Note: Text in red identifies and/or explains information that requires editing for each individual agreement as applicable.

Transcription

1 Note: Text in red identifies and/or explains information that requires editing for each individual agreement as applicable. STATE OF NORTH CAROLINA COUNTY OF LICENSE AGREEMENT THIS LICENSE AGREEMENT ( License ), made and entered into as of the date of the last signature below (Effective Date), by and between [Enter developer s name], (Licensee); and [UNC Institution s Full Name], a North Carolina nonprofit educational institution (short UNC acronym, for example UNC-A). WITNESSETH: WHEREAS, the State of North Carolina is the owner of certain real property located in [insert name] County, North Carolina, that has been allocated to [insert UNC acronym], upon which [insert UNC acronym] has constructed a facility more commonly known as (insert building name) and being more particularly described in Exhibit A, which Exhibit is attached hereto and incorporated by reference as if fully set out (the Premises ); and WHEREAS, Licensee desires to obtain, and [insert UNC acronym] desires to provide, a non-exclusive license for the use of portions of the Premises (the Licensed Area ), as more particularly defined in Exhibit B, for the installation, maintenance and operation of a Solar Facility System ( System ); and WHEREAS, this License is granted for the sole purpose of effectuating performances under that certain Solar Power Services Agreement ( SPSA ) between the parties hereto and of the Effective Date herewith. NOW, THEREFORE, in consideration of the promises and covenants contained in this License and the SPSA, the parties hereby agree to the following: 1. Grant of License. [Insert UNC acronym] does hereby license unto Licensee, its agents and contractors, a non-exclusive, revocable License to enter upon and use the Licensed Area together with the right of ingress and egress to and from the Licensed Area for and during the term under the terms and conditions hereinafter set forth, for the purposes of installation, maintenance, operation, repair, and/or removal of the System. 2. Term. This Agreement shall commence upon the Effective Date and shall be automatically conterminous with the Initial Term of the SPSA (the "Initial Term"). [Insert UNC acronym] and Licensee agree that the commencement of any renewal period under the SPSA shall automatically cause the commencement of a coterminous renewal term of this License (a "Renewal Term") upon the same terms and conditions as the Initial Term. [Item 3 should be omitted and remaining items re-numbered if no fee is applicable (which should be the most common implementation.]

2 3. Fees. Licensee shall pay to [insert UNC acronym] for the License in said Licensed Area the following sum of DOLLARS AND NO/100 ($XXXX.XX) per annum, which sum shall be paid in equal monthly installments of DOLLARS and NO/100 ($XXX.XX), said License to be payable within thirty (30) days from receipt of invoice. If possession of said Licensed Area is not ceded to Licensee upon the day of, 20, then the first payment of the fee shall be made within thirty (30) days after occupancy by Licensee and upon receipt of invoice from [insert UNC acronym] and shall be for a pro-rata part of the first month s fee. Licensee agrees to pay the aforesaid fee to [insert UNC acronym] at the address specified herein, or, to such other address as the [insert UNC acronym] may designate by a notice in writing at least thirty (30) days prior to the due date. 4. Permitted Uses. Licensee shall use the Licensed Area for the purpose of installing, maintaining, repairing, replacing, as needed, and operating the System. As such, [insert UNC acronym] covenants that Licensee, in performing the Permitted Uses herein contained, shall peaceably and quietly have, hold and enjoy the Licensed Area and the rights set forth herein. Licensee shall maintain the leased portion of any roof in a weather tight condition. The installation of the System shall be made at Licensee's sole expense. Licensee shall have the right to replace, repair, add or otherwise modify its equipment, including the System or any portion thereof, during the term of this License subject to the provisions of this License. [Insert UNC acronym] will maintain the Premises in good condition, reasonable wear and tear excepted. The Parties acknowledge and agree that Licensee's ability to use the Premises and Licensed Area for installation and operation of the System is contingent upon its obtaining all certificates, permits and other approvals (collectively, the "Governmental Approvals") that may be required by any Federal, State or local authorities with respect to the System as well as a building structural analysis reasonably acceptable to Licensee. [Insert UNC acronym] shall reasonably cooperate with Licensee in Licensee's efforts to obtain such Governmental Approvals and shall take no action which would materially adversely affect Licensee's ability to use the Premises and Licensed Area as described herein; provided, Licensee shall be responsible for any fees assessed by the applicable governmental entities. 5. Prohibited Uses. Licensee shall not use or allow the Premises and Licensed Area to be used for any improper, immoral, or unlawful purposes, nor shall Licensee cause, maintain or permit any nuisance in, on or about the Licensed Area. Licensee shall operate, maintain and repair the System in a manner that will not obstruct or interfere with [insert UNC acronym s] use of the Premises or the rights of any other occupants of the Premises. In the event such interference occurs, Licensee agrees to take all reasonable steps necessary to eliminate such interference promptly, but no later than five (5) days from notification by [insert UNC acronym]. [Insert UNC acronym] may construct, reconstruct, modify or make alterations to the Premises so long as such activities do not cause interference (including shading) with the operation of the System. 6. Commencement. Licensee shall use commercially reasonable efforts to cause installation of the System to be completed and to cause the System to begin Commercial Operation on, 20. Commercial Operation shall mean, for purposes of this License, the condition existing when (i) the System is mechanically complete and operating as specified, and (ii) the thermal output is delivered through the System to the designated output point or system. If Licensee fails

3 to install the System or caused the System to begin Commercial Operation by, 20, [insert UNC acronym] shall have the option to terminate this License under the provisions set forth in paragraph [Insert UNC acronym]; Limitations. No procurement, construction, or installation by Licensee shall be permitted to begin until [insert UNC acronym] has approved the completed plans and specifications for the System and has issued a notice authorizing Licensee to proceed. [Insert UNC acronym]'s approval of the completed plans and specifications shall not be unreasonably withheld or delayed. Notwithstanding [insert UNC acronym] s approval of the System in accordance with this License, in no event shall such approval be interpreted as making [insert UNC acronym] responsible for the design, construction or operation of the System. 8. Modifications/Alterations. Upon approval by [insert UNC acronym] of the plans and specifications of the System, Licensee shall have no right to make any material change to the approved design without receiving prior written approval of the [insert UNC acronym]. As a condition to consenting to the alterations, [insert UNC acronym] may impose reasonable requirements. Upon approval of [insert UNC acronym] of the construction and installation of the System, Licensee may not change, replace or alter the System, nor attach fixtures or erect additions, structures or signs in or upon the Licensed Area (collectively "Alterations") without receiving prior written approval of [insert UNC acronym], except for minor field changes. Prior to undertaking any such Alterations, Licensee shall submit to [insert UNC acronym] detailed and complete plans and specifications for the proposed Alterations. In its sole discretion, [insert UNC acronym] may waive the requirement for detailed plans upon Licensee's demonstration that the proposed Alteration consists solely of modification or replacement of like-kind equipment. [Insert UNC acronym] shall not unreasonably delay or withhold written approval of Licensee's proposed Alteration. Any such Alterations performed by Licensee shall be performed in accordance with all Applicable Laws and Requirements, including any and all necessary permits and approvals obtained and a copy thereof provided to [insert UNC acronym]. 9. Repair or Re-Roofing. If [insert UNC acronym] reasonably determines that it is necessary to repair or re-roof any of the Premises during the Term, then Licensee shall bear the cost of moving each such System, if necessary, once during the Term to allow [insert UNC acronym] to repair or re-roof each such of the Premises. This will include removing the System from the Licensed Area, storing the System components at Licensee's expense or as arrangements allow for storage at the Premises, and re-installing each such System in a manner consistent with the approved design and plans, as reasonably modified by [insert UNC acronym] or required by any change to the Premises resulting from the new roof(s). Licensee will defend, indemnify and hold harmless the [insert UNC acronym] for the cost of any damages incurred as a result of Licensee's removal, storage, and re-installation of each such System. Licensee will reinstall each such System in a manner that will not jeopardize the warranty of the repair or new roof(s) as installed. 10. Removal of Liens. [Insert UNC acronym] shall not own the System and shall not be responsible for any mechanics lien or stop notice placed or attempted to be placed on the System by labor or material providers. Licensee shall not cause or permit any liens or stop notices to attach or to be placed upon or encumber the Premises arising from or resulting out of any

4 improvements, alterations or other work performed by Licensee. If any such lien attaches, Licensee agrees to cause the lien to be removed within ten (10) days of notification thereof by posting a bond, payment of the lien or otherwise. If Licensee fails to remove the lien within such time period, in addition to its other remedies under this License, said failure of removal shall be considered a breach of this License. 11. Hazardous Substances. If Licensee's Permitted Uses require use, storage, generation or disposal of any hazardous substances, including any substance that is toxic, ignitable, reactive, or corrosive, and that is now or hereafter regulated by State, Federal or local law, the parties acknowledge that Licensee has, prior to the execution of this License, provided a list of such hazardous substances for review and approval by [insert UNC acronym s appropriate department]. If hazardous substances are used, stored, generated, or disposed of on or in the Licensed Area, Premises, or [insert UNC acronym]'s Campus or if the Licensed Area, Premises, or [insert UNC acronym]'s Campus become contaminated in any manner for which Licensee is legally liable, Licensee shall indemnify, defend and hold harmless [insert UNC acronym] from any and all liabilities, costs, and any and all sums paid for settlement of claims, litigation expenses, attorneys' fees, consultant, and expert fees of whatever kind or nature, known or unknown, contingent or otherwise, arising during or after the Term. 12. Ownership of System. Upon the expiration or termination of the License, in accordance with the provisions of the SPSA, and at the discretion of [insert UNC acronym], Licensee shall transfer ownership of the System, including all upgrades, improvements and replacements, to [insert UNC acronym] at no charge or expense, in good operating condition, and ownership of the System shall vest in [insert UNC acronym]. In that event, Licensee shall have no obligation to remove the System from the Licensed Area, or return the Licensed Area and Premises to their pre-installation condition. 13. Title to the System: Until ownership of the System is transferred from Licensee to [insert UNC acronym] in accordance with the terms of this License and the SPSA, title to the System and any equipment placed on the Licensed Area by Licensee shall be held by Licensee and all alterations, additions, improvements or installations made thereto by Licensee shall during the Term remain, the personal property of Licensee. 14. Financing. Subject to the provisions of the SPSA, [insert UNC acronym] acknowledges that Licensee may enter into financing arrangements including promissory notes and financial and security agreements for the financing of the System (the "Collateral") with a third party financing entity and may in the future enter into additional financing arrangements with other financing entities. In connection therewith, [insert UNC acronym] (i) consents to the installation of the Collateral to the extent that the Collateral is part of the approved System; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any payment due or to become due hereunder and that such Collateral may be removed at any time without recourse to legal proceedings. If Licensee enters into such a secured financing arrangement, [insert UNC acronym] may require a performance bond or other acceptable alternative guarantees from Licensee without expense to the [insert UNC acronym] to protect [insert UNC acronym] from the risk that ownership of the System will not be transferred to [insert UNC acronym] pursuant to

5 Section 12 if the Collateral is repossessed. Any security interest or mortgage shall be subordinate to the interest of [insert UNC acronym] in the Premises and subject to the terms and conditions of this License. Licensee is solely responsible for obtaining and repaying all financing, at its own cost and risk and without recourse to [insert UNC acronym], necessary for the design, development, construction, equipping, operation, maintenance, modification, reconstruction, rehabilitation, restoration, renewal and replacement of the System. Licensee exclusively bears the risk of any changes in the interest rate, payment provisions or the other terms of its financing. [Insert UNC acronym] shall have no obligation to pay debt service on any debt issued or incurred by Licensee. [Insert UNC acronym] shall have no obligation to join in, execute or guarantee any note or other evidence of indebtedness incurred in connection with the project. 15. Insurance. At all times during the use of the Licensed Area, Licensee agrees that it will keep the System insured against loss or damage by fire or other casualty, with extended coverage to the full fair insurable value thereof. Licensee shall name [insert UNC acronym], including its trustees, officers, agents and employees as Additional Insureds for the said purpose and use of this License. [Insert UNC acronym] shall not insure the System. Licensee agrees that all personal property, including the System, in or on the Premises shall be at the risk of Licensee only and that [insert UNC acronym] shall not be liable for damage caused by fire or other casualty. Certificates of Insurance evidencing such insurance coverage shall be provided to [insert UNC acronym]. 16. Indemnification. Licensee shall indemnify and hold harmless [insert UNC acronym], its trustees, officers, employees and agents from and against any liabilities, damages or claims (including attorney s fees) arising out of injuries (including death) or property damage suffered by any person as a result of Licensee s negligence or willful misconduct. 17. Breach, Default, and Early Termination. In the event either Party materially breaches this License, either party shall give the other party written notice of such breach. After receipt of such written notice, the breaching party shall have thirty (30) days in which to cure said default, provided the party shall have such an extended period as may be required beyond the thirty days if the nature of the cure is such that it reasonably requires more than thirty days and the breaching party commences the cure within the thirty-day period and thereafter continuously and diligently pursues the cure to completion. If after thirty days or additional reasonable time the breach is not cured, the non-breaching party may terminate this License. In the event the nonbreaching party is the Licensee, the Licensee may remove all of the equipment constituting the System, consistent with the terms of this license. In the event the non-breaching party is the [insert UNC acronym], at the discretion of the [insert UNC acronym], ownership of the System shall be transferred to [insert UNC acronym] consisten with Section 12 of this License. It is a condition of this License that Licensee and [insert UNC acronym] perform each of its respective duties and obligations under the SPSA. A breach of the SPSA by either party shall be considered a breach of this License. If a breach of the SPSA is unable to be cured, the nonbreaching party may terminate this License, subject to the provisions above, and Licensee may remove the System, as defined herein, from the Premises and Licensed Area consistent with the terms of this License.

6 In the event Licensee shall be insolvent, generally not pay its debts as they mature, makes a general assignment for the benefit of creditors, commences any case or proceeding seeking to have an order for relief entered on its behalf as a debtor, or to adjudicate its bankrupt or insolvent or seeking a reorganization, arrangement, liquidation or dissolution of it or its debts under any law relating to bankruptcy, insolvency, reorganization, or relief of debtors, or seeks the appointment of a receiver, trustee or similar official, and such case or proceeding, such an event shall constitute a default of this License by Licensee. 18. Removal Upon Early Termination. Upon termination of this License before the end of the Term, Licensee shall cause, within one hundred and twenty (120) days, the removal of the System and the restoration of the Licensed Area and Premises to its original condition, reasonable wear and tear and damage by fire, war, riots, insurrection, public calamity, by the elements, act of God, or by circumstances over which Licensee had no control or for which [insert UNC acronym] is responsible pursuant to this License, excepted. 19. Governing Law. This License shall be governed by, regulated, construed under the laws of the State of North Carolina, which shall also be the forum for any lawsuits arising from or incident to this License. 20. Assignment. This License may not be sold, assigned or transferred without the written consent of [insert UNC acronym], which consent will not be unreasonably withheld or delayed. 21. Taxes. Licensee shall be responsible for the personal property taxes or other taxes directly attributable to the System. 22. Notices. All notices herein provided to be given, or which may be given, by either party to the other, shall be deemed to have been fully given when made in writing and deposited in the United States mail, certified and postage prepaid and addressed as follows: to [insert institution name, and relevant mailing address details], and Licensee at. Nothing herein contained shall preclude the giving of such notice by personal service. The address to which notices shall be mailed as aforesaid to either party may be changed by written notice. 23. No Waiver. The failure of either party to insist in any instance upon strict performance of any of the terms and conditions herein set forth shall not be construed as a waiver of same in any other instance. No modification of any provision hereof and no cancellation or surrender hereof shall be valid unless in writing and signed and agreed to by both parties. 24. Auditor. The State of North Carolina or the [insert UNC acronym] auditor shall have access to persons and records as a result of all agreements entered into by [insert UNC acronym] in accordance with N.C.G.S and Session Law , Section Successors and Assigns. This License shall be binding and inure to the benefit of the Parties, their successors and assigns.

7 26. Severability. If any term or provision of this License shall be held invalid or unenforceable to any extent under applicable law by a court of competent jurisdiction, the remainder of this License shall not be affected thereby, and each term and provision shall be valid and enforceable to the fullest extent permitted by law. IN TESTIMONY WHEREOF, Licensee and the [insert UNC acronym] have each executed this License as of the date of the last signature below. LICENSEE: By: Printed Name Title [insert UNC acronym]: By: Printed Name Title