OTIRO Endorsement No. 107 Wind Energy - Leasehold and Easement Endorsement
ATTACHED TO POLICY NO.
STEWART TITLE GUARANTY COMPANY
1. As used in the endorsement, the following terms shall mean:
a. "Evicted" or "Eviction": (a) the lawful deprivation, in whole or in part, of the right of possession insured by this policy, contrary to the terms of any of the Leases or (b) the lawful prevention of the use of the Land or the Tenant Leasehold Improvements for the purposes permitted by the Lease, in either case, as a result of a matter covered by this policy.
b. "Lease": each of the wind energy lease or easement agreements described in Exhibit A to Schedule A.
c. "Leasehold Estate": the right of possession for each Lease Term.
d. "Lease Term": the duration of a Leasehold Estate, including any renewal or extended term if a valid option to renew or extended is contained in the Lease.
e. "Personal Property": chattels located on the Land and property which, because of their character and manner of affixation to the Land, can be severed from the Land without causing appreciable damage to themselves or to the Land to which they are affixed including any Electrical Generation and Transmission Facilities now or in the future affixed to the Land, even if the Electrical Generation and Transmission Facilities, when affixed to the Land could be or have been characterized as personal property.
f. "Remaining Lease Term": the portion of the Lease Term Remaining after the Insured has been Evicted as a result of a matter covered by this policy.
g. "Tenant Leasehold Improvements": those Electrical Generation and Transmission Facilities, required, or permitted to be built on the Land by the Lease that have been built at the Insured's expense or in which the Insured has an interest.
2. Valuation of Estate or Interested Insured:
a. If, in computing loss or damage, it becomes necessary to value the estates or interests of the Insured as the result of a covered matter that results in an Eviction, then that value shall consist of the value for (i) the Remaining Lease Term of the Leasehold Estate, and (ii) the Tenant Leasehold Improvements existing on the date of the Eviction and any diminution in the value of the Land as provided in Section 8 (a)(ii) of the Conditions of the Policy.
b. The computation of loss or damage to any portion of the Land shall take into account its value as an element of the integrated project. The value of the integrated project may be measured by (i) the use or uses the Land is used or intended to be used, or (ii) by the income capitalization approach.
c. The Insured Claimant shall have the right to have the Leasehold estate and the Tenant Leasehold Improvements valued either as a whole or separately. In either event, this determination of value shall take into account rent or easement payments no longer required to be paid for the Remaining Lease Term.
3. Additional items of loss covered by this endorsement:
If the Insured is Evicted, the following items of loss, if applicable, shall be included in computing loss or damage incurred by the Insured, but not to the extent that the same are included in the valuation of the estates or interests insured by this policy. These items of loss shall apply whether or not the insured estate or interest is a fee, easement or other interest.
a. The reasonable cost of removing and relocating any Personal Property that the Insured has the right to remove and relocate, situated on the Land at the time of Eviction, the cost of transportation of that Personal Property for the initial one hundred miles incurred in connection with the relocation, and the reasonable cost of repairing the Personal Property damaged by reason of the removal and relocation, except to the extent such Personal Property is included in the amount of loss or damage computed pursuant to Paragraph 2 of this endorsement.
b. Rent, easement payment or damages for use and occupancy of the Land prior to the Eviction which the Insured as owner of the Leasehold Estate is obligated to pay to any person having paramount title to that of its grantor or lessor in the Lease.
c. The amount of rent, easement payments or damages that, by the terms of the Lease, the Insured must continue to pay to its grantor or lessor after Eviction with respect to the portion of the Leasehold Estate or easement estate from which the Insured has been Evicted.
d. The fair market value, at the time of the Eviction, of the estate or interest of the Insured in any lease, sublease or easement made by the Insured as lessor or grantor of all or part of the Leasehold Estate or easement estate, except to the extent such Personal Property is include in the amount of the loss or damage computed pursuant to Paragraph 3 (a) of this endorsement.
e. Damages that the Insured is obligated to pay to lessees, sublessees or subeasement holders on account of the breach of any lease, sublease or easement made by the Insured as lessor or grantor of all or part of the Leasehold Estate or easement estate caused by the Eviction.
f. Reasonable costs incurred by the Insured to secure a replacement leasehold or easement equivalent to the Leasehold Estate.
g. If Tenant Leasehold Improvements are not substantially completed at the time of Eviction, the actual cost incurred by the Insured, less the salvage value, for the Tenant Leasehold Improvements up to the time of Eviction. Those costs include costs incurred to obtain land use, zoning, building and occupancy permits, architectural and engineering fees, construction management fees, costs of environmental testing and reviews, and landscaping costs.
This endorsement is issued as part of the policy. Except as it expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsements, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. To the extent a provision of the policy or a previous endorsement is inconsistent with an express provision of this endorsement, this endorsement controls. Otherwise, this endorsement is subject to all of the terms and provisions of the policy and any prior endorsements.
STEWART TITLE GUARANTY COMPANY
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