GEOTHERMAL LEASE AND AGREEMENT
Exhibit 4.178
GEOTHERMAL LEASE AND AGREEMENT
THIS LEASE AGREEMENT ("Agreement") is made and entered into by and between the Parties listed on Exhibit A hereto in their respective undivided percentage interests as Surface Lessors ("Surface Lessors"), the Parties listed on Exhibit B hereto in their respective undivided percentage interests as Mineral Lessors ("Mineral Lessors"), ("Surface Lessors" and "Mineral Lessors" are referred to in this Agreement in the aggregate as "Lessors") and ICELAND AMERICA ENERGY, INC, a California corporation located at 000 Xxxxxxxx Xxxx, Xxx Xxxxxxx, XX 00000 ("Lessee"). Lessors and Lessee are hereinafter collectively referred to as the "Parties". The Effective Date of this Agreement shall be as specified in Section 2(d) below.
RECITALS
WHEREAS, Lessors are the owners of the surface and mineral estates underlying the following real property, situated in Imperial County, State of California, known and described as follows:
That property consisting of approximately 660 acres of real property, surface, and subsurface rights to such real property, identified in Exhibit C hereto; together with all right, title and interest of Lessors, presently owned or hereafter acquired, in the above described real property, and whether particularly described above or not, in and to any real property embraced within or underlying roads, streets, alleys, rights of way, dikes, levees, real property created by accretion or reliction, and any waterways, including but not limited to rivers, streams, creeks, sloughs, ditches, canals and lakes, traversing or adjacent to the said above described real property (the "Property");
WHEREAS, the Parties hereto are desirous of having the Property developed for the production and use of geothermal Resources;
THEREFORE, the Parties do herein enter into the following Agreement:
| 1. | GRANT OF LEASE AND RIGHTS. |
(a) Lessors, for and in consideration of the sum of $10.00 and other valuable consideration in hand paid, and of the rental payments and royalties herein provided and of the covenants and agreements hereinafter contained, hereby grant, demise, lease and let unto Lessee, the Property with the sole and exclusive right to Lessee to drill for, produce, extract, take and remove therefrom:
(1) all products of geothermal processes, embracing indigenous steam, hot water and hot brines;
(2) steam and other gases, hot water and hot brines resulting from water, gas, or other fluids artificially introduced into subsurface formations;
(3) heat or other associated energy found beneath the surface of the earth;
(4) water from geopressured zones; and
(5) by-products of any of the foregoing, such as, products or minerals which are found in solution or association with or derived from any of the foregoing including gases hydrocarbon gases or liquids that can be produced separately from the well or solids and/or precious minerals that maybe mined from the Property or otherwise produced in conjunction with condensed steamed or processed water (hereafter, collectively referred to as "Resources").
(b) Except as provided under Section 6 herein, Lessee is hereby granted the sole and exclusive right to store, utilize, process, convert, and otherwise use such Resources on or off the Property and to sell the same or any part thereof on or off the Property during the term hereof.
(c) Except as provided under Section 6 herein, Lessee shall further have the sole and exclusive right of entry onto the surface and subsurface of the Property at all times for said purposes, and to further exercise this sole and exclusive right, consistent with the purposes of this Agreement, to construct, use, maintain, erect, repair and replace thereon, and to remove therefrom all roads, pipelines, ditches and lanes, telephone and telegraph lines, utility installations, power lines, poles, tanks, evaporation or settling basins, extraction or processing plants, machinery, equipment, buildings, electric power plants, and equipment for generation and transmission of electric power.
(d) Except as provided under Section 6 herein, Lessee shall also have the sole and exclusive right of entry to further exercise this sole and exclusive right to handle, treat, and store the Resources, and all structures and facilities relating thereto, which Lessee may desire to erect, construct or install in carrying on Lessee's business and operations on or from the Property and other real property in the vicinity of the Property.
(e) Lessee shall have the further sole and exclusive right to further exercise this sole and exclusive right to, subject to Section 6 of this Agreement, at such locations on the Property as Lessee in its sole discretion shall determine, erect, maintain, operate and remove a power plant or plants, structures, and facilities with all necessary appurtenances for the conversion of the Resources into heat, power or another form of energy.
(f) Except as provided under Section 6 herein, Lessee shall have this sole and exclusive right for the extraction of products from steam, brine or water produced from the Property and other real property in the vicinity of the Property, including all rights necessary or convenient thereto, together with rights of way for passage over, upon and across and ingress and egress to and from the Property for any or all of the above mentioned purposes.
(g) The sole and exclusive rights granted Lessee in the preceding paragraph shall be exercised in a prudent and workmanlike manner and in a manner that gives due consideration to, and does not unreasonably interfere with, Lessors' current use of the surface areas of the Property for existing agricultural production and other purposes, and in accordance with and subject to Section 6 below.
(h) The sole and exclusive rights granted Lessee in the preceding paragraphs, if exercised in such a manner as to deprive Surface Lessors of the use of the surface areas of the Property for financial gain by whatever means, shall obligate Lessee to compensate Surface Lessors for the loss of said use of the surface areas of the Property.
(i) Compensation for Surface Lessors' loss of the use of the surface areas of the Property shall be $900 per annum per acre plus CPI adjustments as defined in Section 2 below, plus all applicable rental payments under Section 2 below, which shall continue for surface usage for power plants, drill sites, roads, or production facilities even after royalty payments commence.
(j) Lessee shall also have the sole and exclusive right to utilize or to dispose of waste brine and other waste products from a well or xxxxx on the Property or on other land in the vicinity into a well or xxxxx drilled or conve1ied for that purpose on the Property or on other land in the vicinity, and the sole and exclusive right to inject water, brine, steam and gases from a well or xxxxx on the Prope1iy or such other land for the purpose of maintaining or restoring pressure, increasing or maintaining production, or testing
in the production zones beneath the Property or other land in the vicinity thereof.
(k) Subject to Sections 6, 10 and 11 below, Lessors hereby grant to Lessee the sole and exclusive right to enter upon and explore the Property by geological, geophysical or other methods, whether now known or not.
(1) The Effective Date of this Lease shall be February 1, 2008 provided that:
(i) On or before February 1, 2008, Lessee has the option to deliver to Lessors the sum of $25,000 which will give the Lessee the option to extend the Effective Date through and including May 1, 2008;
(ii) On or before May 1, 2008, Lessee has the option to deliver to the Lessors the amount of $31,000 as consideration to extend the Effective Date through and including August 1 ,2008;
(iii) On or before August 1, 2008, Lessee has the option to deliver to Lessors the sum of $31,000 as consideration to extend the Effective Date to November 1, 2008;
(iv) On or before November 1, 2008, Lessee has the option to deliver to Lessors the sum of $31,000 to extend the Effective Date through February l, 2009.
In each instance, Lessee may elect at any time to initiate the Effective Date of the Lease and prorate the option periods by notice in writing to Lessors, if the Effective Date is within the 90 day periods listed above. Lessee may not elect to choose an Effective Date until it has executed written agreements for leases in the area which, in Lessee's sole discretion, are sufficient to support its operations and potential construction of a 20 mega-watt or larger geothermal power project. If Lessee does not elect an Effective Date on or before February 1, 2009, or does not timely pay any extension payments listed above, this Agreement shall terminate and Lessors shall retain all moneys previously paid by Lessee.
| 2. | LEASE TERMS AND RENTALS. |
(a) Subject to Section 2(b) below, and subject to possible extensions as provided below in this Section 2(a), this Agreement shall be for a term of two (2) years from the Effective Date with an annual increase in the Primary Term rents as provided in Section 2(d) below ("Primary Term").
(b) If at the time of expiration of the Primary Term, Lessee is able to demonstrate to the reasonable satisfaction of Lessors that Lessee has:
( l) Engaged in sufficient research of the Resources on the Property to support geothermal drilling operations on the Property; and
(2) Engaged in geothermal drilling operations on the Property or engaged in the construction of a geothermal power project or projects on or near the Property which will utilize Resources for the generation of electrical power when placed in operation; or
(3) Received and accepted a geothermal resource evaluation report from a reputable geo-engineering or geophysical consultant, confirming the likelihood that the Resources will support the development of a 20 MW or larger geothermal power project on or near the Property, and
(4) Received and accepted a financeable power purchase agreement ("PPA") from a regulated utility company or wholesale purchaser of electrical power, which identifies the Property as the source of some or all of the Resources to be used for the generation of electrical power under the PPA.
Then the Primary Term shall be extended for additional seven (7) years (the "Extended Term") upon payment of the additional annual rents as provided for in Section 2(g) below. For avoidance of doubt, the Extended Term can be effectuated only upon occurrence of conditions 1 and 2 above or 3 and 4 above.
(c) Lessee shall provide Lessors with semi-annual reports within twenty (20) days of the conclusion of such semi-annual time period on the status of its activities to achieve the activities set forth in 2(b)(I - 4) above in order to demonstrate its good faith efforts to accomplish such.
(d) If, on or before the end of the Primary Term or the Extended Term, as applicable, Resources are being continuously produced in commercial quantities from the Property for utilization in an electric power generating plant or processing facility generating royalties to Lessors, this Agreement shall continue for so long as such Resources continue to be so continuously commercially produced, and Lessee shall pay to Lessors the royalties set forth in Section 3 below. Subject to Section 2(f) below, once the electrical power generating plant or processing facility has ceased production, Lessee shall quitclaim back to Lessors all of the Property and promptly complete its abandonment and restoration obligation under this Agreement.
(e) During the term of this Agreement, Lessee shall periodically cause the surface and mineral portions of the Property that are not used for potential electric power generation facilities or xxxxx, to be returned to Lessors. Following return of such portions of the Property, Lessee shall no longer be required to pay rent to Lessors for such returned portions of the Property.
(f) If after Resources from the Property have been produced in commercial quantities for utilization in an electric power generating plant or processing facility and the plant or plants are thereafter shut in for six (6) months or more for any reason, Lessee may maintain this Agreement in full force and affect for an additional two year period by paying the highest rental specified in Paragraph 2(g) below plus CPI adjustments to the Lessors for such period of time until commercial production is restored.
(g) Lessee shall pay Lessors upon the Effective Date of this Lease an initial bonus payment of $2.25 per surface acre and $6.75 per subsurface acre plus a first year annual rental payment of an additional $2.25 per surface acre and $6.75 per subsurface acre. Lessee shall make the following additional rental payments to Lessors on or before the first day of each subsequent year of the Primary Term as follows:
Second Year ($2.25 per surface and $6.75 per subsurface acre)
Third Year ($10 per surface acre and $30 per subsurface acre)
If the Agreement is extended for the Extended Term the annual rents shall be as follows:
(1) Fourth Year ($10 per surface acre and $30 per subsurface acre)
(2) Fifth Year ($10 per surface acre and $30 per subsurface acre)
(3) Sixth Year ($10 per surface acre and $30 per subsurface acre)
(4) Seventh Year and through the remaining years of the Extended Term ($1 0 per surface acre and $30 per subsurface acre)
All rental payments due to Lessors under this Lease shall be adjusted to reflect the increase, if any, in the consumer price index establish by the Bureau of Labor Statistics of the Department of Labor for all urban consumers, all items, for Los Angeles - Anaheim/Riverside (the "CPI"). All lease bonus and rental payments under this Lease, except as otherwise specifically provided herein shall be shared 25% to the
Surface Lessors and 75% to the Mineral Lessors in propotiion to their undivided interests in each estate as shown in Exhibits A, B and C hereto. All royalty payments reference throughout this Lease shall accrue solely to the Mineral Lessors in proportion to their percentage interest in the mineral estate.
(h) Upon Lessee selling or using the Resources from Lessors' Property in commercial quantities during the Primary or Extended Term, Lessee's Primary and Extended Term rental payment obligations will immediately terminate and Lessee will commence payment of Royalties for the sale and use of said Resources to Lessors as set forth in Section 3 below. Sale Resources in "commercial quantities" shall mean that generation of gross revenues to the Lessee in excess of $100,000 per month on a continuous and recurring basis.
(i) Any portion of the rentals paid to Mineral Lessors shall be treated as "advanced royalties" and shall be deducted from royalties payable under Section 3 below.
| 3. | ROYALTIES. |
(a) Lessee shall pay to Lessors a royalty or royalties out of the gross proceeds received by Lessee from the sale or use of Resources, or the re-injection of geothermal resource produced from adjoining property ("Other Resources") in proportion to Lessor's "Participation Interest" in the operative "Unit" (as those terms are defined in Section 11 below) from which the Resources are produced in whole or in part, or from which Other Resources are re-injected through xxxxx located on the Property. Separate compensation for easements shall also be required at market terms and rates.
(b) If Lessee sells any Resources described in Section 1.(a) of this Agreement produced from the Property as such, a royalty of ten percent (10%) of the gross value received from the sale by Lessee of the Resources, if sold off the Property or the Unit area, as the case may be shall be paid to Lessors.
(c) If Lessee generates electric power from a generating or power processing facility which utilizes any Resources or otherwise converts any Resources into electric power from a designated resource area or unit and sells any of the electric power to one or more third parties ("Electricity Revenues"), a royalty of three and two-tenths percent (3.2%) of the gross revenues received from the sale of such electric power for the first five (5) years of commercial operation of such facility or facilities, four percent (4%) of gross revenues of each such facility for the next ten years of commercial operation (years 6 through 15) and five percent (5%) of such gross revenues from and after 15 years of commercial operation of each such facility.
(d) If Lessee uses Resources at a commercial facility other than an electric power generating facility, a royalty of three and two-tenths percent (3.2%) for the first five (5) years, four percent (4%) for the next ten years (years 6 through 15) and five percent (5%) after 15 years of the fair market value of the Resources so used.
(e) Lessee may use, free of royalty, Resources and electric power developed from the Property for all operations authorized under the Agreement, including operation of the generating facility or facilities, and Lessee shall not be required to account to Lessors for or pay royalty on any Resources reasonably lost or consumed in operations hereunder provided that if Lessee is able to purchase power from a third-party at lower rates, it shall endeavor to do so.
(f) Lessee shall pay Lessors within ten (10) days of receipt of payment from the purchaser of electricity or Resources, or both, the royalties accrued and payable for the preceding calendar month. Concurrently with making each such royalty payment, Lessee shall deliver to Lessors a statement including the supporting statement from the purchaser of the electrical power setting forth the basis for the
determination of the royalty then paid by Lessee.
(g) In the event Lessee sells any Resources to an entity affiliated with the Lessee, the royalty payment shall be calculated on the greater of: ( l) the gross proceeds received by the Lessee or (2) the net fair market value of the Resources sold to the affiliated entity.
(h) For purposes of calculating royalties, gross proceeds received from Lessee shall include all revenues directly derived from the sale of electricity from the ownership of power plants receiving Resources from the Property, including all sales of electricity through bilateral power sales contracts; provided, however, for purposes of calculating royalties, gross proceeds shall not include any favorable loans, subsidies or tax credits received by the Lessee from power purchase or any governmental entity associated with "green" or "clean" power alternatives, whether such net purchase credits, loans, subsidies or tax credits are available now or in the future.
| 4. | PAYMENTS. |
(a) All payments required to be made by Lessee to Lessors hereunder shall be paid to Lessors by separate check or other conventional commercial means.
(b) No change in the ownership of the Property or of any right to recover payments due Lessors hereunder shall be binding on Lessee until Lessee shall have been furnished adequate written evidence thereof.
(c) Until such notice, if any, is furnished to Lessee, Lessee shall continue to make all payments to the office or depository last designated by Lessors in Section 23 hereunder.
| 5. | UNECONOMIC SUBSTANCES. |
(a) Nothing herein contained shall require Lessee to produce any Resources or to recover, save and market any of the Resources contained in the brines or other well output produced from xxxxx on the Property, which, in Lessee's reasonable judgment, is not economic to produce, recover, save or market. Lessee shall have the right, without accountability to Lessors therefore, to waste or dispose of any such uneconomic Resources by such lawful manner or means as Lessee shall deem appropriate in the circumstances.
(b) Lessee shall not be obligated to produce Resources it is unable to market at the well or xxxxx, or plant or plants. It is recognized that the market demand for the Resources may vary from time to time and during such periods as there is no market at the well or plant for any of the Resources, Lessee shall have no obligation to produce, process, and extract such Resources. Lessee shall have no obligation to save or process by-products described in Section l(a)(5).
(c) Subject to the foregoing and except as herein otherwise provided, Lessee agrees that any xxxxx it may drill and xxxxx completed and thereafter operated, shall be drilled, developed and operated with reasonable diligence and in accordance with prudent geothermal development and operating practices, and in compliance with all applicable laws.
| 6. | SURFACE OPERATIONS. |
(a) No well shall be drilled within one thousand feet (I ,000') of any residence, structure, or other building now on the Property, without the prior written consent of the owner thereof.
(b) Lessee shall pay Surface Lessors for any damages to agricultural produce, products, commodities or
crops and any and all other surface improvements caused by its operations on the Property. Such payments are to be based upon the fair market value of such produce, products, commodities, or crops or improvements at the time such damage occurs.
(c) In the event any buildings and /or personal property shall be damaged, destroyed, or required to be removed because of Lessee's operations on the Property, Lessee shall be liable for payment of the reasonable replacement value thereof to the owner.
(d) Upon completion of any well drilled on the Land, Lessee shall level and fill all sump holes and excavations and shall remove all debris and shall maintain the location of such well in a clean and sanitary condition.
(e) Lessee in its operations on the Property shall at any and all times give due and proper regard for the rights, convenience, and health, welfare and safety of Lessors and all persons lawfully occupying the Property.
(f) Lessee agrees to fencing, and marking with appropriate signage, all permanent facilities, such as individual xxxxx, and to provide temporary fencing during construction, around all areas of operation.
(g) Upon abandonment of any uncompleted or completed well and upon termination of this Agreement, Lessee shall level and fill all sump holes and excavations and remove all debris and leave the location of each such well in a clean and sanitary condition, and further, if requested in writing by Lessors, the owner of the surface area, or any governmental agency with authority to require such action, Lessee shall cement in and plug each such well in such manner and to such extent as to insure against any discharge from the same.
(h) Any xxxxx drilled by Lessee hereunder shall be drilled in a manner so as not to materially affect any existing well of the surface owner of the Property and sufficient casing shall be set and cemented in such xxxxx drilled by Lessee so as to seal off and protect surface waters.
(i) Lessee agrees to conduct all operations hereunder with reasonable diligence and in accordance with prudent geothermal industry operating practices, including, but not limited to, the operational standards and specifications of the Federal Bureau of Land Management, the California Department of Oil, Gas, and Geothermal Resources, and the applicable California Regional Water Quality Control Board. Lessee shall be liable to Lessors and shall indemnify Lessors for subsidence or surface damages resulting from its operations hereunder, provided that Lessee shall not be liable to Lessors for damage to subsurface structures unless such damage is caused by Lessors gross negligence or willful misconduct.
(j) Notwithstanding the foregoing, Surface Lessors reserve the right to use this Property for agricultural, ranch, grazing, housing, or other related purpose, or to lease the surface Property and grant easements and licenses on over and across such property to other persons for any purpose and, except as set forth below, any income derived by the Surface Lessors therefrom shall belong entirely to the Surface Lessors, provided however that such use does not include any geothermal development or installation of any facilities related to geothermal development or commercial generation of electricity, and provided that Surface Lessors' activities preserve the existing commercial productivity and environmental integrity of the Property, and provided further that the Surface Lessors' activities do not negatively affect the viability of the Resources in any matter whatsoever or materially impair, delay or increase the cost of the activities of the Lessee hereunder. Lessors agree to provide Lessee with a copy of any lease agreement entered into between Lessors and any surface tenant regarding the lease of any portion of the Property subject to this Agreement. Surface Lessors agree to provide any surface tenants with the portions of this Agreement applicable to surface rights, and to notify surface tenants that their rights are subordinate to the rights of
the Lessee hereunder.
(k) Lessee agrees to use its good faith efforts to conduct its activities and operations on the Property in a manner that minimizes the impact thereof on Lessors activities and operations on the Property, including Lessors's agricultural activities in the manner being currently conducted.
| 7. | TITLE AND HAZARDOUS SUBSTANCES. |
(a) Lessee shall have a period of 60 days after execution of the Agreement to examine title to the Property. If defects in title are revealed to Lessee that would preclude Lessee from having marketable title to the rights granted in the Agreement within the time required by Lessee, Lessee shall give written notice thereof to Lessors within the 60-day period and Lessors shall at their option either remove the defect or defects within 60 days after receiving such notice from Lessee, or terminate this Agreement and refund the bonus payment and the initial annual rental payment made by Lessee pursuant to Section 2 of this Agreement.
(b) Lessee at its option may pay and discharge any delinquent taxes, mortgages, trust deeds or other delinquent liens or encumbrances existing, levied or assessed on or against the Resources which Lessors fails or refuses to pay or discharge at Lessee's request; and, in the event Lessee shall exercise such option, Lessee shall have the right, in addition to other remedies provided by law or equity, to reimburse itself by applying to the discharge of any such mortgage, tax or other lien or encumbrances any and all payments accruing to Lessors hereunder.
(c) No well products or surface materials or refuse of any kind from the Property shall be allowed to deposit upon, pass into, or otherwise enter, degrade, or pollute the waters of the Salton Sea or the water supply of the surface owner or others.
(d) All drilling fluids, well products and other substances, the spillage of which would contaminate or otherwise adversely affect the productivity of any portion of the Property not actually occupied or used by Lessee or which would adversely affect the waters of the Salton Sea or the water supply of the surface owner or others, shall be removed by Lessee in such manner and to such place or places as to insure that such contamination or adverse effect does not occur or continue to occur.
(e) Lessee assumes no responsibility and shall not be held liable for the cost of remediating any environmental conditions which existed or were in the process of formation prior to the Effective Date of this Agreement. Lessee shall only be responsible for remediating new or existing environmental conditions affecting the Property to the extent such conditions are caused or exacerbated by Lessee's activities upon the Property, including subsidence or subsurface contamination "drawn in" to the Property by Lessee's development or operational activities on or under the Property, and which require remediation pursuant to federal state or local environmental laws or the terms of this Agreement.
(f) Lessee covenants and agrees that no action shall be taken on the Property except in compliance with all federal, state and local environmental laws (collectively, "Environmental Laws"), including without limitation the requirements of such regulating agencies.
(g) Lessee agrees to notify its employees, agents, contractors, and it successors or assigns of the environmental condition of the Property and to cause such persons to also comply with all Environmental Laws as they relate to the Property.
(h) Lessors covenants and agrees to cooperate with Lessee and to make all reasonable efforts to work with the Environmental Protection Agency, the California Regional Water Quality Control Board, the
California Department of Toxic Substances Control and any and all other federal, state and local governmental entities to resolve any and all present and future liabilities arising from Lessee's entering into the Agreement.
| 8. | LESSER OR AFTER ACQUIRED INTEREST. |
(a) If it should hereafter appear that Lessors, at the time of making this Agreement, owned a lesser interest in the Property than the fee simple estate therein, or less than the entire interest in the Resources contained in and under the Property, then the rentals, royalties, and other payments accruing to Lessors hereunder shall be paid to Lessors in the proportion which Lessors's interest bears to the entire fee simple estate in the Property, or to the entire interest in the Resources.
(b) Notwithstanding the foregoing, should Lessors hereafter acquire any additional right, title, or interest in or to the Property or the Resources, then any increase in payments of money hereunder necessitated thereby shall commence with the payment next following receipt by Lessee of satisfactory evidence of Lessors's acquisition of such additional interest.
| 9. | TAXES. |
(a) Lessee shall pay all taxes levied and assessed against Lessee's leasehold interest in the Resources. Lessee shall also pay all taxes levied and assessed against all structures, improvements, and personal property placed upon the Property by Lessee including power plants. Lessors shall pay all taxes levied, and assessed against the Property as such and against any rights thereto not covered by the Agreement For avoidance of doubt, Lessors shall not be responsible for any income taxes for monies that Lessor does not receive and /or any taxes, fees, costs, or charges associated with the operation of a power plant on the Property.
(b) Lessors agree to pay (through a reduction in royalty) a percentage based upon Lessors' royalty share of any and all taxes assessed upon any Resources produced and sold by Lessee from the Property, together with the same share of all severance, production, net proceeds, and license taxes or other taxes or assessments levied or assessed on account of the production of Resources from or allocated to the Property, and to pay all of any other taxes assessed against the Property, whether the same are assessed to Lessors or Lessee or otherwise.
(c) Upon Lessors' failure or refusal to pay all or any portion of such taxes or assessments, Lessee is hereby authorized to pay the same on behalf of Lessors and to deduct the amount so paid from any royalties or moneys due Lessors hereunder.
| 10. | OPERATIONS. |
(a) Lessee shall comply with all laws and regulations applicable to its operations hereunder including, but not limited to, requirements for worker's compensation insurance as required by the laws of the State of California, the California Department of Oil , Gas, and Geothermal Resources, and /or the California Regional Water Quality Control Board. All operations and acts of Lessee upon the Property shall be performed in a good, safe and workmanlike manner and in accordance with recognized good operating, engineering, and industry standards and practices generally considered most likely to result in the most efficient operation and the maximum economically practicable production of the Resources producible therefrom. All operating sites shall be kept neat, clean, and safe, and operations shall be conducted so as to eliminate, so far as practicable, dust, noise, and noxious odors.
(b) Lessee shall indemnify, hold harmless, and defend Lessors from and against any and all manner of claims, judgments, or lawsuits (including costs and attorney's fees) whatsoever arising from non performance of Lessee's obligations under this Agreement or arising directly or indirectly out of Lessee's activities hereunder, other than those arising in whole or in part from Lessors' negligence or willful misconduct.
(c) All of the labor to be performed, and all of the materials to be furnished in the operations of Lessee hereunder, shall be at Lessee's sole cost and expense, and Lessors shall not be chargeable with or liable for any part thereof.
(d) Lessee shall protect the Property and Resources from and against nonconsensual liens of every character arising from its operation thereon, and against any consensual liens and encumbrances not authorized under the terms of the Agreement, and shall indemnify, defend, and hold Lessors harmless with respect thereto. However, a nonconsensual lien on the Property shall not constitute a default if Lessee in good faith disputes the validity of the claim, in which event the existence of the lien shall constitute a default thirty (30) days after the validity of such lien has been adjudicated adversely to Lessee. Lessee shall also post and record a Notice of Non-Responsibility on behalf of Lessors in accordance with applicable law.
(e) Prior to commencement of operations hereunder, and at all times thereafter while the Agreement is in effect, Lessee shall obtain and maintain all worker's compensation insurance, liability insurance, and policies of insurance against fire and other risks for which insurance is customarily obtained in similar operations. Lessee shall maintain such insurance at levels and with limits commensurate with Lessee's operations.
(f) Until drilling of the first well on the Property, such insurance shall include comprehensive general liability coverage with bodily injury limits of not less than $2,000,000 for each occurrence, property damage limits of not less than $1,000,000 for each occurrence, comprehensive automobile liability insurance with bodily injury and property damage limits of not less than $1 ,000,000 for each accident, and Operator's Extra Expense (Blowout) Insurance, in the amount of $5,000,000 which will cover physical damage to Lessors's property as well as damage to property of third parties such as adjacent landowners.
(g) Lessors shall be added as a named insured in the policies for such insurance. Lessee shall provide copies of the policies to Lessors, and whenever Lessors reasonably so requests, Lessee shall furnish to Lessors evidence that such insurance is being maintained.
(h) Upon drilling of the first well on the Property, Lessee shall maintain all such relevant and necessary insurance at limits reasonably calculated to insure against risks associated with the development of the Property and conversion of the Resources into electricity, heat, power or another form of energy, for the extraction and processing of by-products, or both, in conjunction with this Agreement.
(i) If Lessee or anyone purchasing Resources from Lessee, constructs a power plant on the Property for the conversion of Resources into electricity, heat, power or another form of energy or for the extraction and processing of by-products, or both, and if any such plant utilizes Resources produced or obtained from the Prope1iy and from other land in the vicinity, Lessee or such purchaser shall have the right and easement to continue to maintain and operate such plant and connected pipeline, transmission line and other associated facilities so long as it utilizes Resources from other land, notwithstanding any cessation of production from the Property or the expiration, termination or forfeiture of the Agreement. In such event Lessee shall pay to Surface Lessors an annual rental amount otherwise clue under Section 2 above, but shall terminate the Agreement as to Mineral Lessors.
U) Any work or drilling operations preliminary to the drilling in the ground or reworking operations may be undertaken in any order Lessee shall see tit. All such work and operations shall be prosecuted with reasonable diligence and subject to the approval of the Surface Lessors, which consent shall not be unreasonably withheld and consistent with the intent of this Agreement.
(k) Lessee shall, prior to the initiation of drilling activities, post a bond in the full amount required by the relevant state and/or federal department or agency to cover the cost of plugging and abandoning all xxxxx to be drilled upon the Property.
(i) Permanent groundwater xxxxx shall be installed on or near the Lands to track water quality, and quarterly reports summarizing the data shall be provided to Lessors by Lessee.
annual report analyzing the impact of geothermal operations on the Property and related water resources shall be prepared by Lessee and provided to Lessors. All of the foregoing activities shall be performed by Lessee at its expense.
| 11. | WATER RIGHTS. |
With respect to the Lessee's right to the the use of water resources or water rights, Lessee acknowledges and agrees that such water and water rights are a limited resource and the water available for use by Lessee may require a separate agreement with the Imperial Irrigation District or other governmental entities to arrange for sufficient water for Lessee's needs above and beyond Lessors' own water usage. Lessor shall fully retain any and all legal rights including ownership rights and transfer rights which it currently holds or may later be deemed to hold relating to the Property's water. Lessee's use of the water shall not diminish or in any way impact, these legal rights, nor shall Lessors be required to diminish water usage for surface purposes, including all water necessary for fanning or agricultural usages. Notwithstanding the above, nothing contained in this Section ll shall apply to Lessee's use of subsurface groundwater and Lessee shall be free to drill water xxxxx from the surface of the Property as necessary for its operations and to utilize water developed or uncovered in its geothermal operations for injection purposes or other drilling or development purpose consistent with the terms of this Agreement. For avoidance of doubt, Lessee shall be required to enter into separate agreements with water allocation authorities without impacting allocations to Lessor, provided that Lessor shall cooperate with Lessee to the extent necessary to assist Lessee in obtaining appropriate water allocations.
| 12. | UNITIZATION |
(a) Lessee shall have the right, and the obligation to the fullest extent permitted by law, either before or after the commencement of production, to unitize, pool or combine all or any part of the Property with other land or lands or lease or leases (whether held by Lessee or others and whether or not the surface of such land s may be used for development or operating purposes) adjacent, adjoining or in the immediate vicinity of the Property, to comprise one or more operating or development units.
(b) Drilling operations or production on any such unit (the "Unit") shall constitute compliance herewith to the same extent as though such operations or production were on the Property. A "Unit" may be comprised only of the Property or may be a pooling or combination of all or any part of the Property with other lands or leases (either surface or subsurface). In instances where the Unit is a pooling or combination of the Property with other land or leases, Lessors participation into any unit shall be determined in accordance with Section l2(d) below.
(c) Lessee's performance of this obligation is subject to its duty as a prudent operator to configure the Unit boundaries in accordance with sound geological reservoir and engineering methods and to include acreage deemed to be productive (including production and injection capability) while excluding nonproductive acreage.
(d) Lessors' participation interest in any Unit organized by Lessee shall be a percentage of the electricity revenues generated from one more electric power plants which utilize Resources produced from the Property determined by dividing the total acreage of the Property which is included in the Unit, by the total acreage of the Unit (for example, if the Unit totals 3000 acres and all of the Property is included with the Unit, the calculation would be as follows: 660 acres/3000 acres = 22% of the production royalty due Lessors under Section 3 above; hereinafter referred to as "Lessors' Participation Interest").
(e) Each such Unit shall come into existence upon Lessee's execution in writing and recordation in the Ot1ice of the County Recorder in Imperial County of an instrument identifying and describing the Unit's acreage, and any other filings required by applicable law. Lessee shall at all times keep Lessors informed of the portion of the Property included in any Unit. Lessors at their sole cost may retain a qualified geothermal consultant to review the geological and economic basis for such Unit.
(f) [n the event that there is a disagreement between Lessors' consultant and Lessee over the inclusion of Property in the Unit, then a single independent consultant, recognized as qualified in the detem1ination of geothermal reservoir structures shall be mutually agreed upon by Lessors' consultant and Lessee. The determination of the third party consultant, whose fee shall be paid in equal portions by the parties, shall be binding on the parties.
(g) Lessee shall have the right at any time or times subject to Section 12(e) above, to increase or decrease the size of any Unit; provided, however, any change in the amount of Lessors' royalties resulting from the unitization of all or part of the Property or an increase or decrease of the Property in a Unit shall not be retroactive.
(h) As to each and any such Unit, Lessee shall have the right to comingle for the purpose of utilizing, sell ing or processing, or causing to be processed, the steam or steam power and /or extractabl e minerals produced from such Unit with the steam or steam power and/or extractable minerals produced from other lands or units, so long as the production from the Unit which includes all or portions of the Property, is measured, metered or gauged as to Unit production. Unit production so measured, metered or gauged shall then be allocated to the Property in accordance with the provisions of Section II (a) above.
(i) Allocation, as aforesaid, shall cease upon any tem1ination, either in whole or in part by surrender, forfeiture or otherwise, of this or any other lease covering lands in such Unit as to the lands covered by such terminated lease, or part thereof. In the event of the failure of Lessors' or any other owner's title as to any p01tion of the Propetty included in any such Unit, such affected portion of the Property so included shall likewise be excluded in allocating production from such Unit. However, Lessee shall not be held to account for any production allocated to any Propetiy to be excluded, as aforesaid, from such Unit unless and until Lessee has actual knowledge of the aforesaid circumstances requiring such exclusion.
(j) If any taxes of any kind are levied or assessed, other than taxes on the land as such or any rights thereto not covered by the Agreement, any p01tion of which is chargeable to Lessors under Section 9 hereof: then the share of such taxes to be bome by Lessors as provided in the Agreement shall be in proportion to the share of the royalty from any such Unit allocated to he Property.
(k) Lessee may, at its sole option, at any time when there is no production in any such Unit of Resource in quantities triggering payment by Lessee, terminate such Unit by a written declaration in the manner in which it was created consistent with applicable state laws and regulations.
| 13. | FORCE MAJEURE. |
Each party's obligations under the Agreement, other than payment of rentals, in lieu royalties or other monetary obligations, shall be suspended, and the term of the Agreement and the period for removal of Lessee's property in the event of termination shall be extended, while such xxxxx is prevented from complying therewith by: strikes; lockouts; riots; action of the elements, including but not limited to tire, explosion, flood, volcanic activity, earthquakes, or tidal waves; accidents; delays in transportation; inability to secure labor or materials in the open market; laws, rules, regulations or actions of any federal, state, municipal or other governmental agency, authority or representative having jurisdiction, including failure or delay in issuance of necessary permits or approvals; Section 5 above described occurrences; war, whether declared or undeclared; acts of God; litigation or administrative proceedings affecting title to Property covered hereby or operations thereon; or by other matters or conditions beyond the reasonable control of such party, whether or not similar to the conditions or matters in this section specifically enumerated ("Force Majeure").
Notwithstanding the foregoing, if a Force Majeure event continues for a period in excess of six (6) months, Lessee shall be required to make annual rental payments to the Lessors' at the highest amounts listed in Section 2(g) above subject to CPI adjustment increases, less any amounts paid as royalties to the Lessors during such period, provided that the maximum extension period shall be five (5) years. Rental payments pursuant to this Section 13 shall not be considered "advanced royalties" or otherwise offset royalties due Lessors under this Agreement.
| 14. | SURRENDER. |
(a) At any time, and from time to time hereunder, Lessee shall have the right to terminate, surrender and relinquish this Agreement, or all or any portion hereof as it may relate to all or any portion of the Property, by giving written notice to Lessors of such election, by executing and delivering to the Lessors or placing of record in Imperial County a quitclaim deed or deeds covering all or any part of the Property so surrendered .
(b) Such surrender will be effective upon delivery of notice as provided in Section 23 below, but shall not release Lessee from any liability or obligation arising prior to the Effective Date of said notice or any obligation which survives termination.
(c) Upon such surrender, Lessee shall have no further obligations under this Agreement with respect to the Property, or to such portion thereof to which surrender applies, except for any liability or obligation accruing prior to the Effective Date of such surrender or which expressly or by obvious implication survives termination. relinquishment shall not reduce Lessee's royalty or other payment obligations.
(d) In the event that Lessee surrenders this Agreement as to all of the Property, Lessors shall retain the royalties and rentals previously paid to Lessors hereunder as full consideration for the rights granted herein. A partial termination, surrender, or relinquishment shall not reduce Lessee's royalty or other payment obligations.
(e) Notwithstanding such surrender, Lessee shall nevertheless, subject to approval of the Surface Lessors, retain such rights-of-way and easements over, upon, through, and across the Property so surrendered as shall be necessary or convenient for Lessee's operations on so much of the Property as shall then be retained by Lessee under the Agreement.
| 15. | BREACH OF AGREEMENT BY LESSEE. |
(a) If Lessee shall fail to pay any installment of royalty, in lieu royalty, or rental when due, and if such default shall continue for a period of fifteen ( 15) business days after receipt by Lessee of written notice thereof from Lessors to Lessee, then at the option of Lessors, the Lease shall terminate as to any portions
thereof or any interests therein as to which Lessee is in default; provided, however, that if there be a bona fide dispute as to the amount due and all undisputed amounts are paid, said fifteen ( 15) day period shall be extended until five (5) days after such dispute is settled by final court decree, binding arbitration or agreement. Delinquent rents or royalties shall bear interest at prevailing western bank prime rate plus one and one half percent until paid, or, if lower, the highest rate permitted by applicable law.
(b) If Lessee shall be in default in the performance of any obligations under the Agreement other than the payment of royalty, in lieu royalty or rental, and if for a period of sixty (60) days after written notice is given to Lessee by Lessors of such default, Lessee shall fail to commence and thereafter diligently and in good faith prosecute action to remedy such default, Lessors may terminate the Agreement.
(c) However, to the extent that the default is not capable of being remedied in said period, Lessee shall have an additional reasonable period of time to remedy such default.
(d) No default in the performance of any condition or obligation hereof or termination by reason thereof shall affect the rights of Lessee hereunder with respect to any drilling, injection, disposal , or producing well or xxxxx and related facilities and rights of access thereto, in regard to which Lessee is not in default.
(c) Disputes or differences between Lessors and Lessee shall not interrupt performance or the continuation of operations. In the event of any dispute or difference, operations shall be continued in the same manner as prior to such dispute or difference until the matters in dispute have been resolved, and thereupon such payments or restrictions shall be made as may be required under the terms of the settlement or other resolution of the dispute.
| 16. | REMOVAL OF LESSEE'S PROPERTY: ACTIONS UPON TERMINATION. |
(a) Lessee may at any time during the term of this Agreement remove all or any of the property and fixtures that have been placed by it upon the surface of the Property.
(b) Following termination of this Agreement or any patt thereof for any cause, and following abandonment of any well drilled pursuant to the provisions hereof, Lessee shall begin within one month thereafter and complete within six (6) months thereafter, the removal of all personal property and fixtures which Lessee has brought upon the Property affected by such termination or upon the drill site of such abandoned well; properly plug and abandon such well; fill all sumps; remove all foundations or reduce to ground level to Lessors's reasonable satisfaction; comply with all permits and other obligations regarding cleanup and reclamation; remove all hazardous wastes and substances attributable to the operations of Lessee hereunder; and as nearly as practicable, restore the areas affected by such termination or abandonment to the condition in which they were prior to the commencement of its operations hereunder.
(c) The one month and six (6) month periods referred to in the previous sentence may be extended as necessary with the consent of the Lessors, which shall not be unreasonably withheld , if Lessee is diligently pursuing the activities described therein (i.e. the initiation and removal of the property and fixtures, etc.).
(d) The ownership of any of Lessee's property not removed by it during the period herein provided shall, in the absence of Force Majeure as defined in Section 13 above, at the option of Lessors. be deemed abandoned by Lessee and shall pass to Lessors without further act of the parties or either of them effective upon expiration of such period, unless Lessors expressly disclaim ownership of such property and fixtures within sixty (60) days after the expiration of the aforementioned six (6) month period.
(e) Upon final tem1ination of this Agreement as to all of the Property, all the rights and obligations under this Agreement, except those arising or accruing prior to such termination, and except any obligations which expressly or by obvious implication survive termination, of Lessors and Lessee hereunder with respect to the Property shall terminate and be relinquished.
(f) Upon any termination or surrender of this Agreement, whether partial or complete, Lessee shall provide Lessors within thirty (30) calendar days with a document in recordable fom1, acceptable to counsel for Lessors, evidencing such tennination or partial or complete surrender of Lessee's rights hereunder, and quitclaiming the Property and all water rights acquired in connection with the Property to Lessors. If Lessee fails or refuses to provided Lessors the required termination notice in recordable form within thirty (30) days of the date Lessee terminates or surrenders all or a portion of this Agreement, Lessee shall pay Lessors $100 per day, plus CPI adjustments from the commencement date of this Agreement.
(g) Lessee shall, within sixty (60) days after termination of this Agreement, provide Lessors with all maps, technical reports and other documents, drilling data, exploration data, test data, title information, and all other information which Lessee may have or may thereafter acquire pertaining to the Property other than proprietary interpretive materials or data. Lessee shall not be responsible for the accuracy of any such information or have any liability to Lessors or to any other persons to whom such information is given by Lessors relative to any reliance thereon. Lessee will permit Lessors to take possession of all available core and samples but Lessee ma destroy or dispose or any such core and samples not removed by Lessors within one hundred eighty ( 180) days after termination.
| 17. | ASSIGNMENT. |
(a) On or after January 1, 2013, Lessee shall have the right, subject to the prior written consent of Lessors, which consent shall not be unreasonably withheld, to assign all or any part of its rights or interest in and to this Agreement, or to an assignee possessing equal or greater financial and geothermal operational qualifications of Lessee including, but not limited to, Lessee's right to occupy such portions of the surface of the Property as may be necessary for the construction of plants and other facilities.
(b) At any time after the Effective Date, Lessee may assign this Agreement to (a) Assignee which is either wholly-owned or controlled by Lessee or is part of an affiliate group controlled by Lessee, and who expressly assumes the rights and obligation of Lessee under the Agreement or (b), a "Leasehold Lender" as defined in Section 19 below.
(c) No assignment by either party hereunder shall be effective for any purpose whatsoever until and unless a certified copy of the recorded instrument or assignment, or, if such assignment shall have been recorded only in short form, a true and complete copy of the instrument described in such short form under the true signatures of each of the parties thereto, together with a certified copy of such recorded short form, shall be given to the other party, in the same manner as is provided for a notice hereunder.
(d) Lessors shall have right to assign all or any interest in the Property upon written notice to the Lessee, without restriction; provided, however, Lessors shall inform any such assignee of the existence of this Agreement.
| 18. | ADDITIONAL OPERATIONS. |
(a) For the consideration paid at the time of execution of this Agreement and without any additional consideration to be paid therefore, except as provided below, Lessors hereby grants to Lessee, its successors and assigns, the following rights, rights of way and easements in, under, upon, through and across the Property which may be exercised at any time or from time to time during the duration of the Lease, and as long thereafter as Lessee exercises any of the rights granted in this section:
(1) Subject to the permission of the Surface Lessors of the Property, the sole and exclusive right to locate a well or xxxxx on the surface of the Property and to slant drill said well or xxxxx into, under, across, and through the Property and into and under property other than the Property, (subject to the rights of the owners of such other property to oppose or limit intrusions into their property),
(2) Together with the right to repair, redrill, deepen, maintain, inject in, rework, and operate or abandon such well or xxxxx for the production of Resources from xxx other property,
(3) Together with the right to develop water from the Property for any of Lessee's operations pursuant to this section,
(4) Together with the right to construct, erect, maintain, use, operate, replace, and remove all pipelines, power lines, telephone lines, tanks, machinery and other facilities,
(5) Together with all other rights necessary or convenient for Lessee's operations under this section, and
(6) Together with rights of way for passage over and upon and across and ingress and egress to and from the Property; and
(7) The sole and exclusive right to drill into and through the Property below a depth of five hundred feet (500') from the surface thereof, by means of a well or xxxxx drilled from the surface of property other than the Property, and the right to abandon or repair, redrill, deepen, maintain, inject in, rework, and operate such well or xxxxx for the production of Resources from property other than the Property.
(b) Any well drilled under the provisions of this section shall be drilled so that the producing or injecting interval thereof shall lie w xxxxx outside the boundary of the Property, and Lessors recognize and agree that Lessors have no interest in any such well or xxxxx drilled pursuant to this section or any production therefrom, except that Lessors shall receive a "pass through royalty" equal to one-half of one percent of gross revenue received by the Lessee from resources or minerals from xxxxx bottomed outside the Property, unless such well is within a unit referenced in Section 12 above. This royalty shall a l so be payable with respect to xxxxx drilled through the Property, even if the surface site is outside the Property and the well bottom is outside the Prope1iy.
(c) Any surrender or termination under any other provision of the Agreement shall be effective notwithstanding the fact that Lessee in and by such surrender or termination reserves the right granted to Lessee under this section, and regardless of such surrender or termination, the rights granted under this section shall continue for the term hereinabove granted in this section. Provided that in the event that Lessors are not receiving any royalty or rental income under this Agreement (other than what is provided in this Section 18), Lessor shall also be required to pay to the Surface Lessors the surface rentals referenced in Section 2U) above, and if Mineral Lessors are not receiving any royalty income under this Agreement (other than what is provided in Section 18), Mineral Lessors shall have the right to terminate this Agreement as to the mineral interest upon 90 days notice to the Lessee.
| 19. | PROTECTION OF MORTGAGEE. |
(a) Lessee shall have the right at all times during the term of the Agreement, with the consent of Lessors, which consent shall not be unreasonably withheld, to obtain bona fide loans (including through special purpose revenue bonds) and to secure such loans by encumbering t leasehold estate created by the Agreement by any mortgage, deed of trust or other security instrument, including, without limitation, an assignment of the rents, issues and profits therefrom, ("Leasehold Mortgages").
(b) The proceeds of such loans, however, shall be used for the planning, financing, development, design, purchase, construction, maintenance, and operation of one or more power plants, well fields and related equipment, personal property, fixtures and improvements necessary or desirable in the operation of such facilities on the Property or utilizing Resources produced from the Property.
(c) It shall be unreasonable for Lessors to withhold consent to a Leasehold Mortgage if the lender is a recognized lending or financial institution (including insurance companies) that is financially sound , or is the Federal government, the State of California and/or a bona fide municipality of the State of California.
(d) During the continuance of each and every Leasehold Mortgage and until such time as the lien of each and every Leasehold Mortgage has been extinguished, Lessors and Lessee shall cooperate in including in the Agreement any provision which may be reasonably requested by an owner or holder of the Leasehold Mortgage ("Leasehold Lender") by suitable amendment or other instrument, including site leases, easements, or licenses granted thereunder.
(e) Lessors and Lessee further agree that any equity participant in the development of one or more electrical power plants which utilize Resources produced from the Property, for the purpose of implementing mortgagee protection provisions, to allow the Leasehold Lender or equity participant reasonable means to protect or preserve the lien of the Leasehold Mortgage and to protect the rights and interest of any such equity participant on the occurrence of a default by Lessee under the terms of the Lease.
(t) Lessors and Lessee each agree to execute, deliver, and acknowledge any agreement necessary to effect any such amendment or other instrument.
(g) Lessors shall have no obligation to execute such amendment or other instrument which in any way affects the term hereof the indemnities provided herein, or rent or royalties payable under the Agreement, or otherwise materially affects the rights or obligations of Lessors hereunder.
| 20. | ESTOPPEL CERTIFICATES. |
Within ten (10) business days of a request by the other party, each of the Parties shall, without charge, certify by written instrument, duly executed, and acknowledged, and deliver to the other party or its designees, the following (if factually correct and without material omission).
(a) That the Agreement is in full force and effect;
(b) That no events have occurred which, with the giving of notice or passage of time or both, would constitute a material default under the
terms of the Agreement;
(c) That the Agreement may be assigned or subleased as security to secure financing or continue such financing to benefit the Agreement;
(d) That Lessors will afford the Leasehold Lender or any party holding a security interest in the Agreement all opportunities available to Lessee to cure any defaults under the Agreement; and
(e) Such other reasonable information and in such reasonable form as either party may request.
| 21. | RIGHT TO INSPECT RECORDS. |
(a) Lessors. and/or its designated agents, may at all reasonable times but at their sole risk and expense, examine the Property and the workings, installations, structures and operations of Lessee thereon.
(b) Lessors shall do so in such manner as not to unreasonably interfere with Lessee's operations.
(c) Lessee shall keep full and correct copies of its books and records with respect to all matters relevant to the royalty and other rights of Lessors hereunder, and Lessors or their agents may at all reasonable times but at their sole risk and expense, inspect and copy the same.
(d) Within twenty (20) clays after the end of each lease year during the term of this Agreement, and consistent with Section 2(c) above, Lessee shall deliver to Lessors a written report summarizing the exploration, development, construction, and related work perfom1ed on and the production of Resources from the Property during the preceding annual period, or, if no such work was performed or Resources produced during said preceding annual period, a written report so stating.
(e) It is expressly agreed, however, that nothing herein shall require Lessee to disclose to Lessors any secret processes, or data pertaining to any secret process with respect to the treatment or processing of Resources, steam, condensates of steam, or by-products thereof or of affluence from xxxxx.
(f) Lessors shall have a period not to exceed 24 months after the receipt of any royalty statement to audit the records of Lessee to make sure that royalty payments are accurate. If as a result of that audit, there is an adjustment of more than ten (1 0%) of the royalties clue to the Lessors, the cost of the audit shall be born by the Lessee. In all other events the cost of the audit shall be born by the Lessors.
| 22. | FEES AND BONDS. |
Lessee shall , at its sole cost and expense and without recourse against Lessors:
(a) Pay all fees and other charges payable by either Lessee or Lessors to the State of California or any agency thereof or to any other governmental entity or agency thereof, for or with respect to or in connection with, or for the supervision of or official action with respect to, the drilling, redrilling, deepening, operation or abandonment of each well on the Property, and
(b) Obtain insuring bonds or agreements, legally sufficient as to issuer, amount, coverage and terms, as are required by the State of California or any agency thereof to be filed or deposited by either Lessee or Lessors for or with respect to or in connection with, or for the supervision of or official action with respect to, the drilling, redrilling, deepening, operation or abandonment of any well on the Property or the drilling or other operations of Lessee on or with respect to the Property.
(c) The provisions of this section are subject to the covenants and provisions contained in Section 7 above
and nothing herein provided shall require Lessee to assume or provide such fees or bonds for CERCLA Liability.
| 23. | NOTICES. |
Any required notice or other communication hereunder from Lessors to Lessee shall be given in writing by sending the same by prepaid registered or certified mail with return receipt requested, or national expedited mail delivery service with return receipt, addressed to Lessee:
| Iceland America Energy, Inc. |
| 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000 |
| Xxx Xxxxxxx, XX 00000-0000 |
| Attention: Xxx X. Xxxxxx |
and any notice or other communication hereunder from Lessee to Lessors shall be given in like manner to Lessors addressed to Lessors:
| c/o Xxxx "Xxxxx" Xxxxxx |
| 0000 Xxxx Xxxxxx |
| Xxxxxxx, XX 00000 |
| With a Copy to: Xxxxxxx X. Xxxxxx, Esq. |
| Jeffer, Mangels, Xxxxxx & Marmara, LLP |
| 1900 Avenue of the Stars |
| Xxxxxxx Xxxxx |
| Xxx Xxxxxxx, XX 00000 |
The parties may, by like notice at any time, and from time, to time, change their respective addresses for the purposes hereof. Postmark dates on registry receipts for such notices shall be conclusive as to the date of mailing.
| 24. | ENTIRETY CLAUSE. |
(a) If the Property shall hereafter be owned in severalty, or in separate tracts, the premises nevertheless shall be developed and operated as one lease, and all royalties accruing hereunder shall be treated as an entirety, and shall be divided among and paid to such separate owners in the proportion that the acreage owned by such separate owner bears to the entire leased acreage. Any payment required to be made by Lessee pursuant to the foregoing shall be paid in accordance with the provisions in Section 4 above.
(b) There shall be no obligation on the part of the Lessee to off-set xxxxx on separate tracts unto which the Property covered by the Agreement may be hereafter divided by sale, devise, unitization, or otherwise, or to furnish separate measuring or receiving facilities.
| 25. | REPRESENTATION AND WARRANTIES. |
The Lessee represents and warrants to the Lessor that:
(a) the execution, delivery and performance of this Lease, and the transactions contemplated herein, are within the corporate power and authority of the Lessee, and have been authorized by all necessary
corporate action of the Lessee;
(b) this Lease constitutes a valid and binding obligation of the Lessee, enforceable against the Lessee in accordance with its terms, subject, however, to limitations with respect to enforcement imposed by law in connection with bankruptcy or similar proceeding;
(c) Lessee has, or will have, the financial capacity to adequately and sufficiently develop the Property and construct a power plant with a capacity of 20 megawatts or greater in proximity to the Property, if commercial quantities of geothermal energy are developed;
(d) Lessee is capable of and w ill utilize its best efforts to acquire of all necessary licenses or permits required by the State of California to act as operator of the Property;
(e) Lessee is qualified to do business in the State of California; and
(f) no third party consent is required for the Lessee to enter into this lease transaction or to perform its obligations as required under this Lease.
The Lessors represent and warrant to the Lessee that:
(a) the Lessors are the owners of the Property and have full right, title to lease and convey the Property as provided herein;
(b) the execution, delivery and performance of this Lease, and the transactions contemplated herein, are within the power and authority of the Lessors, and have been authorized by all necessary action of the Lessors; and
(c) this Lease constitutes a valid and binding obligation of the Lessors enforceable against the Lessors in accordance with its terms, subject, however, to limitations with respect to enforcement imposed by law in connection with bankruptcy or similar proceeding.
| 26. | SEVERABILITY. |
If any party, portion or provision of this Agreement shall be found or declared null, void or unenforceable for any reason whatsoever by any court of competent jurisdiction or by any governmental agency having authority thereover, then only such part, portion or provision shall be affected thereby and the remainder of this instrument shall continue in full force and effect. The foregoing provisions of this paragraph shall be severable for the purposes of the provisions of this section.
| 27. | LEASE CONTAINS ALL AGREEMENTS. |
It is expressly understood and agreed by the parties hereto that this Agreement and the exhibits attached hereto and forming a part hereof as of the date hereof set forth all of the promises, agreements, conditions and understandings between Lessors and Lessee with respect to the Property, and supersede all prior agreements, arrangements or understandings, and that there are no promises, agreements, conditions or understandings, either oral or written, between them with respect to the Property as of the date hereof other than are herein set forth. It is further understood and agreed that no subsequent alteration, amendment, change or addition to this Lease shall be binding upon Lessors and Lessee u n less reduced to writing and signed by them.
| 28. | COUNTERPARTS. |
(a) The Agreement may be executed in any number of counterparts by any person having an interest in the Property with the same effect as if all Lessors herein were named as Lessors in one document and had all signed the same document. All counterparts shall be construed together and shall constitute one agreement. The failure of any person owning an interest in the Property to execute a counterpart hereof or the failure of any person named as Lessors in any counterpart to execute the same, shall not affect the binding force of the Lease as to those who have executed or shall execute a counterpart hereof.
(b) If more than one person is named as one of the Lessors herein and one or more of them fails to execute the Agreement, it shall , nevertheless (if accepted by Lessee) become effective as a lease from each of the Lessors as may have executed the same.
| 29. | NOTICE OF LEASE. |
The parties shall execute a memorandum of this Agreement in a fom1 acceptable for recording in the county where the Property are located which shall identify the parties, the Property covered by the Agreement, the term of the Agreement, and other appropriate provisions as either party or Leasehold Lender may reasonably request. Lessee shall be responsible for the cost of recording such instrument.
| 30. | BINDING EFFECT. |
The Agreement and all of the terms, covenants and conditions hereof shall extend to and he binding upon the respective heirs, executors, administrators, grantees, successors and assigns of the parties hereto.
| 31. | RIGHTS OF LESSORS. |
With respect to any of the rights or remedies of Lessors referenced in this Agreement, such rights or remedies may be exercised only by a majority of the percentage interest separately calculated with respect to rights or remedies of Surface Lessors and Mineral Lessors. For example, a right accorded to the Surface Lessors may only be exercised by the affirmative action of Surface Lessors holding more than 50% of the percentage interest ownership of the surface estate as referenced in Exhibit A hereto. Similarly a right of the Mineral Lessors or a remedy they may choose to exercise may only be exercised by a major of the percentage interest owners of the mineral estate. Where rights or remedies in favor of the Lessors effect both the surface and mineral estate, the rights and remedies maybe exercise only by a majority in percentage interest of both the Surface and Mineral Lessors.
| 32. | NO PARTNERSHIP. |
The Parties acknowledge that the relationship between them shall not be in the nature of a partnership for tax or state law purposes, and that fiduciary duties between the Parties do not exist except to the extent specifically referenced in this Agreement. Each Party shall separately report tax consequences tor federal and state income tax purposes and is not required to share such information with the other Party, except as specifically provided herein with respect to audit rights.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
------ ' 2008
LESSEE
ICELAND AMERICA ENERGY, INC.
| SURFACE LESSORS |
| JORDAN ENTERPRISES, |
| a California limited liability company |
| /s/ Xxxxxxx Xxxxxx Xxxxxx, Manager |
| /s/ Hetty Xxx Xxxxxx, Manager |
| /s/ Xxxx Xxxxxxx Xxxxxx, Manager |
| MINERAL LESSORS: |
| /s/ Alyssa Xxxx Xxxxxx |
| /s/ Xxxxxxx Xxxxxx Xxxxxx |
| /s/ Xxxxx Xxx Xxxxxx |
| XXXX XXXXXXX XXXXXX TRUST DATED JUNE 23, 1961 |
| /s/ Xxxxxxx Xxxxxxx, Trustee |
| XXXX XXXXXXX XXXXXX EXEMPT TRUST |
| /s/ Xxxx Xxxxxxx Xxxxxx, Trustee |
| XXXXXXX XXXXXX, XXXXXX EXEMPT TRUST |
| /s/ Xxxxxxx Xxxxxx Jordan, Trustee |
| HETTY XXX XXXXXX EXEMPT TRUST |
| /s/ Hetty Xxx Xxxxxx |
| EXHIBIT A SURFACE INTERESTS |
| 100% Jordan Enterprises, a California Limited Liability Company |
| 0000 Xxxx Xxxxxx |
| Xxxxxxx, Xxxxxxxxxx 00000 |
| Managers: Xxxxxxx Xxxxxx Xxxxxx, Xxxxx Xxx Xxxxxx Xxxxxx, Xxxx Xxxxxxx Xxxxxx |
| EXHIBIT B | |
| MINERAL INTERESTS | |
| 10% | Alyssa Xxxx Xxxxxx |
| 54 Corsica | |
| Xxxxxxx Xxxxx, Xx. 00000 | |
| 15% | Xxxxxxx Xxxxxxx, Trustee of the Xxxx Xxxxxxx Xxxxxx Trust dated June 23, 1961 |
| 0000 Xxxx Xxxxxx | |
| Xxxxxxx, Xxxxxxxxxx 00000 | |
| 25% | Xxxxxxx Xxxxxx Jordan |
| 000 Xxxxx "X" Xxxxxx | |
| Xxxxxx, Xxxxxxxxxx 00000 | |
| 25% | Hetty Xxx Xxxxxx |
| X.X. Xxx 000 | |
| Xxxxxxx, Xxxxxxxxxx 00000 | |
| 8.3333% | Xxxx Xxxxxxx Xxxxxx Exempt Trust |
| Xxxx Xxxxxxx Xxxxxx Trustee | |
| 0000 Xxxx Xxxxxx | |
| Xxxxxxx, Xxxxxxxxxx 00000 | |
| 8.3333% | Xxxxxxx Xxxxxx Jordan Exempt trust |
| Xxxxxxx Xxxxxx Xxxxxx Trustee | |
| 000 Xxxxx "X" Xx. Xxxxxx. Xxxxx. 00000 | |
| 8.3333% | Hetty Xxx Xxxxxx Exempt Trust |
| Hetty Xxx Xxxxxx Trustee | |
| X.X. Xxx 000 | |
| Xxxxxxx, Xxxxxxxxxx 00000 | |
EXHIBIT C
1. All that certain land situated in the unincorporated area of the County of Imperial, State of California described as follows:
The South half of Tract 37, Township 13 South, Range 16 East, S.B.M., in the County of Imperial, State of California , according to the official plat thereof.
2. All that certain land situated in the unincorporated area of the County of Imperial, State of California described as follows:
Parcel 1: The West half of the Northwest quarter, and the Northwest quarter of the Southwest quarter of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, X.X.X., according to the United States Government Official Plat of Resurvey approved November 4, 1908 and on file in the United States Land Office.
Parcel 2: The East half of the Northwest quarter, and the Northwest quarter of the Northeast quarter of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 16 East, S. B. M., according to the United States Government Official Plat of Resurvey approved November 4, 1908 and on file in the United States Land Office.
Parcel 3: Lots 1, 4, 5 and that portion of Lot 12 and of the Southeast quarter of the Southeast quarter of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, X.X.X. lying Northern of the prolongation Easterly of the Southerly line of Section 29, 627 feet North of the Southeast corner thereof, according to the United States Government Official Plat of Resurvey approve November 4, 1908 and on file in the United States Land Office.
Parcel 4: That portion of the Southeast quarter of the Southeast quarter of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, X.X.X. according to the United States Government Official Plat of Resurvey approved November 4, 1908 and on file in the United States Land Office, lying South of the center line of the Magnolia Canal of the Imperial Irrigation District as located across sa id Southeast quarter of the Southeast quarter of Section 20 on May 27, 1939.
Parcel 5: That portion of the Southwest quarter of the Southwest quarter of Section 00 , Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, X.X.X. according to the United States Government Official Plat of Resurvey approved November 4, 1908 and on file in the United States Land Office, lying South of the center line of the Magnolia Canal.
Parcel6: That portion of Xxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, X.X.X. according to the United States Government Official Plat of Resurvey approved November 4, 1908 and on file in the United States Land Office, lying South of the center line of the Magnolia Canal.
Parcel 7: That portion of the Southwest quarter of the Southwest quarter of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, X.X.X. according to the United States Government Official Plat of Resurvey approved November 4, 1908 and on file in the United States Land Office, lying North of the center line of Oak Canal.
