Sections 8.2. 2.1and 9.3 .

3. Imn. This Lease shall be for a term ("Term") commencing on the Effective Dateand continuing until the later of (a) thirty (30) years after the first day of the month following themouth in which Windpower Facil it ies in the Project phase in which die Property is a partcommence operation by delivering commerc ial quantities of electricity to the electric utility grid(the "Commercial Operation Date"), or (b) forty (40) years after the Effective Date ; provided .however, in DO event shall the Term exceed forty-nine (49) years. If Grantee ha s not poured the

Wind EnCl gYLe a se Agr ecmen lApp ro . .ed Form 07 Z6 10 CONFIDENTIAL

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foundation for the first wind turbine to be installed in the Project ("Star t of Construction") pr iorto tbe seventh (7 th) anniversary of the Effecti VI: Date, Ibis Lease shall terminate,

4. Payments. In considera tion of th e r ights granted hereunder, Grantee will pa yOwner the foll owing amounts during the Term:

4.1 initial Payments. Grantee will m ake a nn ua l pa ym en tsto Owner in th eamountof Five Hundredan d DOIIOODollars (S500.00),within thirty (30)days a ft er t he Eff ec ti veDate o r the anniversary of the Effective Date, as applicable, until the Commercial OperationDate occurs. Such Initial Payment shal l increase each year by One Hundred and 00/100 Dollars($100.00) and be prorated for any partial year.

4. 2 intentionallv l&fl B1cmk

4.3 PqvmenrsDuring OperatlQns.

(a) Applicable PeJTIeJltage. If and when wind turl>inesare installed on theProperty and begin generati ng electricit y, Grantee wiD pay Owner a percentage ("Ap_plicablePercentage') of Grantee's gross revenues (defined below) on II. quarter ly basis . The "Appl icablePercentage" shall be equal to the percentage shown in th e table below for theapplicable timeper iod fol lowing the Commercial Operat ion Date:

Time Period fol lowing the A&mli!d!l2le PercentazeCommercial Ooerat ion DateYears 1- 10 3%

, Years H-20 3.5%

Year s 21 - Term ina ti on 4%

Payments shall be paid quarterly within sixty (60) days of the end of each calendar quarterfollowing 1be Commercial Operation Date. "Gross tevepucs" shaH mean cash paymentsreceived by Grantee from a utility or other person or entity fur electricity sold to such utility,person or entity which is generated from Windpower Facilities located on the Property anddelivered to the poin t of interconnection to the utility grid, net of wheeling, i ntegrati on,t ra nsmi ss io n a nd /o r c o ng es ti oncharges (if any) paid by Grantee. Gross revenues sbal l includethe sale of credits for greenhouse ga s reduct ion or the generat ion of renewable or alternativeenergy on the Property, including renewable energy credits as: defined in the appl icable laws,regulations and rules for the slate in which the Property is located. Gross revenues shall notinclude any gross revenues from any Windpower facilities not located on the Property; anyproduction tax credi ts , investment tax credits, 0.1' other tax credits or benefits; or any proceedsfrom the sal e, lease, fi nancing or other disposition of any Windpower Facilit ies or any int erest inthis Lease or the Project,

Wind Enetgy Leos. AgreementApplOved FamlIl1-2(j10 CONFIDENTIAL

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Term of this Lease. The purchase price shall be an amount equal to two times the fair marketvalue of the acreage required for the substation or switchyard, for its CI,IITeIlI or reasonably-

expected land IISC. lfthe parties are unable to agree on such fair market value, then fair marketv al ue s ha ll b e d et erm in edby written appraisal performed by an independent appraiser reasonablyacceptable to Own er an dGrantee. Paymentshallbe du e at su ch tim e a s a greedin a purchaseinstrument.in the event of conveyance or o therwise(whether or not aseparate easement isobt ai ne d f or s uch por ti on o f t he P rope rt y) w it hinthirty ( 30 ) d ay s a ft er t he Commer ci al Ope ra tio nDate.in connection with any conveyance Or grant of a pornon of tne Property for !he substati onat swltehyard, Owner shall also grant to Grantee an access easement of a t lea st s ix ty(60) feet inWIdth .allowing Grant ee access over the r emaining portion of the Property to the subst ati on site,from the closest COUDty or township road.

(b) If as of the Commercial Operation Date, no wind turbines have been or arebeing constructed on the Property, t he n d urin g the Term G ra ntee s ha llmake the fol lowingpayments (as applicable) to Owner within sixty (60) days after the end of the first calendarquarter following the Commercia! Operat ion Date and with respect to annual payments, on eachanniversary thereof , unt il wind turbines are ins ta lled on the Proper ty, or unless otherwise s tated:

i,A one-time payment equal to Ten Dollars and 00/100 ($10.00) per acrefOT each acre of t ile Property (prorated for par tial acres thereof) ;

ii. An annual payment equal to the product of (i) Two Thousand Dollars($2,000.00) (prorated for each part ia l mile) mul tipl ied by (ii) the Dumberof linear miles of buried transmission cables or wires constructed byGrantee on the Property (Owner agreeing that Grantee may place buriedli nes or cables within sixty (60) feet of any new or existing road and/orinstall multiple t ransmission cables or wires in the same entrenchment,in each case without any additional consideration);

ill. An annual payment equal to the product of (i) Five Thousand Dol lars($5,000.00) (prorated for each part ia l mi le) mul tipl ied by (ii) the numberof li near miles of new roads constructed: by Grantee on the Property;

IV. An annual payment equal to the product of (i) Two Thousand Dollars($2,000.00) (prorated for each parti al mi le) mul tipl ied by (ii) the numberof linear miles of roads existing on the Effective Date hereof thatGrantee designates for use in writing delivered to Owner; and

v. A payment equal to Five Thousand Dollars ($5,000.00), increasedcumulatively by 1.5% per annum on each anniversary thereof, less any

other sums paid by Grantee under thi s Sect ion 4.6{b) each year.

All amounts paid by Grantee under this Section 4.6(b) shall be credited against any ApplicablePeroentagepayment s or Minimum Payments that may become due hereunder in the event thatwind turbines are constructed on the Property after such date; such credit shall be made in directorder of payment.

(c ) If Gra nt ee i ns ta ll stower, sensors, and data logging electronics on !heProperty for the sole purpose of collecting meteorologi cal data (3 "Met Stati on") , Grant ee shallpay Owner a fee of Five Hundred and NoflOODoll ars ($500) per Met Stati on per year during theTerm while the Met Station is installed. The Met Station Fee will be paid annually and within

Wind Enagy Lease All"'anonlAppr o ve d , o rm(17'26-10 CONFIDENTIAL

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thirty (30) days after the end of each calendar year, beginning with the year in which the MetStat ion is ins ta lled , prorated for any part ial year.

(d) If Grantee instal ls above ground transmission cables or wires on the Property,Grantee shall pay Grantor an annual payment equal to the product of (il Five Thousand Dollars($5,000.00) (prorated for each part ial mile) mult ipli ed by (ii) the number of linear miles ofabove-ground transmission cables or wires constructed by Grantee onthe Premises, with theiniti al payment due not later than ferty-five (45) days after the flrsr calendar quarter followingthe Commercial Operation Date.

4.7 Right to Inspect Records. Owner shall have the right by appointment, annual ly,at Grantee's offices during normal business hours, personally or by representative, to i ns pe ct t heutility statements received by Grantee and any other necessary books and records Of Grantee forthe prior calendar year for the purpose of verifying the payments due under this Lease. AU suchinspections shall be paid for by Owner unless Owner di scovers an inaccuracy in the payment smade to Owner in excess of five percent (5%) of the total payments due Owner in Grantee'sfavor. Owner shal l keep confidential all information inspected or obtained by Owner hereunderin accordance with Section 13.3; further, any representative of Ownor that performs any suchinspection or obtains any such information shall provide Grantee, in advance, a signedconfident ia li ty agreement conta ining the same terms as set for th in Section 13.3.

4.8 No Representation. Owner acknowledges that any estimates of production givenby Grantee are for informational purposes only and Owner has not relied upon any suchestimates in execut ing this Lease . Other than those representat ions Slid warrant ies set for th inSection 7 below, Grantee bas neither made, nor makes, any representations or warranties,verbally. in MY such writ ten est imates of product ion, in this Lease or otherwise, concerning theli kelihood that Grantee will i nstall Windpower Facilit ies on the Property or that any WindpowerFacili ties inst al led on the Property wil l generate electri cit y sufficient to create any ent itlement inOwner to a payrn.ent pursuant to Section 4.3(a) during any period oftime. Owner acknowledgesthat Grantee has no obligation to generate or sell any amount of electrical energy from theProperty.

5. Ownership of Wind power Facilities. Owner shall have no ownership or otherinterest in any Windpower Facilities installed on the Property, and Grantee may remove any O ra ll Wi nd power F ac il it ie sat a n y t im e.

6. Taxes. Grantee shall pay personal property taxes attributable to WindpowerFacilities and other improvements that Grant ee installs on the Property. Grantee shall also pay orreimburse Owner for any increase in real property taxes levied against the Property as a result ofGrantee' s ins ta llat ions or that is a tt ributabLe to a .reclassificat ion of the Property as a result of thisLease. Owner shall pay al l taxes, assessments or other fees at tributabl e to facilit ies install ed byOwner Of others on the Property or to the underlying value of the Property itself. It is a conditionto Owner's ri gll t to payment or reimbursement hereunder that Owner submit the real property ta xbil l to Grantee within six. (6) months after Owner receives the bill from the laxing authority (butin 11 0 event l at er than thirty (30) days prior to the latest date by which such taxes may be paidwithout penalty). Grantee shall have the right to pay its porti on of'the real property taxes directlyto th e taxing authority. Owner shall pay its portion of the Teal proper ty taxes , and if OWner failsWind Ene


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to do so, Grantee shal l be enti tled (but not obl igated) to make payments in ful fi llment of Owner' sobligations to the taxing authori tyand may offset the amount of sucb payments from.amounts

due Owner under this Lease. Owner and Grantee agree jointl y to use commercial ly reasonabl eefforts to cause the Property Dot to be reclassified from its present agricultural Of open spaceexemption as a result of t his Lease.

7. Grantee's Representations. Warranties and Covenants.represents, warrants and covenants to Owner that:

Grant ee hereby

7.1 Indemnityandinsurance. Grantee wil l indemnify Owner agains t liabilityfo r physical damage to proper ty and for physical injuries to an y person, to the extent caused byGrantee's operations or activities on the Property. The reference to property damage in thepreceding sentence does not include any damages to crops or any losses of rent, businessopportunities,profits and the like that may result from Owner's loss of use of the portion oftbeProperty occupi ed by Windpower Faciliti es. In addition, Grantee shall maintain liabilityinsurance insuring Grantee and Owner against loss caused by Grantee's use of the Propertyunder this Lease (the "PoliCY") or Grantee may self-insure against the risk of such loss. ThePolicy shal l provide for a coverage limit of at least Two Mi ll io n Do ll ars ( S ,2 ,OOO,OOO)efore theStart of Construction and Three Mill ion Dollars ( S 3 , O O O , O O O )thereafter. Under such Policy,

Owner will be named as an additi onal insured with respect to operations or activities of Granteebut only to the extent Owner is held liable for damage and injuries caused by such operations oractivities for which Grantee has agreed to indemnify Owner pursuant to this Section 7.1. Nocoverage is provided. for liabilit y ari si ng out of Owner's or its tenant s' , i nvi tees' or permit tees'own negligence or misconduct. In the event of sel f insurance, Grantee shall assume the risk ofloss for general liability exposures that would have been covered by the Policy, to the extentGrantee has agreed to indemnifyOwner pursuant to this Section 7.1. Grantee agrees to supplyOwner with a certificate of insurance that shows the insurance coverage provided under thePol icy or evidence of sel f insurance, as Owner may reasonably request.

7.2 Requirements of GovernmentalAgencies. Grantee, at its expense, shallcomply in all material respects with val id laws, ordinances, statutes, orders and regulations.ofany governmental agency appl icable to the WiDdpower Facil ities. Grantee shall have the right,in its sole discretion,to contest by appropr ia te legal proceedings, brought in the name of Granteeor in the names of both Grantee and Owner where appropriate or required, the validity orapplicability to the Property or Windpower Facilities of any law, ordinance, statute, order.regulation, p roper ty a s se ssmentor the like now or hereafter made or issued by any federal, state,county, local or other governmental agency or entity. Owner sball cooperate in every reasonableway in such contest, at no out-of-pocket expense to Owner. Grantee shall control and direct anycont est or proceeding, i ncluding any maintained in the name of Owner.

7.3 Co.nstructjonLjens, Grantee shall keep the Property free and clear of allliens and claims of liens for labor and services performed on, and materials, suppl ies orequipment furnished to, the Property in connection with Grantee's use of the Property; if anysuch lien is f iled , Grantee shall , within s ixty (60) days after it receives noti ce of the fili ng, eit herbond around such lien or establi sh appropri ate reserves therefor, or otherwise remove such lienfrom theProperty pursuant to applicable law.

Wind Ene rg y L ea se Agr eeme :u lAppr o ve d Fo rm 07 2 li 1O CONFIDENTIAL

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7.4 Hazardous Materia/~. Grantee shall not violate, and shall indemnifyOwner agains t l iabi li ty and expense ar ising from an yviolat ion by Grantee or Grantee's agents orcontractors of , any federal , s tate, or local law, ordinance, orregulat ion relat rog to the generation,manufacture, production. use, storage, release or threatened release, discharge, disposal,transportation o r presen ce o f a ny su bsta nc e, m ateria l, o rw aste w hic h is n ow o r h erea fterc la ss ified a shazardous or toxic, or which isregulated under c urren t o r fu tu re fed era l,stat e, orlocal laws or regulations, on or under the Property.

8. Owner's Representations. Warranties and Covenant s. Owner hereby represents,wanants and covenants as fol lows:

8.1 Owner's Authoritv. Owner is the sole owner of the Property and holds feesimple title to the surface estate of the Property. Owner bas the unrestricted right and authorityand has taken all necessary action to authorize Owner to execute this Lease and to grant 10Grantee th e rights granted hereunder. Each person signing this Lease on behalf of Owner isauthorized to do so and all persons having any ownership interest in the Property (includingspouses) are signing thi s Lease. When signed by Owner, this Lease const itutes a valid andbinding agreement enforceable against Owner and the P ro pe rt y inaccordance with i ts terms.Each spollse signing this Lease agrees that an y rights of commllllityproperty, homestead, dower,contribut ion, and the like shall be subject and subordinat e to this Lease and the easement ri ghtsgranted hereby. Owner hereby releases and waives all rights under and by virtue of anyappl icable homestead exemption laws as 10 the easements and r ights granted hereunder. Withoutlimiting the foregoing, if a title search shows that the holders of fee simple title to the Propertyare different from the persons who signed this Lease as Owner, the persons who signed thisLease as Owner shal l immediat ely cause all of the holders of fee simple title to the Property toexecute an amendment to this Lease pur suant to which all of such holders of fee simple title tothe Property agree to and ratify thisLease, aU at no cost to Grantee.

8. 2 Restrictive Cove nO !! l- - NQ I nt er fe re nc e . Grantee shall have the quiet useand enjoyment of the Property in accordance with the terms of this Lease. Owner's activitiesand any grant of rights Owner makes to any person or entity, whether located on the Property orelsewhere, shal l not, current ly or prospect ively, interfere with: the development , construction,install ati on, maint enance or operation of Windpower Facili ties, whether l ocat ed on the PropertyOT elsewhere; access over the Property to such Windpower Faci lities; any Grantee Activities; orthe undertaking of an y other activities permitted hereunder. If Owner has an y r ight to select,

determjne, prohibit or controlthe locat ion of s ites for dri ll ing, exploitat ion, productionand/orexplorat ion of minerals , hydrocarbons, water, gravel , or an y other similar resource in, to or onderthe Property, then Owner shall exercise such right so as minimize interference with any of tbeforegoing, Without limiting til e generalit y of the foregoing, (3) the act ivi ties of Owner sball notinterfer e wi th the wind speed or wind direct ion over the Property. including, without limit at ion,plant ing trees or cocstructi ng bui ldings or other structures (coll ectively, "Owner' s Structures)closer than one thousand (1,000) feel or twenty (20) times the height of any such Owner'sStructure, whichever is g re at er, f romany w in d. tu rbin e o rproposed wind turbine of Grantee,whether l ocat ed on the Property or elsewhere within two (2) miles of th e boundary of the Project ,(b) Owner shall not engage in any other activity (other than ordinary agricultural activities),whether l ocat ed on the Property or elsewhere within two (2) mi les of the boundary of the Project ,t hat might cause a decrease in the output or efficiency of the Windpower Facilit ies, and (c) inWind En.ergrL~ Agrttmen!AWl'


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addition 10 the foregoing, Owner shal l not construct a building to be used as an occupiedresidence within 1,320 feet of any wind turbine or proposed wind turbine of Grantee, whether

located on the Property or elsewhere. For this purpose, the height of planted trees will bedeemed to be their expected height at fuji maturity. Grant ee may send Owner a si te developmentplan fro m time to time thatshows t he p la n ne d locati ons of Grantee' s wind turbines ("Turbine

. Siting Plan") so that Owner can comply with the requirements set forth above. If Owner isplanning 10 install or build an Owner's Structure and has not received the Turbine Siting Plan,Owner will give Grantee lit least sixty (60) days' prior notice of the height and location of theOwner's Structure so that Grantee bas such information before completi ng the Turbine SitingPlan. Any structures or trees existing on the date of Owner's receipt of the Turbine Siting Plan,or replacements thereof at the same locati on and with no greater height {or expected height at ful lmaturity, in the case of growing t rees), wi ll be deemed not to violate thi s Sect ion. Owner furt herwarrants and represents that there are no pending or, to Owner's knowledge, threatenedcondemnation or similar proceedings, lawsuits or other claims which may affect the Property(Owner further agreeing to immediately inform Grantee if any of the foregoing arise during theterm of this Lease).

8_3 Liens and Tenants. Except as disclosed to Grantee in writ ing, t here are noliens, encumbrances, leases, mortgages, deeds of trust, mineral or oil and gas rights, options,rights of .refusal, preferential rights to purchase or lease or other exceptions to "Owner' s fee tit leownership of the Proper ty (collect ively, "Liens") which are not recorded in th e public records ofthe County in which tbe Property is located, Lienholders (including tenants), whether or Dottheir Liens are recorded, shall be Owner's responsibility, and Owner shall cooperate withGrantee to obtain a non-disturbance agreement from each party that holds a Lien (recorded orunrecorded) that might interfere with Grantee's rights under this Lease. A non-disturbanceagreement is an agreement between Grantee and a lienholder which provides that the lienholdershall not disturb Grantee's possession or rights under this Lease or terminate this Lease so longas Owner is not entitled to terminate thi s Lease under the provisions hereof. If Owner is unableto obtain any such nee- di st u rb anceagreement from a. lienholder !hat ho lds amortgage, deed oftrust, tax lien or other Li en that is senior to tIili!Lease (i f any), Grantee shall be entitled (but notobligated) to make payments in fulfillment of Owner's obligations to the lienholder and mayoffset t he amount of such payments from amounts due Owner under this Lease.

8.4 Requirements of GO\lemmerrialAgencies: Cooperation. Owner shallassist and ful ly cooperate with Grantee, at no out -of-pocket expense to Owner, in. complyingwith or obtaining any land use permits and approvals , tax- incent ive or tax-abatement programapprovals, building permits, environmental impact reviews, or any other permit s or approvalsrequired for the financing, construction, inst allation, relocation, replacement, maintenance.operat ion or removal of Windpower Faci li ties in the Project (whether located on the Proper ty, Oll.adjacent property, or elsewhere). including execution of applications for such permits orapprovals if required. In connecti on with any applications for such approvals, Owner agrees atGrantee's request to support such application (at no oat-of-pocket expense to Owner) at anyadministrative, judicial or legislative level. In the event that an y laws, rules, regul ations orordinances of any governmental agency provide for setbacks or otherwise rest ri ct the location ofany Windpower Facilities to be installed on the Property or adjacent properties, Owner shallcoop orate with Grantee in obtaining waivers of S1Jchsetbacks and shall execute any documentsreasonably requested by Grantee 10 evidence Owner's waiver of such setbacks.Wim!Bn",ID' Lease AgreementApproverl Form ()7 .26-10 CONFIDENTIAL

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8.5 ~. Owner hereby grants to Grantee the right of ingress to and egress

f rom Windpower Facil it ies (whether located on the Property, on adjacent property, or e lsewhere)'Over and across the Property by means 0 f roads aad lane s thereon if exist ing, or otherwise bysu ch ro ute o r ro utes a s G ra ntee m ~c on stru ct fro m tim e to tim e (th e "A cc ess Easem en t"). Th eAcces s Ea semen tshalli nc lu de th eright tQ im pro ve a nd m ain ta in existin g ro ad s a nd la nes. Th eA cc es s E as em en t s ha ll ex pi re u po n t erm in at io n o rexpiration of t h is Le as e.

8;6 Hazardous Materials. Owner andOwner's tenants, agents ,orcontractersshall not viola te, and Owne r s h a l lindemnify Granteeagains t l iabi li ty and expenses arising fromany violation by Owner or Owner 's tenants , agents, or contrac to rs of, any fede ra l, State or locallaw. o rdinance or regulation rela ting to ihe generation, manufacture. production.use, storage,release or threatened release,discharge, disposa l. tran sportation or presence of an y substance,material o r waste which is now o r herea fter c la ssified ashazardous or to xic , o rwhich illte~ated under current or future federal, state or local laws or regulations, on or under theProperty.

8.1 il1riemnitv_ Owner will inderpni fy Grantee against l iabi li ty for physica l'damage to property and for physica l injur ies- to any person, to the extent caused by the operationsor act iv it ies of Owner or Owner 's invitees; employees, tenants , agents or contrac tors .

8 .8 Non-ce/usille Grant Q( Rights. Own er h ereb ygrants Grantee a . non-exclusive right, privilege, license and ea sement for the benefit, use and enjoyment of all of thefollowing:

(a) Any and all easemeata, rights-of-way, rights of entry, hereditaments,privileges and appurtenances benefiting, belonging to or inuring to the benefit of Owner andpertaining to the Property.

(b)iuJ.y and all right, t it le and interes t ofOwner in and to any 11II1c;1n the be d ofany stre et, road, avenue or alley (open, proposed or closed) in f ront .ef or adjoining the Propertyand a ny a ndall right, tit l.e and interest of Owner, ill and to any rights-ot-way, rights of ingress o regress, or other in terests in, OJl, o r to any land, highway, street, road, avenue or alley (op~proposed or closed) in , on , o r a c ro s s,in front of, abutting, o r adjoining th e Property.

(e) Anya nd a llright, title a nd in teres t.o f Own erin and to a n y s tr ip sDr .goresofland adjacent O rcontiguous tothe Property, whether those lands are owned or claimed hy deed,

l im i ta t io n s " o rotherwise.&.9 Lateral SupPOrt.Grantee shall have and exercise the right of subjacent

and lateral support for Wiildpower Fac ilities on the Property to whatever extent is necessa ry fo cthe safe constmetion, operation and maintenance of Windpower Facilities. Owner expresslycovenants that Owner shan not excavate 80= the- sides of or underneath the WindpowerFaeilitiesas to undermine or otherwise adversely affect their stability.

8..10 NoiSe. Own!'! 'grants Grantee an easement for th e r ight and privilege togenerate and maintain.audible noise levels in. excess of 50 dbA (L90) on and above the NoiseEasement Property at any tiineii of theday 0+ night ("No ise Easement"). The "Noise Easement~" shall mean Ute I'roperty except those portions within a two hundred {2QO)-foot radiusWind Eo"'W LeaS. AgreementApproved Form~726'IO CONFIDENTIAL

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circle (or lesser distance with Owner's prior consent) centered on the inside of each presentlyexist ing, occupied res idence on the Property, I f noise levels produced by the turbines exceed 50

e lbA (L90 )without the Owner's consent as measured within two hundred (200) feet (or lesseragreed dis tance) f rom the inside of a present ly exist ing, occupied res idence all the Property by anindependent professional applying commonly accepted measurement ins truments and standards ,Grantee shal l reduce the noise levels produced by the turbines to 50 elbA (L90) at two hundred(200) feet (or lesser agreed distance) from the residence. Measures to be taken by Grantee. mayinclude ins ta ll ing insulat ion or sound-deadening mater ia l in the offending turbine{s) ; ins ta ll inglandscaping, insulation, and sound-deadening material at the residence; or changing theoperat ion of the turbine(s) to reduce noise output .

8.11 TurbineSiting. Owner agrees that any turbines ins ta lled by Grantee on theProperty or on adjacent property may overhang the Property. for all purposes under this Lease,a turbine will be deemed to be located on the Property if the centerpoint of the turbine tower islocated on the Property, and all setbacks hereunder will be calcul ated from the center point of theturbine tower.

9, Owner's Activities.

9.1 Agricultural Actiyitie:s. In . the construction and operation of it sWindpower Facilities, Grantee will make reasonable efforts not to interfere with Owner'sagricultural activities on the Property. To that end, Grantee will designate a single point ofcont act for communications with Owner at all times.

(a) Construction: Siting. Grantee willinform Owner prior to the Start ofConstruction of Grantee's plan and schedule for construction on the Property, and discuss themeasures Grantee will take du.ring construction to minimize conflicts between Grantee'sconstruction activities and Owner's ongoing agricultural operations. Grantee will present apreliminary site development pl an showing the proposed location oftbe Windpower Facil ities onthe Property for Owner's information. and solicit Owner's advice and input, before finalizing thesite design.

(b) Sgil Restoration' Weed Control Upon completion of construction on theProperty, Grantee will restore the soil surface on any portion of the Property disturbed byGrantee that is 1101 within f ive feet (5' ) of the Windpower Facil it ies . In addition, if such land wasin native grassl and prior to construct ion, Grantee will re-pl ant nat ive grass seed on such port ion

of the Property. After the Commercial Operation Date, Grantee will use commerciallyreasonable efforts to control weeds resul ting from Grantee ' B use of the Property,

(c) Gatesand Fences. When instal ling a gat e within Owner's existing fence,Grantee will make such fence cuts, braces, and repairs that will be permanent and remainfunctional for the remaining life of the fence of which they are part; alternatively, Owner mayrequire Grantee to install a cattle guard in lieu of any external gate used by Grantee. Duringconstruction or operation of the Windpower Facilities, Grantee will close gates used by it spersonnel except when open to permit the passage of vehicular t raffic, 80 that Owner'S livestockdo notstray or escape through such gates. lf Owner maintains locks on exterior gates, Ownerwill provide Grantee witb keys or with the combinations to such locks. Additionally, Owner

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author izes Grantee, at Grantee 's sole expense, to take reasonable safety and security measures toreduce the risk of damage to the Windpower Facilities or the risk that the Windpower Facilities

will cause damage, injury or death to people, livestock, other animals and property, includingfencing around the perimeter of any electric substation for the Project, operations andmaintenance building an d (during periods of construction) laydo wn yard, as G rantee m ay deemnecessaryor appropriate t o s ec u reo r enclose the same, without unduly burdening Owner's use o fth e Property, in which areas Gra nt ee 's ri gh tof p os se ss io n . s ha ll b eexclusive fo r a llpurposes.

(d) Roads. To minimize erosion caused by Grantee's constructi on of roads onthe Proper ty, Grantee will seek Owner's advice on the design of such roads. Grantee willincorporate Owner's advice into the fi nal road design 10 the extent such advice does not requi reGrantee to spend more 10 build such roads than required by use of good engineer ing practice, asdetermined by Grantee in its reasonabl e judgment . During construction, Grantee wilJ keepOwner's existing site roads used by Grantee in good repair. After construction is complete,Grantee will maintain roads used by Grantee OIl the Property to tbe extent necessary fOTGrantee's continued use,as reasonably determined by Grantee.

(e) Animals. Grantee's employees shall not tiling animals onto the Propertyat any t ime.

9.2 Minerai Deve/opment. Owner reserves the right to develop the minerals,i fany, owned by Owner or third parties on the Property so long as such development (includingany drilling or mining) does not interfere with Grantee's use of the Property (as provided inSection 8.2 above) and does not materially diminish the amount ofland surface of the Propertyavailable for the Grantee Activities. Owner shall include as a term and condition to anyconveyance on or after the Effective Date of any interest in the mineral estate in the Property,i ncluding any lease thereof (but t he fol lowing shal l be true and binding upon such parties andtheir successors and assigns whether or not such term and condition are expressly so included),that any owner of any mineral interest in the Property (a) shall use the surface of the Propertyonly in a manner that reasonably accommodates Grantee's surface use as described herein andwuh due regard for the rights of Grantee with respect to the surface use, (b) shall make only suchlise of the surface of the Property as shall avoid material impairment of Grantee's actual ormticipated surface use as described herein, and (c) shall limit any drilling, mining or otheractivity for extraction of minerals from the Property to occur only on those areas of the surfaceof the Property that are not closer to any wind turbine or proposed wind turbine of Grantee thanthe greater of (i) twenty (20) times the height of any such well, building or other structure, or (ii)one thousand (1,000) feet.

9.3 Hunting. Under DO circumstances shall Grantee or any of Grantee'sinvitees, agents Or contractors hunt 00 t he Property. Owner expressly reserves the right to huntor to all ow it s invitees and licensees to hunt on the Property, so long as such hunting is done in asafe manner and does not interfere with Grantee's use of the Property, damage any WindpowerFacilities, or endanger Of injure any of Grantee 's personnel, business invitees, agents, contractorsor property belonging to Grantee, Grantee's invitees, agents or cont ractors. If Owner authori zesany such hunting, Owner shall indemnify Grantee from any such interference, damage or injmycaused by bunting authorized by Owner, but not otherwise. Notwithstanding the foregoing,Owner shaH not permit any bunting during periods when Grantee's or Grantee's contractors'

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const ruction personnel are present on the Property during construction or repair of WindpowerFacilities or Transmission Facilities. Sucb prohibition shal l apply to Owner and it s employees,

invitees and licensees, and Owner shall include such prohibition in all agreements grantingbunting right s on tile Property. The provi si ons of this paragraph sball survive termination of thisLease.

10 . AsSignment; Lender Protection ..

10.1 Assignment. Grantee shall have the right, without need for Owner'sconsent, to sell, convey, lease, assign or transfer this Lease, or any OT all r ight or interest in thisLease, or any or all right or interest of Grantee in t he Property or in any or all of the WindpowerFaciliti es that Grantee or an y other party may now or hereafter install on the Property (in eachcase, at! "Assi.gnment"). Grantee shall give notice of such action (including the address of theass ignee thereof for not ice purposes) to Owner, provided that fail ure to give such notice shall notconstitute a default under this Lease but rather shall only have the effect of not binding Ownerwith respect to such Assignment until such notice shall have been given. The assignor under anyAssignment hereunder shall be released from obligations and liabiliti es accruing after tbe datesuch obligations an d liabilities are assumed by th e assignee, to the extent assumed by theassignee, Any obligations accruing before the date such obligati ons and liabili ties are assumedby the assignee sball be the responsibility of either the assignor or tbe assignee, as determinedjoint ly by the assignor and the ass ignee.

10.2 Lender Protection. Grantee may, at any lime and without the consent ofOwner, grant to any person or entity (herein, together with that person's or entity's successorsand assigns, a"Lender") one or more l iens, securi ty interes ts or collateral ass ignments in all orany part of it s interes ts under this Lease (3 ' 'Mortgage '' ). In the event any such Mortgage isgranted, the Lender thereunder shall, for so long as it s Mortgage remains in effect, be ent it led tothe protections described in the following provisions of this Section 1().2, upon delivery toOwner of notice ofits name and address,

(8) Consent to Modificati on. Tennination or Surrender. So long as any Mortgageremains in effect, thi s Lease shall not be modified, and Owner shall not accept a surrender of anyof the Property or a terminat ion or rel ease of this Lease prior t o expiration of the Term, includingany applicable renewal terms,without the prior consent of all Lenders.

(b) Notice of Default,; Op_portumtv to Cure. As a precondition to exercisingany rights or remedies for any alleged default under this Lease, Owner shall give notice of thedefault to each Lender concurrentl y with deli very of such notice to Grantee, specifying in detailthe alleged default and the required remedy. In the event Owner gives any such notice, th efollowing provisions shallapply:

(i) The Lender shall have the same period after receipt of the defaultnotice as is given to Grantee to remedy or cause to be remedied the default plus, in eachinstance, (i) an additional thirty (30) days after receipt of the default notice in the event ofany monet ary default (meaning any failure to pay when due any rent, real property taxes,insurance premiums or other monetary obligation under this Lease); and eli) an additionalsi:xty (60) days after receipt of t he defaul t notice in the event of any other type of default,

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provided that such sixty (60)-day period shall be extended for the time reasonablyrequired to complete such cure, including the time required for the Lender to perfect itsri ght to cure such default by obtaining possession of the Property (including possessionby a receiver) or by instituting foreclosure proceedings, provided the Lender act s wi threasonable and cont inuous dil igence. If Grantee or any Lender Is prohibi ted by anyprocess or injunct ion issued by any court or by reason of any action by any court havingjurisdiction over any bankruptcy or insolvency proceeding involving Grantee fromcommeacing or prosecuting the proceedings described above, the sixty (60)-day periodspecified above for commencing such proceeding shall be extended for the period of suchprohibition. Lenders shal l .have the absolute right to do any act or thing required to bep erf orm ed b yGrantee under this Lease , and any such act or thing performed by a Lendershall be as effective to prevent a default under this Lease and/or a forfeiture of any rightsunder this Lease as if done by Grantee itself.

(ii) During any period of possession of the Property by a Lender (or areceiver requested by such Lender) and/or during the pendency of any foreclosureproceedings instituted by a Lender, the Lender shall payor cause to be paid the rent andall other monetary charges payable by Grantee which have accrued and are unpaid at thecommeacement of such period and those which accrue thereafter during such period.Following acquisi tion of Grantee's interest hereunder by the Lender or itsassignee ordesignee as a result of foreclosure or assignment in lieu of foreclosure, or by a purchasera t a foreclosure sale , this Lease shall continue in fuU force and effect and the Lender orother party acquiring title to the leasehold estate shall, as promptly as reasonablypossible, commence the cure of all other defaul ts hereunder and thereafter diligentlyprocess such cure to completion, whereupon Owner's right to terminate this Lease basedupon S1Ith.defaults shall be deemed waived; provided, however, the Lender or other partyacquiring title to the leasehold estate shall not be required to cure those defaults whichare not reasonably susceptible of being cured or performed by such party ("Non-curableDefuults"). Non-curable defauits shall be deemed waived by Owner upon completion offoreclosure proceedings or acquisi tion of Grantee' s interes t in this Lease by such party.

(iii) Upon the sale or other transfer of the interests acquired pursuant 10foreclosure or assignment in l ieu of foreclosure, the Lender Of other acquiring party shallhave no further duties Of obligations hereunder. Neither the bankruptcy nor theinsolvency of Grantee shal l be grounds for terminating this Lease as long as the rent andall o ther monetary charges payable by such Grantee hereunder are paid by the Lender inaccordance with the terms of this Lease. Nothing herein shall be construed to extend thisLease beyond periods contemplated in Section 3 . or to require a Lender to continueforeclosure proceedings after the default has been cured. If the default is cured and theLender discont inues foreclosure proceedings , this Lease shal l continue in full force andeffect.

(c ) New Agreement

(i) If this Lease is rej ected by a trustee or debtor-in-possession in anybankruptcy or insolvency proceeding or this Lease is terminated as a result of anyincurable default or as a result of any default, foreclosure or assignment in lieu of

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foreclosure, or bankruptcy. insolvency or appointment of a receiver in bankruptcy, andwithin one hundred twenty (J 20) days after such rej ection or terminati on Grant ee or anyLender shal l have arranged 10 the reasonab1e satisfaction of Owner for the cure of alldefaults that are not Non-curable Defaults (including t he p aymen t .o f al l fees or OthCTcharges due and payable by Grantee as o f th edateof such rejection or termination), thenOwner shall execute and deliver to Grantee or such Lender (or its designee), as !he casemay be , a . n ew lea se a greem en t fo r th e Pro perty wh ic h(i) shall be fo r a termequal to theremainder o f th eTenn of IIIis Lease before giving effect to such rejectionor termination,(ii) shall contain the same covenants, agreements, t erms, provisions an d limitations asthls Lease (except for any requirement s that have been fulfilled by Grantee prio r torejec tion or terminat ion of this Lease and any Non-curable Defaults) , (ill) shall enjoy thesame priority as this Lease over any lien. encumbrance or other interest created byOwner, and (iv) shall include that portion of the Wmdpower Faciliti es in which Granteehad an interes t on the date of reject ion or termination. My new agreement granted shalleI!ioy the same priority as this Lease over any l ien, encumbrance or other interest createdby Owner. The provisions of thi s Secti on shal l survive the termination or reject ion of thisLease and shall continue in effect thereafter and, f rom the effective date of terminat ion tothe date of execution and del ivery of such new agreement, such Lender (or ilS designee)

obtaining the new agreement may lise and enjoy said Property without hindrance byOwner or any person claiming by, through or under Owner, provided that all of thecondit ions for a new agreement as set forth in this Section are complied with.

(ii) No payment made to Owner by any Lender shall constitute anagreement that such payment was, in fact, due under the terms of this Lease or a waivero f the Lender's rights with respect to any wrongful, improper or mistaken notice ordemand with respect to such payment.

10.3 Estoppel Certificates. etc. Owner shall execute such estoppel cer ti fica tes(certifying as to such matters as Grantee ma y reasonably request, including tha t 110 default thenexists under this Lease, if such be the case) and/or consents to assignment and/orDon-disturbance agreements ( including; with respect to other proper ty on or in the vicini ty of 'theProject as to which Owner or its affiliates may have lease, use or other rights) as Grantee or anyLender may reasonably request from time to time. Owner shall cooperate in amending thisLease from time to time to include any provision chat may be reasonably requested by Grantee orany Lender for t he purpose of implementing the terms and conditions contained in. t his Lease or

of preserving a Lender 's secur ity interes t, a t no out-of-pocket cost to Owner.

10.4 No Mer~er. There shall be no merger of this Lease, or of the interestscreated by Ibis Lease, with the fee estate in the Property by reason of the fact that this Lease orany sucb interests may be held, directly or indirectly, by or for the account of any person orpersons who shall own the fee estate or any interest therein, and no such merger shall occurunless and until all persons at the t ime having IUl interes t in !he fee estate in the Property, and al lpersons (including Lenders) having an int erest i n Of under this Lease and any portion of the feeestate shall j oin in a written instrument effecting such merger and shal l duly record the same.

10.5 Separabilitv.. Grantee may use the Property in . connection with theProject or Grantee may divide the Property between two or more separate collecnons ~fWind EnergyLease A .gr ccma l lAl'pmv


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associated Windpower Facilities constructed, installedand/or operated on the Property and/or onother lands in tile general vicinity of the Property by 01 " on behalf of Grantee or an affiliatethereof as an integrated energy generat ing and del ivery system. If Granteeelects to so divide theProperty into two or more projects, then Grantee, in Grantee's sole discretion, may request thatOwner bifurcate this Lease as provided. in this Section, provided, however, that nothing in thisSection shall be deemed to require Grantee to bifurcate this Lease in the event that the Project isd iv id ed in to two o r mor e s ep ara te c o ll ec tio ns o f a ss oc ia tedWindpower Facilities. Within twenty(20) days after written request from Grantee, Owner shall (without demanding 1IDyadditionalconsiderat ion) , bi furcate ibis Lease by enter ing into and del iver ing to Grantee two or moreindependent new lease agreements (which shall supersede and 'replace this Lease) that provideGrant ee with separate leasehold estates in different portions of the Property. as designated byGrantee. Eacb such Dew lease agreement shall: (a) specify the portion(s) of the Property to becovered thereby, (b) contain the same terms and conditions as this Lease (except for any.requi rements that have bean fulfilled by Grantee or any other person or entity prior to theexecution of such new agreements, and except for any modifications that may be required toensure that each. party's combined obligations under such new agreements do not exceed suchparty' s obl igations under this Lease) and be in a form reasonably acceptable to Grantee; (c) befor a term equal to the remaining Teem of this Lease; (d) contain a grant 0:[ access, transmission,

communications and other easements for the benefi t of each of the bifurcated estates, coveringsuch portion or portions of the Property outside of the benefited estate in each case as Granteemay designate; (e) require payment to Owner of only an acreage-proportionate part of eachpayment due under Section 4.] (which under all such new agreements shall in the aggregateequal the amounts that are due under this Lease}; (1 ) provide for payments thereafter due underSections 4.2 and 4.3 and el sewhere to be paid with respect 10 the wind turbines and WindpowerFacilities actually installed under such new lease for the portion of the Property subject to suchlease; and (g) 'enjoy the same priority as this Lease over any lien,encumbrance or other interestagainst the Property. Further, notwithstanding any other provision of this Lease, (i) in the eventof any uncured default under any such Dew lease agreement, such event of default shall notaffect,or cause a termination of, an y other such new lease agreement or any rights or interestsgranted under any other such new lease agreement and (ii) in the event of a termination of IDlysuch new lease agreement, the remaining new lease agreements and all rights granted therein,including all easements affecting any portions of the Property (regardless of whether suchportions of the Property are part of or outside the benefi ted estate). shall remain in ful l force andeffect wi thout any further compensat ion due Owner.

10.6. Partial Assignment by Owner. Owner may partially assign, transfer orconvey the payments and rights to payment under this Lease solely as In Section 4.3 hereof, inwhole or in part. Such assignment may be made without Grantee's consent provided that (i)Owner notifies Grantee in writing of the terms of the assignment. if those terms require Granteeto make payments to the assignee; (ii) in the case of a collateral assignment by Owner, theassignee acknowledges the validity and superiority of the lien of this Lease; (iii) at the time ofthe ass ignment , Owner is not in "default under the terms of this Lease; and (iv) Owner shall notbe rel ieved. f rom liabi li ty for any of i1Sobl igat ions under this Lease by virtue of th e assignmentor conveyance unless the assignment or conveyance occurs in conjunction with a transfer orconveyance of Owner's interests in the Property, and the assignee or transferee assumes the

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obligations, covenants and cond it ion sof the Owner under this Lease in thei r enti re ty, as fur therde sc ri bed bel owin Section 13.4ofthis Lease.

II. Transmission Facilities.

ILl Granl of Transmiss ion Easement . For good an d valuable considerat ion,the receipt and su ff ic ie n cyof whic h is h ere byacknowledged by Owne r, Ow ne r h ere bygrants toGrantee an exclusive easement (,"TransmissionEasement") in, on, along and under the Propertyfor the right to erect, construct, reconstruct , replace, relocate, rem ove, m aia tain a nd u sethefollowing from time to time in connectionwith Grantee Activities,whether carried out on theProperty or elsewhere: (a) a line or lines of towers, together with such wires and cables as fromtime to t ime are suspended therefrom, and/or undergroundwires and cables, for the t ransmissionof electrical energy andlor fo r communication purposes, and all necessary and properfoundations, footings, crossarms and other appliances and fixtures for use in connection withsaid towers, wires and cables o n, a lo ngand in the Property; and (b) one or more substations orinterconnection or switching facilities from which Grantee or others that generate energy mayinterconnect to a ut il ity t ransmiss ion system or the t ransmiss ion system of another purchaser ofelectricalenergy, together with the appropriate rights-of-way, on, along and in the Property.

Said towers, wires, cables, substations, facilities and r igh t s-o f -wayate herein collectively calledthe "Transmission Facilities."

11.2 Access. The Transmission Easement is also for the right of ingress to andegress from the Transmission Fac i li t ie s (whe therlocated on the Property or elsewhere). over andalong the Property by means of roads and lanes thereon if existing o r otherwise by such route orroutes as Grantee may construct from time to time, consistent with the requirements of thisLease.

11.3 Term; Assignment. The term of the Transmission Easement shall expireupon expiration or termination of this Lease, and Grantee shall have t h e r igh t,without need forOwner's consent , to a ssig n o rconvey all or any POrtiOD of the Transmission Easement to anyperson or entity on an exclusive or nonexclusive basis during the term of this Lease.Notwithstanding the foregoing, upon request by Grantee , Owner agrees to execute t ransmissionagreements and/or other instruments directly with any utility requiring such agreements orinstruments in connection with the construction, operation and maintenance of electrict ransmiss ion, interconnect ion and switching faci li ties 00 the Property. Sucb transmissionagreements and. ins truments shal l be on the standard form used o r proposed by the utility, so longas the rights and obligations granted to the utility are substantially similar to those grantedherein; provided, however, th31notwi ths tanding the term of the Transmiss ion Easemeot grantedherein, if the ut il ity requires an easement in perpetui ty, then Owner shal l grant the ut il ity suchperpetual easement which covers the portion of the Property occupied by the utility's electrictransmission, interconnection or switching facilities, and the utility shall make a one-timepayment to Owner equal. to the fai r market value of such easement .

12 . Default and 'Termination.

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12.1 Grantee's Righi toTermingle. Grantee sball have the right 10 temtinatethis Lease . as to ail or any port of the Property at any time and/or for any rea son , effe ctive uponnotic e to Owne r from Grantee,

12.2 Owner's Right to Terminate. Exc ep t a s q ua li fi edby S~tion 10.2,Ownershall have the right to termina te this Lease a s follows:

(i) Default. If a materia l default in the pe rformance of Grantee' sobligations under this Lease shall have occurred and remains uncured and the default shall nothave been remedied within sixty (60) days ailer Grantee and all Assignees (as provided inSection 10) receive notice thereof, or, if cure will take longer than sixty (60) days, Grantee hasnot begun diligently to undertake the cure within sixty (60) days and thereafter diligentlyprosecutes the cure to completion unless unable to do so due to Force Majeure (as defined inSectiOD 13.1).

(ii) Abandonment In addition, if a fte r the Commercial Ope ra tionDa te , G ran te eceases to operate the Windpower Facilities on the Property for II per iod of twelve(t2) consecutive mon ths, unle ss due to Force Ma jeure (as defined in Section 13.1), Owne r mayterminate this Lease upon notice to Grantee and, in such event, Grantee shall comply withSection 12.3.

12.3 Effej.it o(Termination; Removal. Upon termination o f tho Lease, whethe ras to the entire Property or only as to part, Grantee shall (a) upon written request by Owner,prepare and place of record in the County records, a release of all of Grantee's right, title andinterest in and to the Property, or to that part thereofas to which the Lease has been. terminated,and (b) as soon as prac tic able therea fte r, remove all above-ground Windpower Facil it ies (o therthan roads) and all underground Windpower Facilities down to a depth of three feet from theProperty or portion as to which the Lease was terminated and restore the soil surface to acondition reasonably similar to its original condition. If Grantee fails to remove suchWindpower Facilities w ith in twenty-four (24) months of termination of the Lease , or such longerperiod as Owner may provide by extension, Owner may do so, in which case Grantee shallreimburse Owner for. reasonable cos ts of removal and res tora tion incurred by Owner.

12.4 Payment Under Protes, ,' Tolling. The defaulting party hereunder maycure any monetary event of default by depositing the amount in controversy (not inc ludingcla imed consequential, spec ial o r punitive damages) in escrow with any reputable 1hird partyescrow, or by interpleading the same, which amount shall remain undistributed until finaldecision by a cou rt of competent jurisdiction or upon agreement by the parties. No such deposits h aU con st it u tea waiver of the defaulting party's right to institute legal action for recovery ofsuch amounts, The time period for cure of any Don-monetaryevent of default shall be tolledduring such pe riod o f time the matter is subject to a judicial contest.

13 . Miscellaneous.

B.! Force MajeUie. If performance of this Lease or of an y obligationhereunder is prevented or substantially restricted or interfered with by reason of an event of"Force Majeu re " (de fined below), the affected party, upon giving notice 10 the other party, shall

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be excused from such performance to the extent of and for the duration of such prevention,re striction or interfe rence, The affected party shall u se its reasonable efforts to avoid or removesuch causes of'nonperformance, an d shall continue performance hereunder whenever such causesare removed, "Force Majeure" means flood, drought , ear thquake, storm, t ire , tornado, l ightning,windstorm, unusuaUy inclement weather or other natural catastrophe; acts of God, casualty oraccident; war, sabotage, vandalism, civil strife or other violence; strikes or labor disputes; anylaw, order, proclamation, regulation, ordinance, action, demand or requirement of anygovernment agency or utility; or any oilier act or condition beyond the reasonable control of aparty hereto.

13.2 Condemnation. If eminent domain p roceedings are commenced aga inst allor any portion of the Property and the taking and proposed use of such property would prevent oradverse ly affe ct Grantee 's construction, installation or operation of Windpower Fac ilities on theProperty, the parties shall either amend this Lease In reflect any necessary relocation of theProperty or Windpower Facilities which will preserve the value and benefit of the Lease toGrantee, together with any corresponding payments, or, at Grantee's option, this Lease shallterminate in which event neither party sha ll have any further obliga tions. All payments made bya condemnor on account of a taking by eminent domain shall be the property of the Owner,except that Grantee shall be entitled to such portion of the: total award or amount paid in anamount equa l to the sum of the rea sonable costs of removing or reloca ting any of the WindpowerFacilities and the amount of loss of any such Windpower Facilities and the use of the Propertypursuant to this Lease (based on the full term of the Lease, including renewals thereof, whhoutregard to ternrina tion thereof caused by the taking). Grantee shall have the right to pa rtic ipate inany condemnation proceedings.

13.3 Confidentiglitv. Owner shall maintain in confidence all informationper ta in ing to the financial te rms of or payments under th is Lease, Gran tee's site design, methodso f construction or ope ra tion, power produc tion or availability of the Windpower Facilities, andthe like, whether disclosed by Grantee or discovered by Owner. in each case unless suchinformation either (i) is in the public domain by reason of prior publica tion through no act oromission of Owner or its employees or agents, Of (ii) was already known 10 Owner at the lime pfdisclosure and which Owner is free to use or disclose without breach of any obligation to anyperson or entity. Owner shall not publish or othe rw ise d isclose such information to others exceptto accountants , lawyers , or other professionals who receive such information under an obl igat ionof confidentia lity ; buyers o f the Property; or lenders that have a security interest in the Propertywho agree to keep such information confidential. The provisions of this Section 13,:i shallsurvive the terminat ion or expirat ion of this Lease .

13.4 S!f(icesSQrs and Assigns, Any sale or other transfer of the Properly byOwn er s ba llbe subject to this Lease, and the Transmission Easement and Access Easement.This Lease and .all ea sements and rights granted here in , including the Transmission Easementand Access Easement, shall burden the Property and shall run with the Property. This Lease andthe Transmission Easement and .. ~cceS8 Easement shall inure to the benefit of and be bindingupon Owner and Grantee and their respective heirs, transferees, successors and assigns, and allpersons cla iming under them.

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13 .5 Notices. All notices, requests, demands , waivers, approvals , consents andother communications req uired o rpermitted by th is L eas e (''N o tic es") sh all be giv enin writingby personal delivery (confirmed by cour ier delivery service , or via certified overnight delivery,such as FedEx). or first class U.S. mail, postage prepaid, r eturn receipt requested, certified,addressed as follows:

IftoOwnet: If to Grantee:

B P W in d Energy N o rth Am eric a In c.700 Louisiana Stree t, 33 m floorHou sto n, TX 77002Attention: Land ManagerPhone: (713) 354-2130

leta any Lender or assignee:

At the address indicated in the notice to Owner provided under Section 10 hereof.

Payments to Owner shall be.mailed to Owner's address above and made out to Owner. For thepurposes of Notices to be given by Owner, Owner des ignates its primarycontact, and Grantee shall be entitled to rely on any Notices given by such indiv idual in writ ingas if given in writing by a ll of the part ies cons ti tut ing Owner. Any party may change it s addressf or purposes of this paragraph by giving notice of such change to the other parties in the mannerprovided in this paragraph. Any notice provided for herein shall become effective only UPOllactual receipt by the party to whom it is given, unless such notice is only mailed by certifiedmail, return receipt requested, in which case it shall be deemed to be received five (5) businessd ays a fter th e d ateit is mailed.

13.6 Entire Agreement Amendments. This Lease consututes the entireagreement between Owner and Grantee respecting its subject matter. Any agreement,understanding or representation respecting the Property, the Lease, or any other matterref er enced herein not expressly set f or th in this Lease or a subsequent writing signed by bothparties is null and void. This Lease shall not be modif ied or amended, except in wr iting signedby both parties. No purported modif ications 01' amendments , including any ora l agreement ,course of conduct or absence of a response to a unilateral communication, shall be binding ODe ither par ty .

13.7 Legal Matters.

(a) This Lease shall be governed by and interpreted in accordance with thelaws of the State of New York, excluding the choice of law provisions thereof.

(b) The parties agree that any rule of construction to the effect thatambiguities an: to be resolved in favor of either par ty shall not be employed in the interpretationof this Lease. No waiver by II party of any provision of this Lease' shall be deemed to be II

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waiver of any other provision hereof. The use of the neuter gender includes the masculine andfeminine, and the singular number includes the plural, and vice versa, whenever the context sorequires. The terms "include", " includes" and including", as used here in , are without l imitation .Captions a nd b ea din gs u sedherein ar e for convenience o f reference on ly and donot define, limitor o th erw is e a ff ec t t hescope, meaning o r intent h ereo f. T he t erm "h ereo f' o r "h erein "means theentirety o f this Lea se u n le ss o th erw is e i nd ic a te d.

(c) NOTWITIfSTANDJNG ANYTHING TO THE CONTRARV IN TIDS LEASE,NEITHER PARTY SHALL, BE t:NTITLED TO, AND EACH OF OWNER M


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(b) Thearbitration shall be conducted by an arbitrator reasonably acceptableto both parties. If the parties cannot agree upon a mutually reasonably acceptable arbitrator,within fifteen (15) days after the giving of such demand for arbitration, th e part ies shall eachselect an arbitrator. Within fifteen (15) days thereafter, the two (2) party-selected arbitratorsshall in tum appoint an arbitrator for the arbitration. If the party-selected arbitrators do notappoint such arbitrator within the applicable period of time, and/or if one of the parties fails tose lect i ts party-se lected arbitrator with in the appl icable period of t ime, then the arbi tra tor (5 ) shallbe appointed pursuant to the rules and procedures of the AAA. All decisions made by thearbit ra tor shall be final, binding and conclusive on the parties .. Subject to Section n.8fe). eachparty shall pay (a) the fees and costs of the party-selected arbitrator for such party (if applicable),(b) its own legal fees and other costs ofpresentiog its case to the arbitrator, (c) one-half of thefees charged by the arbitrator and the AM and (d) one-half of the costs lind expenses incurredby the arbitrator. The arbitrator shall (i) not have been an. employee of or consultant to eitherparty within the five (5) year period preceding the date of such request and (ii) not have anyfinancial interest in or derived from any Project or the Property. The arbitration shall take placein Houston, Texas, unless the part ies otherwise agree .

(c) The arbitrator or a court of appropriate jurisdiction may issue a writ ofexecution to enforce the arbitrator's judgment. Judgment may be entered upon such a decision' inaccordance with appl icable law in an y court baving jurisdictiontnereof

(d) Notwithstanding tbe foregoing, because time is of the essence of thisLease, the parties specifically reserve the right to seek a judicial temporary restraining order,preliminary injunction, specific performance or other short lenn equitable relief. and herebygrant the arbitrator the right to make a final determination of the parties' rights, includingwhether to make permanent or dissolve such court order.

(e) Attorneys' Fees. In the event of any arbitration or litigation for theinterpretation OT enforcement hereof, or for damages for a default hereunder, or which in anyother manner relates to this Lease, the easements granted hereunder, or the Property, theprevailing party shall be entitled to recover from theoiher party an amount equal to its actual,reasonable and verifiable out. .. of-pocket expenses, costs and attorneys' fees incurred inconnection therewith.

13.9 Partial Invalidity.. Should any provision of this Lease be held, in a finaland unappealable decision by a court of competent jurisdiction, to be either invalid. void or

unenforceable, the remaining provisions hereof shall remain in full force and effect, unimpairedby the holding, If the term of this Lease, the Access Easement, the Transmission Easement, orother right hereunder is found to be in excess of the longest duration permitted by applicable law,then the provisions hereof which. specify such term of duration shall be severed from this Lease,and the term instead shan expire on the latest date permitted by applicable law.

13 .10 No Pa rtne r sh ip .Nei ther the provis ions of this Lease, nor the .provisions ofany other agreements referenced herein, nor any acts of the parties, nor any other circumstancesshall be deemed to create a partnership or joint venture between the parties with respect to theProperty, the Willdpower Facilities or the Transmission Facilities for any purposes whatsoever.Each party shall, in connection with this Lease. the Property, the Wind power Facilities or theW,od Energy L...., AgreementApproved Form 072610 CONFIDENTIAL

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Transmiss ion Facil it ies , take reasonable s teps in dealing with thi rd par ties to negate any inferencetha t such par tnership or join t venture exist s.

13.11 Memorandum. Neither Owner nor Grantee shall record this Lease in lISentirety. The parties agree that a Memorandum of this Lease shall be recorded in the RealProperty Records of the countytjes) in which tbe Property is located, in a fOM reasonablyacceptableto both parties , which form shal l not contain any of the f inancial provisions hereof.

13.12 Tax Credits. If under applicable law Grantee becomes ineligible for anyta x credit, benefit or incentive for alternative energy expenditure established by any local, stale orfederal government, then, at Grantee's option, Owner and Grantee shall amend this Lease orreplace it with a different instrument so as to conver t Grantee' s interes t in . the Property to asubs tant ial ly s imilar in teres t that makes Grantee el igible for such ta x credit, benefit or incentive.

13.13 Counterparts. This Lease may be executed in multiple counterparts, .00one of which need be executed by all parties hereto, each of which shall constitute an original.Counterparts thus executed shal l together cons ti tu te one and the same ins trument.

(Signature pagesjol/ow]

Wind-Enorgy Lease Agreement

Approved Fo rm 07 26 -10 CONFIDENTIALPage 22 Qf25

BP Wind Lease Document Cape Vincent Wind farm

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Transcript of BP Wind Lease Document Cape Vincent Wind farm